author: Beasley, Judge. Birdsong, Presiding Judge,

text:
    A92A1196.
    ROBINWOOD, INC. v. BAKER.
    (425 SE2d 353)
   Beasley, Judge.

Robinwood, Inc. and Baker entered into a contract for labor, which was terminated several years later. Robinwood sought temporary and permanent injunctions and unspecified damages; Baker counterclaimed. The court on its own motion directed a verdict for defendant Baker as to Robinwood’s damage claim and in favor of Baker on her counterclaim in the amount of $86.50. Robinwood seeks reversal as to its claim.

1. Citing Heuer Industrials v. Crum, 202 Ga. App. 675 (415 SE2d 307) (1992), and OCGA § 5-6-35 (a) (6), appellee has filed a motion to dismiss the appeal. The motion is denied.

An application is required under OCGA § 5-6-35 (a) (6) whenever an appeal is taken from a judgment of $10,000 or some lesser sum. Brown v. Assoc. Fin. Svcs. Corp., 255 Ga. 457 (339 SE2d 590) (1986). OCGA § 5-6-35 (a) (6) sets out the correct method of appeal from monetary judgments ranging from one cent to $10,000. City of Brunswick v. Todd, 255 Ga. 448 (339 SE2d 589) (1986). As a general rule, the provisions of OCGA § 5-6-35 (a) (6) do not apply to an appeal from a judgment in favor of a defendant. Motor Fin. Co. v. Davis, 188 Ga. App. 291 (372 SE2d 674) (1988).

Robinwood’s notice of appeal is from that part of the judgment entered against “the Plaintiff” and in favor of “the Defendant”; however, the judgment also awards $86.50 in favor of plaintiff-in-counterclaim against defendant-in-counterclaim. In determining whether an appeal falls within the ambit of the discretionary appeals procedure, the final judgment is considered in its entirety (cf. City of Brunswick, supra), and not merely in its various parts. See Alexander v. Steining, 197 Ga. App. 328 (1) (398 SE2d 390) (1990). It includes an award for defendant as to plaintiff Robinwood’s claim or, in effect, a “zero” award for appellant as to its claim, as well as a small award on the counterclaim.

If this case involved solely the appeal of a “zero” award, there would be a right of direct appeal. See Bales v. Shelton, 260 Ga. 335 (391 SE2d 394) (1990); City of Brunswick, supra; Rich v. McDonald Car &c. Leasing, 180 Ga. App. 613 (349 SE2d 832) (1986), overruled on other grounds to the extent contrary, Honester v. Tinsley, 183 Ga. App. 146, 147 (1) (358 SE2d 295) (1987). In Boatner v. Kandul, 180 Ga. App. 234 (348 SE2d 753) (1986), judgment was entered on the jury verdict awarding plaintiff/appellee $450 on her claim and “0” to defendant/appellant on his counterclaim. We assumed jurisdiction over the direct appeal filed by appellant, holding: “Although none of appellant’s enumerations specifically addresses the counterclaim, they generally contend error in the judgment rendered by the trial court, which includes the zero verdict on appellant’s counterclaim. Therefore, under City of Brunswick v. Todd, [supra], we must address this appeal.” Id. at 234 (2); compare Williams v. Opriciu, 198 Ga. App. 663 (402 SE2d 744) (1991); Honester, supra; Williams v. Charter Credit Co., 179 Ga. App. 721 (347 SE2d 635) (1986).

We do not construe OCGA § 5-6-35 (a) (6) as requiring an application for discretionary appeal when the “zero” award is on the main claim and the award on the counterclaim is under $10,000, but allowing direct appeal when the “zero” award is on the counterclaim and the award on the main claim is under $10,000. A statute must be construed to avoid an absurd result. See generally Mansfield v. Pannell, 261 Ga. 243 (404 SE2d 104) (1991). Accordingly, appellant/plaintiff was authorized to file a direct appeal as to the “zero” award on the main claim. OCGA § 5-6-34 (a); see Boatner, supra. The portion of the judgment pertaining to the counterclaim would be reviewable on direct appeal (to the extent any issues were not otherwise abandoned) pursuant to OCGA § 5-6-34 (d). See Williams v. Opriciu, supra.

2. Robinwood asserts the trial court failed to employ recognized rules of contract construction in concluding that the phrase “not less than two years” is definite, clear, and unambiguous, and by failing to submit the issue of the parties’ contractual intent on this matter to the jury.

The employment contract provided: “Contractor [appellee Peggy Baker] further agrees that she shall not establish or purchase another personal care home in either DeKalb, Rockdale, or Newton County for a period not less than 2 years following the termination of this contract.” The contract was prepared in final form by a local lawyer at the direction of Robinwood’s president after the parties negotiated its terms.

The trial court held that the questioned phrase was plain, had “no cap” on the time it was to run, and that, as the words were not ambiguous, parol evidence of the party’s intent would not be admissible to show ambiguity. It directed a verdict on the ground that the questioned phrase in the clause was unenforceable as it was of indefinite duration, and that the remaining restrictive covenant in the contract also was unenforceable under the precedent of Ward v. Process Control Corp., 247 Ga. 583, 584 (277 SE2d 671) (1981).

Robinwood had alleged in its complaint that in the agreement, which was attached as an exhibit, “Defendant . . . agreed that she would neither purchase nor establish a personal care home in Newton County for a two year period from the date the agreement between the parties terminated. The agreement was terminated January 25, 1991.” The complaint was filed February 26. Peggy Baker admitted these allegations in her answer. She also admitted that her husband had purchased a dwelling in Newton County but denied that she had announced her intention for them to use it as an elderly care home.

A month before trial, plaintiff amended its complaint and added Peggy’s husband, Terry, as a defendant. It alleged again that Peggy Baker agreed in the attached agreement “that she would neither purchase nor establish a personal care home in Newton County for a two-year period from the date the Agreement between the parties terminated. The agreement was terminated on January 25, 1991.” Defendants in their answer admitted these allegations and that Terry Baker purchased a dwelling in Newton County but they denied opening the dwelling as an elderly care home on or about February 25.

In this manner the meaning of the time period during which the restriction was to run was established as fact by the parties, conclusively. OCGA § 9-11-8 (d); Martin v. Pierce, 140 Ga. App. 897 (1) (232 SE2d 170) (1977). The case was tried on the pleadings, without any pretrial order.

It was clear to the parties, as demonstrated by the pleadings, and it is clear as stated on the face of the document, Peggy Baker “agree [d] that she shall not establish or purchase another personal care home in either DeKalb, Rockdale, or Newton Counties for a period of not less than two years following the termination of this Contract.”

The two points fixed for the restricted period were the date of termination and two years thereafter. The restriction was for two years, period. That meant that at any time after two years from the determinable date of termination, Peggy Baker could establish or purchase another personal care home or homes in the three-county territory. When it is the latter of two points in time, as here, “not less than two years” means two years. “Not less than” as used in the sentence merely emphasizes that the restricted period is two years and not a day less. It is the employer saying, “You have agreed not to compete for two years, and when the time comes to measure it, I will not accept anything less than two years.”

This common vernacular method of focusing on a particular highlights the fact that it is a deliberately chosen one. When used at the ending point, “not less than” means that particular number, and no other “maximum” is stated because there is none. It would not make sense for the wording to be that Baker promises she will not open a home for a period of not less than two years after her termination nor more than, say, three years. That would be a very roundabout way of saying that she would not open a home for three years after termination. “Not less than two years” would have no meaning, as it would not measure any operative event.

Nor can it logically be construed to mean that the restrictive period does not begin at the end of two years and run to some undefined future date. It is illogical to conclude that the restriction only began at the end of two years and allowed her to open a competing establishment at any time within the first two years after ending her employment. Not only is it illogical, but such a construction ignores the contract’s words “from the date of termination.” As stated in the contract, the period is measured from the date of termination; it begins then and ends at the expiration of two years. It begins at termination and ends at two years.

When used together with a “not more than” clause, a “not less than” clause prescribes a minimum beginning point of reference. An example is that a robber “shall be punished by imprisonment for not less than one nor more than 20 years.” OCGA § 16-8-40 (b). An example of the law’s use of a phrase comparable to “not less than” as the ultimate operative point is found in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991): A defendant may win summary judgment by showing “that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” More is of no significance, just as in the Robinwood-Baker contract, more than two years is of no significance.

The application of the appropriate rules of contract construction leads to the conclusion that the trial court erred in directing a verdict on the ground that the phrase had an unambiguous opposite meaning. The contract should be enforced according to the stated intention of the parties when it was made.

3. It not having been established that the two-year period is unreasonable in time, the rule in Ward v. Process Control Corp., supra at 584 (2), does not apply to invalidate Peggy Baker’s other covenant that she “will in no way seek to influence or in any other way attempt to take any of the . . . guest residents to any other comparable business.”

Judgment affirmed in part and reversed in part.

McMurray, P. J., Carley, P. J., Pope, Cooper and Johnson, JJ., concur. Sognier, C. J., Birdsong, P. J., and Andrews, J., dissent.

Birdsong, Presiding Judge,

concurring in part and dissenting in part.

I concur in Division 1, but dissent as to Divisions 2 and 3 for the following reasons:

1. Appellant asserts the trial court failed to employ recognized rules of contract construction in concluding that thé phrase “not less than two years” is definite, clear, and unambiguous, and by failing to submit the issue of the parties’ contractual intent as to this matter to the jury. The trial court held that by the plain terms of the contract, the questioned phrase had “no cap” on the time it was to run, and that, as the words were not ambiguous, parol evidence of the party’s intent would not be admissible to show ambiguity. The trial court further directed a verdict against appellant as to its claim on the grounds that the questioned phrase in the clause was unenforceable as it was of indefinite duration, and that the remaining restrictive covenant in the contract also was unenforceable under the precedent of Ward v. Process Control Corp., 247 Ga. 583, 584 (277 SE2d 671).

