text:
    A97A1405.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. ALLEN.
    (492 SE2d 339)
   Smith, Judge.

Alexandria Allen, by her next friend, her mother, Carolyn Allen, brought suit against Georgia Farm Bureau Mutual Insurance Company to enforce a settlement agreement. Farm Bureau refused to perform the agreement, claiming it was invalid because it had been induced by a material misrepresentation made by Allen’s attorneys. The trial court granted Allen’s motion for partial summary judgment on the issue of enforcing the agreement and entered judgment in favor of Allen in the amount of $41,000 plus interest. Other issues, including penalties and attorney fees, were reserved for trial. We conclude that Farm Bureau breached a valid contract, and we therefore affirm the trial court’s grant of partial summary judgment to Allen.

The record shows that Alexandria Allen, a minor, was injured when the truck in which she was a passenger, driven by her grandfather, Roy Howard, was hit head-on by a vehicle driven by an uninsured motorist. Howard and his wife owned three vehicles, each of which was covered by an insurance policy issued by Farm Bureau that provided uninsured motorist coverage. Allen sought to “stack” the uninsured motorist coverage in all three policies, contending she was covered as an “insured” under all three. After entering into a settlement agreement with Allen, Farm Bureau sought to avoid its obligations on the ground that Allen’s attorneys had falsely represented to them that Allen lived in Howard’s household at the time of the accident, thereby making her an “insured” under all three policies pursuant to OCGA § 33-7-11 (b) (1) (B) and the parallel provisions in the policies.

OCGA § 33-7-11 (b) (1) (B) provides that a relative of the insured who is a “resident of the same household” is an “insured” regardless of whether the relative was in the insured vehicle at the time of the incident. The statute provides: “ ‘Insured’ means the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise; any person who uses, with the expressed or implied consent of the named insured, the motor vehicle to which the policy applies; a guest in such motor vehicle to which the policy applies; or the personal representatives of any of the above.” Farm Bureau agrees that Alexandria was covered as an “insured” under the policy covering the truck in which she was riding at the time of the accident; she was clearly an “insured” under this policy because she was a guest in the motor vehicle to which the policy applied. Farm Bureau maintains, however, that she did not actually live in Howard’s household; and because she was not in the vehicles to which those policies applied at the time of the incident, she was not an insured under the other two policies.

Farm Bureau contends that throughout the settlement negotiations, Allen’s attorneys represented that Allen lived on a farm in Irwin County that was one of two residences of Howard. In fact, on April 6, 1995, Allen’s attorneys sent a letter to Ken Conner, the claims adjuster for Farm Bureau, so stating. Howard had two residences: a home in Kennesaw and a farm in Irwin County. In the letter, although they acknowledged that Howard did not live full time at his Irwin County property until after he retired, Allen’s attorneys represented that “Alexandria, her sisters, and her mother Carolyn Allen (the Howards’ daughter) had been living in Howard’s home in Irwin County for more than a month before the accident,” and that Howard provided support for them. The settlement agreement was accepted by Allen’s attorneys on May 24, 1995.

ín an affidavit submitted in opposition to Allen’s motion for summary judgment, Conner stated that a statement in Alexandria’s medical records later alerted him to the possibility that the Allens did not, in fact, live in Irwin County at the time of the accident. The record entry in issue, signed by her treating physician, states that the doctor discussed Alexandria’s treatment plan with her parents and that her parents decided to transfer Alexandria to a hospital closer to their home in Lawrenceville. Conner then questioned the Howards, who informed him that Alexandria and her mother moved to the Irwin County property after Alexandria’s treatment. Only then did Farm Bureau refuse to honor the agreement.

Even if Farm Bureau’s allegation regarding Allen’s residence is correct, the trial court properly granted Allen’s motion for partial summary judgment. The elements of a fraud action must be proved. “In order to show fraud and misrepresentation in the procurement of the contract as a defense to an action on the contract, it is not sufficient to show that false representations were made, which were known to be false and which were made with the intention to deceive. It must also be shown that the defendant exercised due care to discover the fraud.” (Citation and punctuation omitted.) Leventhal v. Setter, 208 Ga. App. 158, 163 (5) (430 SE2d 378) (1993). In this case, Farm Bureau failed to exercise due diligence to ascertain the fraud alleged to exist. First, it appears that Allen’s attorneys had attached the medical records to the April 6, 1995 letter they sent to Conner. Even if they had not, Alexandria was injured almost two years earlier and the records were available for the entire time. Further, no suggestion is made that the Howards were not truthful when questioned, and, as Farm Bureau’s insureds, they were available for questioning from the outset. Yet in the brief and succinct outline of its case provided in the pretrial order filed on February 19, 1996, nine months after agreeing to the settlement, Farm Bureau acknowledged that Alexandria resided on Howard’s Irwin County farm. Because Farm Bureau failed to show justifiable reliance, its defense to this action on the contract must fail. William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 637 (6) (a) (466 SE2d 872) (1995).

Decided September 29, 1997.

Walters, Davis & Pujadas, J. Harvey Davis, for appellant.

Kenneth E. Futch, Jr., Franklin D. McCrea, for appellee.

Moreover, the evidence relied upon by Farm Bureau to support its allegation of misrepresentation is inadmissible. OCGA § 9-11-56 (e) provides that affidavits in support of or in opposition to a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Alexandria’s doctor’s statement in the medical records about what her parents told him about their residence is rank hearsay. Although the record was attached to Conner’s affidavit, the relevant information was not within Conner’s personal knowledge. Finally, Farm Bureau also cites to the depositions of various persons, but those depositions are not included in the record and may not be considered. The trial court did not err in granting Allen’s motion for partial summary judgment.

Judgment affirmed.

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


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A97A1464.
    PREECE v. TURMAN REALTY COMPANY, INC.
    (492 SE2d 342)
   Smith, Judge.

Lisa Preece brought this action against her former landlord, Turman Realty Company, Inc., seeking treble damages and attorney fees pursuant to OCGA § 44-7-35 (c) for Turman’s failure to return her $300 security deposit. Turman answered with a general denial, and the case was tried before a jury. The parties agreed during the trial to allow the court to decide the issue of attorney fees should the jury return a verdict in favor of Preece. Such a verdict was returned. The jury awarded Preece $900, but the trial court then refused to award attorney fees, finding that Turman “also expended funds for attorney representation, and the award of treble damages seems adequate to compensate [Preece] for all charges for legal representation.” We granted Preece’s application for discretionary appeal from that order.

The sole issue presented is whether the trial court was free to exercise discretion and deny Preece an award of attorney fees. We conclude that given the language of the statute and the jury’s verdict, an award of attorney fees was mandatory. The trial court erred, and we reverse that portion of the trial court’s order.

We note initially that contrary to Turman’s contention, Preece’s appeal was timely. OCGA § 5-6-38 (a) provides that “[a] notice of appeal shall be filed within 30 days after entry of an appealable decision or judgment.” (Emphasis supplied.) A judgment, although signed by a judge, is not “entered” until it is filed with the court clerk. OCGA § 9-11-58 (b). Although the record contains an earlier judgment signed by the trial judge, the record does not show that order was ever entered.

Attorney fees are recoverable only when specifically provided for by statute. Bearden v. City of Austell, 212 Ga. App. 398, 400 (4) (441 SE2d 782) (1994). OCGA § 44-7-35 (c) provides, in pertinent part, that “[a]ny landlord who fails to return any part of a security deposit which is required to be returned to a tenant pursuant to this article shall be liable to the tenant in the amount of three times the sum improperly withheld plus reasonable attorney’s fees.” The statute is perfectly clear and unambiguous. Pleasant v. Luther, 195 Ga. App. 889, 890 (1) (395 SE2d 79) (1990). Its language is mandatory: if the jury concludes from the evidence that the security deposit should have been returned, the landlord “shall be liable to the tenant” for treble damages “plus reasonable attorney fees.” (Emphasis supplied.) This language required the trial court to award attorney fees once the jury returned a verdict in Preece’s favor, provided that Preece properly proved them and they were reasonable. Compare Fleetwood Motor Homes &c. v. McGehee, 182 Ga. App. 151, 152 (1) (355 SE2d 73) (1987) (use of permissive term “may” in connection with recovery of costs and expenses including attorney fees in different statute connotes clearly that court has option of not allowing such recovery).

As noted, attorney fees may not be awarded absent proof of their value and reasonableness. In this case, although the record contains no transcript of the trial, the trial court’s order reflects that proof was presented that Preece’s attorney expended 8.25 hours on her case for a fee of $968.75 and that the trial court found both the time and the charges reasonable.

We reject Turman’s argument based upon the second portion of OCGA § 44-7-35 (c). That portion of the statute provides that “the landlord shall be liable only for the sum erroneously withheld if the landlord shows by the preponderance of the evidence that the withholding was not intentional and resulted from a bona fide error which occurred in spite of the existence of procedures reasonably designed to avoid such errors.” Turman argues that attorney fees were unwarranted because it presented evidence of procedures designed to avert such errors and that the trial court apparently concluded the deposit was withheld because of a bona fide error. The jury was the finder of fact on the issue of whether the security deposit was withheld intentionally. The jury’s award of treble damages makes clear its finding of such intentional withholding. The trial court was not free to disregard that verdict in ruling on the issue of attorney fees.

Decided September 29, 1997.

