author: Andrews, Judge.

text:
    A95A0006.
    McALPIN v. COWETA FAYETTE SURGICAL ASSOCIATES, P. C.
    (458 SE2d 499)
   Andrews, Judge.

McAlpin, a surgeon, appeals from the grant of Coweta Fayette Surgical Associates, P. C.’s (Coweta) motion for interlocutory injunction prohibiting McAlpin’s competition with Walker, also a surgeon. This dispute arose when McAlpin left the employ of Coweta and the corporation, through Walker, sued to enforce a non-competition clause in McAlpin’s employment contract. We affirm.

McAlpin was practicing in Michigan in 1993. He worked part-time for an insurance company evaluating appropriateness of care. In that capacity, he had telephoned Walker on a couple of occasions to discuss patient treatment and, in the course of these conversations, the two surgeons discussed McAlpin’s coming to Newnan to become an employee of Coweta. Walker had practiced in the Newnan area for 12 years. The two doctors exchanged mutual visits, and Walker sent McAlpin a summary of the proposed agreement by which McAlpin would become an employee of Coweta. It included a two-year contract term, after which a partnership would be considered, as well as a non-competition clause within a thirty-five-mile radius of Coweta’s Newnan office for a two-year period from the termination of the contract.

Coweta’s main office was located in Newnan, Coweta County. Two of the hospitals in the ten-county area were located in Newnan, Newnan Hospital and Peachtree Regional Hospital. Coweta had a satellite office in Peachtree City, Payette County. A new hospital had been approved for that area, and it was anticipated it would open in approximately three years.

When Walker had a written contract prepared by his attorney, he deleted the thirty-five-mile radius circle as the geographic area of the non-competition clause and, instead, specified ten counties: Coweta, Fayette, Fulton, Heard, Meriwether, Carroll, Clayton, Spalding, Troup, and Pike. Walker received the document from his attorney on September 15.

The proposed contract was sent by overnight carrier to McAlpin in Michigan on September 16, and picked up by him on September 17. The contract contained the following non-competition clause: “As a part of the consideration for this Agreement, unless the parties otherwise mutually agree in writing, (for a period of two (2) years from and after the termination date of this Agreement) Physician [McAlpin] shall neither compete with Employer (or Don C. Walker, M.D.) in the practice of medicine and surgery, nor otherwise engage in the practice of medicine and surgery, within the boundaries of any one or more of the following counties within the State of Georgia: [Counties specified as set out above.] For the purposes of enforcement of this paragraph, the provisions hereof shall survive the termination date of this Agreement and be fully binding on Physician thereafter.”

McAlpin discussed the contract with his Michigan attorney, who expressed some discomfort with the non-competition clause and advised McAlpin to contact a Georgia attorney. Instead, McAlpin spoke to Walker on the phone and the only change he requested was in the term of the contract specifying how much vacation could be taken at one time.

On September 29, Walker and McAlpin met to sign the contract. Both doctors agree that McAlpin expressed a lack of familiarity with the area during the ride to the hotel where the McAlpin family was to stay. Upon arriving at the hotel, Walker drew a very rough drawing of the counties’ locations. It also indicated that DeKalb, Cobb, and Gwinnett, which were not included in the restricted area, were in the Atlanta vicinity. Testimony at the interlocutory hearing differed as to when McAlpin was shown an atlas showing the area, but both doctors agree it was shown to him, either before or shortly after the contract signing. At no point did McAlpin obtain his own map or make any inquiry of anyone else concerning the ten counties or the metropolitan Atlanta area.

McAlpin practiced with Coweta from December 1993 until he gave his notice on March 10, 1994, effective March 5, 1994. McAlpin then began seeing patients in the restricted area, using his home in Newnan as an operating base.

Coweta sued, alleging breach of the agreement and seeking an interlocutory injunction based on the restrictive clause. McAlpin counterclaimed, alleging slander and fraud in the inducement.

After conducting a hearing, the trial court entered its interlocutory injunction on July 13, 1994, finding that the restrictive clause was reasonable. McAlpin appealed to the Supreme Court which transferred the matter here.

1. “While a contract in general restraint of trade or which tends to lessen competition is against public policy and is void (1983 Ga. Const., Art. Ill, Sec. VI, Par. V (c); OCGA § 13-8-2) a restrictive covenant contained in an employment contract is considered to be in partial restraint of trade and will be upheld ‘if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public.’ [Cit.] Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court [cit.], which considers ‘ “the nature and extent of the trade or business, the situation of the parties, and all the other circumstances.” [Cits.]’ [Cit.] ... A three-element test of duration, territorial coverage, and scope of activity has evolved as a ‘helpful tool’ in examining the reasonableness of the particular factual setting to which it is applied. [Cit.]” W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992).

