author: Johnson, Presiding Judge.

text:
    A01A0586.
    McCALL v. HENRY MEDICAL CENTER, INC.
    (551 SE2d 739)
   Johnson, Presiding Judge.

Georgiana McCall filed a medical malpractice action against Henry Medical Center, Inc., Dr. Roberta Parker, and Ankle & Foot Clinic of Georgia, Inc. for damages arising out of a surgical procedure performed by Dr. Parker on the premises of the Medical Center. McCall claims that the Medical Center was negligent in granting medical privileges to Dr. Parker. The Medical Center objected to a number of McCall’s discovery requests on the grounds that the requested material was privileged as part of its peer review process, and to other discovery requests on the grounds that the interrogatories were unduly burdensome and would not reasonably lead to the disclosure of admissible evidence.

McCall moved to compel discovery, and the Medical Center then moved for summary judgment. McCall asked the trial court to deny or defer the Medical Center’s motion for summary judgment pending a ruling on her motion to compel. The trial court nevertheless granted the Medical Center’s motion for summary judgment. The trial court declined to rule on McCall’s outstanding motions to compel and to defer a ruling on summary judgment because it found those issues moot. McCall appeals. For reasons set forth below, we vacate the trial court’s grant of summary judgment to the Medical Center as premature and remand the case for consideration of McCall’s motion to compel discovery.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. Our review is de novo.

1. McCall claims that the trial court erred in granting summary judgment to the Medical Center and by refusing to rule on her outstanding motions to compel discovery and to defer summary judgment under OCGA § 9-11-56 (f). We agree.

The trial court granted summary judgment to the Medical Center because it found that

OCGA § 31-7-130 et seq; and OCGA § 31-8-140 [sic] both provide protection in peer review proceedings. In essence, the General Assembly has shielded providers, such as Defendant Henry Medical, from civil liability. In as much as Defendant Parker was not an employee of Defendant Henry Medical, any action, or inaction, by the peer review committee is not subject to this action.

We will first consider whether the trial court was correct in granting summary judgment to the Medical Center on these grounds.

The Medical Center argues that the trial court correctly ruled that it was entitled to summary judgment because the credentialing of Dr. Parker was performed by a peer review group conducting a peer review function; and the Medical Center is protected from civil liability for performing a peer review function, absent malicious intent. McCall argues that the medical peer review statutes do not shield a hospital for negligent credentialing of physicians.

The peer review statutes provide two different types of protection to members of medical care peer review groups. One is immunity from civil or criminal liability for performing peer review functions; the other is a prohibition against discovery of peer review group materials. The General Assembly intended “to provide protection for those individuals who are members of peer review groups which evaluate the quality and efficiency of professional health care providers and to protect the confidentiality of their records.”

The peer review liability protection is stated in OCGA § 31-7-132 (a):

No professional health care provider nor any individual who serves as a member or employee of a professional health care provider or review organization nor any individual who furnishes counsel or services to a professional health care provider or review organization shall be held, by reason of the performance of peer review activities, to have violated any criminal law or to be civilly liable under any law unless he was motivated by malice toward any person affected by such activity.

We agree with the Medical Center that the peer review civil liability protection extends to hospitals. The Medical Center argues that a hospital which has established peer review for the credentialing of medical service providers will not be liable for the performance of the credentialing function. “Peer review” is defined as:

the procedure by which professional health care providers evaluate the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review, underwriting assistance, and the compliance of a hospital, nursing home, convalescent home, or other health care facility operated by a professional health care provider with the standards set by an association of health care providers and with applicable laws, rules, and regulations.

The Medical Center also refers us to OCGA § 31-7-15 (a), which provides that a hospital is required to provide for “the review of professional practices in the hospital . . . for the purpose of reducing morbidity and mortality and for the improvement of the care of patients in the hospital.” The review shall include: “The evaluation of medical and health care services or the qualifications and professional competence of persons performing or seeking to perform such services.” OCGA § 31-7-15 (b) provides the above review function may be performed by a peer review committee. The Medical Center argues that, having established that the evaluation and approval of Dr. Parker’s staff privileges were performed by its Credentialing Committee, it is protected from liability from McCall’s claim of negligent credéntialing.

It is established that “a hospital has a direct and independent responsibility to its patients to take reasonable steps to ensure that staff physicians using hospital facilities are qualified for privileges granted.” McCall argues that the statutory interpretation put forward by the Medical Center would repeal by implication a hospital’s duty to exercise reasonable care in granting medical privileges because no credentialing decision could be questioned if it was performed by a peer review committee.

We do not believe that the General Assembly has indirectly eliminated, through peer review immunity, a hospital’s responsibility to its patients to exercise reasonable care in ensuring that medical care providers are qualified. The ultimate purpose of the peer review law is to improve the delivery of medical care to the patient. “It was never intended that the peer review process be used in such a way as to effectively bar a plaintiff’s tort action.” Mindful of the foregoing, we find that the definition of “peer review” contained in OCGA § 31-7-131 (1) addresses the evaluation of the quality and efficiency of actual medical care services and does not encompass the credentialing process to the extent that every decision to extend or maintain staff privileges is a peer review function. OCGA § 31-7-15 requires that a hospital establish professional practice review; it does not expand the civil immunity otherwise afforded to peer review groups who may perform the review. Even though it appears that a Medical Center peer review committee may have approved Dr. Parker, it does not follow that McCall’s cause of action must fail. Civil immunity will not extend to a peer review committee which is not performing a peer review function. We do not hold that no aspect of the credentialing process is a peer review function, especially if the process involves the evaluation of a physician’s performance of an actual medical procedure, but summary judgment is not warranted merely because a peer review committee has approved Dr. Parker, and this appears to be the basis for the trial court’s grant of summary judgment.

In its ruling, the trial court also stated that the Medical Center was not subject to this action because Dr. Parker was not an employee of the Medical Center. McCall argues that this is an erroneous statement. We agree that whether Dr. Parker was an employee of the Medical Center or an independent physician will not affect McCall’s claim because negligent credentialing is not dependent on a master-servant relationship. The employment or direction of a physician by a hospital may be important in establishing other causes of action, such as negligent supervision, but it is not relevant here. The Medical Center nevertheless argues this distinction is important because material that might otherwise be discovered as original source material related to employment is not available here. Even if employee records do not exist, other similar administrative records may; in any case, the employment status of Dr. Parker is not relevant to the Medical Center’s duty to McCall.

2. Although we have found that the trial court was mistaken in its stated reasons for granting summary judgment to the Medical Center, in an appeal of a grant of summary judgment we review the record de novo, and the Medical Center claims that it is entitled to summary judgment on the record. The Medical Center argues that McCall has failed to come forward with evidence to support her claim of negligent credentialing, while the Medical Center has introduced evidence of its compliance with accepted medical credentialing procedures. The Medical Center presented the affidavit of its medical staff coordinator. She testified that the credentialing process used by the Medical Center in extending staff privileges to physicians was adopted pursuant to the criteria of the Joint Commission for the Accreditation of Healthcare Organizations (“JCAHO”). She further testified that the Medical Center used the JCAHO procedures in its decision to extend medical privileges to Dr. Parker.

We have affirmed summary judgment in negligent credentialing cases in which a hospital demonstrated that it had a procedure in place, approved by the JCAHO, for evaluating the credentials of staff physicians. As the Medical Center has come forward with such evidence, it would be entitled to summary judgment on the record in the absence of other considerations. McCall, however, filed a motion to compel discovery after the Medical Center’s response to its discovery request. After the Medical Center moved for summary judgment, McCall then made a motion under OCGA § 9-11-56 (f) to deny or continue the motion for summary judgment until the trial court had ruled on its motion to compel. The trial court never addressed these motions in its order, instead finding the remaining issues before it to be moot. McCall claims the trial court erred in not ruling upon and not granting her motion to compel discovery or her motion under OCGA § 9-11-56 (f) to deny or continue the Medical Center’s motion for summary judgment. We agree that the trial court erred in failing to address these motions.

McCall argues that if she prevailed on her motion to compel, then she would have the opportunity to discover evidence allowing her to proceed to a jury trial. The Medical Center argues that the motion to compel is moot because (1) the peer review statutes prohibit McCall from discovering the peer group-related materials which the Medical Center has refused to provide, and (2) having established a JCAHO-approved procedure for evaluating physician credentials, the Medical Center has established reasonable care and is entitled to summary judgment even if the requested material is discoverable.

OCGA § 31-7-133 (a) provides:

the proceedings and records of a review organization shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action; and no person who was in attendance at a meeting of such organization shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings or activities of such organization or as to any findings, recommendations, evaluations, opinions, or other actions of such organization or any members thereof. The confidentiality provisions of this article shall also apply to any proceedings, records, actions, activities, evidence, findings, recommendations, evaluations, opinions, data, or other information shared between review organizations which are performing a peer review function. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such organization.

In Cobb County Kennestone Hosp. Auth. v. Martin, we affirmed that a “matter presented to the peer review committee is not privileged if it is obtainable from original sources.” We also noted the peer review restrictions are “in derogation of the general liberal policy in favor of discovery and admissibility of probative evidence, and therefore should not be construed loosely or extended beyond its spirit and precisely stated limits.”

Accordingly, while some of McCall’s discovery may ask for privileged material, it appears from the record that some requested material may have been discoverable, and that the material may have been relevant to McCall’s cause of action. We disagree with the Medical Center’s contention that it would be entitled to summary judgment whatever discovery might show because it has established a JCAHO-approved procedure for approving physicians. Such an argument erroneously implies that it is not relevant whether McCall can show the Medical Center failed to follow this procedure. The Medical Center’s reliance on Sheffield and Butler is misplaced. In these cases evidence of actual physician qualifications was introduced in addition to compliance with JCAHO procedures, and the plaintiffs were afforded an opportunity to come forward with their own evidence.

Decided July 2, 2001

Reconsideration denied July 19, 2001

Curtis A. Thurston, Jr., for appellant.

