author: Pope, Presiding Judge. Beasley, Chief Judge,

text:
    A95A2558.
    HAMMOND v. THE STATE. DURDEN v. THE STATE.
    A95A2559.
    (470 SE2d 302)
   Pope, Presiding Judge.

Defendants Lloyd Hammond II and Timothy Durden were tried together and convicted of violating the Georgia Controlled Substances Act. Defendants appeal their convictions following the denial of their motions for a new trial. Concluding that the evidence was not sufficient to warrant the convictions, we reverse.

Construed most favorably to the verdict, the evidence shows that a confidential informant (Cl) was arrested by the Gwinnett County police on drug charges. According to Gwinnett County Police Officer Ponder, the Cl told him that he knew of “people” who were willing to sell drugs. Thereafter, Ponder allowed the Cl, on his own, to set up a drug buy to take place between a drug supplier, the Cl and Ponder. The Cl allegedly talked to the supplier by phone. Ponder did not overhear the conversation, nor did he talk to the supplier himself. The Cl did not at any time divulge the supplier’s name or describe the supplier to Ponder.

Based on what the Cl told him, Ponder, who was wearing a radio transmitter, and the Cl went to a bar in Norcross, Georgia, to await the arrival of the supplier. Other police officers, including Jose Diaz, waited in the surrounding area in unmarked cars, and one officer videotaped the scene from a van. The Cl told Ponder that the suppliers might be in a blue Chevrolet Blazer. Subsequently, Durden appeared immediately outside the door to the bar and motioned for the Cl. After talking with Durden, the Cl returned to the table and said that the people did not want to deal directly with Ponder because they did not know him. The Cl then told Ponder that he was going outside to see the drugs.

When the Cl returned, he told Ponder that he had seen cocaine in a Cadillac, and that the people wanted the Cl to bring them the money for the drugs. At this point, Ponder left the bar and walked toward his car. As he did so, he noticed Hammond standing next to the Cadillac. Without speaking to Durden or Hammond, Ponder gave the signal for police to block off the Cadillac. Hammond was arrested next to the car while eating a hamburger. Durden was arrested standing in front of the bar. Neither defendant attempted to flee. When police tried to locate the Cl, they discovered that he had left the scene.

Diaz searched the Cadillac and found no drugs. He also found no guns or drug paraphernalia. Both defendants were searched to no avail. Twenty minutes after defendants’ arrest, however, Diaz noticed a plastic bag on top of an eight-foot wall which was approximately twenty feet from the Cadillac. Diaz retrieved the bag and found over four ounces of crack cocaine.

At trial, the State did not call the Cl as a witness, and the Cl’s identity was not disclosed to defendants, even though defendants filed a motion seeking such disclosure. Although Diaz testified that there were no other people in the immediate vicinity of the Cadillac at the time of or immediately after defendants were arrested, both Diaz and Ponder testified that prior to the arrest there was traffic in and out of the lot, and there were people moving around in the area. The videotape introduced at trial did not show any illegal activity on defendants’ part, and did not show either defendant approach the wall where the bag was found. The only indication that any drugs were ever in the Cadillac came from the information the Cl gave to Ponder, as related to the jury by Ponder and the audiotape of Ponder’s conversations with the Cl.

Case Nos. A95A2558, A95A2559

Both defendants contend that the evidence in this case was insufficient to support their convictions under the standard announced in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We agree. The only evidence of defendants’ alleged possession of the cocaine found on the wall, including the inference that defendants were in Temptation’s parking lot waiting for an unknown person (Ponder) to come out and purchase drugs from them, is based on what the Cl told Ponder. That evidence, and the CPs statement that he actually went to the Cadillac and saw drugs, constitutes hearsay. And while the statements made to Ponder by the Cl might be admissible to explain Ponder’s conduct in instigating defendants’ arrest, the content of the Cl’s statements is not probative of any of the matters asserted therein. See Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982); State v. Speir, 189 Ga. App. 254, 255 (375 SE2d 298) (1988).

The Cl’s statements also could not be used as probative evidence of defendants’ possession of the cocaine under the “necessity exception” to the hearsay rule found in OCGA § 24-3-1 (b). “OCGA § 24-3-1 (b) permits the use of hearsay evidence ‘in specified cases from necessity.’ An exception to the rule against the admission of hearsay will be allowed ‘from necessity’ where ‘necessity’ and ‘particularized guarantees of trustworthiness’ are established. Roper v. State, 263 Ga. 201 (2) (429 SE2d 668) (1993); McKissick v. State, 263 Ga. 188 (3) (429 SE2d 655) (1993).” Hayes v. State, 265 Ga. 1 (3) (453 SE2d 11) (1995). In this case, no particularized guarantees as to the Cl’s trustworthiness were established. In fact, Ponder specifically testified that he had no basis to believe anything the Cl told him. Absent any evidence of trustworthiness on the Cl’s part, and in light of the very circumstances surrounding his cooperation with the police, the Cl’s statements also do not constitute probative evidence of possession under the res gestae doctrine because it cannot be said that such statements were free from all suspicion of device, or even that they were spontaneous in nature. See Shapiro Packing Co. v. Landrum, 109 Ga. App. 519 (136 SE2d 446) (1964).

Although it is true that defendants were in the vicinity of the bag of cocaine at the time they were arrested, “[i]t is well established that merely having been in the vicinity of contraband does not, without more, establish possession [of that contraband]. (Cits.) Donaldson v. State, 134 Ga. App. 755, 756 (216 SE2d 645) (1975). Blount v. State, 181 Ga. App. 330, 332 (352 SE2d 220) (1986).” (Punctuation omitted.) Dawson v. State, 183 Ga. App. 94, 97 (357 SE2d 891) (1987). This is especially true in cases like this, where the record demonstrates that other individuals had access to the area prior to the time of arrest.

Absent competent evidence demonstrating that defendants had either actual or constructive possession of the bag of drugs found on the wall, we are compelled to hold that the evidence was insufficient for the jury to conclude that defendants were guilty beyond a reasonable doubt of the crimes for which they were convicted. See Donaldson, supra, 134 Ga. App. at 755; Williams v. State, 126 Ga. App. 350, 354-356 (190 SE2d 785) (1972). Moreover, we note that this case clearly is distinguishable from Lewis v. State, 186 Ga. App. 349 (367 SE2d 123) (1988). Unlike the facts in this case, in Lewis the defendant attempted to flee from police, and during this flight was actually seen stopping and fumbling around in his car on the very spot where drugs were later recovered. Based on the above, we reverse both defendants’ convictions.

Judgments reversed.

McMurray, P. J., Birdsong, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. Beasley, C. J., dissents.

Beasley, Chief Judge,

dissenting.

I respectfully dissent, as the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), taking into account OCGA § 24-4-6. As in Lewis v. State, 186 Ga. App. 349, 351 (367 SE2d 123) (1988), a case which is analogous in circumstances, “[t]aking into account every reasonable inference drawable by the jury in reaching the verdict, the jury could find that the evidence excludes every other reasonable hypothesis save [that which establishes the guilt of the defendants beyond a reasonable doubt].”

The cocaine was in a plastic Kroger grocery bag which had been placed on a wall seven to eight feet high about fifteen feet from, and thus within a few steps of, defendants’ car. Ponder had looked in the car for such a bag based on his conversation with the informant after the informant returned from the car. The rain had stopped less than 40 minutes before the defendants’ arrest, shortly before they arrived. The bag was dry, but the wall was wet. The police who were surveilling the area saw no one else in the vicinity of the bag. The defendants had the opportunity to put the bag there and the motive of caution to do so; they had already had contact with the confidential informant and were waiting for someone, who was unknown to them, to come out of the Temptations Poolroom Lounge. Although the defendants came to the bar parking lot, they never entered the bar. Instead, Durden met with the informant at the door and took him to the car; Hammond stayed with the car, which they had parked at the end of the building next to a wall bordering the parking lot. The jury saw a videotape of the parking lot area taken at the time of the incident by a surveilling officer plus they heard an audiotape of the investigator involved in the attempted purchase, as he talked with the confidential informant and other agents. We do not have these items nor the diagram used to explain the testimony.

A hypothesis is that someone else placed the bag containing 119.8 grams (approximately 4.5 ounces) of 99 percent pure cocaine worth between $850-$l,100 per ounce on top of the wall and walked off, leaving the cocaine for whoever might find it. That person would have left the cocaine in public view and accessibility shortly before defendants’ arrival or after they had parked just 15 feet away. The jury could reject this, and any other conceivable hypothesis deducible from the evidence, as not reasonable. The law is that “the jury is always the arbiter of what is a reasonable hypothesis. [Cits.]” (Emphasis in original.) Elliott v. State, 193 Ga. App. 49, 50 (387 SE2d 18) (1989). See also Key v. State, 213 Ga. App. 556, 557 (445 SE2d 349) (1994).

Decided March 15, 1996.

Ronnie K. Batchelor, for appellant (case no. A95A2558).

Sampson Oliver, Jr., for appellant (case no. A95A2559).

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

Likewise, “ ‘[determinations of witness credibility, weighing the evidence, and resolutions of conflicts presented by the evidence are within the province of the jury. (Cit.)’ [Cit.]” Hesterlee v. State, 210 Ga. App. 330, 332 (1) (436 SE2d 32) (1993).