I agree with the trial court that the phrase “for a period not less than two years” is per se clear and unambiguous and imposes “no cap.” “ ‘Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intent of the parties.’ ” Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 173 (3) (390 SE2d 257). The restrictive covenant in question, as found by the trial court, failed to contain a date (time) of termination on its face. “With respect to a negative covenant ancillary to a contract of employment, it is essential to the validity of the contract that it contain reasonable limitations both as to time and territory, and that it be ‘not otherwise unreasonable.’ . . . Whether the restraints imposed by an employment contract are reasonable is a question of law for determination by the court.” Orkin Exterminating &c. v. Dewberry, 204 Ga. 794, 802 (1) (51 SE2d 669), overruled in part on other grounds, Barry v. Stanco &c. Prods., 243 Ga. 68, 71 (3) (252 SE2d 491); compare Jenkins v. Jenkins Irrigation, 244 Ga. 95, 98 (2) (259 SE2d 47) (covenant must be strictly limited in time and territorial effect and otherwise reasonable). “If it is not [strictly] limited with regard to either time, territory or scope of activity, the entire covenant fails. Georgia does not employ the ‘blue pencil theory of severability’ when it comes to covenants contained in employment contracts.” Arnall Ins. Agency v. Arnall, 196 Ga. App. 414, 416 (1) (396 SE2d 257). Accordingly, the trial court was correct in declaring the entire covenant in question as unenforceable.

Moreover, if the questioned phrase does not mean what it plainly says, as is the inherent conclusion of the majority when they resort to a less than commonly accepted “vernacular” phrase interpretation to support their holding, then the questioned phrase is ambiguous (see generally McGee v. Southern Gen. Ins. Co., 194 Ga. App. 783, 784 (391 SE2d 669)). Appellant’s assertions notwithstanding, the issue of ambiguity would not automatically become a jury question. “The construction of a contract is a question of law for the court, and ‘even ambiguous contracts are to be construed by the court unless an ambiguity remains after application of applicable rules of construction.’ ” Id.; accord Kusuma v. Metametrix, 191 Ga. App. 255 (2) (381 SE2d 322). Thus, a contract is to be construed by the court where the language thereof is undisputed but the meaning of that language is in dispute. Avanti Group v. Robert Half &c., 198 Ga. App. 366, 368 (401 SE2d 576). As unequivocally recognized by the trial court, a well-established rule of contract construction “is that an ambiguous contract will be construed most strongly against its maker.” Hunsinger v. Lockheed Corp., 192 Ga. App. 781, 784 (1) (386 SE2d 537). After examining the employment contract in its entirety and applying the above rule of construction, any ambiguity would be resolved against appellant and it becomes clear that the questioned restrictive covenant failed to contain a specific limitation as to time. Compare Mc-Cann v. Glynn Lumber Co., 199 Ga. 669 (1) (34 SE2d 839) (lease contract after properly construed is not ambiguous in the sense that parol evidence would be admissible). Thus, assuming the questioned phrase initially was ambiguous (which seems even more plausible considering this issue had to be addressed in a whole court opinion), we would not reverse the trial court as the ambiguity could be resolved by application of well-recognized provisions of contract construction. And we would not reverse the correct holding of a trial court regardless of the reason thereto attributed. National Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344).

2. Appellant asserts the trial court erred when it also ruled unenforceable the contract language prohibiting appellee from taking from appellant elderly care residents.

I believe that the trial court did not err in determining this restrictive covenant also to be unenforceable under the controlling precedent of Ward, supra. The restrictive covenant here at issue pertinently provided that the contractor “will in no way seek to influence or in any other way attempt to take any of the . . . guest residents to any other comparable business.” (Emphasis supplied.) This restrictive covenant in substance is tantamount to a covenant both not to solicit and not to compete, and it is found in the same paragraph of the contract as is the unenforceable covenant not to compete above discussed. “If any covenant not to compete within a given employment contract is unreasonable either in time, territory, or prohibited business activity, then all covenants not to compete within the same employment contract are unenforceable. ... In the present case both the covenant ‘not to solicit’ and the covenant ‘not to compete’ are covenants not to compete for purposes of applying the above rule.” Ward, supra at 584 (2).

Durham v. Stand-By Labor, 230 Ga. 558, 562 (198 SE2d 145) (covenant not to compete and covenant not to disclose can be independently maintained under same employment contract) and Lane Co. v. Taylor, 174 Ga. App. 356 (330 SE2d 112) (covenant of no-hire is severable from covenant not to compete) are distinguishable from this case and thus are not persuasive.

3. Additionally, the record contains a prior order of the trial court denying appellant’s motion for temporary restraining order (TRO). This motion refers to certain evidence apparently adduced at a hearing which would establish that even if the above restrictive covenants had been valid, the operative facts failed to establish any violation of the covenant’s terms. Neither the TRO hearing transcript nor the trial transcript has been included with this appeal; accordingly, this court has only a paucity of evidence before us pertaining to these apparently operative case facts. See generally Nodvin v. West, 197 Ga. App. 92, 97 (3c) (397 SE2d 581); Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 51 (3) (397 SE2d 466).

4. Further, the majority relies upon certain averments made in the complaint and amended complaint, and admitted in the answers thereto, to bolster their contention that the questioned provision of the contract was only to run for a two-year period. In support of this contention, they cite as cornerstone authority OCGA § 9-11-8 (d) and Martin v. Pierce, 140 Ga. App. 897 (1) (232 SE2d 170).

I agree that if appellee/defendant is to be conclusively bound by her answer admitting averments in the complaint and amended complaint, it would have to be under the precedent of Martin v. Pierce, supra, and related cases. Examination of this precedent reveals that the binding of a party to averments made or admitted in pleadings is predicated on the doctrine of admissions in solemn judicio. I cannot agree that appellee has made such a binding admission. At best the averments of appellant/plaintiff admitted in the answer of appellee/ defendant, regarding the time limitations in the contract would, at most, constitute a conclusion or opinion of the parties as to the legal effect of the instrument sued on, and would not be binding upon the trial judge as to his interpretation of the terms of the contract as a question of law. Southern Bus. Machines v. Norwest Fin. &c., 194 Ga. App. 253, 257-258 (2) (390 SE2d 402); Howell Mill/Collier Assoc. v. Pennypacker’s, supra at 172 (2). Assuming arguendo an enforceable admission had occurred, inherent within the procedure employed by the trial court in determining contract construction was permission for appellee/defendant to withdraw that admission. Thus, the trial court was free to interpret the contract in accordance with those rules of contract construction or interpretation thereto applicable.

Assuming the phrase at issue was also capable of being reasonably interpreted using the so-called “common vernacular method” at most this establishes that the ill-chosen phrase is ambiguous (compare Claussen v. Aetna Cas. &c. Co., 259 Ga. 333 (380 SE2d 686)) permitting the trial court to employ that construction which most strongly goes against the maker (Hertz Equip. Rental Corp. v. Evans, 260 Ga. 532, 533 (397 SE2d 692)).

Decided November 6, 1992.

Paul S. Liston, for appellant.

John B. Begonia, for appellee.

Accordingly, I find the result reached by the trial court was not erroneous (National Consultants, supra), and that the judgment should be affirmed in its entirety.

I am authorized to state that Chief Judge Sognier and Judge Andrews join in this dissent.

       The trial court did afford Rohinwood the opportunity to perfect the record by presenting, outside the jury’s presence, testimony as to parol evidence. This proffer was the only evidence presented on the main claim; no evidence on it was presented to the jury at all.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A92A1224.
    SAPP et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (424 SE2d 871)
   Johnson, Judge.

Irvin Sapp and his daughter Tammy Sapp filed suit against Georgia Farm Bureau Mutual Insurance Company in the Superior Court of Evans County. They alleged in their complaint that they were the owners of an out-building located on seven acres of land owned by Irvin Sapp, that the out-building had been destroyed by a storm, that at the time it was destroyed the out-building was covered by a homeowner’s policy issued by Farm Bureau, and that Farm Bureau had wrongfully refused to pay their claim. Following completion of discovery which included the depositions of both plaintiffs, Farm Bureau filed separate motions for summary judgment against each plaintiff. As to Irvin Sapp, Farm Bureau did not dispute that he owned the out-building and the land upon which it sat, but asserted that he was not an insured under the policy in question. That being undisputed, the trial court granted Farm Bureau’s motion and entered judgment against Irvin Sapp. No appeal was taken from that judgment.

As to Tammy Sapp, Farm Bureau asserted that she did not own the out-building, nor the land upon which it sat, and that it was not otherwise covered because it was not located on her “residence premises” as defined by her homeowner’s policy. The trial court agreed, and granted Farm Bureau summary judgment against Tammy Sapp. She appeals.

In her only enumeration of error, Tammy Sapp asserts that the trial court erred in granting Farm Bureau’s motion for summary judgment because genuine issues of material fact exist that must be presented to a jury. We disagree.

Contrary to her allegation in her complaint, it is now clear and uncontroverted that Tammy Sapp had no ownership interest in either the out-building or the land. Sapp argues, however, that her policy nevertheless provides coverage because the mobile home endorsement defines residence premises as follows:

“8. ‘residence premises’ means the mobile home and other structures located on land owned or leased by you where you réside and which is shown as the “residence premises” in the Declarations.”
It is not disputed that the subject out-building is not itself shown as a covered structure on the Declarations page of the policy. Therefore, we must consider whether the trial court erred in determining as a matter of law that Tammy Sapp did not lease the property upon which it sat from her father so as to make it part of her “residence premises.”

The facts in the record are detailed as follows: Irvin Sapp bought seven acres of land from Marcus Dukes on November 22, 1989. At the time of purchase there was a mobile home occupied by Lisa Dukes located on the property, as well as the out-building which is the subject of the claim in this case. Lisa Dukes was allowed to keep her mobile home on the property in exchange for the payment of rent. There was no written lease, nor was there any agreement as to the exact boundaries of Lisa Duke’s leasehold interest. In December 1989, shortly after the purchase, Irvin Sapp allowed his daughter Tammy to move her mobile home onto the land. She parked her mobile home next to that of Lisa Dukes. The subject out-building was located near Irvin Sapp’s garden some 200 to 250 feet away from the two mobile homes. The out-building was used by Irvin Sapp to store his tractor, other farm equipment, garden tools, a freezer, and other items of his personal property. He allowed his daughter Tammy access to the outbuilding to share the freezer, to store a box of her personal clothes, to use a sink he had installed therein to wash her dog, and to store a push-type lawnmower he had given her.