Nall & Miller, Robert L. Goldstucker, Meadows & Futch, Rod G. Meadows, Bonnie L. Baker, for appellee.

The Medical Center argues that McCall’s motion under OCGA § 9-11-56 (f) was not appropriate because her motion to compel was moot. This was the case in Tuck v. Marriott Corp., in which we held that “[although the grant of summary judgment while a motion to compel discovery is pending is generally not condoned, where, as here, the disallowed discovery would add nothing of substance to the party’s claim, reversal is not required.” Tuck, however, was a premises liability case in which any evidence adduced from the grant of the motion to compel would not change the result. In contrast, if McCall succeeds in her motion to compel, it could add substance to her case. Accordingly, McCall’s motion to defer summary judgment under OCGA § 9-11-56 (f) should have been granted.

The parties differ with regard to whether we should address McCall’s motion to compel. The Medical Center argues that we cannot address a matter not ruled on by the trial court. Although the parties argue in their briefs about the interaction between the discovery rules and peer review statutes, they have done so without the benefit of a trial court ruling more narrowly framing the issues to the particular evidence subject to the motion to compel. Under the circumstances, it would be inappropriate for us to address the motion to compel in particularity.

We hold that McCall’s motions to compel and to defer ruling on the Medical Center’s motion for summary judgment were not moot and that the trial court erred in not considering them; the grant of summary judgment to the Medical Center was therefore premature. We vacate the judgment and remand the case to the trial court so that it may consider McCall’s motion to compel.

Judgment vacated and case remanded with direction.

Ruffin and Ellington, JJ., concur.

Alston & Bird, Jack S. Schroder, Jr., Kevin E. Grady, Angela T. Burnette, Mark L. Stuckey, amici curiae.

       The trial court also granted the Medical Center summary judgment on McCall’s claim of ostensible agency, but this claim is not pursued by McCall in this appeal.

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Walker v. Virtual Packaging, 229 Ga. App. 124 (493 SE2d 551) (1997).

       OCGA § 31-7-130.

       OCGA § 31-7-141 provides immunity to medical review committees, but expressly does not apply to patient claims.

       See Fulton-DeKalb Hosp. Auth. v. Dawson, 270 Ga. 376, 379 (2) (509 SE2d 28) (1998); OCGA § 31-7-131 (2) (K).

       OCGA § 31-7-131 (1).

       OCGA § 31-7-15 (a) (3).

        Candler Gen. Hosp. v. Persaud, 212 Ga. App. 762, 766 (2) (442 SE2d 775) (1994) (physical precedent only).

        Emory Univ. Hosp. v. Sweeney, 220 Ga. App. 502, 506 (469 SE2d 772) (1996).

        Fulton-DeKalb Hosp. Auth., supra.

       See Mitchell County Hosp. Auth. v. Joiner, 229 Ga. 140 (189 SE2d 412) (1972).

        Butler v. South Fulton Med. Center, 215 Ga. App. 809, 811 (1) (452 SE2d 768) (1994).

       Id.; Sheffield v. Zilis, 170 Ga. App. 62, 64 (1) (316 SE2d 493) (1984).

       208 Ga. App. 326, 328 (430 SE2d 604) (1993).

       Id. at 327.

       Supra.

       Supra.

       187 Ga. App. 567, 569 (2) (370 SE2d 795) (1988).'

       See Meyer v. Super Discount Markets, 231 Ga. App. 763, 768 (3) (501 SE2d 2) (1998).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A99A2268.
    WOOTEN v. THE STATE.
    (552 SE2d 878)
   Blackburn, Chief Judge.

Following a jury trial, Kenneth R. Wooten appeals his conviction for four counts of child molestation, contending that: (1) the method of assigning cases in the Lookout Mountain Judicial Circuit violated Uniform Superior Court Rule 3.1; (2) prior consistent statements of the victim were improperly allowed into evidence; and (3) a juror was inappropriately dismissed after deliberations had begun. For the reasons set forth below, we affirm.

1. In Wooten v. State, this Court considered Wooten’s contention that his case should be reversed because the method of assigning cases in the Lookout Mountain Judicial Circuit violated USCR 3.1. Citing Cuzzort v. State, we found that Lookout Mountain’s method of assigning cases was improper because the Lookout Mountain District Attorney’s Office created the criminal court calendar, assigned cases to judges, and actually called the cases to proceed. Wooten, 244 Ga. App. at 101-102. We further held that this system was inherently harmful to the defendant. Id. at 102.

In State v. Wooten, however, our Supreme Court reversed this Court’s opinion, finding that “the district attorney’s limited role in assigning cases to a judge and calling the court calendar did not violate Wooten’s right to due process under the Georgia Constitution or [the] United States Constitution.” The Supreme Court then went on to determine that, although the assignment method was contrary to USCR 3.1, it was “highly improbable that the error . . . contributed to the jury’s verdict of guilty.” Id. at 533 (3). Therefore, with regard to this enumeration of error, we vacate our prior opinion and adopt the Supreme Court’s holding with regard to this issue.

2. Wooten’s contention that the trial court improperly allowed prior consistent statements by the victim into evidence was found to be without merit in our prior opinion, and this finding was not reversed by our Supreme Court. Accordingly, this finding stands, and our previous determination remains dispositive of this issue.

3. Finally, Wooten argues that the trial court improperly dismissed a juror after deliberations had begun. We disagree.

The record shows that, during the voir dire of the jurors, the State asked jurors to reveal whether they knew the defendant or members of his family. No juror responded to this question. However, after the trial was finished and deliberations had begun, the jury foreperson reported to the trial court that she believed that another juror was being partial because he personally knew Wooten. The foreperson stated that this juror had indicated to the others that he was familiar with the defendant and that, through this association, he had no intention of considering the testimony of the victim.

The trial court then called the problematic juror into court and questioned him. At this time, the juror admitted for the first time that he knew the defendant, and he gave no valid explanation for failing to inform the State when he was originally asked about the association. The trial court did not immediately dismiss the juror because he stated that, despite his knowledge of the defendant, he would attempt to deliberate fairly. While deliberations continued, however, the trial court concluded that the juror should be dismissed for failure to comply with the voir dire oath of honesty. Wooten now appeals this decision.

OCGA § 15-12-172 provides: “If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.” This Code section gives the trial court “discretion to discharge a juror and replace him or her with an alternate at any time, and we will not reverse as long as the court’s exercise of discretion has a sound legal basis.” (Punctuation omitted.) Worthy v. State

In this case, such a sound legal basis existed. “It was not an abuse of discretion to conclude that the juror’s failure to respond truthfully during voir dire, coupled with his admitted actions during jury deliberations, constituted legal cause for removal.” Norris v. State. And, contrary to Wooten’s argument, the juror’s statement that he would try to deliberate fairly does not change this result. Here, the trial court was faced with a juror whose veracity was clearly in question. Under such circumstances, we cannot say that the trial court abused its discretion in removing the juror. Id.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

Decided July 19, 2001

Cook & Connelly, Bobby Lee Cook, Todd M. Johnson, for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

       Wooten was acquitted on charges of aggravated child molestation and aggravated sodomy.

        Wooten v. State, 244 Ga. App. 101 (533 SE2d 441) (2000).

        Cuzzort v. State, 271 Ga. 464 (519 SE2d 687) (1999).

         State v. Wooten, 273 Ga. 529, 532 (2) (543 SE2d 721) (2001).

        Worthy v. State, 223 Ga. App. 612, 613 (1) (478 SE2d 421) (1996).

        Norris v. State, 230 Ga. App. 492, 495 (5) (496 SE2d 781) (1998).


author: Ellington, Judge.

text:
    A01A0995.
    SEGAL et al. v. DORBER.
    (552 SE2d 873)
   Ellington, Judge.

Following the grant of their application for discretionary appeal, Randolph H. Segal and his attorney, David F. Dickinson, appeal from the Walton County Juvenile Court’s order entered October 9, 2000, assessing guardian ad litem fees against them “jointly and severally.” Because the record reveals no basis for holding the attorney personally liable for court costs assessed against his client, we vacate the trial court’s order as to Dickinson.

The record shows the following: Carmen Dorber filed an action against Segal in the Superior Court of Walton County seeking a change in custody with regard to their two minor children. Pursuant to former OCGA §§ 15-11-5 (c) and 15-11-6 (b) (now §§ 15-11-28 (c) and 15-11-30.1 (b)), the superior court transferred to the juvenile court “the issues of child custody, child support, visitation, and/or temporary attorney fees ... for investigation, hearing and final determination according to law.” After a hearing, the juvenile court issued a “[flinal [o]rder” granting Dorber’s petition. The trial court ordered Dorber and Segal to each pay a portion of the guardian ad litem’s fee. The juvenile court then entered an order transferring the case back to the superior court.

Segal failed to pay his portion of the fee as ordered. The juvenile court scheduled a hearing and issued a rule nisi directing Segal and Dickinson to appear “to address the issues involved and why such costs should not be assessed against [Dickinson] and [Segal] and/or why [Segal] should not be subject to the contempt powers of the Court.” Segal failed to appear at the hearing. After the hearing, the juvenile court issued an order that Segal’s portion of the fee “was to be jointly and severally paid” by Segal and Dickinson “since they were the [m]ovants in having the guardian appointed.”

Dickinson appeals the order assessing fees against him, contending that the juvenile court lacked jurisdiction to enter the appealed order because the case had already been transferred back to the superior court, that the juvenile court had no statutory authority to assess fees against him as counsel, and that the juvenile court violated his right to due process.

