text:
    A94A0721.
    DUNAWAY v. COLUMBIA COUNTY.
    (447 SE2d 31)
   Birdsong, Presiding Judge.

Robert H. Dunaway appeals the verdict and judgment awarding $289,000 for 100 acres taken by Columbia County, Georgia, from a 1,000-acre tract. No consequential damages were awarded. The special master’s award had been $350,000 for the 100 acres taken and consequential damages to the remainder of $7,500; appellant contends there was evidence of comparable sales for $4,500 per acre and $6,000 per acre. Held,'.

1. Appellant contends the trial court erred in permitting three condemnor’s witnesses to testify that the value of the 100 acres taken was the difference between the value of the whole 1,000-acre tract before the taking and the value of the remainder after the taking; in other words, as the condemnor contended, to determine the value of the part taken, “you determine the value of the whole, then you determine the value of the part taken, and then you determine if there was any damage to the remainder.”

2. Appellee contends the condemnee waived objections to this testimony. The record shows that appellant withdrew his objection to the first witness’ testimony to let the witness answer the question, but he moved to strike the second witness’ testimony to the same effect and was overruled; he moved to strike the third witness’ testimony to the same effect although the trial court did not rule on the motion. In Mable v. State, 261 Ga. 379, 381 (405 SE2d 48), the Supreme Court held: “There is a distinction between ‘illegal’ evidence and ‘secondary’ evidence. ‘A motion to rule out testimony illegally admitted even without objection is never too late until the cause is finally submitted to the jury.’ Blount v. Beall, [95 Ga. 182, 189 (22 SE 52)]. (Emphasis supplied.)” In Mable, the challenged testimony was error of constitutional dimension. “Accordingly, the defendant was entitled either to object to it contemporaneously or to move to strike it at any time before the case was submitted to the jury.” Id. See also Patton v. Bank of LaFayette, 124 Ga. 965, 974 (53 SE 664), cited by the Supreme Court in Mable, and see other cases cited in the dissent in Mable v. State, 197 Ga. App. 751, 753-754 (399 SE2d 509).

In Mable, the motion to strike was made as to the same witness’ testimony which was earlier not objected to. In this case, the motion to strike was made as to a different witness. But we see no material difference in Mable and this case, for the error was of constitutional proportions.

In this case, as held in Division 3, infra, evidence that the value of the property taken is determined by calculating the difference between the value of the whole and the value of the remainder after the taking, is illegal error of constitutional dimension, since it results in a taking without just and adequate compensation for the property taken. Appellant moved to strike this evidence; the fact that he had withdrawn his objection when it was first offered did not change its character as illegal evidence. It was error of “constitutional dimension” and could be objected to at any time before the case was given to the jury. Mable, 261 Ga. at 381. Appellant’s withdrawal of his objection to this illegal evidence so as to let the witness answer is not a “waiver” (see London v. Bank of the South, 170 Ga. App. 44, 48 (315 SE2d 924)) such as could render the evidence legal. Appellee condemnor cites no authority on appeal for its contention that appellant waived his objections to this evidence, so we will not find a waiver in the face of the Supreme Court’s Mable decision.

3. Appellee contends the principle and the evidence objected to — that the value of property taken is determined by calculating the value of the entire tract before the taking and its value after the taking — was upheld in Dept. of Transp. v. Gunnels, 255 Ga. 495 (340 SE2d 12), and that Justice Weltner’s special concurrence in that case properly states that the trier of fact “must determine the value of the condemnee’s interest before the taking; and it must determine the value of such interest, if any, as shall remain after the taking.” Id. at 499.

Appellee/condemnor is incorrect in saying the Supreme Court in Gunnels upheld the charge that the value of the part taken is determined by calculating the value of the whole before the taking, less its value (i.e., the remainder’s value) after the taking. The condemnor complained in Gunnels that a jury charge to this effect allowed a double recovery on consequential damages to the remainder. When the case was before us, we were bound by Elliott v. Fulton County, 220 Ga. 377, 381 (139 SE2d 312) to approve a charge that the measure of damages for the value of the part taken (not consequential damages to the remainder) was the difference between the market value “of the whole lot” just before the taking and the market value “of the whole lot” immediately after the taking. Dept. of Transp. v. Gunnels, 175 Ga. App. 632, 633 (334 SE2d 197). On certiorari, the Supreme Court overruled its decision in Elliott v. Fulton County, supra, thus reversing our decision in Dept. of Transp. v. Gunnels, supra at 175 Ga. App. 632. The Supreme Court agreed with the views expressed by then-Judge Carley in his special concurrence in our decision, viz., that “ ‘[i]f the market value of the “whole lot immediately after the taking” is deemed to be the market value of the remainder immediately after the taking . . . the [result would be] a figure which already represents the diminution in the market value of the remainder.’ ” Dept. of Transp. v. Gunnels, supra, 255 Ga. at 496.

The concept propounded by the condemnor’s witnesses is related to the calculation of consequential damages. It is not a proper standard for calculation of the value of the property taken. In Bland v. Bulloch County, 205 Ga. App. 317, 318 (422 SE2d 223), cert. denied, the trial court charged: “ ‘In order to determine [the value of the part taken you should determine] the fair market value of the entire tract of property [the condemnee] owned before any of it was taken, and then you should . . . determine the fair market value of what was taken . . . considering that part that was taken as part of the whole.’ ” A majority of this court said the jury could understand “that the relationship between the part taken and the whole from which it was taken must be the basis upon which the fair market value of the part taken was calculated.” Id. We held this was wrong because the charge restricted the jury to a pro rata valuation of the property taken which is “not necessarily proper because the value of the part taken is not dependent on the size of the whole. If, for example, the 15-acre strip was taken from 105 acres (1/7 of the whole) rather than from 75 acres (1/5 of the whole), the pro rata method could result in a lower value simply because of the size of the whole. ... In addition, the pro rata method does not accommodate variations in the value of different parts of a tract. . . . The pro rata method averages the value of whatever the condemnee happens to own, rather than measuring the value of the taken portion as it is, with its unique characteristics and particular setting. . . . The value of the part taken is not automatically measured by the size of the parcel from which it is taken, although the value of the part taken may be derived in part by the nature of the land around it because the setting affects the highest and best use of the taken property.” (First emphasis supplied.) Id. at 319.

The dissent in Bland contended the charge did not calculate the value of the part taken by determining the value of the condemnee’s property before and after the taking; the dissent contended the charge resembled that in Rucker v. Dept. of Transp., 188 Ga. App. 283 (372 SE2d 839), that the value of land taken is not necessarily the same for a small lot as for a small strip from a larger tract. Id. at 284. This statement is obviously true, but is a very different thing from determining the value of land taken by determining the remainder of the condemnee’s contiguous property without it.

A valuation which determines the value of a tract taken by determining the value of the remainder of the condemnee’s contiguous property after the taking may lead to a double recovery on consequential damages or, as may have happened in this case, to a finding that the diminution in value to the remainder is the value of the part taken (Dept. of Transp. v. Gunnels, supra, 255 Ga. at 496), with the jury not awarding any consequential damages because it wisely realizes that it has, in valuing the property taken, already awarded “consequential damages.” Whether this idea is expressed as a “pro rata valuation” (Bland, supra), or as an assessment of “the whole lot after taking” (see Dept. of Transp. v. Gunnels, supra at 175 Ga. App. at 633, rev’d at 255 Ga. 495, 496, supra), it is not a determination of the value of the part taken but instead “ ‘represents the diminution in the market value of the remainder.’ ” Dept. of Transp. v. Gunnels, supra, 255 Ga. at 496.

The condemnor’s experts testified that the value of the 100 acres taken was the difference between the value of 1,000 acres and the remainder’s value after the 100 acres were taken. This testimony established the value of the part taken by assessing “the diminution in the market value of the remainder.” (Emphasis deleted.) Id. This valuation is nothing more than repeal of the law of just and adequate compensation for property taken, so that the condemnor of a small strip of land attached to a larger strip would pay only consequential damages, i.e., the diminution in value of the remainder.

The trial court erred in failing to strike the testimony of the expert witnesses in this vein wherever appellant objected to it. This valuation of “the property taken” is illegal, and appellant did not waive his objections to this illegal and unconstitutional evidence by allowing one expert to state his answer to the question. This evidence was prejudicial because it deprived the condemnee of just and adequate compensation for the value of the property taken at the time of the taking. As the jury’s award was consistent with the valuation given by these witnesses and inconsistent with other evidence in the case, it cannot be said that the error was harmless. The trial court erred in denying appellant’s motion for new trial.

4. Appellant contends the trial court erred in overruling his objections to testimony of the condemnor’s witnesses about the benefit to the remainder of the condemnee’s property from an unrelated future sewer project. This evidence was incompetent to prove the value of the part taken at the time of taking, or the consequential damages to the remainder at the time of the taking, because it attempts to show that the value of the remainder would increase in the future for reasons not directly related to the taking of the 100 acres. In view of the remand for new trial in Division 1, however, we need not determine whether this error was created by appellant’s introduction of such evidence himself, or whether this or any other error in the case was harmful to this verdict.

Judgment reversed.

Cooper and Blackburn, JJ., concur.

On Motion for Reconsideration.

Condemnor insists its witnesses appraised “fair market value of the property taken.” Condemnor thus insists that we approve an illegal, nonprobative method of appraisal.

Condemnor’s witness Reese did not value the 100 acres taken as a separate economic unit because “I’m supposed to estimate the value of the property actually taken as a part of the whole.” He said: “Under the Georgia law we . . . consider the value of the property before the [taking] and the value of the property remainder immediately after the [taking].” He valued condemnee’s 1,000 acres at $2,145,000: 725 acres back land at $2,000 per acre; 280 acres frontage land at $2,500 per acre. He valued the land taken at $250,000, or $2,500 per acre.