Walker testified that, over a five-year period, he had averaged three-and-one-half surgeries a week. His patient list over that period contained 6,000 names, including patients he or his former doctor/ employee had seen who did not require surgery or were seen for primarily medical conditions. Walker testified that it was the custom in that locale for surgeons to also practice general medicine for their patients. Most of his patients were referred either by other doctors or Coweta patients. His patients included residents of all ten counties named in the non-competition clause. Fayette, Heard, Meriwether, and Pike counties had no general hospitals, and Heard County did not have either a hospital or doctor. Of the surgeries which Walker performed in 1993, patients came from nine of the ten named counties. It was Walker’s intention that, by hiring McAlpin, Coweta could expand its practice in the eight counties other than Coweta and Fayette, and that, upon completion of the Fayette hospital, the practice would grow even more.

McAlpin brought no patients with him from Michigan and had no patient base except for that provided by Coweta. Coweta paid nearly $14,000 to move McAlpin and his family from Michigan, and in the three-month period that McAlpin worked for Coweta, he was paid $19,924.65, gross. McAlpin had access to Coweta’s patient records and was provided with office space, supplies, nursing assistance, malpractice insurance, and other necessities of practice. Before the issuing of the injunction, McAlpin had performed surgery on at least one of Coweta’s patients.

The 1990 census reflected a population of 1,169,000 in the ten-county restricted area, while the population of Cobb, DeKalb, and Gwinnett, which was not restricted, was 1,346,492.

2. As initially set out in Rash v. Toccoa Clinic Medical Assn., 253 Ga. 322 (320 SE2d 170) (1984), there is a distinction between consideration of restrictive covenants in employer/employee situations as opposed to a partnership situation, with the former requiring a stricter scrutiny in determining the reasonableness of the restrictions. Roberts v. Tifton Medical Clinic, 206 Ga. App. 612, 615 (426 SE2d 188) (1992).

So evaluating the clause at issue, we consider McAlpin’s contention that the ten-county geographical restriction is overbroad and not intended to protect Coweta’s interests, but, instead, meant only to stifle competition. We disagree. As reflected above, Coweta had patients in all ten counties, although the bulk of its patients were from Coweta and Fayette counties. As fully explained by Walker, there was a newly approved hospital which he believed would expand Coweta’s opportunities and patient base. As stated in McMurray v. Bateman, 221 Ga. 240, 255 (4) (144 SE2d 345) (1965), “[t]he territorial limitation of the covenant was, according to precedents set by this court, not too broad if the territory included was that throughout which the plaintiff generally practiced, although not necessarily in every part of the area included [cit.], including territory over which he had reasonable prospects of extending his practice. [Cits.]” There, the Supreme Court approved the restriction of medicine and surgery by a former doctor/ employee within a 50-mile radius of Forest Park, Georgia, for a three-year period.

Similarly, in Raiford v. Kramer, 231 Ga. 757 (204 SE2d 171) (1974), the court approved of a covenant restricting the practice of ophthalmology by a former doctor/employee in the five-county metropolitan Atlanta area of Fulton, Clayton, Cobb, DeKalb, and Gwinnett counties for two years after termination of the contract.

Further supporting the conclusion of reasonableness here is the fact that McAlpin is not prevented from treating the entire patient base of Coweta, which was the failure of the covenant disapproved in Dougherty &c. v. Greenwald &c., 213 Ga. App. 891, 893 (2a) (447 SE2d 94) (1994), where employee/accountants of a CPA firm were precluded from contacting any former client of the professional corporation and there was no geographical limit. Id. at 894 (2c).

Also, as specifically explained to him before he signed the contract, McAlpin could practice in the metropolitan area in counties not listed, such as Cobb, DeKalb, and Gwinnett, which had a larger population base than the ten-county area from which he was restricted. Compare Osta v. Moran, 208 Ga. App. 544, 546 (2) (430 SE2d 837) (1993), with Smith v. HBT, Inc., 213 Ga. App. 560, 562 (2) (445 SE2d 315) (1994).

Pittman v. Harbin Clinic Professional Assn., 210 Ga. App. 767, 771 (4) (437 SE2d 619) (1993), relied upon by McAlpin, is distinguishable. There, this court upheld a one-year restriction within a 30-mile radius of the clinic’s location by former partners of a 50-doctor practice. It struck, however, the restriction as to former employee/doctors, because the radius was 50 miles, instead of 30, and the relative bargaining positions were not equal. Treating employees more harshly than partners was properly found unreasonable.

