text:
    A89A1825.
    PRICE v. AGE, LTD. et al.
    (390 SE2d 242)
   Sognier, Judge.

Age, Ltd. brought a dispossessory action against Scott Price d/b/a United Fitness Center. Walter Kwon was added as a third party defendant. After a bench trial the court found in favor of Age, Ltd. for $25,961.57 for past due rents and attorney fees under the lease contract and found Kwon liable to Price for that sum, with an additional award of attorney fees in Price’s favor against Kwon based on bad faith. Price alone appeals from the judgment in favor of Age, Ltd.

Appellant and appellee executed a lease contract in November 1983 whereby appellant leased premises for his exercise business. In December 1985 appellant sold his exercise business to Kwon. Although appellant and Kwon executed an assignment of the lease, it is uncontroverted that Kwon failed to execute a separate assignment presented to him by appellee. Kwon apparently vacated the leased premises in July 1986 and paid no rent thereafter. On August 5, 1986, appellee notified appellant of his default under the contract terms for failure to pay rent, and on August 7 appellee filed the subject dispossessory.

1. Appellant contends the trial court erred by not finding that appellee failed to comply with the condition precedent in Section 12.1 of the lease contract. That provision states “[i]t is mutually agreed that in the event [appellant] shall default in the payment of rent,. . . or other sums herein reserved when due or defaults in the delivery to [appellee of certain reports]; or, unless otherwise provided in this Lease, [appellant] shall be in default in performing any of the terms or provisions of this Lease other than those above in this Section 13.1 [sic] and fails to cure such default within ten (10) days after written notice of default from [appellee]; or [upon appellant’s bankruptcy or other matters not in issue here]; then, and in any of said events, [appellee] has the following options: (i) [appellee] may, during the continuance of such default or condition, immediately terminate this Lease upon written notice to [appellant], whereupon this Lease shall end.” (Emphasis supplied.) Appellant argues that he was entitled to written notice ten days after he failed to cure the default, i.e., failure to pay the rent, and thus the written notice provided by appellee to him two days before filing the dispossessory warrant failed to meet the contractual conditions precedent.

“ ‘The construction of a contract is a question of law for the court.’ OCGA § 13-2-1. Unless there are ambiguous terms or expressions in the contract, it is the trial court’s duty to construe it. [Cit.] The same rule applies to leases. [Cit.] The trial court’s findings will not be set aside unless they are clearly erroneous. [Cit.] ... In construing a contract, the fundamental rule is to ascertain the intent of the parties. [Cit.]” Quinlan v. Bell, 189 Ga. App. 8, 9 (374 SE2d 823) (1988). Applying these principles, we find the trial court properly rejected appellant’s interpretation of the contract. While reading the contract is complicated by the reference to Section “13.1” (a section providing that the laws of Georgia govern the interpretation of the lease contract), we agree with appellee that in view of the use of the modifying “this,” “13.1” is a typographical error for “12.1.” With this correction, the language conditioning appellee’s utilization of option (i) upon written notice ten days after appellant’s failure to cure “such default” clearly and unambiguously does not include “those [defaults] above in this Section,” i.e., default in the payment of rent, as is the case here. Accordingly, since appellant’s default was not the type of default contemplated by the parties as triggering the condition precedent in the contract, the trial court correctly determined that appellee was not required to comply with that condition. See generally Stover & Sons v. Harry Norman, Inc., 187 Ga. App. 514, 515-516 (370 SE2d 776) (1988).

2. Appellant contends the trial court erred by finding he was obligated to pay appellee those rents accruing after August 5, 1986, the date appellee terminated the lease, until December 5, 1986, the date appellee assumed possession of the lease premises. Appellant relies on Section 12.1 (i) of the lease, which provides that “[u]pon such termination [of the lease contract] by [appellee], [appellant] will at once peaceably surrender possession of the Demised Premises to [appellee] and remove all of [appellant’s] effects therefrom, and [appellee] may forthwith reenter the Demised Premises and repossess himself thereof and remove all persons and effects therefrom, using such force as may be necessary without being guilty of trespass, forcible entry or other tort and take such other action or actions as [appellee], in its discretion, deems necessary to secure, preserve and protect the Demised Premises.” Appellant argues that under this language, appellee was entitled to take possession of the premises as of the date of termination without instituting any dispossessory proceedings, and thus appellant was not responsible for the rent during the four months it took appellee to process its dispossessory proceedings.

We do not agree with appellant that appellee could not institute dispossessory proceedings under OCGA § 44-7-50 et seq., but was obligated to proceed solely under the lease contract. OCGA § 44-7-50 provides an additional right or benefit to landlords as a class, and whether or not a landlord wishes to implement the statutorily provided procedure or waive the benefit of the statute is a matter purely within the landlord’s discretion. Holden v. Royal Mfg. Co., 79 Ga. App. 767, 770-771 (54 SE2d 317) (1949). It is well established that a landlord is not required to activate the termination provisions in a lease in order to institute dispossessory proceedings against a tenant on the basis of nonpayment of rent, see Metro Mgmt. Co. v. Parker, 247 Ga. 625, 630 (278 SE2d 643) (1981), and that the statutory remedy “may be exercised at any time the landlord sees fit to use it.” Willis v. Harrell, 118 Ga. 906, 910 (7) (45 SE 794) (1903). Contrary to appellant’s argument, OCGA § 44-7-50 by its terms does not apply solely to situations where a tenant holds possession of lands over and beyond the term for which they were rented, and while, in situations where the tenant has vacated the premises, it has been noted that “effective utilization of dispossessory . . . proceedings is impossible [and that] an action for rent is the only functional means of liquidating the landlord’s claim for past due rent,” Dawkins, Ga. Landlord & Tenant — Breach & Remedies — With Forms, § 7-1, nothing in OCGA § 44-7-50 et seq. prohibits the filing of dispossessory proceedings in such situations. Further, since the lease contract between the parties was viable so that appellant was still the lessee responsible under the contract (appellee having never acknowledged appellant’s assignment of the lease to Kwon under the terms of the lease), we find no merit in appellant’s argument that he was not the proper party upon whom appellee made demand for possession. Although appellant argues that he did not refuse to deliver possession of the premises to appellee and that the premises were available, it is uncontroverted that appellant did not tender to appellee within seven days after he was served with the summons all rents allegedly owed plus costs of the dispossessory warrant, and, therefore, he did not present a defense to bar appellee’s action. OCGA § 44-7-52. pellant’s abandonment of the premises into a surrender thereof. See Hulsey v. Harrington, 57 Ga. App. 479, 482-485 (195 SE 901) (1938).

However, despite appellant’s argument above that there was evidence appellee could have reentered and relet the premises after July 1986, as provided by in the contract, the evidence was conflicting on this point in that testimony was adduced at trial that appellee did not reenter the premises then because “Kwon was continuing to operate [his business] at the time,” and it was not until appellee obtained the writ of possession on December 5, 1986 that it reentered the premises. The trial court found that appellant was obligated to pay rent under the contract until the premises were returned to appellee and that possession was not returned to appellee until December 5, 1986. “ ‘When a trial court sits as both judge and jury, the court’s findings of fact are binding on appeal, and, unless wholly unsupported or clearly erroneous, will not afford a basis for reversal.' (Cits.) On appeal, this court must not substitute its judgment for that exercised by the trial court when there is some support for the trial court’s conclusion. Our duty is not to weigh evidence de novo, but to merely determine if there is any evidence which supports the judgment below. (Cit.) Even in the face of conflicting evidence, the trial court’s judgment will be upheld as long as there is “any evidence” to uphold the lower court’s determination. (Cit.)’ [Cit.]” Edwards v. Wilson, 185 Ga. App. 514, 515 (1) (364 SE2d 642) (1988). We find no error in the trial court’s ruling.

3. We find no merit in appellant’s contention that the trial court erred by awarding appellee the rent installments which accrued after appellee filed the dispossessory warrant. Appellant cites Nickerson v. Candler Bldg., 156 Ga. App. 396 (274 SE2d 582) (1980) in support of his argument that because appellee failed here to file supplemental pleadings pursuant to OCGA § 9-11-15 (d), it cannot recover those rental amounts which came due after appellee’s action was filed. Appellant has overlooked OCGA § 9-11-15 (b) which provides that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.” The transcript of the bench trial reveals that all the parties repeatedly referenced appellee’s claim to the rental amounts accruing after the dispossessory was filed and argued the merits of appellee’s claim to those amounts before the trial court. The case sub judice is thus distinguishable from Nickerson, supra, in which no additional claims for rental amounts due after the complaint was filed could have been raised and tried by express or implied consent of the parties because default judgment had been entered against the lessee on the complaint.

