author: Cooper, Judge.

text:
    A92A0315.
    FROST v. THE STATE.
    (420 SE2d 81)
   Cooper, Judge.

Appellant appeals from his conviction of burglary, raising as his sole enumeration of error the insufficiency of the evidence to support the guilty verdict.

Shortly before midnight, a policeman responded to an alarm from a grocery store. Upon arriving at the store, the officer noticed that the glass in the front door was shattered out of the door frame. As the officer drove around the side of the store, he saw appellant about 20 or 30 feet from the front door of the store with a cardboard box in his hands. When appellant spotted the police car, he put the box down and ran from the scene. The officer chased appellant for several blocks and, after some resistance, subdued appellant. Appellant stated to the officer that he had not stolen anything and that he was not going back to jail. A second officer who arrived on the scene as appellant was being apprehended stated that he also heard' appellant make the statement that he had not stolen anything. The second officer recovered a cardboard box outside the store containing cold bottles and cans of beer and potato chips. Also, the second officer testified that as he observed appellant at the police station, he saw several small fragments of glass in his hair. The owner of the grocery store testified that when he entered the store after the break-in, it appeared to him that cold beer out of the cooler was missing. The owner also described the glass from the door as being scattered as far as ten feet. Appellant testified he was with friends a few blocks from the grocery store the night of the burglary; that he saw the police car; that he began walking to his brother’s house because he was on parole and had to be in by midnight; that he saw a box but did not pick it up; that the police came upon him as he was walking to his brother’s house; that his arm was in a cast that night; and that he did not break into the store.

Decided June 12, 1992.

Billy Grantham, for appellant.

J. Brown Moseley, District Attorney, John L. Tracy, Assistant District Attorney, for appellee.

“‘“[T]he jury determines the credibility of the witnesses and weight to be given their testimony. [Cits.]” [Cit.]’ [Cits.]” Lawrence v. State, 198 Ga. App. 287, 290 (4) (401 SE2d 275) (1991). “Viewing the evidence in the light most favorable to the verdict, we find the evidence and all reasonable deductions are such as to enable a rational trier of fact to find the elements of the offense beyond a reasonable doubt, according to the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Randolph v. State, 198 Ga. App. 291 (1) (401 SE2d 310) (1991).

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A92A0629.
    HILL v. THE STATE.
    (420 SE2d 393)
   Cooper, Judge.

This is an appeal from an order dated November 12, 1991, revoking appellant’s probation. “Appeals from orders revoking probation must be made by application filed directly with the appropriate court within 30 days of the date of the revocation order. See OCGA § 5-6-35 (a) (5) & (d).” Scriven v. State, 179 Ga. App. 513 (346 SE2d 906) (1986). Appellant filed a direct appeal on December 9, 1991, and his case was docketed in this court on December 27, 1991. A supplemental record, filed with this court on January 15, 1992, includes an application for appellate review filed in the Superior Court of DeKalb County on January 10, 1992. OCGA § 5-6-35 (d) provides that applications for discretionary appeals must be filed with the clerk of the Supreme Court or the Court of Appeals within 30 days of the entry of the order. Since-the application in this case was not timely filed, the appeal is dismissed for lack of jurisdiction. Scriven, supra at 514.

Decided June 12, 1992.

Claudia S. Saari, for appellant.

Robert E. Wilson, District Attorney, Nancy B. Allstrom, J. George Guise, Assistant District Attorneys, for appellee.

Appeal dismissed.

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


author: Andrews, Judge.

text:
    A92A0176.
    WIGGLEY v. THE STATE.
    (420 SE2d 82)
   Andrews, Judge.

Wiggley appeals his conviction for driving with .12 grams or more alcohol concentration.

Viewed in favor of the verdict, the evidence was that, on March 20, 1990, at approximately 11:00 p.m., Wiggley was seen driving without his headlights on by an officer approaching him on Lawrenceville Highway. The officer turned around and pulled him over. Wiggley had been at the American Legion since 9:00 p.m. and acknowledged having a couple of beers. When Wiggley attempted to exit his pickup truck, he lost his balance and fell back onto the seat. When the officer approached the truck, he detected the odor of alcohol. Wiggley’s speech was slurred. The officer conducted four field tests. While Wiggley was able to say the alphabet, he could not stay on a straight line while walking heel to toe. Also, he could not touch the tip of his nose with one hand, nor could he complete the leg raise test.

Wiggley registered .19 on the intoximeter. He requested a blood test and was taken to Humana Hospital where two tubes of blood were taken by an unidentified person and given to Wiggley. The tubes were sealed with gray rubber stoppers and paraffin and placed in a plastic bag which was sealed. The tubes were checked in with his personal effects at the jail and returned to him upon his release four hours later. The samples remained in his truck overnight and were then placed in a refrigerator in his office where they remained until they were taken by his son to the crime lab for testing at least two weeks later.

Decided June 16, 1992.

Macklyn A. Smith, for appellant.

Gerald N. Blaney, Jr., Solicitor, Jessica R. Towne, Assistant Solicitor, for appellee.

Two blood samples were received at the crime lab and tested on April 2, 1990. The samples bore no identification on the tubes, although placing the donor’s name on the tubes is standard practice. The only identifying information received by the crime lab as to the source of the blood was that supplied by Wiggley’s son.

1. Wiggley contends denial of his motion for new trial on the general grounds was error.

The blood tested at the crime lab and delivered by Wiggley’s son registered .04. The forensic chemist identified the physical characteristics testified to by the officer as more consistent with the .19 reading than a .04.

Having reviewed the evidence, we find it sufficient to convince the triers of fact beyond a reasonable doubt that Wiggley committed the offense of driving with .12 grams or more of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Wiggley also enumerates the failure of the court to admit into evidence the printed analysis and opinion of the forensic chemist. The chemist testified to his test results and the court sustained the State’s objection that an adequate foundation had not been laid for the admission of the written report.

The document referred to, however, was not tendered in order to perfect the record for appeal. “Since this is a court for correction of errors of law, our decision must be made upon the record and not upon briefs of counsel. Where there is nothing in the record to support the contention of error, there is nothing presented to this court for review.” (Citations and punctuation omitted.) Williams v. Lemon, 194 Ga. App. 249, 252 (3) (390 SE2d 89) (1990).

We note that the document was cumulative of the oral testimony admitted and it was, therefore, cumulative.

Judgment affirmed.

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


author: Carley, Presiding Judge.

text:
    A92A0624.
    ATLANTA CASUALTY COMPANY v. TUCKER. ATLANTA CASUALTY COMPANY v. WATSON.
    A92A0625.
    (420 SE2d 344)
   Carley, Presiding Judge.

The facts relevant to the resolution of the instant appeals are as follows: At an intersection, there was a collision between a vehicle operated by Mr. Jimmy Taylor and a vehicle owned and operated by Ms. Brenda Williams. As the result of this collision, Taylor’s vehicle struck appellee-plaintiffs as they stood on the nearby sidewalk. Williams’ insurer was appellant-defendant and, although Williams’ vehicle never came into physical contact with appellees, they made claims upon appellant for no-fault benefits. When these claims were denied, appellees filed the instant suits against appellant, seeking to recover no-fault benefits under Williams’ policy and statutory penalties and attorney’s fees. After discovery, cross-motions for summary judgment were filed. The trial court granted summary judgment in favor of appellees as to appellant’s liability for coverage, but denied summary judgment as to appellant’s liability for statutory penalties and attorney’s fees. Appellant appeals from those orders and the two cases are hereby consolidated for appellate disposition in this single opinion.

1. Former OCGA § 33-34-7 (a) (3) provided that no-fault benefits were payable for accidental bodily injury sustained “as a result of being struck by the owner’s motor vehicle while a pedestrian. . . .” It is undisputed that appellees were pedestrians who were struck by a vehicle. The question presented for resolution is whether appellees were struck by Williams’ vehicle.

Appellees were not struck by Williams’ vehicle, in the sense of immediate physical contact between their persons and her vehicle. It was only Taylor’s vehicle which made physical contact with appellees. However, “ ‘[t]he “striking” force can be either the force which most immediately comes in contact with the object struck, or it can be the force setting in motion a chain of events leading up to the striking of an object.’ ” Johnson v. Nat. Union Fire Ins. Co., 177 Ga. App. 204, 205 (1) (338 SE2d 687) (1985). It is undisputed that the force of the collision with Williams’ vehicle set in motion a chain of events leading up to the striking of appellees by Taylor’s vehicle. “[Wjhere one vehicle is propelled by another vehicle into a . . . pedestrian, both the propelling vehicle and the propelled vehicle have ‘struck’ the . . . pedestrian within the meaning of [former] OCGA § 33-34-7.” Collins v. Intl. Indem. Co., 256 Ga. 493, 496 (349 SE2d 697) (1986) (On Motion For Rehearing). Since Taylor’s vehicle was “propelled” into appellees by the force of the collision with Williams’ vehicle, they were struck by both vehicles.