1. The language in the rule nisi suggests that the juvenile court intended the appealed order to punish Segal and Dickinson for contempt. An attorney may be penalized for contemptuous conduct, and such a penalty may be monetary, that is, a fine. OCGA §§ 15-1-3 (3); 15-1-4 (a) (3); 15-6-8 (5). See generally 6 Encyclopedia of Ga. Law (1996 ed.), Contempt, §§ 12, pp. 59-60; 17, pp. 76-79. Contemptuous conduct may include wilful violation of a court order, including an order to pay expenses of litigation. OCGA §§ 15-1-4 (a) (3), (b); 15-11-5 (a); 19-6-2 (a); Madison v. Montgomery, 206 Ga. 199, 204 (2) (56 SE2d 292) (1949). Regardless of whether Segal’s failure to pay his assigned portion of the guardian ad litem fee justified holding him in contempt, however, Segal’s conduct could not justify holding Dickinson in contempt. In other words, the trial court lacked authority to find Dickinson in contempt for violating an order which was not directed at him, at least in the absence of evidence he caused or contributed to Segal’s failure. American Express Co. v. Baker, 192 Ga. App. 21, 23 (2) (383 SE2d 576) (1989). See 6 Encyclopedia of Ga. Law (1996 ed.), Contempt, § 17, p. 76. Accordingly, the order directing Dickinson to pay costs cannot be upheld as an exercise of the trial court’s contempt power.

2. An alternative basis for holding an attorney personally liable for litigation expenses is OCGA § 9-15-14. Allstate Ins. Co. v. Reynolds, 210 Ga. App. 318 (436 SE2d 56) (1993).

Under that Code section, litigation expenses “may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action.” OCGA § 9-15-14 (e). Under certain circumstances, the trial court may move on its own to impose sanctions under OCGA § 9-15-14. Cagle v. Davis, 236 Ga. App. 657, 659 (2) (513 SE2d 16) (1999). In this case, the truncated record before us shows that the juvenile court entered the order making Dickinson liable for the guardian ad litem fee after it had transferred the case back to the Walton County Superior Court pursuant to OCGA § 15-11-30.1 and Uniform Juvenile Court Rule 5.2. Therefore, we must conclude the juvenile court lacked jurisdiction to impose new sanctions under OCGA § 9-15-14.

Decided July 19, 2001.

Dickinson, Mixson & Willis, David F. Dickinson, for appellants.

Rosemary S. Armstrong, for appellee.

Further, we conclude OCGA § 9-15-14 sanctions against Dickinson were not authorized under the facts presented. Subsection (a) provides for attorney fees when a party asserts a position for which there is “a complete absence of any justiciable issue of law or fact”; subsection (b) provides for an award when a party’s position lacks substantial justification. Fulton County Bd. of Tax Assessors v. Boyajian, 271 Ga. 881 (2) (525 SE2d 687) (2000).

As noted above, the only reason the trial court gave for assessing the guardian ad litem fee against Dickinson as counsel was that he represented Segal in moving to have the guardian appointed. The record in this case is devoid of any indication that the trial court concluded at any time that there was “a complete absence of any justiciable issue of law or fact” underlying the motion to appoint a guardian ad litem, or that the motion lacked substantial justification — indeed, the order granting Segal’s motion for appointment of a guardian ad litem inherently represents a determination that the motion was meritorious.

The record raises the inference that the trial court held the attorney liable for the fee because his client refused to pay. OCGA § 9-15-14 provides no authority for an award of court costs against an attorney on this basis. Accordingly, the order directing Dickinson to pay costs cannot be upheld under OCGA § 9-15-14.

The record reveals no other basis for holding attorney Dickinson personally liable for court costs incurred on behalf of his client. See generally Annotation, Attorney’s Personal Liability for Expenses Incurred in Relation to Services for Client, 66 ALR4th 256. Accordingly, the trial court’s order entered October 9, 2000, must be vacated as to Dickinson.

Judgment affirmed in part and vacated in part.

Johnson, P. J., and Ruffin, J., concur.

       See In re Connell, 217 Ga. App. 523 (457 SE2d 832) (1995) (guardian ad litem fee is in the nature of court costs, not litigation expenses).

       No argument in the brief addressed any basis for reversing the award against Segal. Any such argument is, therefore, deemed abandoned. Court of Appeals Rule 27 (c) (2).

       The juvenile court later entered an order “to correct certain scrivener’s errors” in the final order.

       We note that the trial court gave notice via the rule nisi, conducted a hearing, and allowed Dickinson an opportunity to be heard and present his arguments. Accordingly, he was not denied due process. Cobb County School Dist. v. Barker, 271 Ga. 35, 37 (518 SE2d 126) (1999).


author: Phipps, Judge.

text:
    A01A1489.
    MAHSA, INC. et al. v. AL-MADINAH PETROLEUM, INC. et al.
    (552 SE2d 876)
   Phipps, Judge.

This is a continuation of Al-Madinah Petroleum v. Mahsa, Inc. Mahsa, Inc. and its president, Hassanzadeh, sued Al-Madinah Petroleum, Inc. and its president, Dhanani, for rescission of a lease between Mahsa as tenant and Al-Madinah as landlord. After the leased premises were substantially damaged by a tornado during the pendency of the suit, Al-Madinah sought by counterclaim to recover o damages based on Mahsa’s noncompliance with a lease provision requiring it to procure and maintain casualty insurance on the property. The trial court granted summary judgment to Mahsa on the counterclaim. In the prior appeal, we reversed. On remand, the trial court awarded summary judgment to Al-Madinah on the counterclaim. We again reverse.

In August 1997, Al-Madinah leased a gas station/convenience store to Mahsa. Article 20 of the lease required Mahsa to procure and maintain various types of insurance, including policies insuring AlMadinah’s real property and Mahsa’s personal property against casualty loss. If Mahsa did not procure the requisite policies, Article 20 authorized Al-Madinah to obtain the insurance and require payment of the premiums by Mahsa as additional rent. Article 20 farther provided that executed copies or original certificates of all policies of insurance procured and maintained by Mahsa or Al-Madinah were to be delivered to the other party at the commencement of the lease.

In our prior decision, we noted

that Mahsa did not purchase the required [real property] insurance, that Al-Madinah did procure an insurance policy listing the leased premises on its schedule of locations, that the insurer denied Al-Madinah’s claim for damages caused by the tornado on the ground that the leased premises were not covered by the policy at the time of the tornado, and that a resulting [federal] lawsuit by Al-Madinah against the insurer [was then] pending.

In the prior appeal, Al-Madinah asserted

that it did not procure this policy in lieu of the insurance which Mahsa was obligated to obtain but simply made claim on the policy when it discovered that Mahsa had not insured the property against casualty loss. Mahsa [did] not dispute this assertion or otherwise claim that it failed to maintain the required insurance in reliance on actions taken by AlMadinah.

We held that Mahsa was not entitled to summary judgment on AlMadinah’s counterclaim because there was a genuine issue of material fact on the question of whether insurance coverage existed.

After this case was remanded to the trial court, however, Mahsa contested Al-Madinah’s assertion that its policy was not intended as a substitute for the insurance which Article 20 required Mahsa to obtain. And Mahsa argued that Al-Madinah waived, and is estopped to enforce, the requirement that Mahsa obtain casualty insurance.

Following remand, the court in the federal suit determined that, at the time of the tornado in April 1998, the subject property had been deleted from Al-Madinah’s insurance policy. Based on this determination, and on its finding that there is no evidence to support Mahsa’s claims of waiver and estoppel, the trial court in this action awarded summary judgment to Al-Madinah on its counterclaim. Because we do find evidence of waiver and estoppel, we reverse.

It is undisputed that at the commencement of the lease in August 1997, Al-Madinah had an insurance policy which insured various of its real properties against casualty loss and that it added the property leased to Mahsa to the policy’s schedule of locations. In September, however, the property leased to Mahsa was deleted from the policy at the request of Al-Madinah’s insurance agency. In the .federal suit, Dhanani made a declaration under oath that he had no recollection of deleting the real property coverage from the policy, although he did recall discussing a deletion of personal property insurance coverage with the agency because the property had been leased to Mahsa. Also in the federal suit, Al-Madinah unsuccessfully argued that the insurer’s deletion of real property coverage was ineffective because the insurer had not complied with Georgia statutory procedures for cancellation of insurance.

On remand in this case, Hassanzadeh, who required the assistance of an interpreter in negotiating and executing the lease, testified by affidavit that Dhanani represented to him that Al-Madinah was insuring its real property interest, that it was his understanding that he was supposed to insure only his own personal property against loss, and that he obtained a policy providing personal property coverage from State Farm. Both Hassanzadeh and his inter-prefer testified that no insurance policies or certificates were exchanged between the parties at the signing of the lease.

Decided July 19, 2001

David C. Farshy, for appellants.

Higgins & Aubner, Michael W. Higgins, for appellees.

The record does show, however, that in December 1997 AlMadinah’s attorney sent Mahsa a letter requesting proof of all insurance coverages required by Article 20 of the lease. Mahsa responded with a letter from its attorney stating that the required policy had been obtained from Hassanzadeh’s State Farm agent, to whom AlMadinah’s counsel was referred. Hassanzadeh testified that AlMadinah and Dhanani did not pursue the matter further until after the tornado. According to Hassanzadeh, any rental payments owed by Mahsa to Al-Madinah as reimbursement for the premiums on its policy were not due until after the tornado.

Under the present evidentiary posture of the case, a jury could find that Al-Madinah decided to purchase real property casualty insurance on its own, and that Mahsa’s failure to procure such insurance was attributable to representations by Dhanani that AlMadinah was providing its own coverage and to Al-Madinah’s failure to enforce the lease requirement that Mahsa obtain such coverage. Whether Al-Madinah waived the requirement that Mahsa obtain real property casualty insurance, or is estopped to enforce this requirement, is thus for a jury to decide.

Although Article 33 of the parties’ lease provides in part that no provision of the lease shall be deemed to have been waived absent a written waiver signed by the landlord, Article 33 further states that failure of the landlord to insist upon the strict performance of any provision shall not be construed as a waiver “for the future of” any such provision. Because the lease is thus ambiguous about whether past performance could be waived by the landlord’s failure to insist upon performance, the question of waiver is for a jury to decide.

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

       242 Ga. App. 570 (529 SE2d 662) (2000).

       Id. at 572 (2).

       Id. at 572-573 (2).