Condemnor’s witness Krause valued the 100 acres at $275,000. He “allocated 250 acres of the Columbia Road frontage at $2,750 per acre [and] allocated $2,000 per acre for the [750 acres] rear property . . . for a [total of] $2,191,500. . . .You need to value the property as a whole, and then . . . value the remainder after the [taking].”

The valuations here are worse than those disapproved in Dept. of Transp. v. Gunnels, 255 Ga. 495 (340 SE2d 12) and Bland v. Bulloch County, 205 Ga. App. 317 (422 SE2d 223), as they are merely a means to twice siphon off the fair market value of land taken. Each witness valued the 100 acres of frontage land at the same per-acre value as condemnee’s 250 or 280 acres of frontage property, but first they valued the 720 or 750 acres of “back land” not taken, which negatively affected the value of the frontage. The loss of a small part, however valuable on the fair market, may diminish the value of a large remainder very little or not at all.

A valuation of land taken according to the value of land not taken would be patently ridiculous if the “land not taken” were owned by someone other than the condemnee. It is no less absurd when “land not taken” is owned by the condemnee. A reduction in value of a condemnee’s adjacent land after the taking has nothing to do with the value of the “property taken” at the time of taking. It particularly has nothing to do with actual “fair market” value of the land taken, for this 100 acres would not be sold by the seller or bought by a buyer on a fair market according to value of the seller’s “whole lot” before the sale less the value of his remaining land after the sale.

Some cases, notably Elliott v. Fulton County, 220 Ga. 377 (139 SE2d 312) (overruled by Gunnels), thought this was just another method of arriving at the value of property taken. See State Hwy. Dept. v. Thompson, 112 Ga. App. 488, 490 (145 SE2d 784). But early on, we saw it as wrong. See Ga. Power Co. v. Pharr, 97 Ga. App. 223, 225 (102 SE2d 658), overruled by Elliott. Long before Gunnels and Bland, we said such evidence is “illegal testimony” (Ga. Power Co. v. Sinclair, 122 Ga. App. 305 (176 SE2d 639)); and has “no probative value” as to the value of land taken. State Hwy. Dept. v. Mann, 110 Ga. App. 390, 392 (138 SE2d 610). In State Hwy. Dept. v. Weldon, 107 Ga. App. 98 (129 SE2d 396), we said there was no evidence to support the award because the condemnee’s witness valued the property taken by this method.

Decided April 19, 1994

Reconsideration denied July 13, 1994

Burnside, Wall, Daniel, Ellison & Revell, Thomas R. Burnside, Jr., for appellant.

Powell & Chapin, Richard L. Powell, for appellee.

Gunnels and Bland should have put an end to the campaign to get approval of this method to siphon off fair market value of land taken. Henceforth it shall not be used to prove value or fair market value of property taken. The harm of this illegal, nonprobative, unconstitutional method of valuation will be such as to demand reversal despite other evidence in the case.

The prejudicial error caused by this evidence could not be, and was not, repaired by the trial court’s charge.

Motion for reconsideration denied.


source: Caselaw Access Project

author: Beasley, Presiding Judge.

license: Public Domain

text:
    A94A0803.
    WEBSTER v. BROWN.
    (446 SE2d 522)
   Beasley, Presiding Judge.

Plaintiff Webster appeals from a judgment on a jury verdict in her favor in an action arising from an auto collision that occurred when Brown turned left in front of the vehicle carrying Webster as a passenger. Webster suffered neck and back injuries and incurred medical expenses, for which she sought damages against Brown.

1. The jury awarded Webster $10,500, which was reduced in the judgment to $8,000 to reflect personal injury protection payments already received. Webster filed a direct appeal. OCGA § 5-6-35 (a) (6) requires that appeals from damage cases in which the judgment is $10,000 or less be by application. Nonetheless, jurisdiction is proper under OCGA § 5-6-34 (a) (1) because “[i]n a tort action, set-offs to the judgment that arise from some collateral source ... do not help to ascertain the price tag for the injury involved in the action. Therefore, such set-offs should not be considered when deciding whether an application for appeal is necessary.” Bales v. Shelton, 260 Ga. 335, 336 (391 SE2d 394) (1990); see also Lee v. Britt, 260 Ga. 757 (400 SE2d 5) (1991). It is the factfinder’s assessment of the amount that counts. See Brown v. Assoc. Fin. Svcs. Corp., 255 Ga. 457 (339 SE2d 590) (1986).

2. Webster first enumerates as error the trial court’s refusal to allow her evidence of litigation expenses and to submit the issue of litigation expenses to the jury. Webster specially pleaded these damages as required by OCGA § 13-6-11, which establishes when such expenses can be awarded. Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821, 826 (5) (426 SE2d 905) (1992).

Webster attempted to call her attorney to testify about litigation expenses incurred and Brown asked that the jury be excused. A discussion between counsel and the court ensued as to the propriety of attorney testimony and whether litigation expenses could be recovered. The court ruled that there was a bona fide controversy as to both liability and damages and that Webster could not present evidence of litigation expenses. The court stated that if one of Webster’s attorneys testified, that attorney would be precluded from further involvement in the case, a course Webster was apparently prepared to follow.

As a general matter, determination of whether litigation expenses are to be allowed as a portion of damages is a matter for the jury. OCGA § 13-6-11; Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80, 81 (390 SE2d 31) (1990). It is a question of fact whether a defendant has acted in bad faith or has been stubbornly litigious or caused unnecessary litigation and expense where there was no bona fide controversy. Deloitte, Haskins & Sells v. Green, 198 Ga. App. 849, 853 (4) (403 SE2d 818) (1991). Likewise, it is “for the jury to determine whether there was a bona fide controversy,” McDevitt & Street Co. v. K-C Air &c., 203 Ga. App. 640, 645 (5) (418 SE2d 87) (1992), unless the facts preclude such a finding as a matter of law.

Webster does not assert that the facts of this case support a claim based on the “bad faith” provision of OCGA § 13-6-11. Brown’s contention that there was a bona fide controversy as to liability does operate as a defense to a claim on the remaining grounds under the Code section. See Powell v. Watson, 190 Ga. App. 375 (378 SE2d 867) (1989). Webster would argue to the jury that Brown had been stubbornly litigious and caused her unnecessary trouble and expense because he had originally admitted fault and then fabricated a defense. The law is that “[w]here no bona fide controversy exists, ‘forcing a plaintiff to resort to the courts in order to collect is plainly causing him to go to “unnecessary trouble and expense.” (Cit.)’ [Cit.]” Eastern Foods v. Forman, 202 Ga. App. 347, 348 (1) (415 SE2d 1) (1991).

Both Webster and the driver of the car in which Webster was riding testified that Brown admitted at the scene that he was not looking and that the collision was his fault. Brown also pled guilty to the charge of improper left turn. At this trial, Brown testified that the collision did not involve fault on his part, denied that he had admitted fault at the scene, and stated that he pled guilty to the traffic charge to end the matter. Although relevant evidence of negligence, the guilty plea did not establish as a matter of law that Brown caused the collision, for the purposes of this suit. Peacock v. Strickland, 198 Ga. App. 406, 407 (1) (401 SE2d 601) (1991). It is true that this evidence as to liability was successfully rebutted, but it was not so shallow as to demonstrate an absence of a bona fide controversy on this aspect of the case. The evidence would not have supported a finding that there was no bona fide controversy as to liability.

Webster argues that this evidence shows there was no bona fide controversy as to liability and points to Beaudry Ford v. Bonds, 139 Ga. App. 230 (228 SE2d 208) (1976), for the proposition that if a legitimate dispute exists as to damages, but not as to liability, an award of litigation expenses will be justified. The case is inapposite. The evidence here showed a genuine dispute as to liability, even though there were issues of credibility. In Beaudry Ford, the defendant presented no evidence contesting liability but only evidence of damages less than those claimed by the plaintiff. In such circumstances of obstinacy regarding liability, litigation expenses are properly awarded. Southern R. Co. v. Crowe, 186 Ga. App. 244 (366 SE2d 846) (1988).

It also appears that there was a bona fide controversy as to damages. During the discussion of whether evidence of litigation expenses would be presented and whether any bona fide controversy existed, Webster admitted that Brown made settlement offers of $17,500 and $15,000 during the year prior to trial and had kept the offers open. Webster rejected these amounts and offered to settle for $30,000. The jury’s verdict was for $10,500. The fact that Brown had offered to compromise was properly considered on the question of whether litigation expenses were appropriate. Brown v. Baker, 197 Ga. App. 466, 469 (5) (398 SE2d 797) (1990); U-Haul Co. of Western Ga. v. Ford, 171 Ga. App. 744, 745 (2) (320 SE2d 868) (1984). An offer to compromise does not establish liability such that Webster would be entitled to recover for being forced to litigate to prove liability, even were there any suggestion that the offer included an admission of liability. See generally OCGA § 24-3-37; Central Nat. Ins. Co. of Omaha v. Dixon, 188 Ga. App. 680, 682-683 (4) (373 SE2d 849) (1988). Under the circumstances, Webster clearly did not pursue litigation because she was forced to resort to the courts to collect her damages, but rather chose to go to trial in the hope of getting more than the offered amount, which was proven to be not only reasonable but higher than the damages found in fact. Thus, there is no evidence from which a jury could conclude that Brown had caused Webster unnecessary expense or had been stubbornly litigious.

3. Webster also asserts that the court erred in admitting evidence that she was a member of a health maintenance organization (“HMO”), a form of medical insurance. Webster had not made a reference to an HMO in her trial testimony, and any reference she made to it in a deposition is irrelevant because neither the deposition nor what she said in it was entered into evidence. The reference to insurance arose in the following series of questions during Brown’s cross-examination of Webster:

“Q. Now, the day after this accident, I believe you testified that you called the HMO, and you talked to a nurse over there?

“A. Yes, sir.

“Q. What is an HMO?

“A. It’s a health center. I called the health center that I go to, that I did belong, (sic)

“Q. You belonged to a HMO?”

At this point, Webster objected that collateral source information had been placed before the jury and a discussion was had outside the jury’s presence. The judge overruled the objection and Brown did not repeat any reference to an HMO.