Ronald S. Iddins, for appellant.

Thomas L. Thompson, Jr., for appellee.

Judgment reversed.

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


author: Johnson, Judge.

text:
    A97A1474.
    REYNOLDS v. L & L MANAGEMENT, INC.
    (492 SE2d 347)
   Johnson, Judge.

Roderick Mayberry worked at a Burger King restaurant and held the position of “team leader.” As team leader, Mayberry was responsible for ensuring “good customer service” and supervising his co-workers. When Robin Reynolds, a customer, complained to a cashier about service in the restaurant and demanded a refund of her money, Mayberry, as team leader, intervened to resolve the complaint. The exchange between Mayberry and Reynolds became heated and ultimately culminated in Mayberry intentionally striking a stack of trays with Ids fist, causing them to hit Reynolds in the face. Reynolds brought an action against the restaurant’s operator, L & L Management, Inc. (hereinafter “L & L”), under theories of respondeat superior and negligent hiring, retention and supervision. The trial court granted L & L’s motion for summary judgment. This appeal followed.

1. Reynolds argues that the trial court erred in granting summary judgment to L & L because genuine issues of material fact remain regarding whether Mayberry was acting within the scope of his employment when the alleged assault occurred. We agree and reverse.

The record reveals that after Reynolds ordered and paid for her food, she was asked to wait as several other customers who placed their orders after her were served. Believing that the employees had decided not to serve her, Reynolds demanded that the cashier refund her money. Mayberry asked Reynolds what the problem was, and she responded that she wanted her money back because she was not being served. The evidence conflicts as to what transpired next.

According to Reynolds’ deposition, after she complained to May-berry about the service she told him: “Give me my money and then I’ll leave.” Mayberry then called her a “b-tch, and then he started to just curse me in a blue streak and just was hollering.” Reynolds looked at his name tag and said: “You’re the son of a b-tch who attacked my kid at Chattahoochee High School.” Mayberry responded: “I don’t have to put up with this sh-t,” then swung his fist into a stack of trays situated on the counter. The trays hit Reynolds in the face, injuring her. Reynolds immediately left the restaurant. She never received a refund of her money.

Mayberry deposed that his job as team leader involved attempting to satisfy customers. He first noticed Reynolds because “she was making a commotion about her order. She was complaining.” May-berry went to talk to her because “it was [his] position as team leader” to do so. He said he apologized to Reynolds for the delay and refunded her money. Mayberry then turned and started to walk away, thinking he had resolved the customer’s complaint. He had taken “maybe two steps” when Reynolds said: “You’re the SOB that broke my son’s nose.” According to Mayberry, Reynolds began cursing and pointing her finger in his face, at which point he asked her to leave the store, then pounded the trays, said he did not have to “put up with this sh-t,” and started walking out. As he walked out, the manager on duty asked him what was wrong, to which Mayberry replied: “Your customer is up there. Go ask her what’s wrong.” May-berry agreed with defense counsel’s statement that the whole incident started when Reynolds called him “the SOB who broke [her] son’s nose.” Mayberry admitted that had he not been team leader, he might not have had the conversation and confrontation with Reynolds.

“ ‘[T]he master is liable for the wilful torts of his servant acting in the prosecution and within the scope of the master’s business, and this is true even though the servant, at the time of the commission of such tort[,] may evidence anger, malice, or ill will.’ ” Rogers v. Fred R. Hiller Co., 214 Ga. App. 448 (1) (448 SE2d 46) (1994). A master rarely employs a servant with the expectation that he will commit a negligent or wilful tort, but if the act is done in the prosecution of the master’s business, the master will be liable. Jones v. Aldrich Co., 188 Ga. App. 581, 582 (1) (373 SE2d 649) (1988). Inquiry in these cases is directed not to the authority to commit the tort but to authority to accomplish a purpose in pursuance of which a wilful tort is committed. Rogers, supra. The test is whether the tort was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment. If a servant steps aside from his master’s business to do an act entirely disconnected from it and injury to another results, the master is not liable. Id. Where the tort is entirely personal to the employee, it is not within the scope of his employment and the employer is not liable. Id.

Viewing the evidence in favor of Reynolds as respondent to May-berry’s motion for summary judgment, and giving her the benefit of every doubt, we cannot say that, as a matter of law,. Mayberry’s assault on Reynolds was a purely personal act. Indeed, there was evidence that the tort was committed within the scope of the actual transaction of the restaurant’s business. Mayberry was performing the type of work for which he was hired, attempting to resolve a customer’s complaint about the restaurant, when the confrontation between the two started. By Reynolds’ account, Mayberry began “hollering” and “cursing” when she complained about the service and demanded a refund. In fact, by Mayberry’s own admission, a commotion had begun about the service before Reynolds made any comment about the school incident. Moreover, evidence that Mayberry asked Reynolds to leave the restaurant after she made the comment about her son, that Mayberry said Reynolds was now the manager’s customer after he struck the trays, and that Reynolds told Mayberry that she would leave when she got her money back, but did not get the refund before she was assaulted, suggests that Mayberry and Reynolds were still acting as employee/team leader and customer at the time of the incident.

The fact that Mayberry’s actions may have been mingled with personal motives or purposes does not automatically entitle L & L to summary judgment, since the presence of a personal motive or purpose in the servant’s mind does not affect the master’s liability, when the servant’s actions are done in the line of his duty and in the prosecution of his master’s work. See Bacon v. News-Press & Gazette Co., 188 Ga. App. 703, 704 (373 SE2d 797) (1988). It was at least a jury question as to whether or not there was a deviation and, if so, whether the deviation was so slight as to not affect the master’s responsibility for the servant’s act. Id. at 704-705.

The cases relied upon by L & L as requiring a contrary result are distinguishable. None of those cases involves the uninterrupted escalation of an argument between a customer and an employee performing one of the duties for which he is employed (i.e., attempting to resolve a customer complaint about the business). See Worstell Parking v. Aisida, 212 Ga. App. 605 (442 SE2d 469) (1994); Slaton v. B & B Gulf Svc. Center, 178 Ga. App. 701 (344 SE2d 512) (1986); Lucas v. Hosp. Auth. of Dougherty County, 193 Ga. App. 595 (388 SE2d 871) (1989); Mountain v. Southern Bell Tel. &c. Co., 205 Ga. App. 119 (421 SE2d 284) (1992). The mere fact that one of the many offending comments made during the heated exchange involved a matter unrelated to the restaurant does not necessarily take the incident out of the scope of the master’s business. There being a genuine issue of material fact as to the capacity in which Mayberry was acting at the time of the tort, the question must be resolved by a jury. The trial court erred in granting summary judgment in favor of L & L. Miller v. Honea, 163 Ga. App. 421, 422 (294 SE2d 629) (1982).

2. As to Reynolds’ claims based on other theories, however, we find no remaining genuine issues of material fact.

(a) L & L is not liable under a ratification theory based on evidence that it retained Reynolds’ money. For ratification to occur, the principal must accept and retain the benefits of the unauthorized act. See Hendrix v. First Nat. Bank of Savannah, 195 Ga. App. 510, 511 (1) (394 SE2d 134) (1990). The unauthorized act in this case was the assault, not the failure to refund Reynolds’ money. L & L did not accept or retain any benefit from the commission of the assault upon Reynolds.

(b) Summary judgment for L & L was also authorized as to Reynolds’ negligent hiring and retention claim. Reynolds’ assertion that Mayberry was in jail on apparently unrelated charges after this incident, a co-worker’s testimony after the assault that she was afraid to testify on deposition against Mayberry because he might “jump on” her, and Reynolds’ general comment on deposition that the restaurant was “one of the worst in Roswell” are not evidence that L & L knew or should have known of Mayberry’s alleged violent propensities before the assault at issue occurred. See generally Diaconescu v. Hettler, 210 Ga. App. 191, 193 (2) (435 SE2d 489) (1993).

(c) No triable issue was presented based on the theory that L & L negligently supervised Mayberry. Reynolds has pointed to no evidence supporting her claim that the assistant manager who was in the kitchen area preparing hamburgers could have prevented the assault at the front counter. The assistant manager deposed that he heard Mayberry apologize to Reynolds about the wait, at which point he heard Reynolds ask Mayberry if he was “the m-f that busted” her son’s nose and then fuss at Mayberry. The assistant manager testified that “then when I came around I heard trays.” There was no evidence that he should have arrived at the front counter sooner than he did or that had he done so, he could have prevented the assault. Indeed, Reynolds testified that Mayberry’s act of hitting the trays was “totally unanticipated,” that she “did not expect it” and “did not even have time to react.” Summary judgment for L & L was authorized as to this claim.

Decided September 29, 1997.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Peter L. Lublin, Scott H. Michalove, for appellant.

Swift, Currie, McGhee & Hiers, Robin F. Clark, L. Bruce Hedrick, Jr., for appellee.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A97A1157.
    LEEUWENBURG et al. v. CLARK et al.
    (492 SE2d 263)
   Blackburn, Judge.

Angela and Dennis Leeuwenburg (the purchasers) brought the underlying action against Michael and Florence Clark (the sellers) alleging fraud and breach of contract in connection with the sale of the Clarks’ single-family residence. The trial court granted the sellers’ motion for summary judgment on the breach of contract claim, and the purchasers appealed. The purchasers contend that the sellers failed to comply with the Purchase and Sales Agreement (Sales Agreement) provision requiring correction of any structural damage caused by termites.