       Id. at 573 (2).

       See generally Allstate Financial Corp. v. Dundee Mills, 800 F2d 1073 (11th Cir. 1986) (waiver); Horne v. Exum, 204 Ga. App. 337, 338 (419 SE2d 147) (1992) (estoppel); City of Albany v. Mitchell, 81 Ga. App. 408, 411 (1) (59 SE2d 37) (1950) (jury question).

       See generally Markowitz v. Wieland, 243 Ga. App. 151, 156 (3) (532 SE2d 705) (2000) (ambiguity in contract language presents jury question).


text:
    A01A1376.
    CARDENAS v. LIMON.
    (552 SE2d 884)
   Phipps, Judge.

The question in this case is whether the superior court has jurisdiction to hear a direct appeal from a magistrate court’s denial of a motion to set aside a default judgment. The answer lies in the plain language of OCGA § 15-10-41 (b) (2) prohibiting such appeals.

David Limón sued Leopoldo Cardenas in Polk County Magistrate Court. The magistrate entered a default judgment against Cardenas after he failed to appear for the hearing. Cardenas filed motions to set aside the judgment and to open the default judgment, arguing that he had not received notice of the hearing. The magistrate denied both motions. Cardenas then appealed to the Polk County Superior Court, which dismissed the appeal for lack of jurisdiction on the ground that the proper route of appeal was by certiorari. We granted Cardenas’s application for discretionary appeal of the superior court’s ruling.

Under Title 15 of the Georgia Code, which governs civil proceedings in magistrate court, judgments of the magistrate court generally may be directly appealed to the state court or superior court. However, OCGA § 15-10-41 (b) (2) provides that “[n]o appeal shall lie from a default judgment. Review shall be by certiorari to the state court of that county or to the superior court of that county.” In this case, Cardenas did not apply for a writ of certiorari to the superior court; instead, he filed a direct appeal. Thus, the superior court properly dismissed his appeal for lack of jurisdiction.

Cardenas argues that he was appealing not from the default judgment, but from the magistrate’s denial of his motion to set aside the default judgment. Cardenas points to OCGA § 15-10-43 (g), which provides that

the magistrate court may grant relief from a judgment under the same circumstances as the state court may grant such relief. Requests for relief from judgments in the magistrate court shall be by filing a new action pursuant to this Code section. The procedure shall then be the same as in other cases except the court may assess costs as seem just.

According to Cardenas, because a motion to set aside a magistrate court judgment is a new action, the magistrate court’s ruling on that motion should be directly appealable to the superior court.

Decided July 20, 2001.

C. Troy Crouse, for appellant.

Jeffrey S. Denny, for appellee.

However, Cardenas did not file a new action challenging the default judgment, as contemplated by OCGA § 15-10-43 (g). Instead, he filed two motions to set aside the judgment, using the same case number as the original action. Thus, assuming § 15-10-43 (g) permits direct appeals in new actions seeking relief from default judgments, Cardenas did not follow the procedure set forth in that Code section. He is therefore bound by the provisions of OCGA § 15-10-41 (b) (2).

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       OCGA § 15-10-41 (b) (1).

       Cardenas cites Mills v. Sam Duggan Leasing, 180 Ga. App. 299 (349 SE2d 3) (1986), in which the defaulting party in magistrate court apparently obtained superior court review of the default judgment via direct appeal. However, we dismissed that appeal and did not address the propriety of the procedure below. Cardenas also cites Davalos v. Perdue, 215 Ga. App. 27, 28 (449 SE2d 861) (1994), but there the defaulting party “attempted to set aside the default judgment, and when that was unavailing, she petitioned the superior court for a writ of certiorari.” Once again, we did not pass upon the correctness of that procedure.


author: Smith, Presiding Judge.

text:
    A01A0960.
    BUTTS v. THE STATE.
    (552 SE2d 888)
   Smith, Presiding Judge.

Gary Orlando Butts was convicted by a DeKalb County jury of one count of armed robbery by use of a replica, article, or device having the appearance of an offensive weapon. OCGA § 16-8-41 (a). His amended motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Butts first contends the trial court erred in allowing evidence of the circumstances of his arrest. Construed in favor of the jury’s verdict, the evidence showed that Butts took the victim’s keys and sport utility vehicle from her by threatening her with an object that appeared to be a revolver, then drove “screeching” away. The following afternoon, an officer answering an unrelated call pulled in behind a sport utility vehicle on Interstate 20 and followed it up an exit ramp to a nearby subdivision. The driver, later revealed to be Butts, suddenly applied his brakes, then threw the vehicle in reverse, causing the officer to back up. When the officer started backing up, Butts jammed the vehicle into gear, spinning the tires, and “took off.” Surprised by this conduct, the officer activated his emergency lights and siren and pursued the vehicle. Butts drove toward the scene of the officer’s unrelated call, and when the officers already on the scene attempted to stop him, he “jerked” the vehicle “over at the officers.” Butts then drove across a driveway and yard and jumped a ditch to get out of the subdivision, drove in a reckless manner back toward the interstate, and traveled along the interstate at speeds between 100 and 125 mph. He eventually attempted to exit the interstate, hit another vehicle, became airborne, and flipped down a 15-foot embankment. Butts fled on foot but was apprehended nearby. Questioned by the police after receiving his Miranda warnings, he acknowledged having taken the car from the victim, but denied having a gun. Butts contends that this evidence showed “an independent incident possibly involving criminal behavior not related to the crime for which the appellant is on trial” and that it occurred too long after the crime.

[T]he admission of evidence which shows the commission of another crime may not automatically be admitted solely on the basis that the evidence was incident to an accused’s arrest where the evidence is wholly unrelated to the charged crime, the arrest is remote in time from the charged crime, and the evidence is not otherwise shown to be relevant. Just as evidence of the circumstances connected with an accused’s arrest is not automatically prejudicial neither is it automatically relevant. Rather, such evidence is subject to the same standard of relevancy and materiality applicable to other evidence. Thus, the admission or exclusion of this evidence lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.

(Citations and punctuation omitted!) Benford v. State, 272 Ga. 348, 350 (3) (528 SE2d 795) (2000).

Applying this standard, the testimony was clearly relevant and material in several respects. Butts’s possession of the stolen vehicle was highly relevant to the State’s case. Davis v. State, 272 Ga. 327, 333-334 (7) (528 SE2d 800) (2000) (possession of murder weapon at time of arrest). Moreover, Butts’s conduct in fleeing a police officer who made no attempt to stop him showed consciousness of guilt. Shaheed v. State, 245 Ga. App. 754-755 (1) (538 SE2d 823) (2000). Our courts and others have long recognized that “ ‘[t]he wicked flee when no man pursueth.’ [Cit.]” Rogers v. State, 80 Ga. App. 585, 591 (5) (56 SE2d 633) (1949). The lapse of less than 24 hours does not render an incident too remote in time from the arrest. Nealy v. State, 246 Ga. App. 752, 753 (1) (542 SE2d 521) (2000) (shootout 26 days earlier not remote in time). Because the evidence was highly relevant to the State’s case, some testimony regarding other circumstances of this arrest was not error, even though it may have incidentally placed Butts’s character in issue. Davis, supra at 334 (7). The trial court did not abuse its discretion in admitting evidence of the circumstances of Butts’s arrest.

Decided July 23, 2001.

William T. Hankins III, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Ingrid Skid-more, Assistant District Attorneys, for appellee.

2. In his second enumeration of error, Butts contends that the trial court failed to instruct the jury that it could consider the lesser included offenses of robbery and theft by taking with respect to Count 2 of the indictment. It is true that the trial court initially instructed the jury on the lesser included offenses only with respect to Count 1. But upon subsequent questioning by the jury, the trial court explicitly pointed out the omission, stating, “The robbery by intimidation is a lesser-included offense of both count 1 and count 2.1 just put it in count 1 to make it easier for you. . . . And, of course, I also charged you on the lesser included offense of theft by taking, which is also a lesser-included offense.” Upon further questioning from a juror, “So it is an either/or, count 1 or count 2?” the trial court elaborated, “Yes. But the lesser-includeds would be included in both.” Therefore, assuming without deciding that the original charge may have been inaccurate or incomplete, “the subsequent recharge clarified the issue and corrected any error. [Cit.]” Howard v. State, 177 Ga. App. 589, 590 (3) (340 SE2d 212) (1986). See also Williams v. State, 224 Ga. App. 368, 371 (6) (481 SE2d 535) (1997); Johnson v. State, 187 Ga. App. 803 (2) (371 SE2d 419) (1988).

Judgment affirmed.

Barnes and Phipps, JJ., concur.


text:
    A01A1097.
    BROWN v. THE STATE.
    (552 SE2d 886)
   Phipps, Judge.

With the advice of counsel, Warren Brown entered a negotiated plea of guilty to charges of voluntary manslaughter and aggravated assault with intent to rob. After conducting a hearing, the trial court accepted the plea and sentenced Brown to serve eight years on each charge, with the sentences to run concurrently. Brown later filed a pro se motion to withdraw his guilty plea in which he claimed that his counsel was ineffective, that the plea was not entered voluntarily and knowingly and that newly discovered evidence warranted the withdrawal. At the hearing on his motion to withdraw, Brown’s new counsel proceeded on only the latter two grounds. The trial court denied the motion, and Brown appeals. Finding no abuse of discretion, we affirm.

At the plea hearing, the State informed the court that it expected the evidence to show that Brown and Antonio Cost drove to a particular location to rob drug dealers. Cost then exited the car and returned with a drug dealer. Shots were fired, and Ronell Madison was shot to death. While the shooting continued, Brown and Cost drove away and wrecked their car. Both were seen running from the car with the victim’s blood on them.

Before Brown entered his plea, Cost pled guilty to voluntary manslaughter. Cost never agreed to testify or told anyone that he had agreed to testify against Brown as part of his plea agreement. At the hearing on Brown’s motion to withdraw his plea, Cost claimed that he would have testified in Brown’s behalf. Cost’s testimony would have been that Brown was not involved in the crime and that Brown did not encourage him, help him, supply the gun for his use or help him flee.