It is error to allow evidence of collateral sources and “[o]ur Courts have adhered to the principle that evidence of collateral sources is inherently prejudicial because its infectious nature tends to contaminate the entire trial. [Cits.]” Denton v. Con-Way Southern Express, 261 Ga. 41, 43 (402 SE2d 269) (1991). However, the objection was waived because it was not raised until after several questions about it were asked and answered without objection. Wilson v. Southern R. Co., 208 Ga. App. 598, 604-605 (431 SE2d 383) (1993); Brown v. State, 191 Ga. App. 357, 358 (1) (381 SE2d 543) (1989). This is not a case in which objection was made as quickly as possible during a “very fast exchange” of questions and answers; it appears Webster had opportunity to object to the first or second reference to an HMO. Compare Cross v. State, 196 Ga. App. 714, 716 (397 SE2d 125) (1990). The purpose of the rule requiring timely objection is to enable the trial court to prevent improper information from reaching the jury. Webster’s late objection frustrated this purpose. Moreover, the question objected to was not answered despite the court’s ruling.

4. Webster also asserts the court erred in refusing to allow her to testify as to the cost of an MRI. She was asked by her counsel, “What was the bill for the MRI?,” and responded “It was $1,000,” at which time Brown objected that the best evidence rule would require the bill itself. OCGA § 24-5-4 (a). Counsel attempted to correct the problem with the following questions, to all of which the plaintiff replied in the negative:

Decided July 1, 1994

Reconsiderations denied July 13, 1994

Howard, Jones & Heard, James W. Howard, for appellant.

Blasingame, Burch, Garrard & Bryant, E. Davison Burch, Stephen E. B. Smith, for appellee.

“Q: Mrs. Webster, do you have a copy of the bill for the MRI?

“Q: Do you have a copy with you? . . .

“Q: Mrs. Webster, do you have a receipt for that MRI? The court sustained the objection.”

Webster asserts that the best evidence rule has no application because the fact at issue was not the contents of a document but the underlying cost of the procedure. See Glennville Wood &c. Co. v. Riddlespur, 156 Ga. App. 578, 581-582 (4) (276 SE2d 248) (1980). However, this contention is belied by the questions themselves; each question referred to a document and sought production of the contents of that document. The best evidence rule was properly invoked. Additionally, Webster’s statement that “I had a receipt, I don’t have it anymore,” does not show the diligence required by OCGA § 24-5-2 to introduce secondary evidence. Compare Mulkey v. State, 155 Ga. App. 304, 306 (270 SE2d 816) (1980).

Judgment affirmed.

Andrews and Johnson, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A94A0807.
    GUTHRIE v. DALTON CITY SCHOOL DISTRICT et al.
    (446 SE2d 526)
   McMurray, Presiding Judge.

Plaintiff Guthrie filed this contract and fraud action against defendants Dalton City School District and Dalton City Board of Education. Additional individual defendants who were named in both their individual and official capacity are Thomason, Superintendent of Schools of the Dalton City School District, Maret, Chairperson of the Dalton City Board of Education, and Allred, an attorney who represented the Dalton City Board of Education during the underlying events.

In the spring of 1993, plaintiff was a school teacher with the Dalton city school system, who was little more than one year away from retirement. His employment for the 1993-94 school year which would have been the final year was renewed pursuant to OCGA § 20-2-940, et seq., since the Dalton City Board of Education did not notify him of its intent not to renew his contract. However, complaints accusing plaintiff of unprofessional conduct had been made to the Georgia Professional Practices Commission. These circumstances resulted in the execution on May 27, 1993, of a settlement agreement between the Dalton City Board of Education and plaintiff. This contract was signed by defendant Maret with the approval of the Dalton City Board of Education, albeit that approval was given outside a duly-called meeting open to the public and at no time has the Dalton City Board of Education taken action at a duly-called meeting open to the public authorizing the execution of the settlement agreement.

Under the settlement agreement, plaintiff agreed to voluntarily surrender his teaching certificate to the Professional Standards Commission of Georgia and to waive a panoply of rights. After receiving a facsimile copy of the settlement agreement signed by Maret, counsel for plaintiff transmitted plaintiff’s irrevocable surrender of his educational certificates to the Georgia Professional Practices Commission and Professional Standards Commission on May 27, 1993. None of the defendants have any authority or power to restore plaintiff’s educational certificate which is a prerequisite to eligibility to employment as a teacher in the public schools of Georgia. On May 28, 1993, plaintiff resigned his teaching position with the Dalton City Board of Education.

Under the settlement agreement, the Dalton City Board of Education agreed to employ plaintiff for the 1993-94 school year in a non-certified position if he did not find employment elsewhere by June 21, 1993. Pursuant to this provision, plaintiff requested employment in a non-teaching position for the 1993-94 school year. At the June 25, 1993, meeting of the Dalton City Board of Education, after meeting in executive session, the Board reconvened in regular session and distributed a statement which provides in part: “Before our last Board meeting on June 14, 1993, the members of the Board had agreed with Mr. Guthrie’s request for re-employment. The Board did so without having reviewed the full report of the Professional Practices Commission (PPC) investigation into complaints against Mr. Guthrie. We did not know the specific nature of the allegations and did not realize their extent. At the June 14, 1993 Board meeting, we were asked to review the PPC report and we have done so. The Board had not reviewed the full PPC Report because the Board could have been required to sit as a hearing tribunal to determine the truth or falsity of the allegations.

“Based upon our review of the allegations in the complete PPC report and upon advice of Counsel, we now believe that the question of Mr. Guthrie’s employment should be submitted to a vote. Regarding our initial agreement to re-employ Mr. Guthrie, we have been advised that a 1992 amendment to the Open Meetings Law requires that we vote on the question of re-employment in a Public Meeting. Since that has not been done, we realize the need for the meeting today to vote on this question and to enter the result on the official minutes. . . .”

Action on plaintiff’s employment request was deferred and a decision made to schedule a hearing on the allegations against plaintiff contained in the Georgia Professional Practices Commission report. No such hearing was held as the Professional Standards Commission entered an order, based in part on plaintiff’s May 27, 1993 letter of surrender, which revoked the teaching certificate of plaintiff.

On August 31, 1993, plaintiff’s complaint was filed. As amended, the complaint sought damages for breach of contract, impairment of the obligations of plaintiff’s employment contract, fraud, and attorney fees. Plaintiff also requested certain injunctive relief.

The defendants, other than attorney Allred, moved for a partial summary judgment and plaintiff moved for a partial summary judgment. These opposing motions addressed the issue of the validity and enforceability of the settlement agreement. The movant defendants maintained that the settlement agreement was not binding because entered in violation of the Open Meetings or Sunshine Law, OCGA § 50-14-1 et seq. Plaintiff argued that defendants could not rely on that statute since the 90-day period within which any “formal action” must be contested had passed with no challenge having been commenced. See OCGA § 50-14-1 (b). The movant defendants responded that the events which transpired at the June 25, 1993 meeting of the Dalton City Board of Education were sufficient to provide plaintiff with notice within the 90-day period that the Board would not fulfill the provisions of the settlement agreement. The superior court granted the motion for partial summary judgment of the movant defendants and denied plaintiff’s motion for partial summary judgment. The superior court’s order states alternative foundations for its decision, both based on OCGA § 50-14-1 (b). First, the superior court refers to that portion of this statute which provides that any official action taken at a meeting not open to the public “shall not be binding.” Secondly, the superior court adopts the position argued by movant defendants that the June 25, 1993 meeting provided ample notice to plaintiff of the Board’s intent to repudiate the settlement agreement. Held:

The second sentence of OCGA § 50-14-1 (b) states: “Any resolution, rule, regulation, ordinance, or other official action of an agency adopted, taken, or made at a meeting which is not open to the public as required by this chapter shall not be binding.” (Emphasis supplied.) The next sentence in OCGA § 50-14-1 (b) sets forth a 90-day period within which action must be commenced to challenge any formal action of an agency based on a violation of the Open Meetings Law. Whenever possible we must construe statutory language in a manner that will not render it meaningless or surplusage. Knight v. Ga. Farm Bureau Mut. Ins. Co., 184 Ga. App. 312 (1), 313 (361 SE2d 190). In order for the sentence containing the 90-day period to have any effect, the sentence we have quoted must be read as being limited by the subsequent sentence. Thus, if we assume that the Board’s approval and Maret’s signing of the settlement agreement constituted formal action in violation of the Open Meetings Law, the question becomes whether “[a]ny action contesting” the alleged violation, “commenced within 90 days of the date such contested action was taken. . . .” Walker v. City of Warner Robins, 262 Ga. 551 (422 SE2d 555); Worthy v. Paulding County Hosp. Auth., 243 Ga. 851 (257 SE2d 271).

In determining what is an “action contesting” an alleged violation of the Open Meetings Law we note that jurisdiction to enforce compliance with the provisions of this statute is vested in the superior courts. OCGA § 50-14-5. Does this infer that an “action contesting” an alleged violation of the Open Meetings Law is a case filed in the superior court seeking legal or equitable relief? We need not reach this issue in the case sub judice, since it is clear from the decision in Walker v. City of Warner Robins, 262 Ga. 551, 552 (3), supra, that an “action contesting” an alleged violation of the Open Meetings Law must at least involve an allegation of a violation of the statute. The events which transpired at the June 25, 1993 meeting of the Dalton City Board of Education did not include any assertion that an alleged violation of the Open Meetings Law had occurred. While the Board’s statement released at the meeting suggested that further action was appropriate in order to comply with the law, this did not amount to a conclusion that any violation had already taken place. Nor was there any other assertion of an alleged violation of the Open Meetings Law made within the 90 days allowed by OCGA § 50-14-1 (b). Therefore, the superior court erred in granting the movant defendants’ motion for partial summary judgment.

