author: Pope, Judge. Deen, Presiding Judge, Sognier, Judge,

text:
    77759.
    OVERGROUND ATLANTA, INC. v. DUNN.
    (381 SE2d 137)
   Pope, Judge.

Charles Adrian Dunn, individually and by next friend, his mother, Geraldine Dunn, brought suit against Overground Atlanta, Inc. d/b/a The Jolly Fox (Overground) and against Rodney Goodman, Overground’s employee, to recover damages arising from an incident at the Jolly Fox nightclub in which Charles Dunn was beaten and arrested. The jury awarded compensatory and punitive damages in favor of Dunn and against Overground but not Goodman, and Overground brings this appeal from the trial court’s denial of its motion for a new trial.

The record reveals that Charles Dunn (hereinafter appellee) and a friend, Keith Wigley, were patrons at The Jolly Fox on the night of November 2, 1982 and had been drinking heavily. Ricky Langford, an officer of Overground, was present at the club that evening. Although the evidence was in conflict about the exact nature of the events that transpired, the jury was authorized to believe that appellee and Wigley stepped outside for a brief time and that upon their return, the club’s manager, Goodman, set upon appellee and Wigley, striking appellee on the head with a flashlight and knocking him to the floor and then dragging appellee and Wigley from the club into the parking lot and holding them spread-eagled over a car, pounding appellee’s head on the car hood, until the police arrived. Based on Goodman’s complaint regarding the earlier conduct of appellee and Wigley, including a statement that they had been observed attempting to break into cars in the parking lot, the police arrested both appellee and Wigley and charged them with being disorderly while intoxicated. Noting appellee’s condition, the police took him to Grady Hospital, where he lapsed into a coma. Although appellee recovered, he suffered permanent residual brain damage. Trial of the charges against appellee in municipal court resulted in his acquittal.

Suit was filed originally against The Jolly Fox, Rodney Goodman, and John and Richard Doe, alleging assault and battery. A later amendment substituted Overground Atlanta, Inc., for The Jolly Fox after interrogatory answers revealed it to be the true owner of the club, and substituted several officers and shareholders for the Does. In addition, the amendment added claims for negligent hiring, negligent supervision, and malicious prosecution. The trial court granted the motion of the individual officers and shareholders for a directed verdict, and the remainder of the claims went to the jury, which was given a special verdict form, instructing it to select either joint liability (finding either for appellee and against both defendants or against appellee and in favor of both defendants) or separate liability (finding for or against Goodman or for or against appellant), and to indicate, if it found “against either or both defendants, . . . whether it was based on negligence, false imprisonment, or malicious prosecution or all three.” The jury completed the form by marking an “X” on the blank indicating it found “in favor of [appellee] and against [appellant] Overground Atlanta, Inc., in the amount of $250,000 as compensatory damages and in the amount of . . . $750,000 as punitive damages” and indicated it had based its decision on “negligence, false imprisonment, and malicious prosecution.” Judgment was entered on the verdict, and appellant’s motion for a new trial, made on the general grounds and on the ground that the verdict was excessive, was denied.

1. Appellant contends the trial court erred by denying its motion for a new trial because the verdict assessing liability against it but not against its employee (Goodman) is inconsistent and, therefore, illegal. We disagree.

Contrary to appellant’s assertion in support of this contention, the record shows that the jury did not find in favor of defendant Goodman. The jury was given two choices as to Goodman under the “Separate Liability” heading on the verdict form: “[1]_WE, the jury, find in favor of defendant. [2]_WE, the jury, find in favor of the plaintiff and against defendant Rodney Goodman in the amount of $_as compensatory damages and in the amount of (if you find appropriate) $_as punitive damages.” Neither of these boxes was checked. Consequently, although the jury did not award damages to plaintiff against defendant Goodman, it also did not find for defendant Goodman, as it was authorized to do on the verdict form.

Moreover, assuming arguendo that appellant is correct in contending that the jury’s verdict should be construed as a finding for Goodman, it does not follow that the verdict was inconsistent and therefore void and illegal. Although appellant contends that its liability was totally derivative of that of its employee, the record shows that, in addition to instructing the jury on the doctrine of respondeat superior, the trial court also charged the jury as follows:

“I charge you that the owner of a tavern open for entertainment to the public is bound to exercise ordinary care and diligence to see that one who enters as a customer is protected from the assaults and violence of those in his employ.
“In the present case the defendant owner’s duty was to exercise ordinary care and diligence to protect the plaintiff while he was at the defendant’s place of business lawfully engaged, from injury, injury either from the unsafe condition of the premises themselves, from the owner’s own conduct, or from the conduct of their employees, or injury from any vicious or improper persons who were in the room either as customers or otherwise.
“[A] customer such as the plaintiff has the right to assume that the place is reasonably safe and that the owners were exercising reasonable care and diligence to protect him while he is peaceable and lawfully engaged therein from the insults and injuries of employees of the company. ... I charge you that an employer is bound to exercise ordinary care in the selection of employees.
“Accordingly . . . the obligation of a proprietor to protect his patrons from injury or mistreatment includes the duty to select and retain only such employees as are fit and suitable to look after the safety and comfort of his guests and who will not commit acts of violence against them insofar as is reasonably within his power to do so.”

These principles were charged without objection. Consequently, the jury was authorized to impose liability against appellant on theories of direct as well as vicarious liability. Where a master is negligent independently of his servants, the master may be held liable even though the servant is not found to be liable. Moffett v. McCurry, 84 Ga. App. 853 (10, 11) (67 SE2d 807) (1951). Sufficient evidence was presented from which a jury could find against the appellant on a theory of direct liability. Consequently, we find no merit to appellant’s contention that it could be liable only if its employee was also liable.

Furthermore the jury was also given the following charges on the principles of joint and several liability:

“[T]he proximate cause of the injury may be two separate and distinct acts of negligence of different persons. Where two concurrent acts of negligence operate together in bringing about an injury, the person injured may recover compensation for the entire loss from either or both of the persons responsible.
“If you find a party negligent in at least one respect, and that his negligence joined together with the negligence of a third person, proximately caused the injury, then it is not necessary for you to determine whether the negligent party or third party was more at fault, as the injured party would be entitled to recover against either for his full damages.”

The jury was specifically instructed that it could award compensation for the loss “from either or both of the persons responsible,” thus authorizing it to impose damages against one defendant only, even if it found both were negligent. In sum, under the instructions it received in the case at bar, which were given without objection, the jury was authorized to impose liability and assess damages against the appellant, regardless of whether it also imposed liability and assessed damages against appellant’s employee.

“ ‘The verdict may be construed in the light of the pleadings, the issues made by the evidence and the charge. (Cits.) . . . The presumptions are in favor of the validity of verdicts, and if possible a construction will be given which will uphold them. (Cit.) Even if the verdict is ambiguous . . . and susceptible of two constructions, one of which would uphold it and one of which would defeat it, that which would uphold it is to be applied. (Cit.)’ Haughton v. Judsen, 116 Ga. App. 308, 310 (157 SE2d 297) [(1967)].” West Ga. &c. Co. v. Stephens, 128 Ga. App. 864, 870 (198 SE2d 420) (1973). Applying these principles to the case at bar, we conclude that the verdict was not inconsistent and the judgment entered on the verdict was neither void nor illegal. Moreover, inasmuch as the verdict here is not inconsistent, it is unnecessary for us to consider the applicability, and propriety, of this court’s decision in Brannan Auto Parts v. Raymark Indus., 183 Ga. App. 82 (1) (357 SE2d 807) (1987), which the dissent urges was incorrectly decided and must be overruled.

2. We have examined appellant’s remaining enumerations and find them to be without merit.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Benham and Beasley, JJ., concur. Deen, P. J., concurs and concurs specially. Carley, C. J., Birdsong and Sognier, JJ., dissent.

Deen, Presiding Judge,

concurring specially.

I concur in the majority opinion and agree that Brannan Auto Parts v. Raymark Indus., 183 Ga. App. 82 (357 SE2d 807) (1987), need not be overruled.

In Brannan the potential for an inconsistent verdict was evident on the face of the proposed jury verdict form, which was given to counsel prior to trial. Such is not the case in Overground. Further, defense counsel expressed in Brannan some generalized dissatisfaction with the form; his objection, however (if indeed it could be deemed to have risen to the level of that term), lacked specificity and addressed not the individual versus corporate situation, but rather the sheer number of defendants. Moreover,the trial court offered defense counsel two opportunities to revise the proposed verdict form, but the latter took advantage of neither. Clearly, counsel’s conduct amounted to waiver, and this court was therefore powerless to address an enumeration which was not raised below. In Overground, by contrast, no such situation existed.

Furthermore, under the facts of Brannan, there was little, if any, evidence specifically implicating any of the individual defendants, and yet there was ample evidence to support a finding that the alleged conversion had actually occurred. The jurors apparently found the weight of the evidence of the latter fact sufficient to cause them to lay the blame on some individual or some entity; but conversely, the jurors apparently found the evidence against each of the individual defendants to be lacking in weight. It is axiomatic, of course, that this court cannot assess the weight of the evidence. .

It is true that, on its face, a finding for the individual defendants and against the corporate defendant is illogical. As noted, supra, however, it was not the actual lack of logic or consistency to which counsel addressed his generalized remarks at trial, but rather to the fact that the jury was given several options as to verdicts against several defendants and only one option “For the defendants.” This is quite different from, and essentially unrelated to, the issue actually enumerated as error in Brannan, and an enumerated error cannot be expanded — or twisted — into something else.

The issue in Overground is not the same as that in Brannan, and the overruling of Brannan would in these circumstances amount to an exercise in irrelevancy.

Sognier, Judge,

dissenting.