Defendants did not even consider the evidence as warranting motions for directed verdict but rather awaited the jury’s deliberations about it and decision based upon it. They filed motions for new trial in this case, in which both defendants sought new trials on the general grounds. The judge considered “the entire file, including the transcript. . ., exhibits, motions, and affidavits.” He also heard arguments. Exercising not only the fact-reviewing function but also the broad discretion granted to trial judges to assure that justice is administered, see Mills v. State, 188 Ga. 616, 623-625 (4 SE2d 453) (1939), he denied the motions. This did not constitute legal, reversible error.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A95A2608, A95A2609.
    THEDIECK v. THEDIECK (two cases).
    (470 SE2d 265)
   Pope, Presiding Judge.

We granted Marianne Thedieck’s application for a discretionary appeal of the superior court’s order holding her in contempt for violating the visitation provisions of a child custody order. The instant two cases were numbered separately below because they arise from two separate petitions for contempt which Mark Thedieck filed; because they involve identical issues, the cases will be addressed together.

Marianne and Mark Thedieck were divorced by a consent judgment dated August 10, 1993. The judgment held that Marianne Thedieck would have custody of the parties’ child and set forth visitation provisions for Mark Thedieck.

On June 29, 1994, Mark Thedieck filed a petition for contempt, alleging that Marianne Thedieck had wilfully violated the visitation provisions of the court’s order by depriving him of eight visits with the child. Mark Thedieck also alleged that his ex-wife had violated the court’s order by harassing and stalking him. He filed a second petition for contempt on October 21, 1994, alleging that his ex-wife had again prevented him from visiting the child. Both petitions requested an award of attorney fees and court costs and additional visitation.

Marianne Thedieck filed an answer to the petitions and counterclaimed. She claimed that she was fearful for her well-being and requested that the court modify the visitation and award attorney fees.

On February 22, 1995, the court conducted a hearing at which Mark Thedieck testified that Marianne Thedieck had caused him to miss 11 visits with the child. He submitted into evidence an affidavit which corroborated his testimony regarding one of the visits. Marianne Thedieck denied that she had violated the order; she claimed that the child had been sick on some of the scheduled visitations.

On April 10, 1995, the court issued an order concluding that Marianne Thedieck had wilfully failed to allow Mark Thedieck visitation more than 11 times. The court also found that Marianne Thedieck was in wilful violation of the court’s order by continually harassing her ex-husband with phone calls and by going onto his property.

The trial court ordered that Marianne Thedieck be jailed from April 15, 1995, for 20 days and pay $5,000 in attorney fees and $180 for court costs and filing fees. The order stated that after serving 20 days and upon payment in full of the sums the court ordered, she was to be released. The court further ordered that she could purge herself of her contempt by paying the awards by April 14, 1995, and by allowing Mr. Thedieck to make up a portion of the missed visitation. The court ordered that if Marianne Thedieck failed to make the child available at the designated time, the Sheriff was to incarcerate her.

Marianne Thedieck filed a notice of intent to seek review and a demand for supersedeas. Here, she raises eight enumerations of error.

1. In several enumerations of error, Thedieck raises arguments regarding the nature of the court’s order. She argues that the adjudication could not have been for civil contempt since, at the precise moment of the hearing there was no violation of the visitation provisions occurring, and thus no act to coerce. Furthermore, she claims that because the award of the attorney fees was not part of any prior order, she could not have been in contempt for failure to pay fees which were not yet due. Thedieck argues that if the adjudication was for criminal contempt, the incarceration sanction was excessive, and that the evidence to support this adjudication was insufficient.

“Since the trial court does not specify whether it found [Thedieck] in civil or criminal contempt, we must examine the purpose of the contempt order. See Ensley v. Ensley, 239 Ga. 860 (238 SE2d 920) (1977). Where the primary purpose is to preserve the court’s authority and to punish for disobedience of its orders, the contempt is criminal. Where the primary purpose is to provide a remedy for an injured suitor and to coerce compliance with an order, the contempt is civil. [Cits.] Because the purpose of the contempt order in this case is to obtain the wife’s compliance with the divorce decree, the contempt is civil. Civil contempt orders imposing a sentence to jail for violation of visitation rights should be conditioned upon compliance. Easley v. Easley, 238 Ga. 180, 181 (231 SE2d 763) (1977).” (Punctuation omitted.) Phillips v. Tittle, 261 Ga. 820, 821 (411 SE2d 871) (1992).

In Ensley v. Ensley, supra, 239 Ga. 860, our Supreme Court explained: “[t]he conditional or unconditional imposition of a fine or imprisonment indicates the purpose of an order. If the contemnor is imprisoned for a specified unconditional period (not to exceed 20 days under [OCGA § 15-6-8 (5)]), the purpose is punishment and thus the contempt is criminal. If the contemnor is imprisoned only until he performs a specified act, the purpose is remedial and hence the contempt is civil. [Cit.]” Id. at 861-862.

Here, the conditional nature of the order indicates that the contempt imposed was civil. The order stated that Marianne Thedieck could purge herself of the contempt by paying the awards and by allowing Mark Thedieck to make up a portion of the missed visitation. In other words, the order sought to obtain Marianne Thedieck’s compliance with the visitation provisions of the final judgment.

To the extent that the trial court’s order conditioned Marianne Thedieck’s avoidance of, or release from, incarceration upon payment of the attorney fees award, it was erroneous. A trial court is not authorized to enter an order which simultaneously awards attorney fees in a contempt proceeding and directs that the contemnor be incarcerated unless she pays the award. See generally Burke v. Burke, 263 Ga. 141, 142 (2) (429 SE2d 85) (1993); Davis v. Davis, 138 Ga. 8 (1) (d) (74 SE 830) (1912). Accordingly, this portion of the court’s order conditioning the incarceration on the payment of attorney fees is reversed.

Thedieck’s other arguments regarding the nature of the contempt order are without merit. Thedieck’s argument that the evidence was insufficient for a finding of civil contempt is without merit. While Marianne Thedieck disputed the charges against her, a preponderance of the evidence supported the finding. In re Booker, 195 Ga. App. 561, 564 (4) (394 SE2d 791) (1990); see generally In re Pruitt, 249 Ga. 190, 191 (1) (288 SE2d 208) (1982).

2. Marianne Thedieck argues that the attorney fees award was unauthorized. Although in Division 1 we conclude that the manner in which incarceration was imposed with respect to those fees was improper, the award itself was authorized.

First, as in McDonogh v. O’Connor, 260 Ga. 849 (400 SE2d 310) (1991), issues other than child visitation were at issue here — also at issue was the parties’ compliance with various aspects of the divorce decree. Moreover, although previously attorney fees were not recoverable in a contempt proceeding involving only child custody or visitation rights, see Smith v. Smith, 244 Ga. 230, 231 (2) (259 SE2d 480) (1979); Keith v. Keith, 248 Ga. 819 (286 SE2d 434) (1982), OCGA § 19-6-2 (a) (1) has been amended to allow these fees. See Ga. L. 1985, pp. 877-878. The statute specifically provides that the “grant of attorney’s fees as a part of the expenses of litigation, . . . whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation rights, shall be . . . [w]ithin the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any, to be allowed against either party. . . .” See generally McDonogh v. O’Connor, supra, 260 Ga. 849 (recognizes that statute grants trial courts broad discretion in awarding these fees in alimony and divorce cases); see also Killmaster v. Killmaster, 208 Ga. App. 449 (3) (430 SE2d 817) (1993).

3. We next address Thedieck’s contention that the amount of the attorney fees awarded was excessive and that the court erred by failing to comply with OCGA § 19-6-2 (a) (1). As stated above, the statute mandates that a court consider the financial circumstances of both parties as part of its determination regarding the amount of attorney fees. Weaver v. Weaver, 263 Ga. 56 (428 SE2d 79) (1993). Here, because the record reflects that the court did not properly consider the parties’ financial circumstances, we conclude that the court erred.

Mark Thedieck submitted evidence by affidavit which showed that his outstanding bills for attorney fees in the contempt matters totaled more than $6,000. Other than testimony regarding medical bills which he had paid, there was no evidence about Mark Thedieck’s financial circumstances.

With respect to Marianne Thedieck’s financial circumstances, there was evidence that she had no job, though she was trying to start a business. She testified that her three children lived with her in a house which was provided by her parents; that her vehicle was provided by her parents; and that her parents helped her out with money when she needed it. She stated that Mark Thedieck paid her $500 a month in child support. She also testified that her mother had paid her initial attorney fees of $2,500 and that her mother paid fees of $7,500 to her second attorney.

We have also reviewed the record from the divorce proceeding. Though there was detailed financial information provided to the court before the divorce, that information was more than two years old at the time of the contempt hearing.

Although a more thorough examination of her financial circumstances might have shown that Marianne Thedieck was capable of paying the sum ordered, the record before us does not establish this fact. In the absence of consideration of Marianne Thedieck’s financial status, the attorney fees award could amount to imprisonment for a debt. In civil contempt cases involving child support or alimony, imprisonment conditioned upon payment of the sums owed is not “imprisonment for debt where the contemnor is found to be able but unwilling to pay. [Cits.]” Ensley v. Ensley, 239 Ga. at 862. The logic of these cases is that “a man who refuses to pay alimony or child support when he is able to do so is imprisoned for his refusal to abide by the court’s order, not for debt. . . . The imprisonment must be clearly for the contempt of the process of the court, and be of one who is able and unwilling to obey the order of the court. ...” (Citation and punctuation omitted.) Id. at 862-863.