4. Appellant asserts error in the trial court’s failure to admit evidence regarding a collateral agreement between him and appellee. The trial court granted appellee’s motion in limine prohibiting reference to that agreement on the basis that the evidence was barred by the parol evidence rule. The evidence appellant sought to introduce consisted of a letter appellant wrote appellee in March 1985 and appellant’s testimony regarding the damages he suffered as a result of appellee’s breach of the collateral agreement. The March 1985 letter stated that at the time the initial lease contract was executed in January 1984, appellant entered the lease with “the full understanding that my [appellant’s] premises were to be remodeled before the increase in rent began in February of '85 . . . .1 was assured by February 1985, my facility would be remodeled and you have already redone one location and started on another. This is hurting my sales

The trial court held that appellant’s evidence contradicted the language in Section 6.2 of the lease contract, which provided that “[e]xcept as otherwise provided in this Lease, [appellee] shall not be obligated to perform any maintenance or to make any repairs, modifications or replacements of any kind upon the Demised Premises or to or upon any equipment, facilities, systems or fixtures therein contained.” “Under OCGA § 24-6-1, ‘(p)arol contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument.’ ” Hayes Constr. Co. v. Thompson, 184 Ga. App. 482, 483 (1) (361 SE2d 865) (1987). Appellant does not contend that any part of the contract is ambiguous so as to require parol evidence to be admitted to aid in construing it, and we cannot agree with appellant that the collateral agreement he asserts existed between the parties was not inconsistent with the written lease. Parol evidence cannot be admitted “to add to, take from, or vary the writing itself.” Andrews v. Skinner, 158 Ga. App. 229, 230 (279 SE2d 523) (1981). Accordingly, we find no error in the exclusion of this evidence.

5. Appellant contends the trial court miscalculated the amount of damages, alleging that the trial court failed to deduct from the rental amount awarded appellee from July 1986 to December 5, 1986 certain credits and overpayments appellant claims he made prior to July 1986. However, as appellee points out, the trial court declined to award appellee certain compensation it sought from appellant, which was in an amount exceeding appellant’s claimed amount by 49 cents. It thus appears that the trial court either found no merit in the parties’ claimed amounts or else set off the amounts against each other. No error in the computed rent awarded having been made, we find no error in the amount of damages awarded by the trial court.

Decided January 2, 1990.

Gershon, Olim, Katz & Loeb, Max Olim, for appellant.

Welch, Blender & Goodman, Michael D. Goodman, W. Jason Uchitel, for appellees.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Per curiam.

license: Public Domain

text:
    A89A1880, A89A2099.
    THE STATE v. DIXON; and vice versa.
    (390 SE2d 600)
   Per curiam.

Defendant Dixon, a co-defendant in the same criminal trial which gave rise to State v. Smith, 193 Ga. App. 831 (389 SE2d 547) (1989), was convicted of 10 counts of armed robbery, three counts of kidnapping, and one count each of aggravated assault, operating an automobile with defective equipment, and improper lane usage. Both the state and Dixon filed appeals following the denial of the latter’s motion for new trial. Held:

1. In the present appeal as in State v. Smith, supra, the state contends that the trial court erred in merging several of the armed robbery convictions for sentencing purposes on the theory that they had stemmed from the same incident, since each count had involved a different victim. In the Smith case, we allowed the state’s appeal and held that the trial court was in error in failing to impose a separate sentence on each of the counts in question. Based on that decision, we hold that the trial court also erred in merging the armed robbery counts at issue in the present case. The resulting sentence is accordingly vacated with direction that the court enter a separate sentence upon each of the defendant’s armed robbery convictions.

2. The state has moved to dismiss the defendant’s appeal on the ground that it was filed a day late. The record discloses that the defendant filed a timely notice of appeal as well as a timely motion for new trial after being sentenced. After the case was docketed in this court, we remanded it to the trial court for a ruling on the motion for new trial, with the stipulation that this disposition constituted “a final and complete resolution of the present appeal in this court but [would] not operate to preclude any future appeal which may be appropriate.” The trial court subsequently denied the motion for new trial by order entered on June 20, 1989. The present appeal was not filed until July 21, 1989. Inasmuch as OCGA § 5-6-38 (a) requires that “[a] notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of,” it follows that the ¿ppeal must be dismissed as untimely. See OCGA § 5-6-48 (b); Me- Kinney v. State, 187 Ga. App. 702 (371 SE2d 196) (1988).

Decided January 2, 1990.

Robert E. Keller, District Attorney, Tracy G. Gladden, Keith C. Martin, Assistant District Attorneys, for appellant.

William E. Frey, for appellee.

Judgment vacated and case remanded with direction in Case No. A89A1880. Appeal dismissed in Case No. A89A2099.

Banke, P. J., Sognier and Pope, JJ., concur.


author: Pope, Judge.

text:
    A89A1995.
    GOODWIN v. GOODWIN et al.
    (390 SE2d 247)
    Decided January 2, 1990.

      Macklyn A. Smith, for appellant.

      Barbara B. Bishop, for appellees.
   Pope, Judge.

Plaintiff/appellant Thomas A. Goodwin filed a petition pursuant to OCGA § 19-7-3 seeking visitation with his granddaughter, Amiriah Anna Huth, in the Superior Court of Gwinnett County. The trial court dismissed the petition on the grounds “that there are no actions pending to provide a basis for the plaintiff, ... to bring suit under the provisions of OCGA § 19-7-3. . . We reverse.

OCGA § 19-7-3 was amended effective July 1, 1988 to provide that “[a]ny grandparent shall have the right to file an original action for visitation rights . . . .” (Emphasis supplied.) OCGA § 19-7-3 (b). The petition here, which was filed March 13, 1989, was clearly within the purview of the amended statute. Consequently, the trial court erred in dismissing the action on the grounds that it could be maintained only if it was ancillary to an already pending action concerning the child.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.


author: Sognier, Judge.

text:
    A89A2177.
    NAPPER et al. v. NATIONAL MORTGAGE GROUP, INC.
    (390 SE2d 70)
   Sognier, Judge.

National Mortgage Group, Inc. instituted dispossessory proceedings against Redell and Debra Napper in the State Court of DeKalb County, alleging that they had failed to pay rent due on leased property. The Nappers answered pro se, and the case proceeded to trial. The trial court found, after hearing evidence, that the Nappers had broken the conditions of the lease by failing to make the May and June 1989 rent payments, and ordered that they pay the landlord $1,088.36 by June 7, 1989, and that a writ of possession issue on June 17, 1989 if the Nappers had not vacated the premises by then. The order also provided that if the Nappers desired to appeal, they must deposit into the registry of the court the amount owed, as well as rent for each succeeding month as it accrued pending the outcome of the appeal. The Nappers deposited the amount owed and filed this appeal.

1. Relying on Young v. Hinton, 163 Ga. App. 692 (1) (295 SE2d 150) (1982) and Rucker v. Fuller, 247 Ga. 423 (276 SE2d 600) (1981), appellants contend the trial court erred by failing to transfer the case to superior court, as the State Court of DeKalb County did not have jurisdiction to adjudicate the merits of the case. There is no merit in this contention. Young and Rucker are clearly inapplicable in the case sub judice, as those cases concerned the procedure to be followed in contested dispossessory cases filed in justice of the peace courts, which had no jurisdiction to entertain contested dispossessory actions. Justice of the peace courts are no longer in existence. See Ga. Const., Art. VI, Sec. X, Par. I (6). The State Court of DeKalb County is a “court of record,” see OCGA § 15-7-41, and thus is authorized to adjudicate a contested dispossessory action. OCGA § 44-7-53 (b).

2. Appellants also maintain the trial court erred by treating this action as a dispossessory proceeding because they were put in possession of the premises as purchasers and not as tenants. We do not agree. Although appellants append to their brief a copy of the “Lease Agreement/Option To Purchase,” that document is not a part of the record, which shows only that appellants answered the dispossessory alleging reasons for their failure to make their “monthly lease payment.” It is well established that “ ‘[w]e cannot consider facts, related by briefs, which do not appear in the record sent up from the clerk of the lower court.’ [Cit.]” Johnson v. Shield Ins. Co., 189 Ga. App. 333, 334 (375 SE2d 510) (1988).

Moreover, even were we to consider that document, its terms indicate that appellants were to pay “rent” each month until and unless they properly exercised an option to purchase. As that event had not yet taken place appellants must still be viewed as tenants. Griffeth v. Wilmore, 46 Ga. App. 96 (166 SE 673) (1932), cited by appellants, is factually distinguishable from the case sub judice in that in Griffeth the person sought to be evicted had taken possession under a contract for purchase, making a down payment and applying the rest of the purchase price in installments. Under the facts presented here, the trial court did not err by treating this as a dispossessory action. See generally Spooner v. Shelfer, 152 Ga. 190, 192-193 (108 SE 773) (1921).

Decided January 2, 1990.

Lawrence E. Diamond, for appellants.

Matthias Naughton, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A2204.
    FIELDS v. THE STATE.
    (390 SE2d 71)
   Sognier, Judge.

Waymon Fields was convicted of two counts of child molestation, and he appeals.