I must respectfully dissent, as I cannot agree with the majority’s conclusion that the verdict rendered by the jury was not inconsistent. It is well established that “ ‘in cases where the right to recover is dependent solely upon the doctrine of respondeat superior, and there is a finding that the servant, through whose negligence the master is attempted to be held liable, has not been negligent, as was true in the case in hand, there should be no judgment against the master.’ ” Southern R. Co. v. Harbin, 135 Ga. 122, 124-125 (68 SE 1103) (1910). “Unless additional and independent acts of negligence over and above those alleged against the servant or employee are alleged against the employer, a verdict exonerating the employee also exonerates the employer. [Cits.]” Townsend v. Brantley, 163 Ga. App. 899, 900 (1) (296 SE2d 186) (1982). The testimony in the instant case was in sharp conflict as to the events which actually occurred on the night appellee was injured, and thus the jury would have been authorized to find either in Goodman’s favor or against him, on the claims of appellee. Contrary to appellee’s argument and the conclusion of the majority, it is sheer sophistry to say that the jury did not find in favor of Goodman. It is evident that the jury followed neither alternative presented by the verdict form, as it found neither expressly for Goodman nor expressly against him by awarding damages against him. However, we are forced to construe the verdict as being either in favor of, or against, Goodman, simply because no other alternative exists. Thus, in my view, as the jury found no damages against Goodman, the verdict is most logically construed as a verdict in his favor.

Moreover, each of the bases on which the jury could have found, and did find, against appellant is dependent upon Goodman’s actions, because Goodman is the one alleged to have struck appellee, called the police, and acted as complaining witness against appellee in the prosecution. Thus, if Goodman is not liable for these actions, then it follows that the basis for appellant’s liability is missing. The majority concludes there were other bases on which the jury could have found appellant liable independently of Goodman, citing the special liability of a tavern owner to take reasonable care for the safety of its patrons, as well as the theories of negligent hiring and negligent supervision. However, each of these theories of “independent” liability is, in actuality, dependent on the negligent conduct of someone other than the tavern owner — who was not even present when appellee was injured. The owner’s liability is thus premised on his duty to have foreseen, prevented or stopped the primarily negligent conduct. In the case sub judice, the. primarily negligent conduct was alleged to have been that of Goodman, and appellant cannot be said to be negligent absent a finding of some negligent conduct on Goodman’s part. It is therefore apparent that “ ‘[i]n this case the liability of the (appellant) derives from the acts of [Goodman or not at all]. The jury found in favor of [Goodman], the (individual) through whom (appellant) acted. The verdict holding the (appellant) liable is inconsistent. . . .’ [Cits.]” Duke Trucking Co. v. Giles, 185 Ga. App. 833, 836 (2) (366 SE2d 216) (1988).

I do not agree with appellee that appellant is precluded from raising this enumeration in this court because it was not raised in appellant’s motion for new trial. “On appeal, a party shall not be limited to the grounds urged in the motion or any amendment thereof.” OCGA § 5-5-40 (g). Nor do I agree with appellee that appellant waived its right to enumerate as error the inconsistent verdict because no objection was made to the form of the verdict. Although it is true that appellant did not raise an objection below to the form of the verdict, no objection was raised because at all times below all parties apparently believed and agreed that appellee had alleged independent grounds for appellant’s liability. If there were independent grounds for liability, it would have been possible and proper for the jury to find appellant liable even while exonerating Goodman. Thus, because of the parties’ assumption that there were independent grounds for liability, unlike the situation in Brannan Auto Parts v. Raymark Indus., 183 Ga. App. 82 (1) (357 SE2d 807) (1987), relied on by appellee, “[t]he potential for an inconsistent verdict . . . was [not] evident on the face of the form of the jury verdict,” at the time it was viewed by counsel. Id. at 83.

In my view, verdicts such as those in Brannan, supra, and in the case at bar, being inconsistent, are contradictory and repugnant and consequently are utterly void, and no valid judgment can be entered on them. Thompson v. Ingram, 226 Ga. 668, 671 (2) (177 SE2d 61) (1970); Fleming v. Collins, 190 Ga. 210, 214 (9 SE2d 157) (1940). See also Eco-Rez, Inc. v. Citizens Bank of Swainsboro, 141 Ga. App. 90, 91 (3) (232 SE2d 587) (1977). In Brannan, supra, this court cited Frostgate Warehouse v. Cole, 244 Ga. 782, 783 (262 SE2d 98) (1979) as authority for the holding that appellant had waived its right to challenge the inconsistency of the verdict where the potential for inconsistency was evident on the face of the verdict form. Brannan, supra at 83-84. In Frostgate the Supreme Court reversed this court’s determination that in a declaratory judgment action, an oral instruction to the jury as to the questions they must resolve did not satisfy the declaratory judgment statute’s requirement that interrogatories be submitted to the jury, on the basis that no timely written request for special verdict was made, and “in the absence of a specific and timely objection, a party waives error relating to the manner in which questions are submitted to the jury. [Cits.]” Id. at 783. Frostgate is simply an example of the application of those pervasive principles that error raised for the first time on appeal will not be considered, see, e.g., Hinkley v. Bldg. Material Merchants &c., 187 Ga. App. 345, 346 (370 SE2d 201) (1988); Carpenter v. Parsons, 186 Ga. App. 3, 5 (3) (366 SE2d 367) (1988), and that one cannot complain of error that one’s own conduct or procedure aided in causing. See, e.g., Swicegood v. Heardmont Nursing Home, 183 Ga. App. 319, 320 (359 SE2d 3) (1987). However, in Frostgate, supra, the error complained of, which the Supreme Court held had been waived, was not one which resulted in an illegal verdict or a consequently void judgment, as was the case in Brannan and here. Judgment entered on an illegal verdict is void, Thompson, supra, and thus may be corrected by this court. Although Brannan, supra, may be distinguished on its facts, our holding there affirmed a verdict which by its terms is repugnant and void. That holding should therefore be expressly overruled.

Viewing the repugnancy of the verdict rendered in the case sub judice another way, my review of the conflicting evidence adduced at trial regarding the events on the evening on which appellee was injured leads me to the conclusion that although the jury could properly have found from the conflicting evidence in favor of appellee against Goodman, it could also properly have found, as it did, in Goodman’s favor. Thus the verdict in favor of Goodman is not legally objectionable and should be upheld. OCGA § 9-12-4. However, given that the verdict in favor of Goodman is proper, the evidence is legally insufficient to support a verdict against appellant. That being so, the judgment against appellant should not be allowed to stand.

OCGA § 9-12-8 provides that “[i]f a part of a verdict is legal and a part illegal, the court will construe the verdict and order it amended by entering a remittitur as to that part which is illegal and giving judgment for the balance.” “[I] conclude that since the verdict exonerating [Goodman as] the servant was a legal verdict and that part of the verdict awarding damages against [appellant as] the master was illegal and void under the doctrine of respondeat superior, it is unnecessary to require that a new trial be granted on the issue of liability of either defendant.” Roswell Road-Perimeter &c. Store v. Schurke, 138 Ga. App. 502, 504 (227 SE2d 282) (1976). Therefore, I would reverse the judgment against appellant and remand this case to the trial court with direction that judgment be entered in favor of appellant.

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

Decided March 17, 1989

Rehearing denied March 31, 1989

Philip M. Casto, for appellant.

Nickerson & Tuszynski, David E. Tuszynski, Brookins & Cook, Ernest D. Brookins, for appellee.


source: Caselaw Access Project

author: Carley, Chief Judge. Sognier, Judge,

license: Public Domain

text:
    77785.
    RUSSELL v. FLYNN et al.
    (381 SE2d 142)
   Carley, Chief Judge.

Prior to July 1, 1987, appellee-plaintiffs filed suit in magistrate court against appellant-defendant. In their statement of claim, appellees alleged that appellant, who had constructed their residence, was liable to them for breach of warranty. Subsequent to July 1, 1987, the magistrate court entered a $2,794 judgment in favor of appellees.

Appellant filed a de novo appeal to the superior court. Thereafter, appellees filed an amended statement of claim. Although the amended claim sounded in breach of warranty, it also alleged appellant’s breach of the construction contract by failing to deliver the property “in a condition clear, complete and ready to occupy and by not exerting every effort on his part to complete construction of said residence within the prescribed period of time. . . .” Appellees’ amended claim also contained additional allegations as to damages. The jury returned a $9,942 verdict in favor of appellees. Appellant appeals from the judgment entered by the superior court on this verdict.

1. At the time that appellees filed their original statement of claim, $2,500 was the jurisdiction limit of magistrate courts. Effective July 1, 1987, OCGA § 15-10-2 (5) was amended so as to provide that magistrate courts were empowered to hear civil claims when “the amount demanded . . . does not exceed $3,000. . . .” Appellant urges that this amendment cannot be given retroactive effect and that both the magistrate and superior courts erred in entering a judgment against him in an amount in excess of $2,500.

Civil claims of $3,000 or less were legally recognized prior to July 1, 1987 and, therefore, the amendment to OCGA § 15-10-2 (5) created no new right of action for plaintiffs. Compare Focht v. American Cas. Co., 103 Ga. App. 138 (118 SE2d 737) (1961). The statute merely provided a plaintiff who otherwise had a claim for $3,000 or less with the option of pursuing his legal remedies in a magistrate court rather than a higher court. Likewise, the statute imposed no new obligation on defendants. Compare Focht v. American Cas. Co., supra. Prior to July 1, 1987, a defendant was subject to being sued on claims of $3,000 or less and the statute merely provided that the defense of such claims might, at the plaintiff’s option, have to be made in a magistrate court rather than in a higher court.

Accordingly, the amendment to OCGA § 15-10-2 (5) is remedial in its operation and effect and it applies, therefore, in the instant case. “A remedial Act serves to change the method or procedure through which a right may be asserted or enforced, the modus operands but does not divest, curtail or prevent the enjoyment of a valid vested property right of one coming within the orbit of its operation. [Cits.]” Turman v. Mabry, 221 Ga. 153, 154 (143 SE2d 645) (1965). “Remedial Statutes are not inoperative, although of a retrospective nature, provided they do not impair contracts, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations. [Cits.]” (Emphasis in original.) Searcy v. Stubbs, 12 Ga. 437, 439 (1853). The amendment to OCGA § 15-10-2 (5) merely changed the method or procedure by which a plaintiff’s existing claim of $3,000 or less could be asserted or enforced against a defendant, insofar as the magistrate court was added as a viable forum for resolution of such claims.