It is true that the collision itself may have been caused by Taylor rather than Williams. However, a determination of who was at fault in causing the collision is irrelevant to the determination of appellees’ entitlement to no-fault benefits. In order for appellees to be entitled to no-fault benefits under Williams’ policy, it is only necessary that the force of a collision in which her car was involved set in motion the chain of events leading up to the striking of appellees. Regardless of who was at fault in causing the collision, it is undisputed that it was the force of that collision which caused Taylor’s vehicle to strike appellees. It follows that appellees were also “struck” by the propelling force of Williams’ vehicle and that they are, therefore, entitled to no-fault benefits under Williams’ policy. The trial court correctly granted summary judgment in favor of appellees as to appellant’s liability for coverage.

Decided June 16, 1992.

Murray & Temple, William D. Strickland, for appellant.

Finch, McCranie, Brown & Thrash, Richard W. Hendrix, for appellees.

2. “The insurer’s good faith or lack thereof is generally a question for the jury. [Cits.] This is such a case. [Cits.]” Wages v. Atlanta Metro Taxicab Group, 193 Ga. App. 601, 602 (388 SE2d 733) (1989). Accordingly, the trial court correctly denied summary judgment as to appellant’s liability for statutory penalties and attorney’s fees.

3. Appellees’ motions for frivolous appeal damages are denied.

Judgments affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0695.
    STOKES v. THE STATE.
    (420 SE2d 84)
   Andrews, Judge.

A jury convicted Stokes of cruelty to children under an indictment charging that she forced her two-year-old child to sit in a tub of hot water thereby causing severe burns to the child’s body.

1. Stokes first claims that the trial court erred in admitting three photographs depicting second and third degree burns suffered by the child. Stokes argues the inflammatory nature of the photographs outweighed any probative value, and that one of the photographs was duplicative of another. The first photograph showed burns on the child’s foot and heel. The second was a close-up photograph of the buttocks area revealing severely blistered, bubbled, and peeled away patches of burned skin. The third photograph, taken from a distance, showed the entire burned area of the buttocks.

The trial judge reviewed these photographs, found no duplication, and we agree. Photographs showing the extent of injuries suffered by the victim of the alleged criminal act are relevant at the trial of the defendant, and are admissible despite allegations that they may inflame and prejudice the jury. Associated Health Systems v. Jones, 185 Ga. App. 798, 803 (366 SE2d 147) (1988); Johnson v. State, 184 Ga. App. 745, 746 (362 SE2d 450) (1987). There was no error in admission of the photographs.

2. Secondly, Stokes asserts the evidence was insufficient to support the verdict. Where a criminal conviction is challenged on the basis that the evidence is insufficient, the appellate court views the evidence in the light most favorable to the finding of guilt to determine whether there was sufficient evidence for a rational trier of fact to conclude that the defendant was guilty beyond a reasonable doubt. Britt v. State, 202 Ga. App. 689, 690 (415 SE2d 492) (1992); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence shows that Stokes brought her two-year-old child to Tattnall Memorial Hospital suffering from severe second and third degree burns to the buttocks, foot and hand. Stokes first claimed that the burns occurred when the child knocked a pot of hot water onto herself, and fell on the floor in the water. After an initial investigation shed doubt on this story, Stokes admitted this was not true, and gave police a statement indicating that she had been trying to toilet train the child, and became upset when the child soiled her pants and the floor as she was trying to get her to the bathroom. She then put the child in the tub, turned on the hot water, and after keeping her in the tub for a period of time, took her out and noticed she was burned. At trial Stokes claimed the burns were accidental, and denied she was upset with the child. She testified that she put the child in the tub for a bath, turned on the water, left for no more than 15 to 20 seconds, then came back and immediately took the child out of the water when she determined it was too hot. Stokes said that as she dried the child, she did not notice the burns until her four-year-old child pointed to them. She testified it was about two hours before she was able to get transportation to the hospital. Testimony from emergency room personnel showed that the child was crying in pain when she was admitted with second and third degree burns. Photographs taken at the hospital showed burns to the child’s foot and hand, and severely burned, blistered skin on the child’s buttocks. The child was given medication for the pain, and transferred from Tattnall Hospital to Humana Burn Center in Augusta for further treatment.

OCGA § 16-5-70 (b) provides: “Any person commits the offense of cruelty to children when he maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” “For purposes of this Code section, malice in the legal sense, imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. [Stokes’] intent was a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” (Punctuation and citations omitted.) Rigenstrup v. State, 197 Ga. App. 176, 180 (398 SE2d 25) (1990). The evidence was sufficient for the jury to conclude that Stokes was guilty as charged.

Decided June 16, 1992.

Dubberly & McGovern, Bruce D. Dubberly III, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Pope, Judge.

text:
    A92A0517.
    BARNETT v. THE STATE.
    (420 SE2d 96)
   Pope, Judge.

Defendant James Barnett was convicted of armed robbery and terroristic threats and he appeals.

1. A videotape of the robbery was presented as evidence which was identified as having been recorded by the security system of the store which was robbed and as being an accurate depiction of the event. Defendant’s first two enumerations of error refer to the replaying of videotape evidence to the jury, once after the State rested its case and the defendant moved for directed verdict on the terroristic threats charge, and once after the jury had commenced its deliberations and requested to see it again. On motion for directed verdict, defendant argued no evidence was presented to corroborate the victim’s testimony that defendant threatened to kill her. The prosecutor argued that the videotape, though of poor audio quality, showed the defendant saying “Move, I’ll kill you.” The trial judge replayed the videotape outside the presence of the jury to determine if the statement could be heard. He then permitted the tape to be replayed, without comment, to the jury at a higher volume than it was previously played. After commencing deliberations, the jury requested to see the videotape again. They were brought into the courtroom and it was played once more.

Defendant argues the trial court erred in replaying the videotape after the close of the State’s evidence and again after the jury commenced its deliberations. It has long been the rule, however, “that a trial judge has a discretion, upon a jury request made during deliberations, to permit the jury to hear again parts of the evidence previously presented.” State v. Roberts, 247 Ga. 456, 457 (277 SE2d 644) (1981). “[T]he trial court has discretion to ‘hear again’ evidence previously presented.” Haynes v. State, 180 Ga. App. 202 (2) (349 SE2d 208) (1986). This rule should apply whether the rehearing of evidence is permitted at the close of the State’s case or after the close of all evidence in the case, during the jury’s deliberations. The rule has been applied specifically to the replaying of videotape evidence. Allen v. State, 146 Ga. App. 815 (3) (247 SE2d 540) (1978). “We find no unfair advantage to be obtained when the jury views the videotape for a second time under the controlled conditions of open court. It does not present the same harmful situation as permitting certain documents to go out with the jury during their deliberations.” Id. at 818. The trial court did not abuse its discretion in permitting the videotape to be replayed in this case.

Decided June 17, 1992.

Russell C. Gabriel, for appellant.

Harry N. Gordon, District Attorney, James B. McClung, Assistant District Attorney, for appellee.

2. Defendant also argues that the charge of terroristic threats merged with the charge of armed robbery and he could not be convicted and sentenced for both. One crime is included in another only if: “(1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the [other] crime . . . ; or (2) It differs from the [other] crime . . . only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” OCGA § 16-1-6. Defendant was convicted of armed robbery, which requires the “use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). Defendant testified and admitted he committed the robbery by holding at the victim’s throat a piece of cardboard which had been wrapped with aluminum foil to make it look like a knife. The evidence was sufficient to show the robbery was complete, in that the money from the cash register was in his possession, before he made the alleged threat to the victim that he would kill her if she moved. Thus, the threat was not part of the armed robbery, but the evidence was sufficient to show that it was made with the purpose of terrorizing the victim, as defined by OCGA § 16-11-37, to effect his escape from the scene of the robbery. The trial court did not err in sentencing him separately on the separate conviction for terroristic threats.

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A92A0615.
    KING et al. v. MIDAS REALTY CORPORATION.
    (420 SE2d 62)
   Sognier, Chief Judge.

The administrator of the estate of Cleveland King, the widow of Willie Fitzpatrick, and Joseph Hooks each brought suit against Midas Realty Corporation, as owner, and D & M Contractors, Inc., the general contractor, seeking damages arising out of the collapse of a wall under construction by D & M for Midas Realty. The trial court granted the defendants’ motions for summary judgment; the plaintiffs, in this joint appeal, challenge only the grant of summary judgment in favor of Midas Realty.

The record establishes that D & M contracted with appellee to build a muffler shop on appellee’s property. Employees of a subcontractor hired by D & M were laying brick fronting an 18 foot high concrete cinderblock wall of the muffler shop when the wall collapsed, killing Willie Fitzpatrick and Cleveland King and injuring Hooks. The wall in issue had not been braced, although there was opinion evidence in the record that bracing would not have prevented the wall from collapsing under the pressure of an unusually strong wind gust. The trial court, citing McClure v. Equitable Real Estate Investment Mgmt., 195 Ga. App. 54, 55 (392 SE2d 272) (1990) and Modlin v. Swift Textiles, 180 Ga. App. 726, 727-730 (1) (350 SE2d 273) (1986), granted summary judgment to appellee based on its finding that no genuine issues of material fact remained that appellee had relinquished possession of the premises to D & M and that neither under the terms and conditions of appellee’s contract with D & M nor in actual practice had appellee retained control over the premises or directed the manner in which D & M executed the work under the contract, including performance of site safety functions.