The superior court also erred in denying plaintiff’s motion for partial summary judgment on the issue of the existence and enforceability of the settlement agreement. The Dalton City Board of Education, being vested with broad discretion in governing the school system, did not lack authority to enter into the settlement agreement. The suggestion that OCGA § 20-2-211 supports a contrary conclusion is without merit. There was an offer, acceptance, and consideration between plaintiff and the Dalton City Board of Education resulting in a binding contract.

Decided July 1, 1994

Reconsideration denied July 13, 1994.

John R. Myer, Kirwan, Goger, Chesin & Parks, Matthew C. Billips, for appellant.

Minor, Bell & Neal, John P. Neal III, Robert G. McCurry, Mitchell, Coppedge, Wester, Bisson & Miller, James H. Bisson III, Erwin Mitchell, Freeman & Hawkins, H. Lane Young II, for appellees.

However, there are questions raised concerning the legality of a provision of the settlement agreement requiring the Dalton City Board of Education to expunge certain records. We decline to decide this issue in the first instance, but return the case for determination of this issue by the superior court. In any event, the questionable provision is clearly severable if found to be illegal, and defendants may not object if plaintiff waives any resulting failure of consideration. See Jones v. Clark, 147 Ga. App. 657 (1), 658 (249 SE2d 619).

Judgment reversed.

Pope, C. J, and Smith, J., concur.


text:
    A94A0817.
    SEWELL v. BILL JOHNSON MOTORS, INC. et al.
    (446 SE2d 239)
   McMurray, Presiding Judge.

The State Board of Workers’ Compensation (“the Board”) awarded June C. Sewell (“claimant”) medical and death benefits based on the finding of an administrative law judge (“ALJ”) that claimant’s spouse died of a work-related heart attack on November 29, 1991. We granted this discretionary appeal to review the superior court’s reversal of claimant’s award.

Joe C. Sewell was 51 years of age at the time of his death and was survived by claimant and two adult children. Sewell was five feet eight inches in height and he weighed about 160 pounds. Sewell gave up cigarette smoking in June 1988, but he occasionally smoked cigars. Sewell was not hypertensive and his domestic life did not bear unusual stress. Sewell underwent coronary bypass grafting in May 1989; he experienced no post-operative complications and he appeared to be in good health after the surgery.

In August 1989, Bill Johnson Motors, Inc. (“the employer”) hired Sewell to manage the service department of its automobile dealership in LaGrange, Georgia. Sewell’s work was constant and demanding, requiring him to supervise several employees and be present at the employer’s place of business from 7:30 in the morning until 6:00 in the evening, five days per week. When Sewell began working for the employer, he was aided by two assistant service managers. His responsibilities included entering work orders, retrieving automobiles for customers, handling customer complaints (that could not be resolved by the assistant service managers), ordering departmental supplies, meeting “with factory representatives . . .” and working closely with other departmental managers. These duties intensified after July 1991, because of employee attrition. The added stress caused a decline in Sewell’s physical and emotional appearance.

Between 12:00 and 1:00 in the afternoon on November 29, 1991, Sewell’s son, Joe E. Sewell, Jr., appeared at the employer’s place of business and asked his father to accompany him to lunch. Sewell was busy serving customers and did not comply with his son’s request. Joe E. Sewell, Jr. then admonished his father, “ ‘Well, everybody has got to eat,’ and [Sewell] said he was short of help, so he couldn’t go.” At about 5:00 that afternoon, Sewell was observed sitting in a lounge area of the dealership. His appearance was “pallor” and he appeared to be suffering with back pain. Sewell removed his sweater and eyeglasses and sat with his arms on his legs and his face in his hands. A few minutes later, Sewell resumed his duties. He left work when the dealership closed at 6:00 p.m.

Sewell arrived home at about 7:00 on the evening of November 29, 1991, appearing ill and barely making it up the stairs to his home. Sewell was then experiencing severe back pain, but he managed to consume dinner and sit in front of the television. As the evening progressed, Sewell’s condition deteriorated. He began experiencing nausea and vomiting. By 11:00 that night, Sewell’s wife and daughter were compelled to take Sewell to Newnan Hospital. Sewell was conscious when he arrived at the hospital emergency room. He was complaining of discomfort and severe chest pain. An emergency room team attempted to ease Sewell’s burden. However, “the patient seized[,] clenched tight his teeth” and died about an hour after admission to the emergency room. No autopsy was performed. The cause of death was declared, “cardiopulmonary arrest.”

The ALJ awarded claimant full medical and death benefits based on findings that Sewell died of a work-related heart attack and that claimant was wholly dependent on Sewell for support. The Board adopted the ALJ’s finding that Sewell died of a work-related heart attack, but reduced claimant’s death benefits based on evidence that claimant was only partially dependent on Sewell for support. The employer appealed to the superior court. Claimant cross-appealed, challenging the Board’s finding as to her degree of dependency on Sewell for support. The superior court reversed, finding that “[t]here is simply no evidence from which it can be found that the Employee died of a heart attack [and that, since the] Employee did not die at work[,] the Widow/Claimant cannot utilize any presumption which might attach to a death at work.” The superior court did not reach claimant’s cross-appeal since it determined that claimant was not entitled to any workers’ compensation benefits. This appeal followed. Held:

1. Claimant contends in her first two enumerations that the superior court failed to apply the “any evidence” test in reviewing the Board’s finding that Sewell died of a work-related heart attack.

“In Guye v. Home Indem. Co., 241 Ga. 213, 215 (244 SE2d 864) (1978), [the Georgia Supreme Court] pointed out: ‘It is well recognized in “heart attack” cases that it is often difficult for the trier of fact to find the line between a noncompensable heart injury that is a symptom of an existing disease merely manifested during job exertion, and a compensable heart injury to which the job exertion was a contributing precipitating factor. (Cits.)’ In Guye the employee’s heart attack symptoms started on the job following exertion. There was no medical evidence as to the cause of the attack. The question before [the Supreme Court] there was whether, without medical evidence as to causation, the natural inference could satisfy the ‘preponderance of competent and credible evidence’ requirement of our law. OCGA § 34-9-1 (4) (Code Ann. § 114-102), supra. [The Supreme Court] found that it could.” Southwire Co. v. Cato, 250 Ga. 895, 897 (302 SE2d 91) (1983).

In the case sub judice, there was no autopsy and therefore no means of determining the precise cause of Sewell’s death. However, Dr. William Michael Brown testified (via deposition) that he reviewed Sewell’s medical records and depositions regarding the circumstances of Sewell’s death and that “the information that was presented certainly suggested that [Sewell] had a heart attack at the time of his death.” Further, as in Guye v. Home Indem. Co., supra, there is evidence that Sewell’s heart attack symptoms started on the job following work-related exertion. Specifically, one of Sewell’s co-workers testified that she observed Sewell sitting in a lounge area in the late afternoon before Sewell’s death; that Sewell then appeared “pallor” and to be suffering with back pain and that Sewell removed his sweater and eyeglasses and sat with his arms on his legs and his face in his hands. Joe E. Sewell, Jr. testified that he went to see his father at work earlier on the same afternoon; that he then observed his father “hold his back . .. .” and that his father was so busy attending to the employers’ business that he was unable to talk (to his son) for an extended period of time or pause for lunch. This evidence, evidence that Sewell experienced incapacitating back pain upon arriving home from work, medical testimony that work-related stress could have been the precipitating factor of Sewell’s heart attack, evidence that Sewell’s physical and emotional health deteriorated as his job became progressively demanding in 1991 and evidence that Sewell was under unusually high work-related stress during the afternoon before his death authorized the administrative law judge’s findings, as adopted by the Board, that Sewell died of a work-related heart attack. “ ‘ “Questions as to credibility and preponderance address themselves to the trier of facts. (Cits.) On appeal, the appellate tribunal does not determine the credibility of witnesses or the preponderance of the evidence. The appellate tribunal utilizes the ‘any evidence’ test, a test not available to the trier of facts in deciding disputed factual issues.” (Cit.)’ Hodges v. William L. Sloan, Inc., 173 Ga. App. 358, 359 (326 SE2d 556) (1985).” Southwire Co. v. Eason, 181 Ga. App. 708, 709 (353 SE2d 567). Consequently, since there was competent and credible evidence in the case sub judice to support the Board’s award adopting the ALJ’s finding that Sewell died of a work-related heart attack the superior court erred in reversing the Board’s finding and award.

2. Next, claimant contends the superior court’s decision “is contrary to law since it does not address the dependency issue raised in the Cross Appeal.”

The superior court has original appellate jurisdiction in workers’ compensation cases, not the Court of Appeals. OCGA § 34-9-105 (b). In such cases, the Court of Appeals is limited to those issues considered first by the superior court. See Terry v. Houston County Bd. of Ed., 178 Ga. App. 296, 298 (342 SE2d 774). Consequently, since the superior court did not reach claimant’s cross-appeal from the Board’s ruling that she was only partially dependent upon Sewell for support, we remand the case sub judice to the superior court for consideration of claimant’s cross-appeal.

Judgment reversed and case remanded.

Pope, C. J., and Smith, J., concur.

Decided June 29, 1994

Reconsideration denied July 13, 1994.

Sherrod & Bernard, John W. Sherrod, for appellant.

Drew, Eckl & Farnham, Ann Bishop-Byars, for appellees.

       Bill Johnson, the majority stockholder of the corporate employer, affirmed that Sewell was required to absorb the loss of a discharged assistant service manager in July 1991, to increase the work load of employees under his supervision due to the resignation of an engine specialist in the fall of 1991 and to manage the service department alone for most of November 1991 due to the physical disability of the only remaining assistant service manager.