Thus, it does not follow that, simply because the present case was filed prior to July 1,1987, the remedial amendment to OCGA § 15-10-2 (5) cannot be applied. At the time that appellees filed their original statement of claim, they sought an amount which was within the $2,500 jurisdictional limits of the magistrate court. Compare Champion v. Rakes, 155 Ga. App. 134 (270 SE2d 272) (1980). The judgment of the magistrate court was entered after July 1, 1987 and, at that time, $2,794 was within the jurisdictional limits of that court. The magistrate court did not err in entering the judgment.

The superior court did, however, err in entering judgment in favor of appellees in an amount in excess of $3,000. On de novo appeal, the superior court had only the jurisdiction possessed by the magistrate court. See Mathews v. Mathews, 136 Ga. App. 833, 837 (222 SE2d 609) (1975).

2. As noted previously, the amended statement of claim that appellees filed in the superior court raised the issue of appellant’s liability for breach of the construction contract as well as the issue of his liability for breach of warranty. Over appellant’s objection, the superior court allowed appellees to litigate the issue of his contractual liability. Appellant enumerates this ruling as error, urging that the issue was not raised in the magistrate court and should not have been litigated in the superior court.

Both Mathews v. Mathews, supra and Williams v. Calloway, 171 Ga. App. 286, 288 (2) (319 SE2d 500) (1984) stand for the proposition that, in a de novo appeal from an order of a probate court, only the “issue” that was raised below can be litigated in the higher court. Probate courts have original and exclusive jurisdiction over specified subject matters. See OCGA § 15-9-30. Accordingly, to hold that it is possible to litigate in the higher court an “issue” which was never raised in the probate court would be to sanction the de novo appeal process as a means of evading the original and exclusive jurisdiction of the probate court over that “issue.” Thus, the appellant in Mathews, who had raised only the “issue” of an accounting in the probate court, was precluded from raising the “issue” of settlement in the de novo appeal to the superior court. The appellant in Williams, who has raised only the “issue” of administration in the probate court, was precluded from raising the “issue” of inheritance rights in the de novo appeal.

Unlike probate courts, however, magistrate courts have no original and exclusive jurisdiction over cases of specified subject matter. The magistrate courts have general and concurrent jurisdiction over “civil claims” of $3,000 or less. See OCGA § 15-10-2 (5); Phillips v. Rawls, 46 Ga. App. 200 (2) (167 SE 189)(1932). Accordingly, the focal “issue” in the litigation of a de novo appeal from the magistrate court is necessarily the civil claim that was asserted in the statement of claim. So long as the subsequent litigation can be said to relate to that civil claim, there is no erroneous evasion of the magistrate court’s jurisdiction since the higher court had concurrent jurisdiction over that claim. In the statement of claim that they filed in magistrate court, appellees raised the “issue” of appellant’s contractual liability to them in connection with his construction of their house. That claim sounds in breach of express warranty. In the amendment that they filed in superior court, appellees again raised the “issue” of appellant’s contractual liability to them in connection with his construction of their house. Although the amendment sounds in breach of express warranty, it also alleges appellant’s breach of the construction contract. Accordingly, unlike Mathews and Williams, the “issue” that was tried in both the magistrate and superior courts arose out of appellees’ claim predicated upon appellant’s contractual liability in connection with his construction of their house. The only difference is that the “issue” of appellant’s contractual liability as it was framed by the amended statement of claim that appellees filed in the superior court included additional allegations of appellant’s breach of the construction contract, as well as of his breach of express warranty. “ ‘When a case is on appeal [in the superior court from a magistrate court], any amendment whether in matter of form or substance may be made which could have been made while the case was in the primary court.’ [Cit.]” Wofford v. Vandiver, 72 Ga. App. 623, 627 (34 SE2d 579) (1945). There is no contention that, in the magistrate court, appellees could not have filed an amendment adding allegations of appellant’s breach of the construction contract as an element of the triable “issue” of his contractual liability with regard to his construction of their house. Accordingly, it was not error to allow the jury to consider an “issue” of appellant’s contractual liability which was not raised in the magistrate court, but which was raised by proper amendment in the superior court.

3. Remaining enumerations of error have been considered and are found to be without merit.

4. The judgment in favor of appellees is affirmed with direction that all but $3,000, which is the applicable jurisdictional limit of the magistrate court, be written off. See Giles v. Spinks, 64 Ga. 205 (1879).

Judgment affirmed with direction.

Deen, P. J., McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Beasley, J., concurs in Divisions 1, 3, 4 and in the judgment. Sognier, J., dissents.

Sognier, Judge,

dissenting.

I respectfully dissent. I disagree with the majority’s conclusion that the amendment to OCGA § 15-10-2 (5) increasing the subject matter jurisdiction of the magistrate courts is remedial, and also disagree that the issues raised by amendment in superior court could be heard on de novo review.

As a general rule, laws prescribe only for the future, and usually will not be given retrospective operation unless required by express statutory or clear legislative purpose, Canton Textile Mills v. Lathem, 253 Ga. 102, 103 (1) (317 SE2d 189) (1984), or when the statute governs only procedure of the courts, including the rules of evidence. Polito v. Holland, 258 Ga. 54, 55 (2) (365 SE2d 273) (1988); see OCGA § 1-3-5. However, even if the statute is procedural it will not be applied retroactively if retroactive application will disturb vested rights. Seaboard Air-Line R. Co. v. Benton, 175 Ga. 491, 499 (165 SE 593) (1932).

I find the 1987 amendment to OCGA § 15-10-2 (5) is procedural because it did not create a new cause of action or legal duty, but rather dealt with enforcement of existing rights by expanding the existing subject matter jurisdiction of the magistrate court. However, I do not agree with the majority that this amendment should be applied retroactively, as I find the amendment did affect the vested rights of litigants who, like the instant parties, were already before magistrate courts because the potential recovery of the plaintiffs and the possible exposure of the defendants were increased by $500. (See Focht v. American Cas. Co., 103 Ga. App. 138, 140-141 (2) (118 SE2d 737) (1961), in which we held that an amendment to the Georgia Long Arm Statute, which authorizes personal jurisdiction in certain suits against nonresidents, should be applied prospectively because, although procedural, it created new rights and imposed new obligations.) The majority concludes the amendment to OCGA § 15-10-2 (5) is remedial because no new right or obligation was created, in that a civil action for $3,000 already was permissible in some other courts before July 1, 1987. That holding ignores the obvious fact that this action was filed in magistrate court, which did not have jurisdiction over a $3,000 claim at the time, and not in some other court which did have such jurisdiction. In my view, the majority thus engages in sheer sophistry by concluding that no new right of action was created as to appellees, who were already engaged in litigation in a court with a $2,500 jurisdictional limit at the time that court’s jurisdictional ceiling was raised. Because I believe the amendment to OCGA § 15-10-2 (5) did create new rights and obligations, at least as to litigants who, like the parties sub judice, were already litigating in magistrate courts, I conclude the amended statute should have been applied prospectively, see generally Focht, supra, and thus find $294 of the magistrate court’s judgment should have been struck and judgment entered for the balance. Giles v. Spinks, 64 Ga. 206, 207 (1, 2) (1879); see OCGA § 9-12-8. Similarly, all of the superior court judgment in excess of the magistrate court jurisdictional limit of $2,500 should have been written off.

I also disagree with the majority’s conclusion that the superior court properly considered on de novo review the issues raised in appellees’ amended complaint. “[T]he [de novo] trial in the superior court is not a trial without limitation, but is rather ‘a new trial in which only the matter presented to the court below can be relitigated.’ [Cit.]” Williams v. Calloway, 171 Ga. App. 286, 288 (2) (319 SE2d 500) (1984). Thus, although the parties may introduce evidence not received below, neither party is entitled to raise issues not litigated before the magistrate court. See id.; see also Mathews v. Mathews, 136 Ga. App. 833, 837-838 (2) (222 SE2d 609) (1975). I find the majority’s attempt to distinguish Williams and Mathews unconvincing because in each case the issues raised on de novo appeal were rejected not because they were outside the probate court’s limited jurisdiction but because they had not been raised below. Further, I find the majority’s definition of “issue” flawed. The majority’s definition of “issue” is so broad that it encompasses the entire civil action and thus eviscerates the holdings in Williams and Mathews.

In the instant case, upon appeal to superior court appellees amended their complaint to allege an additional cause of action, and also sought recovery for additional damages under either claim. Although there is no transcript of the superior court proceedings in the record, appellant stated in the statement of facts in his brief before this court that new issues were presented to the superior court, and appellees’ brief did not contest that description of the events below.

Decided March 31, 1989.

George P. Graves, for appellant.

Henry R. Stringfellow, for appellees.

Accordingly, pursuant to Court of Appeals Rule 15 (b) (1), we are authorized to consider appellees’ silence as consent to appellant’s statement of the facts, see Bentley-Kessinger, Inc. v. Jones, 186 Ga. App. 466, 467 (367 SE2d 317) (1988), and thus I conclude the superior court considered issues not raised in the magistrate court. As we have no transcript from which to ascertain the permissible scope of the superior court’s judgment, I would reverse the superior court’s denial of appellant’s motion for new trial.


author: Birdsong, Judge. Banke, Presiding Judge,

text:
    77926.
    BARNES et al. v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    (381 SE2d 146)
   Birdsong, Judge.

The appellants, Jerry and Wayne Barnes, d/b/a Barnes Brothers Auto Body Repair, repaired a wrecked automobile belonging to Ann Burson, with respect to which the appellee, General Motors Acceptance Corporation (GMAC), held a perfected security interest. Appellants had constructive notice of GMAC’s security interest before commencing repairs. Burson abandoned the vehicle at the appellants’ body shop without paying for the repairs, and GMAC subsequently sought to foreclose its security interest by obtaining a writ of possession on the vehicle. The appellants responded by asserting a mechanic’s lien against the vehicle for the value of the repairs (alleged to be $8,200) and by asserting a counterclaim against GMAC based on unjust enrichment. The trial court subsequently granted GMAC’s request for the writ of possession, reserving the appellants’ counterclaim for later adjudication.

