author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A98A2415.
    BROWN v. MANN et al.
    (514 SE2d 922)
   Blackburn, Judge.

Regina Brown appeals from the jury’s verdict rendered against her in the underlying action for fraud brought by Timothy and Annette Mann. On appeal, Brown contends that the trial court erred in denying her motion for j.n.o.v. and in its instructions to the jury. For the reasons set forth below, we affirm.

1.

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for directed verdict and new trial will not be disturbed.

(Punctuation omitted.) John Crane, Inc. v. Wommack, 227 Ga. App. 538 (2) (489 SE2d 527) (1997).

(a) Brown contends that the evidence failed to establish that she had either actual or constructive knowledge of the existence of the buried tires.

The evidence established that the Manns purchased a four-acre tract of real property from Brown upo.n which they intended to construct a mini-warehouse facility. After acquiring title, gaining possession, and beginning excavation for the planned facility, the Manns discovered that thousands of used motor vehicle tires had been buried on the property. In order to complete the planned commercial development of the property, it was necessary to remove the tires, dispose of them, and perform further site work required by the removal of the tires.

The Manns filed the underlying action in fraud alleging that Brown knew the tires were buried on the property, had not disclosed the presence of the tires, and had made affirmative representations that she had no knowledge of any fact which would materially or adversely affect the value of the property. Brown denied any knowledge of the buried tires prior to the time the Manns discovered them.

However, the jury was authorized to disbelieve Brown’s testimony that she did not know that there were tires buried on the property. The entire section of property at Wade Green Road and Highway 92 was originally owned by Brown’s father. This was a large continuous tract of land on which Brown’s father ran a gin stand, a saw mill, and a grist mill. Brown’s father also raised cotton. Brown was raised in a house on her father’s land.

In 1949, Brown’s brother began operating a body shop on a portion of the land. Brown’s brother used the portion of the property at issue in this case as a junk yard where he stored junk cars and thousands of tires. Brown admitted that he buried tires in 1969 and 1970 on the portion of property eventually purchased by the Manns. There was additional evidence which would permit the conclusion that some tires were buried at a later date, perhaps as late as 1992.

Brown lived directly across the street from the property at issue since 1968. Upon her father’s death in 1979, Brown and her brother inherited the land including the property eventually sold to the Manns. At the time that Brown and her brother inherited the property, Brown’s brother was still maintaining a junk yard on the portion of land eventually purchased by the Manns which was directly across the street from Brown’s house. In 1992, Brown and her brother partitioned the property they inherited from their father, giving Brown the property in question. Around that time, Brown was aware that the county had required Brown’s brother to clean up the tires on the property due to a mosquito problem. The neighbors were aware of the mosquito problem and testified that Brown’s brother buried some tires after the county required him to clean up the property.

Brown testified that she knew there were tires on the property because she could see them from the road. Several of the neighbors not only knew that there had been tires stored on the property, but that there were tires actually buried there. The property was known as a junk yard prior to the time Brown sold it to the Manns.

Since fraud is inherently subtle, slight circumstances of fraud may be sufficient to establish a proper case. OCGA § 23-2-57. Proof of fraud is seldom if ever susceptible of direct proof, thus recourse to circumstantial evidence usually is required. Moreover, it is peculiarly the province of the jury to pass on these circumstances showing fraud. Except in plain and indisputable cases, scienter in actions based on fraud is an issue of fact for jury determination.

(Citations and punctuation omitted.) Lloyd v. Kramer, 233 Ga. App. 372, 373 (1) (503 SE2d 632) (1998).

There was some evidence from which a jury could infer that Brown knew of the buried tires, especially if the jury chose to disbelieve Brown’s testimony. Such a choice is well within the jury’s province. Under these circumstances, the trial court correctly denied Brown’s motion for j.n.o.v. on the issue of scienter.

(b) Brown contends that the evidence was insufficient to establish that the Manns justifiably relied on her statements.

In order to prove justifiable reliance, the Manns must have shown that the defect could not have been discovered by them in the exercise of due diligence in the purchase of the property. See, e.g., Hanlon v. Thornton, 218 Ga. App. 500, 501 (462 SE2d 154) (1995); Hill v. Century 21 Max Stancil Realty, 187 Ga. App. 754, 755 (2) (371 SE2d 217) (1988); see also Deckert v. Foster, 230 Ga. App. 164 (495 SE2d 656) (1998).

The Manns testified that they walked the property at least a half-dozen times. They walked the property with a realtor and a site engineer. They obtained a boundary survey, a topographic survey, and a percolation test on the property. The lender performed an appraisal of the property. They inquired about the property’s prior use and were told that it was farm land. The Manns’ site engineer testified that he walked the property several times before he started any surveying or design work and that he saw nothing that caused him any concern. He testified that he had no reason to think that an environmental impact study or anything of that nature was necessary.

Based on these facts, a jury was authorized to find that the Manns exercised due diligence in the purchase of the property at issue, and that the trial court did not err in denying Brown’s motion for j.n.o.v. on this issue.

2. In three enumerations of error, Brown contends that the trial court erred in its charge to the jury.

(a) Initially, Brown contends that the trial court erred by giving plaintiffs’ Request to Charge No. 8 which read: “Ladies and gentlemen, I charge you that fraud may be consummated by agents employed to deceive.”

While Brown recognizes that this is a correct statement of the law, see OCGA § 23-2-56, she argues that it is not adjusted to the facts of this case because the only agent involved was the real estate agent who was actually a dual agent. Brown contends that, when a dual agency is involved, neither principal is liable to the other for the tortious conduct of the agent — here the allegedly fraudulent misrepresentations or concealments of the agent — absent proof that the opposite principal was in complicity with the agent or in some way participated in the tortious act.

The evidence is clear that the real estate agent told the Manns that the property had been used as farm land, despite the fact that for the 24 years prior to the sale it was actually used as a junk yard for a wrecker service operated by Brown’s brother. The jury was authorized to find that the agent was in complicity with Brown based on the facts before it. Therefore, the trial court did not err in giving the requested charge.

(b) In two enumerations of error, Brown contends that the trial court erred in failing to give charges she requested. “In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” (Punctuation omitted.) Lee v. Bartusek, 205 Ga. App. 551 (1) (422 SE2d 570) (1992). The charges requested by Brown either were not adjusted to the facts of the case or were covered by the court’s general charge.

Judgment affirmed.

Johnson, C. J., Andrews, Smith, Eldridge, JJ., and Senior Judge Harold R. Banke concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

Plaintiffs filed this fraud action alleging that defendant knew the tires were buried on the property, had not disclosed the presence of the tires, and had made affirmative representations that she had no knowledge of any fact which would materially or adversely affect the value of the property. Defendant denied any knowledge of the buried tires prior to the discovery by plaintiffs and the evidence at trial failed to provide more than speculation and conjecture in support of the scienter element of plaintiffs’ claim.

Decided March 19,1999

Reconsideration denied March 29,1999.

Banks, Stubbs & Neville, Robert S. Stubbs III, for appellant.

Donald L. Mize, for appellees.

It is uncontroverted that the scienter issue turns on whether defendant had actual or constructive knowledge of the existence of the buried tires. In my view, the evidence at trial suggests no more than a possibility that defendant had any knowledge of the buried tires, and this was not sufficient to authorize the plaintiffs’ verdict. In order to authorize a verdict, circumstantial evidence must not only support that conclusion, but also render all inconsistent conclusions less probable. Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 780-781 (257 SE2d 186). Inferences must be based on probabilities rather than possibilities. Cohen v. Hartlage, 179 Ga. App. 847, 851 (348 SE2d 331). I suggest that there is no evidence recited in the majority opinion or appearing on the face of the record which will support a reasoned conclusion that it was more likely than not that the defendant knew of the buried tires prior to their discovery by plaintiffs.

“While fraud may be proved by slight circumstances, it must amount to more than mere speculation.” Clay v. Clay, 269 Ga. 527 (501 SE2d 208). In my view, the sum total of plaintiffs’ evidence provides no more than a foundation for speculation. There is no reason provided to infer that the presence of tires on the premises would suggest that they were being buried rather than being carried away. And, despite the issue being clearly controverted, plaintiffs provided no proof that the burial site of the tires, on the far side of the tract which sloped downward from the road, was visible from defendant’s residence. There was no evidence of defendant having observed or been told of tires being buried. See also Wilson v. Phillips, 230 Ga. App. 290, 291 (495 SE2d 904).

In view of the failure of proof of the element of scienter, I respectfully dissent. I would grant defendant’s motion for j.n.o.v.


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A98A2419.
    DAVENPORT v. NORTHEAST GEORGIA MEDICAL CENTER, INC.
    (515 SE2d 162)
   Barnes, Judge.

James A. Davenport, M.D., sued Northeast Georgia Medical Center, Inc. (“Northeast Georgia”) for money damages because his staff privileges were terminated by Northeast Georgia. Following discovery by the parties, the trial court granted Northeast Georgia’s motion for summary judgment, finding the hospital was entitled to immunity from suit under 42 USC § 11111 (a) (1). Dr. Davenport appeals, asserting (1) the hospital is not entitled to immunity because he did not receive adequate notice of the reasons action was taken to revoke his privileges; (2) there is a question of fact as to whether his conduct adversely affected the health or welfare of patients; and (3) there is a genuine issue as to whether the hospital complied with the statutory prerequisites for immunity. Because we find Dr. Davenport did not receive adequate notice, we reverse.