The Sales Agreement contained several provisions relevant to the issues raised in this appeal. It required that “[n]o less than seven (7), but within thirty (30), days prior to the closing, the Seller shall cause to be made, at Seller’s expense, an inspection of the main dwelling from a licensed pest control operator. If visible evidence of active or previous infestation is indicated, Seller agrees, prior to closing, to (A) treat said infestation and correct structural damages resulting from said infestation and provide documentation evidencing correction of same and/or (B) provide documentation, satisfactory to lender (if applicable), indicating that there is no structural damage resulting from any previous infestation. Seller, at closing, shall provide a letter on a standard form in accordance with the regulations of the Georgia Structural Pest Control Commission, stating that the main dwelling has been inspected and found to be free from visible evidence of active infestation caused by termite or other wood destroying organisms.” The Sales Agreement also contained a survival clause which provided that “[a]ny condition or stipulation not fulfilled at time of closing shall survive the closing, execution and delivery of the Warranty Deed until such time as said conditions or stipulations are fulfilled.”

Decided September 11, 1997

Reconsideration denied September 30, 1997

Douglas R. Thompson, for appellants.

Gregory E. Stuhler, Anthony O. Lakes, for appellees.

Prior to closing the sellers provided an Official Georgia Wood Infestation Inspection Report to the buyers. The report indicated previous infestation of subterranean termites, but no active infestation. In bold underlined print, the report noted that “[i]f visible evidence of active or previous infestation is reported it should be assumed that some degree of damage is present and a diagram identifying the structure(s) inspected and showing the location of such evidence must be attached to this form.” It is undisputed that after the sellers received the wood infestation report, they did not provide documentation evidencing the repair of any structural damage or documentation evidencing that no structural damage was present and that the buyers were aware of the sellers’ failure to provide such documentation prior to closing, but elected to proceed anyway.

The present case is similar to Davi v. Shubert, 168 Ga. App. 420 (309 SE2d 415) (1983), relied upon by the trial court. Therein, we determined that a buyer who knew that the termite letter presented at closing did not conform to the contract waived any right he may have had under the contract with respect to the termite letter by proceeding with the closing. Id.

Because the Sales Agreement here specifically required the sellers to perform the obligations at issue prior to closing, and the buyers were aware of the breach before closing, the buyers waived such performance by proceeding with closing. This case is controlled by Davi v. Shubert, supra. A survival clause in the Sales Agreement cannot breathe life into a contract where, as here, the provision has been previously waived.

As there is no issue of material fact regarding the buyers’ waiver of their rights under the Sales Agreement, the trial court properly granted the sellers’ motion for summary judgment.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       In an earlier opinion, we affirmed, pursuant to Court of Appeals Rule 36, the trial court’s order granting the Clarks’ motion for summary judgment on the Leeuwenburgs’ claim for fraud.


author: Ruffin, Judge.

text:
    A97A1370, A97A1371.
    ANDERSON v. THE STATE (two cases).
    (492 SE2d 252)
   Ruffin, Judge.

Alphonzo Anderson was indicted for burglary, rape, two counts of aggravated sodomy, and robbery by sudden snatching. The first four counts related to acts allegedly committed against one victim. The fifth count, robbery by sudden snatching, involved a different victim. A jury found Anderson guilty of robbery by sudden snatching after the trial court severed Count 5 from the remainder of the case. Anderson appeals that conviction in Case No. A97A1371. In a subsequent trial, a jury found Anderson guilty of burglary, rape, and two counts of aggravated sodomy. In Case No. A97A1370, he appeals his convictions on those counts. For reasons which follow, we reverse the judgment in Case No. A97A1370 and affirm the judgment in Case No. A97A1371.

Case No. A97A1370

In this case, the victim testified that she awoke one night to find Anderson, whom she knew from her neighborhood, pulling her up by the throat. Anderson took her upstairs to a bedroom, removed the bottom portion of her clothing, and sodomized her. He then forced the victim to perform oral sex on him, after which he had vaginal intercourse with her and attempted, but failed, to penetrate her anally. The victim testified that she did not consent to any of these acts.

1. In his first enumeration of error, Anderson argues that the trial court improperly admitted into evidence an in-custody statement he gave to Officer Chuck Gammill. We agree and find that this error requires reversal.

Prior to trial, the trial court held a Jackson-Denno hearing regarding Anderson’s in-custody statement. Officer Gammill testified that when he first met with Anderson at the Clarke County Jail, he read Anderson his Miranda rights. According to Gammill, Anderson stated that he wanted to speak with an attorney. As described by Gammill: “I told him that that was fine. That the only reason I was there was to get his side of the story. If there was something that I needed to know that he may want to go ahead and tell me.” The trial court asked Gammill why he did not stop the interview when Anderson asked for counsel. Gammill explained: ‘Well, at that point I told [Anderson] that I was there to get his side of the story. I wanted to know his perspective on the events that had occurred. And if there was anything else that I needed to be looking into from anything that he told me that I would continue the investigation from there. At that point I said but it’s your right not to talk to me. If you don’t want to, you don’t have to. I then started down the steps in order to go get the deputies to put him back into the cell, and he said wait. I do want to talk to you. He summoned me back up the steps, and at that point I [again read him his Miranda rights and] took a statement from him.”

“Under the rule of Edwards v. Arizona, [451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981)], and Michigan v. Jackson, [475 U. S. 625 (106 SC 1404, 89 LE2d 631) (1986)], once an accused in custody invokes the right to counsel, he should not be subject to further interrogation by the authorities until counsel is present, unless the accused himself initiates further communication, exchanges or conversations with the police. [Cit.] If police initiate questioning after the invocation of the right to counsel, any uncounseled waiver of that right is invalid. [Cit.]” Roper v. State, 258 Ga. 847, 849 (1) (375 SE2d 600) (1989). Applying this standard, we conclude that Officer Gammill improperly continued to interrogate Anderson after he invoked his right to counsel.

(a) Citing Davis v. United States, 512 U. S. 452 (114 SC 2350, 129 LE2d 362) (1994), the State argues that Anderson’s request for counsel was unclear, ambiguous, and did not require Gammill to halt the interview. The trial court made no specific finding on this issue.

Under Davis, “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood-only that the suspect might be invoking the right to counsel, [precedent] do[es] not require the cessation of questioning. [Cits.]” (Emphasis in original.) 512 U. S. at 459; see also Jordan v. State, 267 Ga. 442 (480 SE2d 18) (1997) (discussing Davis). In this case, Gammill initially testified that Anderson stated “he thought that he should speak to an attorney before speaking with me.” Upon further questioning, Gammill admitted he could not recall Anderson’s exact words but believed that Anderson “did indicate ... he felt like he would probably want an attorney before speaking with [Gammill].”

Focusing on these statements, the State argues that Anderson never explicitly requested counsel. Gammill also affirmatively testified, however, that Anderson “said that he wanted an attorney.” Through his conduct, Gammill further acknowledged that Anderson invoked his right to counsel at the beginning of the interview. At that point, Gammill began to leave the interview area because, in his view, the meeting was over following Anderson’s request. Gammill clearly regarded Anderson’s statements as a request for counsel. The State’s claim that Anderson failed to unambiguously ask for counsel is without merit.

(b) We further find that Officer Gammill improperly interrogated Anderson after he exercised this right. The term “interrogation” is not limited to express questioning. Hibbert v. State, 195 Ga. App. 235, 236 (393 SE2d 96) (1990). It includes “ ‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. . . . Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.’ ” Id.

Gammill understood that Anderson wanted to speak with an attorney and stated that Anderson’s decision was “fine.” Nevertheless, Gammill encouraged Anderson to give “his perspective” of the events and stated that he might “want to go ahead and tell [Gammill]” about details that would help the investigation. The State argues that Anderson reinitiated the interview, and thus waived his right to counsel, by calling Gammill back from the exit stairway. Under the circumstances of this case, however, Anderson’s actions do not amount to a valid waiver. Anderson did not initiate additional conversation with Gammill, but instead responded to Gammill’s cajoling. Compare Jordan, supra at 445 (finding that defendant who repeatedly initiated conversations with police knowingly and intelligently waived any right to counsel he may have previously invoked). Anderson’s uncounseled waiver of his right to counsel is not valid. Roper, supra. His in-custody statement should have been excluded from evidence.

(c) We also find that the trial court’s error in allowing the statement into evidence was harmful. Although the offending statement does not contain a confession per se, it reveals that Anderson was in the victim’s house on the night in question and allegedly had consensual sexual relations with her. The admission placed him at the scene of the crime, thus gutting any possible defense that Anderson was not involved with the victim or at her home on the night of the incident. We cannot say that this admission did not contribute to the jury’s verdict of guilty on the burglary, aggravated sodomy, and rape charges. Accordingly, Anderson must be given a new trial. Roper, supra at 852; Mobley v. State, 164 Ga. App. 154, 158-159 (6) (296 SE2d 617) (1982).

2. Anderson’s second enumeration of error involves the admissibility of certain similar transaction evidence. Because this issue may arise during retrial, we now address it.

Anderson argues that the trial court erred in admitting evidence of a prior incident involving his common-law wife. According to Anderson, this incident was not sufficiently similar to the facts in this case and should have been excluded from evidence. We disagree.

