text:
    A89A1633.
    THE STATE v. ZACKERY.
    (387 SE2d 606)
   McMurray, Presiding Judge.

On July 8, 1988, an anonymous tipster informed the Bartow County Sheriff’s Office that defendant was growing marijuana behind his house in Kingston, Georgia. Four days later, investigators Michael Shinall and Arness Kimmons went to defendant’s house to obtain his consent to search the premises. As they approached the front door, the investigators encountered a riding lawn mower on the front porch. The mower blocked the front door, leading the investigators to believe that that door was not being used. Accordingly, the investigators followed a walkway to a side door. The officers knocked on the side door and waited. As they waited, the officers observed marijuana plants in plain sight about 15 feet away. The plants were growing next to a smokehouse which was located directly behind defendant’s house.

When no one came to the door, the investigators returned to their car, obtained a camera, and photographed the marijuana plants. Then, they pulled the plants out of the ground.

Subsequently, defendant was arrested and charged with violating the Georgia Controlled Substances Act. Defendant moved to suppress the marijuana seized by the investigators. The motion was sustained and the State brings this appeal. Held:

“The essential purpose of the Fourth Amendment is to shield the citizen from unwarranted intrusions by the government upon his privacy. Cardwell v. Lewis, 417 U. S. 583, 589 (94 SC 2464, 41 LE2d 325) (1974), citing Jones v. United States, 357 U. S. 493, 498 (78 SC 1253, 2 LE2d 1514) (1958). ‘What a person, knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.’ Katz v. United States, 389 U. S. 347, 351 (88 SC 507, 19 LE2d 576) (1967). See also United States v. Dionisio, 410 U. S. 1, 14-15 (93 SC 764, 35 LE2d 67) (1973). Consequently, a police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant’s Fourth Amendment rights in the process of establishing his vantage point. See Ker v. California, 374 U. S. 23 (83 SC 1623, 10 LE2d 726) (1963); Harris v. United States, 390 U. S. 234 (88 SC 992, 19 LE2d 1067) (1968); Brooks v. State, 129 Ga. App. 393 (199 SE2d 578) (1974); Hatcher v. State, 141 Ga. App. 756 (234 SE2d 388) (1977).” State v. Aultman, 160 Ga. App. 550, 551 (287 SE2d 580). Did the investigators violate defendant’s Fourth Amendment rights in establishing their vantage point by the side door of defendant’s house? We think not.

Where a police officer enters upon private property only to the extent of knocking on outer doors, the Fourth Amendment is not violated. Gilreath v. State, 247 Ga. 814, 819 (279 SE2d 650). Thus, a police officer who is unable to approach the front door of a residence and tries to knock upon a side door only makes a “valid intrusion” upon the property. State v. Lyons, 167 Ga. App. 747, 748 (307 SE2d 285). After all, such an officer is merely taking the same route as would any guest or other caller. See State v. Nichols, 160 Ga. App. 386 (287 SE2d 53). See also Galloway v. State, 178 Ga. App. 31, 34 (342 SE2d 473).

Decided October 27, 1989.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellant.

Harry B. White, for appellee.

When a police officer makes a “valid intrusion” upon property and seizes contraband in plain view, “there is in effect no search at all.” State v. Nichols, 160 Ga. App. 386, supra. “This holds true whether or not the officer expected or suspected that he would discover the object seized. State v. Scott, 159 Ga. App. 869, 870 (2) (285 SE2d 599).” Galloway v. State, 178 Ga. App. 31, 35, supra.

Inasmuch as the investigators were entitled to be at the side door of defendant’s house, they were entitled to seize the marijuana which they observed in plain view. Gilreath v. State, 247 Ga. 814, supra. See also Gravely v. State, 181 Ga. App. 400 (352 SE2d 589). It follows that the trial court erred in sustaining defendant’s motion to suppress evidence.

Judgment reversed.

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


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A89A1012.
    CAROLE LYDEN SMITH ENTERPRISES, INC. et al. v. MATHEW et al.
    (387 SE2d 577)
   Birdsong, Judge.

Appellant corporation et al. were plaintiffs in a suit against the appellees, who are Louisiana residents, for, inter alia, breach of franchise agreements and obligations. The trial court granted the appellee-defendants’ motion to dismiss for lack of jurisdiction.

Appellants contend on appeal the trial court erred in failing to make specific findings of fact and conclusions of law, and erred in finding appellees had insufficient “minimum contacts” with this state to support contract and tort claims in a lawsuit. Held:

1. The trial court was not required to make specific findings of fact and conclusions of law in granting defendants’ motion to dismiss for lack of jurisdiction, either under the previous version of OCGA § 9-11-52, or under the statute’s present enactment (Ga. L. 1987, p. 1057, § 1), which specifically sets forth the situations in which findings are required. This is not one of them.

Decided September 28, 1989

Rehearing denied October 30, 1989

Glenville Haldi, for appellants.

Smith, Gambrell & Russell, William W. Maycock, Woodrow W. Vaughan, Jr., Mark T. Sallee, for appellees.

2. In the absence of a transcript of any hearing on the motion to dismiss, we must presume the evidence presented was sufficient to support the judgment, for without having before us the evidence heard by the trial court, we cannot address the merits of the objection. Gibson v. State, 187 Ga. App. 769, 771 (6) (371 SE2d 413). This is especially true where there are no findings of fact and conclusions of law required or requested, for without a transcript we could not even determine whether a finding of fact is clearly erroneous. See OCGA § 9-11-52 (a), as amended; Craigmiles v. Craigmiles, 237 Ga. 498 (228 SE2d 882); White v. Johnson, 151 Ga. App. 345, 349 (259 SE2d 731).

Moreover, even had there been a transcript, appellants, although attempting to argue the merits of their contentions, have failed to follow the rules of this court, at Rule 15 (a) (2), by providing citations to the record and transcript for every “fact” of evidence argued, so that its brief consists entirely of unsupported allegations of fact which we cannot consider on appeal. See Howell Mill &c. Assoc. v. Gonzales, 186 Ga. App. 909, 911 (368 SE2d 831); Esco v. Jackson, 185 Ga. App. 901, 902 (366 SE2d 309).

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Deen, Presiding Judge.

text:
    A89A1028.
    PARKER et al. v. CLICKENER.
    (387 SE2d 587)
   Deen, Presiding Judge.

Appellant F. Marshall Parker* Jr., M.D., a physician specializing in obstetrics and gynecology, appeals on behalf of himself and his professional corporation from the judgment rendered against him (and the corporation) by a Houston County jury in connection with the cancer-caused death of appellee’s decedent, Sheree Oliver Clickener.

The record shows that in October 1981, while the then Ms. Oliver and her fiancee, appellant Clickener, were sexually active with one another, a “pap” smear taken from Ms. Oliver was designated as Class I, or without atypical cells; that a June 1983 smear was classified as Class II, or showing atypical cells but no evidence of malignancy; and that a smear made in early July of 1983 was again Class I, or normal. The record further shows that in July of the next year, 1984, Oliver was reported as “spotting” between menstrual periods and having a “slight” cervical erosion, and that she was treated for cystitis and “break-through” bleeding from the combined effects of the erosion and the ingestion of birth control pills.

In the meanwhile appellee Clickener, with whom Oliver had continued to have sexual relations, was treated by other physicians for a sexually transmitted disease, chlamydia, beginning October 1, 1983. Testimony given at trial indicates that one of appellee’s treating physicians advised him to inform his fiancee that he had the disease, but that Clickener did not do so.

Oliver and Clickener were married in July 1984, and it was at that time that Parker made the diagnosis of cystitis and cervical erosion. In August 1984 a pap smear showed Class III symptoms — cells showing changes suggestive of malignancy — and the cervical erosion was described as “bad.” According to the record, the pathologist who examined this smear recommended either a biopsy or a coloscopy. Parker ordered neither, and instead, on September 26, 1984, performed cryosurgery on the cervix. In November of 1984 Ms. Oliver/ Clickener continued to experience various symptoms, and, according to the record, in January 1985 Dr. Parker, observing that her cervix was hard and covered with pus, began to suspect the presence of cancer. About one week after this last consultation with appellant Parker, Ms. Oliver/Clickener began hermorrhaging and was diagnosed by another physician as having a bleeding tumor of the cervix, with a probable “Stage IB” cancer. Ms. Oliver/Clickener subsequently underwent a hysterectomy, radiation, and chemotherapy; and, upon discovery that the cancer had metastasized, she underwent surgery of the lung and the brain. She died in May of 1986, and appellee brought the action below in July 1986, alleging that appellant had failed to diagnose cervical cancer between July of 1984 and January of 1985, and that this failure was the cause of the death. The original trial of the case ended in a mistrial, and the trial which resulted in the instant appeal began in August 1988.

According to the videotape deposition of the physician who performed the brain surgery, a timely diagnosis would have given the decedent a 90 percent chance of survival. Parker contended that the likely transmission of Clickener’s chlamydia to Ms. Oliver/Clickener during the critical period would have caused the symptoms of cancer — if any were indeed present at that time — to be masked and rendered undetectable to ordinary observation and examination. Held:

1. In his first enumeration appellant contends that the trial court erred in overruling his challenge to the jury array and subsequent motion for mistrial. One of the members of the jury array (who, ironically, was the former wife of the trial judge) responded on voir dire to the question, “You wouldn’t have any trouble finding for the plaintiff [sic] if the evidence and the law justified it?”: “Yes, I was a patient of [Dr. Parker’s partner]. My condition was misdiagnosed. Plus I had a friend that her condition was misdiagnosed by Dr. Parker . . . I’m not sure [I could decide on the basis of the evidence in this case alone].” Defense counsel thereupon approached the bench and challenged the jury array on the basis that the prejudicial remark had been made in the presence of all the potential jurors. After this side-bar conference, at which the trial court agreed to permit a continuing objection, counsel once again questioned this juror: “[I]f you were selected to sit on this jury, could you listen to what Judge Richardson gives you as the law in the case and listen to the testimony and the evidence . . . and render a decision . . . based on the evidence and the facts that you heard in this case and the law that his Honor gave you?” She replied, “I cannot,” and reiterated, “I think not,” in response to a slightly restated version of the same question; whereupon the trial court declared her disqualified to serve on the jury.