We affirm. The safety precautions section of the contract between appellee and D & M clearly and unambiguously placed on D & M the responsibility for “initiating, maintaining and supervising all safety precautions and programs in connection with the [construction]” and for complying with “all applicable laws, ordinances ... of any public authority having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss.” No evidence was introduced to controvert the deposition testimony of appellee’s regional construction manager, Thomas Lusby, the employee who oversaw the project, that the inspections he performed under the contract were to determine progress on the site for payment purposes, that his job did not involve addressing safety matters on the project, and that the general contractor, not appellee, was solely responsible for safety at the construction site.

We do not agree with appellants that a question of fact exists whether appellee exercised control over the project merely because

Decided June 9, 1992

Reconsideration denied June 22, 1992.

Nadler, Beskin & Scott, Gary M. Nadler, for appellants.

Drew, Eckl & Farnham, W. Wray Eckl, James M. Poe, for appellee.

provisions in the contract required that D & M’s project superintendent (whom the contract provided would also serve as the project’s safety inspector) had to be “satisfactory to [appellee]” and could not be replaced without appellee’s consent. Construing the contract as a whole, see generally F & F Copiers v. Kroger Co., 194 Ga. App. 737, 739 (1) (391 SE2d 711) (1990), nothing in the contractual provision concerning the superintendent’s position negated appellee’s express surrender to D & M’s control of all aspects of safety procedures and precautions on the property. Further, there is no evidence that appellee in fact utilized this provision to oust D & M from its contractual status as an independent contractor or to assume responsibility for the manner in which the work was done. See Bryant v. Village Centers, 167 Ga. App. 220, 222 (305 SE2d 907) (1983). In regard to appellants’ arguments based upon testimony by Lusby regarding appellee’s intervention in other projects in matters involving subcontractors, “ ‘[i]t further appears that, under the contract, [appellee] retained or reserved no right or authority over the project for itself or any of its other employees, save only those consistent with the right and authority to require certain definite results in conformity with the contract.’ ” Modlin, supra at 729. Finally, we do not agree with appellants that the contract provision reserving to appellee certain facets of the construction presented any question of fact whether appellee controlled the project, given the uncontroverted testimony by Lusby that the only facet of the construction reserved by appellee in the contract with D & M involved installation of the muffler shop’s roof, which was contracted separately by appellee to a national roofing contractor.

“The evidence is clear that the premises were ‘surrendered’ to [D & M], that [D & M’s] status as an independent contractor was not ‘interfered’ with by [appellee], that the duty of providing for the safety of workers was accordingly upon [D & M], and that no such duty was owed by [appellee]. [Cits.]” Bryant, supra at 222. Therefore, there is no basis in the record upon which liability could possibly be imposed upon appellee for the alleged negligence of D & M, and the trial court did not err by granting appellee’s motion for summary-judgment. See generally id. at 223 (1).

Judgment affirmed.

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


text:
    A92A0617.
    JOINER v. THE STATE.
    (420 SE2d 73)
   Sognier, Chief Judge.

James Joiner was convicted of aggravated assault and aggravated battery, and he appeals.

1. Appellant contends the trial court erred by excluding evidence showing a history of prior violence and threats of violence between appellant’s family and that of the victim. We find no error.

Although evidence impugning the character of the victim is generally inadmissible, where the defendant makes a prima facie showing that the victim was the aggressor, that the victim assaulted the defendant and that the defendant acted in self-defense, the victim’s reputation for violence may be shown. Chapman v. State, 258 Ga. 214, 215 (2) (367 SE2d 541) (1988). In addition, a defendant is permitted to show specific acts of violence by the victim against the defendant. House v. State, 252 Ga. 409, 413 (5) (314 SE2d 195) (1984). However, until the Supreme Court’s decision in Chandler v. State, 261 Ga. 402, 407-408 (3) (405 SE2d 669) (1991), evidence of specific acts of violence by a victim against third parties was inadmissible. Id. at 407 (3) (a). In Chandler, the court held that such evidence is admissible when the defendant claims justification. Id. at 407 (3) (b).

Although some of the excluded evidence involved prior specific violent acts of the victim toward members of appellant’s family, and thus would have been admissible had this case been tried after September 12, 1991, the date the opinion in Chandler was published in the advance sheets, the case at bar was tried in August 1991. Accordingly, the new rule set forth in Chandler prospectively establishing the admissibility of evidence of specific acts of violence by a victim against third parties, id., is not applicable here.

Appellant argues that evidence of the feud between the families and prior incidents of violence was relevant to his defense of justification by showing his state of mind when he shot the victim. However, a review of the transcript shows that the trial court did not exclude all such evidence, but rather admitted substantial evidence establishing the existence of a long term feud between the families and the fact that appellant and the victim had exchanged threats and violent acts over a period of time. We find no error in the trial court’s determination that the evidence in issue should not be admitted, either because Chandler, supra, was not yet applicable; because the evidence was not relevant, being attributable not to the victim but to members of his family or too remote in time, see generally Barnwell v. State, 197 Ga. App. 116, 118 (5) (397 SE2d 717) (1990); or because it was cumulative of evidence previously admitted. See Chisholm v. State, 199 Ga. App. 746, 747 (2) (406 SE2d 112) (1991).

2. Appellant alleges error in a portion of the trial court’s charge on aggravated battery. In the challenged portion of the charge, the trial court defined simple battery as occurring when a person “intentionally causes substantial physical harm or visible bodily harm to another. Said to be aggravated when it deprives another of a member of his body or by rendering a member of the body useless or by seriously disfiguring the body or a member thereof.”

Decided June 10, 1992

Reconsideration denied June 22, 1992

Garland & Samuel, Donald F. Samuel, for appellant.

Rene J. Martin III, District Attorney, James B. Rutledge III, Assistant District Attorney, for appellee.

Appellant argues the trial court’s charge left the jury with the impression that simple battery and aggravated battery involved the same elements with the exception of the type of injury inflicted, and thus eliminated the essential element of malice. We do not agree. In other portions of the charge the trial court twice instructed the jury on aggravated battery in the exact language of the Code section. Thus, “[t]he jury was repeatedly charged on the required elements of [aggravated battery], including [malice]. [Appellant] seeks review of one sentence out of context, which we cannot do. ‘It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. (Cits.)’ [Cit.] So considered, the charge presents no error. [Cit.]” Worley v. State, 193 Ga. App. 58, 60 (2) (386 SE2d 879) (1989).

3. Appellant maintains the trial court erred by overruling his demurrer to the charge of aggravated assault made on the ground that the indictment did not allege that the assault was committed intentionally. The indictment charged that appellant “unlawfully and with force and arms” made an assault upon the victim. This court has held that an allegation that appellant acted “unlawfully” is sufficient to encompass both the intent to commit the proscribed act and the knowledge necessary to form that intent. The language of this indictment was therefore sufficient to allege each essential element of the offense charged. Frost v. State, 200 Ga. App. 267-269 (2) (407 SE2d 765) (1991).

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A92A0115.
    GEORGIA PACIFIC CORPORATION v. JOHNS et al.
    (420 SE2d 39)
   Beasley, Judge.

Appellees Johns and Crews filed a petition against appellant Georgia Pacific Corporation in the probate court seeking “to remove obstructions from private way.” OCGA § 15-9-30.1. The parties waived trial and judgment in the probate court and an appeal by consent was taken to the superior court. OCGA § 5-3-2 (a). This appeal is from a judgment entered on a jury verdict in favor of appellees. A motion for new trial was denied. Jurisdiction is proper in this court. Carter v. Kinman, 231 Ga. 759 (204 SE2d 299) (1974).

In 1988, appellant purchased the Brunswick Paper Company, with the knowledge that there existed on the property five private roads, not exceeding 20 feet in width, used regularly by the general public. Appellant thereafter leased a portion of the land to certain hunting clubs, allowing the lessees to install gates on those roads to block public access. Appellant preferred that the gates remain in place.

Appellees are two members of the general public who had regularly used those roads for the past 20 years to access the Satilla River for fishing and hunting. Johns established that he had utilized all five roads while Crews’ use was limited to two. Over the years they performed certain repair and maintenance work on the roads, including bridge repair, removal of trees and bushes, and filling in areas of washout. They never sought permission from appellant’s predecessor-in-title to either utilize or repair the roads. Appellant denied knowledge of any maintenance or repair work performed by appellees, but it knew that the roads were openly being used by the general public. The jury awarded prescriptive right-of-way to the five roads to Johns, and to Crews with respect to two. In accordance therewith, appellant was ordered to remove all obstructions to those rights-of-way.

Appellant asserts that the verdict was contrary to the evidence. “OCGA § 44-9-1 provides: ‘The right of private way over another’s land may arise from an express grant, from prescription by seven years’ uninterrupted use through improved lands or by 20 years’ use through wild lands.’ OCGA § 44-9-54 is as follows: ‘Whenever a private way has been in constant and uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way.’ ‘In order to sustain (a proceeding under OCGA § 44-9-59 (a) to remove an obstruction from a private way) it is necessary for the applicant to show that he has been in uninterrupted use of the way for seven years or more, that it does not exceed (20 feet, OCGA § 44-9-40 (a)) in width, that it is the same number of feet originally appropriated, and that he has kept it open and in repair during such period. (Cits.)’ [Cit.]” Rizer v. Harris, 182 Ga. App. 31, 32 (2) (354 SE2d 660) (1987).