Before the trial court admits similar transaction evidence, the State must show, among other things, that “there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. [Cit.]” Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991) . At a pretrial hearing regarding similar transactions, the State proffered the testimony of a female witness who had been Anderson’s common-law wife until 1983, when the couple ended their relationship. According to the proffer, Anderson “came to [the victim’s] house [one night in 1984]. He grabbed her by the throat. He drug [sic] her down the street, and he raped her twice at that instance.” The State also proffered evidence that Anderson tried to force the witness to perform oral sodomy on him.

“The rules regarding the use of similar transaction evidence are construed most liberally in cases involving sexual offenses. [Cit.]” Nichols v. State, 221 Ga. App. 600, 601 (3) (473 SE2d 491) (1996). The State’s proffer showed numerous similarities between the 1984 incident and the offense at issue in this case. The two incidents need not be identical. Guyton v. State, 206 Ga. App. 145, 146 (1) (424 SE2d 87) (1992) . The trial court did not abuse its discretion in finding that the 1984 incident was sufficiently similar to the crime charged and met all other requirements for admissibility. See id.

Anderson further challenges the evidence because the witness’ testimony at trial differed in some respects from the State’s proffer at the similar transaction hearing. The claimed disparity between the proffered evidence and the actual testimony, however, “has not been shown to have been known or anticipated by the State at the time of the hearing in the matter.” Meier v. State, 190 Ga. App. 625, 627 (3) (379 SE2d 588) (1989). Furthermore, we find that the differences cited by Anderson, such as the number of times Anderson forced the witness to have sex with him, do not dilute the similarity between this incident and the offense being prosecuted. Id. Accordingly, Anderson’s second enumeration of error has no merit.

3. In light of our decision in Division 1, we need not address Anderson’s other enumerations of error.

Case No. A97A1371

In his sole enumeration of error in this case, Anderson argues that the evidence was insufficient to support the jury’s guilty verdict on the robbery by sudden snatching charge. We disagree.

At trial, Cula Jackson testified that as she arrived home one night, a man approached her, pulled her purse from her arm, and fled. Police officers responding to the scene saw a man who fit the description of the robber. They pursued and eventually caught that individual, who still had Jackson’s purse with him. At trial, the officers identified Anderson as the individual they chased and apprehended with Jackson’s purse. One officer further testified that Anderson admitted taking Jackson’s purse when he was arrested. Anderson testified on his own behalf. He freely admitted that he stole Jackson’s purse. He denied, however, snatching it from her hand or arm. According to Anderson, he picked up the purse from Jackson’s porch after she placed it on the ground by her feet to unlock her door. He further testified that Jackson yelled at him as he ran away with the purse.

Decided September 3, 1997

Reconsideration denied September 30, 1997

James D. Crowe, Janet S. Willy, for appellant.

Under OCGA § 16-8-40 (a), “[a] person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y sudden snatching.” Anderson claims that he cannot be guilty of robbery by sudden, snatching because the evidence shows he took Jackson’s purse from her porch, rather than her arm. Jackson clearly testified, however, that Anderson snatched the purse from her arm. “Conflicting evidence is for resolution by the jury. [Cit.] Credibility of the witnesses is also a jury question. [Cit.]” Sanders v. State, 167 Ga. App. 404, 405 (3) (306 SE2d 697) (1983). Viewing the evidence in the light most favorable to support the verdict, we find the evidence sufficient to authorize a rational trier of fact to find Anderson guilty beyond a reasonable doubt of robbery by snatching. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Diggs v. State, 208 Ga. App. 875, 876 (2) (432 SE2d 616) (1993).

Furthermore, even if the jury believed Anderson’s account, the evidence was sufficient to support the verdict. As we have previously found, “ ‘[t]he meaning of presence is, not that the taking must necessarily be from the actual contact of the body, but if it is from under the personal protection, that will suffice.’ ” Bryant v. State, 213 Ga. App. 301, 302 (444 SE2d 391) (1994). “ ‘In order to prove a case of robbery by suddenly taking or carrying away the property of another without his consent, it is only necessary to show that the person robbed was conscious that something was being taken away from him, and that for any reason he was unable to prevent it.’ ” Id. Anderson admitted that Jackson began to yell after he took her purse. A jury could reasonably find that Jackson was conscious of a theft from her immediate presence. Anderson’s argument that he cannot be guilty of robbery by sudden snatching is without merit.

Judgment affirmed in Case No. A97A1371. Judgment reversed in Case No. A97A1370.

Birdsong, P. J., and Eldridge, J., concur.

Harry N. Gordon, District Attorney, James D. Love, Gerald W. Brown, Assistant District Attorneys, for appellee.


author: POPE, Presiding Judge.

text:
    A97A1483.
    WILLIAMS v. THE STATE.
    (492 SE2d 290)
   POPE, Presiding Judge.

Defendant Michael Williams was convicted of forgery in the first degree (OCGA § 16-9-1) and entering a vehicle with the intent to commit theft (OCGA § 16-8-18). On appeal, he challenges the sufficiency of the evidence against him, the trial court’s failure to give requested charges on lesser included offenses, and the trial court’s consideration at sentencing of defendant’s earlier first offender’s plea.

Thomas Staley and his friends were in Savannah for the weekend. When they returned to Staley’s van after lunch on River Street, they discovered that someone had entered the van and taken two bags. Staley later realized that his checkbook had been taken as well. There were greasy fingerprints on the driver’s side window, which had apparently been pushed down manually to allow entry.

The following day, defendant went to a bank and presented one of Staley’s checks. The bank employee testified that defendant identified himself as the payee oh the check and tried to cash it; defendant testified that he found the check on the street, went in and presented the check to a bank employee, and asked her if it was any good. Defendant denied ever being near Staley’s van on River Street, but the fingerprints on the van window matched his own.

1. Viewed in a light favorable to the verdict, this evidence was sufficient to enable rational jurors to find defendant guilty beyond a reasonable doubt of both forgery in the first-degree and entering a vehicle with the intent to commit theft. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant argues that requested charges should have been given on the lesser included offenses of forgery in the second degree and criminal trespass. Although these are lesser included offenses of forgery in the first degree and entering a vehicle with the intent to commit theft, respectively, the trial court did not err in refusing to give the requested charges because the evidence did not warrant them. See Moses v. State, 264 Ga. 313, 315 (2) (444 SE2d 767) (1994). Defendant denied having an intent to defraud, and he denied being anywhere near Staley’s van. Accordingly, the evidence showed either the commission of the offenses as charged, or the commission of no offense. See Parham v. State, 218 Ga. App. 42, 43 (3) (460 SE2d 78) (1995). Compare OCGA §§ 16-9-1 & 16-9-2 (intent to defraud is required element of forgery in second degree as well as forgery in first degree); and OCGA §§ 16-8-18 & 16-7-21 (b) (entering vehicle is required element of criminal trespass as well as entering vehicle with intent to commit theft).

3. Defendant also contends the trial court erred in considering his prior first offender plea in sentencing. Because a first offender who successfully completes his probation period “shall not be considered to have a criminal conviction,” OCGA § 42-8-62 (a), his record as a first offender cannot be used for purposes of sentencing him as a recidivist under OCGA § 17-10-7. Queen v. State, 182 Ga. App. 794 (1) (357 SE2d 150) (1987). The Supreme Court of Georgia has held, however, that consideration of a defendant’s first offender record in aggravation at sentencing is different: because evidence properly considered in aggravation is not limited to convictions but may include any reliable information tending to show a defendant’s general moral character, lack of remorse, and predisposition to commit other crimes, a first offender indictment, plea, and sentence are admissible at a sentencing hearing. Williams v. State, 258 Ga. 281, 286-287 (7) (368 SE2d 742) (1988); see also Devier v. State, 253 Ga. 604, 618-619 (9) (323 SE2d 150) (1984).

Citing Jones v. State of Ga., 212 Ga. App. 682, 683 (1) (442 SE2d 880) (1994), defendant argues that instead of considering the first offender indictment, plea, and sentence, the court should have required testimony regarding the underlying conduct. In Jones, which involved a condemnation proceeding under OCGA § 16-12-32, we held that the proper procedure was to present evidence regarding the defendant’s underlying behavior rather than relying on the first offender plea and record. In light of the Supreme Court’s holding in Williams, however, which unlike Jones deals directly with aggravation in sentencing, we decline defendant’s invitation to extend Jones to this situation. Accordingly, the trial court did not err in considering defendant’s first offender plea in sentencing.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

Decided September 15, 1997

Reconsideration denied September 30, 1997

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

       In Scott v. State, 216 Ga. App. 692, 694 (4) (455 SE2d 609) (1995), we incorrectly stated that the trial court erred in admitting a first offender plea for purposes of aggravation at a sentencing hearing. This case need not be overruled, however, as it is physical precedent only. See Court of Appeals Rule 33 (a).

       Defendant attempts to distinguish Williams on the grounds that the Supreme Court addressed this issue in the context of an ineffective assistance of counsel argument. But it is clear from the opinion that the Court’s rejection of the ineffective assistance claim was based on its conclusion that the first offender indictment, plea, and sentence were admissible. See Williams, 258 Ga. at 286-287.


author: Eldridge, Judge.

text:
    A97A2332.
    WEBB v. THE STATE.
    (492 SE2d 312)
   Eldridge, Judge.