We believe the situation here is more comparable to that in Dominy v. Nat. Emergency Svcs., 215 Ga. App. 537 (2) (451 SE2d 472) (1994). There, Dominy was an employee/doctor of the corporation, which contracted with hospitals to provide emergency room physicians. Dominy was assigned to Memorial Hospital and Manor in Bainbridge. His contract restricted him, for a period of two years after termination of the contract, from performing similar services at any hospital where he had worked for the corporation. The clause was found reasonable because “[h]e is not precluded from all practice of medicine,. . . nor is he prohibited from providing emergency medical services ... to other hospitals in the immediate vicinity.”

Decided June 26, 1995

Glass, McCullough, Sherrill & Harrold, John M. Stuckey, Jr., Geoffrey H. Cederholm III, Bryan A. Downs, for appellant.

Rosenzweig, Kam, Jones & MacNabb, Joseph P. MacNabb, for appellee.

Similarly, here, McAlpin is not restricted from practicing medicine or surgery in other counties in the metropolitan area, nor is he precluded in treating patients he saw while with Coweta as long as that is done in counties other than the ten specified.

We conclude that the clause was properly found reasonable by the court below.

3. There was no abuse of discretion in the trial court’s grant of the interlocutory injunction. Benton v. Patel, 257 Ga. 669, 672 (1) (362 SE2d 217) (1987).

4. McAlpin’s remaining enumerations of error are without merit.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Dr. Walker was the sole shareholder in his professional corporation. His wife worked as business manager of his practice. He employed one other doctor.

       The injunction was modified on August 4, 1994, to allow McAlpin to serve as an emergency room physician at the two hospitals where Coweta also practiced, as well as continue being the doctor for the Coweta County jail, and to serve as an emergency room doctor in counties other than Coweta.

        Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993).


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A95A0443.
    COLLIPP et al. v. NEWMAN et al.
    (458 SE2d 701)
   Johnson, Judge.

Mr. and Mrs. Steven Newman, Sr., as next friends and guardians of Steven D. Newman, Jr., brought suit against four defendants seeking damages arising from a circumcision performed on Steven, Jr. The suit was filed in Chatham County State Court against Dr. Platon Jack Collipp, a Wayne County resident, who performed the circumcision and Wayne County Memorial Hospital, the facility at which the procedure was performed. Also named in the action were two doctors, both residents of Chatham County, who provided subsequent medical care.

All claims against the two Chatham County defendants were dismissed with prejudice after the Newmans signed a full and final release of all claims against them. Collipp and Wayne County Hospital filed a motion to dismiss or, in the alternative, to transfer the case to Wayne County asserting that venue was no longer proper in Chatham County. The trial court, relying on Carney v. JDN Constr. Co., 206 Ga. App. 785, 790 (5) (426 SE2d 611) (1992), denied the motion. We granted appellants’ application for interlocutory appeal to clarify any confusion which may have been created by Carney regarding the effect on venue after the dismissal of all resident joint tortfeasors.

A defendant is entitled to be sued in the county of his residence. Ga. Const. 1983, Art. VI, Sec. II, Par. VI. Suits against joint tortfeasors residing in different counties may be tried in either county. Ga. Const. 1983, Art. VI, Sec. II, Par. IV. However, proper venue against a nonresident joint tortfeasor may vanish. The venerable principle of vanishing venue was well established at the turn of the century. “[W]here suit is brought against two defendants, one of whom resides in the county, the court has no jurisdiction of the nonresident defendant unless the resident codefendant is liable in the action.” (Emphasis supplied.) Ross v. Battle, 117 Ga. 877, 880 (45 SE 252) (1903). In Timberlake Grocery Co. v. Cartwright, 146 Ga. App. 746, 747 (247 SE2d 567) (1978) this court clarified the concept: “[I]f no judgment is taken against a resident defendant, the court loses venue as to the nonresident defendant(s). . . .” Addressing the same principle, the Georgia Supreme Court held that where a single suit is brought against several joint tortfeasors in a county where one of them is a resident, and where the resident is found not liable by the jury, and the non-resident defendants are found liable, the court is without jurisdiction to enter judgment against the non-resident defendants. Southeastern Truck Lines v. Rann, 214 Ga. 813, 815 (108 SE2d 561) (1959).

In Motor Convoy v. Brannen, 194 Ga. App. 795 (391 SE2d 671) aff’d 260 Ga. 340 (393 SE2d 262) (1990), this court held the requirement that a judgment be entered against the resident tortfeasor can be satisfied by entry of a consent judgment. “[A] consent judgment recognizes that a verdict against the resident defendant was authorized. . . . The controlling fact which governs the retention of jurisdiction over the non-resident is the legal resolution of liability on the part of the resident.” Id. at 797. Therefore, because a final judgment had been entered against the resident joint tortfeasor, regardless of whether the judgment was by consent, venue did not vanish.