       Susan Farley worked with Sewell before his death. She testified that Sewell was overworked because the employer understaffed the service department; that Sewell’s physical appearance declined after July 1991, and that Sewell’s job was emotionally and physically demanding. Claimant testified that her husband was in good health before July 1991 and that he rarely missed work because of illness. She explained that her husband’s health began deteriorating in July or August 1991; that Sewell was out of work for two weeks in July 1991 because of “a fever, a real severe cough, and severe headaches” and that her husband returned to work before recovery because his employer was “shorthanded.” Claimant also testified that Sewell did not experience chest pain between July and November 1991, but explained that Sewell did not sleep well during this period; that he became uncharacteristically irritable and that he developed “stomach problems” in October 1991 and back pain in November 1991.


author: Johnson, Judge. Beasley, Presiding Judge,

text:
    A94A1003.
    McBRIDE v. THE STATE.
    (446 SE2d 193)
   Johnson, Judge.

In this pro se appeal of his conviction on 23 counts of first degree forgery, Stephen McBride asserts 19 enumerations of error. Several of the enumerations of error have been consolidated for consideration in this opinion.

1. McBride was sentenced to serve 23 one-year sentences in confinement, to run consecutively. He argues that the sentence is disproportionate to the crimes committed and constitutes cruel and unusual punishment. OCGA § 17-10-1 authorizes a trial court to impose any sentence within the limits provided by law. “The sentence in this case was within the statutory limits [OCGA § 16-9-1 (b)], and any complaints regarding the sentence should have been addressed to the appropriate sentence review panel.” (Citations and punctuation omitted.) Williams v. State, 208 Ga. App. 716 (1) (431 SE2d 469) (1993). This enumeration is without merit.

2. The state argues that remanding the case to the trial court for an evidentiary hearing on McBride’s assertion that assistance afforded him by trial counsel was ineffective is unnecessary. Trial counsel filed a timely motion for new trial. Shortly thereafter, the trial court granted McBride’s request to proceed pro se. He withdrew the motion for new trial and filed a notice of appeal. “It is axiomatic that a claim of ineffectiveness of trial counsel must be asserted at ‘the earliest practicable moment.’ Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986). In the present case, [McBride] had the opportunity to raise a claim of ineffectiveness of trial counsel prior to this appeal in an amendment to the motion for new trial, but failed to do so. As such, his challenge to the effectiveness of his trial counsel is procedurally barred, and no remand is required. Owens v. State, 263 Ga. 99 (3) (428 SE2d 793) (1993).” Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1994).

3. McBride has pointed to numerous examples of what he alleges constitute prosecutorial misconduct and vindictiveness which denied him a fair trial.

(a) First he complains that the state’s decision to prosecute additional counts against him by means of a second accusation created a presumption of vindictiveness on the part of the state, and illustrates “intentional” and “purposeful” acts intended to oppress and deter McBride from adequately representing himself. Evidence presented at a pretrial hearing indicates that two separate cases against McBride were pending in the district attorney’s office, one involving Wachovia Bank and the other involving NationsBank. In the interest of judicial economy and in light of OCGA § 16-1-7 (b), which requires prosecution of crimes arising from the same conduct in a single prosecution, we find this assertion to be without merit.

(b) McBride also complains that the prosecutor gave an interview to the press during the trial of the case, prompting a motion for a mistrial. Outside the presence of the jury, the court questioned the prosecutor who denied giving any information to the newspaper. The jury was asked if it had seen any article related to the case in the newspaper or been influenced by it. The jury denied having read or being influenced by the story. The motion for mistrial was not renewed after a brief curative instruction from the court, and therefore the right to appellate review of the issue was waived. Leary v. State, 206 Ga. App. 191 (424 SE2d 903) (1992).

(c) McBride argues that an improper question asked of the state’s expert witness by the prosecution caused him irreparable harm by referring to testimony given in a previous case against him. No objection was made at this point in the testimony, and no ruling made by the trial court regarding the testimony. “It is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision. Grounds for reversal which may be considered on appeal are limited to those which were argued before the trial court.” (Citations and punctuation omitted.) Orr v. State, 209 Ga. App. 832, 833 (434 SE2d 723) (1993). There is nothing properly before us for review.

(d) We have reviewed McBride’s remaining assertions of alleged prosecutorial misconduct and find that they were either waived or are without merit.

4. McBride asserts that the trial court judge’s refusal to recuse himself from the case was error. Although it does not appear in the record, McBride asserts that he filed an action pursuant to 42 USC § 1983 in federal court against the trial court judge asserting that he had been denied his right to a speedy trial. The trial judge refused to recuse himself stating that the action would not make recusal mandatory because it did not arise from an extrajudicial activity. “In order to be disqualifying the alleged bias must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. The alleged bias of the judge must be of such a nature and intensity to prevent the party from obtaining a trial uninfluenced by the court’s prejudgment.” (Citations and punctuation omitted.) Stevens v. Myers, 190 Ga. App. 61, 62 (2) (378 SE2d 334) (1989). We have reviewed the record in this case and find that McBride’s motion to recuse was correctly denied. Further, we find McBride’s numerous other allegations of judicial, misconduct to be totally without merit.

5. The trial court’s refusal to give McBride’s requested “two theories” charge to the jury was not error. In Johnson v. State, 210 Ga. App. 99, 102 (2) (435 SE2d 458) (1993), this court finally laid the two theories charge to rest, noting: “[W]e have recently held that this statement of law does not accurately state the principle addressed and should never be given.” See also Kelly v. State, 212 Ga. App. 278 (442 SE2d 462) (1994).

6. McBride’s sixth enumeration of error alleges that the trial court improperly admitted business records. In his brief, however, the discussion merely repeats those arguments already addressed in enumeration 3 (a) regarding the effect of an interview with the media. The argument offered in support, of McBride’s “Ground 7” in his brief appears to correspond to his sixth enumeration of error and relates to the trial court’s ruling on the admission of fingerprint evidence. McBride asserts that this evidence should not have been admitted because the chain of custody had been broken. McBride is confusing the business records exception to the hearsay rule with the requirement that the state prove chain of custody. The state is required to establish a chain of custody when physical evidence is fungible. However, “ ‘[a] chain of custody is not involved where distinct and recognizable objects are identified. Starks v. State, 113 Ga. App. 780 (1) (149 SE2d 841); Lord v. State, 134 Ga. App. 683, 684 (215 SE2d 493). Other courts have held this 'principle to apply to fingerprint evidence. (Cits.) It is our opinion that fingerprints are the type of evidence which need only be properly identified before their admission into evidence.’ Roland v. State, 137 Ga. App. 796, 797 (3) (224 SE2d 846).” Miller v. State, 208 Ga. App. 20, 21 (1) (b) (430 SE2d 159) (1993). Moreover, the business records exception does not require that the person laying the foundation for the admission of business records be the custodian of the records. Hertz Corp. v. McCray, 198 Ga. App. 484, 486 (402 SE2d 298) (1991). After refusing to admit the exhibit, we find that the trial court’s admission of the fingerprint evidence for a limited purpose was not error.

7. McBride argues that the trial court erred in refusing to sever the offenses for trial. Although we have found the point in the record at which the motion for severance of offenses was made, we cannot find, and neither McBride nor the state has identified, the point at which the court actually ruled on the motion. Without a ruling, we have nothing before us to review. Even assuming a negative ruling, it is clear that all of the offenses were properly tried together. “Offenses may be joined for trial when they are based (1) on the same conduct or (2) on a series of acts connected together or (3) on a series of acts constituting parts of a single scheme or plan. If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary to achieve a fair determination of defendant’s guilt or innocence of each offense.” (Citations and punctuation omitted.) Isbell v. State, 179 Ga. App. 363, 366 (2) (346 SE2d 857) (1986).

Over a five-day period, over 70 checks were cashed by McBride in the metropolitan Atlanta area. Of those, 23 of the checks were cashed in DeKalb County and form the basis of this action. The checks were all drawn on the same Summit National Bank account opened by McBride. In this case all of the charges arose out of a series of acts committed as part of a single scheme or plan. Therefore, the trial court did not err in trying all of the counts together.

8. McBride challenges the sufficiency of the accusation because each of the 23 forgery counts was not supported by separate affidavits. “In felony cases involving violations of Code [Section] . . . 16-9-1 . . . [t]he accusation need not be supported by an affidavit except in those cases in which the defendant has not been previously arrested in conjunction with the transaction charged in the accusation.” OCGA § 17-7-70.1 (a). In this case McBride had been arrested and charged on a previous accusation and was on notice of the charges upon which he was to be tried. We see no error.

9. McBride has waived his right to formal arraignment on a subsequent accusation by entering a plea of not guilty. Staples v. State, 209 Ga. App. 802, 806 (7) (434 SE2d 757) (1993).

10. McBride asserts that the trial court erred in denying his motion to suppress evidence, asserting that the affidavit upon which the search warrant was issued was insufficient. “On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. [Cit.]” Burse v. State, 209 Ga. App. 276 (433 SE2d 386) (1993).

At the motion to suppress hearing, the arresting officer testified that she and a fellow officer had an arrest warrant for Stephen McBride in connection with forgery offenses, and were keeping his apartment under surveillance in order to serve the warrant. The officers recognized a woman entering the apartment because they knew there was an outstanding warrant for her arrest. The officers attempted to enter the apartment, but the woman refused to open the door. Believing that McBride was inside, they then went to the apartment manager, who gave them a pass key. While looking for McBride, one of the officers saw a box of blank checks bearing the logo of the forged checks which were the basis of the arrest warrant as well as a rubber signature stamp. On the basis of their plain view discovery of the checks and stamp, as well as the existing arrest warrant, which linked the checks to the offenses charged in the arrest warrant, a magistrate issued a search warrant. Considering the affidavit, the testimony of the officers, and the information contained in the arrest warrant together, the trial court found sufficient probable cause to support the issuance of the search warrant. We do not conclude that the trial court’s finding is erroneous and will not disturb its denial of the motion to suppress.

McBride complains that he was intentionally excluded' from participation in several critical points in the trial. First, he asserts that the trial court erred in not allowing him to make closing argument. He did not complain or object at trial, however, and is therefore precluded from raising this issue on appeal. Hammock v. State, 201 Ga. App. 614, 620 (8) (411 SE2d 743) (1991).