In his complaint, Dr. Davenport asserts the hospital violated its by-laws and acted arbitrarily and capriciously when it revoked his staff privileges on March 12, 1996. Thus, the issue before us is whether the hospital is entitled to immunity under 42 USC § 11111 (a) for this alleged conduct.

The Health Care Quality Improvement Act of 1986 was enacted to improve the quality of medical care by restricting the ability of physicians to move from state to state “without disclosure or discovery of the physician’s previous damaging or incompetent performance.” 42 USC § 11101 (2). It creates a national reporting system which requires insurance companies to report medical malpractice payments, 42 USC § 11131, boards of medical examiners to report sanctions imposed against physicians, 42 USC § 11132, and hospitals to report adverse professional peer review information, 42 USC § 11133.

To assure that hospitals and doctors cooperate with the system and engage in meaningful professional review, Congress found it essential to provide qualified immunity from damages actions for hospitals, doctors, and others who participate in the professional review process. See 42 U.S.C. § 11101; H.R.Rep. 903, at 6385.

Imperial v. Suburban Hosp. Assn., 37 F3d 1026, 1028 (4th Cir. 1994). Thus, those who participate in professional review activities that meet the standards imposed by 42 USC § 11112 “shall not be liable in damages under any law of the United States or of any State (or political division thereof)” with respect to the professional review action. 42 USC § 11111 (a) (1).

42 USC § 11112 (a) provides:

For purposes of the protection set forth in [section 11111 (a) of this title], a professional review action must be taken — (1) in the reasonable belief that the action was in furtherance of quality health care, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3). A professional review action shall be presumed to have met the preceding standards necessary for the protection set out in [section 11111 (a) of this title] unless the presumption is rebutted by a preponderance of the evidence.

Section 11112 (b) of the Act provides that “[a] health care entity is deemed to have met the adequate notice and hearing requirement of subsection (a) (3) [of this section]” if certain conditions are met. However, “[a] professional review body’s failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the standards of subsection (a) (3) [of this section].” 42 USC § 11112 (b). As the Act’s legislative history states:

If other procedures are followed, but are not precisely of the character spelled out in subsection . . . (b), the test of “adequacy” may still be met under other prevailing law. The Committee is aware, for example, that some courts have already carefully spelled out different requirements for certain professional review activities or actions, such as procedures for decisions regarding applicants for clinical privileges at a hospital. In those situations, compliance with the applicable law should satisfy the “adequacy” requirement even where such activities or actions require different or fewer due process rights than the ones specified under subsection . . . (b). In any case, it is the Committee’s intent that physicians receive fair and unbiased review to protect their reputations and medical practices.

H.R. Rep. 903, 99th Cong., 2nd Sess. 10 reprinted in 1986 U. S. Code Cong. & Admin. News 6393.

Dr. Davenport claims the hospital is not entitled to immunity because it did not comply with the notice requirement for immunity under § 11112 (a). The statutory presumption in favor of compliance with the requirements for immunity creates a unique standard of review: “Might a reasonable jury, viewing the facts in the best light for [the plaintiffl, conclude that he has shown, by a preponderance of the evidence, that the defendant[’s] actions are outside the scope of § 11112(a)?” Austin v. McNamara, 979 F2d 728, 734 (5) (9th Cir. 1992). See also Bryan v. James E. Holmes Regional Med. Center, 33 F3d 1318 (11th Cir. 1994).

Viewed in this light, the record shows that the hospital’s Governing Board decided to revoke Dr. Davenport’s practice privileges on March 12, 1996. The Governing Board’s decision states:

In reaching this decision, this Board is very concerned with Dr. Davenport’s continued inability to function within the structure of the hospital, failure to learn from previous experiences, continued problems with resolving interpersonal conflicts, and unprofessional conduct. This Board finds that maintaining and furthering the quality of care at Northeast Georgia Medical Center necessitates that Medical staff members possess an ability to work with and relate to others in a cooperative and professional manner, and that because of Dr. Davenport’s inability to do so, revocation of his privileges is in the best interest of the overall quality of care at Northeast Georgia Medical Center.

The Board’s written decision states no other basis for the revocation of Dr. Davenport’s privileges.

Since this is the “professional review action” for which the hospital seeks immunity, we must determine whether Dr. Davenport has rebutted the presumption that the hospital complied with the requirement that this action “must be taken after . . . adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances. . . .” 42 USC § 11112 (a) (3). The hospital contends that letters sent to Dr. Davenport on February 22, 1995, and April 4, 1995, demonstrate adequate notice to Dr. Davenport of the reasons for the proposed action against him.

On February 22,1995, the Executive Vice President of the hospital sent a letter to Dr. Davenport which advised him that

[t]he Medical Staff Executive Committee met on February 20, 1995 and reviewed the report of the Peer Review Committee with regards to the complaint which was filed by the Anesthesia Department. The Executive Committee referred the matter to the Peer Review Committee on January 19, 1995 with the direction that the Peer Review Committee analyze the present situation, taking into account all previous incidents. The Peer Review Committee reviewed the series of complaints concerning your actions which dated back to November, 1992. A summary of these events is attached for your review. As you will recall, you were placed on probation for a period of one year beginning on September 22, 1993. At that time you were informed that any validated recurrences of problems with attitude, practice habits and relationships with nursing staff would result in suspension of your hospital privileges. . . . Following implementation of your probation, there were several additional concerns filed which resulted in the Executive Committee extending your probation through January 17, 1995. . . . Following review of the above actions, the Peer Review Committee concluded that you violated your probation. The Medical Staff Executive Committee voted on February 20, 1995 to suspend your medical staff membership due to the ongoing concerns dating back to 1992.

On April 4, 1995, the hospital’s Executive Vice President sent another letter to Dr. Davenport which notified him that a hearing had been scheduled as a result of his request for a fair hearing under the by-laws governing the medical staff. The letter then states that the hearing was being held to review the Medical Staff Executive Committee’s determination

that you violated the probation which was begun on September 22, 1993 and extended through January 17, 1995. At the time of your probation, you were informed that any validated recurrences of problems with attitude, practice habits and relationships with nursing staff would result in suspension of your hospital privileges. The Medical Staff voted to suspend your privileges due to ongoing concerns dating back to 1992.

The letter concludes by giving Dr. Davenport a list of 31 “potential witnesses” and a list of 24 “patients whose medical records may be referred to. . . .”

Based on our review of these letters, we find that a reasonable jury could conclude that Dr. Davenport has overcome, by a preponderance of the evidence, the presumption that the hospital provided him with adequate notice. Although a failure to comply with the procedures outlined in § 11112 (b) does not automatically require a finding that inadequate notice was provided, they do provide guidance on this issue. One of these requirements is that the physician be given a written notice stating the reasons for the proposed action against him. 42 USC § 11112 (b) (1) (A) (ii).

Decided March 3,1999

Reconsideration denied March 29,1999

In this case, the February 22, 1995 letter stated that “the Peer Review Committee concluded that you violated your probation.” The April 4, 1995 letter stated that Dr. Davenport’s hearing was being held to review the Medical Staff Executive Committee’s determination that he violated his probation. But, the Governing Board’s final decision on March 12, 1996, never states that Dr. Davenport’s privileges were revoked because he violated his probation. Rather, it explains that Dr. Davenport’s privileges were revoked as a result of his inability to work with and relate to others in a cooperative and professional manner. A reasonable jury could find that notifying Dr. Davenport that his privileges were being suspended due to “ongoing concerns dating back to 1992,” and providing him with a laundry list of events, patient records and witnesses did not adequately notify Dr. Davenport of the reasons for the proposed action.

We reject the hospital’s contention that Dr. Davenport’s counsel stipulated that he received adequate notice during the June 5, 1995 hearing. Based on our review of the transcript, we find that Dr. Davenport’s counsel merely stipulated that there was adequate notice that the hospital planned to use events dating back to 1992 during the hearing to establish that Dr. Davenport violated his probation, not that the hospital would use those events as an independent basis to revoke his privileges.

We also reject the hospital’s contention that Dr. Davenport was provided with adequate notice because it granted him a continuance and allowed Dr. Davenport and his attorney to review his entire peer review file. Providing access to Dr. Davenport’s 287-page peer review file without specifying the reasons for the proposed action against him created an impossible guessing game for Dr. Davenport and his attorney.

Dr. Davenport met his burden in rebutting the presumption in favor of the hospital because a reasonable jury could conclude the hospital did not provide Dr. Davenport with adequate notice or other procedures which were fair under the circumstances. As a result, the trial court erred when it granted summary judgment to the hospital based on its conclusion that the hospital was entitled to immunity under 42 USC § 11111 (a).

Judgment reversed.

Johnson, C. J., and Ruffin, J., concur. Smith, J., recused.

John M. Brown, for appellant.

Whelchel & Dunlap, Thomas M. Cole, for appellee.


author: Judge Harold R. Banke.

text:
    A99A0071.
    MORGAN v. WACHOVIA BANK, N.A.
    (514 SE2d 239)
   Judge Harold R. Banke.

Wachovia Bank, N.A. (‘Wachovia”) instituted an action for debt collection against Raymond D. Morgan for the past due balance under a motor vehicle installment sales contract. Morgan appeals the judgment entered on the pleadings.