Defense counsel subsequently renewed his challenge to the array and moved for mistrial on the basis of the juror’s statement and certain other alleged improprieties. According to the transcript, the trial court overruled the challenge to the array and the motion for mistrial and promised to instruct the jury that “information elicited on voir dire is not evidence and will not be considered ... in the case.”

In Hughey v. State, 180 Ga. App. 375 (348 SE2d 901) (1986), this court reviewed at length, at 377-378, cases in which “disparaging and improper remarks have been made before the jury about the defendant which involved the discretion of the trial court in aborting the trial:” e.g., Stanley v. State, 250 Ga. 3 (295 SE2d 315) (1982); Knight v. State, 243 Ga. 770 (257 SE2d 182) (1979); Williams v. State, 242 Ga. 757 (251 SE2d 254) (1978); Ogles v. State, 238 Ga. 716 (235 SE2d 384) (1977); Weldon v. State, 175 Ga. App. 172 (333 SE2d 23) (1985).

In Lingerfelt v. State, 147 Ga., App. 371 (249 SE2d 100) (1978), the defendant was accused of sexual offenses. On voir dire a prospective juror stated that he “had heard too much” about the case to be impartial and, in response to further questioning in the presence of other potential jurors, named several persons from whom he had heard that the defendant was a “peeping tom.” The trial court overruled defense counsel’s motion for mistrial, and this court reversed, holding, at 372-373, that “[t]he statements made by the prospective juror in the presence of the remainder of the panel were prejudicial and entitled the appellant to a new panel” because “the responses subsequently elicited . . . branded the accused as a sex deviate before the trial had ever begun. . . . This was inherently prejudicial and deprived the appellant of his right to begin his trial with a jury ‘free from even a suspicion of prejudgment. . .’ ” In Moore v. State, 156 Ga. App. 92 (274 SE2d 107) (1980), in which the defendant was charged with first-degree arson, a prospective juror volunteered, in the presence of other prospective jurors: “ ‘He was a volunteer (fireman). I worked with a guy that said that he was a firebug . . ., that he would set the fire and then run back to the fire house.’ ” Defense counsel challenged the jury poll, but the trial court disqualified that particular juror, as in the instant case, and instructed the others to disregard the statement. This court, citing Lingerfelt, supra, reversed, holding at 93: “It cannot seriously be argued that a prospective juror in an arson case could remain neutral after hearing sworn testimony by another prospective juror to the effect that the defendant was . . . a firebug . . . [S]uch a statement was ‘inherently prejudicial’. . . .”

Appellee contends that the instant case is controlled by Hughey v. State, supra, in which a prospective juror stated on voir dire: “I have arrested [the defendant].” This court, in affirming, distinguished [Hughey] from Moore and Lingerfelt: “Those types of characterizations imply guilt, whereas in the instant case the reference was to an ‘arrest’ which could have been as innocuous as a speeding ticket . . . [W]e do not find the potential juror’s reference to an arrest ... so inherently prejudicial as to deny defendant a fair trial.” Id. at 378.

In the instant case, as in Moore and Lingerfelt, the challenged remark expressly accuses the defendant of conduct of the very same sort as that for which he is about to stand trial. This is clearly distinguishable from such cases as Hughey and the decisions cited therein, in which the challenged statements are disparaging only in rather general terms. Cf. Austin v. State, 180 Ga. App. 226 (348 SE2d 746) (1986); Scott v. State, 177 Ga. App. 474 (339 SE2d 718) (1986); Ford v. State, 154 Ga. App. 506 (268 SE2d 788) (1980).

We note, however, that OCGA § 15-12-162, on which appellant’s enumeration is based, is properly applicable to criminal cases only. Atlantic Coast Line R. Co. v. Mead, 22 Ga. App. 70 (95 SE 476) (1918). In civil cases a juror may be challenged under OCGA § 15-12-123. See Jones v. Cloud, 119 Ga. App. 697 (168 SE2d 598) (1967). No written challenge is required. Atlantic Coast Line R. Co. v. Bunn, 2 Ga. App. 305 (58 SE 538) (1907).

The trial court erred in not calling for a new array of jurors, and this case must be remanded for new trial.

2. We find that the trial court erred in excluding the evidence recited in the second, third, fourth, and fifth enumerations. It is well settled that where there is doubt as to the relevancy of proffered evidence (which is not otherwise inadmissible), the trial court should admit it and, as appropriate, give the jury limiting instructions as to its use. Energy Contractors v. Ga. Metal &c., 186 Ga. App. 475 (367 SE2d 324) (1988); Weathers v. Cowan, 176 Ga. App. 19 (335 SE2d 392) (1985). Questions of relevancy are for the trial court, and, absent abuse of judicial discretion, the appellate court will not interfere. Energy Contractors v. Ga. Metal &c., supra at 176.

Decided October 16, 1989

Rehearing denied October 30, 1989

Jones, Cork & Miller, Carr G. Dodson, Bradley J. Survant, for appellants.

Reynolds & McArthur, W. Carl Reynolds, Charles M. Cork III, Katherine L. McArthur, for appellee.

3. Appellant’s sixth, seventh, eighth, and ninth enumerations of error are without merit. We find that the rejected jury instructions are argumentative in tone and assume facts not in evidence. The court therefore acted properly in omitting them from his charge to the jury.

4. Appellant’s tenth enumeration addresses the general grounds. We find no error of law or insufficiency of competent evidence to authorize the verdict. This enumeration is therefore without merit.

5. Because the alleged error in appellant’s final enumeration is unlikely to recur on retrial, we do not address it here.

Judgment reversed.

Birdsong and Benham, JJ., concur.


author: Deen, Presiding Judge. Benham, Judge, Beasley, Judge,

text:
    A89A1175, A89A1176.
    JARALLAH v. PICKETT SUITE HOTEL et al. (two cases).
    (388 SE2d 333)
   Deen, Presiding Judge.

The pro se appellant, Taj Jarallah, commenced this action against the appellees on March 3; 1988, concerning his termination from employment. On June 21, 1988, the trial court ordered the appellant to appear for a deposition, but the appellant refused to do so. On June 23, 1988, the appellant filed a notice of appeal from the above discovery order. By order dated October 4,1988, but entered on October 11, 1988, the trial court dismissed the appellant’s notice of appeal from the discovery order since that order was not a final judgment and the appellant had not observed the interlocutory appeal procedure, and also dismissed the appellant’s complaint as a sanction for his refusal to comply with the trial court’s earlier discovery order.

On October 14, 1988, the appellant filed a motion to vacate and set aside the judgment pursuant to OCGA § 9-11-60 (d), and also a motion to recuse the trial court, accompanied by an affidavit in which the appellant merely alleged that the trial court was not impartial. On November 2, 1988, the appellant filed a notice of appeal from the order of October 11, 1988. (Case No. A89A1175.) On January 24, 1989, the trial court denied the appellant’s motion to set aside and the motion to recuse, and the appellant filed another notice of appeal from that order on January 27, 1989. (Case No. A89A1176.) Held:

Case No. A89A1175

1. The only real issue in this case is whether, pursuant to OCGA § 9-11-37 (d), the trial court abused its discretion in dismissing the appellant’s complaint for failure to comply with the trial court’s discovery order compelling the appellant’s appearance for a deposition. The only reasons given for the appellant’s conscious refusal to attend the deposition included the work product privilege and the Fifth Amendment privilege against self-incrimination. The work product privilege contained in OCGA § 9-11-26 (b) pertains to “documents and tangible things” and provides no basis for a party, even a party representing himself, to refuse to appear for a deposition. The appellant’s contention that the Fifth Amendment protects him from appearing at a deposition likewise is untenable. See Savannah Surety Assoc. v. Master, 240 Ga. 438 (241 SE2d 192) (1978).

“The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only ‘ “ ‘a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.’ ” ’ [Cit.] ‘A conscious or intentional failure to act’ is in fact ‘wilful.’ [Cit.]” Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344 (373 SE2d 50) (1988). The appellant presented no legitimate excuse for failing to comply with the trial court’s discovery order, and the trial court did not abuse its discretion in dismissing the appellant’s complaint.

2. The appellant’s other enumerations of error are also without merit.

Case No. A89A1176

3. To the extent that this direct appeal concerns the trial court’s denial of the appellant’s motion to set aside, it must be dismissed, because such appeals require the discretionary appeal procedures. OCGA § 5-6-35 (a) (8). To the extent that the appellant’s motion to vacate and set aside judgment was nothing more than a motion for reconsideration, the appeal was untimely and also must be dismissed. Miller v. Bank of the South, 177 Ga. App. 42 (338 SE2d 436) (1985). Concerning the denial of the appellant’s motion to recuse, there certainly was no error. Rule 25.1 of the Uniform State Court Rules requires any motion to recuse to be filed not later than 5 days after the movant first learns of the ground for disqualification and not later than 10 days before the hearing or trial which is the subject of recusal. In this case, although the appellant filed an unserved affidavit in June 1988 complaining that the trial court was not giving him a fair shake, the only motion to recuse was that filed on October 14, 1988, after the final disposition of the case. The motion was untimely and properly denied. Further, the affidavit filed in support of the motion, which stated no facts and merely accused the trial court of bias, would have been legally insufficient to necessitate a hearing on the motion. State v. Fleming, 245 Ga. 700 (267 SE2d 207) (1980); see also Bouldin v. State, 179 Ga. App. 394 (346 SE2d 871) (1986).