In his deposition, Irvin Sapp admitted that he was the sole owner of the seven-acre tract upon which the out-building sat. He admitted that his daughter Tammy had no legal interest in the tract other than the bare expectancy that she would inherit the property upon his death. He admitted that he did not lease the property to his daughter, though he did allow her the privilege of parking the mobile home there. He admitted that his daughter paid him no rent, and he admitted that she did not perform any service in exchange for being allowed to park her mobile home on his property or for the limited use she made of the subject out-building. In her deposition, Tammy Sapp admitted the facts just outlined, and also made the following statements: '

“Q. Who owns the property upon which your trailer is located and Lisa’s trailer is located?
“A. My father, Irvin Sapp.
“Q. Do you lease from Mr. Sapp?
“A. No, sir, I do not.
“Q. Does Lisa lease from him?
“A. Lisa does.
“Q. Does your father just let you stay there?
“A. Yes, sir.”

After Farm Bureau filed its motions for summary judgment, Irvin Sapp and Tammy Sapp each filed affidavits which contradicted their earlier deposition testimony by asserting that they did in fact have a lease agreement, and that it was supported by the consideration of their mutual love and affection. Nowhere, however, are the exact boundaries of the alleged leasehold interest defined. The affidavits went on to say that Tammy Sapp was “allowed to use” the subject out-building. Neither affidavit ever said, however, that the subject out-building was located on whatever portion of the property Tammy Sapp allegedly leased from her father.

We begin our analysis by pointing out that both plaintiffs gave completely contradictory testimony on the question of whether there was any lease agreement between them. It was only in response to Farm Bureau’s motions for summary judgment that either plaintiff claimed that there was any lease, and even then they did not delineate the boundaries or any of the other terms and limitations of the alleged lease agreement. Nor did either plaintiff attempt to explain their earlier contradictory testimony. “The rule in Georgia is that the testimony of a party who offers himself as a witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal.” (Citations and punctuation omitted.) Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (343 SE2d 680) (1986). “The courts concluded that this rule must necessarily be applied to summary judgment proceedings, otherwise, ‘any opposing party may, by the simple device of filing conflicting affidavits, get the motion denied. The temptations to perjury are greater in this situation than in a jury trial. ...’” Id. We could follow that rule here, concluding that there was no lease to bring the out-building under the coverage of the policy and end our discussion. However, even if we ignore the contradictions and assume that there was a lease of some portion of Irvin Sapp’s property, Tammy Sapp’s assertion that the out-building was insured under the homeowner’s policy covering her mobile home must nevertheless fail.

It is a basic principle that one may only insure property as to which one has an insurable interest. OCGA § 33-24-4 (a) provides that “ ‘insurable interest’ means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction or pecuniary damage or impairment.” Mere possession or license to use the subject out-building standing alone is clearly insufficient to create in Tammy Sapp an insurable interest. See generally Splish Splash Waterslides v. Cherokee Ins. Co., 167 Ga. App. 589, 591 (307 SE2d 107) (1983).

The purpose for insurance policy clauses such as the one relied upon by Tammy Sapp in this case is to assist holders of a leasehold interest to define what structures other than their dwelling house are to be covered by their insurance, and to define the limits of risk the carrier undertakes with regard to those undefined “other structures” actually located on the leased premises. Under the circumstances of this case, there are only two ways which Tammy Sapp could acquire an insurable interest in the subject out-building.

First, she could show that the boundaries of her alleged lease, whether written or oral, were precisely fixed, included the area upon which the out-building sat, were contemplated by both the carrier and herself at the time she applied for the insurance, and were defined in the policy at the time it was issued. Given the testimony of Tammy Sapp and Irvin Sapp, and in the absence of any evidence to the contrary, the trial court could have concluded that any “leased land” in this case was limited to the land upon which Tammy Sapp’s mobile home actually sat. For purposes of our analysis, the presence of the Lisa Dukes trailer on the property is significant. Under the construction of the policy language urged by Tammy Sapp, she would have acquired an insurable interest in the mobile home of Lisa Dukes had she been allowed to store food in Lisa Dukes’ refrigerator, wash her dog there, and leave items of personal clothing for storage there. This would be so because neither her own nor Lisa Dukes’ leasehold boundaries were precisely defined, though both mobile homes were situated adjacent to each other on the same seven-acre tract. Such an analogy shows why the construction urged by Tammy Sapp is absurd under the particular facts of this case.

There is a second way Tammy Sapp could have brought the subject out-building within the coverage of her homeowner’s policy without being required to further define the exact boundaries of her leasehold interest. She could have specifically identified the out-building to the Farm Bureau agent at the time the application was made and the policy issued as being an “other structure” she intended to be covered. Express inclusion of this particular “other structure” in the policy would have avoided the instant controversy over coverage.

When Farm Bureau brought the motion for summary judgment citing Tammy Sapp’s admission that there was no lease agreement between herself and her father, the burden was upon her to show that there existed genuine issues of material fact as to coverage for the out-building. She failed to do so. Summary judgment is proper where the moving party shows that he is entitled to judgment as a matter of law and there is no genuine issue as to any material fact. Minor v. E. F. Hutton & Co., 200 Ga. App. 645, 646 (2) (409 SE2d 262) (1991). The trial court did not err in granting summary judgment to Farm Bureau.

Decided November 6, 1992.

Hallman & Associates, Ronald W. Hallman, D. Jay Stewart, for appellants.

Forbes & Bowman, Morton G. Forbes, Catherine M. Bowman, for appellee.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A1593.
    PEOPLES v. EMORY UNIVERSITY.
    (424 SE2d 874)
   McMurray, Presiding Judge.

Darrell A. Peoples, the claimant in this workers’ compensation case, was employed as a janitor at Emory Law School. One Sunday morning he traveled to work on his bicycle and after he passed the law school building on the way to another building, where he was to sign in and obtain keys to the law school building, he was distracted and permitted a bag to become caught in the spokes of his bicycle wheel. Claimant was injured in the crash that followed. The crash site was a street owned by Emory University and patrolled by Emory University police, albeit the street was usually open to travel by the public.

Employer Emory University denied workers’ compensation coverage contending that the injury did not arise out of and in the course of claimant’s employment. The administrative law judge awarded benefits but this decision was overturned by a majority of the full board which denied claimant’s claim for benefits. After the board’s award was affirmed by operation of law, claimant made application to this court for discretionary appeal and obtained permission to file this appeal. Held:

The administrative law judge’s award was predicated on'the ingress and egress rule, that is, that the period of employment generally includes a reasonable time for ingress to and egress from the place of work, while on the employer’s premises. Tate v. Bruno’s /Food Max, 200 Ga. App. 395, 396 (1) (408 SE2d 456); Crawford v. Meyer, 195 Ga. App. 867 (395 SE2d 327); Labelle v. Lister, 192 Ga. App. 464, 465 (1) (385 SE2d 118); Southern Bell Tel. &c. Co. v. Conyers Toyota, 190 Ga. App. 792 (1), 793 (380 SE2d 296); West Point Pepperell v. McEntire, 150 Ga. App. 728, 729 (1) (258 SE2d 530); Department of Human Resources v. Jankowski, 147 Ga. App. 441, 442 (2) (249 SE2d 124).

The board concluded that the injury cannot be said to have arisen out of and in the course of employment because it did not occur within the period of work or in a place where claimant may reasonably have been during the performance of his work. This holding cannot be reconciled with the above cases and must be viewed as erroneous. A compensable injury may occur outside the period of work and in a place the employee will never be during the performance of his work. Accord Maxwell v. Hosp. Auth. of Dade, Walker & Catoosa Counties, 202 Ga. App. 92 (413 SE2d 205).

For purposes of the ingress and egress rule, an employer’s premises is real property owned, maintained, or controlled by the employer. Accord Tate v. Bruno’s/Food Max, 200 Ga. App. 395, 396 (1), 397, supra. For this reason the employer’s reliance on Corbin v. Liberty Mut. Ins. Co., 117 Ga. App. 823 (162 SE2d 226), is misplaced. In Corbin an employee of a contractor involved in certain construction for the City of Gainesville was injured on a city owned road which provided the only access between the construction site and the main highway, yet there is no suggestion in that decision that the contractor employer owned, maintained or controlled the city owned access road. Therefore, this court was correct in holding that the employee had been injured after leaving the “premises” where work was being done and in affirming the denial of compensation.

It is fundamental that an injury compensable under our workers’ compensation law is one that arises out of and in the course of employment. OCGA § 34-9-1 (4). The ingress and egress rule is merely an application of this principle. See West Point Pepperell v. McEntire, 150 Ga. App. 728, 729 (1), supra, and DeHowitt v. Hartford Fire Ins. Co., 99 Ga. App. 147 (5) (108 SE2d 280). The ingress and egress rule is “ ‘predicated on the rationale that until the employee has actually departed the premises, he has not “started traveling a route of (his) choosing wholly disconnected with (his) employment.” (Cits.)’ Southern Bell Tel. &c. Co. v. Conyers Toyota, 190 Ga. App. 792, 793 (380 SE2d 296) (1989).” Tate v. Bruno’s/Food Max, 200 Ga. App. 395, 396 (1), supra.

In the case sub judice, it is uncontroverted that when injured, claimant was traveling a path dictated by his job. Claimant had already passed the law school building where he would have labored that day in order to travel to another building to sign in and obtain keys. Claimant was clearly involved in conduct arising out of and in the course of his job, the ingress to his job.