In its single-page unverified complaint, Wachovia asserted that Morgan “is indebted to plaintiff in the sum of $13,592.88, plus interest of $1,118.99, plus interest on said principal at the rate of 8.450% per annum from July 10, 1997, plus attorney’s fees on a contract, copy of which is attached, marked Exhibit ‘A,’ and made a part of this petition.” Morgan filed the following handwritten pro se response: “I am answering civil action #97VSO1308414 by turning in this form Oct 6th 1997. I request that any plea, answer or arrangements be refered [sic] to Davenport Law Offices.” At the bottom of his response was typed: “WHEREFORE, DEFENDANT DEMANDS THAT THE PLAINTIFF’S COMPLAINT BE DISMISSED WITH ALL COST CAST TO PLAINTIFF.” Morgan did not subsequently timely file an amended answer or any responsive pleading.

About two months later, Wachovia sought judgment on the pleadings without a hearing pursuant to OCGA § 9-11-12 (c). With no further response from Morgan occurring during the interim, the trial court entered judgment in the specific amounts that Wachovia had sought. The judgment entered on February 23,1998, ordered Morgan to pay $13,592.88 principal, $1,118.99 interest, $1,381.44 for attorney fees and $85 in court costs. On March 2, 1998, Morgan filed a response to Wachovia’s motion for judgment on the pleadings or alternatively a motion to set aside the judgment. Held:

1. Morgan contends that the trial court erred by finding that his answer was not legally sufficient.

Nothing in the record indicates that the trial court considered Morgan’s answer as defective when it granted judgment on the pleadings. Nevertheless, it is apparent that Morgan’s answer did not deny any of the allegations or assert any defense. Averments in a pleading to which a response is required, as here, are admitted when not denied. Termplan, Inc. v. Joseph, 151 Ga. App. 689, 690 (261 SE2d 433) (1979). All defendants, including pro se defendants, are charged with the duty of pleading affirmative defenses. OCGA § 9-11-8 (c). Affirmative defenses not raised by answer, or amendment, or by timely motion are waived. Rimes Tractor &c. v. Agricredit Acceptance Corp., 216 Ga. App. 249, 250-251 (454 SE2d 564) (1995); Security Ins. Co. &c. v. Gill, 141 Ga. App. 324, 326 (233 SE2d 278) (1977) (affirmative defenses listed in subsection (c) may be raised by amendment).

2. Morgan asserts that the trial court erred in denying his motion to set aside the judgment because Wachovia failed to prove the damages were, in fact, liquidated damages.

It is undisputed that the trial court granted judgment on the pleadings, not default judgment. For purposes of an OCGA § 9-11-12 (c) motion, “all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” Pressley v. Maxwell, 242 Ga. 360 (249 SE2d 49) (1978). Here, as noted above, Morgan’s answer did not appear to deny any material allegation. Compare Jones v. Kim, 189 Ga. App. 5, 6 (2) (374 SE2d 820) (1988).

The contract attached to Wachovia’s complaint required Morgan to make 65 monthly payments of $399.80 beginning June 23, 1996, and obligated Morgan, in the event of default, to pay reasonable attorney fees and the expenses of litigation as well as the unpaid balance of the contract. However, Wachovia offered no testimony or any documentation explaining its method of calculating the specific amounts sought. Nor did it offer evidence of Morgan’s account payment history.

A debt is liquidated when it is rendered certain how much is due and for what. Copelan v. O’Dwyer, 159 Ga. App. 750, 751 (285 SE2d 216) (1981). Since we cannot be certain of the amounts due under the terms of the agreement without reference to evidence outside the pleadings, the amounts are unliquidated and must be established. Hazlett & Hancock Constr. Co. v. Virgil Womack Constr. Co., 181 Ga. App. 25, 27 (2) (351 SE2d 218) (1986); accord James C. Welch Constr. Co. v. Quantum Group, 188 Ga. App. 740, 741 (1) (374 SE2d 232) (1988). Because the pleadings do not contain evidence from which the trial court could confirm Wachovia’s calculations of its purported damages, we must reverse. Hazlett &c., 181 Ga. App. at 28. Compare Shaef Chem. Co. v. Cook, 106 Ga. App. 223, 226 (4) (126 SE2d 806) (1962) (when a debt or demand is for a liquidated or fixed amount, whether by the agreement of the parties or by operation of law, no jury trial on damages is necessary).

3. Morgan contends that the trial court erred in awarding attorney fees and interest without proof of the same. The unverified complaint including the contract attached thereto do not reveal how Wachovia calculated the interest or attorney fees. Even assuming that Wachovia relied upon the provisions of OCGA § 13-1-11 (a) (2), it failed to offer any documentation as to its calculations of those statutory fees. Otherwise, a request for unliquidated damages, such as attorney fees, generally requires an evidentiary showing to substantiate the amount claimed. Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 668 (2) (476 SE2d 43) (1996). Here, there was neither. Upon remand, Wachovia must present admissible evidence in support of its damages.

Decided March 11,1999

Reconsideration denied March 29,1999

Gibson, Deal & Fletcher, William A. Fletcher, Jr., for appellant.

Mann, Bracken, Layng & Knezo, M. Douglas Mann, Stephen J. Knezo, for appellee.

Judgment reversed.

Beasley, P. J., and Blackburn, J., concur.


author: Ruffin, Judge.

text:
    A99A0396.
    In re BILLY L. SPRUELL.
    (515 SE2d 190)
   Ruffin, Judge.

The trial court cited attorney Billy L. Spruell for contempt of court. On appeal, Spruell challenges the sufficiency of the evidence supporting the citation. This issue already has been decided adversely to Spruell, and we affirm.

This is the second time this case has come before this Court. The relevant facts are set forth in In re Billy L. Spruell, 227 Ga. App. 324 (489 SE2d 48) (1997). Succinctly stated, the facts are that on the evening of Thursday, February 22, 1996, Spruell was retained to represent a client in a criminal trial scheduled for Monday, February 26, 1996. Spruell accepted the case even though he was leaving for a vacation outside the country the next morning and would not be available for trial on Monday. Before leaving, Spruell signed an entry of appearance and an application for leave of absence and left his associate, Melinda Taylor, to try to obtain a continuance. The trial court granted a continuance, but cited Spruell for indirect contempt for his failure to appear in court.

In In re Billy L. Spruell, supra, Spruell claimed that the trial court erred in considering evidence from an earlier hearing. In addition, Spruell argued that the evidence was insufficient to support a finding of contempt. We held “that the properly considered evidence was sufficient to support an inference of wilful contempt.” Id. at 324. We also held that the trial court erred in considering certain hearsay testimony and, therefore, remanded the case “to allow the court to reconsider the contempt question without relying on this evidence.” Id. at 327 (2). On remand, the trial court once again cited Spruell for contempt of court indicating that it did not rely on the inadmissible hearsay testimony. In his sole enumeration of error, Spruell challenges the sufficiency of the evidence.

Decided March 29,1999

Spruell, Taylor & Associates, Melinda D. Taylor, Steven H. Sadow, for appellant.

N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellee.

“The law of the case rule controls the issue in this appeal. The law of the case rule, though formally abolished, still applies to rulings by . . . our appellate courts in a particular case.” (Punctuation omitted.) Lowman v. Advanced Drainage Systems, 228 Ga. App. 182, 183 (491 SE2d 427) (1997). The rule, set forth in OCGA § 9-11-60 (h), provides that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.”

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

(Punctuation omitted.) Brown v. Piggly Wiggly Southern, 228 Ga. App. 629 (1) (493 SE2d 196) (1997).

In this case, the evidentiary posture of the case has not changed since we issued our opinion in In re Billy L. Spruell, supra. Accordingly, our previous determination that the “properly considered evidence was sufficient to support an inference of wilful contempt” remains the law of the case and Spruell may not relitigate this issue on appeal. See Lowman, supra.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Ruffin, Judge. Beasley, Presiding Judge,

text:
    A98A1684.
    PIERCE v. GOLDEN CORRAL CORPORATION.
    (514 SE2d 470)
   Ruffin, Judge.

Mary J. Pierce sued Golden Corral Corporation for injuries she sustained when she slipped and fell on a foreign substance in Golden Corral’s parking lot. The trial court granted Golden Corral’s motion for summary judgment, and Pierce appeals. Because issues of fact remain as to Golden Corral’s liability, we reverse.

It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence.

(Citation and punctuation omitted.) Dumas v. Tripps of North Carolina, 229 Ga. App. 814 (495 SE2d 129) (1997).

Viewed in a light most favorable to Pierce, the evidence shows that on August 4, 1993, between 4:00 and 5:00 p.m., Pierce and her husband went to the Golden Corral restaurant for dinner. Pierce’s husband drove them to the restaurant and parked in front. When the Pierces arrived, it was not raining.

While the Pierces were in the restaurant, it started raining. When they left, it was still raining, and Pierce, who did not have any rain gear, testified that she “might have been [walking] a little faster . . . than usual” to get to the passenger side of her car. The asphalt parking lot was wet at that time. Pierce was going around to open the door when she slipped and fell, breaking her knee. After she fell, Pierce noticed black oil on her jeans. Pierce explained that at the time she fell, she could not see the oil slick because “[i]t was raining and wet. You couldn’t tell it from the blacktop. . . . It just all was the same.” In her affidavit, Pierce says she knew there were oil spots in the parking lot from previous visits, but that she did not see this particular oil spot before her fall.

Juanita Arrington, Golden Corral’s assistant manager at the time of the incident, testified that, at the time of Pierce’s fall, she knew there were oil or grease spots in the parking lot where cars parked. She said those spots had probably been there for a week or more. Arrington testified that the only reason she had not cleaned up the oil spots was that she did not have anything to clean them.

[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiffs evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed [her] self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.

Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997).