Decided June 5, 1992

Reconsideration denied June 23, 1992.

Earl D. Smith, Jr., for appellant.

John R. Thigpen, Sr., for appellees.

The evidence showed that appellant’s predecessor-in-title never prevented the public from using the roads, and that appellees never sought permission to do so. Even if appellees’ use of the roads had originated with permission, the making of repairs gave notice of an adverse claim of right. “The gist of the requirement as to repairs is not so much the repairs as the notice which is given by the repairs.” (Emphasis in original.) First Christian Church v. Realty Investment Co., 180 Ga. 35, 39 (178 SE 303) (1934). “[T]he crux of the requirement for repairs lies not in the actual effectuation of repairs by the prescriber but in the notice of adverse use the performance of such repairs would give to the property owner. The importance of this ‘notice by repair’ requirement is best illustrated in situations where the initial use of the private way was permissive.” Rizer, supra at 33.

Appellant asserts that the making of repairs which are not obvious to the owner is insufficient to put the owner on notice of an adverse claim of right. However, there was testimony to the effect that the repairs were extensive enough to put the owner on notice that others were using the road. Compare First Christian Church, supra. Construing the evidence most favorably to the prevailing party, it was sufficient to support the verdict.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0180.
    MORTON v. McCOY.
    (420 SE2d 40)
   Beasley, Judge.

Plaintiff Morton appeals the grant of summary judgment and dismissal in favor of defendant McCoy, a county code enforcement officer., McCoy’s investigation led to Morton’s conviction of violating the county zoning ordinance by maintaining a “junkyard” of over a dozen “unmovable old cars” on property zoned for residential use. Morton v. State, 193 Ga. App. 119 (387 SE2d 9) (1989), is the appeal of the conviction.

Morton alleged that McCoy, without permission or authority, wrongfully entered Morton’s property to search for evidence to be used in prosecuting Morton and that McCoy’s action against Morton was wanton, wilful, malicious, and legally unjustified. He further alleged that McCoy’s action had caused Morton to be improperly charged with the code violation and had unlawfully interfered with Morton’s right of enjoyment of his private property.

The grounds for summary judgment were that Morton’s conviction precluded him from pursuing a malicious prosecution claim and that McCoy was immune from liability for actions undertaken in his official capacity.

Morton’s present challenge is that his suit has been mischaracterized as one for malicious prosecution when it is a cause of action for trespass of his real property, and that the trial court based the grant of summary judgment on its erroneous finding of res judicata, by virtue of the appellate decision in the criminal case, on the issue of McCoy’s being on Morton’s property with consent.

1. Morton’s contention that the trial court made its ruling relying on application of res judicata on the issue of consent is without merit. Although at the summary judgment hearing the trial court commented in this regard, the court’s order specified that the defendant was entitled to summary judgment for the reasons set forth in his motion and brief as well as at oral argument. Reasons assigned by a trial court are not part of its judgment. See Turner v. Baggett Transp. Co., 128 Ga. App. 801, 806 (4) (198 SE2d 412) (1973).

2. The source of Morton’s alleged injuries from McCoy is the prosecution of the zoning code violation. Thus, the action is one for malicious prosecution, OCGA § 51-7-40. See Robbins v. Lanier, 198 Ga. App. 592, 593 (1) (402 SE2d 342) (1991).

“ ‘It is essential to the maintenance of an action for malicious prosecution that the plaintiff . . . prove that the prosecution not only terminated, but terminated in his favor. [Cit.]. . . .’” Laster v. Star Rental, Inc., 181 Ga. App. 609 (1) (353 SE2d 37) (1987). Morton’s conviction precludes a claim for malicious prosecution.

3. Viewing the suit as one for trespass to realty, OCGA § 51-9-1, does not aid Morton.

“ ‘ “(W)here an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without willfulness, malice, or corruption.” ’ Hennessy v. Webb, 245 Ga. 329, 330-31 (264 SE2d 878) (1980).” Peek v. Dobbs, 196 Ga. App. 684 (396 SE2d 600) (1990).

Decided June 5, 1992

Reconsideration denied June 23, 1992

Albert W. Morton, pro se.

Kilpatrick & Cody, Michael W. Tyler, Paul A. Raney, for appellee.

It is undisputed that the acts complained of, i.e., McCoy going onto Morton’s property and taking photographs of Morton’s continued code violation by maintaining the junkyard of vehicles, were done within the scope of McCoy’s official duties as a county code enforcement officer. The trespass claim is not saved by Morton’s unsupported allegation that McCoy was motivated by an improper relationship with Morton’s neighbor, whose complaint in part prompted the code violation investigation. In the absence of substantiating evidence, the conclusory allegation of impropriety does not raise a material issue of wilfulness, malice, or corruption on the part of McCoy. Peele, supra.

Viewing all the evidence and reasonable inferences most favorably to Morton, it fails to create a triable issue as to each essential element of a claim for either malicious prosecution or trespass. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

4. Given the analysis in Division 3, application of collateral estoppel on the issue of consent is moot. We note that the trend is to confine the privity requirement to the one against whom the plea is asserted, here Morton. See Watts v. Lippitt, 171 Ga. App. 578, 579 (320 SE2d 581) (1984). We note further that the factual issue of consent was decided adversely to Morton and affirmed on appeal of the criminal conviction. Morton v. State, supra at 119 (4). As to the relationship between a criminal conviction itself and a subsequent civil suit based on the same transaction, see Consolidated Mgmt. Svcs. v. Halligan, 186 Ga. App. 621, 622 (2) (368 SE2d 148) (1988) and the dissenting opinion at 623-629, and the affirmance, 258 Ga. 471 (369 SE2d 745) (1988).

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

       Although appellant speaks of res judicata and the lower court used that terminology, the doctrine at issue is actually collateral estoppel or estoppel by judgment. See Jim West Housemovers v. Cobb County, 259 Ga. 314 (380 SE2d 251) (1989); Roddenberry v. Roddenberry, 255 Ga. 715, 717 (342 SE2d 464) (1986).


text:
    A92A0349.
    QUICK v. STONE MOUNTAIN MEMORIAL ASSOCIATION.
    (420 SE2d 36)
   Cooper, Judge.

Appellant appeals from the grant of summary judgment to appellee.

Appellant and her family visited Georgia’s Stone Mountain Park to engage in recreational activities. Appellant entered the park in a private vehicle and appellant paid the vehicle parking fee of $4 charged to each vehicle entering the park. After visiting several attractions in the park, including a trail walk, a train ride and a petting farm, appellant and her party attended the laser light show held at the park. There is no admission fee for the laser show. After the show, as appellant was walking back to the parking lot, appellant tripped over some rocks in an unpaved area and fell, injuring her ankle. Appellant filed a suit for personal injury against appellee, and the trial court granted appellee’s motion for summary judgment on the basis of the Recreational Property Act (the “Act”), OCGA § 51-3-20 et seq. Appellant contends the trial court’s order was in error.

“In essence, the Recreational Property Act specifies that ‘an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes’ may not be held liable for personal injuries resulting from unsafe or defective conditions existing on the premises, unless such injuries resulted from ‘willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. . . .’ OCGA §§ 51-3-23; 51-3-25 (1). See also OCGA § 51-3-22.” Hogue v. Stone Mountain Mem. Assn., 183 Ga. App. 378, 379 (358 SE2d 852) (1987). The purpose of the Act “is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.” OCGA § 51-3-20. Appellant first argues that the benefits of the Act should not be extended to appellee because visitors to the park, including appellant, are in fact charged an admission fee to enter the park. This contention has been decided adversely to appellant in Hogue, supra at 380. Appellant attempts to distinguish Hogue by offering evidence which she contends was not considered by the Hogue court. Appellant presented to the trial court evidence of the receipts generated by the park from the vehicle parking fee, and attempted to show from this large amount of money that the fee was something other than a vehicle parking fee. We find this evidence unpersuasive. As in Hogue, uncontradicted evidence in the record shows that the $4 fee is charged to each vehicle entering the park regardless of the number of occupants of the vehicle. “It follows that the trial court was authorized to conclude as a matter of law that this fee did not constitute a charge for the recreational use of the parkland itself.” Id. See Stone Mountain Mem. Assn. v. Herrington, 225 Ga. 746 (1) (171 SE2d 521) (1969); Brannon v. Stone Mountain Mem. Assn., 165 Ga. App. 120 (299 SE2d 176) (1983).