1. Appellant enumerates the general grounds. The transcript reflects that appellant, the step-grandfather of the seven-year-old victim, was tried jointly with the victim’s father, Ronald Frazier, who was also accused of molesting the victim. Evidence was adduced that the victim lived with appellant and his wife, the victim’s grandmother. Both the victim’s regular teacher, June Collins, and the teacher aide for migrant children who taught the victim, Vivian Diane Farmer, testified that beginning in January 1987, the victim would complain that appellant “bothered” her the night before. Collins testified that the victim had also stated that appellant was “tickling” her, but that the victim refused to give more details because “it was a secret.” On February 12, 1987, the victim arrived at school running a fever and told Farmer she did not feel good, repeating that appellant had bothered her the night before. Farmer testified she asked the victim for more details and ascertained from the victim that appellant had pulled down the victim’s underpants. When asked where appellant had bothered her, the victim put her hands between her legs, touching her genitalia. The victim made similar statements to Collins and expressed reluctance to return to her home. Pam Walden, employed by the White County Family & Children Services Department, testified that when she interviewed the victim on February 13, 1987, in the presence of appellant, the victim denied any problems with appellant, but in a subsequent interview conducted without appellant, the victim stated that appellant touched her between her legs and used anatomically correct dolls to demonstrate the touching. The psychologist who examined the victim detailed her behavior and testified that such behavior was characteristic of a sexually abused child. He related an interview held with the victim in which she described in graphic detail how appellant had sexual intercourse with her. The victim herself testified at trial to the same events. Also admitted at trial was appellant’s statement to a GBI officer that “I could have been out of my mind drunk and it could have happened. ... If I had been drunk or passed out, it could have happened.”

Appellant testified, denying that he had committed any of the acts alleged. However, the evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of both counts of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Braggs v. State, 189 Ga. App. 275, 276 (1) (375 SE2d 464) (1988).

2. Although appellant contends the trial court erred by admitting into evidence direct testimony of the victim and the out of court statements the victim made to others on the basis that there was no finding that the victim was competent to testify, the transcript reveals that appellant made no objection to the evidence. All references in the transcript are to objections made solely by counsel for Frazier. “It is well established that appellate courts may not consider objections to evidence not raised at trial. [Cit.] ‘If several parties are entitled to make an objection, and it is made by any number less than all, it does not inure to the advantage of the party or parties not joining in it.’ [Cit.] Thus, where a defendant does not expressly adopt the objection of a co-defendant, he thereby waives that objection and may not utilize it to gain review. [Cits.]” Barnes v. State, 168 Ga. App. 925, 926 (2) (310 SE2d 777) (1983). In the instant case appellant waived any objection by failing to adopt the objection made by Frazier’s counsel.

However, even had the issue been properly preserved for appeal, the enumeration of error is without merit. Regarding the victim’s trial testimony, we note initially that the trial in this case occurred prior to the effective date of OCGA § 24-9-5 (b) (Ga. L. 1989, p. 1639, § 1, effective April 19, 1989). The record reveals that before the State rested, the victim took the stand and was examined and cross-examined by both parties during a hearing conducted pursuant to OCGA § 24-3-16 and Sosebee v. State, 257 Ga. 298, 299 (357 SE2d 562) (1987). Thereafter, the trial court found the victim “qualified” to testify. Contrary to appellant’s argument, the trial court is not required under OCGA § 24-9-7 to conduct the hearing itself. Sprayberry v. State, 174 Ga. App. 574, 575-576 (1) (330 SE2d 731) (1985). Although appellant argues the victim’s testimony was inconsistent and demonstrated she was not competent to testify, it is well established that “[t]he trial court’s finding of competency of the [child victim is] within the sound discretion of the court, and we will not disturb the court’s ruling unless there was a manifest abuse of discretion, which there was not here. [Cits.]” Id. at 576. As to the out of court statements, “[s]ince the child was found to have been competent to testify at trial and had been made available for giving testimony at trial, the trial court did not err in admitting the [video and audio tapes] and the live witnesses’ testimony about the victim’s accounts of the alleged abuses. OCGA § 24-3-16. [Cit.]” In the Interest of J. E. L., 189 Ga. App. 203, 204 (1) (375 SE2d 490) (1988). The record does not support appellant’s contention that the trial court held that a competency hearing was not required under Sosebee, supra; rather, the record reflects that the trial court stated correctly that Sosebee did not require the trial court to conduct the examination of the child, see id. at 299, and that the court then allowed the parties the opportunity to examine and cross-examine the victim, thereby conducting the trial in a manner consistent with OCGA § 24-3-16, as interpreted by the Supreme Court in Sosebee, supra. Appellant’s arguments regarding the “competency” of the child at the time she made the out of court statements to the witnesses have been resolved adversely to appellant in Sosebee v. State, 190 Ga. App. 746, 749 (380 SE2d 464) (1989).

3. The record reflects that, contrary to appellant’s statement in his brief, no motion for mistrial was made by appellant regarding the matter asserted in appellant’s fifth enumeration. “ ‘(D)efendant has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief.’ [Cit.]” Sanders v. State, 188 Ga. App. 774, 775 (374 SE2d 542) (1988).

4. Appellant contends the trial court erred by excluding testimony by Teresa Adams regarding whether “sufficient indicia of reliability” existed under OCGA § 24-3-16 to authorize the introduction of the State’s Exhibit 1, a videotaped statement by the victim. We find no merit in this enumeration. First, the transcript reveals that when the exhibit was admitted, the only objection raised was not pertinent to this enumeration and thus the admission of the exhibit was not error on the ground raised on appeal. See Thaxton v. State, 184 Ga. App. 779, 781 (2) (362 SE2d 510) (1987). Further, there is no indication in the transcript that Adams was called by any party as a witness at trial, and appellant failed to proffer any evidence as to what Adams would have testified in regard to the videotape, as required to afford a basis for his assertion of error. See Stancil v. State, 155 Ga. App. 731, 733 (3) (272 SE2d 511) (1980). This court will not consider factual allegations in the brief of a party which are not supported by evidence contained in the record. Bonds v. State, 188 Ga. App. 135 (372 SE2d 448) (1988).

Decided January 2, 1990.

K. Grant Keene, for appellant.

C. Andrew Fuller, District Attorney, C. David Turk III, Lee Darragh, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    A89A2218.
    MASON v. THE STATE.
    (390 SE2d 246)
   Banke, Presiding Judge.

On appeal from his conviction of selling cocaine, the appellant contends that the trial court erred in refusing to charge the jury on the defense of entrapment.

Two undercover narcotics officers testified that the appellant waved at them to stop while they were traveling in an unmarked patrol car, approached their vehicle, and asked them if they “were looking for anything.” They testified that they told the appellant they were looking for cocaine and that he then offered to take them to a place where they could get some. The appellant got into the car with the officers and over the next 30 to 45 minutes directed them to several different locations, until they ultimately arrived at a mobile home park where, after obtaining $100 from the officers and leaving them his driver’s license as security, he departed the vehicle. Upon his return approximately five minutes later, he handed them a quantity of cocaine, and they arrested him.

The appellant maintained that it was the officers who had stopped him on the night in question and that he had gotten into their car merely to get a ride home. While he denied being a seller of cocaine, he admitted being a user, stating that he had taken the officers’ money “to see if [he] could buy some cocaine from somebody for them” with the expectation that they would share it with him if he was successful. Held:

“Entrapment exists where the idea and intention of the commission of the crime originated with a government officer . . . and he, by undue persuasion, incitement or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” OCGA § 16-3-25. Even assuming that the idea to purchase cocaine originated with the officers, there is no suggestion that they induced the appellant to commit the crime through “undue persuasion, incitement or deceitful means.” Accord Harold v. State, 185 Ga. App. 481 (1) (364 SE2d 615) (1988); McDonald v. State, 156 Ga. App. 143 (4) (273 SE2d 881) (1980). Rather, “ ‘[t]he trial transcript clearly shows that the defendant was a willing seller ... to the undercover agent[s], and the authorities merely provided him with an opportunity to make a sale he was predisposed to make. “(T)here is no entrapment where the officer merely furnishes an opportunity to a defendant who is ready to commit the offense.” [Cits.]’ ” Mafnas v. State, 149 Ga. App. 286, 290 (254 SE2d 409) (1979). It follows that the trial court did not err in refusing the appellant’s request for a charge on entrapment.

Decided January 2, 1990.

Robbins & White, Stanley W. Robbins, for appellant.

C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A2238.
    RANDALL v. THE STATE.
    (390 SE2d 74)
   Banke, Presiding Judge.

On appeal from his conviction of trafficking in cocaine, the appellant contends that the trial court erred in denying his motion to suppress the contraband upon which his conviction was based.

An automobile being driven by the appellant was stopped at a roadblock which had been set up by the county sheriff, a state trooper, and a Georgia Bureau of Investigation agent to check the driver’s licenses and vehicle registration papers of passing motorists. The appellant concedes in his brief on appeal that his initial detention at this roadblock was proper and authorized. In response to a request by the sheriff for the registration papers on his vehicle, the appellant produced a Florida rental car contract. The sheriff then directed the appellant to pull to the side of the road, handed the papers to the trooper, and asked him to examine them. The trooper testified that upon talking to the appellant and examining the papers, he determined that the appellant was not listed thereon as an authorized driver but that he was accompanied by a passenger, Kenneth McQueen, who was so listed. The trooper stated that he asked the appellant and McQueen for permission at this time to conduct a search of the vehicle and that they agreed, whereupon, prior to commencing such a search, he conducted a protective search of their persons “to make sure whether or not they [had] any weapons on them.” The search of McQueen’s person resulted in the discovery of 74.8 grams of cocaine, plus a small amount of marijuana, while the search of the appellant’s person resulted in the discovery of only 0.3 grams of cocaine.