Employer owned the street upon which claimant was injured. The fact that the site of the injury was a street does not preclude it being a portion of the premises. Chandler v. General Accident Fire &c. Corp., 101 Ga. App. 597 (114 SE2d 438). Nor does such a result arise from the fact that the site of the injury was open to public use. Many businesses hold their premises open to the public for various reasons. Also, employer has the right to bar the public from the street in question and sometimes exercises that right by closing the street for various university functions.

Decided November 6, 1992.

Gary M. Kazin, for appellant.

Robert J. Routman, for appellee.

We are not persuaded by the foreign jurisdiction cases cited by employer for the proposition that premises do not include streets owned by employers. These cases are distinguishable on the facts and generally relate to the peculiar problem of applying the ingress and egress rule where an employee of a governmental entity is injured on a street owned by his employer and located some great distance from the employee’s work site. In our view, such cases relate to the concepts of ingress and egress, rather than to the boundaries of the premises.

Finally, there is no suggestion in the case sub judice that claimant expended more than a reasonable time in the ingress to his job. The uncontroverted evidence shows that claimant’s injuries arose out of and in the course of his employment. The administrative law judge’s award should have been upheld and the holding of the board denying employee’s claim for benefits should have been reversed. Department of Human Resources v. Jankowski, 147 Ga. App. 441, 442 (2), supra.

Case remanded for proceedings not inconsistent with this Court’s holding.

Sognier, C. J., and Cooper, J., concur.


author: Pope, Judge.

text:
    A92A0935.
    HELTON v. THE STATE.
    (424 SE2d 806)
   Pope, Judge.

Defendant William Leo Helton appeals his convictions for two counts of child molestation and two counts of aggravated child molestation. Evidence was presented at trial that the offenses occurred after defendant volunteered to look after the eight-year-old female victim while her mother was working at a truck stop. The victim testified defendant touched her genital area with his hand and his tongue. After careful consideration in a hearing outside the presence of the jury, the trial court permitted the State to present the testimony of the manager of the truck stop that defendant had a habit of displaying to the manager and others a collection of about 100 photographs taken by defendant of nude or semi-nude women. Some of the photographs showed defendant performing oral sex on the women. The women in the photographs appeared to range in age from 16 to middle age. Defendant argues that since the photographs did not relate to sexual activity with children, the trial court erred in admitting the testimony because it was irrelevant to the issue of whether he committed the crimes charged and was prejudicial to him.

Defendant argues this court has become too permissive in holding that evidence of the defendant’s possession of sexually explicit materials which do not relate to children is admissible in child molestation cases. For example, in Thompson v. State, 187 Ga. App. 563 (370 SE2d 819) (1988), in which the defendant was convicted of child molestation, this court held that videotapes depicting graphic sexual acts were properly admitted “as they have a tendency to show bent of mind by defendant toward sexual activity.” Id. at 563. Defendant points out that the previous decisions relied upon by this court in Thompson were materially distinguishable from the facts in Thompson, as well as the facts of the case at hand, and argues that the holdings in these previous cases should not be expanded to permit the admission of evidence which is unrelated to the act for which the defendant is being tried. For example, in Tyler v. State, 176 Ga. App. 96 (335 SE2d 691) (1985), cited in the Thompson opinion, the facts showed the videotapes admitted into evidence had been used in the commission of the crime in that the defendant had required the child victim to watch them. In Wilcoxen v. State, 162 Ga. App. 800 (292 SE2d 905) (1982), also cited in Thompson, defendant was charged with molesting a male child and the sexually explicit photographs in question were of male teenagers. Thus, as the court noted, the photographs were relevant “to show defendant’s bent of mind toward the sexual activity with which he was charged.” Wilcoxen, 162 Ga. App. at 801. Defendant argues that since the photographs admitted at his trial were of sexually mature women, they are irrelevant to the issue of motive or intent to commit illegal sexual acts with a child.

Defendant further argues that bent of mind toward sexual activity, the standard applied in the Thompson opinion, is irrelevant to the issue of whether defendant committed a sex crime because all normal adults possess a bent of mind toward sexual activity. Although we disagree that the Thompson opinion erroneously held the sexually explicit material to be admissible, in order to avoid confusion in subsequent cases we hereby clarify that the issue is not whether the evidence sought to be admitted shows defendant’s bent of mind toward “sexual activity.” The true issue is whether the evidence sought to be excluded by the defendant is admissible to show defendant’s bent of mind toward the sexual activity with which he was charged or defendant’s lustful disposition. See Brooks v. State, 197 Ga. App. 194 (2) (397 SE2d 622) (1990); Stamey v. State, 194 Ga. App. 305 (2) (390 SE2d 409) (1990); Tucker v. State, 191 Ga. App. 648 (382 SE2d 425) (1989). The testimony in the case now before us is relevant to both these issues. The testimony established that defendant showed an “obsessive” interest in displaying the photographs he had apparently taken of. approximately 100 nude or semi-nude women, some of which showed defendant in the act of performing oral sex on the women. In this case in which defendant was charged with performing oral sex upon a child, “[i]t would be illogical to say that such sexually depictive and explicit material has no relevance to the lustful disposition of the defendant... or that they say nothing about his state of mind, as to inclination towards and preoccupation with such matters. If there is any question about it, it is a well established rule of law that the rules of evidence require that the evidence be admitted and its weight and effect left to the jury.” (Citation and punctuation omitted.) Stamey v. State, 194 Ga. App. at 308.

Decided October 22, 1992 —

Reconsideration denied November 9, 1992

Cowen & Cowen, Martin L. Cowen III, for appellant.

Robert E. Keller, District Attorney, Gregory K. Hecht, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Andrews, Judge.

text:
    A92A1123.
    JARAYSI v. YATES.
    (424 SE2d 793)
   Andrews, Judge.

Jaraysi sued Yates alleging that after they entered into a contract under which Yates agreed to purchase real property from Jaraysi, Yates refused to complete the purchase and breached the contract. Jaraysi sold the property to another purchaser for a lesser price and sued to recover the deficiency plus expenses incurred in the sale, less the earnest money paid by Yates under the contract. The trial court granted Yates’ motions for a directed verdict, ruling that the contract was unenforceable because the terms by which the purchase price was to be paid were inconsistent, and ordering Jaraysi to return the earnest money.

Pretermitting Jaraysi’s argument that the alleged inconsistency in the contract terms was waived because this defense was not included in the pre-trial order, we find no inconsistency or other ambiguity in the purchase price terms. The contract provides for a sales price of $366,000 to be paid as follows: “At the time of closing the Purchaser shall pay the Seller THIRTY THOUSAND ($30,000.00) Dollars cash and the balance of THREE HUNDRED THIRTY SIX THOUSAND ($336,000.00) Dollars shall be in the form of one purchase money note from Purchaser to Seller, secured by a first deed to secure debt covering the above described property, bearing interest at the rate of 10% per annum on the unpaid balance, payable in successive monthly payments of $2,948.64 each including principal and interest, for a period of 360 months. The first monthly payment shall be due on February 1, 1990. The said money note shall be due in full on December 31, 1992 for the remaining principal as a balloon payment.”

Decided October 8, 1992 —

Reconsideration denied November 9, 1992

Christopher J. McFadden, for appellant.

Smith, Eubanks, Smith & Darden, David P. Darden, for appellee.

Yates contended that this language provided for two inconsistent methods of payment, one for consecutive monthly payments of $2,948.64 for 360 months, and another for monthly payments for only two years followed by the balloon payment on December 31, 1992. The contract cannot be reasonably construed as Yates contends. After a cash payment of $30,000, the contract provided that the $336,000 balance was to be paid under the terms of the note. The 360-month period is not the agreed upon term for full payment of the note, but represents the 30-year period on which the monthly amortization payments were fixed. The contract clearly provides that the note is dug in full in the December 31, 1992 balloon payment.

The existence or non-existence of ambiguity in a contract is a question of law for the court. Copy Systems of Savannah v. Page, 197 Ga. App. 435, 436 (398 SE2d 784) (1990); Salvatori Corp. v. Rubin, 159 Ga. App. 369, 372 (283 SE2d 326) (1981). Since we find no ambiguity, the trial, court erred by granting Yates’ motions for directed verdict.

Judgment reversed.

Birdsong, P. J., and Beasley, J., concur.


text:
    A92A1628.
    T & M INVESTMENTS, INC. v. JACKSON et al.
    (425 SE2d 300)
   Johnson, Judge.

Robert Jackson was employed by Dusco, Inc., as a security guard at a shopping mall. Jackson was on a routine patrol in an exterior service bay area ensuring that the back doors to the stores were locked after the mall had closed. Suddenly, he slipped and fell in a large pool of grease which had been thrown out the back door of a McDonald’s restaurant instead of being carried across the service area and put in the proper grease disposal receptacle. Jackson sued T & M Investments, Inc., which owned and operated the restaurant.

A jury returned a verdict of $338,830 in favor of Jackson individually, and $18,250 in favor of Jackson as the executor of the estate of Marie Jackson. T & M brings this appeal asserting nine enumerations of error.

1. T & M asserts in its first enumeration of error that the trial court erred in denying its motion for a directed verdict because Jackson was a licensee and there was no evidence that T & M had been wilfully or wantonly negligent.

T & M did not own or occupy the service bay area. T & M had a non-exclusive license to use the service bay area to receive supplies, access trash dumpsters, and deposit grease in designated receptacles. Consequently, general landowner liability theories do not apply. As was the case in International Paper Realty Co. v. Bethune, 256 Ga. 54 (344 SE2d 228) (1986), “this case does not turn on the issue of a' landowner’s liability to invitees, licensees or trespassers who go upon his property and are injured there . . . this case involves a claim against a landowner whose land is immediately adjacent to a public way. Such a landowner may not, without incurring a duty, maintain an artificial condition so situated that persons lawfully using the public way may, by accident or some force not their own fault, fall upon and be injured by the artificial condition. [Cits.] If an artificial condition exists under these circumstances, the landowner owes a duty of due care to guard, cover or protect it for the safety of those on the public way. [Cits.]” Id. at 55. It is clear that the presence of the grease created a dangerous nuisance and T & M did not exercise that duty of ordinary care to guard, cover, or protect it in order to ensure the safety of passersby. Therefore, the court did not err in denying T & M’s motion for a directed verdict.