The appellants contend that subsequent to the issuance of the writ of possession but prior to its execution, they advised GMAC that unless it paid their repair bill, they would remove the repair parts which they had affixed to the vehicle. They further contend that, in order to induce them not to take such action, GMAC promised to assert a third-party claim against Ms. Burson’s motor vehicle insurer to recover the cost of the repairs. GMAC did in fact initiate such a claim, however, it dismissed the claim after obtaining possession of the vehicle, in apparent response to an abusive litigation claim filed against it by the insurer. Thereafter, the trial court granted summary judgment to GMAC in the present action based on a determination that its security interest was superior to the appellants’ mechanic’s lien. This appeal followed. Held:

1. GMAC has moved to dismiss the appeal on the ground that a cross-claim filed by the appellants against Ms. Burson remains pending in the court below. This motion is denied. “An order granting summary judgment on any issue or as to any party” is always subject to review by direct appeal. OCGA § 9-11-56 (h). (Emphasis supplied.) See Edwards v. Davis, 160 Ga. App. 122 (286 SE2d 301) (1981); McMullan v. Georgia Girl Fashions, 180 Ga. App. 228 (1) (348 SE2d 748) (1986).

2. GMAC contends that the appellants’ counterclaim is not cognizable because they never filed their responsive pleadings with the clerk of the trial court. However, GMAC attached a copy of the appellants’ answer and counterclaim to the third-party complaint which it filed against Ms. Burson’s insurer, and it also filed an answer to the counterclaim, following which the merits of the claim were litigated in the trial court without objection. Pursuant to OCGA § 9-11-15 (b), issues which are not raised by pleadings but which are tried by express or implied consent of the parties are “treated in all respects as if they [were] raised in the pleadings.” Under the circumstances, GMAC will not be heard to argue for the first time on appeal that the trial court erred in reaching the merits of the counterclaim.

3. The appellants concede that GMAC’s properly perfected security interest in the vehicle was superior to their mechanic’s lien. Appellants contend that GMAC’s security interest did not extend to the repair parts which they installed in the vehicle and that GMAC recognized this fact by agreeing to pursue a claim against Ms. Burson’s insurer for the cost of the repairs in order to dissuade them from removing the parts.

At the onset we note that any alleged promises made by GMAC to appellants, and supported by the record, were at least substantially fulfilled by GMAC. Further, any factual assertions contained in briefs of parties which are unsupported by evidence of record will not be considered on appellate review. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (366 SE2d 223).

Security interests and mechanic’s liens in motor vehicles are governed by the Motor Vehicle Chapter of the Georgia Code, OCGA § 40-3-50 et seq. With certain exception not here applicable, this statutory scheme is the exclusive method and procedure of perfecting or executing any lien or security interest with respect to motor vehicles. OCGA §§ 40-3-53 (f); 40-3-54 (a); 40-3-58; 40-3-59. Clearly, the state legislature intended to provide a simple statutory lien procedure upon which those both financing and repairing motor vehicles could rely when conducting daily business. This statutory procedure did not en-graft upon itself, as the dissent would do, common law principles of accession or the complex and multi-faceted procedures of the Uniform Commercial Code. See, e.g., OCGA §§ 40-3-53 (f); 40-3-54 (a); 40-3-58.

OCGA § 40-3-50 (a) expressly provides that “the security interest in a vehicle of the type for which a certificate of title is required shall be perfected and shall be valid against subsequent creditors of the owner . . . and the holders of security interests and liens on the vehicle by compliance with this chapter.” (Emphasis supplied.) Further, OCGA § 40-3-50 (b) states that “[w]hen the security interest is perfected as provided for in this subsection, it shall constitute notice to everybody of the security interest of the holder.” (Emphasis supplied.) Thus, by operation of law, the security interests granted in the security agreement are valid, unless said terms otherwise were found to violate the public policy of this State. OCGA § 40-3-50; see generally OCGA § 13-8-2. The security agreement in this case pertinently provided that “[y]ou [Ann Burson, the motor vehicle owner] are giving the Creditor [GMAC] a security interest in the vehicle . . . and any accessories, equipment and replacement parts installed in the vehicle.” Further, it provides that if the vehicle is repossessed “[a]ny accessories, equipment or replacement parts will remain with the vehicle.” Thus, the giving of the security interests to after-acquired parts and repairs, to remain with the vehicle, is the giving of a property right to another as additional collateral to satisfy the debt, of which Barnes Brothers had lawful constructive notice, OCGA § 40-3-50, before it placed the parts on the vehicle.

Judge Benham, in Hull v. Transport Acceptance Corp., 177 Ga. App. 875, 877 (341 SE2d 330), together with two other learned judges of this court stated, “[t]hat certificate of title provided constructive notice to future creditors that the motor vehicle was encumbered by a security interest in favor of the appellee. Therefore, appellee’s first security interest was superior to appellants’ later asserted mechanic’s lien.” (Emphasis supplied.) To this sage quote we only insert the words “claim of unjust enrichment” in lieu of the words “mechanic’s lien.”

The dissent opines that this case is controlled by Austrian Motors v. Travelers Ins. Co., 156 Ga. App. 618 (275 SE2d 702). The facts of Austrian Motors are distinguishable from the facts of this case. Austrian Motors did not involve a situation where a mechanic was claiming against a prior perfected superior interest holder, but concerned a mechanic’s claim against an insurance company as assignee of its insured, the true vehicle owner. Austrian Motors, supra at 619. Further, unlike the dissent implies, we do not find Barnes to be “innocent,” but rather, more closely akin to a volunteer with notice.

Appellants conceded GMAC’s properly perfected security interest in the vehicle. Yet, the dissent would hold, in essence, that appellants may recover for the value of parts affixed to the vehicle. Such a contention is not compatible with the clear meaning of OCGA § 40-3-54 (a). OCGA § 40-3-54 (a) provides, that “[a]ll mechanics of every sort shall have a special lien on any vehicle required to have a certificate of title . . . for work done, or for work done and materials furnished, or for materials furnished in repairing or servicing such vehicle. . . . Such special lien[s] shall be superior to all liens except for taxes and such other liens and security interests of which the mechanic had actual or constructive notice before the work was done or material furnished. The validity of the lien against third parties shall be determined in accordance with this Chapter.” (Emphasis supplied.)

This Code section clearly states that mechanics shall have a lien on the vehicle for parts and labor. The lien, however, is subordinate to prior perfected security interests. The dissent would say that appellants may recover for the value of the readily detachable parts they affixed. The effect of such a holding would allow a mechanic to have a superior claim to the vehicle for the value of the parts (not labor) that the mechanic places on the vehicle, notwithstanding the existence of a prior perfected security interest. Such a holding is in contradiction to the unambiguous language of OCGA § 40-3-54 (a) and would create a distinction between the value of parts and labor, which was clearly rejected by the terms of the statute. The statute treats lien rights for parts and labor as one and the same.

Our opinion preserves the integrity of the lien law of this State.

Judgment affirmed.

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

Banke, Presiding Judge,

dissenting.

There is no denying that GMAC has been unjustly enriched at the expense of the appellants in this case. Through their expenditure of money and labor, the appellants restored value to a wrecked vehicle, only to see that value appropriated by GMAC in satisfaction of a pre-existing indebtedness owed by the titular owner of the vehicle. It is, of course, true that the appellants had constructive notice of the existence of GMAC’s security interest at the time they performed the repairs, in the sense that the interest was a matter of public record. However, there has been no contention that they were acting in anything other than the utmost good faith in performing the repairs.

The appellants concede the superiority of GMAC’s security interest over their mechanic’s lien and further concede that, as a result of the superiority of the security interest, they have no cause of action against GMAC for the value of their labor. However, in reliance on this court’s decision in Austrian Motors v. Travelers Ins. Co., 156 Ga. App. 618 (275 SE2d 702) (1980), they contend that the law should not and does not require them to enrich GMAC with free replacement parts. I agree.

In the Austrian Motors case, an auto repair shop had performed repairs on a vehicle which, unbeknownst to it, was stolen. The vehicle was later seized by police and ultimately claimed by an insurance company, which had acquired title by assignment from its insured. The repair shop instituted an action against the insurer to recover for the “parts, labor and tires” which had gone into the repair of the vehicle. This court held that although the repair shop could not recover for its labor, it did have a claim against the insurer for conversion of any readily detachable repair parts which it may have affixed to the vehicle. The court reasoned as follows: “Upon a careful consideration of the decisions reached in other jurisdictions on the question, we find the better reasoned rule and the rule which should be followed in this state to be that an innocent trespasser loses his title to personal property which has been attached to that rightfully belonging to another only to the extent that his property may not be readily detached and returned to him without injury to the whole. This is but another way of saying that the owner of personal property to which an innocent trespasser has attached his own personal property acquires title to the latter by accession only to the extent that such additions become ‘such an integral part’ of the former and is ‘of such a nature’ and ‘so attached to it’ as to constitute ‘one and the same thing.’ (Cits.) We find such a rule preferable under the circumstances so as to avoid the imposition of an unfair loss upon the innocent trespasser and the consequent unjust enrichment to the true owner of the property to which the attachments are affixed.” Id. at 621.

Having articulated this rule, the court went on to hold in the Austrian Motors case that, except for the paint job which had been applied to the vehicle (which was conclusively determined to be an accession) and the replacement tires and wheels (which were conclusively determined not to be accessions), factual questions remained as to “what personal property of [the repair shop], if any . . . was not lost by accession through attachment to the automobile and may have been converted when [the vehicle was] sold by [the insurer].” Id. at 622.