1. Brown claims that his guilty plea was not knowingly, voluntarily and intelligently entered, as required by Boykin v. Alabama, because he was unaware that Cost would have testified in his behalf at trial.

Relying on Byrd v. Owen, Brown argues that his plea could not have been knowingly and intelligently entered because he was not aware of all of the evidence. In Byrd, the State failed to disclose an immunity agreement with its main trial witness and failed to correct false testimony by the witness about his “deal” with the State, effectively denying the defendant his due process rights.

That is not the situation here. Brown does not claim that the State withheld Cost’s testimony but only that he did not know about it because he and Cost were separated prior to entering their pleas. But Brown surely knew of his co-defendant and of his knowledge at the time he entered his plea. The fact that he did not realize that Cost would testify on his behalf does not make his otherwise valid plea unknowing or involuntary.

2. Brown argues that, because of the newly discovered evidence that Cost would testify in his behalf, the trial court should have allowed him to withdraw his plea and proceed to trial.

Decided July 23, 2001.

Zell & Zell, Rodney S. Zell, for appellant.

To receive a new trial on the basis of newly discovered evidence, a defendant must meet all of six requirements:

(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.

Failure to satisfy the court on one of these requirements is sufficient cause to deny a motion for new trial.

Here, the trial court held that Cost’s testimony was not newly discovered evidence because it could have been found with due diligence. The court noted that Cost and Brown were charged on the same indictment, a clear indication that Cost was someone with whom Brown or his attorney should speak. The court also noted that Brown and his attorney knew that Cost was in the Fulton County Jail.

Although Brown argues that he and Cost were separated at the jail and that he could not speak to Cost because Cost was represented by an attorney, we agree with the trial court that the evidence could have been discovered with reasonable diligence. Brown’s attorney could have contacted Cost’s attorney to find out if Cost intended to testify and if he was willing to testify on Brown’s behalf. Moreover, “[w]hen a co-defendant who [would have been] available to testify at trial offers to exculpate the defendant after the co-defendant has removed himself from further jeopardy, the evidence does not qualify as ‘newly discovered.’ ” The trial court did not abuse its discretion by denying Brown’s motion.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Paul L. Howard, Jr., District Attorney, Anna E. Green, Assistant District Attorney, for appellee.

       395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969).

       272 Ga. 807 (536 SE2d 736) (2000).

       Id. at 809-812 (1).

        See Amos v. State, 161 Ga. App. 281, 283 (3) (287 SE2d 743) (1982).

       Although not challenged by Brown, it appears from the transcript of the plea hearing that the trial court complied with the requirements of Uniform Superior Court Rule 33 before accepting Brown’s guilty plea.

       See Morgan v. State, 191 Ga. App. 367, 368-369 (3) (381 SE2d 583) (1989) (“[t]he rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision”) (citations omitted).

       (Citations and punctuation omitted.) Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980).

       Id.

       (Citation omitted.) Straite v. State, 238 Ga. App. 420, 424 (3) (518 SE2d 914) (1999).


author: Pope, Presiding Judge.

text:
    A01A0196.
    JEKYLL ISLAND STATE PARK AUTHORITY v. MACHURICK.
    (552 SE2d 94)
   Pope, Presiding Judge.

On August 4, 1996, Kimberly Machurick paid admission to “Summer Waves” Amusement Park, operated by the Jekyll Island State Park Authority. Before riding a water slide called the “Pirate’s Passage,” Machurick watched other Park patrons use the ride, entering at the top and exiting at the bottom into water. She described the slide as a black enclosed tube about two stories high that goes at a very steep angle, nearly straight down, with two bumps in the middle. Machurick recalled her first trip down the slide, accompanied by a friend on a double-seated inner tube, as a bumpy, fast, and fun ride. But on her second descent, also with a friend, her body became airborne and her head hit the top of the slide after she passed over the first bump. At the second bump, she fell completely off the inner tube and preceded it into the water below.

Machurick sued the Park for the injuries she sustained on the water slide, and the Park moved for summary judgment. The trial court denied the motion, and after the trial court certified its order for immediate review, we granted the Park’s application for interlocutory appeal.

1. The Park asserts that the trial court erred in denying its motion for summary judgment because Machurick’s claims are barred under the doctrine of assumption of risk. We agree.

A finding that Machurick assumed the risks attendant to riding the water slide would bar her recovery against the Park: “The affirmative defense of assumption of the risk bars recovery when it is established that a plaintiff, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” (Punctuation and footnote omitted.) Muldovan v. McEachern, 271 Ga. 805, 807 (2) (523 SE2d 566) (1999). In order to prove this defense, the Park was required to establish that Machurick “(1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed [herself] to those risks.” (Footnote omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996). The issue of assumption of risk is not ordinarily susceptible of summary adjudication. But in cases where plain, palpable, and indisputable evidence demonstrates that the plaintiff assumed the risk of her injuries, summary judgment is appropriate. Goodman v. City of Smyrna, 230 Ga. App. 630, 631 (497 SE2d 372) (1998).

Georgia courts have addressed the issue of assumption of risk in connection with amusement park rides on a number of occasions and have held that a person who uses such rides assumes the risk of injury arising “as a result of the natural and obvious hazards necessary to the purpose of the device.” (Citation and punctuation omitted.) Abee v. Stone Mountain Mem. Assn., 252 Ga. 465 (314 SE2d 444) (1984).

In Atlanta Funtown v. Crouch, 114 Ga. App. 702 (152 SE2d 583) (1966), for example, a plaintiff sued for injuries she sustained on a roller coaster, claiming that defendant negligently operated the ride at an unreasonable speed. This Court reversed the trial court’s denial of the defendant’s motion for summary judgment, holding that the plaintiff assumed the risk of the ride’s speed after she observed the roller coaster’s speed before she rode it. Id. at 712. The danger was apparent from the fact that “[t]he forces generated by the changes of speed and direction were not obscure dangers but were ordinary, necessary and inherent in the device itself and were part of the thrill bargained for.” Id. at 712-713 (3).

And in Abee v. Stone Mountain Mem. Assn., 169 Ga. App. 167 (312 SE2d 142) (1983), a minor child, on his third descent down a water slide, flipped over as he went around a curve and injured his mouth. This Court affirmed the trial court’s grant of the defendant’s summary judgment motion on the ground of assumption of risk. We found that the child understood the “natural and obvious hazard necessary to the purpose of the slide coupled with the operation of gravity. . . .” Id. at 170 (1). The Supreme Court affirmed that decision, holding that, given the obviousness of the danger, the plaintiff assumed the risk. Abee v. Stone Mountain Mem. Assn., 252 Ga. at 465-466.

Similarly, in Marley v. Silver Dollar City, 198 Ga. App. 44 (400 SE2d 337) (1990), a woman decided to ride the “Bonzai Pipeline,” a ride apparently very similar to the Pirate’s Passage in this case, after watching several persons enter and exit the ride. She was injured when she landed in the exit pool upside down. The trial court granted summary judgment to the park. We affirmed, holding that under Atlanta Funtown, she assumed the risk of her injuries. Marley, 198 Ga. App. at 45.

Here, Machurick also had actual knowledge of the danger inherent in the ride. She watched patrons ride the slide just like the plaintiffs in Atlanta Funtown and Marley, and even experienced the ride shortly before her injury, like the plaintiff in Abee. Also, the danger here, just as in Atlanta Funtown, was not obscure. Plaintiff understood the forces of gravity and water flow that propelled patrons down the slide. And plaintiff understood that the ride contained two bumps that were significant enough to cause the rider’s inner tube “to catch a little air” and that going over the bumps in the slide “makes your stomach go in your throat.” She also knew from firsthand experience that she would not be strapped to the inner tube while on the ride.

Decided July 3, 2001

Reconsideration denied July 24, 2001

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Brenda A. Raspberry, Assistant Attorney General, for appellant.

Walter D. Adams, for appellee.

With this knowledge and experience, Machurick voluntarily boarded the slide and exposed herself to the risks of riding a rubber inner tube over bumps designed to cause the craft to go at least slightly airborne inside a dark, enclosed tube, while at the same time being propelled swiftly downward by water and the forces of gravity. A natural and obvious hazard inherent in this kind of ride is that the rider may be bounced on the inner tube as it proceeds over the bumps and that some part of the rider’s body, such as the head, may come in contact with the outer tube. We hold that the danger that Machurick would receive the injuries she did was “necessary and inherent in the device itself and . . . part of the thrill bargained for.” Atlanta Funtown, 114 Ga. App. at 712-713 (3). Accordingly, the trial court should have granted the Park’s motion for summary judgment.

2. In light of our holding in Division 1, we need not reach the Park’s remaining enumerations of error.

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.


text:
    A01A0541.
    SOUTHERN EXPOSITION MANAGEMENT COMPANY v. GENMAR INDUSTRIES, INC.
    (551 SE2d 830)
   Phipps, Judge.

Southern Exposition Management Company (SEMCO) appeals the dismissal of Genmar Industries, Inc. d/b/a Wellcraft (Genmar) from a lawsuit predicated on an alleged agency relationship between the companies. For the reasons that follow, we reverse.

SEMCO, owner and operator of the 1992 Atlanta Boat Show, sued Genmar, manufacturer of Wellcraft boats, as well as University Auto Sales, Inc. and its chief operating officer, Jack Davis. SEMCO alleged that it acted as Genmar’s agent in removing from the boat show certain Wellcraft boats that University, an Alabama retailer of Wellcraft boats, was displaying. It sought a declaratory judgment as to its rights and legal relations with the other parties, as well as indemnification, damages, attorney fees, and costs and expenses of litigation that it incurred because of a then pending Alabama lawsuit against it by University for removing the boats. The claims for indemnification and damages have been removed because the subsequent Alabama judgment was overturned by the Alabama Supreme Court. However, the issues of attorney fees and costs and expenses of litigation remain.