4. These appeals being patently frivolous, pursuant to Rule 26 (b) of the Rules of the Court of Appeals, a penalty of $200 is assessed against the appellant. Pro se litigants are no less entitled to use the courts in civil matters than litigants with attorneys. “No democracy will survive if it rations justice.” (Justice Learned Hand.) Yet, where one elects to use the court system, court orders and rules may not be totally ignored with impunity. The dissent would make it extremely difficult, if not impossible, ever to impose frivolous appeal damages against any pro se litigant.

Judgment in Case No. A89A1175 affirmed; Case No. A89A1176 dismissed in part and affirmed in part.

Carley, C. J., Banke, P. J., Birdsong and Sognier, JJ., concur. McMurray, P. J., Pope, Benham and Beasley, JJ., concur in part and dissent in part.

Benham, Judge,

concurring in part and dissenting in part.

While I concur in Divisions 1, 2, and 3 of the majority opinion, I cannot concur in Division 4, which imposes a penalty on appellant. I support the imposition of penalties in some cases, but I do not favor such an imposition against this pro se litigant. It appears that appellant has diligently pursued his rights, but due to his unfamiliarity with the procedural aspects of the law, he filed a direct rather than an interlocutory appeal. Moreover, the basis of his appeal is not so patently frivolous, particularly from a layman’s point of view, that a penalty of this nature should be imposed against him. I am also concerned that the imposition of the penalty here will be viewed as retribution for appellant’s having accused the trial court of being partial and for having exercised his right óf self-representation. In situations such as this, our judicial system is strong enough to withstand accusations, even when unfounded, without resorting to harsh penalties.

The majority correctly quotes Justice Learned Hand in stating, “No democracy will survive if it rations justice.” However, it inappropriately applies the statement by using it as a justification for the imposition of penalties. In making the statement, Justice Hand wanted us to look to the substance of the legal process rather than just the form. To assure the vitality of the legal process it is not enough just to keep the courthouse doors open during business hours, we must work to make the court system “user friendly.” The founding fathers must have intended for lay persons to have access to our courts since many of the drafters of the United States Constitution were non-lawyers, and even until modern times many members of the United States Supreme Court were non-lawyers.

The crowning glory of our legal system is its accessibility, and we should be very cautious in limiting access to our courts, for to do otherwise we run the risk of rationing justice. This is a risk that I am unwilling to run. Therefore, I respectfully dissent.

Beasley, Judge,

concurring in part and dissenting in part.

I, too, concur in Divisions 1, 2, and 3 of the majority opinion. I do not concur in the decision to impose a penalty. This court adopted a rule, Rule 26 (b), stating that it may impose a penalty not to exceed $500 in civil cases “which the Court determines to be frivolous.” This rule is almost identical to Rule 14 of the Supreme Court of Georgia, which preceded it, except that the Supreme Court may assess the appellant’s counsel or appellant, whereas this court chose only to allow assessment against appellant.

The question is whether the appeal is so frivolous that the appellant should be penalized monetarily for having brought it, and not merely be left with having lost the appeal. Frivolous in whose eyes? The Court’s, as stated in the rule. This test, and the perspective somewhat, differ from OCGA § 5-6-6, by which the legislature provided that the court could impose a penalty of 10 percent of the judgment, in money judgment cases, when in the court’s opinion the appeal “was taken up for delay only.” In cases being considered under this statute, the appellant’s purpose for filing an appeal is the test, as measured by the Court’s perspective.

The fact that three other judges of this court consider the appeal not to be frivolous such as to warrant a monetary penalty for bringing it, moves this case away from those where the settled law makes the outcome obvious. Here the plaintiff questions the dismissal of his lawsuit with prejudice as a sanction for refusing to appear for a deposition, the posture on appeal being whether the trial court abused its discretion. Considering the nature of this appeal, plus the facts heretofore mentioned, as well as all of the circumstances, I would not impose what amounts to an additional penalty on appellant.

I am authorized to state that Judge Pope joins in this opinion.

Decided October 10, 1989

Rehearing denied October 30, 1989

Taj Jarallah, pro se.

Stokes, Lazarus & Carmichael, Frederick L. Warren III, Michael A. Young, for appellees.


author: Birdsong, Judge. Deen, Presiding Judge,

text:
    A89A1178.
    FORTENBERRY v. THE STATE.
    (387 SE2d 607)
   Birdsong, Judge.

Tommy G. Fortenberry was convicted of aggravated child molestation involving his young stepson. He grounds his appeal upon the admission in evidence and showing to the jury of certain sexually oriented videotapes found in his possession. According to appellant, these videotapes were irrelevant and prejudicial in this case because, the scenes depicted did not concern sexual acts between adults and children or man and boy. Held:

The evidence complained of was admissible under Tyler v. State, 176 Ga. App. 96, 99 (1) (335 SE2d 691), wherein we exhaustively explained both the basis for admissibility of such material to show bent of mind and lustful disposition, and the particular admissibility of such evidence when it has been exhibited to the victim by defendant as a means of orientating, training, enticing, or lulling the child into performing sexual acts. To this result, because of the prurient nature of sexual proclivity generally, it matters not that the material may not show the exact act, or a similar act between persons of age, sex, or relationship equivalent to that of the victim and the defendant.

We therefore find no basis for any objection to the evidence in the assertion that it did not depict the exact act which defendant then forced the victim to engage in or perform, nor will we make distinctions as to the content of such sexually oriented materials for the purpose of keeping them out of evidence, when it is shown that defendant exhibited them to the victim. The logical and legal assumption is, and the jury may reasonably conclude, that the defendant compelled or invited the child to view such material so as to facilitate the accomplishment of some sexual act with the child.

The evidence in this case was plainly admissible and if it was prejudicial against defendant, so be it, for its relevance was as least as great.

Judgment affirmed.

Benham, J., concurs. Deen, P. J., concurs specially.

Decided October 30, 1989.

David E. Barrett, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

Deen, Presiding Judge,

concurring specially.

If this were an obscenity case, this court would be required to view any magazines or videotapes admitted into evidence. The videotapes found in defendant’s possession were shown to the jury for the purpose of reflecting the enticing of the victim to engage in some of the acts shown in the films. Since the jury saw the tapes, there is some question in my mind that the court should also view them. In any event, they are admissible to show bent of mind and lustful disposition. See Megar v. State, 144 Ga. App. 564, 568 (241 SE2d 447) (1978); Howell v. State, 172 Ga. App. 805 (324 SE2d 754) (1984); Horne v. State, 192 Ga. App. 528 (385 SE2d 704) (1989).


author: Benham, Judge.

text:
    A89A0957.
    DEPARTMENT OF HUMAN RESOURCES v. CROSBY.
    (387 SE2d 608)
   Benham, Judge.

We granted the Department of Human Resources’ (DHR) application for discretionary appeal to determine whether the trial court abused its discretion when it denied DHR’s motion to compel appellee, Roy Crosby, the putative father of the minor child, Chad Lee, to submit to a human leucocyte antigen (HLA) blood test. See OCGA § 19-7-45. We find no such abuse of discretion.

At a hearing on the motion, it was adduced that this is the third paternity action brought by the minor child’s mother, Kathy Lee, on behalf of the four-year-old child. A previous action had been brought against Crosby, and another action had been brought against Charles Overstreet, who, after submitted to testing, was determined not to be the father. Both actions were voluntarily dismissed. The child’s mother testified that the two men in question were the only ones with whom she had had sexual intercourse at the time of conception. The trial court denied the motion to compel the testing.

1. Appellant contends that the evidence was overwhelming in support of its motion and that the trial court based its ruling on the fact that the child was four years old at the time this suit was filed. We find these contentions to be without merit in light of the record before us. Although the trial court commented on the child’s age during the hearing when it indicated that it would deny the motion, it did not state specifically at the close of the evidence when it issued its oral ruling that the child’s age was the one and only reason it was denying the motion; it merely denied the motion. The written order denying the motion does not give any specific reason for the denial. Our state statute governing HLA blood tests still permits the trial court to exercise its discretion in whether or not to order such testing (OCGA § 19-7-45), and we find no abuse of discretion in this case. Of course, at the trial of the paternity action, the mother can use appellee’s refusal to submit to the blood test to show that he is not precluded from being the child’s father. OCGA § 19-7-46.

Decided October 31, 1989.

Harry D. Dixon, Jr., District Attorney, George E. Barnhill, Assistant District Attorney, for appellant.

M. Theodore Solomon II, for appellee.

2. We find no basis for concluding that the trial court limited the testimony given by the child’s mother at the hearing. The trial court allowed appellant to present all the evidence relevant to this issue that appellant wished to present, and it properly restricted the testimony regarding the “passionate details” of the sexual relations between the child’s mother and alleged father.

3. Nor do we find merit in appellant’s assertion that the trial court erroneously refused to allow appellant to call appellee, a subpoenaed witness, to the stand to testify whether or not he had had sexual relations with the child’s mother. The trial court concluded that such testimony was not necessary on the motion for the blood test and that the issue would be taken up at the paternity trial. We agree. No harmful error occurred as a result of the trial court’s decision to refuse the testimony sought.

Judgment affirmed.

Been, P. J., and Birdsong, J., concur.


author: Deen, Presiding Judge. Benham, Judge,

text:
    A89A1003.
    A89A1004.
    PRECISION PLANNING, INC. v. WALL. PRECISION PLANNING, INC. v. WILSON.
    (387 SE2d 610)
   Deen, Presiding Judge.