Of course, the appellants in the present action were not acting as trespassers, innocent or otherwise, in performing the repairs on the vehicle but were contractually authorized by the owner to perform the repairs. This distinction, however, should serve to strengthen their legal position rather than to weaken it. I cannot agree with the majority’s conclusion that the appellants’ rights in this connection are defeated by the language of the security agreement giving the appellees a security interest in “any accessories, equipment and replacement parts installed in the vehicle.” While this language was certainly effective to transfer to GMAC a security interest in all after-acquired accessories, equipment, and replacement parts belonging to the debtor, no language would have been effective to enable the debtor to transfer a security interest in property owned by someone else. Under the Austrian Motors decision, GMAC was no more entitled to claim a security interest in the readily detachable replacement parts affixed to the vehicle by the appellants in this case than it would have been entitled to claim a security interest in, say, a watch or radio inadvertently left inside the vehicle by one of the appellants’ employees. Indeed, it would appear that GMAC acknowledged the validity of the appellants’ claim to the replacement parts by agreeing to pursue a claim against the casualty insurer for the appellants’ repair bill in return for their agreement not to remove the replacement parts.

Decided March 31, 1989.

Lee R. Hasty, for appellants.

Ernest Kirk II, for appellee.

I would hold that material issues of fact remain to be decided with respect to the appellants’ counterclaim in this case and that the trial court accordingly erred in granting GMAC’s motion for summary judgment.

I am authorized to state that Judge Pope and Judge Benham concur with this dissent.


author: Carley, Chief Judge.

text:
    75228.
    BOWMAN et al. v. THE STATE.
    (382 SE2d 434)
    Decided April 3, 1989.

      George M. Weaver, for appellants.

      James L. Webb, Solicitor, Christina Craddock, Assistant Solicitor, for appellee.
   Carley, Chief Judge.

In Bowman v. State, 186 Ga. App. 545 (368 SE2d 143) (1988), we affirmed appellants’ convictions for criminal trespass. On certiorari, the Supreme Court reversed. Bowman v. State, 258 Ga. 829 (376 SE2d 187) (1989). Accordingly, the judgment of the Supreme Court is made the judgment of this court and the judgment of the trial court is reversed.

Judgment reversed.

Banke, P. J., and Benham, J., concur.


author: Deen, Presiding Judge.

text:
    76870.
    SEAGRAVES v. THE STATE.
    (381 SE2d 523)
   Deen, Presiding Judge.

Frankie Seagraves was convicted of rape, burglary and aggravated assault. On appeal his attorney asserts the general grounds contending that the evidence did not establish beyond a reasonable doubt that he committed the offenses for which he was convicted. In the pro se enumeration of errors which he filed, Seagraves claims that he was denied effective assistance of counsel, that the court erred in failing to charge on alibi, and that its charge on criminal intent was burden-shifting.

1. The evidence showed that the sixteen-year-old rape victim and her nineteen-year-old sister shared a bed in a bedroom of their mobile home, which was located in close proximity to their parents’ home. The sisters went to bed at approximately 1:00 a.m. on the night in question. Sometime before dawn, the oldest girl was awakened by the presence of someone in bed between herself and her sister. The intruder pushed her head into her pillow and told her to “shut up” when she began to scream. She reached for her sister’s hand, but got no response and feared that she was dead. The intruder again told her to “shut up” when she screamed, tied her hands behind her back, placed a gag in her mouth, and pulled a pillowcase over her head. When she continued to make a noise, the intruder told her again to “shut up,” and put what she believed to be a gun to her head. Her younger sister testified that she was sleeping on her stomach when she was awakened by the older girl’s screams. She was too frightened to turn over or speak. The intruder told her to put her hands behind her back. When she did not comply, he pulled her hands back and tied them, placed a pillowcase over her head, and pulled off her panties. As she refused to cooperate when he told her to roll over, he forcibly rolled her over on her back and raped her. When he was leaving, he told the sisters, “Don’t move and don’t say a word and don’t get up.”

The older girl identified the defendant as their attacker and testified that she was very familiar with appellant’s voice; she had known him for years because he used to be married to her aunt. The younger sister also testified that she recognized Seagraves’ voice and that she had known him all her life. There was no doubt in her mind that the voice of the intruder was that of the defendant.

A next-door neighbor testified that she and her husband were awakened by a noise emanating from the direction of the girls’ mobile home and investigated. She found one of the girls in the yard, untied her and went into the mobile home and untied the other one. The neighbor and her husband escorted them to their parents’ home and the police were summoned.

A cousin of the young women, Paul Green, testified that appellant was his brother-in-law and that on the evening in question Sea-graves had contacted him wanting to swap cars because he had something to do and did not want his car to be recognized. He agreed to the swap. Later, about 11:00 p.m., the defendant located Green and asked him how the lights on the car operated. After explaining the modification to the car’s electrical system, Green claims that Sea-graves told him “he was already late and I had knocked him out of two hours of pussy.”

At the crime scene the officers collected pieces of copper wire sheathed in gray plastic insulating material along with other evidence. The next day, they recovered several pieces of copper wire sheathed in gray plastic insulating material from the defendant’s car. When he was arrested, a pocketknife was taken from his person. An expert witness testified that the cut ends of the wire used to tie one of the victims perfectly matched the cut ends of the wire found in the trunk of Seagraves’ car and that his pocketknife was the tool used to cut the wire. An analysis of blood samples taken from the victim, the defendant and Paul Green showed that the defendant was within the 23 percent of the population who could have raped the victim.

Construing the evidence in favor of the prosecution, we find that a rational trier of fact could find the appellant guilty of rape and burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. OCGA § 16-5-21 (a) provides: “A person commits the offense of aggravated assault when he assaults: (1) With intent to murder, to rape, or to rob.” Appellant claims that there was no “substantial step” taken by him as to aggravated assault with intent to rape or rob the older sister as requited by Lester v. State, 173 Ga. App. 300 (325 SE2d 912) (1985). We must disagree.

The evidence showed that Seagraves shoved the girl’s head down in a pillow, tied her hands behind her back, pulled a pillowcase over her head, put something “hard” against her head, and told her he would kill her if she was not quiet. The intent to rape was obviously present as he tied her younger sister up in the same manner and did rape her. See also Young v. State, 181 Ga. App. 587 (353 SE2d 82) (1987).

He makes the same argument as to the intent to rob portion of the statute claiming that there was no “substantial step” taken to show intent to rob. The older victim testified that after the defendant got up from the bed, he moved the fan, told them not to move or he would kill them, and that he was going to look for some money. Later, when she tried to find her purse in order to get a cigarette, she could not find it where she left it. When she later located it, it was open and the contents had been taken out.

The State need not prove that the property was taken from the owner’s person. It is sufficient to show that it was taken from his presence. All property in the victim’s mobile home is considered to be in her presence. See Banks v. State, 74 Ga. App. 449 (40 SE2d 103) (1946). The evidence shows that appellant took the required “substantial step” towards committing a battery on the older sister with intent to rape and rob. The evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, supra.

Decided April 3, 1989.

Floyd W. Keeble, Jr., for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Assistant District Attorney, for appellee.

3. This court submitted a certified question requesting the Supreme Court to consider the issue of whether appellant’s efforts to act as co-counsel are entitled to judicial recognition and consideration pursuant to the Constitution of the State of Georgia. In Seagraves v. State, 259 Ga. 36, 39 (376 SE2d 670) (1989) that court held: “[A] layperson does not have the right to represent himself and also be represented by an attorney, but a lawyer does have such a right, subject to the authority of the trial court to limit the exercise of that right in order ‘to insure the orderly disposition of the matters before it.’ [Cit.]” We therefore find that Seagraves’ pro se enumeration of errors and supporting brief cannot be considered by this court.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A89A0002.
    STEVENSON v. THE STATE.
    (381 SE2d 393)
   Deen, Presiding Judge.

Walter Stevenson appeals from his conviction of two counts of aggravated sodomy. The victim was his wife’s niece, a seventeen-year-old Vietnamese refugee who had lived in this country for less than two years.

1. When the defendant was asked by the trial judge if he had any objections to the jury charge, his counsel objected to certain portions of the charge, but did not object to the charge on force and capacity to consent. As he did not object to those portions of the charge which are asserted as error on appeal, he waived his right to later object. Cameron v. State, 256 Ga. 225, 226 (345 SE2d 575) (1986); Ford v. State, 255 Ga. 81, 86 (335 SE2d 567) (1985).

2. The evidence showed that Stevenson was the victim’s sponsor in this country and that she and a younger brother resided with him and her aunt. On the day in question, he interrupted her while she was doing her homework and requested that she accompany him to the bathroom. Although she feared what was going to happen, and was very frightened, she complied. He ordered her to remove her clothing and committed oral sodomy upon her and forced her to commit oral sodomy upon him. The victim testified that she did not consent to these acts and that he had previously made unwanted sexual advances upon her. There was also evidence that the victim had recently received a letter from her mother in Vietnam cautioning her to always be obedient to her sponsors. After the bathroom incident occurred, the victim’s English teacher noticed a dramatic change in her behavior and personal hygiene. After several days, she reluctantly confided in the teacher, who immediately reported the incident to a caseworker with the Department of Family and Children Services, who placed her in protective custody. From the evidence adduced at trial a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Humphrey v. State, 252 Ga. 525 (314 SE2d 436) (1984).

Decided April 3, 1989.

T. Michael Martin, for appellant.

Robert E. Keller, District Attorney, Deborah C. Benefield, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Pope, Judge.

text:
    A89A0010.
    BENOIT v. EMORY UNIVERSITY.
    (381 SE2d 394)
   Pope, Judge.

Plaintiff, Dr. Peter W. Benoit, was an associate professor in the School of Dentistry at Emory University. In 1979, Dr. Benoit was extended tenure at the University and his year-to-year appointment was replaced with an offer of continuous appointment. Pursuant to University rules and regulations, a continuous appointment may be terminated by the University only for specified reasons. One of the grounds for terminating a continuous appointment is “[t]he right of the Board of Trustees under extraordinary circumstances to discontinue any academic program of the University.”