Genmar moved to dismiss on the grounds that no agency relationship existed between it and SEMCO. In response, SEMCO filed an affidavit from Genmar’s former Southeast regional sales manager, claiming his testimony provided evidence of an agency relationship between SEMCO and Genmar. After a hearing and consideration of the entire record, the trial court granted Genmar’s motion, determining that “the record does not support a finding that Genmar and SEMCO intended to form an agency relationship, that Genmar retained control of how SEMCO would act, or that Genmar consented to such relationship.” SEMCO appeals that ruling.

Because matters outside the pleadings, including an affidavit that SEMCO filed and material from the Alabama lawsuit, were presented to and not excluded by the trial court in disposing of the motion to dismiss, the motion was converted into a motion for summary judgment. On appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in con-eluding that the moving party demonstrated that no genuine issue of material fact remained and that the party was entitled to judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If the defendant discharges this burden, the plaintiff cannot rest on its pleadings, but rather, must point to specific evidence giving rise to a triable issue. We view the evidence, and all reasonable conclusions and inferences drawn from it, de novo and in the light most favorable to the nonmovant.

The record shows that SEMCO contracted to provide display space to two retailers who displayed Wellcraft boats — University and a Georgia retailer. Genmar, however, had previously given the Georgia retailer an exclusive distributorship contract in the Atlanta area, which also entitled it to an exclusive display of Wellcraft boats at the boat show. When Genmar’s sales manager, whose territory comprised South Carolina, North Carolina, Georgia, and Florida, but not Alabama, discovered this state of affairs, he asked University to remove its Wellcraft boats from the floor. University refused, claiming it was authorized to display them. Ultimately, SEMCO employees, assisted by a University employee, physically removed the boats from the display floor.

SEMCO contends that genuine issues of material fact exist whether an agency relationship existed between it and Genmar. “The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” “Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” The existence of agency and the extent of the agent’s authority are questions of fact.

A claim of agency may be proved, as any other fact, by circumstantial evidence. The fact of agency may be established by proof of circumstances, apparent relations, and the conduct of the parties. Direct evidence of an agency relationship is not required. The threshold for showing agency in this context is low, and even scant factual support may suffice.

SEMCO points to the affidavit of the Genmar sales manager, which outlined the sequence of events that led to SEMCO’s removal of the boats. He averred that he was instructed by his “boss” to help University remove the boats from the display floor, but that he was without sufficient man power and equipment to do so. He repeatedly “requested that the show producer, Semco, remove [the] Wellcraft boats from the show floor on the behalf of Wellcraft. . . .’’It is undisputed that SEMCO removed them with assistance from a University employee.

Genmar, however, argues there is no evidence that the parties consented “to enter into an agency relation,” that it retained control over SEMCO’s actions, that the sales manager had the authority to act on Genmar’s behalf, or that SEMCO had a duty of undivided loyalty. It claims that SEMCO acted in its own self-interest in removing the boats, pointing to deposition testimony in the Alabama lawsuit where a SEMCO corporate representative stated that he did not realize that University had the Wellcraft boats there until the Genmar sales representative complained and insisted that he remove the “extra” display. SEMCO’s corporate representative confirmed that University had not listed such boats in its display contract with SEMCO, and based on that, he believed that he could resolve the problem.

Here, the evidence presents a jury question whether SEMCO was acting as Genmar’s agent. Because the sales mánager had been instructed to remove the boats from the display floor but lacked the equipment to do so, he procured SEMCO to perform that task. We find that the circumstantial evidence is sufficient to raise an issue of material fact whether an agency relationship existed between SEMCO and Genmar; thus, it was error for the trial court to grant Genmar summary judgment on this issue.

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

Decided July 5, 2001

Reconsideration denied July 24, 2001

Zell & Zell, Glenn Zell, Norman G. Johnson, for appellant.

King & Spalding, Chilton D. Varner, Daniel A. Hillman, for appellee.

       Jack Davis and University Auto Sales, Inc. are not parties to this appeal.

        Southern Exposition Mgmt. Co. v. Univ. Auto Sales, 740 S2d 992 (Ala. 1998).

       In 1994, University and Davis sued SEMCO and Genmar in Alabama. Genmar settled before trial, and a jury rendered a verdict against SEMCO for $600,000. While the Alabama lawsuit was pending, SEMCO filed the instant lawsuit against University, Davis, and Genmar, initially serving only University and Davis. SEMCO obtained default judgments against those two defendants for $600,000 for the judgment entered in the Alabama case, plus $140,617.69 for its litigation expenses in that action. After those defendants filed a notice of appeal, SEMCO then served Genmar. In Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773 (503 SE2d 649) (1998), this court reversed the $600,000 judgment because SEMCO had not paid the judgment, id. at 775 (2), that was by then on appeal in Alabama. This court also vacated the $140,617.69 award of attorney fees because the actual costs incurred and the reasonableness of those costs had not been proved. Id. at 776-777 (5). We remanded the case for a determination of the appropriate amount of indemnification and attorney fees award. Id. at 777. Then, the Alabama Supreme Court reversed the Alabama judgment, leaving no judgment against SEMCO. Subsequently, on remand, the Georgia trial court vacated its $600,000 judgment, but left open the determination of attorney fees. SEMCO continues to seek attorney fees.

       OCGA § 9-11-12 (b); Bays v. River Oaks Constr., 244 Ga. App. 401, 402 (1) (535 SE2d 543) (2000).

       OCGA § 9-11-56 (c).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Dept. of Transp. v. Cox, 246 Ga. App. 221, 222 (540 SE2d 218) (2000).

       Id.

       The Georgia retailer is not a party in this case.

       OCGA § 10-6-1.

       (Citations and punctuation omitted.) First Nat. Bank &c. v. Alvin Worley & Sons, Inc., 221 Ga. App. 820-821 (2) (472 SE2d 568) (1996).

        Gulf Winds v. First Union Bank, 187 Ga. App. 383, 385 (1) (370 SE2d 508) (1988).

       (Citations and punctuation omitted.) Nissan Motor Acceptance Corp. v. Stovall Nissan, 224 Ga. App. 295, 298 (1) (480 SE2d 322) (1997).

       See Lindsey v. Fitzgerald, 157 Ga. App. 124, 125 (2) (276 SE2d 275) (1981) (“if the owner of a vehicle expressly procures another to do something solely for the owner’s benefit, an agency relationship exists, regardless of whether the direction is couched as a request or as a demand, and regardless of whether the agent receives monetary compensation”) (citations and punctuation omitted).


text:
    A01A0587.
    LOPEZ v. WALKER.
    (551 SE2d 745)
   Smith, Presiding Judge.

Gwen Lopez appeals from the grant of a directed verdict to Lance Walker in Lopez’s action under OCGA § 44-9-59 to remove an obstruction placed by Walker on a private way traversing his property. She contends that a directed verdict was improper because material issues of fact existed and that the trial court erred in excluding evidence showing a dedicated road easement over Walker’s property. Although conflicts existed in the evidence, we find that none was material and that the evidence in question was properly excluded. We therefore affirm the judgment below.

The record shows that Walker, a Fulton County resident, and Lopez, a resident of Bartow County, both owned property in the same undeveloped subdivision in rural Gilmer County. Lopez bought her property in July 1989. The property was used only several weekends a month for camping, and it was accessed by the dirt road in issue. New people resided in the subdivision, but one who did was Lloyd Gaddis, who also maintained the dirt road. Lopez and her father testified that until 1993, they assisted Gaddis in maintaining the road, scraping and graveling it. In 1993, Gaddis informed them he was not going to maintain the road any more.

In September 1996, her father hauled a camper to the property, installed a septic tank, and began living there. Shortly thereafter, Walker started putting cables and heavy telephone pole logs across the road. He eventually chopped down trees and placed them across the road to obstruct it.

Walker testified he was never aware that Lopez and her family were using the road. He gave Gaddis permission to use the road but withdrew that permission in 1990 or 1991. Walker claimed he closed the road in 1991, dropping a tree across it “[b]ecause of poachers, four-wheelers” coming on the road and that it has been closed “uninterruptedly since that time.” According to Walker, after that Gaddis did not maintain the road. He later strung the cables across the road to discourage strangers coming through to pan for gold, and later, in 1994, he dropped more trees across the road after a dispute with some other neighbors during hunting season. Lopez’s father, Howard Dodson, testified that he worked on maintaining the road with Gad-dis until 1993.

Lopez claimed she had acquired an easement in the road by prescription under OCGA § 44-9-54. She brought a petition in the Probate Court of Gilmer County under OCGA § 44-9-59 (a) to remove the obstructions from the road. The probate court directed that the obstructions be removed, and Walker appealed as a matter of right to the superior court, as provided in OCGA § 44-9-59 (b). At a de novo trial, the court granted a directed verdict in favor of Walker.

1. Lopez contends the trial court erred in directing a verdict in favor of Walker. We do not agree. OCGA § 44-9-54 provides: “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.” Prescriptive rights, however, must be strictly construed, and the prescriber must give notice, either actual or constructive, to the landowner. Keng v. Franklin, 267 Ga. 472 (480 SE2d 25) (1997).

To sustain a suit to enjoin the obstruction of an alleged private way, the right to which is based upon prescription by seven years user, it is essential that the applicant show not only that he has been in the uninterrupted use thereof for seven years or more, that it does not exceed 20 feet in width, and that it is the same 20 feet originally appropriated, but that he has kept it open and in repair during such period. If the prescriber fails to show any of these elements necessary to establish prescriptive title, he cannot recover.

(Citations and punctuation omitted.) Eileen B. White & Assoc. v. Gunnells, 263 Ga. 360 (434 SE2d 477) (1993). The purpose of showing repairs is actually to show “notice to the landowner that the prescriber’s use is adverse, rather than permissive. [Cit.]” Jackson v. Stone, 210 Ga. App. 465, 468 (436 SE2d 673) (1993).