In Carney v. JDN Constr. Co., supra, this court was asked to consider the denial of a motion to transfer. Relying on Motor Convoy v. Brannen, supra, we held: “Although appellant subsequently settled with JDNCC and JDNEI, there has been no finding that JDNCC and JDNEI are not liable to appellant. It follows that the trial court correctly denied the City’s motion to transfer the action to Gordon County.” (Emphasis in original.) Carney, supra at 790 (5). It appears the trial court in our case read Carney as holding either that the settlement was analogous to a consent judgment, or that an affirmative finding of nonliability would be required to justify a conclusion that venue had vanished. Perhaps because the denial of the motion to transfer was a relatively minor issue in the Carney appeal, we did not make it clear in the opinion that JDNCC and JDNEI remained parties in the case. The record in Carney made it clear that the settlement agreement was reached during the trial and that JDNCC and JDNEI were never removed from the case. Rather, the agreement was that the case was settled as to them whichever way the jury decided the case. Their dismissal from the case was not a provision of the settlement with the plaintiff and a jury could have found them liable. Carney did not change established venue principles, and should not be read to imply that there has been any change in the established venue principles regarding resident and non-resident joint tortfeasors.

Decided June 28, 1995.

Gilbert, Harrell, Gilbert, Sumerford & Martin, Wallace E. Harrell III, Lisa S. Godbey, Fendig, McLemore, Taylor & Whitworth, Phillip R. Taylor, for appellants.

Ashman, Lasky & Cooper, Jeffrey W. Lasky, for appellees.

In our case, the two Chatham County doctors were dismissed from the case with prejudice. Venue in Chatham County vanished at the moment the dismissal was filed. The trial court erred in denying appellants’ motion to transfer.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A0586.
    GRANTHAM v. UNIVERSAL TAX SYSTEMS, INC.
    (458 SE2d 870)
   Johnson, Judge.

This is the second appearance of this case before this court. In the previous appeal, a different panel of this court affirmed the trial court’s order enjoining James L. Grantham from working in a position for Orrtax similar to the one he held with Universal Tax Systems because such employment violated an enforceable non-competition clause in his contract with Universal, his former employer. (Case No. A94A2352, issued December 20, 1994, unpublished opinion, cert. denied April 7, 1995.) Orrtax was one of Universal’s few competitors in the field of developing and implementing electronic filing systems of state tax returns.

On July 15, 1994, Universal filed a “Motion for Contempt and Motion for Expedited Hearing” asserting that Grantham was ignoring the original July 1, 1994 order. On October 3, 1994, the trial court ruled on the motion, finding Grantham’s activities at Orrtax violated the terms of the July 1, 1994 order and assessing a fine of $500 per day running from July 5, 1994, the date by which the trial court determined Grantham either knew or should have known the terms of its July 1, 1994 order. Grantham appeals, asserting the trial court erred in finding him in wilful contempt of its order of July 1, 1994, and that the trial court abused its discretion in imposing the $500 per day contempt penalty to be applied retroactively to approximately the date its initial order was entered.

1. Grantham’s assertions that the trial court erred in finding him in wilful contempt, that his activities at Orrtax were outside the scope of the covenant not to compete, and that the trial court’s original order contained omissions which were improperly supplied in its later contempt order, are without merit. The trial court’s findings regarding both the validity and Grantham’s violation of the non-competition clause, having been affirmed in the previous appeal, are conclusively binding upon him, and the record establishes by his own admission as well as through other evidence that he was engaged in exactly the same activities with Orrtax after the July 1, 1994 order as he had been before the order. In other words, the employment activities which had been determined to violate the non-competition clause were the same as the subsequent activities which formed the basis for the trial court’s conclusion that Grantham was in wilful contempt of its July 1, 1994 order.

2. Grantham’s assertion that the trial court imposed a greater fine than authorized by law for contempt is well founded. A general discussion of some of the fundamentals of the law of contempt of court is helpful in explaining why this enumeration of error is meritorious. For a thorough discussion of the law of contempt of court in Georgia, see Reaves and Johnson, “Contempt of Court in Georgia,” Georgia State Bar Journal, Vol. 23, No. 2 (November 1986), pp. 66-73.

Acts of contempt are neither civil nor criminal. They are either direct, meaning they are committed within the sensory perception of the judge, or they are indirect, meaning they occur outside the sensory perception of the judge. Once an act has been determined to constitute contempt of court, the action the court takes to deal with the contempt determines whether the contempt is deemed “criminal” contempt or “civil” contempt, a distinction historically made by both appellate courts in this state. See Cobb v. Black, 34 Ga. 162, 166 (2) (1865); Hancock v. Kennedy, 22 Ga. App. 144 (1) (95 SE 735) (1918). “The distinction between the two is that criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.” (Citation omitted.) Carey Canada, Inc. v. Hinely, 257 Ga. 150, 151 (356 SE2d 202), cert. denied, 484 U. S. 898 (108 SC 233, 98 LE2d 192) (1987).