Here, because the court did not properly consider Marianne Thedieck’s financial circumstances, there was no evidence that she was able to pay the attorney fees ordered. Thus, if Thedieck failed to pay the awarded fees, the failure would not necessarily be a refusal to abide by the court’s order, but might simply arise from an inability to pay. Accordingly, with respect to the amount of the attorney fees award, we vacate the judgments and remand the cases with direction for a more detailed consideration of the parties’ financial circumstances. See generally Weaver v. Weaver, supra, 263 Ga. 56. Following the court’s receipt of evidence on this matter, the award of attorney fees may be reinstated, subject to our holding in Division 1.

4. Thedieck argues that the court’s order omitted stipulated matters which had been approved by the court. We have reviewed this argument and find it without merit.

5. Finally, Thedieck argues that OCGA § 5-6-35 (a) (2) is unconstitutional in that it denies due process to a class of citizens based on social status. Essentially, she argues that there is an unfair distinction between the direct appeal provisions for contempt of OCGA § 5-6-34 (a) (2) and the discretionary appeal process for adjudications of contempt in domestic relations cases of OCGA § 5-6-35 (a) (2). When Thedieck’s application for appeal was granted, this question became moot and we will not address it here.

Judgments affirmed in part, reversed in part, vacated in part and cases remanded with direction.

Decided March 15, 1996.

Turner, Turner & Turner, Nelson G. Turner, for appellant.

Whitehurst, Cohen & Blackburn, Ronald A. Cohen, Long & Denton, Allen D. Denton, for appellee.

Beasley, C. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A95A2726.
    RANDOLPH v. THE STATE.
    (470 SE2d 300)
   Ruffin, Judge.

Keldin Randolph was convicted of two counts of selling cocaine and was sentenced to life imprisonment. Neither a motion for new trial nor a timely appeal was filed, and Randolph now appeals the trial court’s denial of his motion for an out-of-time appeal. Because we find that the trial court erred in denying Randolph’s motion for an out-of-time appeal, we reverse.

On August 16, 1994, Randolph was convicted by a jury in Hall County Superior Court of two counts of selling cocaine. OCGA § 16-13-30 (b). Two years earlier, he had pled guilty to possession with intent to distribute cocaine. OCGA § 16-13-30 (b). Although the plea was entered under the First Offender Act, defendant did not successfully complete that program and was adjudicated guilty of the first crime two months before his trial on the current charges. Because of the first offense, Randolph was automatically sentenced to life in prison. OCGA § 16-13-30 (d). The two life sentences were made to run concurrently.

1. Randolph contends that after sentencing he asked his attorney whether he would be handling the appeal, and the attorney stated he would be in touch with Randolph. Randolph argues that because the attorney never contacted him and was unresponsive to inquiries from his mother regarding the appeal, the trial court erred in denying his motion for out-of-time appeal. The record shows that at the conclusion of Randolph’s trial, the court informed him that he had the right to appeal and that if he was indigent, an attorney would be appointed for him for the appeal. The court then instructed Randolph that he “must make application with Miss Hooper in Pretrial Release for the appointment of counsel. . .” and that he had to make application for appointment of counsel “if you want counsel to assist you with an appeal.” The court advised that there were time limits but did not state what they were and only cautioned defendant to make application “immediately and without . . . delay.” Whereupon, Randolph was remanded to the custody of the sheriff.

However, Randolph did not make such application. He explained, proceeding pro se at his habeas corpus hearing on June 12, 1995, that he did not do so after he was sentenced because “the court was having another case, and I didn’t have a chance to get in touch with pretrial release, because when I got back to the county jail, it was around four-thirty to five o’clock, and that office was closed, and I was shipped out, back to Bostick Cl the next day, on August 17th.” We note that proceeding pro se, Randolph had previously moved the trial court for his trial transcript, court records, and permission to proceed in forma pauperis, but these were never acted on. Neither was his motion for appointment of counsel acted on when he sought an out-of-time appeal after being denied habeas corpus relief.

After the court which held the habeas corpus hearing ruled that Randolph had not been denied the effective assistance of counsel, Randolph returned to the Macon Correctional Institution and moved the trial court for an out-of-time appeal. The motion was filed in the clerk’s office on July 12, the same day as the trial court’s order on the motion. The court, “having considered the defendant’s motion and the allegations contained therein,” denied the motion.

There is nothing in the record to indicate that the court reviewed the habeas transcript of the hearing on June 12, which transcript was certified by the court reporter in Macon County on July 2. In fact, the transcript was not filed in the criminal trial court until January 18, 1996, after Randolph’s appeal was docketed in this Court, and the trial court clerk transmitted it to this Court upon receiving it. Finally, Randolph’s notice of appeal from the denial of his motion for an out-of-time appeal was timely filed.

We review the record as it was before the trial court when it made the ruling of which an appellant complains, since our function is to correct errors of law, if any, made by the trial court. Minton v. State, 205 Ga. App. 430, 432 (3) (422 SE2d 300) (1992); Allen v. Bergman, 201 Ga. App. 781, 782 (3) (b), 784 (412 SE2d 549) (1991). See generally Harp v. State, 204 Ga. App. 527 (1) (420 SE2d 6) (1992). Thus, the habeas corpus transcript does not figure in resolving the issues in this appeal.

In Randolph’s motion for an out-of-time appeal, he alleges that he advised counsel at trial of his desire to appeal, that he never intentionally and intelligently waived his right to appeal, and that his trial counsel left him with the thought that his appeal was being initiated in a proper and timely manner. He asserts that the failure to file a timely appeal was not due to any negligence on his part and that he wishes to exercise his right to appeal.

Randolph was 26 years old at the time he was given two sentences of life in prison. Considering the magnitude of this event and the allegations contained in his motion, we find that it was error to deny it out of hand, without further inquiry or hearing. Hasty v. State, 213 Ga. App. 731 (445 SE2d 836) (1994); see Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985). This case should be reversed and remanded to the trial court to do so, in order that Randolph not be deprived of his right to appeal contrary to law. OCGA §§ 5-6-33 and 5-6-34; see Rowland v. State, 264 Ga. 872, 874 (2) (452 SE2d 756) (1995); see also Pope v. State, 257 Ga. 32, 34 (2) (a) (354 SE2d 429) (1987); Webb v. State, 254 Ga. 130 (327 SE2d 224) (1985). See generally Douglas v. California, 372 U. S. 353 (83 SC 814, 9 LE2d 811) (1963). Whether defendant forfeited his right to appeal from his conviction must be decided by the trial court.

Decided March 15, 1996.

Keldin Randolph, pro se.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

2. Citing Cochran v. State, 253 Ga. 10 (315 SE2d 653) (1984), Randolph contends the trial court erred in denying his motion because the court never advised him of the danger of proceeding without an attorney and because he did not knowingly waive his right to appeal. But Cochran addresses the court’s duty when a defendant in a criminal proceeding states to the court that he wishes to pursue his appeal pro se and holds that the defendant cannot exercise his right to do so unless it is shown that he adequately waived his right to counsel and was made aware of the danger in proceeding pro se. Id. As Randolph does not argue that he informed the trial court that he desired to proceed pro se, the requirements set forth in Cochran are inapplicable to this case. See also Murphy v. Balkcom, 245 Ga. 13 (262 SE2d 784) (1980), in which our Supreme Court held that there is no constitutional requirement that “the record reflect that the defendant made a knowing and intelligent decision not to appeal before he can be precluded from appellate review.” Id. at 14. Furthermore, the transcript demonstrates that Randolph was advised by the trial court that he had the right to appeal and that if he was indigent, an attorney for the appeal would be appointed for him. See Bell v. Hopper, 237 Ga. 810 (229 SE2d 658) (1976). Thus, this enumeration of error is without merit.

Judgment reversed.

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


text:
    A95A2753.
    SCHERNEKAU et al. v. McNABB.
    (470 SE2d 296)
   Ruffin, Judge.

This underlying personal injury action arose when Christopher Schernekau was shot in the head with an air rifle while on a camping trip. His parents brought suit on his and their behalf against Judy DiBauda, the adult who supervised the trip, Jon McKeachie, the 15-year-old who fired the weapon, and Mary Alice McNabb, mother of the 11-year-old who brought the air rifle on the trip. The trial court granted summary judgment in favor of McNabb. Concluding that the trial court erred, we reverse.

On August 3, 1993, DiBauda, an unlicensed day care provider, organized a campout on Lake Allatoona for 12 children of varying ages, including five children ages six and under, and six children between nine and eleven. McNabb knew about and specifically consented to her 11-year-old son’s bringing his air rifle on the campout. McNabb and DiBauda disagree as to whether McNabb obtained DiBauda’s permission to take the air rifle on the trip. McNabb testified that she sought and obtained DiBauda’s permission for her son to take the rifle, while DiBauda testified McNabb never even mentioned the gun. DiBauda testified that she would not have consented because of the danger the gun posed and because its presence would have violated campground rules.

The evidence shows the air rifle gun was not an ordinary BB gun, but a high-powered, pneumatic pump air rifle that, fully pumped, has the same velocity as a .22 caliber bullet and is capable of firing BB’s or .177 caliber lead pellets.