As an initial matter, a jury clearly could conclude that Golden Corral had actual knowledge of the alleged hazard in its parking lot. Golden Corral admits that it knew of the oil spots in its parking lot prior to Pierce’s fall, that it did nothing to clean these spots, and that it knew it had rained while Pierce was dining in its restaurant. See Sutton v. Winn Dixie Stores, 233 Ga. App. 424, 425 (504 SE2d 245) (1998) (testimony of store manager regarding knowledge of dangerous condition may satisfy first prong of “actual knowledge by the owner/occupier”). Although Arrington claims that she did not know water could make oil more slippery, whether that is common knowledge is clearly a matter for the jury to decide. Thus, the relevant question under Robinson, supra, becomes whether Pierce lacked knowledge, of the hazard despite the exercise of ordinary care. Id. at 749. We find that Golden Corral has not met this burden.

Pierce, who was a regular customer at the restaurant, admitted that she had seen oil on the parking lot on previous occasions, but said that she did not see the oil slick in question before she fell. We do not think that, simply because a patron has seen oil spots on previous occasions, she is automatically charged with knowledge of every single oil spot that may be present in the parking lot on any given day. Since the evidence, viewed in the light most favorable to Pierce, shows that she had not seen the particular spot she slipped in, we cannot say as a matter of law that she had knowledge of such oil spot.

Nor can we say as a matter of law that Pierce failed to exercise ordinary care for her own safety in walking to her car. “[T]he issue is whether, taking into account all the circumstances existing at the time and place of the fall, [Pierce] exercised the prudence the ordinarily careful person would use in a like situation.” Robinson, supra at 748. It is true that Pierce, who did not have an umbrella or any other rain gear, walked “a little . . . faster than usual” from the restaurant to her car. However, we cannot say as a matter of law that Pierce was negligent because she elected to walk to her car in the rain instead of waiting inside the restaurant until the parking lot dried. Likewise, we cannot say as a matter of law that in making the decision to walk to her car, she unreasonably exposed herself to any hazards. As the Supreme Court emphasized in Robinson, questions regarding a “plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Id. at 748. The present case presents precisely the type of issues that the Supreme Court intended to be resolved by the jury, i.e., (1) whether Pierce walked too fast for conditions and (2) whether she should have been more careful in light of the fact that she had seen oil spots elsewhere on the parking lot on previous occasions.

Thus, we hold that Pierce’s alleged failure to exercise ordinary care for her safety is not established, as a matter of law, by her admission that she knew of the existence of oil spots in the parking lot and by her decision to traverse that lot in the rain. “Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, [Pierce] exercised the prudence the ordinarily careful person would use in a like situation.” Robinson, supra at 748. Accordingly, the trial court erred in granting Golden Corral summary judgment. See id.

Judgment reversed.

Pope, P. J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur because of the directions given in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). Nevertheless, to allow a jury to consider liability of the premises owner in this case comes very close to requiring defendant to be an insurer of safety for its customers. While it can be said that the presence of oil which has dripped from customers’ vehicles and those of other business invitees is a common condition on the parking lots of commercial establishments, plaintiff Pierce had actual knowledge, due to her frequent visits to the restaurant, that this condition existed all over its lot. There is no evidence she ever complained of it but instead apparently successfully negotiated it innumerable times. As the trial judge explained in its order setting out the rationale for its conclusion:

The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.

Decided March 15,1999

Reconsideration denied March 30,1999

Buzzell, Graham & Welsh, Neal B. Graham, for appellant.

Miller & Towson, John D. Raines III, for appellee.

(Punctuation omitted; emphasis in original.) Westbrook v. M & M Supermarkets, 203 Ga. App. 345 (1) (416 SE2d 857) (1992). Although the restaurant’s assistant manager also knew of oil or grease spots in the parking lot, that should not constitute the superior knowledge which would subject defendant to liability.

       In her affidavit, Pierce stated that the rain and oil together caused her fall, while in her deposition she testified that only the oil caused her to fall. It makes no difference to our analysis whether it was the oil and rain together or simply oil that caused her fall. The relevant inquiry is whether Pierce exercised reasonable care for her safety in crossing the lot under these circumstances.


author: McMurray, Presiding Judge.

text:
    A98A1687.
    ROACH v. ROACH.
    (514 SE2d 44)
   McMurray, Presiding Judge.

Plaintiff Lillian Huckaby Roach filed this action for damages against her stepson, defendant James Everett Roach. The action arises from circumstances surrounding the final illness of James Austin Roach, the now deceased husband of plaintiff and father of defendant.

As amended, plaintiff’s nine-count complaint seeks declaratory judgment, equitable relief, punitive damages, and attorney fees, along with damages arising from claims predicated on theories of tortious interference, slander, fraud, conversion, and diversion of property. Defendant filed three separate motions for partial summary judgment, and in two separate orders, the trial court granted summary judgment in favor of defendant as to all issues. Plaintiff appeals. Held:

“The notice of appeal filed by [plaintiff] is not in the form directed by OCGA § 5-6-37 in that, rather than designating portions of the record to be omitted on appeal, [plaintiff has] instructed that only items listed on the notice of appeal be included in the record sent to this court. Under the statutory scheme, the notice of appeal provides information concerning omission of portions of the record before the lower court. Nonetheless, after study of the record sent up and communication with the clerk of the court below, it is apparent that under the directions contained in the notice of appeal, some portion of the evidence upon which the superior court relied in this case has been omitted from the record on appeal.
“It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm. Brown v. Frachiseur, 247 Ga. 463 (277 SE2d 16); Jackson v. Dept. of Transp., 201 Ga. App. 863, 865 (412 SE2d 847); Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266 (401 SE2d 294); Riverbend Ford-Mercury v. Kirksey, 196 Ga. App. 307, 309 (1) (395 SE2d 898); Taylor v. Colwell Mtg. Corp., 187 Ga. App. 397 (370 SE2d 520).” Bennett v. Executive Benefits, 210 Ga. App. 429 (436 SE2d 544).
“ ‘On consideration of summary judgments we and the trial court must look at the entire record.’ Lawson v. Duke Oil Co., 155 Ga. App. 363, 364 (270 SE2d 898) (1980).” MacKinnon v. Hodge, 204 Ga. App. 539 (420 SE2d 341). Consequently, appellants who omit portions of the record which they view as not pertaining to any issue on appeal create a probably fatal defect in their appeals. “Such omissions from the appellate record from matters on summary judgment generally prove fatal to appellate review since it must be assumed by a reviewing court that the trial court’s grant of summary judgment is properly supported by the trial court record and since appellant has the burden of showing error affirmatively by the record on appeal. Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266(, supra).” Dillman v. Kahres, 201 Ga. App. 210, 211 (411 SE2d 43).

Peacock v. Campbell, 223 Ga. App. 620-621 (478 SE2d 409).

The appellate record designated by plaintiff contains only the evidence filed contemporaneously with the last one of three motions for partial summary judgment filed by defendant. The evidence filed in support of the two previous motions is not included in the appellate record. The superior court’s order recites that it considered the “entire record.” Since plaintiff has omitted some portion of the evidence upon which the superior court relied, we must affirm. Tahamtan v. Sawnee Elec. Membership Corp., 228 Ga. App. 485, 486 (491 SE2d 918); Ferros v. Ga. State Patrol, 211 Ga. App. 50, 51 (2) (438 SE2d 163).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Decided March 2,1999

Reconsideration denied March 30,1999

Gerard D. Hegstrom, for appellant.

Deming, Parker, Hoffman, Green & Campbell, Richard A. Campbell, for appellee.


author: Smith, Judge.

text:
    A98A1760.
    A98A1761.
    CHOUINARD v. CITY OF EAST POINT. JACKSON et al. v. CITY OF EAST POINT.
    (514 SE2d 220)
   Smith, Judge.

This is a condemnation case. The City of East Point condemned a shopping center owned by appellant Alfred Chouinard. Appellants Johnny’s Pizza and Starship Enterprises were tenants in the shopping center. Following a lengthy trial, the jury awarded $288,000 to Chouinard, $40,480 to Starship Enterprises, and $20,705 to Johnny’s Pizza. Judgment was entered on the verdicts, and appellants filed motions for new trial and for judgment notwithstanding the verdict. Raising several enumerations of error, they appeal from the trial court’s denial of these motions. In Case No. A98A1760, appellant Chouinard has raised no contention warranting a new trial, but we remand the judgment entered by the trial court on the jury’s verdict for further consideration consistent with this opinion. In Case No. A98A1761 we conclude that appellants Johnny’s Pizza and Starship are both entitled to a new trial, and we reverse.

Case No. A98A1760

1. Chouinard contends that the condemnation awards to the respective parties, when added together, equal less than the minimum fair market value testified to by the city’s appraiser. He contends this violates the trial court’s charge that the jury could not award the property owner less than fair market value.

We find no error.

Market value is a matter of opinion, and may be established by direct as well as circumstantial evidence. It is peculiarly a matter for the jury, and the jury is not absolutely bound even by uncontradicted testimony of experts, but may consider the nature of the property involved, together with any other fact or circumstance properly within the knowledge of the jury which tends to establish the value of the property, and may arrive at a different figure than that of the experts, higher or lower, where the verdict reached is not so disparate as to justify an inference of gross mistake or undue bias. [CitJ

Dept. of Transp. v. Delta Machine Products Co., 157 Ga. App. 423, 428 (5) (278 SE2d 73) (1981).