Appellant next argues that even if an admission fee was not charged, the Act is inapplicable because the park is operated primarily to attract people to the business aspects of the park rather than to the recreational activities. See Cedeno v. Lockwood, Inc., 250 Ga. 799 (2) (301 SE2d 265) (1983). Again, this argument was decided adversely to appellant in Hogue, supra. Appellant again argues for a departure from Hogue by presenting specific evidence of the total revenues generated by the park and statements from park officials as to the goal of making money from the visitors to the park. Appellant contends that this evidence shows that the park is operated primarily for business purposes. We have reviewed the evidence presented by appellant, and we nevertheless conclude, as did the Hogue court, that Stone Mountain Park is a public recreation area, “notwithstanding the fact that substantial revenues may be derived from the sale of special permits, concessions, and tickets to rides and other attractions located on the premises.” Hogue, supra at 380-381. “[A]ppellant’s alleged injuries resulted from her general recreational usage of the park premises, for which no fee was charged, rather than from the use of any of the facilities ... for which a fee was charged. ...” Id. Therefore, we determine that as a matter of law the provisions of the Act operate to prevent appellant from recovering from appellee based on allegations of simple negligence.

Appellant further argues that the liability limitations of the Act do not apply in the instant case because appellee wilfully failed to guard or warn against a dangerous condition. See OCGA § 51-3-25 (1). “ ‘(A) wilful failure to guard or warn would require actual knowledge of the owner that its property is being used for recreational purposes; that a condition exists involving an unreasonable risk of death or serious bodily harm; that the condition is not apparent to those using the property; and that having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences. This test excludes either constructive knowledge or a duty to inspect.’ ” Georgia Marble Co. v. Warren, 183 Ga. App. 866 (1) (360 SE2d 286) (1987). Although appellee’s officials testified that they were aware of the unpaved area where appellant fell, they stated that they did not consider the area to be unsafe, and they did not feel that any maintenance or repairs were necessary in the area. Appellant stated that she tripped over rocks which were approximately three to four inches in diameter. The area was unpaved and had been covered with wood chips. Park officials stated that they were unaware of any other accidents that had occurred in this area. Even when we construe the evidence most strongly against appellee and give appellant the benefit of all reasonable doubts and inferences, Georgia Marble, supra, we find no evidence to show that a condition involving an unreasonable risk of death or serious bodily harm existed, no evidence to show that the situation was not apparent to users of the property, and no evidence demonstrating that appellee chose not to guard or warn in disregard of possible consequences. “ ‘A “wilful failure” imports a conscious, knowing, voluntary, intentional failure, a purpose or willingness to make the omission, rather than a mere inadvertent, accidental, involuntary, inattentive, inert, or passive omission.’ [Cit.]” McGruder v. Ga. Power Co., 126 Ga. App. 562 (1) (191 SE2d 305) (1972), rev’d on other grounds, 229 Ga. 811 (194 SE2d 440) (1972). Compare North v. Toco Hills, Inc., 160 Ga. App. 116 (286 SE2d 346) (1981) (involved latent danger and knowledge of landowner). Appellant has failed to meet its evidentiary burden, and the trial court did not err in granting summary judgment to appellee.

Decided June 2, 1992

Reconsideration denied June 23, 1992

Rand & Ezor, Samuel S. Olens, Richard Kopelman, for appellant.

Michael Bowers, Attorney General, John B. Ballard, Jr., Ray O. Lerer, Senior Assistant Attorneys General, Janet E. Bradford, Staff Attorney, for appellee.

Judgment affirmed.

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


text:
    A92A0484.
    BURGESS et al. v. MEINKEN.
    (420 SE2d 329)
   Carley, Presiding Judge.

Appellee was indicted in DeKalb County but, pursuant to OCGA § 17-7-170 (b), he was subsequently acquitted by operation of law. Thereafter, appellee requested appellant DeKalb County Police Department and appellant Chief of Police of DeKalb County to expunge his arrest record. When appellants declined to do so, appellee appealed to the superior court. Finding that appellee’s “arrest record is inaccurate and misleading in that it does not reflect the disposition of this case,” the trial court ordered that appellee’s arrest record be expunged. Appellants appeal to this court pursuant to the grant of their application for a discretionary appeal. See Strohecker v. Gwinnett County Police Dept., 182 Ga. App. 853, 854 (2) (357 SE2d 305) (1987).

In pertinent part, the applicable statute reads as follows: “If an individual believes his criminal records to be inaccurate or incomplete, he may request the original agency having custody or control of the detail records to purge, modify, or .supplement them and to notify the [Georgia Crime Information Center] of such changes. Should the agency decline to act or should the individual believe the agency’s decision to be unsatisfactory, the individual or his attorney may, within 30 days of such decision, enter an appeal to the superior court ... to acquire an order by the court that the subject information be expunged, modified, or supplemented by the agency of record. The court shall conduct a de novo hearing and may order such relief as it finds to be required by law. . . . Should the record in question be found to be inaccurate, incomplete, or misleading, the court shall order it to be appropriately expunged, modified, or supplemented by an explanatory notation. . . .” (Emphasis supplied.) OCGA § 35-3-37 (c).

“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” (Emphasis supplied.) OCGA § 1-3-1 (a). “In arriving at [the] intent of the legislature, it is . . . fundamental that all of the words of the statute are to be given due weight and meaning ([cit.]) and that the court is not authorized to disregard any of the words of the statute in question unless the failure to do so would lead to an absurdity manifestly not intended by the legislature. [Cit.]” Boyles v. Steine, 224 Ga. 392, 395 (162 SE2d 324) (1968). “All the words of the legislature, however numerous, ought to be preserved, and effect given to the whole, if it can be done. [Cits.]” Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739, 743 (152 SE2d 768) (1966). “Furthermore, the words of a statute are always to be construed in connection with their context, and the intention of the legislature is to be gathered from the statute as a whole so as to give effect to all of its parts, if possible. [Cits.]” Bibb County v. Hancock, 211 Ga. 429, 440 (2) (86 SE2d 511) (1955).

Pursuant to OCGA § 35-3-37 (c), the “remedy” for the “evil” of an inaccurate record of an arrest may be expungement. 1975 Op. Att’y Gen. No. 75-110. However, appellee’s arrest record is not inaccurate. Appellee was arrested and there is no contention that his arrest is not accurately reflected by the record maintained by appellants. Appellee’s record is, at most, merely incomplete in that it does not reflect that, subsequent to his arrest, he was acquitted by operation of law. The subsequent indictment of appellee and the final disposition of his case does not render the record of his prior arrest inaccurate. To hold that a merely incomplete record can be totally expunged would be to disregard the distinction between inaccurate and incomplete records. OCGA § 35-3-37 (c) refers to inaccurate and incomplete records disjunctively. The statute does not give the individual having merely an incomplete record the option of having his records completely expunged. Individuals having incomplete criminal records would never opt for mere supplementation if complete ex-pungement were an available remedy. The statutory mandate of the Georgia Crime Information Center is to maintain arrest records, not merely the records of criminal cases which culminated in convictions. See OCGA § 35-3-33 (1) (A). Accordingly, the construction of OCGA § 35-3-37 (c) advanced by appellee and accepted by the superior court is erroneous. Under OCGA § 35-3-37 (c), the “remedy” for the “evil” of incomplete criminal records is supplementation, not expungement. An individual is entitled to have his criminal records reflect accurate and complete information, but he is not entitled to have accurate but incomplete information expunged from his criminal record. It follows that the superior court erred in expunging appellee’s arrest record. The order of the superior court is reversed with direction that appellee’s arrest record be supplemented.

Decided June 8, 1992

Reconsideration denied June 23, 1992

Robert E. Wilson, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellants.

Glenn Zell, Rodney Zell, for appellee.

Judgment reversed with direction.

Pope and Johnson, JJ., concur.


text:
    A92A0526.
    COCHRAN v. THE STATE. HANDTE v. THE STATE.
    A92A0667.
    (420 SE2d 32)
   Sognier, Chief Judge.

James Don Cochran and Charles Handte, Jr. were convicted of ' theft by conversion. OCGA § 16-8-4. We have consolidated their appeals from the denials of their motions for new trial in this opinion.

1. Both appellants enumerate the general grounds. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellants] no longer [enjoy] a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Feagin v. State, 198 Ga. App. 460-461 (1) (402 SE2d 80) (1991). Applying these principles to our review of the transcript, the evidence at trial revealed that in November 1985 appellant Cochran purchased 200 acres of land from Rachel Thomas. Ms. Thomas and her son, Karter Thomas, who negotiated the sale, both testified that the property was sold for $145,000 ($725 an acre) and that no other sums were paid for the property. Other testimony and documentary evidence established, however, that the warranty deed and real estate transfer tax declaration listed the purchase price as $240,000 ($1,200 an acre) and the purchasers as appellant Cochran; appellant Handte’s wife, Bonnie Bigelow; a friend of appellants, David Premo; and the victims of the conversion, Temple Hill and Lynda Black Rea.

Rea testified that she decided to participate in the offer made by Handte, who worked with Cochran in an Ellijay realty business, to join him and Cochran in the purchase of the Thomas property based on her understanding from representations made to her by Handte that the purchase price of the property was $240,000 and that she was tendering $60,000 to buy a 25 percent interest in the property. She testified that in previous transactions in which she or her husband had participated with appellants and various other individuals, the parties had always invested an equal amount per acre for their proportionate share of the property; in the one exception to this course of conduct, it had been fully disclosed to her that Cochran had purchased the property at one price and, in a second closing, resold the property to her husband and other buyers for a higher amount.