Decided January 2, 1990.

Jay P. Wells, for appellant.

John R. Parks, District Attorney, for appellee.

The two men were jointly indicted on charges of trafficking in cocaine and possession of marijuana. McQueen pled guilty to both charges and appeared as a witness for the state at the appellant’s trial. He testified that he and the appellant had pooled their resources to purchase the cocaine and had planned to deliver it to a friend in Ashburn, Georgia, who “was going to sell it for us.” The appellant denied any knowledge of the cocaine found in McQueen’s possession and testified that the 0.3 grams of cocaine found in his possession had been given to him by a friend for a toothache, with the representation that it was Novocaine. The jury found the appellant guilty of trafficking in cocaine but not guilty of possessing the marijuana. Held:

“ ‘The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously. Rakas v. Illinois, 439 U. S. 128 (1) (99 SC 421, 58 LE2d 387).’ ” Delgado v. State, 192 Ga. App. 356, 357 (384 SE2d 680) (1989). Because the appellant disavowed any possessory or ownership interest in the 74.8 grams of cocaine found on McQueen’s person, it follows that he had no standing to complain of its seizure. See State v. Peabody, 247 Ga. 580, 581, fn. 5 (277 SE2d 668) (1981). With respect to the 0.3 grams of cocaine seized from the appellant’s person, we hold that, in the context of the other evidence in the case, there is no reasonable possibility that the admission of this evidence contributed to his conviction of trafficking in cocaine (see OCGA § 16-13-31 (a)) and that the trial court’s refusal to suppress it, if error, was consequently harmless beyond a reasonable doubt. See generally Vaughn v. State, 248 Ga. 127 (2) (281 SE2d 594) (1981).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A2282.
    MEDLEY et al. v. THE STATE.
    (390 SE2d 75)
   Banke, Presiding Judge.

The appellants, Chuck and Shirley Ann Medley, were jointly indicted and tried on charges of unlawfully possessing the controlled substances diazepam, pentazocine, and marijuana. Shirley Ann Medley was convicted on all three counts; however, Chuck Medley was granted a directed verdict on the diazepam and pentazocine charges and was therefore found guilty only on the marijuana charge. The appellants’ sole contention on appeal is that the trial court erred in refusing to grant them a continuance to secure the presence of a subpoenaed witness.

The subpoenaed witness was Steve Medley, Chuck Medley’s brother. He had been in the county jail during the week the case was originally scheduled for trial, and his attendance in the courtroom had been secured during that week by a court order directed to the sheriff. However, the case was not called for trial that week; and by the time the trial finally took place, the witness had been transported to Tennessee to answer charges pending against him in that state. When asked at the hearing on the motion for continuance what testimony the witness was expected to give, defense counsel responded, “He would testify that these pills [referring to the diazepam and pentazocine tablets] were his, Your Honor.”

The diazepam and pentazocine tablets had been seized from Shirley Ann Medley’s purse during the execution of a search warrant for the appellants’ residence. They were not in a prescription container; and according to the arresting officer, Ms. Medley acknowledged that they were hers after being advised of her Miranda rights. Neither of the appellants testified at trial. However, a local pharmacist called as a witness on their behalf testified that he had filled several diazepam and pentazocine prescriptions for Steve Medley during the months prior to their arrest. Held:

1. As there is no suggestion that the absent witness would have offered any testimony relevant to the marijuana possession charges, the trial court’s refusal to grant the continuance clearly establishes no basis for reversal of the appellants’ convictions on those charges. Accord Jackson v. State, 184 Ga. App. 133, 135 (5) (360 SE2d 907) (1987).

2. Even assuming that the diazepam and pentazocine pills found in Shirley Ann Medley’s possession were among those which had been dispensed to Steve Medley by the pharmacist, it would not follow that her possession of them was lawful. Generally speaking, it is unlawful for any person to possess or have under his or her control any controlled substances except as specifically authorized by the Controlled Substances Act. See OCGA § 16-13-30 (a). Moreover, the burden of coming forward with evidence of such an exemption is on the person claiming it. See OCGA § 16-13-50 (a); Strong v. State, 246 Ga. 612, 616 (8) (272 SE2d 281) (1980); Nix v. State, 135 Ga. App. 672, 673 (219 SE2d 6) (1975).

The exemption upon which Ms. Medley evidently relies is created by OCGA § 16-13-35 (c) (3), which authorizes the possession of a controlled substance by “[a]n ultimate user or a person in possession of any controlled substance pursuant to a lawful order of a practitioner. . . .” The term “ultimate user” is defined by OCGA § 16-13-21 (28) to mean, in relevant part, “a person who lawfully possesses a controlled substance for his own use [or] for the use of a member of his household. . . .” No evidence was presented during the trial of this case which would remotely suggest either that Steve Medley was a resident of the appellants’ household or that Shirley Ann Medley was holding the diazepam and pentazocine tablets found in her purse for his use rather than her own. Consequently, we conclude that, even assuming the absent witness could have and would have offered probative testimony that those pills were among the ones he had obtained by prescription, such testimony would not have established a defense in favor of Ms. Medley. We accordingly hold that the trial court was authorized to deny the motion for continuance based on the appellants’ failure to show the materiality of the absent witness. See generally OCGA § 17-8-25.

Decided January 2, 1990.

Jerry C. Gray, for appellants.

Timothy G. Madison, District Attorney, for appellee.

3. The trial court was further authorized to deny the motion based on the absence of any showing that the witness’s testimony was expected to be procured at the next term of court. See Tomlin v. State, 170 Ga. App. 123, 125 (5) (316 SE2d 570) (1984).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A2019.
    LOCKHEED MISSILES & SPACE COMPANY, INC. et al. v. BOBCHAK et al.
    (390 SE2d 82)
   Banke, Presiding Judge.

The claimant in this workers’ compensation case sustained an osteochondral fracture to his left knee on August 10, 1987, while employed as a laborer for W. H. Gross Construction Company. He underwent arthroscopic surgery as treatment for this injury and was paid disability benefits until October 12, 1987, when he began working for Lockheed Missiles & Space Company. On February 25, 1988, he noticed a “tired and weak feeling” in the knee after climbing and descending a ladder at Lockheed. By that evening the knee had become painful and swollen, resulting in further disability and, eventually, the need for additional surgery.

At issue in this appeal is whether the knee impairment which the claimant experienced at Lockheed must, as a matter of law, be considered the result of a new accident, with the result that Lockheed would be required to provide compensation for it, or whether it may instead be treated as a change in condition for which Gross Construction Company would be responsible. Based on findings that the claimant’s “employment duties at Lockheed were not more strenuous as compared to the heavy labor type work he engaged in with W. H. Gross” and that “[n]o incident occurred that aggravated claimant’s prior injured knee,” the administrative law judge concluded that the claimant had experienced a change in condition: The full board affirmed; however, the superior court reversed, concluding that the record was “totally devoid of any evidence of a gradual worsening of claimant’s condition as a result of the activity connected with his normal duties for the four and one-half month period immediately prior to the ladder incident,” and further concluding that there was “no evidence whatever ... to support the board’s conclusion that no specific incident occurred aggravating the claimant’s previous injury.” The case is before us pursuant to our grant of Lockheed’s application for discretionary appeal. See generally OCGA § 5-6-35. Held:

1. “[W]here there is no actual new accident, ordinarily the distinguishing feature that will characterize the disability as either a ‘change of condition’ or a ‘new accident’ is the intervention of new circumstances. If the claimant leaves the old employer and goes to work in a different environment with a new employer, there are new circumstances with a new employer; and this is particularly true when the activity performed for the new employer exceeds the limits of the light duty offered by the old employer.” Certain v. U. S. Fidelity &c. Co., 153 Ga. App. 571, 573 (266 SE2d 263) (1980).

The claimant in Certain had been injured while performing strenuous work for his original employer. He was later given a light-duty job assignment by that employer but left that assignment almost immediately to begin working for a new employer. “For [the next] five months, he worked at the same type strenuous work which he had been medically forbidden to do at the first employer’s, and from which he had been relieved to perform light work duties. After five months, although he did not have an actual new accident, his condition worsened so that he again became totally disabled. . . .” Id. at 572. We held that under these circumstances his disability must, as a matter of law, be considered the result of a fictitious “new accident” rather than a change in condition.

Subsequently, in Beers Constr. Co. v. Stephens, 162 Ga. App. 87, 90 (290 SE2d 181) (1982), we emphasized that “[t]he decision in Certain that the claimant had suffered a new accident and not a change of condition was not controlled by the mere fact that the claimant was employed by a new employer in a different environment but by the additional new circumstances that the work performed for the second employer exceeded the limits of light work duties offered by the previous employer.” We also emphasized in Beers that “a ‘specific incident’ is not [a] prerequisite to a finding of new accident. . . .” Id. at 91, citing Blackwell v. Liberty Mut. Ins. Co., 230 Ga. 174, 175 (196 SE2d 129) (1973). By the same token, we do not believe that in all cases where the worsening of a pre-existing condition can be traced to a “specific incident” occurring on the new job, that incident must necessarily be considered a “new accident.” Rather, the determinative inquiry is whether the circumstances associated with the incident and with the new employment in general were “such as to independently aggravate the condition” or whether the renewed impairment instead resulted from the “wear and tear of ordinary life in connection with performance of normal duties. . . .” Beers, supra at 90-91.