Decided June 28, 1995.

Brinson, Askew, Berry, Seigler, Richardson & Davis, C. King Askew, Mark M. J. Webb, for appellant.

Shaw, Maddox, Graham, Monk & Boling, Virginia B. Harman, for appellee.

In this case, as in Carey, the trial court levied a fine in the amount of $500 per day for violations occurring prior to the entry of the contempt order. These fines impose a punishment for contempt which had already occurred and could not be remedied. By imposing these fines, the trial court necessarily determined that the acts of contempt occurring prior to its order were to be treated as criminal contempt. OCGA § 15-7-4 (5) authorizes punishment of criminal contempt by “fine not exceeding $500.00 or by imprisonment not exceeding 20 days, or both.” While the trial court did not err in finding Grantham in criminal contempt, that portion of the fine assessed in connection with criminal contempt in excess of $500 must be vacated so as to bring the trial court’s punishment within the maximum fixed by OCGA § 15-7-4 (5). That portion of the trial court’s order dealing with acts committed in violation of its order before October 3, 1994, is reversed as to amount only, and the case remanded for entry of an order consistent with this opinion.

No such limitation on fines exists with regard to the acts of contempt subsequent to the trial court’s order of October 3, 1994, however. As to those acts, the purpose of the fine is remedial, that is to say, punishment designed and intended to deter future violations of the court’s order. This contempt is thereby deemed civil. In imposing these fines, the trial court acts prospectively. In the event Grantham continues to violate the terms of the July 1, 1994, injunction after having been adjudicated in contempt, there would be no statutory limitation on the fine imposed by the trial court. Therefore, that portion of the trial court’s judgment applying to acts in violation of the order which occurred or occur subsequent to October 3, 1994, are affirmed.

Judgment affirmed in part, reversed in part. Case remanded with direction.

Birdsong, P. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A95A1045.
    J.T. INDUSTRIAL CONTRACTORS, INC. v. HARGIS RAILCAR, INC.
    (458 SE2d 702)
   Smith, Judge.

This appeal involves the interplay between OCGA § 9-3-25, which sets a four-year statute of limitation for actions on account, and a provision in the Bankruptcy Code, 11 USC § 108 (c). The issue is whether the latter provision tolls the running of the statute of limitation during the pendency of a bankruptcy. J.T. Industrial Contractors, Inc. (“J.T.”), brought this action against Hargis Railcars, Inc., to recover compensation for services performed. The trial court granted judgment on the pleadings in favor of Hargis based upon the expiration of the statute of limitation, and J.T. brings this appeal.

The work was done by J.T. pursuant to an agreement with Hargis entered into on March 3, 1989. Hargis filed a petition for relief in bankruptcy under Chapter 11 on March 22, 1990, which was dismissed on February 24, 1994. J.T. then initiated this action on May 26, 1994.

J.T. recognizes that the statute of limitation had expired at the time its action was filed. It also recognizes that although a split may exist among foreign jurisdictions regarding whether the federal statute tolls, or merely extends, state statutes of limitation, the trial court’s decision followed established case law of this state. It relies, however, upon a recent decision of this court interpreting 11 USC § 108 (c) to support its contention that the statute of limitation was tolled during Hargis’s bankruptcy proceedings. We do not agree.

11 USC § 108 (c) provides that “if applicable non-bankruptcy law . . . fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor . . . and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of — (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay . . . with respect to such claim.”

It is clear from this court’s decision in State Farm Mut. Ins. Co. v. Harris, 207 Ga. App. 8 (427 SE2d 1) (1992), that if the limitation period set by state law has expired during a bankruptcy, suit against the debtor must be commenced within 30 days after the termination of the automatic stay. Taking certain language in the opinion out of context, J.T. contends that Breeze v. Columbus Bank &c. Co., 214 Ga. App. 534 (448 SE2d 276) (1994), holds otherwise. This court held in Breeze that 11 USC § 108 (c) “tolls the running of periods of limitation which would otherwise expire during the period of a stay in bankruptcy until 30 days after the termination of the stay.” (Emphasis supplied.) Id. at 535. The meaning of that statement is clear and is not changed by use of the word “tolls”: We held in Breeze not that the statute of limitation does not run during the bankruptcy proceedings, but that the period for filing suit against the debtor is extended notwithstanding the running of the limitation period, until 30 days after the stay is lifted.

Decided June 28, 1995.