The two appellees sued the appellant, Precision Planning, Inc., for professional malpractice as the project engineer of a construction project. The appellees filed their complaints on October 2, 1987, although the operative facts occurred in late 1985. In answering the complaints, the appellant raised the defense that the appellees had not submitted the affidavit of an expert as required by OCGA § 9-11-9.1, which was effective July 1, 1987, and subsequently moved to dismiss the complaints on that basis. The appellees never attempted to amend their complaints to include an expert’s affidavit. The trial court denied the appellant’s motions, after finding that OCGA § 9-11-9.1 affected substantive rights and thus was to be applied prospectively only. This interlocutory appeal followed. Held:

“Generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. [Cits.] On the other hand, where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. [Cits.] . . . Substantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations. [Cit.]” Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273) (1988).

In the instant case, the OCGA § 9-11-9.1 requirement of submitting an expert’s affidavit along with the complaint did not affect the substantive right of action for professional malpractice; it alters neither the standard of care to be applied nor the measure of recovery. The statute merely prescribes a procedure for enforcing that right, evidently with the purpose of preventing frivolous or unsustainable actions. Accordingly, the trial court erred in applying the statute prospectively only, and in denying the appellant’s motions to dismiss. Compare Glaser v. Meck, 258 Ga. 468 (369 SE2d 912) (1988). See also St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (377 SE2d 847) (1989).

Judgments reversed.

Birdsong and Benham, JJ., concur and also concur specially.

Benham, Judge,

concurring specially.

In light of the Supreme Court’s recent decision in Housing Auth. of Savannah v. Greene, 259 Ga. 435 (383 SE2d 867) (1989), I must agree that OCGA § 9-11-9.1 is applicable to suits alleging professional malpractice other than medical malpractice. Should the legislature determine that OCGA § 9-11-9.1 has been interpreted more broadly than that enacting body intended, it has the power to rewrite the statute.

I also wish to point out that appellee Wilson’s argument that OCGA § 9-11-9.1 is unconstitutional was not raised in the trial court and therefore cannot be addressed by the appellate courts.

I am authorized to state that Judge Birdsong joins in this opinion.

Decided October 31, 1989.

Carter & Ansley, Ben Kingree, Michael A. Coval, for appellant.

Jerry Phillips, Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Swift, Currie, McGhee & Hiers, Donald F. Daugherty, Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, for appellees.


author: Pope, Judge.

text:
    A89A1010.
    NEWELL v. THE STATE.
    (387 SE2d 611)
   Pope, Judge.

Defendant Roderick Newell appeals from his convictions and sentences for the offenses of armed robbery and violation of the Georgia Firearms & Weapons Act.

Construed so as to support the verdict, the evidence presented at trial showed that on March 12, 1988, defendant and the co-defendant, Frederick Browning, who pled guilty prior to trial, entered a Church’s Fried Chicken restaurant; defendant was carrying a green bag or satchel and both he and Browning were carrying sawed-off shotguns. Defendant and the assistant manager went to the back of the restaurant where the safe was located; when they emerged approximately five minutes later Browning directed the assistant manager to give him the money from the cash register. Another employee of the restaurant remained prone on the floor during the entire time the defendant and Browning were in the restaurant. Both the employee and the assistant manager left Church’s employment shortly after the incident and neither testified at trial.

Defendant and Browning were seen exiting the restaurant by several witnesses who provided descriptions to the police. They ran to a waiting U-Haul truck and attempted to make their get-away but were apprehended within a block of the restaurant. Defendant, who was driving the van, initially tried to flee when the police approached him but he was quickly captured. A search of the van revealed both the green satchel containing a sum of money and two sawed-off shotguns which had been stored under the passenger seat. Both shotguns were loaded.

Defendant gave a pre-trial statement to police which indicated that the assistant manager of the store was “in on” the robbery. Defendant also stated that he took Browning along with him because he knew Browning needed the money. Browning testified at trial that the defendant had stated to him that it was “an inside job.” Defendant also testified at trial, at which time he recanted his previous statement and denied his involvement in the robbery, testifying instead that Browning and he were on their way to pick up some furniture when Browning directed him to stop around the corner from the restaurant so that he could go in and get some money from a man he knew. Defendant testified further that he saw Browning and another man running up the street approximately five minutes later, and that Browning then jumped in the truck, and said “Let’s go. They set us up.” Defendant testified that it was at this point that he noticed for the first time that Browning was carrying a shotgun. Defendant stated that he initially lied about his involvement in the crime because Browning told him they should blame it on the assistant manager so that defendant and Browning would receive a lighter sentence. Held:

1. In his first and third enumerations of error defendant challenges the sufficiency of the evidence, arguing, in essence, that the evidence failed to show the money was taken without the consent of the assistant manager, because testimony was presented at trial that the assistant manager was “in on” the crime. We find no merit to this enumeration. The evidence here was sharply in conflict with defendant recanting his pre-trial statement concerning the assistant manager’s involvement and contending instead that he had no knowledge of the crime and that he was not involved in its commission. However, other evidence was presented which would authorize the jury to conclude that defendant and the co-defendant did take, with or without the participation of the assistant manager, the money from the restaurant safe and cash register belonging to Church’s Fried Chicken, and that both brandished loaded sawed-off shotguns during the commission of these acts. “Since the money did not belong to the [assistant manager, the taking of the money with permission] of one who did not own [it] does not, as a matter of law, show the absence of ‘any participation in a crime.’ ” Tisdol v. State, 158 Ga. App. 852, 853 (282 SE2d 411) (1981). “ ‘The weight of the evidence and the credibility of the witnesses are questions for the factfinder.’ Patterson v. State, 181 Ga. App. 68 (2) (351 SE2d 503) [(1986)]. The evidence presented at trial was sufficient to enable a rational trier of fact to find [defendant] guilty of both offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)].” Tann v. State, 189 Ga. App. 868 (377 SE2d 915) (1989). See also Baxter v. State, 188 Ga. App. 598 (1) (373 SE2d 834) (1988); Snipes v. State, 188 Ga. App. 366 (1) (373 SE2d 48) (1988).

2. Defendant also contends that the trial court erred in refusing to instruct the jury, upon written request, on the lesser included offense of theft by taking. Again we find no error. As stated in Division 1, the jury, based on the testimony presented at trial, was authorized to conclude^either that defendant had no knowledge of and did not participate in the crime, or that he and Browning, with or without the participation of the assistant manager, took money which did not belong to any of the alleged participants in the crime while brandishing loaded sawed-off shotguns. “ ‘A jury charge is properly refused where it is not authorized or adjusted to the evidence adduced at trial.’ ” (Citation and punctuation omitted.) McNeese v. State, 186 Ga. App. 410, 411 (367 SE2d 235) (1988). Cf. Tisdol v. State, supra, in which the defendant admitted committing the acts forming the basis of the conviction, but “vehemently denied that either he or the co-defendant used a gun . . . .” Id. at 853.

Decided October 31, 1989.

Michael T. McClain, Robert D. Wildstein, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A89A1031.
    PETTUS v. DRS. PAYLAY, FRANK & BROWN, P.C.
    (387 SE2d 613)
   Birdsong, Judge.

Donna H. Pettus appeals from an order of the superior court granting summary judgment to Georgia Insurance Company, on grounds the claim was within the exclusive jurisdiction of the State Workers’ Compensation Board and thus the court lacked jurisdiction over the subject matter of her claim. This appeal arises from a complaint filed against Pettus by Drs. Paylay, Frank & Brown, P.C. (Dr. Brown) to recover the amount she allegedly owed for medical services provided her. Pettus responded to the complaint and filed a third-party complaint against Georgia Insurance Company, her workers’ compensation insurance carrier, which she asserted should have paid the bill. Her third-party complaint sought payment of the medical expenses and compensatory and punitive damages for “mental pain and anguish” she suffered allegedly because Georgia Insurance refused to pay the medical bill.

Georgia Insurance moved for summary judgment asserting that exclusive jurisdiction for Pettus’ claim was vested in the State Workers’ Compensation Board, and the trial court granted the motion. Pettus now asserts that her claim was not within the exclusive jurisdiction of the board because the workers’ compensation system allegedly has no penalty provisions for failure to pay such claims and because Georgia Insurance did not controvert the bill. Held:

Pretermitting whether the trial court properly found it lacked subject matter jurisdiction to consider Pettus’ claims is the question whether we have jurisdiction to consider this appeal. “ ‘ “It is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” [Cit.]’ ” Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (1) (306 SE2d 22).

Decided October 31, 1989.

Sonja L. Salo, for appellant.

Levy & Adams, D. Merrill Adams, Daniel C. Kniffen, for appellee.

Although the third-party defendant described its motion as one for summary judgment and the trial court’s order appears to grant summary judgment, mere nomenclature is not controlling. Jones v. Spindel, 128 Ga. App. 88, 103 (196 SE2d 22). It is the substance and function of the motion which is determinative, not the name. Holloway v. Frey, 130 Ga. App. 224, 227 (202 SE2d 845). In this instance the third-party defendant’s motion was a challenge to the subject matter jurisdiction of the trial court to consider Pettus’ claims. Such a challenge does not go to the merits, but is a matter in abatement. Taco Bell Corp. v. Calson Corp., 190 Ga. App. 481, 483 (379 SE2d 6). Matters in abatement are not properly the subject of motions for summary judgment. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459). Further, a motion contesting the court’s jurisdiction to consider the subject matter is not converted to a motion for summary judgment by the trial court’s consideration of matters outside the pleadings. OCGA § 9-11-12 (b). Accordingly, the trial court’s order was not a grant of summary judgment. Instead, it was properly a dismissal of Pettus’ claim under OCGA § 9-11-41 (b) and (c). Taco Bell Corp. v. Calson Corp., supra; Porter v. Buckeye Cellulose Corp., 189 Ga. App. 818 (377 SE2d 901) (physical precedent only).