DiBauda testified that en route to the camp, she informed Mc-Nabb’s son that if she discovered that he had a BB gun she would be obligated to take it away because the park prohibited guns. When they arrived at the campsite, DiBauda confiscated the rifle from Mc-Nabb’s son and placed it in her van. However, without DiBauda’s knowledge, McNabb’s son retrieved his gun from the van. DiBauda subsequently left the campsite with some of the younger children, leaving the older children under the care of 15-year-old Jon Mc-Keachie. During DiBauda’s absence, McKeachie took the rifle and began shooting it around the campsite. He testified that he fired it over the lake, in the trees, and into the tent belonging to Christopher and Jonathan Schernekau. The testimony conflicted as to whether Christopher Schernekau and McKeachie wrestled over the gun after Mc-Keachie shot the tent or whether McKeachie, with no apparent reason, shot Christopher Schernekau in the head at point blank range.

The trial court granted McNabb’s motion for summary judgment finding that there were “genuine issues of fact as to [McNabb’s] negligence vel non” but that “any negligence on her part was not the proximate cause of [Schernekau’s] injuries.” The court determined that “McKeachie’s act of shooting Schernekau was an independent intervening criminal act.” The court held that McKeachie’s act of shooting Schernekau was unforeseeable as a matter of law because there was “no evidence that McKeachie had a propensity to commit violent or criminal acts or that McNabb had any reason to believe that Mc-Keachie would intentionally shoot at someone with the BB gun.”

The Schernekaus contend that the trial court erred by finding as a matter of law that McNabb’s negligence was not the proximate cause of Christopher Schernekau’s injuries and by concluding that McKeachie’s actions were an unforeseeable intervening criminal act.

Proximate cause is properly reserved for the jury and can only be appropriately addressed on summary judgment in “plain and indisputable cases.” Atlanta Ob. & Gyn. Group v. Coleman, 260 Ga. 569, 570 (398 SE2d 16) (1990). “The decision may be made by the trial judge or appellate court only if reasonable persons could not differ as to both the relevant facts and the evaluative application of legal standards (such as the legal concept of ‘foreseeability’) to the facts.” Id. “With reference to foreseeability of injury, the correct rule is that in order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen that some injury would result from his act or omission, and that consequences of a generally injurious nature might result.” (Citations and punctuation omitted.) Wallace v. Sears, Roebuck & Co., 196 Ga. App. 221, 222 (396 SE2d 41) (1990).

The Schernekaus contend that McNabb should have appreciated the inherent danger of introducing the rifle in such a setting. They argue that she knew or should have known that children are drawn to objects like air rifles, that they, particularly in group settings, are prone to horseplay and consequential injury, and that they lack the proper judgment to handle guns. We agree.

The evidence shows that McNabb was aware of the dangerous capabilities of the air rifle, knew that her son planned to take the rifle on a campout in the presence of many other children who were to be supervised by only one adult, and helped her son roll up the rifle in his bedroll. Therefore, based on the evidence in the record, a jury could conclude that McNabb, in the exercise of ordinary prudence, might have foreseen that some injurious consequences could ensue from permitting her son to bring a dangerous weapon on a campout with many young children and limited adult supervision.

McNabb contends that regardless of any negligence on her part, the actions of McKeachie constituted unforeseeable, intervening, independent criminal acts which broke the chain of causation. McNabb claims that in order for her “to have any foreseeability, she must have had some prior knowledge that John McKeachie was likely to harm someone.” Relying on Doe v. Howell, 212 Ga. App. 305 (441 SE2d 767) (1994), and Skelton v. Gambrell, 80 Ga. App. 880 (57 SE2d 694) (1950), McNabb claims that the injury was unforeseeable as a matter of law.

However, both of these cases are distinguishable and fail to sustain McNabb’s argument. In Doe, this Court affirmed summary judgment in favor of a second grade teacher on a negligent supervision claim which was based on a sexual assault by one student on another student in the classroom coat closet. We found no evidence that the teacher knew or should have known that one student’s presence created an unreasonable risk of a sexual attack to her other students.

Here, it is not McKeachie’s presence that is at issue, but rather, the air rifle’s presence on the campground, with young children and very limited adult supervision. McNabb admitted she knew that the air rifle was dangerous and yet she gave her young son permission to take it on the campout. A jury issue is created as to whether McNabb knew or should have known that by her action she was creating an unreasonable risk of injury.

In Skelton, the defendants were grocery store owners who provided a pistol to their 14-year-old son who thereafter discharged the pistol and killed a customer. This Court determined that the pleadings were deficient because they did not set forth a sufficient showing that the parents had reason to know of the dangerousness of their actions. Skelton, supra at 884. However, the case was decided under a different standard of review not applicable in this case, and the merits of the underlying claim were never addressed.

McNabb’s reliance on Dent v. Smith, 172 Ga. App. 90 (322 SE2d 100) (1984), is also misplaced because there was no evidence of possible parental negligence in furnishing or permitting a child access to an instrumentality with which the child could injure a third party.

Moreover, it appears that the trial court applied an incorrect definition of foreseeability. “ ‘It is not necessary that an original wrongdoer shall anticipate or foresee the details of a possible injury that may result from his negligence. It is sufficient if he should anticipate from the nature and character of the negligent act committed by him that injury might result as a natural and reasonable consequence of his negligence.’ ” Coleman v. Atlanta Ob. & Gyn. Group, 194 Ga. App. 508, 510 (1) (390 SE2d 856) (1990). Therefore, the trial court’s application of the foreseeability doctrine was more stringent than the law requires — all that was necessary was that it was reasonably foreseeable that someone might get hurt as a consequence of McNabb’s sending the air rifle on the campout. See Wallace, supra at 222. Moreover, even if McKeachie’s actions were criminal in nature, McNabb could not avoid liability if the acts were reasonably foreseeable. See Confetti Atlanta v. Gray, 202 Ga. App. 241 (414 SE2d 265) (1991).

Decided March 15, 1996

Williams & Henry, Benjamin S. Williams, Joseph A. Fried, W. Anthony Moss, for appellants.

Downey & Cleveland, Joseph C. Parker, W. Curtis Anderson, for appellee.

Accordingly, we find that the trial court erred in concluding that McKeachie’s actions necessarily broke the causal chain, thus eliminating any act or omission by her as the proximate cause of Schernekau’s injuries. Therefore, the grant of summary judgment was erroneous.

Judgment reversed.

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


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A2796.
    ARTLIP v. QUELER et al.
    (470 SE2d 260)
   Blackburn, Judge.

Plaintiff Artlip appeals the trial court’s grant of summary judgment to defendants (landlord) in her action for injuries sustained by her in the pool area of the apartment complex owned by the landlord where she resided. Plaintiff was standing near the rail on the lower deck which surrounded the swimming pool area of the apartment complex holding a glass of wine which she had been drinking when a small bee approached her from the adjacent lake. Plaintiff was injured when, while trying to escape the bee, she took approximately three steps backward and her leg slipped into a three- to four-inch space between a tree and the deck through which it grew and the presence of which plaintiff was aware prior to the fall.

The sole basis of negligence stated in plaintiff’s complaint for the liability of landlord was that the deck was improperly maintained, stating at paragraph 10 of her complaint: “The hole in the deck was the result of improper maintenance of the deck area.” The record is devoid of evidence that the deck had been improperly maintained.

To the contrary, the deposition of the landlord’s maintenance supervisor was that the deck was in good condition and none of the boards around the tree were cracked or broken. The tree was approximately 15 to 20 years old, 150 feet in height, and was approximately 16 to 18 inches thick. The small space between the tree and the surrounding deck is necessary to allow for some movement of the tree when the wind blows. The pool and decking has been inspected on many occasions by the Gwinnett County inspector, without any deficiency being noted.

Prior to her injury plaintiff was very familiar with the pool area and the existence of the tree and the hole through which it grew. Plaintiff had seen trees growing through decks at other apartments and knew this was not an unusual feature. In her complaint, plaintiff identified the involved insect as an “insect,” and in her deposition, she stated she was pretty sure it was a bee, not a large bee, but a small bee. The deck and pool area is adjacent to a lake, and plaintiff often saw bees flying around this area during the summer.

Plaintiff was aware of the existence of the tree and the opening around it which was behind her as she looked out over the lake at the time of the bee’s approach. She swatted at the bee and took approximately three steps backwards when she fell, her foot going into the three- to four-inch area between the tall tree and the deck. Prior to her injury plaintiff was aware that there was no fence around the tree or the gaps surrounding it.

Plaintiff attempts to create a question of fact as to her knowledge of the existence of a space between the deck and the tree by stating in her affidavit at paragraph 3, “[although I had been on this deck area approximately eight (8) times before, I never thought of nor noticed that such a space existed between the deck and the tree.” She further states in her affidavit at paragraph 5, that “[t]he space between the deck and the tree was approximately 3 1/2 to 4 inches in width, and was wider in one portion of the circumference than the other part of the entire perimeter of the circle that surrounded the tree.”

Her deposition testimony on cross-examination, after agreeing that her previous responses had not been fact, was “Q. There ain’t but one way that that tree could get up through that deck, and that would be for there to be a hole in that deck? A. I agree. Q. And you knew that, didn’t you? A. I knew the tree was there. Q. And you knew there was a hole in the deck? Q. You can answer my question. You knew there was a hole there, didn’t you? A. Yes.” Plaintiff further deposed that the size of the gap ranged from three to four inches at the widest point down to one to one-and-one-half inches at its narrowest point. Any conflict in the plaintiff’s testimony must be construed against her. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

The standard of review of the trial court’s grant of defendants’ motion for summary judgment is a de novo review of the evidence to determine whether there is any genuine issue of material fact as to the elements required to establish the causes of action stated by plaintiff in her complaint. See Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). The standard for granting summary judgment is that the moving party must demonstrate that there is no genuine issue of material fact, and that undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. See OCGA § 9-11-56.