Robert Bernard Webb appeals his February 26, 1997 conviction for aggravated battery, false imprisonment, and simple battery.

On May 6, 1995, Webb had a date with the victim. At approximately 3:00 a.m. the next morning, the victim took Webb to his parent’s home, where Webb took the victim’s car keys; grabbed the victim’s hair; forced her inside the house; hit the victim three times across the right side of her head; and had sex with her. The victim testified that, after being hit the third time, she heard a popping noise and lost hearing in her right ear; she felt dizzy and lightheaded; her head was spinning; her jaw was swollen and felt hot; and she was in a lot of pain. When the victim said she wanted to go home, Webb repeatedly told her that “There’s nothing wrong with you. Shut up. Shut up. . . . Stop crying.” Webb allowed the victim to leave at 7:00 a.m. that morning. The victim went to the hospital later that day, where she was diagnosed with a ruptured eardrum. The victim was treated for hearing loss for several months, but the injury had healed by the time of Webb’s trial.

At the end of the State’s case, Webb moved for a directed verdict, asserting that there was no evidence that the victim was deprived of a member of her body, that a member was rendered useless, or that she was disfigured. The motion was denied. The defense presented no witnesses. Webb was convicted on all charges. His motion for new trial was denied, and he appeals. Held:

1. Webb asserts that the trial court erred in failing to give a jury charge on the definition of “maliciously” as it applies to aggravated battery. However, the trial court “correctly charged the elements of the offense and [instructed the jury that] the State must prove each element beyond a reasonable doubt. Taylor v. State, 178 Ga. App. 817, 818 (2) (344 SE2d 748) (1986).” Blackwood v. State, 224 Ga. App. 486, 489 (2) (b) (480 SE2d 914) (1997). Further, the trial court gave definitions of intent and aggravated battery.

The descriptive term “maliciously” has “such obvious significanee and common understanding that there is no need to define it in the jury charge.” (Punctuation omitted.) Green v. State, 266 Ga. 550, 551 (468 SE2d 365) (1996), citing Jones v. State, 263 Ga. 835, 838 (439 SE2d 645) (1994); Gaddis v. State, 176 Ga. App. 526 (336 SE2d 587) (1985); see also Rosenthal v. Hudson, 183 Ga. App. 712 (360 SE2d 15) (1987). The defendant did not request a jury charge on the definition of the terms “malice” or “maliciously,” nor did he object to the trial court’s failure to give such charges. Accordingly, there was no error in the court’s failure to charge the jury on the definition of “maliciously.”

2. Webb asserts that the trial court should have granted his motion for a directed verdict, claiming that there was no evidence that any member of the victim’s body was rendered useless, that she was deprived of a member of her body, or that she was disfigured. “A verdict of acquittal may be directed where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. [Cit.]” (Punctuation omitted.) Grace v. State, 210 Ga. App. 718, 719 (2) (437 SE2d 485) (1993). However, on an appeal following a conviction, “the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

In this case, there is no dispute as to whether the victim’s eardrum was ruptured. While Webb asserts that the problem could have been caused by an unrelated trauma or infection, the victim asserts that it was caused by Webb’s striking the side of her head. The evidence presented supports a conclusion that, as a result of the ruptured eardrum, the victim “was deprived of her ability to [hear with that ear] for several weeks during which period her [ear] was rendered useless. To constitute the crime of [aggravated battery], there is no requirement that, in addition to being serious, the member of the victim be permanently rendered useless. The evidence in this case demonstrates, at the very least, serious temporary uselessness of [the victim’s right ear]. (Emphasis in original.) [Cits.]” (Punctuation omitted.) Keef v. State, 220 Ga. App. 134, 137 (1) (a) (469 SE2d 318) (1996); see also Taylor v. State, supra; Magsby v. State, 169 Ga. App. 637 (314 SE2d 473) (1984); Jackson v. State, 153 Ga. App. 584 (266 SE2d 273) (1980). Such evidence is sufficient to justify the trial court’s denial of a directed verdict of acquittal.

3. Webb also complains that the trial court erred in instructing the jury that evidence of “reduced use of a member of one’s body may be sufficient to render it useless. This, of course, is a matter — a question of fact for the jury to decide based on the evidence before you.”

Decided September 17, 1997

Reconsideration denied September 30, 1997.

Michael J. Reily, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Gregory J. Lohmeier, Assistant District Attorneys, for appellee.

The trial court’s definition of “useless” is supported by the majority’s opinion in Taylor v. State, supra at 817-818 (1), a case in which the victim suffered an eye wound that resulted in a temporary total loss of vision and potentially permanent blurry vision. This Court held that “[i]t is not necessary that the victim suffer the total loss of his member in order to be the victim of an aggravated battery. [Cit.] Blurred vision is evidence that an eye has been rendered useless. . . . The fortuitous fact that complete and permanent blindness did not result hardly suffices to create a fatal variance between allegata and probata.” (Punctuation omitted.) See also Keef v. State, supra.

In this case, the evidence presented, viewed in the light most favorable to the verdict, supports a conclusion that the victim suffered a substantial, albeit temporary, loss of hearing as a result of her ruptured eardrum. Even though the specific disputed charge may have been unclear, “[o]n review the charge must be considered as a whole and each part in connection with every other part of the charge. (Cit.)” Rosenthal v. Hudson, supra at 714 (5). The jury was charged with the elements of aggravated battery and with the State’s burden of proof beyond a reasonable doubt; they were also instructed that they must decide if the ear was rendered useless. As such, any error in the trial court’s instructions was harmless.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       However, in a special concurrence to Taylor v. State, supra at 820, Judge Beasley asserted that the term “useless” requires that “substantial or virtual” loss of the use of the bodily member must be shown, implying that a slight reduction in use is insufficient to support a conviction for aggravated battery. Even so, she noted that “[slince the jury could conclude from this evidence that there was a substantial loss of eyesight, a substantial loss of the use of that eye, I would agree that the conviction should be affirmed.” Id.


author: Pope, Presiding Judge.

text:
    A97A0918.
    COLLINS v. EAST R. S., INC.
    (492 SE2d 351)
   Pope, Presiding Judge.

Plaintiff was injured in the fitness room of an apartment complex managed by defendant. After the jury returned a verdict for plaintiff, the trial court granted defendant a judgment notwithstanding the verdict (j.n.o.v.). We have reviewed the submitted portions of the trial transcript in a light most favorable to plaintiff, see Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554) (1983), but have nonetheless found no evidence of superior knowledge of a dangerous condition on the part of defendant. Accordingly, we affirm.

Plaintiff went to the fitness room to work out on an old but standard Universal machine. He was an experienced weight lifter and had used that particular machine once or twice before. Looking at the machine, plaintiff saw nothing abnormal. He then lay down on a bench at the bench press station, but before he had even touched the handlebars, they fell on his head, seriously injuring him. Nothing like this had ever happened before; indeed, there was no evidence of any prior accidents or problems with the machine at all.

The handlebars involved in plaintiff’s accident were attached to a stem which inserted into a sleeve in the main part of the Universal machine. The placement of the handlebars (in terms of their horizontal distance out from the main body of the machine) could be adjusted by means of a pin. This pin would go through a fixed hole on the main part of the machine and then into one of a series of holes on the stem attached to the handlebars, thereby securing the handlebars in position. The user could adjust the bars by pulling the pin out, moving the handlebars closer to or farther from the main part of the machine, and then replacing the pin to secure the handlebars in the new position. At the time of plaintiff’s accident, someone apparently had removed the pin and not properly replaced it, leaving the handlebar stem loose in its sleeve.

1. When the alleged liability of a defendant is based solely on its status as the owner or operator of the premises on which an injury has occurred, the defendant’s liability must be premised on superior knowledge of the dangerous condition which caused the injury. See, e.g., Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992). The defendant’s knowledge may be actual or constructive; and constructive knowledge may be based either on evidence that the dangerous condition lasted so long that the defendant should have discovered it, or on evidence that an employee of defendant was in the immediate vicinity and could have easily seen the problem. See Lonard v. Cooper & Sugrue Properties, 214 Ga. App. 862, 863-864 (449 SE2d 348) (1994). Additionally, the plaintiff must show that he or she was exercising due care, yet still failed to see the danger. See Sumner v. Ideal Steel Products, 222 Ga. App. 681 (475 SE2d 708) (1996).

Decided September 30, 1997.

Eugene R. Kiser, for appellant.

2. Plaintiff first argues that defendant had constructive knowledge of the improperly placed pin (and thus knowledge superior to his) because defendant should have discovered it through inspection. As there was evidence that defendant followed its routine of inspecting the fitness center daily on the day of the accident, however, and there was no evidence showing how long the pin was out of place, plaintiff cannot rely on this theory of liability. See J. H. Harvey Co. v. Johnson, 211 Ga. App. 809 (440 SE2d 548) (1994).