Even if one were to construe the facts of this case to fit the model of landowner liability, T & M would have had an obligation to exercise ordinary care to keep the premises safe. “An owner/occupier has the duty to an invitee to exercise ordinary care to keep premises safe. OCGA § 51-3-1. As to a licensee, however, there is liability only for wilful or wanton injury. OCGA § 51-3-2. The accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render his presence of mutual benefit to both, or whether his presence was for his own convenience, or was for business with one other than the owner or occupier.” (Citations and punctuation omitted.) Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 876 (2) (392 SE2d 535) (1990). T & M benefitted from, and, through the payment of its rent, contributed to the security services provided to the mall by Dusco. Therefore, Jackson was an invitee to whom T & M had a duty to exercise ordinary care to keep the premises safe. Evidence presented at trial established that an employee closing the restaurant simply opened the back door and threw the day’s accumulation of grease on the pavement in the service bay area. “It is the duty of a proprietor to protect an invitee from injury caused by the misconduct of employees, customers and third persons if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence.” (Citations and punctuation omitted.) Bishop, supra at 876 (3). The trial court’s refusal to grant a directed verdict in favor of T & M because there was no evidence of wilful or wanton conduct was not error under general landowner liability theories as well.

2. In its second enumeration of error, T & M alleges that the trial court’s refusal to instruct the jury on the duty owed a licensee, or to define licensee, was prejudicial error. For the reasons articulated in Division 1 of this opinion, this argument is without merit.

3. Enumeration 3 alleges that the trial court erred in failing to enforce a motion in limine regarding evidence of a subsequent collateral incident. A review of the record indicates that only one witness testified that there could have been a second incident involving grease in the service area. This testimony was offered in direct response to a question concerning other incidents posed by T & M’s counsel on cross-examination. “Where counsel elicits testimony unfavorable to his client, he will not be heard to object to it.” (Citations and punctuation omitted.) Tiftarea Shopper v. Maddox, 187 Ga. App. 227, 228 (2) (369 SE2d 545) (1988). Accordingly, we find no error.

4. T & M asserts that the special damages awarded for lost wages was improper as it was not supported by sufficient evidence to allow the jury to calculate the lost wages with specificity. A review of the record indicates that Jackson testified that he had been earning a salary of $1,260 per month as a security guard. His testimony included his continuous work history, the date upon which he last worked, at age 59, and recounted his unsuccessful efforts to find work. We find that this evidence would permit the jury to calculate the amount of the loss with a reasonable degree of certainty. See Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836 (351 SE2d 82) (1986); Douglas v. Rinker, 134 Ga. App. 949, 950 (216 SE2d 629) (1975). Further, in determining the amount of lost future earnings, a jury is authorized to consider “all the other vicissitudes of life such as illness and old age. [Cit.]” Atlanta Transit System v. Biggs, 133 Ga. App. 960, 963 (2) (213 SE2d 87) (1975).

5. T & M also asserts that the special damages awarded for future medical expenses was improper as it was not supported by sufficient evidence to allow the jury to calculate the expenses with specificity. Jackson’s treating physician testified that he continued to treat Jackson for his injuries and that he recommended that a myelogram and other tests be performed. He stated that Jackson would require continuing physical therapy. He testified that the current cost of an M.R.I. is $650 to $700. This testimony was sufficient to present the issue of future medical expenses to the jury. Since the special damages verdict was not broken down by the jury, we cannot say which portion was attributed to lost wages and which portion to future medical expenses. “The jury is the final arbiter of the facts and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict.” (Citations and punctuation omitted.) Rosequist v. Pratt, 201 Ga. App. 45, 47 (4) (410 SE2d 316) (1991). We find no error as to this enumeration.

6. T & M, in its sixth enumeration of error, alleges that the award for loss of consortium was improper. At trial, no evidence was presented to establish the date of the death of Jackson’s wife, who died during the pendency of the litigation. T & M argues that without that date there was insufficient evidence upon which the jury could base its award. “Damages for loss of consortium,. . . are . . . not capable of exact pecuniary measure and must be left to the enlightened conscience of impartial jurors taking into consideration the nature of services, society, companionship and all the circumstances of the case. (Cit.) [Cit.]” (Punctuation omitted.) Gurly v. Hinson, 194 Ga. App. 673, 675 (9) (391 SE2d 483) (1990). However, “the right of consortium exists only during the joint lives of the husband and wife, such evidence is essential to the jury’s determination of this issue.” Cody v. Peak, 113 Ga. App. 676, 677 (2) (149 SE2d 521) (1966). The jury, without the date of death, could not calculate the duration of the “joint lives” for the purpose of fixing the award for loss of consortium. Therefore, the judgment entered on the jury’s award of $18,250 to the estate of Marie Jackson must be reversed.

7. T & M cites as error the trial court’s refusal to admit medical records from a visit made by Jackson to Dr. Nichols 12 years prior to the incident which forms the basis of this case. T & M argues that OCGA § 24-3-4 permits the admission of statements made for purposes of diagnosis or treatment. Such records are, however, “still subject to the general rule that ‘(i)f a hospital record contains diagnostic opinions and conclusions, it cannot, upon proper objection, be admitted into evidence unless and until the proper foundation is laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based.’ [Cits.]” Stoneridge Properties v. Kuper, 178 Ga. App. 409, 412 (1) (343 SE2d 424) (1986). Dr. Nichols was not present at the trial and Jackson’s admission that he may have seen Dr. Nichols does not constitute a proper foundation for the admission of the office records of that visit. T & M also argues that the document was admissible as a prior inconsistent statement. This argument must also fail. In order for a prior inconsistent statement to be admissible, the witness must deny having made the prior statement. Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675, 677 (3) (278 SE2d 100) (1981). When attempting to lay the foundation for the introduction of the doctor’s records, Jackson consistently stated that he did not recall a visit to Dr. Nichols in 1977 and that it was possible that he complained of the problems enumerated by counsel for T & M. This does not constitute a denial which would authorize the admission of the hearsay document as a prior inconsistent statement. The trial court correctly excluded the evidence.

8. The eighth enumeration of error alleges that the trial court made numerous errors with regard to the jury charges. In instructing the jury on the burden of proof in a civil case, the trial court charged as follows: “By a preponderance of the evidence is meant that superior weight of the evidence upon which the issues involved. . . . And in this instance, it’s to the Plaintiff’s side of the case rather than the Defendant’s side of the case.” While the final portion of this charge is not part of the pattern instruction, we find that a juror of average intelligence would understand that the judge was attempting to clarify which party had the burden of proof and not infer from this phrase that he believed that the plaintiff actually had a preponderance of the evidence. “Instructions which, when the jury is given credit for ordinary intelligence, are not confusing and prejudicial are not reversible error.” (Citations and punctuation omitted.) Unique Designs v. Pittard Machinery Co., 200 Ga. App. 647, 652 (2) (409 SE2d 241) (1991). The remaining allegations of error in the charge state generally that all thirty something charges were incorrect statements of the law and were not warranted and adjusted to the evidence. At trial, counsel for T & M made a blanket objection to the charge. “To be reviewable the objection must be unmistakable in its purport in directing the attention of the trial court to the claimed error and must point out distinctly the portion of the charge challenged. The grounds of error urged must be stated with sufficient particularity to leave no doubt as to the portion of the charge challenged or as to what the specific ground of challenge is. The grounds of error urged must fully apprise the court of the error committed and the correction needed to cure the error.” Georgia Power Co. v. Maddox, 113 Ga. App. 642 (1) (149 SE2d 393) (1966). General exceptions to a charge given or general exceptions to refusals to charge fail to meet the requirements of OCGA § 5-5-24. We have reviewed the charges given to the jury in the case in their entirety and they fail to show such harmful error as a matter of law so as to require a reversal pursuant to OCGA § 5-5-24 (c). See Lissmore v. Kincade, 188 Ga. App. 548, 550 (4) (373 SE2d 819) (1988); Black v. Aultman, 120 Ga. App. 826 (1) (172 SE2d 336) (1969).

Decided October 26, 1992 —

Reconsideration denied November 9, 1992

Don Smart, Allison K. Luke, for appellant.

Jones, Boykin & Associates, H. Gregory Fowler, Robert K. Hardeman, for appellees.

9. T & M’s final enumeration of error, that the verdict was contrary to the law and evidence is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). In its brief, T & M has simply rephrased its enumeration of error without providing guidance as to the basis for this claim and has cited no authority. “The mere repetition and rephrasing of an enumeration of error without more is not the argument anticipated by [Court of Appeals Rule 15 (c) (2)]. ‘The principal purpose of argument is to provide guidance to this court on the basis for a claim of error and for citations of authority which tend to support appellant’s allegation of error. (Cits.) A mere recital, or repetition, of the enumerated error is not argument. (Cits.)’ [Cits.]” Chesser v. Wallace, 200 Ga. App. 567, 568 (408 SE2d 814) (1991).

Judgment affirmed in part, reversed in part.

Carley, P. J., and Pope, J., concur.


text:
    A92A1319.
    TDS CONSTRUCTION, INC. v. BURKE COMPANY.
    (425 SE2d 359)
   Johnson, Judge.

The Burke Company brought this breach of contract action against TDS Construction, Inc. and Travelers Indemnity Company, seeking to recover damages under a payment bond. Judgment was entered on a verdict in favor of Burke, and this appeal resulted.