Pamela M. Richards, for appellant.

Adams & Hemingway, Gregory G. Schultz, for appellee.

Since the action against the debtor in this case was filed more than 30 days after the stay was lifted, the trial court properly granted judgment on the pleadings in favor of Hargis.

Judgment affirmed.

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


text:
    A95A1284.
    SMITH v. THE STATE.
    (458 SE2d 704)
   Smith, Judge.

Eddie Smith was convicted of possession of cocaine following a jury trial. Smith’s motion for new trial was denied, and he appeals.

1. The trial court’s charge to the jury made it abundantly clear that it was the State’s burden to prove Smith guilty beyond a reasonable doubt as to each and every element of the offense charged. Accordingly, Smith’s attempt to show that the use of the phrase “moral and reasonable certainty” within that charge constituted reversible error is controlled adversely to him by the holding of the Supreme Court in Burgess v. State, 264 Ga. 777, 787 (28) (450 SE2d 680) (1994). See also Baldwin v. State, 264 Ga. 664-666 (1) (449 SE2d 853) (1994).

2. Smith contends that the cocaine seized by police was the product of an illegal arrest, and therefore the trial court erred in denying his motion to suppress. We disagree. It is undisputed that Smith was in a state of flight when he discarded the cocaine he now seeks to suppress, and contrary to Smith’s arguments, being chased is not tantamount to being “seized” in violation of the Fourth Amendment. See California v. Hodari D., 499 U. S. 621 (111 SC 1547, 113 LE2d 690) (1991); Hunt v. State, 205 Ga. App. 490, 491 (423 SE2d 24) (1992). Under such circumstances, even if we assume that Smith ultimately was illegally seized and detained after being chased, that would not serve as a basis to suppress the cocaine at issue, since the contraband was discarded before the seizure effectively occurred. Hodari D., supra at 629; Anderson v. State, 209 Ga. App. 676, 677 (434 SE2d 122) (1993). Smith’s enumerations on this ground are therefore without merit.

Decided June 28, 1995.

Maria T. Gonzalez, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Assistant District Attorney, for appellee.

3. Smith contends that when the trial court recharged the jury on the law of controlled substances it should also have recharged the jury on the concept of reasonable doubt, on defenses at trial, and on the State’s burden of proof. We find no merit in this contention. See, e.g., Bowles v. State, 168 Ga. App. 763, 765 (4) (310 SE2d 250) (1983) (recharges are to be evaluated “as a part of the whole charge”); Schwerdtfeger v. State, 167 Ga. App. 19, 21 (2) (305 SE2d 834) (1983) (no error where “main charge was replete with references to the principle of reasonable doubt”).

4. The testimony of the arresting officer to the effect that he saw Smith throw down “a clear ziplock bag” right before he jumped a fence, along with testimony that the officer returned to the area after apprehending Smith and recovered the clear bag, which contained 32 hits of crack cocaine, was sufficient to authorize Smith’s conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A95A1349.
    PRUITT v. THE STATE.
    (458 SE2d 696)
   Smith, Judge.

Rickie Lee Pruitt was indicted for the offense of burglary. He was tried before a jury and found guilty. His motion for new trial was denied, and he appeals.

1. Pruitt contends the evidence was insufficient to support his conviction, specifically arguing that no evidence was presented that he entered the victim’s home, a necessary element of the offense under OCGA § 16-7-1.

The victim testified she returned to her home about 1:00 p.m. and observed a “scruffy looking” man carrying a backpack walking from her house to the house next door. When she entered her housé she saw immediately that it had been burglarized. Her typewriter, a camera, a VCR, and some currency were gone. Entry had been made through a back window.

A neighbor testified he knew Pruitt from the neighborhood and saw him walking through his yard carrying a typewriter and a bag at about the same time as the burglary. As the neighbor watched, Pruitt set the items down behind a vacant house formerly occupied by Steve Causey and walked away. The neighbor called the police. Approximately ten minutes later, before the police arrived, he observed Causey drive up in his car with Pruitt. Pruitt got out, retrieved the items he had dropped off, then returned to the car and left with Causey. Causey and Pruitt then drove off. Both the victim and her neighbor positively identified Pruitt’s photograph from an array; and both identified him at trial.

Causey, who was indicted with Pruitt, pled guilty shortly before trial to theft by receiving stolen property and testified against Pruitt. He testified he saw Pruitt walking and gave him a ride. Pruitt asked Causey to drive to Causey’s former home, where Pruitt went to a shed behind the house, picked up some items, and returned to the car. Causey then bought the items from Pruitt for $30 and dropped Pruitt off at home. Causey turned himself in to the police a few days later; his father turned over the stolen items.