Rea testified that as part of the standard arrangement in these transactions, she, as the attorney in the group, would handle certain aspects of the legal documentation involved. Handte asked her to prepare the closing documents for the Thomas sale. Rea testified that she prepared the documents based on the figures and percentages given to her by Handte; certain of those documents were admitted into evidence (e.g., the closing statement, disbursement sheet, warranty deed) and reflect the purchasers of the Thomas property as: Cochran and Handte, through his wife, contributing $45,000 each for their respective 18.75 percent shares of the property, Premo contributing $30,000 for a 12.50 percent share and Temple Hill and Rea each contributing $60,000 for their respective 25 percent interests in the property (hereinafter referred to collectively as “the investors”). Rea testified that she was not shown the sales contract; that she did not know at the time of the transaction that the property was being purchased from Thomas by Cochran alone for $145,000, rather than by the investors for $240,000; and that she was not aware at that time that appellants were not paying anything for their interest in the property.

Rea testified that because she was not informed that there was a closing deadline on the property, she accepted an invitation, issued approximately a week before that deadline, to accompany Handte and his wife and two other couples on a trip to Tennessee. She testified that when Handte informed her a day or- two before the trip that the closing had to take place after their departure, he was “adamant” that she not cancel her trip plans in order to be present at the closing, and persuaded her instead to prepare detailed documents. The evidence established that Cochran handled the closing while the Reas and the Handtes were vacationing.

As noted above, the warranty deed and the real estate transfer tax declaration executed at that closing-both reflect-that the investors were the purchasers of the property. The transfer tax declaration also reflects that the purchase price was $240(000, not $145,000. An expert in handwriting testified that Rachel Thomas’s signature on the transfer tax declaration had been forged. Ms. Thomas testified that she did not sign any document at closing that reflected that the purchase price for her property was $240,000.

Temple Hill, the other investor who contributed $60,000 to the purchase, testified that Handte had represented to him that he was purchasing a 25 percent interest in the property at $1,200 an acre. He also testified that Handte assured him on several occasions that all the investors were paying $1,200 an acre, and that he, Handte, was personally investing $45,000. Hill acknowledged that he would not have participated in the deal had he known that he and Rea were contributing over 80 percent of the purchase price in exchange for only 50 percent ownership in the property. Hill testified he became suspicious of the transaction in late 1987 because of subsequent unsavory business transactions he had with Handte. After Hill contacted Karter Thomas and obtained a copy of the sales contract, which reflected that Cochran had purchased the property for $145,000, Hill confronted Cochran. Hill testified that Cochran stated that he (Cochran) had paid $45,000 for his share in the purchase and that as Cochran read over Hill’s copy of the sales contract, Cochran’s hands “kept getting shakier.” Hill also testified that when he talked with Handte, Handte represented to him that the $95,000 difference between the sales contract price ($145,000) and the closing price ($240,000) was paid to the Thomases “under the table.”

OCGA § 16-8-4 (a) provides in pertinent part that “[a] person commits the offense of theft by conversion when, having lawfully obtained funds ... of another . . . under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation.” Appellants argue that their convictions under this statute must be reversed because there was no evidence of conversion, relying on the fact that both Rea and Hill acknowledged that they did, indeed, receive 25 percent of the Thomas property for their $60,000, as well as on the uncontroverted evidence that all of the funds tendered by Rea and Hill were used to purchase the Thomas property. However, the jury was authorized to find that appellants converted Rea’s and Hill’s money by using those funds to purchase most of appellants’ share in the property because the evidence showed that the victims’ money, which provided approximately 83 percent of the purchase price, paid not only for the victims’ 50 percent share of the property but also for 33 percent of appellants’ 37.5 percent share of the property. Because the evidence was uncontroverted that Rea and Hill provided appellants with their funds so that appellants could purchase only the victims’ own shares of the property and with no intent to enable appellants to purchase the property on appellants’ behalf, to which purpose a substantial amount of the victims’ money was applied, we do not agree with appellants that there was no evidence of conversion. See Mason v. State, 180 Ga. App. 235-237 (348 SE2d 754) (1986). Compare Tchorz v. State, 197 Ga. App. 185 (397 SE2d 619) (1990) (no evidence to controvert defendant’s testimony that he properly applied money given him by alleged victims to the purpose for which it was intended).

We find no merit in appellants’ argument that the evidence established the crime of theft by deception, OCGA § 16-8-3, rather than theft by conversion. Contrary to appellants’ argument, the criminal act that occurred in the transaction sub judice was not the obtaining of the money from the victims since, as appellants stressed in their other argument, the victims got exactly what was represented to them and appellants kept none of the money for themselves. Instead, the crime occurred when appellants, having obtained the funds for a “specified application,” used the victims’ money to purchase shares in the property for themselves, thereby converting the funds from their intended and agreed-upon application to appellants’ own use. See Mason, supra, 237 (2).

Appellant Handte also contends that the evidence was insufficient to support his conviction because all the documentary evidence reflects the property was titled in his wife’s name, not his. OCGA § 16-8-4 (a) does not require the converted funds to be titled in the accused’s name; it merely sets forth that the funds or property be knowingly converted to the accused’s “own use.” Given the testimony at trial that Handte routinely purchased property under his wife’s name, the jury was authorized to conclude that the conversion which Handte was instrumental in performing was for Handte’s use. Furthermore, as the State correctly notes in its brief, the evidence of Handte’s conduct before, during, and after the conversion was sufficient to enable the jury to find beyond a reasonable doubt that Handte was a party to Cochran’s conversion of the victims’ funds so as to authorize Handte’s conviction for the conversion of those funds under OCGA § 16-2-20. See generally In the Interest of J. S. S., 168 Ga. App. 340-341 (2) (308 SE2d 855) (1983).

Decided June 1, 1992

Reconsiderations denied June 12, 1992 and June 23, 1992

Weaver & Weaver, George W. Weaver, Frank J. Petrella, for appellants.

Roger Queen, District Attorney, for appellee.

The evidence adduced at trial was sufficient to enable a rational trier of fact to find appellants guilty beyond a reasonable doubt of the offense of theft by conversion under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Bartel v. State, 202 Ga. App. 458, 460 (5) (414 SE2d 689) (1991).

2. It is not necessary to detail the reasons why the evidence established the lack of any attorney-client relationship between Rea and Handte, since Handte’s objection to the admission of her testimony on the basis that it violated his privilege under OCGA § 24-9-24 was not raised below. “Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived.” (Citations and punctuation omitted.) Hight v. State, 195 Ga. App. 727, 730 (6) (394 SE2d 636) (1990).

3. We have reviewed Handte’s remaining enumeration of error and find it to be without merit.

Judgments affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A92A0550, A92A0551.
    NODVIN v. PLANTATION PIPE LINE COMPANY; and vice versa.
    (420 SE2d 322)
   Birdsong, Presiding Judge.

Nodvin instituted this suit against Plantation Pipe Line Company and Diversified Energy Services. He seeks damages for fraud and trespass, alleging that defendants engaged in a conspiracy through which they, without legal authority, entered upon his land and constructed a pipeline for the transportation of oil and gas. Defendants claim that this action was authorized by right-of-way easements contained in deeds executed in 1941 and 1968 within Nodvin’s chain-of-title. Nodvin claims that these deeds are invalid. The trial court granted summary judgment in favor of Diversified and partial summary judgment in favor of Plantation; discovery motions filed by Nodvin were denied. In Case No. A92A0550, Nodvin appeals. In Case No. A92A0551, Plantation cross-appeals.

The 1941 Deed

By deed dated July 14, 1941, E. M. Huffine conveyed the original right-of-way easement to Plantation “for the purpose of constructing, maintaining, operating, altering, repairing, removing, changing the size of, and replacing pipe for the transportation as a common carrier for hire of oil, crude petroleum and refined petroleum products or combinations thereof or similar thereto, natural and artificial gas, casinghead and natural gasoline and any other liquids or gases, the grantee to have the right to select the route, under, upon, over and through the lands situate in said state and county, more particularly described as follows: All of Lot of Land No. 157 . . . except. . . . Also: All of Lot of Land No. 158 . . . with ingress and egress to and from the said right-of-way.

“And also the right to lay, construct, maintain, alter, repair, remove and replace at any time additional lines of pipe adjacent to and parallel with the line above mentioned, upon payment for each additional line so laid, the consideration above named. ... It is provided that all pipelines constructed under this grant shall be confined to a strip of ground thirty feet in width, the center line of which shall be the center line of the first pipeline hereafter installed by grantee over, upon, through, under or across said lands.

“The grantee, by the acceptance here, agrees to bury the pipelines so that they will not interfere with the cultivation of the land, and also to pay any damage to crops, fences and timber, which may arise from laying, maintaining, operating or removing such pipelines. Said damage, if not mutually agreed upon, to be ascertained and determined by three disinterested persons; one to be appointed by the undersigned,-successors, heirs or assigns; one by the grantee, its successors or assigns, and the third by the two persons aforesaid, and the award of such three persons, or any two of them, shall be final and conclusive.”

The consideration for this deed was $63.