The jury’s total award of $349,185 to Chouinard and the two tenants does not “justify an inference of gross mistake or undue bias,” Delta Machine, supra, and it is supported by the evidence. The city’s appraiser, Terrence Love, testified that he appraised the property using three different methods: the cost approach, the income approach, and the market approach. He used these three methods of valuing the property because “[e]ach one is a check on the other.” Id. Under the cost approach, he reached a value of $292,000. He found two different values under the income approach: a value of $293,000 under the five leases and a value of $356,000 “if the property did not have these leases but had higher paying tenants.” Under the market approach, he valued the property at $345,000. After reconciling these methods, he concluded that the fair market value of the property, unencumbered and undivided among all interest holders, was $350,000.

Chouinard’s appraiser, James Burton, also testified concerning the variety of approaches he used in arriving at the value of the condemned property. Under the cost approach, he estimated a fair market value of $318,600 of the property as a whole; under the market approach, he valued the property at $343,620; and he found a value of $400,000 under the income approach. Although Burton testified that he discarded the cost and market approaches, the city’s appraiser apparently found some value in all three approaches, as he used each as a “check” on the accuracy of the other. The jury’s total award fell within the range of the evidence presented by the parties’ experts as to value of the entire property.

2. One of Chouinard’s chief contentions is that the jury incorrectly awarded him less than the fair market value of the property. He argues that the tenants’ interests were incorrectly deducted from his interest, which he claims was the full fair market value of the entire property, notwithstanding Fulton County v. Funk, 266 Ga. 64, 65 (463 SE2d 883) (1995). Under Funk, unless property encumbered by leases is “unique,” “a single valuation of the undivided fee will represent the total amount of just and adequate compensation that must be paid for the real property taken and the lessee and lessor will be entitled to their respective shares thereof.” Id. at 65.

We find no error. The city’s appraiser, Love, testified that he separately valued the respective interests of Chouinard, Johnny’s Pizza, and Starship Enterprises. He explained that finding “the value of the tenant’s interest as opposed to the landlord’s interest is a special part of the income approach” to appraisal. In describing Chouinard’s interest, he explained that five leases on the property created encumbrances and that when the property was “placed under leases, then the landlord’s position became the leased fee interest in the property. He had certain rights, but he has assigned other rights to these five tenants.” Love evaluated Chouinard’s interest in the property by calculating the present value of the rents expected over the remaining lease terms of the five tenants. He found this value to be $243,372. He then determined the land value at the end of the lease terms and calculated its present value to be $19,422. Love added these figures together, for a total of $262,794, to determine the value of Chouinard’s interest in the property.

This manner of valuing the respective interests of Chouinard and the tenants was authorized under Funk. Evidence was presented, as required by Funk, that the tenants paid below-market rents. Id. at 65. And evidence was presented from which the jury could have determined that the property was not unique. “[Properties are ‘unique’ such that fair market value will not afford just and adequate compensation when they are not of a type generally bought or sold in the open market. [Cit.]” Housing Auth. &c. of Atlanta v. Southern R. Co., 245 Ga. 229, 230 (264 SE2d 174) (1980). And although Chouinard arguably presented some evidence that the property was unique through his appraiser’s testimony that it would be “difficult” to exactly duplicate the property on the open market in Atlanta, other evidence was presented that the property was not unique. The city’s appraiser testified that a market for the property existed and described other comparable properties. Also, Chouinard’s appraiser testified that shopping centers are bought and sold in the open market. The jury was authorized under the evidence presented to conclude that the property was not unique, and we find no error under Funk.

3. Chouinard argues that the city’s appraiser, Love, erroneously failed to take rent escalation clauses in the tenants’ leases into account in determining value and that Love based his opinions on value on facts not part of the record. He contends that when valuing the property under the income method, Love computed rentals and then erroneously deducted hypothetical expenses unsupported by the evidence.

Escalation clauses in the leases provided that rent increases would be adjusted “by any change in the index now known as the United States Bureau of Labor Statistics, Consumer Price Index, for all Urban Consumers, all items index for U.S. City Average (1967-100).” When testifying concerning these clauses, Love stated that increased future rents could not “be verified. We don’t know the future. We also don’t know what these particular tenants can stand in terms of increased rates of their rent.” We find no error, for Love testified to the facts serving as the basis for his opinion and the reason why he did not consider the speculative nature of changes in the Consumer Price Index. The sufficiency of the facts supporting his opinion affected only the weight, not the admissibility, of that opinion. See generally Krause v. Vance, 207 Ga. App. 615, 616 (1) (428 SE2d 595) (1993).

Love also made certain assumptions concerning expenses when valuing Chouinard’s interest, but we conclude that these assumptions did not invalidate his opinion. In reaching his opinion as to value under the income approach, Love did not purport to value the property based on Chouinard’s actual expenses. Instead, as explained in detail by Love, he valued it from the perspective of potential purchasers, in particular, the rents they could expect to receive based on comparable rents in the area and the calculations they might make in evaluating the property, including projected expenses.

“The admission of evidence of factors which may reasonably influence a prospective purchaser’s decision is a matter within the discretion of the trial court.” (Citations and punctuation omitted.) Flint v. Dept. of Transp., 223 Ga. App. 815, 817 (479 SE2d 160) (1996). See also Dept. of Transp. v. Acree Oil Co., 266 Ga. 336, 337 (2) (467 SE2d 319) (1996). In assigning certain hypothetical expenses to the property, Love simply determined the reasonable expenses that might influence a purchaser’s decision, based on his analysis of comparable properties. He carefully explained the basis for his figures, and we find no abuse of discretion in the admission of this testimony.

4. Chouinard enumerates as error the method the trial court used to seat an alternate juror after the trial began. During cross-examination of the first of the city’s witnesses, a juror, apparently irritated, commented out loud that “[h]e’s wasting our time, your honor” and made other negative comments. After discussion between counsel and the court and further colloquy between the court and the juror, the juror was excused from service. Cross-examination of the witness continued for a short time until the jury was excused for the day, and condemnees’ counsel objected to the manner of seating an alternate juror.

The record does not contain a transcript of the actual voir dire proceedings. Although the record does include a transcript of the discussion between the court and trial counsel after the juror was excused and an alternate seated, it is not crystal clear as to any arrangements made at the beginning of trial concerning alternate jurors. Nevertheless, it does appear that the method of appointing an alternate juror after the trial began comported with the mandatory language of OCGA § 9-11-47 (b) stating that “[a]lternate jurors in the order in which they are called shall replace jurors who become or are found to be unable or disqualified to perform their duties.” It also appears from the discussion between trial counsel and the trial court after the juror was excused that when the trial court announced its intentions concerning alternate jurors at the beginning of trial, the parties did not object to the manner in which alternate jurors would be selected. We find no error.

5. (a) Chouinard enumerates as error three charges. First, he contends that the court’s charge on burden of proof was confusing to the jury. The court charged the jury that the condemnor met its burden of proving just and adequate compensation by introducing evidence of value, that this burden never shifted, and that the burden of producing evidence fell upon the condemnee when the condemnee asserted a greater value. This charge was an accurate statement of the law. See Dawson v. Dept. of Transp., 203 Ga. App. 157, 158-159 (2) (416 SE2d 163) (1992); Glover v. Dept. of Transp., 166 Ga. App. 512 (304 SE2d 567) (1983).

(b) Chouinard contends the following charge was error: “Where an award of damages is sought based on the [loss] of future income, that is, a stream of income coming in over a period of time, it is normally necessary to reduce the amount to its present value.” He argues that this charge was incomplete because the jury was allowed to attach any percentage it desired to the discount procedure. According to Chouinard, the trial court should have charged the text of OCGA § 51-12-13, which provides that “[i]t shall be lawful for the trier of fact, in determining the present value of any future earnings . . ., to reduce the same to the present value upon the basis of interest calculated at 5 percent per annum.”

We find no error in the trial court’s refusal to charge the text of this statute, because the statute applies to actions in tort, not to the issue of just and adequate compensation in a condemnation action. Our law is well settled that “[a] request to charge must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” (Citation and punctuation omitted.) Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 225 (10) (b) (489 SE2d 329) (1997).

(c) The trial court charged the jury that the parties agreed that the landowner and the tenants were entitled to be paid for their property and respective leases in some amount. Chouinard contends that the portion of the charge implying his agreement that the tenants were entitled to compensation was error, for he states that he “did not agree that the tenants were entitled to any type of an award.” Although Chouinard may not have agreed that the tenants were entitled to any compensation, we find no error in the trial court’s charge. The substance of the charge was an accurate statement of the law. “A leasehold interest is ‘property for which the leaseholder is entitled to receive compensation when his interest is taken or damaged for a public purpose. [Cit.]” Bill Ledford Motors v. Dept. of Transp., 225 Ga. App. 548, 549 (484 SE2d 510) (1997). Whether Chouinard “agreed” with the well-settled law is irrelevant.

6. Chouinard contends that a party was improperly added after the commencement of trial. Several weeks before trial, the city moved under OCGA §§ 9-11-19 and 9-11-21 to add Johnny’s Pizza, Inc. as a party condemnee. For unexplained reasons, the trial court did not enter an order granting this motion until after the trial concluded. As stated by Chouinard, however, “the case was tried as if this new party had been added, and the subsequent judgment was entered with the corporate condemnee shown.” After all evidence was presented, Chouinard unsuccessfully moved for mistrial on the ground that Johnny’s Pizza had been improperly added.