The pertinent facts are as follows: The Department of Natural Resources awarded a bid to TDS, a general contractor, to construct the new Department of Natural Resources building (the “DNR” project). TDS hired Barlow Construction, Inc., as a subcontractor, to perform certain concrete work needed on the DNR project. Barlow then entered into a rental agreement with Burke whereby Burke would supply certain concrete forming equipment and other related materials to Barlow for its use in performing the subcontract work on the DNR project. Burke had furnished much of the necessary equipment required under the terms of its agreement when Barlow filed bankruptcy and abandoned the project. When Burke attempted to contact Barlow seeking to have the rented equipment returned, Barlow could not be located. Burke then contacted TDS requesting the return of the equipment. TDS refused to return the equipment. Ultimately, Burke was able to obtain replacement equipment from a supply yard in Florida and made arrangements to send a crew to recover the equipment remaining at the DNR project site.

Burke filed this suit against TDS seeking reimbursement for the equipment which Barlow had not returned. Burke asserted that it was entitled to bring suit against TDS and Travelers for damages incurred due to Barlow’s breach under the terms of the payment bond Travelers issued to TDS. A jury returned a verdict in favor of Burke, awarding damages in the amount of $36,424.53. TDS appeals from the judgment entered on the verdict and the denial of its motion for a new trial.

1. TDS contends that the trial court erred in allowing Burke to present evidence of damages relating to certain materials it supplied to Barlow, known as “alumna beams.” TDS argues that the beams were used on a different project than the DNR project and, therefore, Burke was not entitled to damages arising from their use. This enumeration is without merit.

Materials are presumed to be used on a particular construction project when it is shown that the materials were delivered to the project for that purpose, and the burden is on the owner of the project to prove that the materials were not so used. Sanford v. Hodges Builders Supply, 166 Ga. App. 86, 87 (2) (303 SE2d 280) (1983). In the instant case, Burke presented evidence in the form of shipping tickets indicating the delivery of alumna beams for use on the DNR project. There are no other shipping tickets which show that the equipment was shipped to a project other than the DNR project. Moreover, we find no evidence in the record which adequately rebuts the presumption that the materials were used on the DNR project.

Under OCGA § 36-82-104 (b) the “Little Miller Act,” Burke would be entitled to recover under the bond for materials furnished for use in the construction of the DNR project, even if the materials were diverted to another project, as long as Burke had a reasonable, good faith belief that the materials were ultimately intended for the DNR project. See United States &c. Mfg. Co. v. Kelley, 456 F2d 148, 151-152 (III) (9th Cir. 1972). Georgia courts have recognized the decisions interpreting the federal Miller Act, 40 USC § 270a et seq., are persuasive authority in interpreting the Georgia Little Miller Act, OCGA § 36-10-4 through OCGA § 36-82-104. See Amcon v. Southern Pipe & Supply Co., 134 Ga. App. 655, 656 (215 SE2d 712) (1975); see also Porter-Lite Corp. v. Warren Scott Contracting Co., 126 Ga. App. 436, 438 (3) (191 SE2d 95) (1972). There is nothing in the record indicating that Burke had anything but a reasonable belief that the materials it supplied were to be used on the DNR project.

A motion for a directed verdict or j.n.o.v. is only properly granted when the evidence presented demands such a ruling. See Mercer v. Woodard, 166 Ga. App. 119, 127 (13) (303 SE2d 475) (1983). Accordingly, the trial court did not err in denying TDS’ motions for directed verdict and j.n.o.v.

2. TDS contends that the trial court erred in allowing Burke to present evidence regarding damages incurred outside of the express terms of the rental agreement. TDS argues that Burke’s pleadings and its pre-trial order assert a breach of contract action, therefore, any evidence of damages outside of the express terms of the rental agreement was improperly admitted. This argument is without merit.

The rental agreement states, “additional equipment may be rented at a 30% discount off list rental rate.” This statement within the contract necessarily contemplates the delivery of additional, unspecified materials to Barlow. Furthermore, in cases where “there is an express contract, if services not contemplated by the original agreement become necessary to achieve the contractual objective and are rendered and accepted, the law implies and enforces performance of a promise to pay for such extra services.” Puritan Mills v. Pickering &c. Co., 152 Ga. App. 309, 310 (1) (262 SE2d 586) (1979). To the extent that rented materials which were not specifically found in the agreement were necessary for Burke to perform its duties under the agreement, damages for their loss are recoverable and no count for damages in quantum meruit was required to be pled. Accordingly, the trial court did not abuse its discretion in allowing such evidence to be admitted.

3. TDS contends that the trial court erred in permitting one of Burke’s witnesses to remain in the courtroom in violation of the rule of sequestration. We have held that decisions regarding exceptions to the rule of sequestration in order to facilitate the orderly presentation of evidence are a matter within the discretion of the trial court. Ryles v. State, 177 Ga. App. 537 (339 SE2d 792) (1986). We find no abuse of the trial court’s discretion under the particular circumstances in this case.

4. TDS contends that the trial court erred in refusing to give its request to charge regarding mitigation of damages.

The trial court does not commit error in refusing to give a jury charge which is not tailored to the evidence and the issues in a case. See Travel Agency Group v. Henderson Mill Travel, 193 Ga. App. 882, 885 (1) (389 SE2d 511) (1989). There is no evidence in the record which would warrant a charge on mitigation of damages. The trial court properly refused the requested charge on that issue.

Decided November 9, 1992.

Wilkes, Johnson & Smith, Kris Knox, for appellant.

Rumberger, Kirk, Caldwell, Cabaniss, Burke & Wechsler, Charles V. Choyce, Jr., Bovis, Kyle & Burch, James P. Diwik, for appellee.

We find no error for any reason assigned and since the judgment entered on the verdict is supported by competent evidence, the judgment must be affirmed.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Sognier, Chief Judge.

text:
    A92A1556.
    TURNTIME v. THE STATE.
    (424 SE2d 877)
   Sognier, Chief Judge.

Willie Rufus Turntime was charged with theft by taking an automobile and by receiving a stolen automobile. A jury acquitted him of the charge of theft by taking and convicted him of theft by receiving. He appeals.

The evidence adduced at trial showed that on November 14, 1990, Detective Richard Brown of the Atlanta Police Department’s Fugitive Squad was in an unmarked car when his attention was drawn to a late model red Honda Accord because it had unrepaired body damage. Detective Brown followed the car and asked his radio dispatcher to check its tag number. After being informed by the dispatcher that the tag number did not match the Honda, he asked for a uniformed patrol to stop the car, which was traveling away at excessive speed. When the Honda had been stopped, Brown asked the driver, later identified as appellant, for a driver’s license and registration. Appellant identified himself as “Robert Lorenzo” and could produce neither a driver’s license nor any ownership or registration documents for the car. Detective Samuel Gilbert of the Atlanta Police Department Auto Theft Squad, who was called to the scene by Detective Brown, testified that upon confirming by radio that the tag was stolen, he then requested a check on the vehicle identification number and was informed that the car had been reported stolen on October 22,1990. Gilbert advised appellant of his rights and placed him under arrest. Gilbert testified that appellant gave his name as “Robert Lorenzo,” but his true identity was discovered from fingerprints taken when he was booked. The owner of the car testified that when the car was stolen, it had been parked unlocked in her driveway with a spare key hidden in the ashtray. When it was returned to her by the police, the car had new body damage, and the interior contained trash and dirty clothing and was in an extremely poor state of repair, with all interior surfaces covered with cigarette burns. Appellant testified that he had borrowed the car from a man he knew only as “Anthony,” whom he met in his neighborhood several days earlier; that because Anthony had a job and could have bought a car he believed the car was Anthony’s; that Anthony gave him both a trunk key and an ignition key; that he was using the car to take his family’s dirty clothes to the laundry; and that he had no knowledge that the car had been stolen.

In two enumerations, appellant contends the trial court erred by denying his motions for a directed verdict of acquittal and that the evidence was insufficient to support his conviction because the State failed to prove his knowledge that the car was stolen. We do not agree.

1. “Knowledge that the goods are stolen is an essential element of the crime [of theft by receiving stolen property]. This guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent [person]. [Cits.]” Watts v. State, 157 Ga. App. 214 (276 SE2d 884) (1981). In both Watts and Hanson v. State, 151 Ga. App. 890 (262 SE2d 203) (1979), relied on by appellant, the State failed to show any circumstances establishing scienter other than the accused’s possession of stolen property, and this court held, accordingly, that the convictions must be reversed. In the case sub judice, however, the evidence adduced by the State set forth circumstances that “would excite suspicion in the mind of an ordinary prudent [person],” Watts, supra, thus authorizing the jury to infer that appellant had the requisite knowledge that the car was stolen. These circumstances include appellant’s use of a false name and his testimony that he had borrowed the car from a person he barely knew whose last name he did not know; and that the late model car had been treated in a manner inconsistent with ownership. See Daras v. State, 201 Ga. App. 512, 513-514 (1) (c) (411 SE2d 367) (1991); Perry v. State, 180 Ga. App. 273 (349 SE2d 25) (1986); Beadles v. State, 151 Ga. App. 710 (1) (261 SE2d 447) (1979).

Given this evidence, the trial court did not err by denying appellant’s motion for a directed verdict of acquittal. Id.

2. This evidence also authorized the jury to find appellant guilty of theft by receiving the car under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Daras, supra at 514 (2).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

Decided November 9, 1992.

Clifford M. Weiss, for appellant.

Lewis R. Slaton, District Attorney, Carl Greenberg, Barry Mortge, Assistant District Attorneys, for appellee.


text:
    A92A1325.
    KORITTA v. THE STATE.
    (424 SE2d 799)
   Sognier, Chief Judge.

Kenneth Koritta was convicted of voluntary manslaughter in the shooting death of Bruce Blankenship. Koritta appeals from the denial of his motion for new trial, enumerating three errors in the court’s charge to the jury.

The evidence adduced at trial established that on the night of February 8, 1991, paramedics responding to an emergency call from appellant’s apartment found Blankenship seated on the living room couch with a .38 revolver in his right hand and a bullet wound in the back of his head. Blankenship was pronounced dead soon after he was taken to a hospital.