. Second, he asserts that his exclusion from the charge conference denied him due process. “The accused and his counsel have the right to be present at every stage of the proceedings and personally see and know what is being done in the case.” (Punctuation omitted.) Wilson v. State, 212 Ga. 73, 74-75 (90 SE2d 557) (1955). The right of a defendant to be present at various stages of trial has been examined in numerous cases. See, e.g., Tiller v. State, 96 Ga. 430 (1) (23 SE 825) (1895) (during argument to jury); Seay v. State, 111 Ga. App. 22, 25 (3) (140 SE2d 283) (1965) (colloquy between jury and trial judge); Palmer v. State, 155 Ga. App. 368 (271 SE2d 24) (1980) (jury view); Martin v. State, 160 Ga. App. 275, 278 (2) (287 SE2d 244) (1981) (jury view of evidence); Collins v. State, 191 Ga. App. 289 (2) (381 SE2d 430) (1989) (recharge to jury). A conference between counsel and a trial judge to discuss requested charges to be given to the jury, however, is optional and not part of the “proceedings.” Simmons v. State, 172 Ga. App. 695, 696 (2) (324 SE2d 546) (1984). See also Justice Weltner’s concurrence in Bentley v. State, 261 Ga, 229, 232 (3) (404 SE2d 101) (1991). There is nothing in the record to suggest that either McBride or his attorney requested that McBride be present during the charge conference. Although the better practice would have been to include McBride in such a conference if he requested to be present, the failure to include him at this optional conference was not error.

12. McBride’s assertions that the trial court erred in denying his motion for a directed verdict of acquittal and that the evidence was insufficient to support a verdict of guilty are without merit. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

13. McBride’s right to an indictment returned by a grand jury was abrogated by the legislative enactment of OCGA § 17-7-70.1 in 1992.

14. McBride filed two demands for a speedy trial. The first, filed June 3, 1993 is a nullity because the accusations had not been filed. Fisher v. State, 143 Ga. App. 493 (238 SE2d 584) (1977). The second demand was filed on September 13, 1993. This demand was timely filed. The terms of court in the Stone Mountain Judicial Circuit begin on the first Mondays of January, March, May, July, September and November. OCGA § 17-7-170 requires that an accused be tried within the term in which the demand is filed or in the next succeeding term. McBride’s case came on for trial in November, the term succeeding his demand. The court properly denied his motion for discharge and acquittal based on a violation of his right to a speedy trial.

15. McBride’s contention that the state unlawfully amended the accusations in this case is without merit.

16. The final two enumerations of error, “Denial of Appeal” and “Illegal Exclusion and Unlawful Admittance of Evidence to the Jury” are unsupported by argument or citation to authority and are therefore deemed abandoned in accordance with Court of Appeals Rule 15 (c) (2).

Judgment affirmed.

Andrews, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I fully concur in all divisions except Division 2. I do agree that it is not necessary to remand the case for an evidentiary hearing on the claim of ineffective assistance of trial counsel. First, there was a waiver by defendant’s withdrawal of the motion for new trial; he could have amended it instead, to add the ground. Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1994). Inasmuch as he represented himself in effecting the withdrawal, he cannot bláme new post-trial counsel for this relinquishment. Although in Bailey it was counsel who acted, the pro se defendant is subject to the same requirement. Cf. Brumby v. State, 264 Ga. 215 (443 SE2d 613) (1994).

Even if the pro se appellant did not waive the issue by failing to raise it at the earliest opportunity, i.e., by amending the timely motion for new trial rather than deliberately withdrawing it or filing an extraordinary motion as allowed by OCGA § 5-5-41, the instances of alleged ineffectiveness which he specifies may be reviewed on the existing record, as was done in Brundage v. State, 208 Ga. App. 58 (2) (430 SE2d 173) (1993). Compare Norman v. State, 208 Ga. App. 830, 831 (3) (432 SE2d 216) (1993). See Hutton v. State, 192 Ga. App. 239 (384 SE2d 446) (1989) (Beasley, J., dissenting to the remand).

Appellant’s claim is governed by the test established in Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984). He must show “(1) that his attorney’s representation was deficient; and (2) that the deficient representation prejudiced his defense, i.e., that a reasonable probability exists that but for the ineffective representation the result of the proceeding would have been different.” Norman, supra at 832.

Three instances of ineffectiveness are asserted.

(1) The first is that trial counsel allowed certain state exhibits, which were prejudicial and disallowed by the court, to be sent out with the jury. Seven exhibits are identified by number.

State’s Exhibit 1 is a map of Atlanta and was admitted by the court.

State’s Exhibits 2A and 2B are blowups of summaries which were admitted by the court.

State’s Exhibit 6 is a blowup of a check and was admitted by the court.

State’s Exhibit 50 is a blowup of a bank check log and was admitted by the court.

State’s Exhibit 51 is a map and was admitted by the court.

State’s Exhibit 103 is a map of NationsBank branches and was admitted by the court.

Thus, none of these exhibits were erroneously sent to the jury. Moreover, they were properly admitted after, as to each, the requisite foundations were laid and the relevancy was established. They related directly to the checks defendant was accused of forging and the bank locations involved. There is no deficiency in counsel’s representation in this regard, much less a deficiency which would raise a reasonable probability of acquittal.

(2) The second instance of alleged ineffectiveness is the failure of counsel to call as a witness Mary Mason (or Munson), to show that the search warrant did not contain the correct unit number of the unit that was searched. Mason was manager of the Briar Valley Apartments where defendant rented an apartment in another name.

Counsel moved, in advance of trial, for suppression of the evidence seized pursuant to the warrant. A hearing was held and the court denied the motion. The affidavit and application for a search warrant, and the search warrant, were in evidence. They identify the place as “1639 Briarcliff Apt. #6 (Briar Valley apartments).” This was the location that was searched after a pass key was obtained from Mary Mason, according to testimony and the return of service. The name of the lessee was given in the affidavit for the search warrant: “Jeff Stokes alias Stephen Lewis McBride.” A different address as the home address was given on the arrest warrant. Counsel brought this to the attention of the court in his argument at the conclusion of the suppression hearing. Thus there was no necessity for the testimony of the apartment manager to the effect that the unit was not in the name of Stephen Lewis McBride. That was not a disputed fact. Her testimony would not have changed the outcome of the motion hearing, and thus there is no Strickland-tested deprivation. See Cofield v. State, 204 Ga. App. 776, 777 (1) (420 SE2d 597) (1992). Division 10 of the majority opinion, in which I concur, concludes that the denial of the motion to suppress was not error.

It is notable that at the end of the hearing, the court stated to defendant: “Mr. McBride, I will tell you — I have said this very few other times — if I was in trouble on a criminal case this man is one of the folks that I would come to see ... I don’t say that about many people ... He is a good defense attorney.”

(3) The third contention regarding ineffectiveness is that counsel permitted certain proceedings to be conducted in his absence. Defendant brought this to the attention of the court at the conclusion of the trial. He referred to a conference in chambers during jury selection and also to the charge conference.

The court explained that nothing substantive occurred during the first one except the denial of a motion by the state, that it had to be conducted out of the jury’s presence, and that security concerns counseled against defendant’s presence when balanced against the fact that nothing substantive would take place. The court also explained that the charge conference relates to issues of law and is conducted so the attorneys will know before their closing arguments what law the court will charge.

Defendant accepted the court’s response, stating: “Thank you. I appreciate your clarifying that, Your Honor.”

Thus, even if the point was not waived, the failure of counsel to insist on the presence of defendant at these two aspects of the trial neither constitute deficient representation nor raise a reasonable probability that the results of either proceeding or of the trial itself would have been different. As the majority has ruled in Division 11, a ruling with which I agree, it was not error for the court to conduct the charge conference in the absence of defendant.

In sum, an examination of the specific instances of alleged ineffective representation leads inexorably to the conclusion that defendant was not deprived of reasonably effective counsel.

Decided June 9, 1994

Reconsideration denied July 13, 1994.

Stephen McBride, pro se.

J. Tom Morgan, District Attorney, Elisabeth G. Macnamara, Robert M. Coker, Assistant District Attorneys, for appellee.

       McBride has appeared as appellant in six previously published opinions. McBride v. State, 199 Ga. App. 527 (405 SE2d 345) (1991); McBride v. State, 202 Ga. App. 556 (415 SE2d 13) (1992); McBride v. Gaither, 203 Ga. App. 885 (418 SE2d 67) (1992); McBride v. Zant, 204 Ga. App. 183 (418 SE2d 781) (1992) (two cases); McBride v. Knight, 205 Ga. App. 549 (422 SE2d 675) (1992). Four other appeals have been filed in this court by McBride. Three of those appeals were dismissed: A92A1187, A92A1188 and A92A1435. The fourth, A94A0222, was transferred to the Supreme Court.


author: Birdsong, Presiding Judge.

text:
    A94A1278.
    WILLIAMS v. FOOD LION, INC.
    (446 SE2d 221)
   Birdsong, Presiding Judge.

Sam Wayne Williams appeals the order of the trial court granting summary judgment on all issues to appellee/defendant Food Lion, Inc. in this suit for false imprisonment, false arrest, and slander. Appellant’s sole enumeration is that the trial court erred by granting appellee’s motion for summary judgment on the issue of false imprisonment. Held:

1. On summary judgment, movant has the burden to show there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. “In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

2. “The essential elements of the cause of action for false imprisonment are a detention of the person of another for any length of time, and the unlawfulness of that detention. OCGA § 51-7-20. A detention need not consist of physical restraint, but may arise out of words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries. It is essential, however, that the restraint be against the plaintiff’s will; and if he agrees of his own free choice to surrender his freedom of motion, as by remaining in a room or accompanying the defendant voluntarily, to clear himself of suspicion or to accommodate the desires of another, rather than yielding to the constraint of a threat, then there is no imprisonment.” (Citations and punctuation omitted.) Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876, 879 (2) (429 SE2d 264). A person need not make an effort to escape or to resist until an application of open force results, thereby risking possible physical injury, before he can recover; however, an actual detention must have occurred whether caused by force or fear. See Abner v. W. T. Grant Co., 110 Ga. App. 592, 595 (2) (139 SE2d 408). Additionally, OCGA § 51-7-60 precludes a recovery for false imprisonment when it is shown that the owner or operator of a store reasonably believed the person detained was engaged in shoplifting. OCGA § 51-7-60 implicitly recognizes the right of a shop owner to protect himself from shoplifting by reasonably detaining a customer who has acted in a suspicious manner. Where a detention occurs, its reasonableness is a jury question; however, a jury issue does not exist unless there has been a detention. Kemp, supra.