Before trial, tenants/condemnees Bruce Jackson d/b/a Johnny’s Pizza, Lamar Huff, Inc., and Lamar Huff, individually, d/b/a Starship Enterprises, filed an amendment to their proposed pretrial order noting that the name of one of the condemnees was incorrectly identified as Bruce Jackson d/b/a Johnny’s Pizza and was more correctly identified as Johnny’s Pizza, Inc. Apparently the city then moved to add Johnny’s Pizza, Inc. as a party in response to this amendment, but the court did not enter a written order on this motion until after trial.

We find no error. It appears that the tenants merely corrected a misnomer, which they were entitled to do. See generally Goodman v. Frolik & Co., 233 Ga. App. 376, 379-380 (3) (504 SE2d 223) (1998). Chouinard could not realistically claim surprise at the trial level, as he was or should have been aware of the impending change by virtue of the tenants’ amendment to the proposed pre-trial order. Chouinard made no timely objection to this proposed amendment or to the city’s motion. He instead waited until the end of the lengthy trial, after the case had proceeded as if the new party had been added, to move for mistrial. Under these circumstances, we conclude that he waived objection to the addition or, perhaps more accurately, substitution of Johnny’s Pizza, Inc.

7. Chouinard argues that the trial court’s judgment was incorrect with respect to interest. On September 8,1989, the city paid into court a lump sum of $326,720, representing its estimate of just and adequate compensation. On November 2 of that year, the trial court entered a consent order reflecting an allocation of this sum among Chouinard and the tenants of the shopping center, and on November 9, 1989, the trial court directed the clerk of court to pay to Chouinard the sum of $243,700, which represented the city’s estimate of Chouinard’s interest. Chouinard contends that the trial court’s judgment erroneously failed to include interest accruing between September 8 and November 9, 1989.

After just and adequate compensation has been ascertained and established by judgment, the judgment shall include, as part of the just and adequate compensation awarded, interest from the date of taking to the date of payment . . .; but interest shall not be allowed on so much thereof as shall have been paid into the court and was subject to withdrawal by the condemnee without the requirement of posting a bond as required by Code Section 32-3-15.

OCGA § 32-3-19 (c).

As argued by the city, a bond may not have been required in this case by OCGA § 32-3-15. But we cannot agree that Chouinard was not entitled to interest under OCGA § 32-3-19 (c). The lump sum estimate of just and adequate compensation, when paid into the court by the city, was not immediately “subject to withdrawal” by Chouinard, for it had not been apportioned among Chouinard and his tenants. He was able to withdraw his share of the estimated value of the property only after the court entered its November 9 order. We therefore remand this case to the trial court with the direction that the trial court determine interest from September 8, 1989 until November 9, 1989 and enter a judgment reflecting that interest.

Case No. A98A1761

8. Johnny’s Pizza and Starship Enterprises (sometimes collectively referred to as “tenants”) contend that the trial court erroneously permitted the city to refer to relocation expenses during opening statements and to submit evidence of such expenses to the jury.

After reviewing the evidence, we conclude that the city has shown very marginal relevance of the objected-to evidence to the issue of the value of trade fixtures removed by Johnny’s Pizza to its new location, which was not compensable, as opposed to the value of trade fixtures that were left behind, which may have been compensable. But we also agree with Starship that the trial court erred in allowing the city to introduce evidence concerning Starship’s relocation expenses, for it appears from the record before us that relocation expenses were the subject of separate, administrative procedures instituted under Georgia’s version of the Uniform Relocation Assistance & Real Property Acquisition Policies Act of 1970, as codified at OCGA § 32-8-1 et seq. (“the Act”). See Dept. of Transp. v. Gibson, 251 Ga. 66 (303 SE2d 19) (1983) (discussing relationship of administrative action seeking relocation expenses under Act to such expenses sought in judicial proceedings).

In November 1989, nearly five years before trial began, the trial court entered a consent order memorializing an agreement between the city and the tenants concerning issues raised by the tenants’ motions to “set aside, annul, vacate and dismiss the declaration of taking.” Included in those motions were the tenants’ contentions that the city violated certain provisions of the Act. The purpose of the November 1995 consent order was to “compromise and settle” these issues. The order recited that the city had paid into the court’s registry a certain sum representing just and adequate compensation and reflected the city’s allocation of this sum between Chouinard and the tenants. With regard to trade fixtures, relocation, and reestablishment costs, the order specifically stated: “Except as to the trade fixtures of [Johnny’s] Pizza, these items are not included in this allocation and are the subject of separate negotiations between Condemnor and the Condemnees.” It therefore appears, as argued by tenants, that relocation expenses were to be determined by the separate administrative procedures afforded by the Act. The city does not dispute that the Act applies in this case. Consequently, to the extent that the objected-to evidence was admitted for the sole purpose of proving relocation expenses, it was erroneously admitted. See Gibson, supra at 69 (1). While the city has shown slight relevance of the evidence as it pertains to the value of Johnny’s trade fixtures, it has failed to show such relevance with regard to Starship’s claims. Star-ship is accordingly entitled to a new trial.

9. A new trial also is required on behalf of Johnny’s Pizza, because the city did not introduce adequate evidence of depreciation with regard to equipment used by Johnny’s Pizza.

On behalf of the city, Samuel Green performed an appraisal of the restaurant equipment inside Johnny’s Pizza. He testified that he basically used the cost and market approaches in appraising this equipment but explained only how he employed the cost approach. He stated that “[t]he cost approach was derived by obtaining the current cost from manufacturers or nationally recognized cost publications, and depreciation was used on observations of physical depreciation, functional inadequacies.” He also stated that he depreciated the equipment “because it was used.” Over tenants’ objection, the trial court admitted into evidence a document containing Green’s itemized descriptions and estimates of values. On cross-examination, Green admitted that he did not find a specific dollar amount of depreciation.

Decided March 9,1999

Reconsideration denied March 30,1999

Glenville Haldi, for appellant (case no. A98A1760).

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellants (case no. A98A1761).

Charles S. Johnson III, for appellee.

Although Green testified that he considered depreciation when he valued the property, he was also required to provide the jury with some means of calculating the depreciation so as to determine the fair market value by the replacement cost method. See MARTA v. Dendy, 250 Ga. 538, 542 (1) (a) (299 SE2d 876) (1983). Not only did he fail to offer any testimony as to the formula or basis he used to compute depreciation, Dept. of Transp. v. Fitzpatrick, 184 Ga. App. 249, 250 (3) (361 SE2d 241) (1987), but he also failed to provide a dollar amount of depreciation to the jury. Under these circumstances, reversal is required. See Dendy, supra; Fitzpatrick, supra. Accordingly, the jury’s verdict as to Johnny’s Pizza is reversed.

10. The parties’ remaining enumerations of error are rendered moot by our holdings in Divisions 8 and 9.

Judgment in Case No. A98A1760 vacated and case remanded with direction. Judgment in Case No. A98A1761 reversed.

Johnson, C. J., and Barnes, J., concur.

       Space in the shopping center was leased to other tenants as well, but they are not parties to this appeal.

       As described by Love, “[t]he income approach is what an investor looks at if he’s going to buy this property and not occupy it for his own use. He wants to know what kind of rent can be gotten and what expenses will have to be paid and what will be the net income that would be available for a mortgage payment, what would be left over for him after that.”


text:
    A98A1796.
    PARRISH v. THE STATE.
    (514 SE2d 458)
   Ruffin, Judge.

A jury found Earl Parrish guilty of rape and Parrish appeals, asserting numerous errors. Since Parrish’s assertions lack merit, we affirm.

1. In claiming that the prosecution failed to carry its burden of proof, Parrish essentially challenges the sufficiency of the evidence. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” (Punctuation omitted.) Griffis v. State, 222 Ga. App. 322 (1) (474 SE2d 119) (1996).

So viewed, the evidence shows that in December 1995, the victim broke off her engagement with Parrish, but continued to see him. On May 27, 1996, after spending Memorial Day weekend with Parrish, the victim informed him that she needed to leave to pick up her children from her ex-husband. According to the victim, Parrish became tearful and angry when she attempted to leave, took her keys, and threatened to kill her.

Without the keys to her truck, the victim started to leave on foot, but Parrish followed her in her truck, screaming obscenities. After the victim made it to her house, she called Parrish and asked him to leave her truck for her in a field by her house. Parrish complied with her request and the victim retrieved her truck from the field and drove to a gas station. The victim testified that while she was at the gas station, Parrish approached her with a knife, forced her into the truck, and drove her to his parents’ house where he punched and kicked her in the face, back and ribs, and slammed her head into the stove. Thereafter, Parrish drove the victim to a deserted area where he stabbed her numerous times on her hands, arms, shoulders and back. Parrish told the victim to run and when she did not, he began throwing rocks at her and pushed her off of a bridge. The victim also testified that Parrish whipped her with a fishing rod and forced her to swim through a snake-filled swamp while he continued to throw rocks at her. According to the victim, Parrish then put sleeping pills in her mouth and made her drink some beer, and the next thing she knew she woke up in Parrish’s house.

Parrish later drove the victim to a hotel in Savannah where, without her consent, he had intercourse with her. The victim testified that when she cried out “no, no, get off,” Parrish “head butted” her on her right temple. The next day, Parrish took the victim to a hospital in Savannah. According to the victim, Parrish threatened to kill her if she told anyone what he had done. Parrish instructed her to tell the hospital staff that she had fallen on an oyster bed. The hospital staff, realizing that the victim’s injuries were not consistent with such a fall, asked her what happened. After the victim attributed her injuries to Parrish, a nurse called the police. One of the emergency room nurses testified that the victim had “numerous bruises everywhere.” The State introduced photographs into evidence that showed extensive bruises and numerous stab wounds and whip marks on the victim’s body.