Appellant was questioned by police several times the next day. He first gave a statement indicating that Blankenship had shot himself while appellant was out of the room. Later that day, appellant gave another statement recounting that Blankenship had been visiting at appellant’s apartment and drinking alcohol during the afternoon; that appellant came home from work at 6:00 p.m. and began drinking with him; that Blankenship found appellant’s gun hidden in the couch cushions and began toying with and cocking the gun; that appellant tried to wrestle the gun from Blankenship and it fired in the ensuing struggle; and that he staged the suicide scene out of fear and panic. In the third statement, given that evening, appellant said he became angry when he found Blankenship cocking the gun because appellant’s son was asleep in a chair in the room and his daughters were in their bedroom; that Blankenship angrily refused appellant’s demand to return the gun; that they struggled over the gun and appellant grabbed it; that Blankenship fell forward and appellant fired the gun.

At trial, the medical examiner testified that the physical evidence was most consistent with appellant’s third statement, as the condition of the wound suggested the gun had been fired from two to three feet away, but acknowledged the second version could not be completely ruled out. Appellant testified that he found Blankenship playing with the gun, that Blankenship refused his demands to put down the gun, and that appellant then lunged at Blankenship and they struggled. Appellant wrestled the gun from Blankenship and pushed him onto the couch. Appellant testified that as he braced himself for a fight, the gun fired, hitting Blankenship in the back of the head. Appellant testified he did not intend to shoot the gun and had only intended to defend himself in a fight.

1. Appellant contends in two enumerations that the trial court erred by refusing his request to instruct the jury on self-defense and by charging the defense of accident without first allowing appellant to elect between the two defenses.

A defendant is ordinarily not entitled to charges on both self-defense and accident because the defenses are inconsistent. The essence of the defense of accident is that the defendant’s act was not intentional. Conversely, with the defense of self-defense the defendant admits the act was intentional but claims it was justified based on the legal excuse that the defendant acted from reasonable fear of immediate serious harm. Culbreath v. State, 258 Ga. 373, 376 (4) (369 SE2d 29) (1988). Culbreath does not support appellant’s contention that the court is required to allow the defendant to select the proper charge. The Culbreath decision was based not on the question of who — the defendant or the court — chooses the charge, but on the principle that the charge given must be supported by the evidence. In Culbreath, the court compelled the defendant to choose between the two charges because they are inconsistent and the defendant had not presented sufficient evidence to enable the court to make the selection.

Here, the court was authorized to conclude that the evidence, particularly appellant’s testimony, was consistent with the defense of accident. Although appellant testified he feared a fight with Blankenship, he repeatedly stated that the shooting was accidental. Accordingly, appellant was not entitled to a charge on self-defense, and the court did not err by electing to charge on accident. See id. at 376-377 (4).

2. During the trial, the court permitted appellant to introduce evidence of Blankenship’s tendency to become belligerent and verbally abusive when he drank alcohol, but refused appellant’s request to charge the jury that they could consider Blankenship’s “reputation for violence and turbulence in considering the reasonableness of the accused’s apprehension of danger and fear at the time of this incident.” At the time of appellant’s trial, Georgia law provided that evidence of the victim’s violent character and general reputation for violence may be admitted upon “ ‘a prima facie showing that the victim was the aggressor; that the victim assaulted defendant; and that defendant was honestly seeking to defend himself.’ [Cit.]” Hill v. State, 259 Ga. 655, 657 (4) (386 SE2d 133) (1989). We need not decide whether the jury instruction appellant requested is ever required when evidence of violent character is properly admitted because we ruled in Division 1 that appellant’s testimony was consistent with the defense of accident, not self-defense or justification. Since he contended that the shooting was an accident, not an act of self-defense, the refusal to give a charge that might be relevant to a case involving the defense of self-defense or justification was not reversible error.

Decided October 22, 1992 —

Reconsideration denied November 10, 1992

Michael Sheffield, for appellant.

Robert E. Wilson, District Attorney, J. George Guise, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

       The Supreme Court has since ruled that when the defense of justification is proffered, the defendant may, as appellant unsuccessfully sought to do at his trial, proffer evidence concerning prior specific acts of violence by the victim. Chandler v. State, 261 Ga. 402, 407 (3) (b) (405 SE2d 669) (1991).


text:
    A92A1401.
    RIEL et al. v. PAULDING COUNTY BOARD OF EDUCATION.
    (425 SE2d 305)
   Sognier, Chief Judge.

Raymond Riel and Robin Riel brought suit against Ricky Barnes seeking damages for injuries and loss of consortium incurred in a collision between vehicles driven by Raymond Riel and Barnes. Barnes’ employer, the Paulding County Board of Education (“the Board”), was added by amendment, and Barnes was dismissed after the Riels settled their claim against him. The Board filed a motion for summary judgment, and the Riels filed cross-motions for summary judgment as to the issues of the scope of Barnes’ employment and Barnes’ negligence. After a hearing, the trial court granted the Board’s motion for summary judgment and denied those of the Riels. The Riels appeal.

1. Appellants contend the trial court’s ruling was error because a question of fact remains whether Barnes was acting in the course of his employment at the time of the collision, thereby making appellee liable under the doctrine of respondeat superior. The collision occurred in the late afternoon hours on October 26, 1990. The evidence showed that at the time of the accident, Barnes held two positions with appellee. He was employed at appellee’s office as a delivery person working 40 hours per week, and also held a second job as a part-time custodian at P. B. Rich School, working 20 hours per week. The trial court concluded that this did not “appear to be a case of deviation from and return to course of employment” but was instead “a case where the employee had already left one job [with appellee] and had not yet arrived at the second one.” We agree with the trial court that the evidence of record supports this conclusion.

In support of its motion, appellee proffered affidavits from several of its members, the principal of P. B. Rich School, and Barnes, in which the affiants averred, inter alia, that Barnes provided his own transportation to appellee’s office every day and picked up appellee’s delivery truck for use in his delivery work, delivering supplies to various locations in the school system from approximately 8:00 a.m. to approximately 4:00 p.m. When he had completed his deliveries, Barnes returned the delivery truck to its location at appellee’s office and picked up his personal vehicle. He was free to set his own hours at his second job provided the assigned tasks were completed before the beginning of the next school day. His usual practice was to return home in his personal vehicle after completing his first job to eat and rest before beginning the second job. On the day in question, Barnes had completed his first job and returned the delivery truck to appellee’s office. He had then driven his own car to a hair stylist, where he made an appointment for the next day, and was en route either to his home or to P. B. Rich School when the collision occurred.

“To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own. The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master.” (Citations, emphasis and punctuation omitted.) Aubrey Silvey Enterprises v. Bohannon, 182 Ga. App. 738, 739 (356 SE2d 693) (1987). Since it is well established that an employee on the way to work is not in the course of his employment but rather is engaged in a personal activity, see Chattanooga Pub. Co. v. Fulton, 215 Ga. 880, 883 (114 SE2d 138) (1960), any alleged contradiction in Barnes’ deposition testimony regarding whether he intended to stop at his home before going to P. B. Rich School is immaterial, for under either version of the facts he had completed his first job and had not commenced the second, and either destination would place the trip in question outside the course of his employment.

Appellants cite cases, typified by Barge v. City of College Park, 148 Ga. App. 480 (251 SE2d 580) (1978) and McDonald v. State Hwy. Dept., 127 Ga. App. 171 (192 SE2d 919) (1972), in support of their argument that Barnes was a “continuous” employee of appellee and thus was in the course of his employment when the collision occurred despite the personal nature of his trip. These cases are inapplicable. First, they were decided under predecessor statutes of the Workers’ Compensation Act, OCGA § 34-9-1 et seq., where the rules regarding the scope of employment are different. See Jones v. Aldrich Co., 188 Ga. App. 581, 584 (373 SE2d 649) (1988). Second, they are factually distinguishable because the employment involved either required the employees to be on call at all times, such as police work, or necessitated employer directed travel away from home. Thus, the employees were considered to be in the course of their employment at all times, even when not performing specific tasks required by their employers. Neither circumstance is relevant in the case sub judice, and accordingly Barnes was not a “continuous” employee of appellee.

Decided October 26, 1992 —

Reconsideration denied November 10, 1992

Goldstein & Redic, James A. Goldstein, Patrick R. Matarrese, for appellants.

Gorby, Reeves, Moraitakis & Whiteman, Nicholas C. Moraitakis, Mary M. House, for appellee.

This case is likewise distinguished from Jones, supra, because in Jones a collision occurred while the employee was returning home from a visit to a job site different from her usual workplace that she had been required by her employer to visit during working hours. In the case sub judice, Barnes was following his usual routine, had completed his first job, and had not yet begun his second. As he was not in the course of his employment when the collision occurred, but was simply engaged in personal business between his first and second jobs, the trial court properly granted appellee’s motion for summary judgment and denied appellants’ motion on this issue.

2. We need not address appellants’ contention that the trial court erred by denying their motion for partial summary judgment as to the issue of Barnes’ negligence, since Barnes has been dismissed from this action and our holding in Division 1 renders that issue moot as to appellee.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A1480.
    CAULEY v. THE STATE.
    (424 SE2d 822)
   Sognier, Chief Judge.

Corey Cauley was convicted of aggravated assault with a deadly weapon, and he appeals.

Evidence was adduced at trial showing that shortly after appellant’s co-defendant, Corey Damon Floyd, returned to the apartment he shared with appellant and informed appellant and others present about a fight he had had with the victim, appellant and Floyd got in separate cars and, accompanied by several friends, drove around Scottdale. They found the victim with three friends in a car stopped on the side of the road. The drivers of the vehicles containing appellant and Floyd parked at either end of the victim’s car, blocking it. When the victim and his friends exited their car, they were approached by Floyd, who was carrying a broken beer bottle, and another man with a .357 pistol. The victim testified that a person he identified as appellant approached him from behind carrying a shotgun. The victim’s friends were ordered to get on the ground, but one testified he saw appellant carrying a pump shotgun. The victim testified that he glimpsed the barrel of the shotgun and heard a distinctive sound before appellant pressed the weapon to his leg and fired.