3. The trial court in granting summary judgment expressly applied the principle of de minimis non curat lex, and concluded that “the momentary pause in the progress of [appellant] through the check out line is entirely too inconsequential to be called a detention or an imprisonment.” The trial court erred in this holding as OCGA § 51-7-20 provides: “False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” (Emphasis supplied.) Taylor v. Super Discount Market, 212 Ga. App. 155 (441 SE2d 433), a case involving the suspected passing of counterfeit money and the issue of lawfulness of detention is distinguishable from this case and is not controlling. Likewise factually distinguishable are the cases cited by both appellant and appellee. Nevertheless, a grant of summary judgment must be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746). We must now decide whether summary judgment can be upheld on any other basis. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47). In this case, there exists two independent bases for affirming summary judgment in behalf of appellee/defendant:

(a) While conflicts exist between appellant’s testimony and that of the employee of appellee, there also exist unexplained contradictions within appellant’s own deposition testimony and between his deposition testimony and his affidavit. For example, appellant testified by way of deposition as follows: “I took the coat off myself, but I didn’t have much choice in the matter. I wasn’t leaving otherwise. I was there. I couldn’t get out behind me. They weren’t letting me out that way. And I thought this was the way to resolve it.” (Emphasis supplied.) Further, in his affidavit appellant stated: “After the search of my coat . . . the Food Lion employees were not satisfied and continued to block my exit and detain me. The Food Lion employees wanted to search my pants and in an attempt to convince them of my innocence and end the threats against me, I took everything out of my pants pockets and lifted up my shirt... so that the employees could see that there was nothing there and they had accused the wrong person of shoplifting.” (Emphasis supplied.) Appellant’s evidence is contradictory and no reasonable explanation has been offered therefor. Appellant’s testimony to the effect that he remained in the line and took off his coat himself to resolve the controversy by establishing his innocence, and that he thereafter continued to attempt to establish his innocence by further lifting his shirt and exposing his skin, directly contradicts any claim that he remained at the scene either due to physical detention (blocking of the aisle) or due to threats by Food Lion employees (giving rise to reasonable apprehension of force). Accordingly, as to any conflicting evidence offered by appellant and for which no reasonable explanation has been tendered of record, the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) applies. Application of the Prophecy rule results, inter alia, in a determination that appellant submitted to a search and remained to lift his shirt and expose his skin for the purpose of clearing himself of suspicion. As a matter of law, there was no imprisonment, when appellant by his own free choice surrendered his freedom of motion by remaining in the checking aisle to clear himself of suspicion. See Kemp, supra at 879.

(b) Additionally, only a partial transcript of appellant’s deposition testimony was forwarded to this court for appellate review. Examination of this testimony may have found additional unexplained conflicting testimony, or testimony which otherwise supported the grant of summary judgment to appellee. “Access to the trial transcript would be necessary to determine whether the [grant of summary judgment on behalf of appellee] was right for any reason, and in the absence of the required transcript . . . the judgment ... of the trial court must be affirmed.” Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273 (1) (441 SE2d 684); see Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 51 (3) (397 SE2d 466).

Judgment affirmed.

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

On Motion for Reconsideration.

Appellant has filed a motion for reconsideration. In support of that motion, appellant asserts, inter alia, the following: “[This] court stated that only a partial transcript of appellant’s deposition testimony was forwarded to the court for [appellate] review. The complete original transcript of appellant’s deposition testimony was given by the court reporter to appellee Food Lion’s counsel but was not filed for record with the clerk of the superior court . . . and included in the record of appeal sent to the Court of Appeals. The complete original transcript has now been filed with the clerk of the superior court . . . and forwarded to the Clerk of the Court of Appeals for inclusion in the [appellate] record for reconsideration by this court.”

Appellant concedes that the complete transcript at issue was not included in the record of appeal originally sent to this court. It is the primary responsibility of the appropriate parties and not this court to ensure that all documents relevant to the disposition of an appeal be duly filed with the clerk of this court prior to the issuance of our appellate decision. This appellant did not do. Appellant cannot now perfect a deficiency in his appeal by the belated filing of records, which were missing through no fault of this court at the time of our appellate disposition of this case. As a general appellate rule adopted as necessary to protect or effectuate our appellate judgments (Art. VI, Sec. I, Par. IV, Ga. Const, of 1983), we hold that it is the state of an appellate record and transcript duly before us at the time of our original disposition of the appeal, and not the state of the record as amended in an attempt to support an appellate position argued on motion for reconsideration, that is controlling as to the adequacy of the record for purposes of appellate review. Additionally, prior to our disposition of this case, appellant made no express written request to this court to delay or withdraw this appeal so that the entire transcript of deposition testimony could be filed to facilitate the perfection of the appellate record. It is well settled that one cannot complain of a verdict, judgment, ruling, or order that his own legal strategy, trial procedure or conduct aided in causing. Perryman v. Rosenbaum, 205 Ga. App. 784, 790 (423 SE2d 673). Likewise, one cannot complain of an appellate ruling, order, or judgment that his own legal strategy, appellate procedure or conduct aided in causing. Ga. Const, of 1983, supra.

Decided June 16, 1994

Reconsideration denied July 13, 1994.

Donaldson, Herndon, Bell & Metts, William G. Bell III, for appellant.

Painter, Ratterree & Bart, R. Clay Ratterree, Sarah B. Akins, for appellee.

Motion for reconsideration denied.


author: Blackburn, Judge.

text:
    A94A1303.
    J. H. HARVEY COMPANY, INC. v. KINCHEN et al.
    (446 SE2d 218)
   Blackburn, Judge.

We granted this interlocutory appeal to review the trial court’s denial of defendant J. H. Harvey Company’s motion for summary judgment. Benny and Hazel Kinchen filed the underlying action to recover damages for injuries Benny Kinchen sustained when he slipped and fell on defendant’s premises.

Kinchen slipped and fell in a clear liquid which had accumulated on the floor near the frozen food freezers in J. H. Harvey Company’s store. Kinchen’s fall occurred after he had walked to the middle of aisle ten, turned around, and retraced his steps to follow his mother. As he walked down aisle ten for the second time, Kinchen slipped in a stream of water “a couple of feet long” originating under one of the coolers.

“In order to recover for a slip and fall resulting from a foreign substance such as water . . . , not only must the plaintiff show that the defendant had knowledge of the presence of the foreign substance, but the plaintiff must also show that he was without knowledge of its presence. The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991).

Kinchen deposed that the pool of water was big enough that if he had been looking down, he could have seen it on the floor. In his affidavit, filed in response to defendant’s motion for summary judgment, Kinchen averred that he had looked on the floor ahead of him and did not see any foreign substance on the floor.

Summary judgment is appropriate in situations where the hazardous condition was visible to the plaintiff, had the plaintiff looked. See Jester v. Ingles Market, 206 Ga. App. 327, 329 (425 SE2d 323) (1992); Smith v. Wal-Mart, supra. “In addition, contrary to [his] contentions, [defendant] did not have a duty to warn [him] of the hazardous condition of which [he] had equal knowledge. [Cit.]” J. H. Harvey Co. v. Johnson, 211 Ga. App. 809, 811 (440 SE2d 548) (1994).

The Supreme Court’s opinion in Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994), is not controlling. In Barentine, the plaintiff deposed that he could have seen the liquid on the floor had he looked. Barentine also testified however that as he approached the checkout counter he looked over to the cashier, who was standing away from the checkout point, so that he could tell her he was ready to check out. The Supreme Court held that “[T]his testimony is some evidence that Barentine exercised reasonable care for his own safety in approaching the check-out counter” and “[t]he evidence thus did not demand a finding that Barentine failed to exercise reasonable care . . . ,” citing Food Giant v. Cooke, 186 Ga. App. 253, 257 (366 SE2d 781) (1988); Barentine, supra at 224. Food Giant provides that the movant for summary judgment has the burden of showing that there was no diversion attributable to it which had caused plaintiff’s attention to be drawn away from the spilled liquid. In Barentine, the Supreme Court concluded that the act of looking toward the cashier was some evidence that plaintiff had met his duty of care and that the clerk’s presence perhaps constituted a diversion attributable to defendant. How the passive presence of the cashier can constitute “the setting up of a distraction, by a sign or conduct, which will so divert the customer’s attention as to be the proximate cause of his injury . . .” Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980), is not explained. To find that defendant therein had a duty to negate the possibility that Barentine had exercised due care pursuant to Food Giant, would be inconsistent with the Supreme Court’s holding in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), wherein the Court held “the nonmoving party . . . must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Id. at 491.

Decided June 15, 1994

Reconsideration denied July 13, 1994

Young, Clyatt, Turner, Thagard & Hoffman, James B. Thagard, J. Holder Smith, Jr., for appellant.

H. B. Edwards III, 0. Wayne Ellerbee, for appellees.

In any event, Kinchen involves no facts discernible to this court which would remotely authorize consideration of a distraction claim by plaintiff, if one had been made. Kinchen deposed that he could have seen the liquid had he been looking. By way of affidavit, Kinchen averred that as he walked down the aisle, he was keeping a proper lookout ahead, including observing the floor, and he did not see the clear liquid on the floor.

Under the facts, defendant was entitled to summary judgment.

Judgment reversed.

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

       Hazel Kinchen asserted a claim for loss of consortium.


text:
    A93A0777.
    MIMS v. THE STATE.
   Blackburn, Judge.