A party who will not bear the burden of proof at trial and who moves for summary judgment need not conclusively disprove the existence of evidence supporting every element of the nonmoving party’s case. Rather, the party need demonstrate by reference to evidence in the record only that there is an absence of evidence to support at least one essential element of the nonmoving party’s case. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 688 (3) (178 SE2d 543) (1970) cited by the dissent is distinguishable from the present case. The facts in Stuckey’s involved a motel customer who was injured when she tripped over a bedspread while trying to remove a roach from her underclothing in a room which she leased from the defendant. In that case, questions of fact existed as to the negligence of the defendant in failing to properly exterminate the premises, thereby allowing the cockroach to be present, and as to defendant’s negligence in allowing the bedspread to accumulate on the floor when making the bed, even though the plaintiff was aware of the dangerous condition of the bedspread prior to her fall. The court found that, based on a “distraction” theory, the jury was authorized under the facts of Stuckey’s to find that plaintiff’s prior knowledge of the existence of the hazard would not bar her recovery.

In Stuckey’s, there was evidence in the record of two separate acts of defendant which a jury would have been authorized to determine were negligent. While an emergency condition which results in a moment of stress or excitement amounting to a distraction may, under some circumstances, excuse a reduced degree of attention or care for plaintiff’s own safety, it cannot be used to heighten defendants’ duty, or to supply an element, otherwise missing, which plaintiff must establish in order to recover from defendant. In the present case, there is no evidence in the record of any negligence of landlord, or that the hole created in the deck to allow the tree to move in the wind constituted a defect.

To apply Stuckey’s to the facts of this case would be to make defendants the insurer of plaintiff. It is argued that where a distraction exists, plaintiff can recover from defendants whether or not defendants were negligent or responsible for the distraction. If this were true, then in the present case, plaintiff would be entitled to recover had she been injured as a result of running into the tree itself, a lifeguard stand, pool chairs, or even other guests. Except in certain narrow circumstances not herein involved, under Georgia law, liability for negligence must be based on fault, not status.

Under Lau’s standards, plaintiff must point to evidence in the record showing that the landlord committed some negligent act or failed to perform some duty which resulted in her injury. The fact that plaintiff was unfortunately injured does not establish the existence of a defect, a duty, or a breach thereof by the landlord.

“The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully on the premises.” (Punctuation omitted.) Westbrook v. M & M Supermarkets, 203 Ga. App. 345 (416 SE2d 857) (1992).

The trial court did not err in granting defendants’ motion for summary judgment, and accordingly, we affirm.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I, respectfully, dissent as I cannot go along with the majority’s conclusion that the landlord did not, as a matter of law, breach its duty of care by keeping an unrailed hole in the middle of a recreational deck at its apartment complex. What is reasonably foreseen as being injurious to others is generally a jury question. Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 688 (3), 689 (178 SE2d 543). Further, I do not agree with the majority’s holding that Artlip failed, as a matter of law, to exercise ordinary care for her own safety. While it is a general rule that one who has knowledge of a defective condition in the premises which is equal to that of the owner cannot rely for recovery upon a failure of the owner or operator to correct the condition, there is an exception to this rule which holds that when one is in a moment of stress or excitement and her attention is diverted from the defect, she is not to be held to the same degree of care in discovering and apprehending the danger as in ordinary situations. Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 687 (2), 688, supra.

During the early evening on August 2, 1992, Margaret Artlip was attacked by a bee while she and a friend socialized on an outdoor deck in a recreational area at her landlord’s apartment complex. Swatting defensively and backing away from the darting insect, Artlip stepped into an unrailed hole that was cut into the deck to accommodate a tall Georgia pine tree. Seeking damages for injuries allegedly sustained, Artlip brought an action against her landlord, Arthur N. Queler and Michael L. Asher, each individually and as general partners of MAQ/Ashley-River Associates, L.P., MAQ/Ashley-River Associates, L.P., a Georgia Limited Partnership, and NPI Property Management Corporation, a Florida Corporation.

The landlord denied the material allegations of the complaint and filed a motion for summary judgment, arguing that Artlip’s equal knowledge of the static condition on its deck bars recovery, as a matter of law. The trial court agreed and granted summary judgment in favor of the landlord.

“The decisive issues are: ‘(1) fault on the part of [the landlord], and (2) ignorance of the danger on the part of [Artlip] (Cit.)’ Pound v. Augusta Nat., 158 Ga. App. 166, 168 (279 SE2d 342) (1981).” Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348, 349 (1) (349 SE2d 241). With regard to the first issue, I believe the controlling issues in the case sub judice are whether the landlord exercised due care in keeping an unrailed hole in the middle of a recreational deck and whether the landlord should have foreseen or anticipated that someone may step or stumble into the hole in question as Artlip allegedly did on the evening of August 2, 1992. See OCGA § 51-3-1; Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 688 (3), supra.

What is reasonably foreseen as being injurious to others is generally a jury question. “ ‘In order for a party to be liable as for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result.’ Williams v. Grier, 196 Ga. 327, 337 (26 SE2d 698). ‘The most common test of negligence is whether the consequences of the alleged wrongful act are reasonably to be foreseen as injurious to others coming within the range of such acts, and what is reasonably to be foreseen is generally a question for the jury. (Citations.) The question for the jury is whether danger should have been recognized by common experience, or by the special experience of the alleged wrongdoer, or by a person of ordinary prudence and foresight (citations).’ Thomas v. Williams, 105 Ga. App. 321, 326 (124 SE2d 409).” Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 688 (3), 689, supra. In the case sub judice, I find no evidence supporting the majority’s holding that an unrailed hole in a recreational deck (as a matter of law) poses no danger to others, or that it is unforeseeable that someone may be injured by inadvertently stepping or stumbling into such an unguarded structure. Indeed, I do not think this Court, without expert proof regarding relevant building and construction standards, can take judicial notice that such a design feature is safe under all circumstances, as a matter of law. I, therefore, believe that genuine issues of material fact remain as to whether the landlord breached its duty under OCGA § 51-3-1.

With regard to the second issue, the landlord argues that Artlip’s equal knowledge of the static condition on the deck bars recovery, as a matter of law. The same argument was asserted under strikingly similar circumstances in Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 687 (2), supra, where the plaintiff tripped over an unduly placed bedspread (that was clearly visible to the plaintiff) because of excitement brought on by a cockroach’s invasive attack. This Court then held as follows: “Ordinarily, ‘one who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it or equal knowledge of its existence.’ Barrow v. James, 107 Ga. App. 377, 378 (130 SE2d 352). See also Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 173 (138 SE2d 77) quoting 20 RCL 56, § 52; Standard Oil Co. v. Harris, 120 Ga. App. 768 (4) (172 SE2d 344). However, this rule does not hold where the circumstances are such as to excuse the plaintiff from exercising the degree of care otherwise required. This latter exception finds expression in the ‘distraction’ or ‘emergency’ cases. The principle applicable here is well stated in City of Rome v. Phillips, 37 Ga. App. 299 (2) (139 SE 828). And see Glover v. City Council of Augusta, 83 Ga. App. 314, 316 (63 SE2d 422); City Council of Augusta v. Hood, 95 Ga. App. 259, 261 (97 SE2d 639); City of Albany v. Humber, 101 Ga. App. 276, 282 (113 SE2d 635). If we should hold that the plaintiff’s experience when she felt the cockroach crawling up her thigh under her dress, with its claws or feet clinging to her skin, was, as a matter of law, not a ‘moment of stress or excitement’ amounting to a distraction of sufficient magnitude to authorize the jury to find that she is not barred from recovery because she may have exposed herself to a condition of the premises of which she had prior knowledge, we should, in effect, be ruling out the doctrine of distraction as a viable rule.” Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 687 (2), 688, supra. Applying the same logic in the case sub judice, I cannot go along with the majority’s holding that the bee’s attack upon Artlip did not (as a matter of law) create such a “moment of stress or excitement” so as to preclude a jury’s finding that Artlip is not barred from recovery because she may have exposed herself to a condition of the premises of which she had prior knowledge. Further, I believe the only distinguishing factor between the Stuckey’s case and the case sub judice is the type of insect that allegedly prompted the panic situation. The majority’s distinction of the cases simply goes to the issue of foreseeability, which (in my view) is a jury question in the case sub judice as it was found to be in Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 687 (2), supra.

Decided March 15, 1996

Steven K. Weiner, Diane E. Bessen, for appellant.

Long, Weinberg, Ansley & Wheeler, J. Kenneth Moorman, Christopher J. Graddock, for appellees.

       Contrary to the majority’s narrow characterization of Artlip’s complaint, this case does not merely involve a claim for negligent maintenance of the deck. Giving Artlip the benefit of all reasonable inferences that can be drawn from her complaint, it is easily seen that this case involves a claim for negligent layout and design of this recreational structure. To say otherwise ignores the basic rule that, under the Civil Practice Act, all pleadings must be construed most favorably toward the plaintiff. Hunter v. A-1 Bonding Suc., 118 Ga. App. 498, 499 (2) (164 SE2d 246).


text:
    A95A2176.
    TREND STAR CONTINENTAL, LTD. et al. v. BRANHAM et al.
    (469 SE2d 750)
   Pope, Presiding Judge.