Consequently, as this appeal is not the appeal of a grant of summary judgment against Pettus, it cannot be based upon OCGA § 9-11-56 (h), and as we note that the record shows other claims are pending against all the parties in the trial court, the order appealed from is not an appealable final order within the meaning of OCGA § 5-6-34 (a) (1). Further, as there has been no compliance with OCGA § 9-11-54 (b) or § 5-6-34 (b), this appeal is premature and must be dismissed. Patrick v. Glass, 188 Ga. App. 737 (374 SE2d 229).

Appeal dismissed.

Deen, P. J., and Benham, J., concur.


author: Carley, Chief Judge.

text:
    A89A1032.
    PARKER v. FOOD GIANT, INC.
    (387 SE2d 615)
   Carley, Chief Judge.

After she entered appellee-defendant’s grocery store, appellant-plaintiff slipped and fell when she allegedly stepped on a purple grease crayon that was lying on the floor. Appellant brought suit against appellee, seeking to recover for the personal injuries that she sustained in her fall. After answering and denying the material allegations of the complaint, appellee moved for summary judgment. The trial court granted the motion, concluding that appellant had “not made a sufficient showing that [appellee] had superior knowledge, either actual or constructive^] of the purple crayon on the floor of the store prior to [her] fall.” Appellant appeals from the grant of summary judgment in favor of appellee.

1. Because the purple grease crayon is of the type that is used to mark items in grocery stores, appellant urges that appellee should be “presumed to have knowledge of its existence. [Cit.] ” Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980). However, such a presumption of superior knowledge applies only where wax, oil or some other finish has been intentionally placed on the floor by the owner, not where the alleged cause of a fall is an entirely foreign substance, such as a purple grease crayon. See Alterman Foods v. Ligon, supra.

Accordingly, if appellant is to recover, appellee must be shown to have had either actual or constructive superior knowledge of the presence of the crayon on its floor. At trial, the burden would be on appellant to produce evidence of such superior knowledge on the part of appellee. On appellee’s motion for summary judgment, however, there would be no such evidentiary burden on appellant unless and until appellee had met its initial burden of showing its lack of superior knowledge. “ ‘The movant has [the] burden even as to issues upon which the opposing party would have the trial burden . . . .’ [Cits.]” (Emphasis omitted.) Shiver v. Singletary, 186 Ga. App. 746, 748 (2) (368 SE2d 523) (1988). As the movant for summary judgment, appellee cannot rely upon the mere assertion that its superior knowledge cannot be shown by appellant at trial. See Hamner v. Emory Univ., 190 Ga. App. 788 (380 SE2d 83) (1989); Ware County v. Medlock, 192 Ga. App. 542 (385 SE2d 429) (1989).

Construing the evidence most favorably for appellant, appellee negated any allegation of its actual superior knowledge of the presence of the crayon on its floor. The burden thus was shifted to appellant to show that a genuine issue of material fact remained in that regard. She did not meet this burden. Accordingly, the issue presented for resolution is whether appellee also met its initial burden of negating its constructive superior knowledge and, if so, whether appellant then met her burden of showing that a genuine issue of material fact remained in this regard.

2. “ ‘Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. [Cit.] Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises .... (Cits.)’ [Cit.] Thus, the burden would be upon [appellee], as the movant for summary judgment, to show that, as to its lack of constructive knowledge under either theory, no genuine issue remained.” (Emphasis in original.) Food Giant v. Cooke, 186 Ga. App. 253, 254 (1) (366 SE2d 781) (1988).

Construing the evidence of record most favorably for appellant, there is considerable doubt whether appellee met its burden of showing that none of its employees who were in the immediate vicinity could easily have seen and removed the crayon prior to appellant’s fall. It would appear that “[t]here is nothing in the testimony of the . . . employees themselves which would show that, from the perspective that each had of the scene, they could not easily have seen and removed the [crayon] .... Compare Fulton-DeKalb County Hosp. Auth. v. Estes, 187 Ga. App. 120 (369 SE2d 262) (1988) (evidence affirmatively showed that employee had only 5 seconds to observe and remove hazzard); . . . Rush v. Food Giant, 183 Ga. App. 388 (358 SE2d 919) (1987) (employee testified that her view of the area was obscured and her attention drawn away from area during the relevant time period).” Sain v. K-Mart Corp., 190 Ga. App. 751, 752-753 (380 SE2d 299) (1989).

However, even assuming that appellee did meet its initial burden of negating its constructive superior knowledge under this theory and that appellant did not meet her burden of producing evidence to the contrary, it is clear that appellee did not meet its burden of proof as to the alternative theory of its superior constructive knowledge. Appellee “offered no evidence as to what inspection procedures, if any, were in effect during the time in question and no evidence as to whether there had been adherence to those procedures. Accordingly, the evidence did not eliminate [appellant’s] possible recovery under the theory that, as the result of a failure to exercise reasonable care in inspecting the premises, [appellee] had actionable constructive knowledge of the presence of the foreign substance. [Cit.] Because [appellee] did not meets [its] evidentiary burden as to this theory, the burden did not shift to [appellant] to show the length of time that the [crayon] had been allowed to remain on the floor. Compare . . . Mayfield v. All American &c. Foods, 182 Ga. App. 711 (356 SE2d 745) (1987) (wherein defendant showed that floor had been swept shortly before plaintiff fell and plaintiff did not offer evidence as to how long the foreign substance had been allowed to remain on floor.)” Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257, 259 (2) (366 SE2d 785) (1988).

Decided October 31, 1989.

Kyle Yancey, for appellant.

Contrary to appellee’s assertions on appeal, it cannot rely upon appellant’s lack of evidence as to this alternative theory of its superior constructive knowledge as authorizing the grant of its motion for summary judgment. Appellant’s complaint did not allege that she was not relying upon this alternative method of showing appellee’s constructive knowledge. See Baldwin County Hosp. Auth. v. Coney, 188 Ga. App. 339 (1) (373 SE2d 252) (1988). Accordingly, the initial burden was on appellee to produce evidence showing that this theory was not viable and appellant’s failure to produce evidence as to the viability of this manner of proving appellee’s superior constructive knowledge will not authorize the trial court’s grant of summary judgment in favor of appellee. See generally Hamner v. Emory Univ., supra. Appellee’s “evidence did not negate the possibility that, under the existing circumstances, its failure to have discovered the presence of the [crayon] was the result of its failure to exercise reasonable care in inspecting its premises. [Cit.] Compare Kenny v. M & M Supermarket, 183 Ga. App. 225 (358 SE2d 641) (1987) (summary judgment proper where there is nothing to rebut defendant’s direct evidence that, 5 minutes prior to fall, the grocery store aisle had been inspected and no foreign substances were found); Mazur v. Food Giant, 183 Ga. App. 453 (359 SE2d 178) (1987) (summary judgment proper where there are no existing circumstances inconsistent with direct evidence that, 10 to 15 minutes prior to fall, the floor in front of frozen food display had been inspected and no foreign substances were found.) Since [appellee] did not meet its initial evidentiary burden as the movant for summary judgment, the burden never shifted to [appellant] to produce evidence as to how long the [crayon] may have been on the floor. It follows that, as to the issue of [appellee’s] constructive knowledge of the [crayon], the trial court did ... err in [granting] summary judgment.” Food Giant v. Cooke, supra at 256 (1).

Judgment reversed.

McMurray, P. J., concurs. Beasley, J., concurs in judgment only.

Nicholas C. Moraitakis, for appellee.


text:
    A89A1033.
    ROZIER v. DAVIS/SMITH MORTGAGE CORPORATION.
    (387 SE2d 627)
    Decided October 31, 1989.
    Essie Rozier, pro se.

      Barham & Manley, David B. Manley III, for appellee.
   Benham, Judge.

This appeal is from a consent judgment entered in a dispossessory proceeding.

1. Appellee has filed three motions to dismiss the appeal. The first two motions to dismiss are denied inasmuch as appellant’s brief was timely filed in accordance with this court’s order. The third motion to dismiss, based upon the holding in Zorn v. Lamar, 71 Ga. 80 (1883), is also denied. In Zorn, the Georgia Supreme Court held that the writ of error will be dismissed in a case where the appellant consented to the judgment below. In light of the passage of OCGA § 5-6-48 which limits the grounds upon which an appeal may be dismissed, we do not find Zorn to be applicable. Since this case does not come within any of the limited grounds for dismissal of an appeal listed in OCGA § 5-6-48, we will not dismiss this appeal.

2. However, we conclude that the entry of the consent judgment requires affirmance of the judgment below. Since appellant did not seek to have the consent judgment vacated or set aside, she is es-topped from going behind the judgment so as to reopen the matter in this court. Johnson v. Shook, 156 Ga. App. 878 (2) (275 SE2d 815) (1981). See also Great Atlantic Ins. Co. v. Morgan, 161 Ga. App. 680 (288 SE2d 287) (1982); McCook v. Beck, 138 Ga. App. 351 (226 SE2d 72) (1976).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A1196.
    DORA-CLAYTON AGENCY, INC. et al. v. FORJAY BROADCASTING CORPORATION et al.
    (387 SE2d 617)
   Benham, Judge.

This is an appeal from the grant of a motion to dismiss for lack of personal jurisdiction over the defendants, Forjay Broadcasting Corporation, a South Carolina corporation, and Maurer, its sole shareholder, a resident of South Carolina. Appellants Dora-Clayton Agency, Inc., a Georgia corporation, and its sole shareholder, Haight, a Georgia resident, sued appellees in Georgia for the alleged breach of two contracts. One contract provided that Dora-Clayton would act as Forjay’s national sales representative. Pursuant to that contract, the record shows, Dora-Clayton sold advertising time on Forjay’s radio station to clients in Georgia and other states, operating from Dora-Clayton’s offices in Georgia. The other contract, which purported to be between the two corporations but which was signed by the individual parties with no indication of representative status, called for the performance of brokerage services. In response to the complaint filed by appellants, appellees answered and moved to dismiss on several grounds. The trial court’s order granting the motion to dismiss is silent concerning the ground on which it issued, but it is abundantly clear from the transcript of the hearing that the only issue presented was that of personal jurisdiction under the Long Arm Statute.