Here, the evidence presented at trial showed that Lopez failed to demonstrate either that she and her family kept the private way open and in repair for at least seven years or that she gave notice to Walker of her prescriptive use. Even taking the testimony of Lopez and her father to be true regarding the length of time the road was open and they assisted in keeping it in repair, no evidence exists of prescriptive use for the required seven years. Since it is uncontroverted that Gaddis had permission from Walker to maintain the road and that Lopez’s husband and her father merely assisted Gaddis, their use was permissive as well, rather than adverse. “A private way may not be acquired by prescription where use of the private way is with the owner’s permission until an adverse claim is made and actual notice is given to the owner or party in possession.” (Citations and punctuation omitted.) Douglas v. Knox, 232 Ga. App. 551, 552 (2) (502 SE2d 490) (1998). “[T]he notice required is notice of the assertion of an adverse use, under claim of right, as distinguished from a mere permissive use.” (Citation omitted; emphasis in original.) Id. at 553. Moreover, actual notice is required, and even taking as true Lopez’s father’s testimony that he was using the road as late as 1996, notwithstanding Walker’s testimony that he had obstructed it, Walker testified that he did not know of this use. Because the evidence showed that Lopez could not establish several of the necessary elements for a prescriptive easement, the trial court did not err in granting a directed verdict in favor of Walker.

2. Lopez also contends the trial court erred in excluding from evidence certain deeds and plats showing the subdivision lots the road traversed. These deeds showed a dedicated easement. Actually, however, the survey plat, with certain redactions, was admitted into evidence for limited purposes. Lopez argues that the deeds should have been admitted notwithstanding that they showed a dedicated easement, because she intended to use them only to show that Walker believed that the road was not subject to the claims of others, an issue separate and distinct from that of whether a dedicated easement existed. We find this to be a distinction without a difference. Revealing documents to the jury that included express easements would certainly have confused the issue before them: whether Lopez had acquired an easement by prescription. Any trial of the issue presented by the deeds must be in Fulton County.

It is clear that Lopez brought this action under OCGA § 44-9-59 and the basis for her action is an easement by prescription. For that reason the action was within the jurisdiction of the Gilmer County courts. Jurisdiction of an action against Walker based upon a deeded easement would have been in Fulton County, where Walker resided. While Walker was obligated to respond to the action in Gilmer County, he did not waive his constitutional right under Ga. Const, of 1983, Art. VI, Sec. II, Par. Ill, to have an equitable action against him to enforce an express easement brought in the county in which he resides. Because the language on the deeds would have injected prejudicial and irrelevant material into this trial involving only a prescriptive easement, the trial court did not abuse its discretion in refusing to allow the deeds to be admitted into evidence and in redacting the plats. The trial court did not abuse its discretion in excluding the deeds from evidence.

Decided July 2, 2001

Reconsideration denied July 24, 2001

Clifford S. Lancey, for appellant.

Robbman S. Kiker, John P. Tucker, Jr., for appellee.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       Before trial, Walker moved to dismiss an amendment to the petition and also moved in limine to limit the admissible evidence to that “necessary to prove or disprove an established right of prescription brought under OCGA § 44-9-59.” The motion- to dismiss was granted.

       The Supreme Court of Georgia has held that when one seeks equity assistance to perfect a title, Ga. Const, of 1983, Art. VI, Sec. II, Par. II does not apply. Schuehler v. Pait, 239 Ga. 520, 524 (2) (238 SE2d 65) (1977).


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    A01A0656.
    BURT v. DEPARTMENT OF TRANSPORTATION.
    (551 SE2d 409)
   Smith, Presiding Judge.

Hilliard Burt appeals from the grant of summary judgment to the defendant in the declaratory judgment action he brought against the Georgia Department of Transportation. Burt sought a declaration that the Department violated OCGA § 32-3-1 (c) (1) and that he had the right to repurchase land condemned by the Department in 1977 for a limited access highway and not used for that purpose. After the Department answered, cross-motions for summary judgment were filed, and the trial court granted that of the Department and denied that of Burt. In four enumerations of error, Burt argues that the trial court’s rulings were erroneous because the original taking was unlawful under OCGA § 32-3-1 (c) (1) and that he has the right under that statute to repurchase the land. We do not agree, and we affirm the trial court’s grant of summary judgment to the Department.

Burt and his now-deceased brother were the named condemnees in an action filed by the Department in 1977, in which a parcel of 21.544 acres near Albany was condemned for highway purposes. Judgment of condemnation was entered in 1979. Burt alleges that although the property was cleared almost immediately, no construction ever took place on the property. In 1986, Burt requested of the Georgia Attorney General that he be allowed to repurchase the property, and he was informed that the decision as to whether the property was no longer needed for public road purposes was completely within the discretion of the Department and no requirement existed that the Department dispose of any property.

In 1998, the Department advised Burt that 9.081 acres of the original parcel were being declared surplus and he could elect to repurchase this portion of the property for $566,650 within 60 days. Burt declined and requested arbitration. This lawsuit was filed in January 1998.

1. Burt alleges that the 1977 condemnation was unlawful because the Department had no plans for or need for the property at the time for any public highway; the condemnation was therefore a taking of his property for private, rather than public, purposes. In support of this claim, however, Burt merely points to the fact that the property lay undeveloped and unused for approximately 18 years.

The Department presented evidence that at the time of the original condemnation, the parcel in issue was taken for a project to extend a portion of the northern arc of the Albany bypass, from U. S. 19 to Dawson Road. The construction of the northern arc was completed, but the extension west and south never took place as planned. A former commissioner of Dougherty County gave an affidavit stating that he was familiar with the proposed project to complete a perimeter highway around Albany in the 1970s. The project was partially built but never completed. He explained that while funding was being sought to complete the project, extensive development, including the construction of many relatively expensive homes, occurred in the proposed corridor of the road. The project was reconsidered, and the decision was made that the costs of acquiring right-of-way and the anticipated upheaval that would be necessary to relocate residents outweighed the benefits of the extension.

In 1996, however, the Department planned, designed, and constructed a different project, the Liberty Expressway and Dawson Road interchange, and a portion of Burt’s property was used for this project. At the time Burt filed suit in January 1998, construction of the interchange project had begun. The portion not used was the 9.081 acres declared surplus by the Department, appraised, and offered to Burt.

Because the Department had an identified need for a portion of Burt’s property, it was permissible to condemn the entire tract, particularly since the tract was the first parcel in the proposed route of the extension, which the Department intended at the time of the taking to complete. OCGA § 32-3-1 (d), originally enacted in 1973, provides: "In the process of acquiring property or interests for any public road purpose, an entire lot, block, or tract of land may be acquired if by so doing the interest of the public will be best served.” Acquiring in one proceeding all the land the Department planned to use, thereby saving costs of appraising, negotiating, filing, and litigating separately, surely served the interest of the public.

Moreover, our Supreme Court has held that when the Department acquires land in fee simple and its original plans for the land then are abandoned, it is entitled to use that land for other purposes. Knight v. Dept. of Transp., 239 Ga. 368, 370 (2) (236 SE2d 826) (1977). The taking was therefore not unlawful notwithstanding that only a portion of the tract was used at the time.

2. Burt contends the Department violated OCGA § 32-3-1 (c) (1) when it did not begin construction on the property it condemned within ten years. We agree with the Department that OCGA § 32-3-1 (c) is not applicable here. The statute provides:

Property or interests shall not be acquired for “future public road purposes,” as that term is used in this Code section, unless . . . [Construction will be commenced on the property to be acquired within a period of not less than two years nor more than ten years following the end of the fiscal year in which the secretary of transportation of the United States approves an advance of all the necessary funds to the department for the acquisition of rights of way for such construction under authority of Title 23, Section 108, United States Code, as amended.

The Federal Highway Administration implemented 23 CFR §§ 712.701-712.703 to carry out the mandate of 23 USC § 108. Under these regulations, the right-of-way revolving fund was created, and the Georgia General Assembly authorized the Department to participate in this funding program by enacting OCGA § 32-3-1 (c). Projects receiving this type of funding are deemed “future public road projects” in the Georgia statute. The federal regulation requires that projects using these funds (“Q” funds) be initiated two to ten years following approval of the funds. 23 CFR § 712.702 (d). This requirement is tracked in the language of OCGA § 32-3-1 (c) (1). The federal program, which expired in June 1998, allowed for protection of future road corridors from increased acquisition costs due to development by permitting “advanced acquisitions” with 100 percent federal funding. OCGA § 32-3-1 (c) (1) was enacted to allow the Department to take advantage of this funding.

Burt’s property, however, was not acquired using “Q” funds. We are unaware of any provision of law, and the parties have cited none, requiring construction of a “present,” rather than a “future,” road project within ten years of acquiring the right-of-way. Because the Department did not use these special funds to acquire Burt’s property, OCGA § 32-3-1 (c) (1) did not apply, and the Department did not violate it. Summary judgment to the Department therefore was proper.

Decided July 2, 2001

Reconsideration denied July 24, 2001

Burt & Burt, Hilliard P. Burt, pro se.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Cathy Cox-Brakefield, R. O. Lerer, Senior Assistant Attorneys General, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       Later, in an amendment to the complaint filed along with his motion for summary judgment, Burt requested that the trial court declare that the original condemnation was unlawful because of “lack of need” and, in the alternative, that he has the right to repurchase the property through arbitration.


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    A01A0690.
    RICHARDS v. THE STATE.
    (552 SE2d 114)
   Blackburn, Chief Judge.

Following a jury trial, Rodney Richards appeals his convictions of kidnapping, rape, and aggravated assault. Richards contends that the trial court erred by (1) entering judgment on a verdict supported by insufficient evidence; (2) failing to excuse a juror; (3) failing to grant a mistrial after the introduction of an inconsistent statement made by him; (4) admitting his custodial statement as evidence; and (5) admitting certain physical evidence linking him to the crimes. For the reasons set forth below, we affirm.

1. Richards first contends that the evidence was insufficient to support the convictions.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Richards] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Ryals v. State. See Jackson v. Virginia.