As previously indicated, the administrative law judge in this case found that “[claimant’s employment duties at Lockheed were not more strenuous as compared to the heavy labor type work he had performed for W. H. Gross.” Furthermore, although the claimant stated that his knee had been improving prior to the ladder incident, he acknowledged that he had continued to experience pain and stiffness in it; and one of the physicians who examined him subsequent to the incident testified: “My experience with those people who have sustained large osteochondral fractures is that they never return to their steady state and may periodically need an arthroscopic debridement every two to five years.” As for the ladder-climbing incident itself, it appears to have been completely uneventful. There is no suggestion that the claimant was carrying a heavy object at the time, nor is there any indication that he twisted the knee or otherwise sustained any unusual trauma to it as a result of the climbing. We hold that even though the administrative law judge may have been authorized under these circumstances to conclude that the claimant had experienced a “new accident,” he was also authorized to conclude that the claimant had undergone a change in condition, with the result that the superior court erred in substituting its judgment on this issue for that of the board. See generally Atkinson v. Home Indem. Co., 141 Ga. App. 687 (234 SE2d 359) (1977).

2. The appellees urge that in the event the judgment of the superior court is reversed, the case should be remanded for a determination of whether or not the administrative law judge made a misstatement of significant testimony when he found as a fact that “[t]he ladder climbing was a part of claimant’s ordinary work.” It is contended that this finding conflicts with the claimant’s undisputed testimony that he had not previously climbed any ladders in connection with his work at Lockheed but had climbed only stairs. However, we do not interpret this statement by the administrative law judge as a finding that the claimant was routinely required to climb ladders at Lockheed; rather, we interpret it to mean simply that the incident occurred while he was engaged in the performance of his ordinary and usual duties there. In any event, regardless of how many ladders the claimant had climbed at Lockheed, there was no indication that the demands placed on his weakened knee by his job responsibilities at Lockheed exceeded those which would have been placed on the knee had he returned to work for his prior employer, where he had also been required to climb ladders. Consequently, we do not believe the administrative law judge’s finding in this regard can be considered unfavorable to the appellees, regardless of how it is interpreted.

Decided January 3, 1990.

Marvin W. McGahee, for appellants.

Eddings & Berry, Phillip M. Eddings, Edwin G. Russell, Jr., for appellees.

Judgment reversed.

Sognier and Pope, JJ., concur.


text:
    A89A2247.
    WYATT v. THE STATE.
    (390 SE2d 85)
   Banke, Presiding Judge.

The appellant was convicted of four counts of selling cocaine in violation of the Controlled Substances Act. He contends on appeal that the evidence did not show that he had actually sold cocaine on any of the four occasions in question but merely that he had served as a procuring agent for the undercover agents who had made the purchases. He further contends that his testimony established as a matter of law that he had been entrapped by the agents. Held:

1. “The theory that one may act as a conduit or procuring agent of the purchaser and thus escape culpability as a seller has been considered and rejected by this court. [Cits.]” Diana v. State, 164 Ga. App. 779, 780 (298 SE2d 281) (1982).

2. The appellant contends that he proved entrapment by testifying that the undercover agents had sought him out and by further testifying that he had made the purchases for them with the intention of keeping a portion of the drugs for his own use in order to feed his cocaine habit.

The appellant’s testimony that the undercover agents approached him rather than vice versa was disputed; and if it were undisputed, it would not establish an entrapment defense under the circumstances. “Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, . . . and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” OCGA § 16-3-25 (Emphasis supplied.) There was no evidence that any “undue persuasion, incitement, or deceitful means” were used to obtain the appellant’s cooperation in this case. Indeed, he effectively admitted that he was ready and willing to cooperate with the agents in order to obtain drugs for his own use. Under the circumstances, his testimony cannot reasonably be said even to have raised the issue of entrapment, much less to have established the defense as a matter of law. See Mason v. State, 194 Ga. App. 152 (_ SE2d —) (1990); Raftis v. State, 175 Ga. App. 893, 896 (4) (334 SE2d 857) (1985); Diana v. State, supra, 164 Ga. App. at 780 (2); Mafnas v. State, 149 Ga. App. 286, 290 (254 SE2d 409) (1979).

Decided January 3, 1990.

Dious, Bailey & Associates, I. Kenneth Dious, for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Jr., Assistant District Attorney, for appellee.

3. The evidence, considered in its entirety, was amply sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt on each of the four counts of which he was convicted. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A89A1786.
    SAFEWAY INSURANCE COMPANY v. HOLMES et al.
    (390 SE2d 52)
   McMurray, Presiding Judge.

This is a declaratory judgment action. Plaintiff Safeway Insurance Company issued a policy of automobile insurance to defendant Roger Cox which insured a 1982 Ford Escort automobile. On December 5, 1985, defendant Carol Cox, wife of defendant Roger Cox, drove a rented 1985 Mustang to a shopping mall where she became so ill as to be unable to drive and was taken home. Thereafter, defendant Heather Shea Holmes, daughter of defendant Carol Cox, accompanied a friend to the shopping mall in order to drive the rented 1985 Mustang home. While doing so defendant Holmes was involved in a collision with the vehicle of defendant Collins. Defendant Collins filed an action to recover damages for alleged injuries received in the collision against defendants Holmes, Carol Cox and Roger Cox.

Plaintiff undertook the defense of the automobile collision action under a reservation of rights and filed this action seeking a declaration that no coverage exists under the insurance policy issued to defendant Roger Cox with respect to any liability plaintiff’s insureds may be adjudged owing as a result of the alleged actions referred to in the automobile collision case. Defendants contend that coverage was provided to the rented 1985 Mustang under a policy provision which provided coverage to: “Any auto . . . you do not own while used as a temporary substitute for any other vehicle described in this definition which is out of normal use because of its breakdown, repair, servicing, loss or destruction.” Upon the trial of the case before the superior court without a jury, the superior court granted defendants’ motion to dismiss following the presentation of plaintiff’s evidence. Held:

1. Plaintiff contends that it was error for the trial court to find that the 1985 Mustang was a temporary substitute automobile within the terms of the insurance policy since at the time of the collision the insured 1982 Ford Escort was in normal service. However, both defendant Roger Cox and defendant Carol Cox testified that the insured 1982 Ford Escort was placed in the shop for mechanical repairs prior to December 5, 1985. While plaintiff presented testimony of an independent claims adjuster concerning his telephone conversation with defendant Carol Cox in which she stated that the 1982 Ford Escort was at home at the time of the motor vehicle collision, her testimony that the 1982 Ford Escort was not driveable on the date of the collision was not rebutted.

Pursuant to OCGA § 9-11-41 (b), upon defendant’s motion to dismiss at the close of plaintiff’s evidence in a nonjury trial the trial court has the power to adjudicate the case on the merits and need not view the evidence in the light most favorable to plaintiff. “Thus, in cases of this nature, the trial judge sits as trier of fact, and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them. Givens v. Gray, 126 Ga. App. 309, 310 (190 SE2d 607) and cits.” Comtrol, Inc. v. H-K Corp., 134 Ga. App. 349, 352 (2) (214 SE2d 588). See also Kennery v. Mosteller, 133 Ga. App. 879 (212 SE2d 447). The trial court, as trier of fact, was authorized to conclude on the basis of the evidence before it that the insured 1982 Ford Escort was not in normal use on December 5, 1985, the date of the collision. We find nothing in the trial court’s conclusions inconsistent with our decision in State Farm &c. Ins. Co. v. Lietz, 122 Ga. App; 596, 598 (178 SE2d 218) since the trial court was authorized to conclude that, on the date of the collision, the insured 1982 Ford Escort was in the shop for mechanical repairs or, if at home, in an inoperable condition. This enumeration of error is without merit.

Decided November 21, 1989

Rehearing denied January 4, 1990

Crim & Bassler, Harry W. Bassler, Joseph M. Murphey, Thomas S. Bechtel, for appellant.

William V. Hall, Jr., for appellees.

2. Plaintiff’s second enumeration of error is predicated on an exclusion in the policy which states that: “We do not provide Liability Coverage . . . [f]or any person using a vehicle without a reasonable belief that the person is entitled to do so.” Two arguments are presented in support of plaintiff’s contention that the trial court erred in concluding that defendant Holmes had a reasonable belief that she was entitled to use the 1985 Mustang.

First, plaintiff relies upon various provisions of the rental contract for the 1985 Mustang which restricted the drivers of the automobile and terminated permission to use the vehicle prior to the date of the collision. However, the 1985 Mustang was rented by defendant Roger Cox and there is no indication that defendant Holmes, who was not a party to that contract, had any knowledge as to its terms. Defendant Roger Cox testified that he “distinctly told [defendant Holmes] to get the car because her mother was unable to drive the car, to bring it straight home to my house and not go any further and she was on her way home when this accident occurred.” Thus, from the perspective of defendant Holmes, she received permission to use the 1985 Mustang from an apparently appropriate source, defendant Roger Cox.