In February of 1985 the Board of Trustees voted to discontinue the undergraduate program in the School of Dentistry leading to the D.D.S. degree. The Board decided to phase out the undergraduate program over a period of three years ending in August 1988. Postgraduate programs were to be maintained. During the planning process for phasing out the undergraduate program and restructuring the School of Dentistry, the administration determined that certain faculty members would be terminated while others would be retained to teach in the surviving program. One of the concerns of the administration was to assure that a sufficient number of faculty members remained oyer the three-year period to maintain the undergraduate program until it was finally discontinued. On May 10, 1985, the Vice-President for Health Affairs of the University wrote Dr. Benoit of the decision to terminate his appointment as of August 31, 1988. However, the letter also offered Dr. Benoit certain terms of employment in consideration for his agreement to continue with the University during the three-year period. The University promised successive annual five percent salary increases over the three-year period and a onetime bonus equal to his final year’s salary upon termination. The letter further informed Dr. Benoit that if he was selected for a position in the continuing program prior to August 31, 1987, the bonus would be waived and a continuing salary would be negotiated. However, he was also informed that a reduction in enrollment could result in termination before August 31, 1988, in which event he would be paid a bonus equal to his final year’s salary provided he continued his employment through the date of early termination. The letter requested that Dr. Benoit respond in writing “if you plan to remain.” On May 28, 1985, Dr. Benoit responded by letter, stating “I intend to remain at Emory until the end of my appointment under the terms specified in your May 10 letter. . . .”

Prior to his termination, Dr. Benoit filed suit against the University for breach of his contract of continuous appointment alleging, inter alia, that the University’s decision to discontinue the undergraduate program did not constitute a contractual basis for the termination of his appointment. The University’s motion for summary judgment was granted on the ground that Dr. Benoit’s letter of acceptance of the May 10 offer created a new contract and extinguished the terms of the former contract of continuous appointment. Dr. Benoit appeals.

1. The lower court’s opinion granting summary judgment is based on the assumption that Dr. Benoit accepted termination of his continuous appointment. However, the offer contained in the May 10 letter did not ask Dr. Benoit to accept the decision to terminate in exchange for the promised salary increases and bonus. In fact, it simply informed Dr. Benoit that the decision to terminate his employment had already been made. Dr. Benoit’s reply did not expressly indicate an acceptance of his termination but stated: “I intend to remain until the end of my appointment under the terms specified in your May 10 letter . . . .” It is unclear whether the phrase “under the terms specified in your . . . letter” refers only to his continued employment or also to the phrase “the end of my appointment.” Dr. Benoit may have considered “the end of [his] appointment” to be governed by the continuous appointment agreement and not by the University’s unilateral decision to terminate. Thus, we cannot find, as a matter of law, that the two letters standing alone create an agreement to accept termination in exchange for certain benefits.

Under the continuous appointment contract, Dr. Benoit could have resigned at anytime. On its face the May 10 letter to Dr. Benoit offered the stated benefits in consideration for his promise not to resign during the three-year transition period but to remain so the University could depend upon his employment and plan the transition accordingly. Even though the exchange of letters created a new agreement of continued employment, only the particular terms encompassed in the new agreement would be affected and any unchanged terms of the original contract would remain enforceable. See Shared Medical Resources v. Americus &c. Hosp. Auth., 672 FSupp. 509, 514 (M.D. Ga. 1987); Shalom Farms v. Columbus Bank &c. Co., 169 Ga. App. 145 (1) (312 SE2d 138) (1983). Arguably, Dr. Benoit’s agreement not to resign during the three-year period did not affect the University’s promise of continuous appointment. However, Dr. Benoit’s reply did not simply state that he intended to remain for the three-year period in exchange for the promises of certain benefits, but stated he intended “to remain until the end of my appointment under the terms specified in your May 10 letter. . . .” (Emphasis supplied.) We agree, as noted above, that the intent of the parties is sufficiently ambiguous from the terms of the two letters to require the court to “look outside the written terms of the contract and consider all the surrounding circumstances to determine the parties’ intent. [OCGA § 13-2-2 (1)].” Southern Fed. Sav. &c. Assn. v. Lyle, 249 Ga. 284, 287 (290 SE2d 455) (1982).

We disagree, however, that a jury question remains as to the intent of the parties. Construction of an ambiguous contract is a matter for the court and no jury question is raised unless, after application of the pertinent rules of construction, an ambiguity remains. See Erquitt v. Solomon, 135 Ga. App. 502 (218 SE2d 172) (1975); Western Contracting Corp. v. State Hwy. Dept., 125 Ga. App. 376, 381 (187 SE2d 690) (1972). Dr. Benoit presented evidence, by affidavit, that he did not intend to waive or relinquish his right to continue his appointment by accepting the terms of the May 10 offer. However, by deposition testimony, Dr. Benoit admitted that before receiving the May 10 offer he had indicated to the administration his intent to leave his teaching position, a decision made, in part, in response to the University’s decision to terminate the undergraduate program and in response to certain actions taken by the University in the course of reorganizing the program. Prior to receiving the May 10 offer, Dr. Benoit had requested that the University terminate his appointment and pay him one year’s salary as required by the University’s rules and regulations regarding termination of tenured professors. That request was refused. Dr. Benoit admitted that in June 1986, he wrote the Dean of the School of Dentistry and explained that he had accepted the offer of May 10, 1985 “in order to receive the full bonus.” Dr. Benoit’s deposition testimony indicates he intended to accept termination when he accepted the terms of the May 10 letter. The deposition testimony contradicts the affidavit testimony. However, where contradictory testimony is offered by a party opposing summary judgment, the contradictory testimony is to be construed against him unless a reasonable explanation is offered for the contradiction. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). No satisfactory explanation was offered by Dr. Benoit for his deposition testimony which, we find, constitutes an admission that he waived his right to continue his appointment and accepted termination, as well as the stated employment benefits, in exchange for his promise to remain at his position during the phase-out period.

2. We reject Dr. Benoit’s argument that no consideration existed to support the creation of a new contract and to extinguish the old. The agreement was made in consideration for a five percent salary increase for each year of the three-year period and for a bonus at termination equal to his final year’s salary. Although the University had regularly offered Dr. Benoit annual salary increases, it was under no contractual obligation to do so and the previous salary increases did not create an enforceable obligation of future increases. Therefore, the express promise of future salary increases was new consideration which would support a new agreement. Pursuant to University rules and regulations, the original contract of continuous appointment included an agreement to pay a professor’s salary for one year from the date of notification of termination in the event of termination for reasons not involving moral delinquency. In contrast, the May 10 letter promised to pay one year’s salary upon termination, even though the date of termination was three and one-half years after the date of notice of termination. Thus, the termination bonus promised in the May 10 letter constituted new and different consideration which would support a new agreement.

3. Dr. Benoit argues that even if a new agreement was formed by the exchange of letters between him and the University, an issue remains for jury determination as to whether the University breached the new agreement by failing to offer him a position in the continuing program. This issue was not raised in his complaint or in the pre-trial order and may not be raised for the first time on appeal. See Chambers v. Dept. of Transp., 172 Ga. App. 197 (2) (322 SE2d 366) (1984).

4. The remaining enumerations of error are addressed in Division 1 of this opinion.

Judgment affirmed.

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

Decided April 3, 1989.

Remar & Graettinger, Robert B. Remar, Susan M. Garrett, for appellant.

Smith, Gambrell & Russell, David A. Handley, William A. Brown, Lokey & Bowden, Gerald F. Handley, Stephen F. Dermer, for appellee.


text:
    A89A0011.
    ADAMS v. ATLANTA FAITH MEMORIAL CHURCH, INC. et al.
    (381 SE2d 397)
   Deen, Presiding Judge.

The DeKalb County Superior Court awarded summary judgment to appellee Atlanta Faith Memorial Church, Inc. (“the church”), on a negligence claim filed against the church in connection with the drowning of appellant Adams’ six-year-old son in a fenced retention pond located in a fenced, wooded area owned by the church and situated adjacent to the apartment complex in which appellant and appellant’s decedent lived. The church moved for summary judgment and the trial court, relying on the Restatement (2d) of Torts (1965), § 339, and Gregory v. Johnson, 249 Ga. 151 (289 SE2d 232) (1982), made findings of fact and conclusions of law and held that the facts of the case placed the defendant “within the exemption from liability to trespassing children for known and obvious risks.” The church’s motion for summary judgment having been granted, Mrs. Adams appeals, alleging that the trial court erred as a matter of law in granting summary judgment because genuine issues of material fact remained as to two of the five elements set forth in the Restatement (2d) supra, for making the pond an “attractive nuisance.” Held:

The Restatement (2d) of Torts, § 339, sets, forth five conditions which must exist in order for a plaintiff to recover in an action involving trespassing children: “(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize would involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.” These requirements are stated in the conjunctive; that is, all five must co-exist if the cause of action is to be sustained.

Appellant contends that genuine issues of material fact exist as to the first and fifth of these requirements and that summary judgment is therefore precluded. The evidence would indicate otherwise, however. The retention pond was surrounded by woods and was located out of sight of the apartment complex, which occupied land on both sides of the church’s property, and also out of sight of any other property adjacent to the church’s property. Moreover, a chain link fence separated the church property from the apartment property, and a second chain link fence enclosed the pond itself. It is undisputed that the Chatman child (the decedent), who could not swim, and a friend or friends had entered the church’s property without the permission or knowledge of appellee, and that, while they were playing near the edge of the pond, a playmate pushed the decedent into the pond.

There is a consistent line of Georgia cases in which ponds have been held not to be “attractive nuisances” as a matter of law. See, e.g., Gregory v. Johnson, 249 Ga. 151, 153, supra; Montega Corp. v. Grooms, 128 Ga. App. 333, 337 (196 SE2d 459) (1973). In Montega a pond excavated for the purpose of burying debris on a construction site was separated by a chain link fence from adjacent property; there was held to be no genuine issue of material fact, and this court held that summary judgment should have been awarded to defendant. In Epps v. Chattahoochee Brick Co., 140 Ga. App. 426 (231 SE2d 443) (1976), a six-year-old boy drowned in a pond located in an unfenced wooded area some 900 feet from the apartment complex where the boy lived; the defendant was awarded summary judgment. In Gregory v. Johnson, supra, the site of the drowning of a two-year-old was the defendant’s swimming pool, located in an unfenced yard on a corner lot in a residential area three blocks from an elementary school. There the Supreme Court found certain jury issues as to whether defendants should have known of children’s presence and should therefore have erected a fence, but the Court emphasized, at 154, that the presence of a swimming pool in a residential area is distinguishable from such occasional dangers as fire, water, and falling from heights, which “are said to be normally understood by children.”