OCGA § 16-6-1 (a) provides that “[a] person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” Since the victim’s testimony established every element of rape, her testimony alone is sufficient to support a finding of guilt beyond a reasonable doubt. See Thompson v. State, 203 Ga. App. 339 (1) (416 SE2d 755) (1992).

2. In six enumerations of error, Parrish contends the trial court erred in admitting the testimony of Dr. Nagleberg, an expert witness who testified regarding “battered woman syndrome.” Specifically, Parrish claims that the expert’s testimony: (i) was neither necessary nor scientifically valid; (ii) placed his character into evidence; (iii) lacked the proper foundation; (iv) was premised upon a hypothetical that was not supported by the facts in evidence; (v) was improperly admitted because the expert never examined the victim; and (vi) impermissibly bolstered the victim’s credibility.

During the trial, Parrish’s attorney cross-examined the victim regarding her failure to seek help while she was being held by Parrish. Parrish’s attorney pointed out that the victim had ample opportunity to seek help on the drive between Parrish’s parents’ house and the hotel in Savannah, since Parrish and the victim stopped at a restaurant, a gas station and a store. Thus, although Parrish did not testify or put up any witnesses, it is clear that part of his defense was to undermine the credibility of the victim based on the fact that she did not initiate an outcry for help.

Dr. Nagleberg, who had not examined either Parrish or the victim, testified generally about the profile of a typical abuser and the effects such abuse has on its victims. In questioning Dr. Nagleberg, the State asked Dr. Nagleberg whether the victim’s failure to “make an outcry” made “any sense.” Dr. Nagleberg responded that “even people who have been kidnapped and are exposed to public situations will frequently not ask for help.” Dr. Nagleberg also testified about the characteristics of an abuser, stating that abusers “typically grow up in a home that has some sort of physical violence” and that “these men frequently have been in trouble with the police in past occasions.” According to Dr. Nagleberg, “[firequently, there is a history of alcohol or drug abuse” with batterers.

(i) With regard to Parrish’s claim that the expert testimony was neither necessary nor scientifically valid, we note that “[e]xpert opinion testimony on issues to be decided by the jury ... is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981). In Smith, the Supreme Court concluded that testimony regarding battered woman’s syndrome is admissible because the reasons why a battered woman “would not leave her mate, would not inform police or friends, and would fear increased aggression against herself, would be such conclusions that jurors could not ordinarily draw for themselves.” (Punctuation omitted.) Id.

However, we recognize that expert testimony regarding “battered woman’s syndrome” typically is introduced by a defendant who claims to be a victim of abuse in connection with establishing a defense of self-defense. See Smith, supra; Smith v. State, 268 Ga. 196 (486 SE2d 819) (1997); Chapman v. State, 259 Ga. 706 (386 SE2d 129) (1989); Cox v. State, 216 Ga. App. 86, 87 (2) (453 SE2d 471) (1995); Pugh v. State, 191 Ga. App. 394 (382 SE2d 143) (1989). In this case, however, the State used Dr. Nagleberg’s testimony as an “affirmative weapon” against Parrish. See Sanders v. State, 251 Ga. 70, 75 (3) (303 SE2d 13) (1983).

Dr. Nagleberg’s testimony served to create a “profile” of both the typical victim and abuser. Such a “profile” suggests to the jurors that the defendant shares the characteristics of the typical abuser and, as such, places the character of the defendant in issue. Sanders, supra at 76. Therefore, Georgia courts have limited the State’s ability to use profile testimony against a defendant. See Penson v. State, 222 Ga. App. 253, 255 (1) (474 SE2d 104) (1996).

Unless a defendant has placed his character in issue or has raised some defense which the profile is relevant to rebut, the state may not introduce evidence of the profile, nor may the state introduce character evidence showing a defendant’s personality traits and personal history as its foundation for demonstrating the defendant has the characteristics of a typical profilist.

(Punctuation omitted.) Id.

In this case, Parrish’s attorney sought to defend his client by undermining the victim’s credibility through illustrating her failure to seek help. Accordingly, Dr. Nagleberg’s testimony regarding the “learned helplessness” of women in abusive relationships was relevant to explain the victim’s behavior. See Hall v. State, 196 Ga. App. 523, 526 (3) (396 SE2d 271) (1990) (expert evidence addressed the behavior of the victim rather than of the accused).

(ii) Nevertheless, we agree with Parrish that Dr. Nagleberg’s testimony regarding the typical characteristics of an abuser improperly placed Parrish’s character in issue. Specifically, Dr. Nagleberg’s testimony regarding the typical batterer’s drug and alcohol use was not necessary to rebut any defense or issue raised by Parrish. Thus, the trial court erred in failing to limit Dr. Nagleberg’s testimony in this regard. Given the overwhelming evidence of Parrish’s guilt, however, “we find that it is highly probable that the error did not contribute to the verdict.” See Sanders, supra at 76.

(iii) & (iv) Parrish also claims that the State failed to lay the proper foundation for Dr. Nagleberg’s testimony since the doctor never examined either the victim or Parrish. This contention lacks merit.

The opinions of experts, on any question of science, skill, trade, or like questions, shall always be admissible; and such opinions may be given on the facts as proved by other witnesses. The proper mode of examining a[n] expert, where he is not testifying from his own knowledge, is to ask him hypothetical questions.

(Punctuation omitted.) Kimball v. State, 63 Ga. App. 183,185-186 (2) (10 SE2d 240) (1940).

(v) According to Parrish, he is entitled to a new trial on the grounds that the State, in posing its hypothetical question to Nagleberg, relied upon facts not in evidence. Assuming, without deciding, that Dr. Nagleberg based his opinion, in part, on facts not in evidence, this does not require reversal. “[T]he fact that an expert’s opinion may be based in part on facts not in evidence goes to its weight, not its admissibility.” Roberson v. State, 214 Ga. App. 208, 211 (8) (447 SE2d 640) (1994).

(vi) Parrish contends that Dr. Nagleberg improperly commented on the truthfulness of the victim. This contention also lacks merit. “Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury. An expert witness may not testify as to his opinion of the victim’s truthfulness.” (Punctuation omitted.) Jennette v. State, 197 Ga. App. 580, 582 (2) (398 SE2d 734) (1990). However, the fact that expert testimony indirectly touches upon a witness’ credibility does not render it inadmissible. See Barlow v. State, 270 Ga. 54, 55 (507 SE2d 416) (1998). As discussed, the trial court admitted Dr. Nagleberg’s testimony for a proper purpose. Thus, the possibility that the testimony may have touched on the victim’s credibility does not render it inadmissible. Id.

3. Parrish claims that the trial court erred in admitting evidence of his prior difficulties with the victim.

[E]vidence of the defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted.

Wall v. State, 269 Ga. 506, 509 (2) (a) (500 SE2d 904) (1998). However,

the true test of admissibility is not the number of similarities between the crimes, but whether the evidence of prior incidents was substantially relevant for some purpose other than to show that the defendant likely committed the crime because he is a person of bad character.

(Citation omitted.) Simmons v. State, 266 Ga. 223, 225 (2) (466 SE2d 205) (1996).

Parrish argues that this testimony should have been excluded because none of the prior incidents as described by the victim involved a sexual assault. However, Parrish failed to object when this evidence was admitted and, thus, waived this claim of error. Baise v. State, 232 Ga. App. 556, 561 (3) (502 SE2d 492) (1998).

4. In three separate enumerations of error, Parrish contends that the trial court erred in admitting evidence of similar transactions involving his ex-wife. The ex-wife testified that following the break-up of her marriage, Parrish had kidnapped her, threatened her while wielding a small axe, and raped her. According to Parrish, the State failed to provide adequate notice of its intent to introduce similar transactions. However, Parrish has not preserved this issue for review. “Although [Parrish] apparently made a lack of similarity objection at the pretrial similar transaction hearing, he waived this ground by failing to make this objection when the similar transaction evidence was introduced at trial.” (Punctuation omitted.) Davis v. State, 229 Ga. App. 787, 789 (2) (494 SE2d 702) (1997).

Even if Parrish had preserved this objection for appellate review, it is without merit.

Uniform Superior Court Rule 31.3 (B) governs notice of the State’s intent to introduce similar transactions evidence and provides in part: “The notice shall be in writing, served upon the defendant’s counsel, and shall state the transaction, date, county, and the name[ ] of the victim! ] for each similar transaction or occurrence sought to be introduced.”

Ramsey v. State, 214 Ga. App. 743, 745 (2) (448 SE2d 790) (1994).

The apparent purpose of the rule is to provide a criminal defendant with fair and adequate notice of the State’s intention to utilize evidence of prior similar transactions so that questions as to the admissibility of such evidence can be resolved before trial.

(Punctuation omitted.) Id.

Here, more than ten days before the trial, the State notified Parrish that it intended to introduce evidence of an “incident occurring in 1988 in which defendant raped his ex-wife ... at knife point.” In failing to provide the location and county where this offense occurred, the State was not in technical compliance with the rule. However, “[t]he purpose of the rule is to provide the defendant with fair and adequate notice of the listed transactions so that questions of admissibility may be raised and addressed prior to trial.” Jackson v. State, 217 Ga. App. 485, 489 (4) (458 SE2d 153) (1995). The State’s notice served to give Parrish adequate notice of the similar transaction to be introduced. Accordingly, the trial court did not err in admitting the evidence. See Jackson, supra.