A review of the evidence, including the testimony of the victim and the shop owner, reveals that Richards was a customer at Doll House Lingerie, a lingerie modeling establishment. During his visit, Richards asked the lingerie model to perform oral sodomy and sexual intercourse. When she refused, Richards pulled out a gun. As the model was screaming, the owner came into the room, and Richards shot the owner during a struggle. Richards then forced the model at gunpoint to walk to his apartment nearby where he forcibly raped her. Later, Richards escorted the victim to a nearby park where he left her.

On appeal, Richards asserts that the evidence was insufficient with respect to his rape conviction because he was acquitted of the aggravated sodomy charges. In that regard, Richards argues that the convictions are inconsistent because the jury must have rejected the victim’s testimony. We do not agree.

Acquittal on the aggravated sodomy charge does not preclude the findings of fact necessary for a conviction for rape. The elements of the crimes are different, and the jury could have chosen to convict on the rape charge and acquit on the aggravated sodomy charge without any inconsistency. See Gardner v. State (conviction of aggravated sodomy not inconsistent with acquittal of rape); Hill v. State (physical precedent only) (same). Richards’ argument concerning the sufficiency of the evidence on his rape conviction is without merit.

Richards next asserts that the evidence is insufficient with respect to his conviction for aggravated assault of the shop owner because there was conflicting evidence regarding who shot the owner during a struggle with the gun. However, an appellate court does not weigh the evidence. Conflicts in the testimony of the witnesses are a matter for the jury to decide. Ryals, supra.

Richards’ first enumeration is without merit.

2. Richards next contends that the trial court erred in denying his motion to excuse a seated juror during trial, claiming that the juror’s discomfort with the sexual nature of the issues in this case in light of the predominately male venire left the juror unable to deliberate freely and impartially, thereby requiring her dismissal from the jury.

Whether to strike a juror for cause lies within the sound discretion of the trial court. Unless the juror holds an opinion regarding the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based on the evidence and court instructions, a court need not excuse the juror for cause.

(Punctuation and footnote omitted.) Brown v. State.

Richards does not claim, and the record does not support, a claim of juror misconduct (such as unauthorized communications among the jurors or between a juror and nonjuror concerning the case). See Hubbard v. State (noting that where a showing of juror misconduct is made, the burden rests with the prosecution to prove beyond a reasonable doubt that no harm occurred). Therefore, the burden rests with Richards to establish the denial of his right to an impartial jury by showing “ ‘(a) actual juror partiality or (b) circumstances inherently prejudicial to that right.’ ” Moore v. State. Richards failed to make this showing.

During the first lunch break of the trial, the juror expressed her discomfort to the trial judge’s secretary about sitting on a predominately male jury because of the nature of the issues presented in the case. After this came to light, the trial judge questioned both the secretary and the juror in the presence of counsel and confirmed the nature of the exchange between the two. The trial judge appropriately established the juror’s impartiality. The juror explained that she remained impartial and was not intimidated by any particular juror; she merely felt uncomfortable due to the subject matter of the case. The trial judge gave both counsel for the State and Richards the opportunity to ask questions of the secretary and the juror, but both declined. Richards did not carry his burden.

Under the facts of this case, we hold the trial court did not abuse its discretion in refusing to strike the juror in question. Richards’ second enumeration is without merit.

3. As his third enumeration, Richards contends that the trial court erred in denying his motion for a mistrial, asserting that, on cross-examination, the State improperly introduced an inconsistent custodial statement made by him.

“We review for manifest abuse of discretion a trial court’s denial of a motion for a mistrial. We will reverse the trial court’s ruling only if a mistrial is essential to the preservation of the right to a fair trial.” (Punctuation and footnote omitted.) Crumpton v. State.

At trial, Richards testified in his own defense. During his testimony, Richards claimed that the lingerie model originally had the gun that was discharged at the shop. Richards further testified that the shop owner was shot when he attempted to take the gun away from the lingerie model.

On cross-examination, the State asked Richards whether he recalled telling an officer that he had a black .380 automatic handgun with him at Doll House Lingerie which he laid on the table during the session. Defense counsel moved for a mistrial, arguing that, prior to trial, the State agreed not to put this statement in the record and that there had not been a Jackson-Denno hearing to establish that the statement was given voluntarily prior to confronting Richards with it. In response, the State argued that its prior agreement related only to solicitation of the statement in its case-in-chief and that, on cross-examination, it was merely trying to impeach Richards’ inconsistent testimony regarding the gun.

The trial court denied the motion for mistrial but required a Jackson-Denno hearing before the State could continue with its line of questioning concerning Richards’ prior statement. After the hearing, the trial court found by a preponderance of the evidence that Richards gave his statement voluntarily. The defense did not object to the trial court’s finding.

The State correctly argues that it was able to impeach Richards with his custodial statement after he testified in a manner inconsistent with the statement. Moreover, a Jackson-Denno hearing is not required in order to use a custodial statement in this manner. In State v. Byrd, the Supreme Court of Georgia cited with approval a United States Supreme Court case which allowed the introduction of a defendant’s custodial statement for impeachment purposes despite the fact that the statement was inadmissible in the State’s case-in-chief because of a failure to properly administer Miranda warnings. Id. See Harris v. New York “The defendant may not testify contrary to his prior statement without having to come face to face with it before the jury.” Byrd, supra at 667. Therefore, the trial court did not err in denying Richards’ motion for mistrial based on the State’s attempt to impeach Richards with his prior inconsistent statement.

4. Richards next contends that the trial court erred by failing to exclude his custodial, oral statement regarding ownership of the gun on grounds that the statement consisted of an incomplete summary by the police of what he said. In particular, Richards contends that the State failed to comply with the discovery requirements of OCGA § 17-16-4 (a) (1) because the State produced a summary, and not a verbatim account, of the custodial question and answer session between the police and him. We disagree.

A verbatim account of Richards’ oral statement was not required; all that was required was the timely production of a written summary that included all relevant and material portions of Richards’ inculpatory, in-custody statements. OCGA § 17-16-4 (a) (1); see Orr v. State; Johnson v. State. “The purpose of [OCGA § 17-16-4 (a) (1)] is to inform the defendant in writing of all relevant and material portions of his own statements that the State intends to use to his disadvantage.” Roman v. State.

As explained in Division 3, supra, the trial court determined that Richards’ statement was voluntary. Moreover, defense counsel admitted that the summary of Richards’ oral statement was timely produced. The record demonstrates that the State produced the only written account of Richards’ statement in its possession. Appellant was advised of the substance of the statements that the State intended to use to his disadvantage — that Richards had a black .380 handgun with him at Doll House Lingerie. The State met its obligations under OCGA § 17-16-4 (a) (l).

5. Finally, Richards asserts as error the trial judge’s ruling to allow State’s Exhibits 3 and 4 into evidence. Exhibit 3 consisted of scarves that police found at Richards’ residence. Exhibit 4 was a robe found at that same residence. Richards claims that the trial court should have excluded Exhibits 3 and 4 from evidence because they were irrelevant.

Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court. Even though alone it may not be sufficient, evidence which in connection with other evidence tends, even slightly, to prove, explain, or illustrate a fact is probative and relevant. Doubt as to relevancy should be resolved in favor of admission and against exclusion, with the evidence’s weight left to the jury.

(Punctuation and footnotes omitted.) Wells v. State.

Here, there was sufficient testimony to establish the relevance of the scarves and robe. The lingerie model testified that, after Richards assaulted and raped her, he tied her hands and feet with scarves in his apartment. The model also testified that afterward, Richards blindfolded her, clothed her in a robe, and walked her to a park nearby where he left her. Officers found the scarves and the robe at Richards’ apartment. Although Richards had a different story as to what happened, he identified Exhibits 3 and 4 as his scarves and his robe. The trial court did not err in admitting Exhibits 3 and 4 into evidence for the jury’s consideration.

Decided July 9, 2001

Reconsideration denied July 24, 2001.

Moore & Dodgen, Andrew C. Dodgen, for appellant.

J. Gray Conger, District Attorney, Lew S. Barrow, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P J., and Mikell, J., concur.

        Ryals v. State, 238 Ga. App. 578 (519 SE2d 505) (1999).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Gardner v. State, 175 Ga. App. 787 (2) (334 SE2d 368) (1985).

        Hill v. State, 183 Ga. App. 654, 655 (1) (360 SE2d 4) (1987).

        Brown v. State, 243 Ga. App. 632-633 (1) (534 SE2d 98) (2000).

       Although the juror in question communicated with the trial judge’s secretary, the secretary testified under oath that the juror merely expressed her concerns about deliberating with a predominately male jury because of the subject matter of the case, nothing more.

        Hubbard v. State, 239 Ga. App. 632, 633 (1) (521 SE2d 678) (1999).

        Moore v. State, 239 Ga. App. 552, 553 (521 SE2d 467) (1999).

        Crumpton v. State, 244 Ga. App. 57, 59 (1) (a) (534 SE2d 809) (2000).

        State v. Byrd, 255 Ga. 665, 666-667 (341 SE2d 455) (1986).

        Harris v. New York, 401 U. S. 222 (91 SC 643, 28 LE2d 1) (1971).

        Orr v. State, 209 Ga. App. 832, 834 (434 SE2d 723) (1993).

        Johnson v. State, 177 Ga. App. 705, 706 (1) (340 SE2d 662) (1986).

        Roman v. State, 185 Ga. App. 32, 34 (2) (363 SE2d 329) (1987).

       To the extent Richards claims that the State’s failure to produce a verbatim transcript of the question and answer session also violates his rights under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), his argument is without merit. “[A] defendant’s own statements to police are not unknown to defendant and are not subject to discovery under Brady” Fuqua v. State, 183 Ga. App. 414, 417 (1) (b) (359 SE2d 165) (1986); Baker v. State, 245 Ga. 657, 661 (3) (266 SE2d 477) (1980).

        Wells v. State, 243 Ga. App. 629, 631 (534 SE2d 106) (2000).