1. As to the count of the complaint alleging breach of the contract which made Dora-Clayton Forjay’s national sales representative, the only question is whether Forjay had such minimum contacts with the State of Georgia as to authorize jurisdiction over the defendants under OCGA § 9-10-91. The record shows that Dora-Clayton acted as Forjay’s agent here and transacted business here for Forjay. Its activities in this forum for Forjay brings this case within the ambit of Pascavage v. Can-Do, 178 Ga. App. 566 (344 SE2d 261) (1986). There, as here, the plaintiff was engaged in sales as the defendant’s agent, and this court found that activity to constitute sufficient contacts by the defendant to warrant exercise of personal jurisdiction. Forjay’s other arguments against the exercise of jurisdiction over it boil down to an assertion that it would be inconvenient for it to defend a suit in Georgia and that exercise of jurisdiction would therefore offend traditional notions of fairness and substantial justice. We find no merit to that argument. This is a suit involving a contract under which business was transacted in Georgia between residents of Georgia (buyers of advertising time) and a South Carolina corporation. That amounts to Forjay purposefully availing itself of the privilege of doing business in this state, and satisfies traditional notions of fairness and substantial justice. Coopers & Lybrand v. Cocklereece, 157 Ga. App. 240 (1) (276 SE2d 845) (1981). We hold, therefore, that the trial court erred in dismissing the first count of the complaint.

2. As to the second count of the complaint, we reach a different conclusion. For the courts of this state to exercise jurisdiction over the person of a nonresident under the Long Arm Statute on the basis that the defendant transacted business in this state, the cause of action must arise from the transaction of business here. See Wise v. State Bd. &c. of Architects, 247 Ga. 206 (2) (274 SE2d 544) (1981). The second count of the complaint in this case alleges that the individual parties entered into a contract under which Haight would act as a broker to find a buyer for part or all of Maurer’s interest in a radio station, or to find financing for the purchase of an interest in another station. The record shows that all the radio stations involved are in South Carolina, that Maurer executed the contract in South Carolina, and that none of the negotiations were conducted in Georgia. This cause of action is not directly related to the business transacted in Georgia on Forjay’s behalf by Dora-Clayton, and there has been no showing that Maurer transacted any business in Georgia in connection with this cause of action. Under the holding in Wise, therefore, there is no basis for the exercise of long arm jurisdiction over the person of Maurer. There was no error, therefore, in dismissing the second count of the complaint because of a lack of jurisdiction over the person of Maurer.

Decided October 31, 1989.

Shelby A. Outlaw, for appellants.

Daniel A. Haight, pro se.

Drew, Eckl & Farnham, John G. Blackmon, Jr., H. Michael Bagley, Mark W. Buyck, Jr., for appellees.

3. The trial court’s order did not reflect the basis for its dismissal of the complaint and did not state whether the dismissal was with or without prejudice. Since, as appellants complain, such an order could act as an adjudication on the merits of the claim so as to bar a further action against Maurer in the proper forum (Teal v. Reeves, 144 Ga. App. 666 (242 SE2d 328) (1978)), the trial court is directed, upon the return of the remittitur, to enter a new order indicating that the dismissal as to Maurer is for lack of personal jurisdiction.

Judgment affirmed in part and reversed in part.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A1240.
    STUBBS v. THE STATE.
    (387 SE2d 619)
   Benham, Judge.

This appeal is from appellant’s conviction for operating a vehicle with defective equipment in violation of OCGA § 40-8-26. The evidence at trial showed that the turn signals on appellant’s vehicle were not operative and that it was struck from the rear while making a left turn which appellant had signaled by use of a hand signal.

Appellant’s argument on appeal, as it was at trial, is that a conflict between OCGA § 40-8-26 and OCGA § 40-6-124 prevents his conviction. OCGA § 40-8-25 requires that all motor vehicles manufactured after 1954 be equipped with mechanical or electrical turn signals. OCGA § 40-8-26 requires that the turn signals be maintained in good working condition. OCGA § 40-6-124 provides in subsection (a) that turn signals may be given either by hand or by signal lamps except as provided in subsection (b). That subsection reads as follows: “Any motor vehicle in use on a highway shall be equipped with, and a required signal shall be given by, signal lamps when the distance from the center of the top of the steering post to the left outside limit of the body, cap, or load of such motor vehicle exceeds 24 inches, or when the distance from the center of the top of the steering post to the rear limits of the body or load thereof exceeds 14 feet. The latter measurement shall apply to any single vehicle and also to any combination of vehicles.” It was stipulated at trial that the measurements of appellant’s vehicle were such as to exclude it from the ambit of subsection (b).

According to appellant, there is a conflict between OCGA §§ 40-8-26 and 40-6-124 (b) in that the former requires the maintenance in good order of signal devices on all motor vehicles and the latter excuses from that requirement vehicles of a certain size. He concludes, then, that since his vehicle was excused by § 40-6-124 (b) from the requirement of being eqiupped with signal lamps, he could not justly be convicted of violating § 40-8-26. We find that argument unavailing for the simple reason that its basic premise, that there is a conflict between the statutes, is incorrect.

“ ‘Penal laws should be construed strictly, but they should not be so construed as to defeat the obvious intention of the General Assembly.’ [Cit.]” Gazaway v. State, 9 Ga. App. 194, 197 (70 SE 978) (1911). The obvious legislative intent of OCGA § 40-6-124 was to require that large vehicles use signal lamps to signal turns rather than using hand signals which might not be seen. Even construing the statute strictly against the State, we do not find it susceptible of the interpretation appellant has advanced. Limiting the use of hand signals in no way impacts on the requirement in OCGA § 40-8-26 that turn signals be maintained in working order. There being no conflict between the statutes, and the evidence demanding a finding that appellant operated his vehicle in violation of OCGA § 40-8-26, there was no error in finding appellant guilty. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.

Decided October 31, 1989.

Cramer, Weaver & Edwards, Christopher C. Edwards, for appellant.

John T. Newton, Jr., Solicitor, for appellee.


text:
    A89A1312.
    MILLER v. ECONOMY TRADING & LIQUIDATING, INC.
    (387 SE2d 620)
   Benham, Judge.

This action arises out of an agreement by appellant to purchase water-damaged yarn from a salvage company. In August 1987, a flood in the carpet mill of Queen Carpet of Dalton damaged a substantial amount of yarn. Tests conducted by an underwriting salvage firm and Queen Carpet revealed that the average excess moisture was 6.8 percent for the spun yarn and 5.1 percent for the filament yarn.

Appellee is in the business of liquidating claims in conjunction with insurance losses. It buys damaged products, then finds a market in which to sell them. Contacted about the wet yarn, and informed by the salvage company with which it regularly did business that the insurance company and Queen Carpet had settled on an excess moisture factor, appellee began trying to find a market for the wet yarn. After it received several bids on the wet yarn, appellee contacted appellant about the availability of the wet yarn. An agent of appellee testified that he told appellant the insurance company was allowing an excess moisture content of 5.8 percent on the spun yarn and 6.1 percent on the filament yarn, but appellant testified that the agent said there was excess moisture of 6.1 percent. Appellee put on evidence that it did not expressly guarantee or warrant the actual moisture content and that appellant was told that the yarn would be sold “As is — Where is.” After requesting and receiving a one-hour extension of time to bid on the wet yarn, appellant went to Queen Carpet to see the yarn but was unable to fully inspect the yarn because it had already been recased and loaded onto trailers for shipping. Without inquiring further about the condition of the yarn, appellant submitted a bid which appellee accepted. Appellant testified at trial that when he began unloading the yarn, it appeared to be wetter than had been represented to him, so he decided not to purchase it, notified appellee of his decision, and stopped payment on the check he had given in payment. Since the yarn already had been unloaded into appellant’s warehouse, appellee attempted to work out an acceptable agreement, but when no agreement could be reached, appellee began contacting other potential buyers about the yarn. Appellee put on testimony at trial that it had to act quickly because wet yarn deteriorates very rapidly. Almost two weeks later, appellee loaded the yarn back onto its trailers and sold it the next day for a total price more than $18,000 less than appellant had agreed to pay.

Appellee sued appellant to recover the difference between the contract price and the resale price plus incidental expenses, and appellant counterclaimed, alleging fraud on the part of appellee. At trial, appellant moved unsuccesssfully for a directed verdict at the close of plaintiff’s evidence. At the close of all the evidence, appellee moved for a directed verdict on appellant’s counterclaim. The court granted that motion, and the jury returned a verdict in favor of appellee in the amount of $13,577.26. The appeal is from the judgment subsequently entered in that amount.

1. Appellant alleges that the trial court erred in denying his motion for directed verdict made at the close of plaintiff’s case. The motion was made on the ground that appellee rescinded the contract when it resold the yarn. Appellee contends that when it became apparent that appellant was not going to purchase the yarn, the yarn was resold to keep it from deteriorating any further.

The standard of review of the trial court’s denial of a motion for directed verdict in a civil case is the “any evidence” standard. Leader Nat. Ins. Co. v. Kemp & Son, 189 Ga. App. 115 (5) (375 SE2d 231) (1988). There was substantial evidence from which the jury could conclude that appellee resold the yarn only because appellant had wrongfully rejected it and that appellee had made no intentional misrepresentations. The jury could therefore find that the contract was neither rescinded by mutual consent under OCGA § 13-5-7, nor by fraud under OCGA § 13-4-60. We find that the trial court did not err in denying appellant’s motion for a directed verdict.