The 1968 Deed

For a consideration of $1,680, H. C. Woods, by deed dated February 7, 1968, conveyed additional easement rights to Plantation across a tract of land lying in Land Lot Nos. 132, 157, and 158 “[a]nd also any other lands owned or claimed by said Grantor adjacent to the lands particularly described above, together with the right of ingress and egress and unimpaired access over and across the above described lands and adjacent lands of the grantor for all purposes incident to said right-of-way and easement . . . herein granted.

“This instrument supplements and amends original easement and right-of-way grant (or grants) in which grantee was the grantee pertaining to the above described property and which is recorded in the Office of the Clerk of the Superior Court of said County in Georgia, Book 10, at page 202. Such grant (or grants) is hereby amended so that the second paragraph thereof shall read as follows: And also the right to lay, construct, maintain, operate, alter, protect, repair, remove and replace at any time additional line(s) of pipe generally parallel with the line above mentioned, with payment for each additional line to be the consideration above named. It is agreed that all of said pipelines shall be located within a strip of land fifty feet in width. The center line of the thirty foot strip covered by the original grant (or grants) is the grantee’s 12/10-inch pipeline and the twenty foot additional strip covered by this instrument lies contiguous to said thirty foot strip on the side thereof on which the first additional pipeline shall hereafter be installed by grantee.

“It is the intention of the grantor to, and grantor does, give, grant, bargain, sell, convey and warrant to grantee the easements, rights and privileges aforesaid under, upon, over and through an additional strip of land twenty feet in width contiguous to the original thirty foot strip so that the thirty foot strip provided for in the original grant (or grants) shall hereafter be one fifty foot strip. The consideration stated herein shall also compensate for the construction of an additional pipeline on said fifty foot strip. The parties agree and confirm that grantee may use such area contiguous to the aforesaid fifty foot strip as may be reasonably necessary in the exercise of its easement rights.

“In addition to the above consideration, grantee agrees to repair or to pay for any actual damage which may be done to crops, fences, and timber directly caused by grantee exercising any rights herein granted; provided, however, after the first pipeline has been installed following the execution of this instrument, grantee shall have the right, without payment of damages, to keep the said fifty foot right-of-way clear of trees, undergrowth, lakes, ponds, buildings, structures and other improvements.”

Additional Facts

Plantation constructed the original 10-inch pipeline in 1941. In 1951, Plantation constructed a 14-inch pipeline within the original 30-foot easement. In 1968, Plantation constructed a 26-inch pipeline in the additional 20-foot strip granted under the 1968 deed from Woods.

In 1969, Woods made a conveyance to Credico, Inc., which in turn made a conveyance to Nodvin in the same year. The conveyance to Nodvin covers property in Land Lot No. 158 over which the easement runs.

In 1987, Plantation embarked on a project to construct a 12-inch pipeline beside its other three pipelines along a 28-mile route from Bremen Station near Bremen, Georgia, to Austell Station near Austell, Georgia.

Plantation contracted for Diversified Energy Services to perform surveying, mapping, and right-of-way services in connection with the construction of the 12-inch pipeline. Employees of Diversified were directed and authorized to pay landowners affected by the construction the amount of money stipulated within Plantation’s 1941 easements for the right to lay an additional pipeline across each landowner’s property. If a particular landowner no longer owned all of the property within the pipeline easement, then the landowner was paid or tendered a prorated amount based on the “roddage” (a rod being 16-1/2 feet) of pipeline traversing his or her property. Diversified employees were also authorized to pay damages to landowners for any damage to their property located contiguous to Plantation’s 50-foot easement strip that was used as temporary work space during construction.

Nodvin was one of the property owners affected by the 12-inch pipeline construction. In May or June of 1987, Diversified personnel offered Nodvin $100 as consideration for construction of the additional line and damage which would be caused in areas outside of the easement. In July of 1987, Diversified personnel tendered Nodvin $44 as the cash payment under the 1941 Huffine deed, as amended by the 1968 Woods deed, for the right to lay the additional pipeline along the portion of the right-of-way on Nodvin’s property. Nodvin also had pine trees present in the area of a temporary work space. Diversified later attempted to settle these damages by offering plaintiff a total of $2,000 for cutting the pine trees and for the consideration required under the deeds. Nodvin stated that this was inadequate compensation and refused to accept these sums. During the summer of 1987, Plantation entered upon Nodvin’s land and commenced laying the 12-inch pipeline.

Nodvin subsequently instituted this suit. In addition to alleging a conspiracy by defendants to commit fraud and trespass by using invalid easements to enter upon his property, he has asserted that they damaged his property by destroying valuable timber and vegetation, by failing to maintain the property which had been disturbed, thereby allowing erosion to occur, and that property used as a work space, outside the easement but contiguous to it, was not reasonably necessary to Plantation’s construction activities.

The trial court rejected Nodvin’s arguments that Plantation’s pipeline right-of-way easement is invalid and that Diversified and Plantation engaged in a conspiracy to commit fraud and trespass. Accordingly, Diversified’s motion for summary judgment was granted, and Plantation’s motion for summary judgment was granted on all issues except those concerning: (1) the amount of pro-rated consideration to be paid to Nodvin for Plantation’s exercise of its right to construct the additional 12-inch pipeline; (2) whether the area used by Plantation as a temporary work space contiguous to the 50-foot easement was reasonably necessary; (3) the amount of damages to be awarded to Nodvin for Plantation’s cutting of pine trees in the area of the temporary work space.

The trial court also denied motions by Nodvin to compel Plantation to respond to requests for discovery concerning transactions between Plantation and other individuals owning property within Plantation’s easement for the 12-inch pipeline from Bremen to Austell. The trial court sustained Plantation’s objection on grounds that these transactions were irrelevant. Held:

Case No. A92A0550

1. Nodvin argues that the deed through which Huffine granted the original easement in 1941 was ineffective because Huffine had conveyed the subject property to Margarete Huffine Sewell in 1936. Plantation does not contest the fact that Huffine had in fact conveyed the property to Sewell prior to his grant of the easement to Plantation.

For the following reasons, we hold that this does not invalidate Plantation’s easement.

(a) The deed from Credico to Nodvin states that the conveyance included “all of the right-of-way granted by easement to Plantation Pipe Line Company by H. C. Woods and his predecessor in title.” “A grantee who accepts a deed to the property granted is estopped to deny the truth of a recital that the grantor had previously granted an easement or interest in the property to another person. [Cits.] The estoppel upon the grantee in such case likewise binds the grantee’s privies in estate. [Cit.]” Toland v. Brewster, 144 Ga. 236, 239-240 (1) (86 SE 1089).

The holding from Toland is an application of OCGA § 24-4-24. Subsection (a) of this Code section states: “Conclusive presumptions of law are termed estoppels; averments to the contrary of such presumptions shall not be allowed. Estoppels are not generally favored.” Subsection (b) states: “Estoppels include presumptions in favor of ... (5) Recitals in deeds, except payment of purchase money, as against a grantor, sui juris, acting in his own right, and his privies in estate, blood, and in law”; see also OCGA § 24-4-24 (b) (4) (creating estoppels as to “[a]ncient deeds and other instruments more than 30 years old, when they come from proper custody and possession has been held in accordance with them”).

(b) Moreover, under the evidence in this case, Plantation acquired prescriptive title to the original 30-foot right-of-way by adverse possession for seven years under color of title pursuant to OCGA § 44-5-164.

“An easement may be acquired by prescription in twenty years unless there is some color of title, in which case only seven years is required. [Cits.]” Smith v. Clay, 239 Ga. 220, 221 (236 SE2d 346).

“[OCGA § 44-5-161] sets out the following as the essential elements of adverse possession: possession that is public, continuous, exclusive, uninterrupted, peaceable, not originating in fraud and accompanied by a claim of right.” Chancey v. Ga. Power Co., 238 Ga. 397, 398 (233 SE2d 365). “A claim of right will be presumed from the assertion of dominion, particularly where the assertion of dominion is made by the erection of valuable improvements [cit.]; possession originating in fraud will not be presumed. [Cit.]” Id.

“In Powell on Actions for Land 340, § 295, color of title is defined as follows: ‘Color of title is “a writing upon its face professing to pass title, but which does not do it, either from want of title in the person making it, or from the defective conveyance that is used — a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law.” ’ ” Capers v. Camp, 244 Ga. 7, 11 (3) (257 SE2d 517).

2. Under our holding in Division 1 (a), supra, whether the deed from Huffine to Plantation was in fact recorded, an issue raised by Nodvin, is immaterial. (Note: It is stated in the Huffine deed that it was recorded at page 22 of Book 10 in the office of the Clerk of the Superior Court of Douglas County. Nodvin has submitted proof that a different instrument is recorded at page 22 of Book 10. Plantation argues that the superior court clerk maintains two sets of books; under Pease &c. Realty Trust v. Gaines, 160 Ga. App. 125, 127 (1) (286 SE2d 448), the deed, which was filed for record in the office of the clerk, is constructive notice even if the clerk recorded it in the wrong book; the presumption in favor of ancient deeds bars litigation of this issue; and in his deposition testimony, Nodvin waived the notice issue.)