3. Plaintiff also contends that even if defendant did not know the pin was actually out of place, defendant — unlike plaintiff — did know the pin could be removed and should have foreseen that it might not be properly replaced. Thus, plaintiff asserts defendant had superior knowledge of a potential danger and a resulting duty to warn. But superior knowledge of the pin’s removability does not automatically translate into superior knowledge of a danger. Though defendant knew the pin might be removed and not properly replaced, it did not know of the danger because the circumstances of plaintiff’s accident were simply not foreseeable. Even in retrospect, it is hard to imagine how plaintiff’s accident could have happened. The expected result of an out-of-place pin would be that the stem of the handlebars would not be in the sleeve in the main part of the machine at all, or that the stem would at least be cockeyed or visibly askew so that anyone exercising due care would notice that something was wrong before they lay down underneath the handlebars. That someone would leave the stem in the sleeve loose but perfectly balanced, so that it would look normal but fall as soon as it was jarred, can only be considered an unforeseeable occurrence for which the apartment manager is not liable as a matter of law. See Zellers v. Theater of the Stars, 171 Ga. App. 406, 407 (1) (319 SE2d 553) (1984); Sutton v. Sutton, 145 Ga. App. 22, 24-25 (1) (243 SE2d 310) (1978) (a person is not expected to foresee and warn against dangers which are not reasonably expected and would not occur except under exceptional circumstances). Accordingly, the j.n.o.v. for defendant was properly granted.

Judgment affirmed.

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

Webb, Carlock, Copeland, Sender & Stair, Wayne D. McGrew III, John W. Sandifer, Gregg A. Landau, for appellee.


text:
    A97A1803.
    BROWN v. PIGGLY WIGGLY SOUTHERN, INC. et al.
    (493 SE2d 196)
   Blackburn, Judge.

This is the second appearance of this case before us. In Piggly Wiggly Southern v. Brown, 219 Ga. App. 614 (468 SE2d 387) (1995), this Court affirmed the trial court’s denial of summary judgment to Piggly Wiggly Southern, Inc. and Gilbert Braddock (collectively Piggly Wiggly) on Margaret Brown’s claim for damages she allegedly suffered when she slipped and fell in a puddle of water at a Piggly Wiggly grocery store. Upon remittitur to the trial court, Piggly Wiggly filed an amended motion for summary judgment, submitting two additional affidavits. The trial court thereupon granted Piggly Wiggly’s amended motion for summary judgment, and Brown appeals.

1. Brown contends that the law of the case rule precluded the trial court from granting Piggly Wiggly’s amended motion for summary judgment. “[T]he law of the case rule has formally been abolished except as it applies to rulings by one of the appellate courts; they are binding in all subsequent proceedings.” Continental Corp. v. Dept. of Transp., 185 Ga. App. 792, 793 (1) (366 SE2d 160) (1988). The rule is set forth in OCGA § 9-11-60 (h), which states that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.”

“An exception to the rule that will permit issues to be relitigated after appeal is when the evidentiary posture of the case changes. . . . The evidentiary posture of a case changes so as to bar application of the law of the case rule . . . when the original evidence submitted is found to be insufficient, and the deficient evidence is later supplemented.” McLean v. Continental Wingate Co., 222 Ga. App. 805, 807 (1) (476 SE2d 83) (1996). “Thus, if subsequent to an appellate decision, the evidentiary posture of the case changes in the trial court, the law of the case rule does not limit or negate the effect that such change would otherwise mandate.” (Emphasis supplied.) Modern Roofing &c. v. Owen, 174 Ga. App. 875, 876 (1) (332 SE2d 14) (1985).

In this case, Piggly Wiggly submitted two additional pieces of evidence following our earlier decision. First, it submitted an additional affidavit from its former employee James Hampton. This affidavit clarified and explained his prior affidavit, which had been submitted by Brown and which we relied upon in affirming the denial of summary judgment. See Piggly Wiggly, supra at 616. Second, it submitted the affidavit of its former manager, Gilbert Braddock, regarding Piggly Wiggly’s inspection procedures at the time of the incident.

Accordingly, as Piggly Wiggly has expanded the evidentiary record, we must consider whether the new evidence demands summary judgment for Piggly Wiggly. Our review is limited to the effect of the new evidence, and we are precluded from reconsidering previously decided issues except to the extent of the additional evidence. See Modern Roofing, supra at 875-876 (1) (“ ‘ “all questions as to . . . the effect of evidence adjudicated by this court are binding as the law of the case on this court and ... in the court below, unless additional pleadings and evidence prevail to change such adjudications” ’ ”).

2. “In order to recover for a slip and fall due to a foreign substance on the floor, the plaintiff must show that the defendant had actual or constructive knowledge of the hazard, and that the plaintiff was without equal knowledge of such. Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980).” (Punctuation omitted.) Piggly Wiggly, supra at 615-616.

Brown’s lack of knowledge of the water on the floor was resolved in Brown’s favor in our previous decision, in which we held that “we cannot say (as a matter of law) that the small puddle of water which caused Margaret Brown’s fall was such an open and obvious danger that the average shopper, in the exercise of ordinary care, would have observed the puddle and avoided it.” Id. at 618. The only new evidence arguably touching on this issue is Hampton’s second affidavit, in which he stated that “[t]here was nothing that would have prevented anyone who was looking at the floor from seeing the puddle as they approached.” However, this statement is merely Hampton’s conclusion and adds nothing material to the facts in the record when we issued our earlier decision. Indeed, Brown stated in her deposition that nothing would have prevented her from seeing the puddle if she had looked down. Notwithstanding this statement, we held that there was a factual issue as to Brown’s exercise of ordinary care, stating that “[a]n invitee is simply not required to look for defects continuously and without interruption.” (Punctuation omitted.) Id. at 617. Accordingly, as Piggly Wiggly has not materially added to the record on this issue, the law of the case rule precludes us from revisiting this issue in this appeal. See Modern Roofing, supra at 875 (1) (law of the case rule applicable to appellate court as well as court below); see also Gregory, Ga. Civil Practice (1990), § 7-5, p. 566 (“once an appellate [court] announces a decision on an issue that is the law of that case not only for the trial court but for the appellate court as well”).

3. (a) The sole question therefore becomes whether or not Piggly Wiggly had actual or constructive knowledge of the water on the floor. In our earlier opinion, we held that there was evidence “that a Piggly Wiggly employee had actual knowledge of the hazard which caused Margaret Brown’s fall.” Piggly Wiggly, supra at 616. This holding was based upon the first affidavit of James Hampton, a Piggly Wiggly bag boy, stating that “I remember seeing water on the floor in the produce section on the morning Margaret Brown fell.” Id. at 622. Drawing all inferences in favor of Brown, we held that this affidavit constituted evidence of Hampton’s actual knowledge of the water puddle. After our decision, however, Hampton submitted a second affidavit clarifying that “I did not see any ice or water on the store’s floor . . . the morning of September 14, 1991, before I heard Margaret Brown say that she had fallen in some water.” Hampton testified that the statement in the original affidavit referred to the water he saw after Brown fell.

Hampton’s earlier affidavit, standing alone and viewed in a light most favorable to Brown, supported an inference that he had actual knowledge of the water on the floor before Brown fell. The second affidavit makes it clear that no such inference can be drawn. The second affidavit does not contradict the first so as to create a question of fact on this issue, since the first affidavit does not state that Hampton saw the water before the fall. Accordingly, under the present state of the record, there is no evidence that Piggly Wiggly had actual prior knowledge of the hazard.

(b) We must now consider whether there is evidence that Piggly Wiggly had constructive knowledge of the water. As we held in our earlier opinion, “ ‘[constructive knowledge may be established by showing that an employee of the proprietor was in the immediate area of the hazardous condition and could have easily seen the substance or that a foreign substance remained on the floor for such a time that ordinary diligence by the proprietor should have effected its discovery. Jester v. Ingles Market, 206 Ga. App. 327, 328 (425 SE2d 323) (1992).’ Foodmax v. Terry, 210 Ga. App. 511 (1) (436 SE2d 725).” Piggly Wiggly, supra at 617, n. 3.

In our previous decision we found there was evidence of constructive knowledge under either of these alternatives. With respect to the presence of an employee in the vicinity, we noted that “Margaret Brown testified that a Piggly Wiggly employee was near the area where she fell, loading ice into a container, and Brown’s diagram of the store shows that the presumably busy cash register area was near the area where she fell.” Id. In his new affidavit, Braddock stated that the ice machine was located in the stock room behind two swinging saloon-type doors, and that “any employee who might have been working at the ice machine in the stock room at the time plaintiff fell would not have had a view of the floor in the area where plaintiff fell.” However, this testimony does not materially add to what was in the record when we issued our original decision. In her deposition testimony, which was before us in the prior appeal, Brown testified that, while she was on the ground after she fell, she saw the employee shoveling ice through the swinging doors in the back area. As Braddock’s new testimony is essentially cumulative of evidence already in the record, Piggly Wiggly has not provided new evidence which demands a different result and authorizes this Court to avoid application of the law of the case rule in this matter. Furthermore, since Brown could see the employee from the floor where she fell, a jury question remains as to whether the employee could see the floor, notwithstanding Braddock’s testimony to the contrary.

With respect to the amount of time the water was on the floor, Hampton testified in his original affidavit that, on the morning in question, he saw the produce man icing down the produce section around 9:00 a.m., one to two hours before the accident. He noted that on several occasions he had seen chunks of ice fall to the floor while being transported or while the produce man was pouring ice under the fruit and vegetable tray. He also stated that he had seen puddles in and around the produce section caused by chunks of ice falling to the floor and melting, and that on more than one occasion such water had remained on the floor for a long time.