Defendants Trend Star Continental, Ltd., William Brooker, and Eugene Mignacco (collectively referred to as “TSC”) sold assistance to persons applying to the Federal Communication Commission for a license to operate a wireless cable television station. These licenses were awarded through a lottery among accepted applicants. The plan, as marketed by TSC through written materials and oral presentations, was that purchasers of TSC’s services would pay approximately $6,000 for an application to be filed. After the application was accepted but before the lottery, applicants would be contacted to join an “alliance” of applicants who agreed to pool their chances in the lottery and share the license. Because all or most applicants would join the alliance, the risk of losing the initial investment was minimal. Once the license was obtained, the station would be financed, built, and managed by someone other than the members of the alliance, and would hopefully produce substantial returns for all the members of the alliance.

No one who paid for TSC’s services ever obtained a license or even had an application accepted, however. Nor has TSC returned any of the money it collected.

The Commissioner of Securities for the State of Georgia, like the Commissioner of Securities of several other states, has determined that TSC’s sale of application services was essentially the sale of an investment opportunity and constituted the sale of a security. Thus, because the investment opportunities offered and sold by TSC were not registered securities, and because TSC’s salespeople were not registered to sell securities, TSC had violated the law. See OCGA §§ 10-5-5 & 10-5-12 (a) (1). The named plaintiffs are among those who signed application services agreements with TSC and paid it money. They brought this action alleging, among other things, that TSC sold the application services in violation of OCGA §§ 10-5-5 & 10-5-12 (a) (1), and thus should have to return the monies paid it plus interest and attorney fees. The trial court granted the named plaintiffs’ motion for class certification, certifying as a class all Georgia residents who entered into application services agreements with TSC from August 1, 1991, through June 30, 1992. It then granted plaintiffs’ motion for partial summary judgment with respect to TSC’s sale of unregistered securities in violation of the Georgia securities laws. TSC appeals both orders, and we affirm.

1. TSC first challenges the trial court’s certification of the class under OCGA § 9-11-23. A class action is authorized if the members of the class share a common right, and common questions of law or fact predominate over individual questions of law or fact. See Ga. Inv. Co. v. Norman, 229 Ga. 160 (190 SE2d 48) (1972); Hill v. Gen. Finance Corp., 144 Ga. App. 434 (1) (241 SE2d 282) (1977). In this case, all members of the class invested in unregistered securities and share a common right to rescission. And we have held that a class action is particularly appropriate in cases involving the sale of unregistered securities. See Sta-Power Indus. v. Avant, 134 Ga. App. 952 (1) (216 SE2d 897) (1975). In Sta-Power we held that the need for an individualized determination of damages would not preclude a class action; but here that is not even necessary, as the record includes an undisputed listing of all class members and the amounts each paid TSC. Accordingly, the trial court did not abuse its discretion in certifying the class. See Ford Motor Credit Co. v. London, 175 Ga. App. 33, 35 (332 SE2d 345) (1985) (trial judge has broad discretion regarding whether to allow a case to proceed as a class action in Georgia).

Pointing out that plaintiffs asserted causes of action based on fraud in addition to those based on violations of securities laws, TSC cites Stevens v. Thomas, 257 Ga. 645, 650 (361 SE2d 800) (1987), in which the Supreme Court stated that “[i]f fraud based upon oral misrepresentations, as opposed to written misrepresentations, is the gravamen of the complaint, the matter is not appropriate for class action treatment. [Cits.] This is so because of the necessity for individual proof of detrimental reliance.” Pretermitting the question of whether the fraud alleged in this case was based on written materials or oral representations, we conclude that the gravamen of plaintiffs’ complaint was TSC’s sale of unregistered securities rather than fraud. There need not be a total absence of individual questions of law or fact as long as the common questions predominate, and they do so here. Thus, there is simply no need to burden either the court system or the class members by requiring each member of the class to pursue his or her own action.

TSC’s argument that the named plaintiffs are inadequate representatives because they seek rescission and other class members might not is specious. There is nothing to suggest that any class members would oppose rescission, and given that it has now been approximately four years since the FCC accepted any applications for wireless cable licenses, it is hard to imagine that any of them would.

2. TSC also contends the trial court erred in granting plaintiffs’ motion for partial summary judgment on plaintiffs’ claim for rescission based on TSC’s sale of unregistered securities. The identical issue — whether TSC’s sale of application services constituted the sale of unregistered securities — has already been litigated and decided, however: the determination (after a full hearing) of the Commissioner of Securities that TSC’s conduct did constitute the sale of unregistered securities has been affirmed on appeal to the Superior Court, and TSC’s application for discretionary appeal to this Court has been denied. Relitigation of this issue is therefore barred by the doctrine of collateral estoppel. Ervin v. Swift Adhesives, 208 Ga. App. 265 (1) (430 SE2d 133) (1993); see also Lee v. State Constr. Indus. Licensing Bd. &c., 205 Ga. App. 497 (423 SE2d 26) (1992). TSC points out that this determination was still on appeal at the time the trial court granted the partial summary judgment, and argues that the doctrine of collateral estoppel should not apply. See Greene v. Transport Ins. Co., 169 Ga. App. 504 (3) (313 SE2d 761) (1984). But we apply the law as it is at the time of our decision, see Galletta v. Hardison, 168 Ga. App. 36 (308 SE2d 47) (1983), and despite language suggesting otherwise in Greene, we can take judicial notice of proceedings before this Court. See Lee, 205 Ga. App. at 498 (1); Talley v. State, 200 Ga. App. 442 (3a) (408 SE2d 463) (1991). Accordingly, the trial court did not err in granting plaintiffs’ motion. See also Precise v. City of Rossville, 261 Ga. 210 (3) (403 SE2d 47) (1991) (judgment that is right for any reason will be affirmed).

3. TSC argues that the trial court should not have considered the transcript of the administrative hearing (and the resulting report/order) in considering the partial summary judgment motion. It follows from our holding in Division 2 that this argument is moot.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

Decided February 28, 1996

Reconsiderations denied March 18, 1996

Perrie, Buker, Stagg & Jones, Robert E. Stagg, Jr,, Richard W. Jones, Robert L. Bunner, for appellants.

Page & Bacek, Steven J. Gard, Edward J. Dovin, for appellees.

       The Commissioners of Wisconsin, South Dakota, and Maryland have determined that TSC’s sale of its service agreements constituted the sale of securities. In addition, Arizona, Nevada, and Indiana have found that other companies selling almost identical services were selling securities.

       We note that the trial court could have certified a class with respect to some counts and not as to others. See, e.g., Morris v. Burchard, 51 FRD 530 (S. D. N. Y. 1971). Because common issues predominate, however, its certification of the class for purposes of the whole action was not an abuse of discretion. Another possibility is to use the class action to decide all common questions and then, if the suit continues and individual issues arise, order separate trials on those issues.


author: Birdsong, Presiding Judge.

text:
    A96A0223.
    JONES v. THE STATE.
    (470 SE2d 326)
   Birdsong, Presiding Judge.

Ricky Curtis Jones appeals his conviction of two counts of aggravated assault upon a police officer by shooting at each averred officer with a pistol. He enumerates seven errors. Held:

Appellant asserts the trial court erred in failing to charge the jury on his requested charge of justification based on a claim of self-defense, as this was appellant’s sole defense. The defense of justification is codified in OCGA § 16-3-20. Among those acts of justification which can give rise to the defense of justification is the use of force in defense of self or others, that is, the defense of self-defense. See generally OCGA §§ 16-3-20 (1) and 16-3-21. “The trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.” Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513); compare Printup v. State, 217 Ga. App. 495, 496 (3) (458 SE2d 662). “Even if a defendant pursues alternative defenses, it would be error to refuse to give the requested charges on those defenses if there is [some] evidence to support them.” Williams v. State, 209 Ga. App. 355, 356 (1) (433 SE2d 361) (alternative justification defenses of self-defense and defense of others). “A trial court, however, need not specifically charge on an affirmative defense when the entire charge fairly presents the issues, including the defendant’s theory, to the jury.” Tarvestad, supra. Examination of the record reveals that the charges to the jury, which included the standard charges listed in Tarvestad, supra, failed to present appellant’s justification defense to the jury. In fact the trial court, without giving the jury a charge on justification based on a claim of self-defense, instructed that “a person is not justified in using force if that person is attempting to commit, committing, or fleeing after the commission of or attempted commission of a felony.” Thus, error occurred unless it appears that appellant was not entitled as a matter of law to a justification defense based on a claim of defense of self.

Although the testimony of the arresting officers and other State witnesses to the incident contradicted appellant’s justification and self-defense claim, appellant nevertheless testified as follows: After being stopped for a traffic offense, the arresting officers ran a radio check, which ultimately reported that appellant was wanted (for felony flight and escape). Appellant heard the radio report and thought he was going to be arrested. To make it easier for himself, appellant voluntarily raised his hands to surrender and announced that he was armed. Appellant was then shot through the elbow or arm. Upon being shot a second time, appellant ran. While running appellant was shot a third time and fell. Appellant saw that one of the officers “had a dead bead” on him; at that point, appellant pulled his gun and fired four times in the direction in which he had been running. He then began to run again and was shot a fourth time. He ran up an embankment, losing his weapon, and sat down by a tree. He awoke in the hospital.