Finally, plaintiff contends that defendant Holmes, who was 15 years of age at the time of the collision, had no reasonable belief that she was entitled to use the 1985 Mustang since her operation of the vehicle was in violation of OCGA § 40-5-24 (a) which forbids 15-year-old drivers to operate a motor vehicle without being accompanied by a licensed driver at least 18 years of age. However, this statute relates to the manner of defendant Holmes’ use of the vehicle and does not abrogate the fact that she had received permission for the use of the 1985 Mustang from an apparently appropriate source. Compare McCraney v. Fire &c. Ins. Co., 182 Ga. App. 895 (357 SE2d 327).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A89A1595.
    THOMPSON v. THE STATE.
    (390 SE2d 253)
   Beasley, Judge.

Defendant appeals his conviction for shoplifting, OCGA § 16-8-14 (a) (1).

1. Defendant’s first and fourth enumerations allege that the evidence was insufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988). Viewed in favor of the verdict, it showed that defendant and a second man were seen leaving a department store with their arms stacked with approximately 60 pairs of jeans. Thompson was identified by an eyewitness as one of the men. Baskin, a co-defendant, said defendant participated. The car used for escape was stopped about four hours later and the defendant was in the back seat next to a bag containing 14 pairs of jeans with the department store tags on them. The evidence was sufficient.

2. After the voir dire of the jury and before it was sworn, defendant moved to require the State to justify its peremptory strikes, pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

Although there is no transcript of the jury selection process, the proceedings below reflect that the panel of 42 from which the jury was stricken contained eight black jurors, 19 percent of the total. The State used five of its ten strikes, 50 percent, to strike blacks. Two blacks, 16.6 percent, were seated on the jury.

The State argues that, because the jury was selected from only 41 of the available jurors, not reaching the last available black person, the issue of defendant’s prima facie showing should be considered using only 41 as the base. This would make the percentage of black persons seated equal to the percentage in the pool, defeating a prima facie case. Stewart v. State, 190 Ga. App. 162 (378 SE2d 387) (1989).

The total panel is considered in making the Batson computations. Aldridge v. State, 258 Ga. 75 (365 SE2d 111) (1988). Thus defendant did make out a prima facie case, and the trial court turned to the State. It explained that three of the five strikes occurred because the prospective jurors were near the same age as the defendant and would identify with him, plus one of these three was a social worker who would tend to identify with persons in lower socio-economic circumstances such as defendant. Another one of the three was perceived to be timid and might be easily influenced by other jurors. A fourth was said also to be stricken due in part to the age factor in that she had five children in the same age range as defendant; she also exhibited faulty memory. The fifth, it was said, was not responsive during voir dire and did not appear to be paying attention and would probably not do so during trial. These explanations did not require a conclusion of unconstitutionality as to racial neutrality in the exercise of peremptory challenge. Gamble v. State, 257 Ga. 325, 326 (5) (357 SE2d 792) (1987).

Decided January 4, 1990.

Andrew C. Dodgen, for appellant.

Douglas C. Pullen, District Attorney, J. Mark Shelnutt, Assis tant District Attorney, for appellee.

Defendant argues that white jurors in this same age group were accepted by the State. The State disputes this. “We cannot consider facts, related by briefs, which do not appear in the record sent up from the clerk of the lower court.” Garrison v. Dept. of Human Resources, 184 Ga. App. 449 (361 SE2d 860) (1987); Bonds v. State, 188 Ga. App. 135 (372 SE2d 448) (1988).

3. Defendant enumerates as error the trial court’s exclusion of evidence of the involvement of Riggins. The alleged error occurred during cross-examination of Officer Hickey, who had spotted the car containing defendant, Baskins, and Baskins’ common law wife Ms. Cobb. Baskins told the officer that Ms. Cobb was not involved but that Riggins and defendant were the two who went into the store while he and Ms. Cobb went to get ice cream. When they returned, defendant and Riggins were coming out of the store with the jeans. The eyewitness said there were only three people in the car as it left, the two men with the jeans and the driver.

Officer Hickey testified before co-defendant Baskins and the State did object, on the basis of irrelevancy, to Hickey’s testimony concerning Baskins’ statement about Riggins. The court told defendant that if the evidence were being elicited to impeach Baskins, it would allow the officer to be recalled for this purpose. When Baskins testified, he gave the same recitation he had given the officer, implicating Riggins. The officer was not recalled.

Since the evidence came in later through Baskins, no harm could be shown and therefore no reversible error, even if there was error. Chenault v. State, 234 Ga. 216, 220 (2) (215 SE2d 223) (1975).

4. Defendant contends that the court’s charge on recent possession was impermissibly burden shifting. Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344) (1985); Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979).

The charge as given was from Vol. 2 Suggested Pattern Jury Instructions, p. 125. It has been upheld and is not subject to the objection urged. Moon v. State, 258 Ga. 748, 758 (27) (375 SE2d 442) (1988); Williamson v. State, 248 Ga. 47 (281 SE2d 512) (1981); Martin v. State, 179 Ga. App. 551, 554 (7) (347 SE2d 247) (1986).

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    A89A1616.
    SCURRY v. THE STATE.
    (390 SE2d 255)
   Birdsong, Judge.

Appellant, Terrance Lamar Scurry, Sr., appeals his convictions of rape, armed robbery, and aggravated sodomy, and his sentences. Appellant was convicted and sentenced after entering a plea of guilty to the above offenses. His sole enumeration of error is “whether [appellant] knowingly, intelligently, and voluntarily entered his plea of guilty.”

The transcript reveals the following: Appellant could read and write, completed the ninth grade and apparently had a GED certificate. Prior to the hearing concerning the providence of his guilty plea, appellant had consulted with his attorney. Appellant was not under the influence of any alcohol, drugs, or medication at the hearing. He admitted in court to an understanding of the charges against him, and that certain of the charges would be dropped if he pled guilty. He had no questions regarding the nature or meaning of the charges. He likewise admitted to having been subjected to no force, promises, or threats that caused him to plead guilty. Appellant affirmatively stated that he had plenty of time to talk with his lawyer about the case, was satisfied with his attorney’s services, and had authorized his attorney to enter a plea of guilty on his behalf as to the offenses of rape, armed robbery, and aggravated sodomy. The prosecutor summarized the facts surrounding the three crimes, and neither appellant nor his counsel expressed any disagreement with the summarization. The trial judge asked appellant on the record whether there was anything about the proceedings that appellant did not understand or that he wished to have explained to him further, and appellant expressly responded in the negative. The trial judge informed appellant on the record that if he elected to plead not guilty appellant would have a right to trial by jury, but that the right to trial by jury would be waived by a guilty plea and appellant would be required to take whatever sentence the court imposed upon him.

The trial judge did not expressly inform appellant that a plea of guilty waived the latter’s right to cross-examination or confrontation. Neither was appellant expressly informed that a plea of guilty constituted a waiver of his right against self-incrimination. However, before the trial judge imposed sentence, he asked if appellant had anything that he would like to say, and neither appellant nor his counsel made any statement or offered any objection to the proceedings. At the outset we note that the trial judge did not state on the record that he was satisfied that a factual basis existed for appellant’s plea of guilty. However, such an express finding is unnecessary as the record establishes that the trial judge was aware of the factual basis, because of the prosecutor’s summarization of the operative facts on the record. Compare Golden v. State, 190 Ga. App. 477, 478 (379 SE2d 230); Clark v. State, 186 Ga. App. 106 (2) (366 SE2d 361). Neither do we find it necessary that the trial court always inform appellant on the record of the waiver of every right listed in Rule 33.8, Uniform Superior Court Rules. While “[t]he waivers necessarily involved in a guilty plea cannot be presumed from a silent record,” Breland v. Smith, 247 Ga. 690, 692 (279 SE2d 204), the record in this case is far from silent. Moreover, the record affirmatively reflects that appellant consulted with counsel for an adequate time prior to entering his guilty plea. It is presumed that counsel will fulfill the role in the adversary process that the Sixth Amendment envisions, and has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U. S. 668, 688, 690 (104 SC 2052, 80 LE2d 674). Accordingly, when the hearing record affirmatively reflects that a defendant has consulted with counsel regarding his guilty plea, and on appeal an ineffective assistance of counsel claim is not timely asserted in regard to the plea, it may be presumed (subject to rebuttal) that counsel has adequately advised his client regarding the meaning and effect of the subsequently offered plea. And such consultation constitutes an additional factor which may be considered in determining plea validity. Compare Hill v. Lockhart, 474 U. S. 52, 56-57 (106 SC 366, 88 LE2d 203). (Defendant who pleads guilty on advice of counsel may only attack the validity and intelligence character of the plea by showing that the advice received from counsel was not within the range of competence demanded of attorneys in criminal cases; the two-part test of Strickland v. Washington, supra, is applicable to ineffective assistance claims arising out of the plea process.) Appellant has not raised an inadequacy of counsel issue in the case sub judice.