Appellant relies on Gregory, supra, in support of its contentions and makes the special assertion that the fences were not maintained in a sufficiently secure condition as positively to prevent unauthorized entry. We find that Gregory is clearly distinguishable on its facts and does not support appellant’s allegations, the instant case being more nearly analogous to Epps and Montega, supra, than to Gregory.

Our examination of the entire record and our survey of relevant law indicate that the requirements for summary judgment were met in the instant case, and that there was no error below. OCGA § 9-11-56.

Decided April 3, 1989.

McGinn, Webb & Warner, James H. Webb, Jr., for appellant.

Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Stefan E. Ritter, for appellees.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Benham, Judge.

text:
    A89A0115.
    WILLIAMS v. THE STATE.
    (381 SE2d 399)
   Benham, Judge.

A jury convicted appellant of speeding and driving under the influence of alcohol. He appeals from the judgment of conviction, raising two enumerations of error. We affirm the judgment.

1. Appellant was sentenced to pay a $300 fine and serve a 12-month sentence “suspended on condition [that] . . . Defendant does not drive during [the] next 120 days at anytime for any purpose whatsoever.” As a special condition of the suspended sentence, the trial court also stated that “[u]nder Georgia law, the defendant’s license automatically will be suspended for the next 120 days and thus defendant’s license will be suspended in any event. However, even without that suspension, the court is conditioning the above-suspended sentence on the condition that Defendant not drive during the next 120 days.” Appellant contends that the trial court’s sentence added a condition to a suspended sentence, which had the effect of placing appellant on probation, in direct conflict with OCGA § 42-8-39. That statute states: “In all criminal cases in which the defendant is found guilty . . . and in which the trial judge after imposing sentence further provides that the execution of the sentence shall be suspended, such provision shall not have the effect of placing the defendant on probation as provided in this article.”

We disagree with appellant’s contention. “[OCGA § 42-8-35] sets forth the conditions of probation and gives the [trial] court the authority to determine the terms and conditions thereof. Here we are not concerned with a probated sentence, but one which has been suspended on certain conditions. As previously noted, [OCGA § 42-8-39] specifically provides that suspended sentences shall not have the effect of placing the defendant on probation. The only real distinction between a probated sentence and a suspended sentence is that a probated sentence is served under the supervision of the probation officers pursuant to the ‘Statewide Probation Act’ [cit.], whereas a suspended sentence is served without such supervision, but on such legal terms and conditions as are required by the sentencing judge.” Collett v. State, 131 Ga. App. 411 (2) (206 SE2d 70) (1974), rev’d on other grounds, 232 Ga. 668 (208 SE2d 472) (1974). Trial courts have the power to suspend a driver’s license as a condition of a probated or suspended sentence for misdemeanor traffic offense convictions. OCGA § 17-10-3 (e) (4); Brock v. State, 165 Ga. App. 150 (299 SE2d 71) (1983). “ ‘On the face of the record the sentence as originally imposed reveals no irregularity. It expressly shows that it is suspended, which, under present law, does not place the offender under the requirements of the probation law.’ ” Collett, supra at 413. The imposition of the “special condition” about which appellant complains has no adverse effect on appellant. “If the further provision of the sentence that appellant’s driver’s license be suspended [and that appellant not drive] for this time be error, we do not perceive how it is harmful to appellant since he is prohibited in any event from driving for [120 days]. The suspension of the driver’s license is the means employed to enforce this condition, and the court must of necessity have the power to enforce it if it had the power to make it. We fail to perceive any reversible error as enumerated.” Falkenhainer v. State, 122 Ga. App. 478, 480 (177 SE2d 380) (1970).

2. During closing argument, the prosecuting attorney argued to the jury that if appellant had not been violating the law by speeding or weaving across the road, the arresting officer would have had no reason to pull appellant over, and that the officer was “just doing his job” when he stopped appellant. Appellant contends that the remarks were improper argument.

Appellant’s objection at trial to the first remark was that “it was an improper statement of law.” On appeal he takes the position that it was an “improper comment.” “ ‘If counsel desires to preserve an objection upon a specific point, the objection must be on that specific ground. . . . [Otherwise,] this court will not consider it. [Cit.]’ ” Cain v. State, 178 Ga. App. 247 (3) (342 SE2d 742) (1986). As for the “doing his job” remark, our review of the record shows that appellant did not object to that statement when it was made. The prosecuting attorney made the remark and then went on to discuss the reasons for having a jury decide the case, the reason for DUI laws, and commercials about drinking and driving before appellant voiced an objection that apparently was directed to the reference to commercials. It is necessary to object to an alleged irregularity in an attorney’s closing argument at the time it is actually made, and failure to do so amounts to a waiver of any objection that might have been raised. August v. State, 180 Ga. App. 510 (2) (349 SE2d 532) (1986). Since appellant failed to make a timely objection, we can take no action as to his enumeration. Id.

Decided April 3, 1989.

Jones, King & King, Bavid H. Jones, for appellant.

James L. Webb, Solicitor, Richard Edwards, Assistant Solicitor, for appellee.

Judgment affirmed.

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


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A89A0147.
    HUNTER v. THE STATE.
    (381 SE2d 525)
   Beasley, Judge.

Defendant was convicted in Coweta County of theft by receiving stolen property and enumerates as error the lack of proof of venue.

Shortly following the occurrence of two burglaries in Coweta County, an investigator with that county’s sheriffs department was informed that defendant had the property taken in the burglaries. The investigator went to defendant’s home and, with the consent of defendant’s wife, searched and found several of the stolen items.

Venue in criminal cases must be proved as a jurisdictional fact beyond a reasonable doubt; otherwise the judgment is void. Trogdon v. State, 176 Ga. App. 246, 247 (1) (335 SE2d 481) (1985). In a prosecution for theft by receiving stolen property, venue lies in any county in which the accused exercised control over the stolen property. Barfield v. State, 149 Ga. App. 166 (2) (253 SE2d 781) (1979).

“While it is true that where venue is not contested slight proof will suffice (Loftin v. State, 230 Ga. 92 (195 SE2d 402) (1974)), it must nevertheless be established beyond a reasonable doubt. Parks v. State, 212 Ga. 433, 435 (93 SE2d 663) (1956).” Carter v. State, 146 Ga. App. 681 (247 SE2d 191) (1978). What is the proof that defendant’s home is located in Coweta County?

The investigator who followed up the lead that the stolen property was at defendant’s residence, testified that he was employed as such by the Coweta County Sheriff’s Department. He further testified that he “was in Palmetto when [he] received the information so [he] rode over to Mr. Hunter’s residence. . . .” He had just testified that Hunter lived “right behind” the truck stop, the site of one burglary, and had earlier testified that the truck stop was “in Palmetto.” There was also testimony to the effect that defendant’s home was not far from Weldon Road, site of the other burglary.

The investigator searched the premises pursuant to consent given by Mrs. Hunter. The investigator would not have had jurisdiction to do so if the premises were in Fulton County. OCGA §§ 15-16-1 (a) and (c) (1) (B); 15-16-23. This is not a situation where extraterritorial aid was invoked, as provided for in the Georgia Mutual Aid Act. OCGA § 36-69-1 et seq. There was and is no contention that the investigator acted outside his territorial jurisdiction. Compare State v. Giangregorio, 181 Ga. App. 324 (352 SE2d 193) (1986); Britt v. State, 186 Ga. App. 418, 419 (3) (367 SE2d 298) (1988). Thus the State is at least entitled to an inference that he acted with authority, which would be within Coweta County. It is a “well settled principle that public officials shall be presumed to have performed their duties . . . unless clearly proven otherwise.” Richmond County Hosp. Auth. v. Richmond County, 255 Ga. 183, 192 (2) (c) (336 SE2d 562) (1985); OCGA § 24-1-1 (6).

This evidence, together with the “right behind” and “not far from” evidence pointed out by the separate dissent, is at least as strong if not stronger “slight evidence” than the two facts shown in Melton v. State, 252 Ga. 97 (311 SE2d 471) (1984). There the facts which were deemed sufficient were that the crimes occurred at the home of the victim and that she attended school in the Fulton County school system.

Like Melton, this is not a case where venue was contested. Defendant did not even challenge the proof of venue in his motion for new trial or in his motion for directed verdict. The latter was based on purported absences of evidence but these related to certain other elements and not venue.

Certainly the State should be careful to clearly prove venue, which generally is not a difficult burden. At the very least it will avoid the raising of a technical legal question which is unrelated to whether a crime was committed by defendant or not. But where the proof adduced meets the standard of “slight evidence” set by the Supreme Court, the judgment is to be affirmed.

Judgment affirmed.

Deen, P. J., Banke, P. J., Birdsong and Pope, JJ., concur. Carley, C. J., McMurray, P. J., Sognier and Ben-ham, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

“While it is true that where venue is not contested slight proof will suffice (Loftin v. State, 230 Ga. 92 (195 SE2d 402) (1974)), it must nevertheless be established beyond a reasonable doubt. Parks v. State, 212 Ga. 433, 435 (93 SE2d 663) (1956).” Carter v. State, 146 Ga. App. 681 (247 SE2d 191). See also Trogdon v. State, 176 Ga. App. 246, 247 (1) (335 SE2d 481). Linder the facts and circumstances of the case sub judice, venue in Coweta County must have been established by some slight evidence that defendant’s home, where the stolen property was found by the Sheriff’s Department investigator, is located in Coweta County. Barfield v. State, 149 Ga. App. 166 (2) (253 SE2d 781). The record does not contain any evidence establishing this fact.

The State urges that “[t]he evidence at trial showed [defendant] to be in possession of items stolen in two separate burglaries, and it was specifically shown that: (1) the burglaries occurred in the City of Palmetto, Coweta County, Georgia . . . ; (2) [defendant] exercised control over the stolen items in his mobile home in Palmetto, Georgia . . . ; and that (3) [defendant’s] mobile home was located directly behind the Collinsworth Road Truck Stop, the site of one burglary, and not far from Weldon Road, the site of the second burglary. . . . This Court is authorized to take judicial notice that [defendant’s] mobile home is located within Coweta County, Georgia. The evidence established that the burglaries occurred in Palmetto in Coweta County . . . , that [defendant’s] mobile home was located in Palmetto, right behind the burglarized truck stop and near the Weldon Road burglary site.”