Appellant testified that he joined the others in their search for the victim intending only to make sure that the victim’s friends did not interfere with the fight Floyd planned to have with the victim. There was a shotgun in the car in which he was a passenger. Appellant testified that when they arrived at the scene, he saw the victim leave his car while the victim’s friends remained inside and backed their car several times into the car in which appellant was a passenger. After the fourth contact between the cars, appellant got out after picking up the shotgun out of “reflex” and “self preservation.” Appellant denied knowing that the shotgun was loaded and denied chambering a round into the shotgun. Appellant stated that he was holding the shotgun when the impact of the other car’s ramming action knocked him into the car door and the shotgun fired, hitting the victim.

1. Appellant contends that prejudicial error requiring reversal was committed when the trial court allowed the State to display to the jury a shotgun similar to the weapon used during the crime. It is uncontroverted that the shotgun did not belong to appellant and was not the actual weapon used in the assault. The prosecutor used the shotgun to demonstrate both the appearance of a pump gauge shotgun and the distinctive sound such a gun makes when a round is chambered. The victim identified the barrel of the State’s exhibit as similar to that of the shotgun used by appellant and testified that the sound made by the exhibit was the same distinctive sound he heard just before appellant shot him. Appellant testified that the exhibit “look[ed] the same” as the shotgun he had and that there were no significant differences between the weapons.

We find no error. “ ‘Where, as here, the victim of a crime identifies a weapon as similar to that used in the commission of the crime, the weapon is admissible whether or not it is the identical weapon. (Cits.)’ [Cit.] ‘It was undisputed that [appellant] used a [pump shotgun] and whether the one [displayed to the jury] was the one actually used or was only similar to the [shotgun] used by [appellant] makes no material difference. (Cit.)’ [Cits.]” Fields v. State, 167 Ga. App. 816, 817 (2) (307 SE2d 712) (1983). Accord Gunn v. State, 245 Ga. 359, 362 (4) (264 SE2d 862) (1980) (no error in admitting similar weapon as substitute at trial where accused admits similarity).

2. We find no error in the trial court’s refusal to give appellant’s requested charge on reckless conduct. A person is guilty of reckless conduct when he causes bodily harm to or endangers the bodily safety of another person “by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” OCGA § 16-5-60 (b). Although reckless conduct is as a matter of law a lesser included offense of aggravated assault with a deadly weapon based upon allegations that the victim was actually shot, Bowers v. State, 177 Ga. App. 36, 37-39 (1) (338 SE2d 457) (1985), a trial court is not obligated to give a charge on a lesser included offense where the evidence does not reasonably raise the issue as a matter of fact. See Alvarado v. State, 194 Ga. App. 781, 782 (391 SE2d 668) (1990).

Appellant denied knowing that the shotgun was loaded and capable of harming anyone and disavowed having any intent to discharge the shotgun in any fashion. Appellant instead asserted that the firing of the weapon was an accident caused by events beyond his control. Even if the jury disbelieved appellant’s testimony that he was unaware the weapon was loaded and ready to fire, there was no evidence from which the jury could have concluded that appellant was guilty of reckless conduct by firing the weapon in conscious disregard of a substantial risk. Rather, the evidence presented only two reasonable possibilities: either that the shotgun discharged accidentally, as appellant asserted, or that appellant committed aggravated assault with a deadly weapon by intentionally firing-the shotgun at the victim. Compare Bowers, supra (accused admitted deliberately firing gun but denied knowledge of victim’s presence; jury authorized to disbelieve accused’s claim of lack of knowledge and conclude accused guilty of reckless conduct by firing weapon with victim in vicinity). Accordingly, the trial court did not err by refusing to give appellant’s requested charge. See generally Wyley v. State, 169 Ga. App. 106, 109 (2) (311 SE2d 530) (1983).

Decided October 30, 1992 —

Reconsideration denied November 10, 1992.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Gregory J. Giornelli, Stacy Y. Cole, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Johnson, Judge. Carley, Presiding Judge,

text:
    A92A1600.
    STOLLE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (424 SE2d 807)
   Johnson, Judge.

Richard Stolle filed suit against State Farm Mutual Automobile Insurance Company seeking payment for injuries allegedly suffered in a motor vehicle collision. Along with its answer, State Farm filed interrogatories and document requests. Stolle did not respond to these discovery requests within the time required by the Civil Practice Act. As required by the Uniform Superior Court Rules, State Farm attempted to resolve the discovery dispute with Stolle informally, but was unsuccessful. State Farm then filed a motion to compel and for sanctions, asking the court to dismiss the complaint pursuant to OCGA § 9-11-37 (d). Stolle sought, and was granted, an extension of time in which to respond to the motion. In his response, which was filed on the last day permitted by the extension, Stolle claimed that on the previous day he answered the discovery requests. The record, however, contains no evidence of these alleged answers. The trial court held a hearing on the motion; neither Stolle nor his attorney appeared at the hearing. Thereafter, the trial court issued an order granting State Farm’s motion and dismissing the complaint for Stolle’s failure to comply with discovery and failure to appear at the hearing on the motion to compel discovery and for sanctions. Stolle appeals.

Stolle’s enumerated errors are wholly without merit and completely unsupported by the record. Accordingly, we affirm the trial court’s order and impose a penalty for frivolous appeal.

1. Stolle first contends that the trial court erred in failing to consider his brief filed in opposition to State Farm’s motion to compel and for sanctions. “The trial judge is presumed to know the law and presumed to faithfully and lawfully perform the duties devolving upon him by law. This court will not presume the trial court committed error where that fact does not affirmatively appear.” (Citations and punctuation omitted.) Robenolt v. Chrysler Fin. Svcs. Corp., 201 Ga. App. 168, 169 (2) (410 SE2d 365) (1991). The burden is on the party asserting error to show it affirmatively by the record. Mauldin v. Weinstock, 201 Ga. App. 514, 516 (2) (411 SE2d 370) (1991). Stolle has not met this burden. His brief was filed before the trial court held the hearing and entered its ruling on the motion. There is nothing in the record to indicate that the trial judge did not consider Stolle’s brief in ruling on State Farm’s motion. Accordingly, we presume that the trial judge committed no error.

2. Stolle argues in his second enumeration of error that the trial court erred in ruling that his attorney failed to provide a valid excuse for the attorney’s absence at the hearing on State Farm’s motion. This enumeration is also completely unsupported by the record. Stolle attempts to buttress his position by attaching to his brief on appeal an affidavit from his attorney’s secretary which purports to set forth an excuse for his attorney’s failure to attend the hearing. Even if the affidavit set forth a valid excuse, which it does not, we could not consider it on appeal. “A brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record. We must take our evidence from the record and not from the brief of either party.” (Citations and punctuation omitted.) Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33) (1990). As Stolle has not met his burden of proving his enumerated error by the record, we must presume that the court did not err. Mauldin v. Weinstock, supra.

3. Stolle complains in his final enumeration of error that there is no evidence to support the trial court’s finding that he wilfully failed to comply with discovery. “There is no requirement that the plaintiff display and the trial court find actual wilfulness. The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful.” (Citations and punctuation omitted.) Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344, 345 (373 SE2d 50) (1988).

Here, the record indicates that for nearly a year Stolle failed to respond to any of State Farm’s discovery requests and he and his attorney failed to appear at the hearing on State Farm’s motion. Further, Stolle has provided no valid excuse for failing to respond to the discovery requests. Stolle claims that he did not comply with discovery because he fired, and later rehired, his original attorney and because he kept possession of his attorney’s file on this case, even after repeated attempts by the attorney to retrieve the file. There is absolutely no evidence in the record to support these claims.

Moreover, even if there was such evidence, the excuses offered by Stolle show his wilful failure to act. Stolle does not assert that he was unaware of State Farm’s discovery requests or that his failure to respond was accidental or involuntary. On the contrary, he freely admits that his failure to respond was due to the fact that he did not return the necessary documents to his own attorney. Thus, the record and Stolle’s own excuses show that his failure to act was conscious and intentional, not merely accidental or involuntary.

Prior to imposing the sanction of dismissal under OCGA § 9-11-37 (d), there need be no order to compel discovery as provided for in OCGA § 9-11-37 (b). All that is required is a motion, notice and a hearing. Cook v. Lassiter, 159 Ga. App. 24 (282 SE2d 680) (1981). Here, the court held a hearing on the motion after proper notice to all parties. The court did not abuse its discretion in dismissing the complaint as there was ample evidence to support its decision. Accordingly, we find no error.

4. Because Stolle’s appeal has no arguable merit, we impose a penalty for frivolous appeal in the amount of $500. Court of Appeals Rule 26 (b).

Judgment affirmed.

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

Carley, Presiding Judge,

concurring in part and dissenting in part.

I concur in the majority’s conclusion that we cannot hold that the trial court abused its discretion when it imposed the ultimate sanction of dismissal in this case. However, because there was never an order entered by the trial court compelling discovery, dismissal was authorized only because there was a total failure of the appellant to comply with discovery procedures. Compare Thornton v. Burson, 151 Ga. App. 456 (260 SE2d 388) (1979).

However, I cannot concur in the majority’s imposition of the maximum penalty of $500 against this appellant pursuant to Rule 26 (b). After reviewing the entire record, I do not believe that the appeal in this instance was frivolous as contemplated by said rule. Appellant argues on appeal that appellant’s failure to comply with discovery was as a result of misunderstanding and lack of cooperation between counsel and the appellant. Although the trial court and this court have held such circumstances not to be reasonable grounds for noncompliance with discovery procedures, it should not follow that the appeal is automatically frivolous. Were this the rule, we would award frivolous appeal damages on every occasion wherein we affirm the trial court’s exercise of discretion in dismissing a complaint based upon the failure of a party to comply with discovery procedures. Sanctions under our rules should be prudently and cautiously imposed.

Decided October 26, 1992 —

Reconsideration denied November 10, 1992.

Didio & Broome, Stefano A. Didio, for appellant.

Harper, Waldon & Craig, Thomas D. Harper, for appellee.

I am authorized to state that Presiding Judge McMurray and Judge Cooper join in this dissent.