Appellant took out his weapon because he felt a need to defend himself after being shot three times and seeing that an officer had a “dead bead” on him. He fired in the direction he had been running to cause the officers to move so they would not have “such a dead bead” on him, and so he could try to get away. He was not making an escape attempt while running; rather he ran and subsequently shot in front of himself to protect himself. At the time, he feared for his life. In summary, appellant’s sole defense was that he was attempting to surrender and, after he raised his hands and told the officers he had a gun in his possession, the officers commenced to shoot him forcing him to run away and fire his weapon up the street to defend himself.

In determining whether some evidence exists to support an instruction, an appellate court is not authorized either to weigh existing evidence or to judge witness credibility as these matters are within the province of the jury. Horney v. Lawrence, 189 Ga. App. 376, 378 (3) (375 SE2d 629). Viewed in this light, appellant’s testimony provides “some” evidence in support of a charge of justification based on a claim of self-defense.

Before the jury was charged, the trial court elected not to give appellant’s justification charge as he was a convicted felon at the time and not authorized by law to possess a firearm. This ruling followed the State’s contention that such a charge was not authorized based, by way of analogy, on the holding of this Court in Tarvestad v. State, 198 Ga. App. 863 (403 SE2d 446). Not only does our opinion in Tarvestad not address this issue affirmatively, our judgment was reversed in Tarvestad, 261 Ga., supra. Further, the holding of the Supreme Court of Georgia in Heard v. State, 261 Ga. 262, 263, n. 3 (403 SE2d 438) clarifies that the defense of justification is not precluded when otherwise authorized by the evidence merely because a defendant uses a weapon in self-defense while in the status of a convicted felon. The holding in Heard, supra, “allows a convicted felon in possession of a firearm to assert self-defense where that defense is authorized by the evidence.” Id. at n. 2. Appellant’s defense of justification based on a claim of self-defense was his sole defense and, as above discussed, his testimony provided “some” evidence in support thereof; therefore, an instruction of justification was not only authorized, it was required (Tarvestad, 261 Ga., supra). Accordingly, the trial court erred in electing not to charge on appellant’s justification defense. Williams, supra. Although appellant’s testimony is strongly contested by the State, where as in this case, there exists some evidence to support the requested justification charge, it is error to fail to give the charge and the “conviction must be reversed.” Id. at 356 (1).

Decided March 18, 1996.

Cynthia A. Price, for appellant.

Lewis R. Slaton, District Attorney, Juliette O. W. Scales, Shawn Lagrua, Assistant District Attorneys, for appellee.

The State further argues, citing OCGA § 16-3-21 (b) (2), that a person is not justified in using force in defense of himself or others if he “[i]s attempting to commit, committing, or fleeing after the commission or attempted commission of a felony.” Appellant expressly testified that he was not making an escape attempt while running, but ran north to protect himself after the police commenced to shoot him when his hands were raised in surrender. Whether appellant was fleeing after the commission or attempted commission of a felony was in this case a fact question for jury resolution, as recognized by the trial court in its jury charge regarding this issue. “ ‘The evidence necessary to justify a jury charge need only be enough to enable one to carry on a legitimate process of reasoning.’ ” Williams, supra at 355 (1).

In view of our disposition of this case, appellant’s other enumerations of error are not herein addressed.

Judgment reversed.

Beasley, C. J., and Blackburn, J., concur.


text:
    A96A0406.
    CRAWFORD v. THE STATE.
    (470 SE2d 323)
   Birdsong, Presiding Judge.

Bobby Crawford was convicted of the misdemeanor of unlawful possession of less than one ounce of marijuana and of the felony of possession of cocaine with intent to distribute, both offenses being in violation of the Georgia Controlled Substances Act. He enumerates two errors. Held:

1. Appellant contends that in denying his Batson challenge the jury panel included only two black jurors, both of whom were challenged peremptorily by the State. Voir dire was not recorded. The record reveals that the trial court, without expressly finding the existence of a prima facie case of discrimination, called upon the State to explain its strikes of the two black jurors. The State gave the following explanations: as to the black female juror, the State announced that “our records indicate she’s a felon. She’s done a verdict of not guilty.” Thereafter, when the trial court inquired whether the juror “was on a previous jury that returned a not guilty verdict,” the State responded, “that’s true.” The State also asserted it had considered the fact that the juror lives on “the very next street down from where all this happened.” The trial court found the explanation given to be race neutral and overruled appellant’s Batson objection as to this juror. The State then explained its strike of the black male juror on the basis that the juror’s brother had a conviction for a violation of the Georgia Controlled Substances Act and that the juror was a defendant in a prior simple battery case. The trial court found this explanation also to be race neutral and overruled appellant’s Batson objection as to this juror. The trial court then inquired if the parties were prepared to pick an alternate juror and both appellant and the State responded in the affirmative.

Appellant does not assert on appeal that the State failed to give a race-neutral explanation as to the male juror; accordingly, any claim of error regarding the trial court’s Batson ruling regarding this juror has been abandoned. Court of Appeals Rule 27 (c) (2). Appellant does contend, however, that there exists no race-neutral explanation for the striking of the female juror, and that the State erroneously informed the trial judge that the female juror had been convicted of a felony offense.

“Once the opponent of the strike establishes a prima facie case of racial discrimination, ‘the burden shifts to the (proponent of the strike) to articulate a race neutral explanation for striking the jurors in question.’ ” Jackson v. State, 265 Ga. 897, 898 (2) (463 SE2d 699). However where, as in this case, the proponent of a strike has offered race-neutral explanations therefor and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue whether the opponent to the strike has made a prima facie showing of racial discrimination becomes moot. Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626). In any event, at the stage of a Batson inquiry when the proponent of the strike tenders a purported race-neutral explanation, there exists no requirement “to enunciate ‘an explanation that is persuasive, or even plausible.’ ” Jackson, supra at 898 (2). Essentially, a neutral explanation is one based on something other than the race of a juror and, unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race neutral. Id. At the final stage of a Batson inquiry, the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Id. at 899. At this final stage, “ ‘implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say a trial judge may choose to disbelieve a silly or superstitious reason at step 3 [the final stage] is quite different from saying that a trial judge must terminate the inquiry at step 2 [the explanation stage] when the race-neutral reason is silly or superstitious.’ ” (Emphasis omitted.) Id.

Appellant’s claim that the female juror had not been convicted of a felony is not supported by evidence of record; the voir dire was not transcribed. We cannot consider on appeal unsupported statements of fact contained in a party’s brief. Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223) and progeny. Appellee neither stipulates nor makes an admission in judicio in its brief (although such a fact is implied therein) that the first juror was not a convicted felon. This Court must base its ruling upon those relevant facts affirmatively appearing in the trial record.

Regardless whether the first juror was a convicted felon, appellee additionally provided two other explanations for its strike: first, that the juror previously had served on a jury that returned a not guilty verdict in a felony case, and secondly, that the juror lived in the same neighborhood on the very next street down from the incident. These independent explanations constituted legitimate race-neutral explanations, within the meaning of Jackson, supra, for purposes of satisfying step 2 (the explanation stage) of a Batson inquiry. Compare Purkett v. Elem, 514 U. S. _ (115 SC 1769, 131 LE2d 834). Additionally, even if not plausible due to lack of authenticity, a claim made in good faith or inadvertently that the juror was a convicted felon would constitute a race-neutral explanation for purposes of step 2 of the Batson inquiry; for at this stage, the proponent is not required to enunciate an explanation that is either persuasive, or even plausible. Jackson, supra at 898 (2).

Examining the record in its totality, we further find that appellant, as opponent to the strike, has failed on appeal to carry his ultimate burden of persuasion regarding racial motivation for the strike. Inherent within the ruling of the trial court was its determination that the opponent of the strike, the appellant, had failed to carry his burden to establish that the proponent of the strike, the State’s, “explanation was motivated by discriminatory intent.” Id. at 899. “In these matters, the findings of the trial court are entitled to great deference, and should not be disturbed unless clearly erroneous.” Id. at 900. The record reveals the trial court’s findings were not clearly erroneous. Appellant’s enumeration of a Batson error is without merit.

2. A police officer observed appellant engage in what appeared to be two drug transactions; appellant would walk up to a vehicle, hand the occupant something and then place something in his pocket which he had obtained from the occupant. The officer called for backup. The officer observed appellant throw a “white and yellow” object down by the base of an evergreen tree. When the officer and a backup officer attempted to apprehend appellant, the latter ran. Appellant was tackled and a bag of green leafy material, later determined to be marijuana, was found in his hand. The arresting officer then observed the backup officer and another officer search for and locate a “white and yellow” object at the base of the same evergreen tree where appellant had thrown a “white and yellow” object. The object seized was a plastic bottle containing what was determined to be 43 pellets of crack cocaine. Although the arresting officer could not positively identify the seized bottle, it appeared to be consistent in appearance to the object he observed appellant throw down. From the time the officers pursued appellant until the time the base of the evergreen tree was searched, the officers observed no one other than appellant near the tree where the “white and yellow” object was recovered.

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; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Under this rule, the State is not required to remove every possibility of innocence of the crime charged. Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769). Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt as to the offenses of which he was convicted; the jury was authorized by the evidence presented to exclude other possible hypotheses as unreasonable (id. at 699). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Appellant’s enumeration of insufficiency of the evidence is without merit.

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.

Decided March 18, 1996.

Michael A. Corbin, for appellant.