Of the three specific facts upon which the State’s argument rests, the first, that the burglaries occurred in the City of Palmetto is irrelevant. There is no evidence that defendant’s residence was located in Palmetto, therefore, the second fact asserted by the State is not supported by the record. The remaining factual predicate of the State’s position, that defendant’s residence is located “directly behind” one Coweta County burglary site and “not far” from the road on which the second Coweta County burglary site is located is not alone sufficient to establish venue in Coweta County since the terms used are too vague and indefinite to provide a meaningful indication of location. If judicial notice is taken of the location of the City of Palmetto as apparently urged by the State, this adds only that that city is located in both Fulton and Coweta Counties. Therefore, the State has failed to meet its burden of proof regarding venue.

The majority’s reliance upon Melton v. State, 252 Ga. 97 (311 SE2d 471), is misplaced and that case should be distinguished. In Melton the offense of child molestation occurred at the victim’s home in College Park, a city which is located partially in Fulton County and partially in Clayton County. The evidence that the victim attended the Fulton County school system authorized an inference that the victim’s home was located in the Fulton County portion of College Park. Thus, the decision in Melton was predicated upon a logical inference arising from direct evidence.

In the case at bar, on the other hand, the majority rpsts its decision upon a presumption which absolves the State of its burden to prove venue. Using the majority’s reasoning, venue will be proven sufficient by simply showing that the crime was investigated by an officer of the forum county.

I would hold that the State has failed to prove venue. Therefore, I respectfully dissent.

Decided April 3, 1989.

Sanders, Mottola, Haugen & Mann, Walter S. Haugen, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes T. McCabe, Assistant District Attorney, for appellee.

I am authorized to state that Chief Judge Carley, Judge Sognier and Judge Benham join in this dissent.


text:
    A89A0181.
    MIASSO v. THE STATE.
    (381 SE2d 315)
   Deen, Presiding Judge.

On the evening of January 30, 1986, appellant Miasso, accompanied by a male friend and two women, drove to Gainesville, Georgia, from Atlanta and checked into a motel. After dinner the women left their motel room and went for a walk, leaving the two men behind. The women soon encountered a Mr. Wiley, who accompanied them back to their room. Once they were inside, a man subsequently identified as Miasso (pointing a gun), and a male companion (brandishing a knife), leapt from the closet; relieved Wiley of all his valuables (including, ironically, his wedding ring); and, after taping his mouth, wrists, and ankles, placed him in a bathtub. The women then went to a bar, where they met a Mr. Earls, who accompanied them to their room, where he suffered the same fate as Wiley. Earls was robbed of all valuables on his person, including a wallet containing $180; the assailants also took a toolbox from the trunk of his car and then drove back to Atlanta, leaving both victims immobilized in the bathtub.

The men eventually freed themselves and reported the incident to local police. Not wishing their wives to learn that they had accompanied women to a motel room for purposes that might seem all too obvious, they altered the truth by saying that the women had appeared to have car trouble and had sought their help. A few days later the police, acting on information, obtained a search warrant for the residence of one of the women and recovered both Earls’ toolbox and a gun subsequently identified as the one used in the robbery. Some two months later both victims were shown five photo arrays and positively identified all four of the principals in the robbery. Two of the latter, after arrest, pled guilty to two counts of armed robbery and two counts of false imprisonment. At trial the female who had pled guilty testified to the details of the incident, implicating, inter alios, Miasso. Both victims testified at trial and positively identified Miasso as one of the participants in the crime. The defense attempted to impeach the testimony of the State’s witnesses and also attempted to establish an alibi defense for Miasso. A Hall County jury found Miasso guilty of two counts of armed robbery and two counts of false imprisonment, and he received a sentence of twenty years, with fifteen to be served in prison. Miasso appeals, alleging that the evidence was insufficient to sustain the convictions. Held:

Decided April 3, 1989.

Whitmer & Law, G. Hammond Law III, for appellant.

It is well settled that the appellate court does not weigh the evidence but merely assesses its sufficiency. Whitten v. State, 143 Ga. App. 768 (240 SE2d 107) (1977). In the instant case the testimony of a female accomplice, which alone and without independent corroboration would have been insufficient to authorize a conviction, Howard v. State, 181 Ga. App. 187 (351 SE2d 550) (1986), was amply corroborated by the testimony of both victims and by their positive identification of all four of the perpetrators. Both victims admitted that they had initially falsified the circumstances under which they had met the women, but their accounts of the events in the motel room were consistent with one another and with that of the confessed female perpetrator. Moreover, at least one item belonging to one of the victims was found on the premises of the confessed female perpetrator. The victims’ explanation of the discrepancy regarding their initial encounter with the women was apparently considered by the jury to be consistent with human nature and ordinary experience, and therefore credible. See, e.g., Castell v. State, 250 Ga. 776 (301 SE2d 234) (1983); Gunter v. State, 243 Ga. 651 (256 SE2d 341) (1979). Other minor discrepancies, such as details of the perpetrators’ appearance, are so slight as to be immaterial (e.g., when did an assailant’s sunglasses fall off?).

Determination of the witnesses’ credibility is, of course, within the discretion of the trier of fact. OCGA § 24-9-80; Burnette v. State, 165 Ga. App. 768 (302 SE2d 621) (1983). Moreover, the jury may believe one part of a witness’ testimony without necessarily accepting as true the testimony as a whole. Frazier v. State, 152 Ga. App. 743 (264 SE2d 35) (1979). In view of the overwhelming evidence against Miasso, we find no error in the proceedings below and find the verdict authorized by the evidence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Charles Andrew Fuller, District Attorney, for appellee.


text:
    A89A0238.
    SELIGMAN et al. v. MILAM BUILDERS, INC.
    (381 SE2d 401)
   Deen, Presiding Judge.

The instant appeal stems from a long-standing dispute involving appellant Maxine Seligman and her husband and appellee Milam Builders, Inc. (Milam). According to appellant, Milam failed to perform certain work on the house he had contracted to build for them. The Seligmans withheld payment, and in 1985 Milam instituted an action. The Seligmans answered, alleging breach of contract and seeking dismissal with costs taxed to Milam, plus removal of all liens against the property. They also counterclaimed for damages of several sorts.

After various delays, which included inter alia requests by Milam for arbitration and for settlement, the parties, in April of 1988, entered into a consent order which required, inter alia, payment of $64,000 into the registry of the Fulton County State Court, completion and inspection of certain work, release to Milam of certain sums (“draws”) on certain conditions, removal of liens, and dismissal of all claims with prejudice, together with execution of a release and covenant not to sue. On September 23, 1988, the trial court entered an order expressly citing the consent order and directing (1) that $35,000 be released to Milam’s attorney and (2) that certain repairs be completed within ten days. A supplemental order reiterating the requirement for completion of the work and stating that the court, after visual inspection, would direct the disbursement of the funds remaining in the registry, was entered on September 28. Mrs. Seligman appealed from the order of September 23, enumerating as error rulings of the trial court with respect to the original contract and the consent order and its award of $35,000 to Milam’s attorney. Held:

1. Appellant apparently misinterpreted that portion of the court’s order directing payment to Milam’s attorney. We find no error here.

2. Appellant, having dismissed her attorney and proceeding pro se, filed no separate enumeration of error, as required by OCGA § 5-6-40. We have nevertheless, out of concern for due process, examined the record in its entirety but find appellant’s allegations, unsupported by citations to the record or to statutory or case law, to be so deficient in specificity, clarity, and substance as not to present any colorable issue upon which reversal of the judgment below might be predicated.

3. Appellee seeks imposition of a ten percent penalty for filing a frivolous appeal, pursuant to OCGA § 5-6-6. Although we find the instant appeal lacking in merit, we cannot say that it was undertaken solely for purposes of delay or harassment. Cf. Radford v. IPD Printing & Distrib., 184 Ga. App. 64 (360 SE2d 656) (1987); Fleming v. Fed. Land Bank, 167 Ga. App. 326 (306 SE2d 332) (1983); Taylor v. Bentley, 166 Ga. App. 887 (305 SE2d 617) (1983).

Decided April 3, 1989.

Maxine Seligman, pro se.

Francis Milam, pro se, McCalla, Raymer, Padrick, Cobb, & Nichols, Carol V. Clark, R. Terese Perrotta, for appellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0249.
    PIERCE v. THE STATE.
    (381 SE2d 532)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of armed robbery. He appeals from the judgment of conviction and sentence entered on the jury’s guilty verdict.

1. Appellant enumerates as error the admission of evidence concerning his pre-trial identification. Appellant was apprehended within minutes after the armed robbery had been committed. He was then taken to the scene of the crime and identified in a one-man showup. “[U]nder the exigencies of the circumstances of this case, we do not find the showup [to be] unnecessarily suggestive. The showup was an on-the-scene confrontation conducted as soon as possible after the offense. It was an immediate product of the offense and [appellant’s] apprehension. Practicalities inherent in this type of situation suggest that an immediate on-the-scene confrontation between victims and suspects is essential both to law enforcement and to fairness toward innocent suspects. [Cit.]” Horton v. State, 163 Ga. App. 809, 810 (1) (295 SE2d 554) (1982). Evidence as to this pre-trial identification of appellant was not erroneously admitted. See generally Arnold v. State, 155 Ga. App. 782 (1) (272 SE2d 751) (1980).

2. Since the pre-trial identification of appellant was untainted, it follows that the in-court identification of appellant was admissible. See Smith v. State, 189 Ga. App. 244, 245 (2) (375 SE2d 496) (1988).

3. Appellant enumerates the general grounds. After review, we find more than sufficient evidence from which a rational trior of fact could reasonably have found proof of appellant’s guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

Decided April 3, 1989.

Linnie L. Darden III, for appellant.

Spencer Lawton, Jr., District Attorney, John I. Garcia, Assistant District Attorney, for appellee.