Based on this evidence, we held that “[t]here is also proof which would authorize a finding that this puddle was caused by melted ice dropped by the man in charge of the produce section [and] that this patch of melted ice water had been on the floor for at least two hours before Margaret Brown’s fall (or at least long enough for the ice to melt).” Id. at 617-618. The new evidence submitted by Piggly Wiggly does not eliminate the right of the jury to draw such an inference from the evidence. Although Hampton states in his second affidavit that he did not see ice fall to the floor while the produce man was icing down the produce counter on the morning in question, he does not affirmatively state that no such ice fell, nor does he indicate that he was watching the produce man at all times and would have been able to determine whether or not any ice fell onto the floor. It is clear from Hampton’s testimony that ice often fell to the floor during the icing process, and that it often remained on the floor for long periods of time. Given the fact that there was a water puddle on the floor in the produce section, the jury could conclude that the water was caused by ice dropped by the produce man which had been on the floor long enough to melt before the incident. Accordingly, the jury could conclude that the water had been on the floor for a sufficient length of time to allow Piggly Wiggly to discover the hazard. Indeed, the jury could find that the water came to be on the floor through the direct actions of a Piggly Wiggly employee, and it therefore had immediate notice of the hazard and the need to clean it up. The fact that water often fell onto the floor during the icing process could also be considered by the jury in determining that Piggly Wiggly had a duty to neutralize such hazards as they occur.

In his affidavit, Braddock states that he walked the store’s floor between 7:30 and 8:00 a.m. the morning in question and every hour thereafter, and that he was not aware of any water on the floor until after Brown fell. He does not state positively that there was no water present as he “walked” the floor, nor does he state that he specifically inspected the floors for the existence of water and found none. Nothing in Braddock’s affidavit indicates that he inspected the portion of the floor where the water was in fact located. Indeed, Braddock does not even state that the floor was clean when he inspected it; he merely states that “my first knowledge of ice or water being on the floor was after plaintiff reported that she had fallen.” In his deposition testimony, Braddock stated that “the usual procedure is, you know, like I say, approximately every hour is to go through and walk and look for anything across the ends of the aisles and up and down the aisles while I’m out with the customers .and things like that. And anything that we see is cleaned up.” It appears from Braddock’s testimony that he merely walked through the store, casually looking for any problems between dealings with customers’ questions, and that he did not pay any particular attention to the produce area, notwithstanding the regular dropping of ice in such area. Given the frequency with which water was spilled in the produce section, the difficulty in seeing water on the floor, and the fact that water often remained on the floor for long periods of time, the jury could conclude that a more thorough inspection of the produce section was required. Thus, even taking into consideration Braddock’s new testimony, the jury would be free to conclude that the water was on the floor for a significant length of time and Braddock merely failed to observe it.

Furthermore, although Braddock claims in the affidavit that all employees were instructed to be on the lookout for spills or hazards, Hampton stated in his first affidavit that he was never instructed by Braddock to inspect for water or other substances on the floor. Hampton testified that water often remained on the floor for long periods of time, and that the puddle in which Brown slipped was not cleaned up for a long time after the accident. Accordingly, the jury would be free to disbelieve Braddock’s testimony regarding Piggly Wiggly’s inspection and cleanup procedures, or to find that Piggly Wiggly did not follow such procedures on the date in question.

For all of the above reasons, the new evidence submitted by Piggly Wiggly does not expand the evidentiary posture of the case in such a material way as to require a different result from our earlier decision. Accordingly, the trial court erred in granting Piggly Wiggly’s amended motion for summary judgment.

Decided September 30, 1997.

Walbert & Mathis, Charles A. Mathis, Jr., Thomas M. Jackson, for appellant.

Jones, Cork & Miller, Timothy Harden III, for appellees.

Judgment reversed.

Pope, P. J., and Johnson, J., concur.

       Our previous opinion referred to Braddock as “Gilbert Bradley,” the name used in many of the pleadings below.


text:
    A97A2129.
    DANIEL v. THE STATE.
    (492 SE2d 542)
   Johnson, Judge.

Richard Daniel was convicted of involuntary manslaughter. He appeals the denial of his motion for new trial. In his sole enumeration of error, Daniel asserts that trial counsel was ineffective.

The evidence presented at trial showed that Daniel and the victim, Randal Eugene Pack, were inmates in the same cell block at the Gordon County Jail. The men had known each other before they were incarcerated, and according to Daniel’s testimony at trial, Pack had taken “advantage of me a whole lot since I had known him.” For example, Pack owed Daniel $250 for marijuana, and since he had been in jail, Pack had continually asked to share Daniel’s contraband tobacco products, but never reciprocated when Pack had some. Finally, on February 24, 1996, “it just flew all over” Daniel when Pack and several other prisoners went to Daniel’s cell to visit and smoke. Daniel told Pack he was not going to be taken advantage of any longer and invited Pack to go downstairs in the cell block to fight “like men.” According to the testimony of several inmates who witnessed the fight, Pack distracted Daniel by looking toward a window and then took a first “sucker” punch, splitting Daniel’s lip and told Daniel that he was going to hurt him. After a short, violent skirmish, Daniel got his hands around Pack’s neck, thinking that he could choke him enough to make him black out. When Pack lost consciousness, Daniel slapped him in the face and walked upstairs to rinse his mouth. Despite resuscitation efforts, Pack died.

Daniel asserts he was denied effective assistance of counsel at trial. In denying Daniel’s motion for new trial, the trial court found that Daniel’s trial counsel was not ineffective.

“To establish ineffective assistance of counsel, [Daniel] must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citations and punctuation omitted.) Sartin v. State, 223 Ga. App. 759 (479 SE2d 354) (1996). “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citations and punctuation omitted.) Rogers v. State, 210 Ga. App. 164 (2) (435 SE2d 457) (1993). The trial court’s finding in this case is not clearly erroneous, and we affirm.

Although Daniel enumerates ten separate sub-parts in support of his assertion that trial counsel was ineffective, discussion of these grounds is presented in the brief in a single section captioned “The Nature of Mr. Thompson’s Representation of Appellant” followed by a second generalized section captioned “Legal Analysis.” This rambling discussion, which fails to link the asserted error with pertinent authority, makes review of the asserted error unnecessarily difficult and is in direct contravention of Court of Appeals Rule 27 (c) (1). See Arnold v. State, 210 Ga. App. 843, 844 (437 SE2d 844) (1993). To facilitate our review, we have grouped these allegations into several categories.

Pretrial preparation: At the hearing on the motion for new trial, trial counsel testified that he developed a three-part defense strategy after reviewing the statement Daniel gave to law enforcement officers about the incident. First, he intended to establish that the facts of this case were consistent with misdemeanor rather than felony involuntary manslaughter. Second, the attorney stated he intended to introduce testimony establishing that Daniel acted in self-defense. Finally, the attorney stated that he intended to introduce mitigating evidence, such as Daniel’s attempt to assist in administering CPR to Pack. There is no merit to Daniel’s allegation that trial counsel failed to present a defense. Decisions regarding which defense or defenses to pursue at trial are a matter of strategy with which this Court will not generally interfere. See Sutton v. State, 210 Ga. App. 247, 248 (2) (435 SE2d 748) (1993).

The trial attorney testified that in preparation for trial he reviewed the district attorney’s file in its entirety, including transcripts of interviews with eyewitnesses. He also interviewed another eyewitness to the incident whom he knew to be trustworthy and two police officers who had knowledge of the incident. He testified that he met with Daniel initially to give him a copy of his statement and explained that they would need to discuss it in detail. He returned to the jail to review the statement in detail prior to trial. Therefore, Daniel’s assertions that trial counsel failed to adequately meet with him before trial and failed to conduct any pretrial investigation are unsupported by the record.

Daniel also asserts that trial counsel failed either to interview or call an eyewitness whose accounts of the incident would have been favorable to Daniel. At the motion for new trial hearing, Eric Eli Edwards testified about the incident. Edwards’ description of the fight was substantially the same as that which had been introduced at trial through other witnesses. The court asked Daniel’s counsel to identify any new evidence this witness offered which would have been beneficial to Daniel. Counsel stated that evidence that Pack was apparently getting the better of Daniel in the fight had not been brought out “sufficiently” by the other witnesses. Decisions regarding which witnesses will be called are a matter of trial strategy and tactics, and even a tactical error does not constitute ineffective assistance of counsel. See Elrod v. State, 222 Ga. App. 704, 707 (3) (475 SE2d 710) (1996).

Medical examiner: Daniel asserts that trial counsel’s failure to interview the medical examiner, introduce him as a witness, and counsel’s stipulation as to the cause of death constituted ineffective assistance of counsel. A certified copy of the death certificate showing that Pack died of “strangulation” was introduced at trial. The examiner testified at the motion for new trial hearing that death from strangulation can occur in two ways, but he concluded that these technicalities would not have altered his bottom line testimony regarding the cause of Pack’s death as stated on the certificate. Counsel testified that he decided not to call the medical examiner as a witness because he did not want the jury to dwell on the actual death of Pack. This was a tactical decision made by counsel, which does not equate with ineffective assistance. See Karvonen v. State, 205 Ga. App. 852, 853 (2) (424 SE2d 47) (1992).

Errors at trial: Daniel asserts that counsel was ineffective because he failed to request a continuance. This issue is unsupported by argument or citation of authority and is therefore deemed abandoned. See Court of Appeals Rule 27 (c) (2).