Parrish also asserts that the trial court did not make the requisite findings for admission of the similar transaction as required by Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991). This assertion is without merit. Before the trial court finds that a similar transaction is admissible, the State must show that: (1) there is sufficient evidence that the similar transaction occurred; (2) the evidence is being offered for an appropriate purpose; and (3) there is a sufficient connection or similarity between the similar transaction and the crime alleged so proof of the former tends to prove the latter. See Williams, supra at 642-643.

During a pre-trial hearing on the admissibility of the similar transactions, the State explained that Parrish’s ex-wife would testify that Parrish had raped her at knifepoint. The State made clear that it was offering, this testimony to establish Parrish’s intent, bent of mind and course of conduct. Based on the State’s proffer, the trial court found that the State had satisfied the three elements of Williams. We agree. Accordingly, the trial court did not err in admitting the similar transaction evidence. See Fetty v. State, 268 Ga. 365, 369 (5) (489 SE2d 813) (1997).

Finally, Parrish contends that the trial court erred in failing to perform a balancing test in accordance with Oller v. State, 187 Ga. App. 818, 820 (2) (371 SE2d 455) (1988). In Oller, we recognized that the lapse of time between the similar transaction and the crime alleged is a factor to be taken into consideration when the trial court balances the probative value of the prior incident against its potential prejudicial impact. Although he does not argue this in his brief, Parrish apparently suggests that the 1988 rape of his ex-wife was too remote in time to be admissible.

We note, however, that Parrish failed to object to his ex-wife’s testimony on this ground below. Thus, the trial court never had an opportunity to consider the length of time between the two incidents. “In order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground. Objecting on specific grounds waives the grounds not asserted.” (Citations and punctuation omitted.) Campbell v. State, 228 Ga. App. 258, 263 (3) (b) (491 SE2d 477) (1997). “The rule is that the scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching [or] shifting.” (Punctuation omitted.) Robinson v. State, 208 Ga. App. 528, 530-531 (4) (430 SE2d 830) (1993).

5. In a related enumeration of error, Parrish claims that the trial court gave an erroneous limiting instruction to the jury regarding the use of similar transactions evidence. Before Parrish’s ex-wife took the stand, the trial court told the jury that evidence of similar transactions ordinarily “may not be used because it brings the defendant’s character into question, which is not a valid criteria for you to use in deciding his innocence or guilt.” The trial court went on to explain that similar transaction evidence only could be used “for the limited purpose of showing, if it does, the state of mind or bent of mind or motive or intent of the defendant or the course of conduct of the defendant as relates to his action.” Parrish neither objected to this instruction, nor did he request that any additional instruction be given. “Having failed to timely inform the trial court of any further action [he] desired taken, [Parrish] cannot now complain.” Wilkins v. State, 220 Ga. App. 516, 518 (2) (469 SE2d 695) (1996).

6. In two enumerations, Parrish argues that the trial court erred in barring him from introducing evidence of the victim’s drug use while allowing into evidence testimony regarding his own drug use. We note at the outset that “fw]hether to admit evidence is a matter that rests in the sound discretion of the trial court.” Price v. State, 269 Ga. 373, 374 (2) (497 SE2d 797) (1998). Such discretion will not be reversed absent abuse, and we find no abuse here, in this instance.

In this case, the only mention of Parrish’s drug use was when Parrish’s ex-wife testified regarding his stint in rehabilitation. According to this witness, she had a phone conversation with Parrish several months before the alleged rape during which he told her that the victim said she would not see him until he finished rehabilitation. According to the ex-wife, although Parrish had finished rehabilitation early, the victim still would not see him. The ex-wife testified that Parrish “was getting very angry and said that he was going to kill [the victim].”

In admitting this testimony, the trial court did not abuse its discretion because it served to explain Parrish’s motive. “Evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue.” Johnson v. State, 260 Ga. 457, 458 (2) (396 SE2d 888) (1990) (state is entitled to present evidence of motive).

In a pre-trial motion, Parrish sought permission to introduce evidence of the victim’s prior drug use and of her alleged relationship with a drug dealer. The trial court excluded the evidence as irrelevant. “The right to a thorough and sifting cross-examination is not abridged when the trial judge limits it to relevant matters.” (Punctuation omitted.) Dunton v. State, 216 Ga. App. 191 (453 SE2d 800) (1995).

Moreover, whether the victim used drugs in the past or was generally knowledgeable about illegal drugs is irrelevant to the issue of whether [Parrish] committed the offense of rape. . . . Rape is no more lawful when committed against a woman who uses [drugs] than it is against one who does not use [drugs]. Furthermore, instances of specific misconduct may not be used to impeach a witness’ character or veracity unless the misconduct has resulted in the conviction of a crime involving moral turpitude. Since no such conviction has been shown to exist in this case, we find no error in limiting [Parrish’s] cross-examination of the victim.

(Citation and punctuation omitted.) Id.

7. In two enumerations of error, Parrish claims that the State committed reversible error when it asked Dr. Nagleberg how long it would have taken him to examine Parrish. According to Parrish, this question placed his character in evidence by implying that he could have visited a psychologist. Parrish also asserts that the State’s question was tantamount to a comment on his failure to testify. Pretermitting the issue as to whether the State’s question was improper, Parrish waived the issue by failing to raise an objection at trial. Hardegree v. State, 230 Ga. App. 111 (1) (495 SE2d 347) (1998).

8. Parrish contends that the trial court erred in admitting evidence of his “war record.” Specifically, Parrish challenges the admissibility of the victim’s testimony that, while Parrish was holding her at knifepoint, he said “I could kill you so easily.” According to the victim, Parrish then told her that, while in the Marines, he had killed a girl and had sex with her corpse. Contrary to Parrish’s contention, testimony that he threatened the victim prior to raping her was admissible over his objection as part of the res gestae even if such evidence incidentally placed his character in evidence. See Bohannon v. State, 208 Ga. App. 576, 581 (3) (431 SE2d 149) (1993). Thus, the trial court did not err in admitting this testimony.

9. Parrish contends the trial court also erred in permitting the State to show the jury enlarged photographs of the victim and the crime scene during its closing argument. The photographs had already been admitted into evidence. The State did not seek to alter the photographs, but rather sought to show the photographs to the jurors through the use of a projector to enlarge the image. This argument lacks merit.

The photographs having been admitted ... it is not error that the state was able to present them in such manner that the entire jury, at one time, might view them. Indeed, the use of overhead projectors in courtrooms presents a far more orderly opportunity to display matters under investigation than the traditional mode, which is either to hold up a single photograph before a jury (where but few jurors are close enough to see it), or to pass the photographs from juror to juror while testimony is being taken, or to accumulate all photographs until the completion of testimony and introduce them en gross relying upon the jurors’ ability to recall the testimony in connection with the numbered exhibits.

Dalton v. State, 251 Ga. 641, 642 (2) (308 SE2d 835) (1983).

10. Parrish claims that he received ineffective assistance from his trial counsel.

A defendant claiming ineffective assistance of counsel must show (1) that his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.

Richards v. State, 232 Ga. App. 584, 588 (5) (502 SE2d 519) (1998). “In addition, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy.” (Punctuation omitted.) Brooks v. State, 232 Ga. App. 115, 119 (15) (501 SE2d 286) (1998). “[A] trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” Horne v. State, 231 Ga. App. 864, 866 (2) (501 SE2d 47) (1998).

At the hearing on Parrish’s motion for new trial, Parrish cited multiple instances in which he claimed his attorney provided ineffective assistance including, inter alia: (1) failing to meet with him often enough to adequately discuss the case; (2) failing to call numerous witnesses; and (3) refusing to allow him to testify. The trial attorney testified that he had met with Parrish on ten occasions to discuss the case. According to the attorney, most of the witnesses Parrish wanted to call would testify regarding the victim’s bad character and/or her drug use. In addition, the attorney stated that the decision not to call witnesses was a tactic to preserve closing argument. Finally, the attorney indicated that he advised his client not to testify, but that the decision was Parrish’s and that it was Parrish who elected not to testify. The trial court denied Parrish’s motion.

Decided March 11,1999

Reconsideration denied March 30,1999

Earl Parrish, pro se.

Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellee.

Decisions regarding which witnesses to call and all other trial strategies are the exclusive province of the attorney after consultation with his client. See Richards, supra at 589. Here, trial counsel’s decisions were strategic in nature and were not the result of inadequate preparation. Thus, the trial court did not err in denying Parrish’s ineffective assistance of counsel claim.

11. Over seven months after his appellate attorney filed his appellate brief to this Court, Parrish, proceeding pro se, filed a motion seeking leave to file supplemental enumerations of error and a supplemental brief addressing these additional errors. Pursuant to Court of Appeals Rule 24, a party may request permission to file supplemental briefs. However, enumerations of error may not be amended or supplemented after the time for filing has expired. See Daniel v. State, 228 Ga. App. 634, fn. 1 (492 SE2d 542) (1997); McGraw v. State, 199 Ga. App. 389, 390 (405 SE2d 53) (1991); Driver v. State, 188 Ga. App. 301 (1) (372 SE2d 841) (1988). Therefore, Parrish is not allowed to file either additional enumerations of error or a brief addressing such errors.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       We denied appellant’s Motion for Substitution of Counsel on Appeal and his Motion for Extension of Time to File a Pro Se Brief and Enumeration of Errors by Order dated September 22, 1998. Since that date, appellant has filed a Motion for Supersedeas/Stay of Proceedings and a Motion for Remand with accompanying briefs. In his briefs, however, it is clear that appellant still seeks to supplement his enumerations of error.