In Mims v. State, 209 Ga. App. 901 (434 SE2d 832) (1993), we affirmed the trial court’s refusal to give Mims’ written request to charge on the law of circumstantial evidence. In Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994), the Supreme Court, relying on Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), reversed, finding Mims was entitled to the requested charge. Accordingly, this court’s original judgment is vacated, and the judgment of the Supreme Court is hereby made the judgment of this court and the trial court’s judgment is reversed.

Decided July 13, 1994.

Lloyd J. Matthews, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A0952.
    LEIGNER v. THE STATE.
    (446 SE2d 770)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of driving under the influence of alcohol to the extent that it was less safe for him to drive. This appeal followed the denial of defendant’s motion for new trial. Held:

1. In his first enumeration, defendant contends the evidence is insufficient to support his conviction.

Officer Jeffrey L. Tyson of the Gwinnett County Police Department testified that he stopped defendant at 2:00 in the morning on October 18, 1992, after observing the vehicle defendant was operating “weaving from lane to lane . . .” on an interstate highway. Officer Tyson testified that defendant smelled of alcohol; that defendant held onto the car as he walked to the rear of the vehicle; that defendant’s speech was distorted and that defendant’s eyes were bloodshot. Officer Tyson testified that defendant failed several field sobriety tests and that defendant became vulgar and abusive after the officer informed him that he was under arrest for driving while under the influence of alcohol. Officer Tyson then testified that he had executed “close to two thousand DUI arrests” before he arrested defendant and that his experience, training and observations supported his conclusion that defendant was a “less safe [driver] than someone who had not been drinking alcohol.” This evidence and defendant’s admission that he consumed alcohol before driving a car on the night of his arrest is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of driving under the influence of alcohol to an extent that it was less safe for him to drive in violation of OCGA § 40-6-391 (a) (1). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Osteen v. State, 176 Ga. App. 722, 723 (2) (337 SE2d 369).

Decided July 13, 1994.

Robert W. Chestney, for appellant.

Gerald N. Blaney, Jr., Solicitor, Scott A. Drake, Richard E. Thomas, Assistant Solicitors, for appellee.

2. Defendant contends the trial court erred in allowing Officer Tyson to give his opinion that defendant was a less safe driver as a result of alcohol consumption. This contention is without merit as the evidence shows that Officer Tyson’s opinion was based on his experience and observations. Hayes v. State, 208 Ga. App. 627 (1) (431 SE2d 430); Potts v. State, 191 Ga. App. 75 (1), 76 (381 SE2d 99).

3. In his final enumeration, defendant contends the trial court erred in charging that jury as follows: “A witness may testify as to whether or not the Defendant was under the influence of alcohol and whether because of any such intoxication the Defendant was a less safe driver.”

“The charge of the jury must be taken as a whole and each part thereof considered in connection with every other part of the charge. See, Marchman v. State, 129 Ga. App. 22 (3) (198 SE2d 425); High-tower v. State, 135 Ga. App. 275, 277 (217 SE2d 636).” Grant v. State, 136 Ga. App. 351 (1), 352 (221 SE2d 210). In the case sub judice, the sentence in the trial court’s jury charge immediately preceding the above quoted sentence provides that “a witness who satisfactorily shows that he had the opportunity to observe, and did observe the condition of another may testify whether that person was under the influence and the extent thereof, stating the facts upon which the opinion is based.” When this charge is read in conjunction with the sentence of which defendant now complains, it is apparent that the trial court properly instructed the jury. See New v. State, 171 Ga. App. 392 (5) (319 SE2d 542). This enumeration is without merit.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A94A0105.
    FITZGERALD v. STORER CABLE COMMUNICATIONS, INC.
    (446 SE2d 755)
   Smith, Judge.

Jackie Fitzgerald brought suit against Storer Cable Communications, Inc. seeking damages for injuries incurred when he tripped over a television cable left across his driveway by Storer. The trial court originally denied Storer’s motion for summary judgment. Subsequently, however, a different trial judge issued a show cause order sua sponte and conducted a hearing on the motion. Following the hearing, Storer’s motion for summary judgment was granted.

The record shows that in July 1988 Fitzgerald contracted with Storer for cable television service at his home. When it was installed, cable was left on the ground. The cable ran across the concrete driveway from a telephone pole at the front of Fitzgerald’s lot to the house. The cable was slack, and it shifted whenever a car was driven over it. Despite repeated requests from Fitzgerald and his wife and numerous promises and assurances by Storer, the cable was not buried for approximately 20 months.

Fitzgerald was injured during that time while trying to start a motorcycle in the driveway. He leaned over the motorcycle and grasped the handlebars while a friend pushed the rear of the cycle. Although the cable was usually slack, when Fitzgerald turned to follow the contours of the driveway the rear wheel of the cycle caught the cable, pulling it taut, and Fitzgerald’s feet then caught on the taut cable. He fell, and the motorcycle fell on him.

This is not a typical “slip and fall” case where liability is premised on ownership or control of the premises. We must apply traditional negligence principles to the facts. Three elements must be proved to establish liability based on negligence: “that the defendant had a legal duty to protect the plaintiff from a foreseeable risk of the alleged harm, that the defendant’s act or omission breached this duty, and that there exists a causal connection between the defendant’s conduct and the alleged injury sufficient to show that the conduct proximately caused the injury. [Cit.]” Leonardson v. Ga. Power Co., 210 Ga. App. 574, 576 (436 SE2d 690) (1993). We must also view the evidence most favorably for Fitzgerald as respondent on the motion for summary judgment.

Applying those principles, it is clear that the first two elements are present. Storer created a dangerous situation by leaving the cable across Fitzgerald’s driveway, and consequently had a duty to act to prevent injury to others, because it would reasonably appear that someone might be injured on the Fitzgeralds’ driveway by tripping over the cable despite using ordinary care. See Soto v. Roswell Townhomes, 183 Ga. App. 286, 287 (358 SE2d 670) (1987). Storer breached its duty by failing to act to prevent such injury by burying the cable. The trial court granted summary judgment to Storer based on Storer’s argument that the third element, proximate cause, was missing, reasoning that even assuming Storer’s negligence, the proximate cause of Fitzgerald’s injuries was not Storer’s negligence but Fitzgerald’s own lack of due care.

On appeal, Fitzgerald contends the grant of summary judgment to Storer was erroneous. He argues that notwithstanding that he may have had equal or superior knowledge of the danger, and that he may not have exercised due care, Storer should not be insulated from liability for its negligence for several reasons.

1. Fitzgerald argues that Storer is liable under the principle set forth in Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984), because he relied on Storer’s assurances that it would correct the defect it created by burying the cable.

In Richardson, the plaintiff tenant fell on a poorly-lit stairway at her apartment after making repeated unfulfilled requests that the landlord illuminate the stairwell. Richardson is distinguishable, however, because it involved a landlord-tenant relationship. A landlord has a statutory duty to keep the premises in repair. OCGA § 44-7-13. Allowing the tenant’s requests for repairs to insulate the landlord from liability on the ground of “equal knowledge” would subvert the policy behind the statute. No similar statutory duty or public policy exists here. The principle set forth in Richardson is therefore not applicable.

Moreover, even in the context of leased premises, one may not recover for damages resulting from a known defect that is open and obvious, except where the “rule of necessity” applies, i.e., where no other choice exists but to use the area known to the tenant to be defective. Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269, 270 (235 SE2d 601) (1977). Even a tenant must use all senses in the exercise of ordinary care to avoid known defects. Wells v. C & S Trust Co., 199 Ga. App. 31, 32 (403 SE2d 826) (1991).

Fitzgerald was aware of the cable’s approximate location on his driveway for about twenty months, and he drove over it about five times each day. It was incumbent upon him to take ordinary care to avoid tripping over it. He did so on other occasions. Fitzgerald acknowledged that when mowing the lawn he and other members of his family accommodated the presence of the cable by moving it manually so as to avoid running the lawnmower over it. The width of the cable was less than that of a pen. No reason appears why Fitzgerald could not similarly have avoided this fall simply by choosing to start the motorcycle below the point where the slender cable crossed his driveway. According to the diagram drawn by Fitzgerald at deposition, ample room existed for him to have done so. Instead, knowing of the presence of the cable and the danger it presented, he failed to exercise ordinary care for his own safety and fell, injuring himself.

Decided June 28, 1994

Reconsideration denied July 14, 1994

Burt & Burt, Hilliard P. Burt, for appellant.

Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, Dawn G. Benson, Divine, Wilkin, Deriso, Raulerson & Fields, E. B. Wilkin, Jr., for appellee.

2. In a related argument, Fitzgerald also asserts that a lesser standard of care was required of him because he was “distracted” from watching where he was going. See Wal-Mart Stores v. Hester, 201 Ga. App. 478 (411 SE2d 507) (1991). However, it is clear that the “distraction” referred to by Fitzgerald was his own concern about running into the flower beds. Where a distraction is self-induced, the plaintiff “can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence.” (Citations and punctuation omitted.) Id.

3. Fitzgerald also appears to argue that although he was aware of the presence of the cable he did not fully appreciate the risk it posed. See Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139, 140 (351 SE2d 477) (1986). However, unlike Atkinson, where a sharp object was hidden in a pile of debris, the “defect” was not hidden here. The known risk was that someone would trip over the visible cable, and that is exactly what occurred.

4. We need not consider Fitzgerald’s argument regarding punitive damages, since no compensatory damages were awarded. An award of punitive damages in the absence of any award of compensatory damages is improper as a matter of law. Cameron v. Moore, 199 Ga. App. 800, 801 (1) (406 SE2d 133) (1991).

Judgment affirmed.

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

       Although not raised by the parties, we note that because the denial of a motion for summary judgment is not res judicata, reconsideration of the motion was proper. Gaskins v. A. B. C. Drug Co., 183 Ga. App. 518, 520, n. 2 (359 SE2d 364) (1987).