In his own testimony, Pruitt said he had laundered his dirty clothes, which he carried in a backpack, at his mother’s house in the neighborhood; Causey then approached him and offered him a ride home if he would pick up some items at Causey’s former residence and put them in a shed. He did so on foot, after which Causey picked him up. Causey then drove back to the house, Pruitt retrieved the property and brought it to Causey’s car, and Causey drove him home.

Given this evidence, including testimony that the victim’s home was entered and that Pruitt was positively identified in the victim’s yard carrying a typewriter similar to the one stolen, the jury was authorized to conclude that Pruitt had entered the victim’s home and to reject Pruitt’s denial of guilt. See Bowers v. State, 177 Ga. App. 36, 39 (2) (338 SE2d 457) (1985). The evidence was sufficient to authorize the jury to find him guilty of burglary under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Pruitt claims error in the trial court’s finding that he received effective assistance of trial counsel. Pruitt was represented by the public defender’s office. His assigned counsel was called away on a family emergency on the eve of trial, and her place was taken by another attorney in the defender’s office. Pruitt argues that trial counsel did not ask for a continuance, had insufficient time to prepare properly for trial, and rendered ineffective assistance. We do not agree.

Although counsel stepped in on the day before trial, she had access to the file compiled by her predecessor, which contained full discovery. Her testimony at the hearing on the motion for new trial showed she was experienced and conscientious, and the transcript of the trial proceedings reveals that she provided a professional and reasonable defense. She intérviewed Pruitt at the jail, discussed important matters with him, prepared opening and closing statements, planned the questioning of witnesses, requested jury charges, and made reasoned and vigorous objections at trial. On the morning of trial, she filed a motion to suppress the photo identifications and a motion to sever parties (which was rendered moot by Causey’s plea). Moreover, although the transcript does not contain the actual motion, it shows discussion of a requested continuance that was denied. Counsel explained at the hearing on the motion for new trial that she had moved for continuance off the record, the court had denied the motion, and she merely placed on the record her reasons for doing so and requested that the court inquire whether Pruitt had concerns about going forward. The court did so, and Pruitt indicated he was ready for trial.

Decided June 28, 1995.

Michael S. Katz, for appellant.

Pruitt fails to show how further investigation would have changed the result in this case. Pruitt finds fault with counsel’s failure to interview or call a witness he claims was a third passenger in Causey’s car and her failure to interview his wife regarding the contents of his backpack. Counsel’s testimony at the hearing on his motion for new trial establishes, however, that Pruitt did not reveal to counsel until mid-trial the existence of this witness, and the witness’s identity and the whereabouts of his backpack were not disclosed until after trial.

The trial court concluded that counsel had provided effective assistance. This finding must be affirmed unless clearly erroneous. Stevens v. State, 210 Ga. App. 355, 357 (6) (436 SE2d 82) (1993). The trial court did not err.

3. Lastly, Pruitt asserts that because theft by receiving stolen property constituted his sole defense, the trial court erroneously refused to give his requested charge on that offense. This enumeration is without merit.

Pruitt was charged only with the offense of burglary. Theft by receiving stolen property is not a lesser included offense of burglary. Faust v. State, 189 Ga. App. 426, 427 (2) (375 SE2d 889) (1988). A defendant is not entitled to an instruction on an offense for which he has not been charged that is not a lesser included charge. Ford v. State, 201 Ga. App. 382 (1) (411 SE2d 334) (1991). A charge on theft by receiving stolen property was therefore not authorized. See Graham v. State, 197 Ga. App. 102 (397 SE2d 600) (1990).

Judgment affirmed.

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

J. Torn Morgan, District Attorney, Fran W. Shoenthal, Robert M. Coker, Assistant District Attorneys, for appellee.


text:
    A95A1419.
    DUPREE v. THE STATE.
    (458 SE2d 698)
   Smith, Judge.

Roger Dale Dupree was charged by indictment with two counts of aggravated assault, aggravated battery, burglary, and possession of a firearm by a convicted felon. The jury found him guilty of both counts of aggravated assault and on the aggravated battery charge, but not guilty on the burglary charge. Based on the verdict, Dupree elected to enter a plea on the possession of firearm charge. Through different counsel, Dupree moved for new trial, raising the general grounds, an ineffective assistance claim, and an issue as to whether one of the aggravated assault charges should have merged with the aggravated battery charge for sentencing purposes. The motion was orally denied in all respects from the bench, and the State was requested to prepare a one-sentence order to that effect. Dupree’s appellate counsel later filed a motion for leave to file an out-of-time appeal, explaining that he never received a copy of the written order entered on the matter. The motion was granted, and Dupree appeals, enumerating the identical issues argued at his motion for new trial.