Once a defendant raises an issue regarding the validity of his guilty plea, the burden of establishing that the plea was intelligently and voluntarily entered is on the State. Skomer v. State, 183 Ga. App. 308, 309 (358 SE2d 886); see Pope v. State, 256 Ga. 195, 209 (345 SE2d 831). In Goodman v. Davis, 249 Ga. 11, 13 (287 SE2d 26), the Georgia Supreme Court interpreted Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274), as requiring that there be an adequate record of the guilty plea hearing, so that an appellate court can determine whether (1) the defendant freely and voluntarily entered his guilty plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea. Id. The record in this case contains an adequate transcript of the guilty plea hearing. Having reviewed the record of the guilty pleas, we are satisfied that “at the time [appellant’s] pleas were accepted he was cognizant'of all the rights that he was waiving, and of the possible consequences of his voluntary pleas of guilty.” Haggins v. State, 259 Ga. 188, 189 (380 SE2d 711). Assuming without deciding that error occurred when the trial court failed to expressly inform appellant that by pleading guilty he was waiving certain rights, including the right against self-incrimination and the rights of confrontation and cross-examination, in view of the posture of the record, we conclude beyond a reasonable doubt such error would be harmless. Strickland v. State, 185 Ga. App. 444 (1) (364 SE2d 872).

Decided January 4, 1990.

John G. Runyan, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

It is strongly urged that trial judges fully advise defendants who offer to plead guilty of each right which would be waived thereby, as listed in Rule 33.8, and make those determinations listed in Rules 33.7 and 33.9, of the Uniform Superior Court Rules. This reasonable practice will enhance the efficiency and integrity of our criminal justice system.

Judgment affirmed.

Deen, P. J., and Po'pe, J., concur.


author: Carley, Chief Judge.

text:
    A89A1652.
    WILSON et al. v. ANDERSON.
    (390 SE2d 86)
   Carley, Chief Judge.

During the pendency of this lawsuit, a settlement agreement was reached and agreed to by counsel representing appellee-plaintiff and counsel representing appellant-defendants. However, appellants subsequently refused to honor the settlement agreement, asserting that their counsel was without authority to enter into it. Appellee then sought enforcement of the settlement agreement and moved for summary judgment. The trial court held that the settlement agreement was enforceable against appellants and granted summary judgment in favor of appellee. Appellants appeal from this order.

“Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties. [Cits.] . . . The authority may be considered plenary unless it is limited by the client and that limitation is communicated to opposing parties. [Cits.] Therefore, from the perspective of the opposing party, in the absence of knowledge of express restrictions on ah attorney’s authority, the opposing party may deal with the attorney as if with the client, and the client will be bound by the acts of his attorney within the scope of his apparent authority.” Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (2) (308 SE2d 544) (1983). “[U]nder Brumbelow it is immaterial whether the attorney had [actual] authority to settle. . . .” Vandiver v. McFarland, 179 Ga. App. 411, 412 (346 SE2d 854) (1986).

Decided January 4, 1990.

Edward E. Boshears, for appellants.

Under the undisputed evidence of record, appellants’ counsel represented that he did have authority to enter into the settlement agreement and neither he nor appellants ever directly communicated a lack of such authority to appellee or her counsel. Appellants urge that a genuine issue of material fact nevertheless remains as to whether there was an indirect communication of a limitation on the authority of their counsel. In this connection, appellants rely upon an admission by appellee’s counsel that he had inadvertently overheard a portion of a conversation between appellants and their counsel relating to the terms of the settlement agreement. In their affidavits, appellants asserted that, if appellee’s counsel had overheard the conversation relating to the terms of the agreement, he must also have overheard that portion of the conversation wherein they purportedly placed a limitation on the authority of their counsel to settle the case.

Appellants’ assertions in their affidavits that appellee’s counsel must have overheard more of the conversation than he admitted is mere conclusory speculation on their part. Assertions “constituting mere conclusions, surmise or conjecture are properly excluded from evidence ([cits.]), and [an affiant] cannot state a mere conclusion that others than himself knew a particular fact where it is not established that [he] was qualified to testify to the knowledge of others. [Cit.]” Marshall v. State, 154 Ga. App. 327, 328 (2) (268 SE2d 383) (1980). “[F]acts contained in an affidavit, and not argumentative conclusions as in this case, determine whether a genuine issue of fact exists. [Cit.]” Wood v. Chatham Engineering &c. Co., 173 Ga. App. 289, 290 (2) (326 SE2d 8) (1985). The facts show that this case is controlled by Brumbelow v. Northern Propane Gas Co., supra. “Accordingly, [appellants are] bound by the agreement of [their] attorney to compromise and settle the case. . . . [Cit.]” Potomac Leasing Co. v. First Nat. Bank of Atlanta, 180 Ga. App. 255, 258 (348 SE2d 907) (1986). The trial court correctly granted summary judgment in favor of appellees.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

George M. Rountree, for appellee.


text:
    A89A1751.
    HOWELL MILL/COLLIER ASSOCIATES v. PENNYPACKER’S, INC.
    (390 SE2d 257)
   Birdsong, Judge.

Appellant Howell Mill/Collier Associates appeals the final order and judgment in this case, and enumerates several errors pertaining to the trial court’s grant, without motion, of partial summary judgment to appellee/defendant as to appellant/plaintiff’s complaint, and asserts that the trial court also erred by denying it the opportunity to be heard in connection with the rendition of summary judgment.

Appellant/plaintiff leased store space to appellee/defendant in a shopping center. Subsequently, appellant’s agent claimed that appellee was in breach of contract by failing to pay rent in accordance with the terms of the lease, and made a demand for immediate possession of the premises. Demand for possession allegedly was made by appellant not in termination of the lease, but in accordance with options therein provided. Appellee’s president responded by asserting that the lease was now rendered null and void, and stated its intent to relinquish possession of the premises subject to receipt of a certain legal document. Appellee, however, did not immediately vacate the premises. The record reflects the trial court denied appellant’s motion for summary judgment, and in doing so entered various findings and conclusions. Among the trial court’s conclusions were that appellant breached the lease agreement by demanding rental payments and immediate possession of the premises, and by evicting appellee by taking the keys to the premises at times when no rents were due; and, that appellee under such circumstances had the right to rescind the contract. Held:

1. Appellant asserts that the trial court denied it an adequate opportunity to address the proposition that there is no genuine issue of material fact to be tried, and that the party to whom summary judgment is rendered, without motion, is entitled to such an opportunity as a matter of law.

The record does not disclose that the trial court expressly granted partial summary judgment to appellee in its order filed September 10, 1987. However, the effect of this order, which denied appellant’s motion for summary judgment, clearly included a grant of partial summary judgment to appellee as asserted. There is no magic in nomenclature; thus, in classifying the order of a trial court, we will construe it to serve the best interests of justice, judging the order by its function rather than by its name. See Frost v. Frost, 235 Ga. 672, 674 (1) (221 SE2d 567).

It is well-settled that summary judgment can be granted to a non-moving party provided the grant is proper in all other respects. Golston v. Garigan, 245 Ga. 450 (1) (265 SE2d 590). As a general rule, “[i]f the record demands such a judgment, it would be proper.” DeMudd v. Atlanta &c. Taxi-Cab Group, 172 Ga. App. 626, 627 (323 SE2d 910). However, “ ‘[c]are should, of course, be taken by the (trial) court to determine that the party against whom summary judgment is rendered has- had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried, and that the party for whom summary judgment is rendered is entitled thereto as a matter of law.’ ” Cruce v. Randall, 152 Ga. App. 183 (1) (262 SE2d 488); aff’d 245 Ga. 669 (266 SE2d 486); accord Rasmussen v. Nodvin, 174 Ga. App. 203, 204 (1) (329 SE2d 541). “ ‘ “The crucial point is to insure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.” ’ ” Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 48 (3) (332 SE2d 304). Examining the record in its entirety, we find appellant has not had a full and final opportunity in this instance to controvert the assertions inherently contained in the partial motion for summary judgment granted in behalf of non-moving appellee.

In Cruce v. Randall, supra at 245 Ga. 671, the Supreme Court provided the following guidance, “while in most cases it is better practice to await a motion for summary judgment before entering it for a party, it was not erroneous under the circumstances of this case, where the issues were the same as those involved in the movant’s motion, hence the opposing parties had notice thereof, and where the nonmovant consented to the entry of summary judgment in his favor.” (Emphasis supplied.)

In this case, the issues contained in appellant’s motion for summary judgment and those inherently contained in a grant of partial summary judgment to appellee substantially were not the same. For example, appellant’s motion did not contain any direct issues of contract rescission or constructive eviction, and such issues could not readily be discerned from the posture of admissible evidence of record either in support of or in opposition to appellant’s motion. Hence, appellant had inadequate notice within the meaning of Cruce u. Randall, and the trial court erred in sua sponte granting summary judgment without first placing appellant on adequate notice thereof so that he could meet and attempt to controvert the assertions inherently contained in such a grant. We decline to speculate regarding what particular defenses appellant might also have raised in view of appellee’s conduct in subsequently retaining possession of the premises after sending its letter asserting a qualified acquiescence, without protest, in response to appellant’s initial demand for immediate possession. Suffice it to say appellant in this instance has been denied the opportunity, provided by law, to attempt to controvert.

2. Appellant asserts that the trial court erred in rendering partial summary judgment for appellee because its findings that no genuine issue of fact existed as to certain matters was based upon evidence that was not admissible within the meaning of OCGA § 9-11-56 (e).