2. Appellant’s second enumeration of error is that the trial court erred in granting appellee’s motion for directed verdict on appellant’s counterclaim. “ ‘ “To recover in tort for fraud the plaintiff must prove five essential elements: (1) That the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.’” [Cits.]” Hall v. Rome Auto. Co., 181 Ga. App. 621 (1) (353 SE2d 542) (1987). The trial court ruled that appellant failed to establish elements 2, 3, 4, and 5. The agent of appellee who dealt with appellant testified that he neither saw nor tested the yarn, but merely relayed to appellant the information which he had been given by the salvage firm and told appellant where the yarn could be inspected. He testified further that that was not unusual since appellee does over 80 percent of its business by telephone without ever seeing the particular commodity involved. There was no evidence that appellee knew the representations made as to moisture content were false or that appellee was reckless in making the representations. There was also no evidence that appellee intended to deceive appellant with the representations. Appellee merely passed along the information which it had received. Thus, the requisite intent to deceive was not demonstrated.

Decided October 31, 1989.

Edward L. Adams, for appellant.

Bates, Kelehear & Starr, Harlan M. Starr, for appellee.

“ ‘Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. (Cits.)’ ” Koppar Corp. v. Robertson, 186 Ga. App. 856 (4) (368 SE2d 807) (1988). There is no conflict in the evidence that appellee did not know the representations about the moisture content of the yarn were false, and that appellee did not intend to deceive appellant. The trial court correctly directed a verdict in appellee’s favor on the fraud count on appellant’s counterclaim.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A1393.
    NORTH GEORGIA HOME CONSTRUCTION COMPANY, INC. v. LACKEY et al.
    (388 SE2d 766)
   Benham, Judge.

Appellant brings this appeal from the trial court’s denial of appellant’s motion to open default or, in the alternative, to set aside the judgment entered against appellant.

The trial court entered a judgment on August 15, 1988, in which it made a monetary award in favor of appellees and found that appellant was in default; that the default had not been opened as a matter of right or by court order; that appellant had been properly served with process; and that the issue of damages had been tried before the court without the intervention of a jury. Appellee filed its motion to open default and/or to set aside the judgment two months later, and the motion was denied January 23, 1989. This appeal followed.

1. Because OCGA § 5-6-35 (a) (8) requires that appeals taken from orders denying a motion to set aside a judgment are discretionary and appellant did not follow the applicable procedure to secure appellate review of the denial of his motion to set aside, we cannot entertain that portion of this appeal. Folks, Inc. v. Agan, 177 Ga. App. 480 (340 SE2d 26) (1986).

Decided October 31, 1989.

Bates, Kelehear & Starr, J. Raymond Bates, Jr., for appellant.

J. Tracy Ward, for appellees.

2. “‘[Appellant’s] motion to open default, made after entry of final judgment, was properly denied. The provisions of OCGA § 9-11-55 (b) regarding the opening of default became inapplicable upon entry of a final judgment. [Cits.]’ ” Anderson v. Bibb Supply Co., 188 Ga. App. 817 (374 SE2d 556) (1988).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A1458.
    SMITH v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (387 SE2d 623)
   Benham, Judge.

This appeal from a declaratory judgment action comes in the aftermath of the Supreme Court’s decision in Metropolitan Property &c. Ins. Co. v. Mr. Pride of Atlanta, 258 Ga. App. 770 (374 SE2d 82) (1988). Appellant, a partner in a car wash business at the time in question, was involved in a collision while driving a vehicle to the vehicle owner’s home from the car wash where it had been washed. Appellee State Farm Mutual Automobile Insurance Company (State Farm) had issued policies of insurance to appellant and to the owner of the vehicle appellant was driving. Each policy contained an “automobile business” exclusion. Appellant’s policy stated “[t]here is no coverage for non-owned cars . . . being repaired, serviced or used by any person while that person is working in any car business . . . ,” and the vehicle owner’s policy stated that it did not cover the insured vehicle while it is “being repaired, serviced or used by any person employed or engaged in any way in a car business . . . .” Each policy defined “car business” as “a business or job where the purpose is to sell, lease, repair, service, transport, store or park land motor vehicles or trailers.” Relying on the decision in Mr. Pride, supra, the trial court concluded that the automobile business exclusionary clauses included car washing and were not contrary to public policy, and granted appellee’s motion for summary judgment.

Due to the Supreme Court’s decision in Mr. Pride, it is not questioned that the act of washing the vehicle fell within the exclusion. Appellant initially contends the trial court erred in granting summary judgment to appellee because the decision in Mr. Pride, upon which the trial court relied, is factually distinguishable. In the case at bar, the collision occurred off the car washing premises while the vehicle was being driven at the request of the owner, who was unable to return for the vehicle. In Mr. Pride, the car was being driven by a Mr. Pride employee on the car wash premises. However, the exclusionary clauses require us to focus upon the employment, at the time of the collision, of the person in whose charge the vehicle was at the time of the collision, not the site of the collision. Appellant, although not involved in the actual washing of vehicles at the time of the collision because he had previously suffered a heart attack, was a part owner of the car washing business. He had called the vehicle owner to inform her it was ready and had agreed, when she expressed her inability to retrieve the vehicle, to drive it to her home, a service he provided infrequently. The automobile business exclusions cover the act of an employee or agent of a car business in returning a vehicle to its owner after completion of the car business. U. S. Fidelity &c. Co. v. Boyette, 129 Ga. App. 843, 846 (201 SE2d 660) (1973). The decision in Boyette, where a service station operator agreed, as an accommodation to his customer, to return the vehicle to its owner after servicing, appears to be an implicit holding that as a matter of law the delivery of vehicles is an integral part of a car business. The fact that appellant did not himself work on the vehicle does not invalidate the automobile business exclusions of the policies in question. See Northwestern &c. Cas. Co. v. Safeco Ins. Co., 121 Ga. App. 209, 211 (173 SE2d 407) (1970). Thus, the trial court did not err in granting summary judgment to appellee.

Decided October 31, 1989.

Glover & Davis, R. Keith Prater, for appellant.

Beck, Owen & Murray, Samuel A. Murray, Randy J. Ebersbach, Freeman & Hawkins, Warner S. Fox, for appellee.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A1503.
    TRIPLE A DISTRIBUTION v. CARRIER REPS, USA, INC.
    (387 SE2d 624)
   Pope, Judge.

This suit arose out of a claim based on a contract between plaintiff Triple A Distribution (hereinafter “Triple A”) and defendant Carrier Reps, USA, Inc. (hereinafter “Carrier”) pursuant to the terms of which plaintiff was to haul by truck Southern Bell telephone directories. Plaintiff subsequently assigned the account to Advance Financial Corporation (hereinafter “Advance Financial”), a factoring company. A dispute arose when defendant refused to pay certain charges relating to the pulling of empty trailers from the distribution sites back to the printing facility. Following negotiations, defendant sent a check for less than the requested amount to Advance Financial. According to the trial court’s order, the check had the following language typed on the back: “WITH ENDORSEMENT THIS ACKNOWLEDGES PAYMENT IN FULL OF ALL INVOICES AND INDEBTEDNESS.” A copy of the check, as well as various documents attached to it, were forwarded to plaintiff. The check was negotiated by Advance Financial. Approximately one year later plaintiff initiated the present action against defendant seeking in excess of $10,000 for monies it alleged were still owed under the terms of the contract. The trial court found that there had been an accord and satisfaction of the debt owed and entered judgment in favor of the defendant.

1. Plaintiff first argues that the defendant failed to prove its defense of accord and satisfaction. Although plaintiff did not include a transcript of the proceedings below, the trial court’s order clearly states that, pursuant to the agreement of the parties, the court considered the case only on the limited issue of accord and satisfaction, and that the parties presented testimony by their representatives, introduced documentary evidence and presented argument to the court on this issue. Because of plaintiff’s failure to have prepared a transcript of these proceedings, it is impossible for us to address its specific arguments about what was and was not proved in regard to defendant’s accord and satisfaction defense. “The burden is upon the appellant to demonstrate error affirmatively from the record. In the absence of a transcript, it is presumed the evidence was sufficient to support the judgment.” (Punctuation and citation omitted.) Georgia Hospitality &c. v. Harrison Advertising, 181 Ga. App. 163 (351 SE2d 489) (1986). See also Lawson v. Watkins, 188 Ga. App. 245, 246 (372 SE2d 830) (1988).

2. Plaintiff also contends the trial court acted in excess of its authority by ordering plaintiff’s counsel to pay attorney fees to defendant for its counsel’s time in preparing a proposed pre-trial order after plaintiff’s counsel failed to prepare a pre-trial order despite being ordered to do so by the trial court. Uniform Superior Court Rule 7.1 provides, in relevant part, as follows: “Failure of counsel to appear at the pre-trial conference without legal excuse or to present a proposed pre-trial order shall authorize the court to remove the action from any trial calendar, enter such pre-trial order as the court shall deem appropriate, or impose any other appropriate sanction, except dismissal of the action with prejudice.” (Emphasis supplied.) Although no transcript of the hearing on defendant’s motion for sanctions is included in the record, it appears from the trial court’s order awarding sanctions that plaintiff’s counsel stated that except for his work load he had “no excuse” for failing to submit a pre-trial order and that he acknowledged that defendant’s attorney had made several unsuccessful attempts to contact him on this matter. Under these circumstances and pursuant to the broad discretion granted the trial court by the plain and unambiguous language contained in Uniform Rule 7.1, we agree that the award of attorney fees to be paid by plaintiffs counsel to defendant was authorized and the trial court did not abuse its discretion in so ordering.