Jack Partain, District Attorney, Susan L. Franklin, Assistant District Attorney, Kermit N. McManus, F. Lee Miles, for appellee.


author: Smith, Judge.

text:
    A95A2191.
    NORTH AUGUSTA ASSOCIATES LIMITED PARTNERSHIP et al. v. 1815 EXCHANGE, INC. et al.
    (469 SE2d 759)
   Smith, Judge.

The principal issue in this appeal is whether the parties to a contract complied with its arbitration provisions. We must decide whether this determination must be made by the trial court or by arbitrators. Appellants contend that under the Federal Arbitration Act (FAA), 9 USC § 1 et seq., and the Georgia Arbitration Code (GAC), OCGA § 9-9-6 et seq., the trial court must make a threshold decision that the parties have complied with conditions precedent to arbitration before issues may proceed to arbitration. Appellees contend the FAA preempts the GAC and the issue of compliance is solely one for the arbitrators.

North Augusta Associates Limited Partnership (“North Augusta”) entered into an agreement with contractor Barge-Wagener, Inc. for the construction of a project located in North Augusta, South Carolina. Barge-Wagener subsequently changed its name to 1815 Exchange, Inc. (1815 Exchange). The agreement included an arbitration provision and a “resolution of claims and disputes provision” reciting conditions to be met prior to submission of a claim or dispute to arbitration. The claims and disputes provision stated that claims were to be submitted to the architect, who would review them and take action within ten days of their receipt. The architect was directed to request additional information from the claimant; inform the claimant when action would be taken on the claim; reject the claim in whole or in part, stating reasons for rejection; recommend approval of the claim; or suggest a compromise. If a claim was not resolved following the architect’s response, the claimant was required to submit additional supporting data, modify the claim, or notify the architect that the initial claim stood. If the claim then remained unresolved, the architect was to render a “final and binding decision” subject to arbitration. The agreement authorized arbitration upon the demand of either party of “[s]uch controversies or claims” described in the resolution procedure of the agreement. Notably, the agreement stated that the architect’s decision, with certain exceptions, was a condition precedent to arbitration.

In November 1994, 1815 Exchange filed a demand for arbitration against North Augusta, NAPSC, L.P., and Julian LeCraw and Company, Inc. (collectively referred to as appellants unless otherwise noted), alleging the latter two parties were general partners of North Augusta. 1815 Exchange claimed that the construction agreement had been breached and sought damages of approximately $1.5 million. Appellants then filed a verified petition for declaratory judgment and a motion for a stay of arbitration in Cobb County Superior Court. They contended, inter alia, that Barge-Wagener and 1815 Exchange failed to comply with the agreement’s provisions relating to the timing for submission of written claims and failed to comply with the conditions precedent for demanding arbitration.

Following a hearing, the trial court denied appellants’ petition and motion for stay. It ruled that the FAA, 9 USC § 1 et seq., rather than the GAC, OCGA § 9-9-1 et seq., governed the issues and further found that issues regarding compliance with notice provisions of the contract were for arbitrators, not the court, to decide. This appeal ensued.

1. We first address appellants’ contention that the trial court erroneously found that the FAA, not the GAC, applies to the issues here. Appellants agree that the “substantive portions” of the FAA apply to this case but contend that the FAA does not preempt the field of arbitration and that state procedural mechanisms that are consistent with the goals of the FAA are applicable. We agree.

We do not overlook our earlier holding in ADC Constr. Co. v. McDaniel Grading, 177 Ga. App. 223, 226 (3) (338 SE2d 733) (1985) that the FAA controls an agreement involving interstate commerce. That holding has been modified, however, by Volt Information Sciences v. Bd. of Trustees &c., 489 U. S. 468 (109 SC 1248, 103 LE2d 488) (1989). In Volt Information Sciences, the agreement contained a choice of law provision reciting that the contract would “be governed by the law of the place where the Project is located.” Id. at 470. The same choice of law provision appears in this case. The Supreme Court deferred to the sanctity of individual contracts consistent with the goals of the FAA and held that California arbitration law was not preempted by the FAA: “Where, as here, the parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA, even if the result is that arbitration is stayed where the Act would otherwise permit it to go forward.” Id. at 479. The entire field of state arbitration law therefore is no longer preempted by federal arbitration law in all cases involving commerce. State law may apply where parties agree to be bound by state arbitration law, so long as that law does not conflict with the FAA. For that reason, the trial court’s ruling that the FAA preempts state arbitration law is reversed.

2. Appellants contend that the trial court must determine whether 1815 Exchange complied with the conditions precedent to arbitration because “[t]he issue of compliance with the arbitration agreement itself goes to the essence of arbitrability.” They contend that under either the FAA or GAC, “the trial court must review the contract to decide if [they] agreed to arbitrate these specific claims.” 1815 Exchange agrees that arbitrability is an issue for the court but defines arbitrability differently, contending that a claim is arbitrable if the contract provides merely that the dispute at issue is subject to arbitration.

We disagree with the definition of arbitrability proposed by 1815 Exchange. We are bound to “give meaning to every term rather than construe any term as meaningless,” and we are required “to construe a contract so as to uphold the contract in whole and in every part.” (Citations and punctuation omitted.) Harris County v. Penton, 211 Ga. App. 498, 499 (1) (439 SE2d 729) (1993). 1815 Exchange’s interpretation of arbitrability effectively renders other portions of the agreement meaningless. If arbitrability here depended only on whether an arbitration provision appeared in the agreement, the conditions precedent to arbitration clearly set forth in the agreement would have no meaning. The parties would be compelled to arbitrate issues even where the conditions precedent were not met. To so construe the contract would be a failure to uphold the conditions precedent language.

The general arbitration provision recites: “Any controversy or claim arising out of or related to the contract, or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association.” This language does appear broad. The scope of arbitration is limited, however, by language in the “claims and disputes” section of the agreement. That section provides that “[c]laims . . . shall be referred initially to the architect for action ... A decision by the architect . . . shall be required as a condition precedent to arbitration or litigation of a claim between the contractor and owner as to all such matters arising prior to the date final payment is due.” (Emphasis supplied.) Similarly, the agreement recites that “[s]uch controversies or claims upon which the architect has given notice and rendered a decision as provided in [the preceding section] shall be subject to arbitration.” As noted above, the “preceding section” contains detailed directions to the architect and claimant concerning procedures required to be used when a claim or dispute arises. Clearly, the agreement provides that only claims made in compliance with the procedures defined by the agreement may be arbitrated. Not clear from the agreement is who determines whether the conditions precedent were met: the arbitrators or the trial court.

First Options v. Manuel Kaplan, 514 U. S. - (115 SC 1920, 131 LE2d 985) (1995) is dispositive in this regard. In First Options, the Supreme Court addressed the role of the trial court in determining whether the parties agreed to arbitrate the issue of arbitrability. Specifically, it addressed “who should have the primary power to decide” arbitrability of the dispute. 131 LE2d at 992. The Court stated that “if . . . the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely independently. [This conclusion] flow[s] inexorably from the fact that arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes — but only those disputes — that the parties have agreed to submit to arbitration.” (Citations and emphasis omitted.) Id. at 993. An agreement to arbitrate arbitrability must be shown by clear, unmistakable evidence. Id. at 994.

Under the clear terms of the agreement in this case, the parties must comply with conditions precedent before proceeding to arbitration. The record before us, however, does not clearly and unmistakably show that the parties agreed that issues regarding compliance with those conditions are arbitrable. First Options provides, in such circumstances, that the trial court independently determine whether the claims are arbitrable. The trial court erred in finding that the issue of compliance was for the arbitrators to determine. We therefore remand this case to the trial court for determination of whether the claims may proceed to arbitration.

3. Appellants also contend the trial court erroneously ruled that NAPSC, L.P. (NAPSC) and Julian LeCraw and Company, Inc. (Le-Craw) are proper and necessary parties. They contend that the agreement was between Barge-Wagener and North Augusta only and thus that NAPSC and LeCraw are not liable. We disagree. According to the construction agreement, NAPSC is North Augusta’s general partner, and LeCraw is the general partner of NAPSC.

NAPSC and LeCraw are necessary parties to the litigation. Their assets are available to satisfy any debt of North Augusta that results from the arbitration only if they are parties to the arbitration. “A general partner in a limited partnership has the same rights and liabilities analogous to those of a partner in an ordinary general partnership, and he may become individually liable for all of the debts of the partnership. [Cits.] Partners in an ordinary general partnership are jointly liable with the partnership for all debts and obligations of the partnership. [Cits.] But, to bind individual assets of a partner, the partner himself must be served and must have had his day in court.” Co-Op Mtg. Investments Assoc. v. Pendley, 134 Ga. App. 236, 239 (1) (214 SE2d 572) (1975). “To bind the partner, and thus have complete relief, he must be served with process.” Id. at 240.

Decided March 6, 1996

Reconsideration denied March 19, 1996

Smith, Currie & Hancock, Aubrey L. Coleman, Jr., Joseph P. Henner, for appellants.

Ware, Snow, Fogel, Jackson & Greene, Patrick A. Thompson, David A. Dial, D. Lee Roberts, Jr., for appellees.

Because NAPSC and LeCraw are general partners of North Augusta, they are proper and necessary parties, and the trial court did not err in ruling that they were properly included in the litigation.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Johnson, J., concur.

       The parties do not dispute that interstate commerce is involved here.

       The provision states, “The contract shall be governed by the law of the place where the project is located.”

       The breadth of the provision is also modified by recitation that certain waived claims as well as controversies regarding “aesthetic effect” are not subject to arbitration.