In particular, the trial court’s order reflects “[t]he [c]ourt finds the facts to be as set out in [d]efendant’s brief.” It is well settled that unsupported factual assertions in briefs cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga. App. 845, 847 (366 SE2d 223). Among those facts in defendant’s brief adopted by the trial court and clearly relied upon in the court’s grant of partial summary judgment to appellee/defendant were the purported facts that “the lease provided that the [defendant would receive five (5) months free rent from the date that [defendant opened for business, or beginning thirty (30) days after [p]laintiff completed the required improvements as outlined in the lease. These improvements were completed on September 20, 1985, thus rendering the effective date of the beginning of the lease as October 20, 1985, (See Exhibit I).”

Exhibit I is a letter from appellant’s assistant property manager to appellee’s owner. This letter and certain other correspondence were attached to the affidavits submitted by appellant and appellee. The letter pertinently states: “According to the lease, rental commencement is 30 days from occupancy or date [t]enant opens for business. Since there is so much confusion in the actual rental commencement date, we will agree with you and acknowledge the effective date of the lease to be October 20, 1985.” Certain other correspondence thereafter made reference to this letter and to concessions therein made.

Appellee asserts that because appellant raised no objections to the affidavits or letters in the trial court, he may not raise this issue for the first time on appeal. See generally Chapman v. McClelland, 248 Ga. 725, 726 (286 SE2d 290); Morris v. Southern Bell Tel &c. Co., 180 Ga. App. 145 (348 SE2d 573). This case is distinguishable from Chapman where certain specific affidavits were involved. Appellant asserts that the information contained in the letters was hearsay. It is a well-established general rule that “hearsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing fact.” Higgins v. Trentham, 186 Ga. 264 (1) (197 SE 862); Acme Fast Freight v. Southern R. Co., 67 Ga. App. 885, 887 (21 SE2d 493). Accordingly, an appellate court can consider the hearsay question notwithstanding the lack of a timely objection to the evidence at trial. See Handley v. Limbaugh, 224 Ga. 408, 413 (4) (a) (162 SE2d 400).

Appellee contends that the information contained in the correspondence constituted an admission of the plaintiff. “[J]udicial admissions [which may include admissions in pleadings, stipulations, affidavits, and other documents and trial conduct of the parties] define the issues in the suit. . . . They are conclusive, and as such, they should be clearly distinguished from admissions introduced as evidence.” Green, Ga. Law of Evidence (2d ed.), Admissions § 238, p. 393. However, “[a]n admission in judicio applies only to the admission of fact and does not apply where the admission is merely the opinion or conclusion of the pleader as to law or fact. Thus, allegations which are conclusory, or which assert mere opinions of the pleader are not admissions in judicio. There may be an admission in judicio as to the existence of a legal relationship between the parties, but not concerning the effect of such relationship, as this would be a legal conclusion.” Id. at p. 394. The rule pertaining to admissions in pleadings or other admissions in judicio are not applicable “where the admission is merely the opinion on the part of the party making it as to the legal effect of the instrument sued on, since it is the rule that ... to recover on the contract set out therein, the fact that the plaintiff may have erroneously construed the contract sued on would not operate to effect a dismissal of the action.” (Emphasis supplied.) Clift & Goodrich v. Mincey Mfg. Co., 41 Ga. App. 38 (1) (152 SE 136); compare Conaway v. American Guarantee cfee. Ins. Co., 189 Ga. App. 194 (375 SE2d 144). The information in the letters, purporting to admit to certain contract terms including the contract’s effective date and rental commencement date merely constituted an opinion or conclusion within the meaning of Clift and Conaway, and thus does not qualify as admissions in judicio. Accordingly, we find the pertinent information contained in the letters to be hearsay. “There is no probative value to hearsay, and it can raise no issues upon which to justify [the sua sponte grant by the trial court of a motion for partial] summary judgment.” Forde v. C & S Ga. Corp., 178 Ga. App. 400, 403 (343 SE2d 164). The trial court erred in basing certain findings of fact upon hearsay contained in the letters. This error cannot be deemed harmless, as the hearsay was not merely cumulative, there being no similar admissible evidence contained within the record:

In view of our holding we need not determine whether the opinions and conclusions contained in the letter further constituted a “proposition . . . made with a view to a compromise” within the meaning of OCGA § 24-3-37.

3. As our above holdings result in the reversal of judgment in this case, it is necessary in the interest of judicial economy to construe the rental commencement date of the lease, as it appears that the trial court will again be faced with this issue.

The lease pertinently provides: “RENTAL COMMENCEMENT DATE: Either (i) September 1, 1985 or (ii) thirty (30) days following the date on which the [p] remises are [r]eady for [o]ccupancy or the date upon which [t]enant opens the [premises to the [p]ublic, whichever shall first occur.” (Emphasis supplied.)

Decided January 4, 1990.

. John G. Grubb, Jr., for appellant.

Ragsdale, Beals, Hooper & Seigler, William R. Patterson, Jr., for appellee.

This particular clause of the lease is not ambiguous. Under the terms of this clause, the rental commencement date is September 1, 1985, as the improvements required to make the premises ready for occupancy apparently were not completed until September 20, 1989. Though having to resort to use of a magnifying glass to examine the multi-paged, mini-printed copy of the lease found in this record, we find no other provisions of the written lease that purport to modify the above discussed clause pertaining to rental commencement date. Moreover, the lease expressly provides that “[t]his lease contains the entire agreement between the parties and no agreement, representation or inducement shall be effective to change, modify or terminate this lease in whole or in part unless in writing and signed by the parties.”

“Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties.” Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (359 SE2d 659). As the contract is not ambiguous as to this term, parol evidence cannot be admitted to aid in construing it. See generally Buice Grading &c. v. Bales, 187 Ga. App. 263, 265 (370 SE2d 26). Moreover, parol evidence cannot be admitted to add to, take from, or vary the writing itself. Id. Indeed, as in Buice, the contract in question provides that it is the entire agreement between the parties. Further, the parol evidence rule is a rule of substantive law, and even though parol evidence has been erroneously admitted without objection it is without probative value to vary terms of a written contract. Cooper v. Vaughan, 81 Ga. App. 330, 337-338 (58 SE2d 453); accord Lyon v. Patterson, 138 Ga. App. 816, 820 (227 SE2d 423).

In view of our holdings in Divisions 1 and 2 above, appellant’s remaining enumerations of error need not be addressed.

Judgment reversed.

Deen, P. J., and Pope, J., concur.


author: Deen, Presiding Judge.

text:
    A89A2000.
    WELDON v. DEL TACO CORPORATION.
    (390 SE2d 87)
   Deen, Presiding Judge.

Appellant Weldon, a 200-lb. Avon salesperson, received injuries to the left side of her body when the chair she was occupying in a restaurant operated by appellee Del Taco Corporation (Del Taco) slipped out from beneath her and dropped her to the floor. She brought a negligence action against the defendant corporation, seeking damages for medical expenses, lost income, and pain and suffering. The trial court granted Del Taco’s motion for summary judgment, and Ms. Weldon appeals, alleging that the trial court erred in failing to take into account questions of fact regarding (1) whether Del Taco exercised reasonable care in maintaining the chair, (2) whether the chair’s design and construction were such as to render it unstable, and (3) whether Del Taco exercised reasonable care to maintain the tile floor in a safe condition. Held:

We have examined the entire record of the instant case, including the affidavits and depositions of appellant and of two eyewitnesses to the incident, and are persuaded that appellee has successfully carried its burden of piercing appellant’s allegations, negating at least one essential element of her case, and thereby establishing that no genuine issues of material fact remain in the case. OCGA § 9-11-56 (c). Vizzini v. Blonder, 165 Ga. App. 840 (303 SE2d 38) (1983). While it is true that issues of negligence, diligence, and ordinary care are usually, for resolution by a jury rather than for summary judgment, in “plain and palpable” cases summary adjudication is entirely proper. Malvarez v. Ga. Power Co., 166 Ga. App. 498 (304 SE2d 542) (1983). This is such a case: according to the deposition testimony, there was no evidence of the presence of excessive wax or of any foreign substance on the floor; according to witnesses and appellant herself, the chair in which appellant was sitting appeared to be no different in design, construction, or condition from the other chairs in the restaurant; by her own admission, appellant had been in that restaurant many times and therefore could be presumed to be acquainted with and to have used its furnishings on previous occasions; she offered no reason for the chair’s toppling other than that she was reaching to her left at the time, “[P]roof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.” J. C. Penney Co. v. Smith, 173 Ga. App. 612, 613 (327 SE2d 574) (1985); cited in Harmon v. Reames, 188 Ga. App. 812 (374 SE2d 539) (1988).

Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the non-movant, who must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. OCGA § 9-11-56 (e); Hinkley v. Bldg. &c. Assn., 187 Ga. App. 345 (370 SE2d 201) (1988); Oliver v. Thomas, 158 Ga. App. 388 (280 SE2d 416) (1981). We find that appellant has not met this burden.

Decided January 4, 1990.

Dozier, Akin & Lee, A. Burton Lee, for appellant.

Robert R. Gunn II, for appellee.

Judgment affirmed.

Carley, C. J., and Birdsong, J., concur.