Decided October 31, 1989.

Fowler, Hein & Daum, Douglas R. Daum, for appellant.

T. Jackson Bedford, Jr., for appellee.

Judgment affirmed.

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


text:
    A89A1543, A89A1544.
    FLOYD v. J. C. PENNEY CASUALTY INSURANCE COMPANY; and vice versa.
    (387 SE2d 625)
   Benham, Judge.

Appellant/cross-appellee Floyd was injured when she slipped and fell while approaching her automobile. She filed suit after her automobile insurance carrier (appellee/cross-appellant J. C. Penney Casualty Insurance Company) denied her request for personal injury protection (PIP) benefits. Perceiving the issue as one of law, we granted both parties’ applications for interlocutory review after the trial court denied both parties’ motions for summary judgment.

1. Ms. Floyd seeks recovery for injuries she sustained when she twisted her ankle and fell as she walked toward her car at an automobile dealership where she had left her car for servicing. After she had paid her bill for the servicing, Ms. Floyd waited for her car to be driven to the customer area. An employee of the dealership drove the vehicle to the area where Ms. Floyd was waiting. He exited the vehicle, and Ms. Floyd fell as she walked toward her automobile. It is undisputed that she was approximately eight feet from her vehicle at the time she fell.

Under the Georgia Motor Vehicle Accident Reparations Act (OCGA § 33-34-1 et seq.), the insurer of a motor vehicle is required to pay basic no-fault benefits without regard to fault for economic loss resulting from accidental bodily injury sustained by the insured while occupying any motor vehicle within the United States. OCGA § 33-34-7 (a) (1). “ ‘Accidental bodily injury’ means bodily injury . . . arising out of the operation, maintenance, or use of a motor vehicle which is accidental as to the person claiming basic no-fault benefits . . . .” OCGA § 33-34-2 (1). “ ‘Occupying’ means to be in or upon a motor vehicle or engaged in the immediate act of entering into or alighting from the motor vehicle.” OCGA § 33-34-2 (8). The initial question to be addressed, and the one to which each party brings a different answer, is whether, under Georgia law, Ms. Floyd was “occupying” the vehicle insured by J. C. Penney at the time she sustained her injuries. See Kelley v. Integon Indem. Corp., 253 Ga. 269 (320 SE2d 526) (1984).

There is no dispute that Ms. Floyd was not “in or upon [her] motor vehicle” when she fell. However, Ms. Floyd maintains that she was “engaged in the immediate act of entering into . . . [her] motor vehicle” when she was injured, a contention with which her insurance company disagrees. Without discussion, this court recently opined in Cole v. New Hampshire Ins. Co., 188 Ga. App. 327 (373 SE2d 36) (1988), that a woman who slipped and fell while walking to her car, striking her arm on her vehicle’s fender, was not “engaged in the ‘immediate’ act of entering into” her car. Id at 329. In an effort to avoid a case-by-case appellate analysis of what constitutes “the immediate act of entering into ... a motor vehicle,” we will herein endeavor to define that term, keeping in mind that the terms are plain, unambiguous, and deserving of their ordinary meaning.

“Enter” is defined in Webster’s New International Dictionary (2d ed.) (unabridged) (1961) as “[t]o ... go into; to pass into the interior of; to pass within the outer cover or shell of. . . .” We conclude that it requires direct physical contact between the claimant and the insured vehicle attendant to gaining entry to the vehicle, or the claimant actually having placed a portion of his/her body in the vehicle. While not enunciating a standard, the court in Cole, supra, implicitly applied to the facts of that case a standard similar to the one we have set forth today. We note that the act of entering a vehicle is distinguished from the act of approaching the vehicle (see Gleason v. Merchants Mut. Ins. Co., 589 FSupp. 1474 (D.R.I. 1984)), as well as from the act of preparing to enter the vehicle (see King v. Aetna Cas. &c. Co., 325 NW2d 528 (Mich. CA 1982). The statutorily-imposed requirement of immediacy makes Georgia’s mandatory coverage more limited in scope than in other states where coverage is not limited in such a manner. See State Farm &c. Ins. Co. v. Holmes, 175 Ga. App. 655 (333 SE2d 917) (1985) (Judge Beasley dissent).

Ms. Floyd maintains that she was engaged in the immediate act of entering her vehicle from the time she started toward her vehicle. However, such a position is governed by the putative insured’s subjective intent to enter, and under the same rationale, there would be coverage despite the geographic distance separating the claimant and the vehicle, so long as the subjective intent were present. “[T]o carry her argument to its inevitable extreme, coverage would inhere ... if she was [approaching from] fifty feet away, a mile or two away, a continent away — so long as she claimed to be enroute to her car. That would be an absurd and inequitable extension of coverage. . . .” Gleason, supra.

Decided October 31, 1989.

George P. Graves, for appellant.

Murray, Temple & Dinges, William D. Strickland, for appellee.

Since, when she fell, Ms. Floyd was neither in direct physical contact with her vehicle nor had a portion of her body within the car, she was not occupying the vehicle. Therefore, her injuries were not sustained in an insured event under OCGA § 33-34-7 (a), and summary judgment should have been granted appellee/cross-appellant J. C. Penney. Ms. Floyd’s reliance on Hartford Accident &c. Co. v. Booker, 140 Ga. App. 3 (230 SE2d 70) (1976), is misplaced inasmuch as that case revolves around the use of the vehicle, not whether Booker was occupying the vehicle. Jones v. Transamerica Ins. Co., 154 Ga. App. 408 (268 SE2d 444) (1980), also relied upon by Ms. Floyd, was disapproved by our Supreme Court in Kelley v. Integon Indem. Corp., supra.

2. We need not address Ms. Floyd’s remaining enumerations of error inasmuch as they have been rendered moot by our holding in Division 1.

Judgment affirmed in Case No. A89A1543. Judgment reversed in Case No. A89A1544.

Deen, P. J., and Birdsong, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A1478.
    WINN-DIXIE ATLANTA, INC. v. COUCH et al.
    (387 SE2d 590)
   McMurray, Presiding Judge.

Cecil Wayne Couch, an employee of Automatic Icemaker Company, suffered an on-the-job injury while on the premises of WinnDixie Atlanta, Inc. (“Winn-Dixie”). Couch received workers’ compensation benefits through his employer and filed a tort action against Winn-Dixie. Winn-Dixie denied the material allegations of the complaint and subsequently filed a motion for summary judgment. A major argument asserted by Winn-Dixie was that it was Couch’s statutory employer under OCGA § 34-9-11.

The undisputed evidence showed that on May 28, 1985, WinnDixie was in the final stages of a remodeling and renovation project at its “Winter’s Chapel Road” grocery store when an ice machine, which had been installed by Winn-Dixie employees as part of the renovation project, was not functioning. Winn-Dixie did not have the resources to diagnose the malfunction and, as a consequence, one of WinnDixie’s “installation supervisors . . . authorized subcontracting assistance from Automatic Icemaker Company. ...” Automatic Icemaker Company sent Couch to investigate the problem and, while attempting to provide power to the ice machine, Couch fell through a dropped ceiling and onto a tile floor, sustaining serious injury.

The trial court denied Winn-Dixie’s motion for summary judgment and Winn-Dixie filed an application for appeal pursuant to OCGA § 5-6-34 (b). We granted the appeal to determine whether Winn-Dixie is immune from tort liability as the statutory employer of Couch. Held:

“In Wright v. M. D. Hodges Enterprises, 183 Ga. App. 632 (359 SE2d 700) (1987), this court reviewed the criteria by which a statutory employer could be identified and noted that the rule set forth in Modlin v. Black & Decker Mfg. Co., 170 Ga. App. 477 (317 SE2d 255) (1984), created some confusion for the Eleventh Circuit in McCorkle v. United States, 737 F2d 957, 961 (11th Cir., 1984), because that court was unable to determine whether Georgia wanted the ‘contractor/not a contractor bright line rule’ or an ‘owner plus’ or ‘circumstances of the case’ rule. Wright held that it intended to apply both rules. ‘If the owner is “merely in possession or control” of the premises upon which the employee of a company under contract to the owner is injured, then the so-called “bright line” rule would apply . . . if . . . the owner is not “merely in possession or control of the premises” but is actively [involved] in the enterprise in which the employee was injured, then the circumstances of the particular case should determine whether the owner is a statutory employer of the injured employee.’ Id. at 633.” Whitehead v. CHP, Ltd., 192 Ga. App. 417, 418 (385 SE2d 124) (1989). Compare Dross v. Southern Airways, 170 Ga. App. 481 (317 SE2d 300), where the occupier of the premises was not a principal contractor.

In the case sub judice, the evidence shows that Winn-Dixie was acting as its own general contractor, employing a “maintenance superintendent” and “three installation supervisors” to direct the renovation project. Winn-Dixie employees installed much of the equipment on the project and sub-contractors were brought in to install other equipment and fixtures. In fact, the ice machine that Couch was working on was set in place by Winn-Dixie employees and WinnDixie employees were assisting Couch before he fell. This evidence, and other undisputed evidence showing that Couch’s employer was a sub-contractor of Winn-Dixie, required a finding that Winn-Dixie was Couch’s statutory employer. See Wright v. M. D. Hodges Enterprises, 183 Ga. App. 632, (359 SE2d 700) (1987) and Whitehead v. CHP, Ltd., 192 Ga. App. 417, supra. Consequently, the trial court erred in failing to grant Winn-Dixie’s motion for summary judgment.

Decided October 17, 1989.

Rehearing denied November 1, 1989

Fain, Major & Wiley, Gene A. Major, Bruce A. Maxwell, for appellant.

Robert A. Falanga, Ronald F. Chalker, Jesse E. Barrow III, for appellees.

Judgment reversed.

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