3. Nodvin’s argument that the Huffine deed has not been properly authenticated is without merit. Under the reasoning of McBrayer v. Walker, 122 Ga. 245, 248-249 (50 SE 95), Nodvin vouched for the authenticity of this deed by appending it as an exhibit to his complaint. Moreover, he did not raise this issue before the trial court. See generally Nodvin v. West, 197 Ga. App. 92, 95 (3 a) (397 SE2d 581).

4. Nodvin argues that the provision in the 1968 deed, granting Plantation the right to lay additional pipelines over “any other lands owned or claimed by said grantor adjacent to the lands particularly described above” is so vague and indefinite as to render the grant of the easement void.

Nodvin studiously ignores the fact that Plantation was granted the right to lay pipelines within an additional 20-foot strip contiguous to the original 30-foot strip, so that the original 30-foot strip would thereafter be one 50-foot strip.

“If an easement is granted for a pipeline in general terms, the proprietor of the pipeline has no right to take and hold possession of all the land by virtue of the grant. His right of possession is limited to the part of the land required as right of way for such pipeline as is actually laid. . . . Accordingly, that the grant does not describe the route over which the line is to be laid will not nullify the grant. And where the grant of a pipeline easement is general as to the location of the pipe and its size, it becomes fixed and certain after the pipe is laid and is used with the acquiescence of both grantor and grantee.” 61 AmJur2d, Pipelines, § 29, p. 598.

“Moreover, the grant of an easement containing an indefinite description will be upheld where its location has been established by consent of the parties. [Cit.]” Barton v. Gammell, 143 Ga. App. 291, 296 (3) (238 SE2d 445); see Livingston v. Livingston, 210 Ga. 607 (1) (82 SE2d 1) (recognizing that an open-ended property description does not invalidate a conveyance where a key to the location through the aid of extrinsic evidence exists); see also Jones v. Colle, 727 SW2d 262; see also Annotation, Construction & Application of “Mother Hubbard” or “Cover-All” Clause in Gas and Oil Lease or Deed, 80 ALR4th 205 (limiting the application of so-called “cover-all” or “Mother Hubbard” clauses in leases or deeds granting mineral rights to oil and gas).

“ ‘Right-of-way instruments, with substantially the same provisions as the one for consideration by the Court in this instance, have been construed by courts in other jurisdictions. With one accord, they have held that such instruments were not vague and indefinite; and that the grantees therein had the right, under such agreements, to lay and construct additional pipelines.’ [Cits.]” Vandiver v. Transcontinental Gas Pipe Line Corp., 222 FSupp. 731, 734 (N.D. Ga.).

5. Nodvin’s argument that Diversified’s employees were guilty of misrepresentation by giving the false impression that they were employees and agents of Plantation is wholly without merit. The record plainly shows that Diversified’s employees were authorized representatives of Plantation.

Case No. A92A0551

6. The trial court did, however, err in denying Plantation’s motion for summary judgment on the question of whether the area used by it as temporary work space was reasonably necessary to the construction of the additional pipeline.

Plantation’s expert witness testified that the pipelines run in an easterly/westerly direction. Plantation used a 30-foot area parallel and adjacent to the northern boundary of the 50-foot right-of-way as a temporary work space. The pipelines carry hazardous liquids, and extreme caution must be exercised in utilizing mechanized equipment to lay new pipelines near operating lines due to the danger of ignition and release of petroleum if an operating line is struck and ruptured. The pipelines laid in 1941, 1951, and 1968 were buried several feet deep but were shallower where erosion had occurred. As authorized by the 1968 deed, a temporary work space, 30 feet in width, was cleared north of the 50-foot right-of-way on Nodvin’s property to provide adequate room for tractors, trucks, and other large vehicles to operate safely without encroaching upon operating lines. This space was also used to lay and fabricate new line above ground that was then lowered into an excavated ditch. Accomplishment of these operations safely and efficiently would have been virtually impossible without the additional temporary work space contiguous to the existing 50-foot easement right-of-way.

In opposition, Nodvin asserted that Plantation had adequate access from Bright Star Road, which runs in a northerly/southerly direction perpendicular to the easement and fronts it over a distance of 50 feet on each side.

As argued by Plantation, this alternative location did not satisfy Plantation’s need for a work space parallel to the full length of the easement. Through its proof Plantation established a prima facie entitlement to summary judgment on the question of whether the 30-foot contiguous area it utilized was reasonably necessary to its construction activities, thereby shifting the burden of coming forward with evidence to Nodvin. His rebuttal evidence failed to show that there is a genuine issue of material fact for trial. Accordingly, Plantation was entitled to summary judgment on this issue. Balke v. Red Roof College Park Co., 190 Ga. App. 779, 781 (2) (380 SE2d 61).

Additionally, it is not required that no issue of fact remains to warrant grant of summary judgment, but rather that no genuine issue of material fact remains; and while there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where the evidence clearly and palpably shows, as in this case, that the jury could reasonably draw but one conclusion. Peterson v. Liberty Mat. Ins. Co., 188 Ga. App. 420, 424 (373 SE2d 515).

7. It follows that Plantation is not chargeable with trespass. As in Hunton v. Colonial Pipeline Co., 134 Ga. App. 801, 804 (1) (216 SE2d 662), it had an express right of entry by deed to enter upon Nodvin’s property and construct the additional pipeline. It also had an express right by deed to use the contiguous area as a temporary work space. See also Plantation Pipe Line Co. v. Locke, 290 FSupp. 752, 754 (2, 3) (N.D. Ala.) (holding that such a right may be implied).

8. The determination by Diversified’s personnel, that Nodvin was owed $44 consideration under the 1968 and 1941 deeds, was based on the opinion that “the consideration above named,” in the paragraph of the 1968 deed which was substituted for the second paragraph in the 1941 deed, makes reference to the $63 consideration in the 1941 deed and not the $1,680 consideration in the 1968 deed. By taking the roddage within the right-of-way described in the 1941 deed, and dividing it by the consideration for the 1941 deed, and then computing the roddage contained within the right-of-way on Nodvin’s property, and then multiplying the two figures, Diversified determined that Nodvin was owed $44.

We agree with the trial court that there remains a genuine issue of material fact as to the exact figure owed.

9. However, the offer by Diversified personnel to compensate Nodvin in the cumulative amount of $2,000 for the consideration required under the deeds and the damage to timber is insufficient to establish a fraudulent or otherwise unlawful conspiracy on their part.

“ ‘A conspiracy upon which a civil action for damages may be founded is a combination between two or more persons either to do some act which is a tort, or else to do some lawful act by methods which constitute a tort. Where it is sought to impose civil liability for a conspiracy, the conspiracy itself furnishes no cause of action. The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage. . . .’ [Cits.]” Cook v. Robinson, 216 Ga. 328-329 (1) (116 SE2d 742).

Nodvin has made no showing in support of his argument that defendants’ failure to offer him, and arguably other property owners, adequate compensation for the exercise of Plantation’s easement rights constitutes an actionable conspiracy in perpetration of fraud. Computation of the amount of consideration owed under the 1941 and 1968 deeds embraced matters of law, and a representation or opinion as to such does not support a claim of fraud in the absence of a fiduciary relationship. Roach v. Ga. Farm &c. Ins. Co., 173 Ga. App. 229, 231 (325 SE2d 797); accord Friedman v. State Farm &c. Ins. Co., 177 Ga. App. 873 (341 SE2d 275). Calculation of the amount of damages owed Nodvin by reason of damage to his property required an individualized and distinct determination. This being so, this case is governed by the general rule that “ ‘in controversies between two persons regarding a given subject-matter, evidence as to what occurred between one of them and a third person with reference to a similar, though entirely distinct transaction is irrelevant. (Cits.)’ [Cit.]” Miller Distrib. Co. v. Rollins, 163 Ga. App. 635, 637 (2) (295 SE2d 187), citing Kamensky v. Southern Oxygen &c. Co., 127 Ga. App. 343, 344 (193 SE2d 164); see OCGA § 24-2-2. Deckner-Willingham Lumber Co. v. Turner, 171 Ga. 240 (155 SE 1) (holding testimony admissible which tended to show one of the parties charged with fraud had, recently before the transaction in question, proposed to the witness that they engage in such a scheme, declaring how he had handled similar previous transactions and how they could do so safely) is distinguishable.

Decided June 5, 1992

Reconsideration denied June 23, 1992.

Richard A. Gordon, Micheline A. Besse, for appellant.

Marvin P. Nodvin, pro se.

Edward T. Floyd, Hurt, Richardson, Garner, Todd & Cadenhead, Edward H. Nicholson, Jr., for appellee.

10. Under our holdings in Division 9, supra, the trial court did not err in denying Nodvin’s discovery motions.

11. We agree that there remain genuine issues of material fact concerning the amount of property damage done by Plantation. See Marshall v. Ga. Power Co., 134 Ga. App. 479, 480-481 (6, 8) (214 SE2d 728).

Since the evidence shows that these activities were conducted by Plantation through contractors other than Diversified, the trial court’s grant of Diversified’s motion for summary judgment was correct.

12. Diversified’s motion to impose a $500 penalty against Nodvin for frivolous appeal is denied.

Judgment in Case No. A92A0550 affirmed. Judgment in Case No. A92A0551 affirmed in part and reversed in part.

Pope and Andrews, JJ., concur. Beasley, J., is disqualified.