Daniel asserts that trial counsel failed to object at two critical points during the prosecution’s closing argument. The state argued to the jury that Pack had broken his hand on the first punch and implied that, as a result of that injury, he could not have injured Daniel further. Daniel argues that no evidence that Pack had a broken hand was introduced at trial. However, when a photograph of Pack’s hand taken after his death was shown to one of the state’s witnesses, he identified abrasions and swelling which he characterized as looking almost like a break on the knuckle. During closing argument, “[c]ounsel are permitted to make reasonable deductions from the evidence, and upon these deductions an attorney may make almost any form of argument he desires.” (Citation and punctuation omitted.) White v. State, 208 Ga. App. 885, 890 (6) (432 SE2d 562) (1993). Daniel also asserts that trial counsel should have objected to the prosecutor’s remark that “the jury needed to render a guilty verdict to support the sheriff and his staff.” This is a material misstatement of the closing argument. Instead, counsel argued as follows: “And ladies and gentlemen, when you retire to the jury room, don’t just say, “Well, it’s just a bunch of jailhouse mess that doesn’t mean anything.’ Your verdict means something. Your verdict means something to Sheriff Sid Roberts and his staff, so let it be carefully considered.” Daniel does not show how the argument made was harmful or improper. Moreover, trial counsel’s decision not to object to these portions of the state’s closing argument falls within the ambit of trial strategy. See Powell v. State, 210 Ga. App. 409, 413 (6) (b) (437 SE2d 598) (1993).

Finally, Daniel asserts trial counsel was ineffective because he did not request a jury charge on the defense of accident. Such a charge was not supported by the evidence in this case. See Grubbs v. State, 167 Ga. App. 365, 367 (2) (306 SE2d 334) (1983). Goodwin v. State, 262 Ga. 903 (427 SE2d 271) (1993), relied upon by Daniel, is distinguishable. In Goodwin, evidence was presented that the parties were roughhousing and not engaged in mutual combat; there was no physical evidence of forcible injury, and the cause of death was not strangulation. Here, Daniel admitted that he intended to choke Pack, hoping to render him unconscious. Because the evidence in his case does not authorize a charge on accident, trial counsel was not ineffective for failing to request one.

Daniel has failed to establish either that trial counsel’s performance was deficient or that there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s conclusion that Daniel’s trial counsel was effective was not clearly erroneous and will not be disturbed.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

Decided September 19, 1997

Reconsideration denied October 1, 1997

Sandra L. Michaels, for appellant.

T. Joseph Campbell, District Attorney, for appellee.

       In his brief, Daniel argues three issues not contained in the enumerations of error. Accordingly, they will not be addressed. There must be a direct and logical relationship between the enumerations of error and arguments contained in briefs. Court of Appeals Rules 22 and 27. Arguments in briefs may not exceed the scope of the enumerated error, enumerations of error cannot be amended or supplemented, and an appeal will be dismissed for failure to file separate enumerations of error. Lewis v. State, 226 Ga. App. 344 (487 SE2d 533) (1997); Rice v. State, 224 Ga. App. 725, 729 (3) (481 SE2d 839) (1997); McGrow v. State, 199 Ga. App. 389, 390 (405 SE2d 53) (1991).


text:
    A97A0892.
    DISMER v. LUKE et al.
    (492 SE2d 562)
   Ruffin, Judge.

This appeal raises two issues: (1) whether the Glynn County Superior Court had jurisdiction to review a probate court order assessing attorney fees for frivolous litigation under OCGA § 9-15-14 against a caveator to a will, and (2) whether the superior court erred in concluding that a jury should decide whether sanctions under OCGA § 9-15-14 should be awarded. While we find that the superior court had jurisdiction over the appeal from the probate court, we reverse the superior court’s order permitting a jury to determine the question of sanctions, as the clear language of OCGA § 9-15-14 required the court to decide that issue.

On November 4, 1994, Alicia Dismer filed with the Glynn County Probate Court a petition to probate in solemn form the will of Edward Trapier Rogers. Margaret Luke filed a caveat to the will, claiming that the will was not voluntarily made, was the result of undue influence, was not properly executed and service was not properly perfected. In an order dated May 8, 1995, the probate court granted the petition to probate, which implicitly denied the caveat. Dismer then filed a motion requesting that attorney fees and litigation costs under OCGA § 9-15-14 be assessed against Luke and Luke’s attorney for filing a meritless and frivolous caveat. On October 10, 1995, the court, in a final order, granted the motion and awarded Dismer $4,835.07 in attorney fees. Luke and her counsel appealed the probate court’s assessment of fees to the superior court, which set aside the award and ruled that the question of whether sanctions should be awarded against Luke and her attorney is a jury question. Dismer appealed to this Court, arguing that the superior court’s decision was “in direct conflict with the explicit language of OCGA [§] 9-15-14.”

1. Before addressing the merits of Dismer’s appeal, we must first determine whether the superior court had jurisdiction to review the probate court’s award. “The general statutory meaning of an appeal from an inferior court to a superior court is that, after having been tried in the inferior court, the jurisdiction of the entire case is transferred to the superior court for ...” a trial de novo. Hartley v. Holwell, 202 Ga. 724, 726 (44 SE2d 896) (1947). An appeal to superior court from the probate court can be had as long as the probate court has reached a final judgment; the superior court’s appellate jurisdiction does not extend to interlocutory rulings. Driver v. State, 198 Ga. App. 643, 644 (402 SE2d 524) (1991); Hartley, supra; see also Knowles v. Knowles, 125 Ga. App. 642, 645 (1) (188 SE2d 800) (1972).

Luke’s appeal attacking the fee award was from a final judgment of the probate court, and as such the superior court had jurisdiction. Dismer’s probate court petition seeking (1) permission to prove the will in solemn form, (2) admission of the will to the court record and (3) issuance of letters testamentary so that she could perform her duties as required under the will was resolved when the probate court admitted the will to probate in its May 8 order. All of the issues raised in Luke’s caveat were resolved by the same order. The final chapter of this litigation ended when the probate court awarded fees to Dismer pursuant to OCGA § 9-15-14, holding that Luke’s caveat was without “merit and frivolous.”

We note, however, that even if Dismer’s administration of the estate were ongoing at the time Luke filed her caveat, the probate court’s judgment finding the caveat meritless and assessing fees was a final, appealable judgment.

In Ingram v. Rooks, 221 Ga. 701 (146 SE2d 743) (1966), an executrix filed a petition to probate a will in solemn form. One of the heirs first assented to the petition, but later sought to withdraw her assent after the petition had been granted. The court of ordinary (now probate court) denied the heir’s request, and the case was appealed to the superior court, which also denied relief. Our Supreme Court ruled that the superior court had authority to review the petition de novo, unfettered by the lower court’s judgment. From the Court’s opinion, it is clear that the court of ordinary’s judgment was final, despite the fact the administration of the estate was continuing. Id. at 702. See also Cubine v. Cubine, 69 Ga. App. 656 (26 SE2d 462) (1943) (judgment of court of ordinary prohibiting distribution of proceeds of estate property to secured creditors was final, appealable judgment, despite the fact court of ordinary reserved for later determination how the proceeds should be distributed).

In light of the above, we conclude that the probate court’s judgment was final and the superior court had jurisdiction to review it.

2. Turning to the merits of Dismer’s appeal to this Court, we hold that the superior court erred in misconstruing the clear terms of OCGA § 9-15-14.

“In interpreting statutes, courts must look for the intent of the legislature and construe statutes to effectuate that intent. [Cit.] All words, except words of art, shall be given their ordinary significance. OCGA § 1-3-1 (b).” City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991).

Decided October 1, 1997.

William E. Dismer, for appellant.

Whelchel, Brown, Readdick & Bumgartner, J. Thomas Whelchel, for appellees.

OCGA § 9-15-14 (f) provides that “[a]n award of reasonable and necessary attorney’s fees or expenses of litigation under this Code section shall be determined by the court without a jury and shall be made by an order of court. . . .” (Emphasis supplied.) There is no ambiguity in the statute; the legislature clearly intended for the court, not a jury, to determine whether fees and costs should be awarded under OCGA § 9-15-14. See Gibson v. Southern Gen. Ins. Co., 199 Ga. App. 776, 778 (3) (406 SE2d 121) (1991); Ferguson v. City of Doraville, 186 Ga. App. 430, 432 (2) (367 SE2d 551) (1988), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119, n. 8 (376 SE2d 861) (1989). “OCGA § 9-15-14 merely makes substantive and procedural provision for a trial court, sitting as the trior of fact, to make an award of attorney’s fees and expenses of litigation as a sanction against certain enumerated abuses.” Deavours v. Hog Mountain Creations, 207 Ga. App. 557 (428 SE2d 388) (1993), modified, Betallic, Inc. v. Deavours, 263 Ga. 796 (439 SE2d 643) (1994), overruled on other grounds, Deavours v. Hog Mountain Creations, 213 Ga. App. 337 (445 SE2d 579) (1994).

Here, the superior court directly contradicted the clear language of OCGA § 9-15-14 by relegating the decision of whether sanctions should be assessed to the jury. The superior court’s order is reversed, and the case is remanded for the court to determine the amount of sanctions, if any, to be awarded to Dismer.

Judgment reversed and case remanded.

Birdsong, P. J., and Eldridge, J., concur.