1. Dupree correctly notes that our review of his arguments as to the general grounds is limited to whether a rational trier of fact, viewing the matter in a light most favorable to the verdict, could have found him guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Dupree does not dispute that he fired two shotgun blasts into Jeff Hulsey’s trailer, or that he injured Wanda Hulsey Kitchens (Hulsey’s sister and Dupree’s former girl friend) and Tina Hulsey (Hulsey’s wife) as a result. Dupree’s defense was that he was carrying the shotgun up to Jeff Hulsey’s tráiler for purposes of self-defense against Jeff Hulsey, that the first shotgun blast was the result of his tripping on Hulsey’s porch steps, and that the second blast was merely a surprise reflex reaction to the first.

“[T]he defense of accident raises an issue as to defendant’s intent. Such an issue is a question of fact to be determined upon consideration of defendant’s words, conduct, demeanor, motive, and all other circumstances connected with the act for which [he] is prosecuted. [Cit.]” Carroll v. State, 208 Ga. App. 316, 317 (1) (430 SE2d 649) (1993). Even assuming Dupree’s explanation is within the realm of theoretical possibility, it is certainly not an explanation that would necessarily raise a reasonable doubt in the minds of the jury as to whether Dupree intended to fire the shotgun twice into Jeff Hulsey’s trailer — especially in light of the testimony from Wanda Kitchens that she heard Dupree calling her name and was fleeing from him in fear immediately before she was shot. The jury was certainly authorized to disbelieve Dupree’s claim of accident under these facts.

Dupree also argues, without citing any authority, that the aggravated assault charge for the shooting of Tina Hulsey cannot stand, because Dupree did not know Tina Hulsey was in the trailer and that he therefore did not intend to shoot her. But Dupree testified at trial that he did know that Jeff Hulsey was in the trailer, so he knew that there were at least two potential victims inside as he began firing his shotgun. We may safely assume that Tina Hulsey was merely an innocent bystander to the assaults committed upon Wanda Hulsey Kitchens and Jeff Hulsey and that Dupree did not specifically intend to assault her. Nevertheless, the jury was authorized to find that Dupree’s intent in assaulting both Wanda Kitchens and Jeff Hulsey supplied the intent necessary to sustain an aggravated assault conviction for the shooting of Tina Hulsey, because “the intent follows the bullet.” Green v. State, 123 Ga. App. 286 (1) (180 SE2d 564) (1971). “Where there is but one intent there is but one transaction and one offense; where there is an intent to kill or injure [or assault] two or more, there are separate transactions and separate offenses.” Hand v. State, 90 Ga. App. 452, 458 (3) (83 SE2d 276) (1954). The jury could infer beyond a reasonable doubt that Dupree intended to assault more than one person, and he in fact injured two persons with a shotgun. We therefore find no error in the judgment entered as to the shooting of Tina Hulsey.

2. As to Dupree’s ineffective assistance claim, we have read the transcript of the hearing on the matter and considered the points raised by Dupree’s counsel at that time. Based on this, we find no basis to conclude that the trial court’s denial of Dupree’s motion for new trial on this basis was clearly erroneous. See, e.g., Scott v. State, 263 Ga. 300 (2) (432 SE2d 107) (1993).

3. On the question of merger, we agree with Dupree that he may not be convicted and sentenced for both aggravated assault (with a deadly weapon) and aggravated battery for the shooting of Wanda Kitchens. The State argues that the aggravated assault was completed before the aggravated battery occurred, but that is beside the point. The question before us is whether Dupree committed any act separate and distinct from that minimally necessary to effect the shooting of Wanda Kitchens, and if so, whether such an act constituted an aggravated assault with a deadly weapon.

The transcript reveals that Kitchens was not aware that Dupree was carrying a shotgun until the instant before she was shot. Kitchens testified: “I turned and looked and he shot me.” This was a single transaction. Although it is certainly of little consolation to Ms. Kitchens, it must be acknowledged that Dupree accomplished his apparent goal with cruel efficiency. Moreover, the State does not show that Dupree fired the two shots in anything other than “quick succession,” as Dupree implicitly contends. See Montes v. State, 262 Ga. 473, 474 (1) (421 SE2d 710) (1992). Since the State did not present evidence authorizing an inference that a significant period of time elapsed between the two shots, it makes no difference to our analysis that Dupree fired more than once before retreating.

Decided June 28, 1995.

Michael L. Chidester, for appellant.

Frederic D. Bright, District Attorney, F. Maxwell Wood, Assistant District Attorney, for appellee.

It follows that this single transaction cannot support convictions for both aggravated battery and aggravated assault with a deadly weapon. “While the crimes are separate and distinct as a matter of law, under the evidence in this case the assault is included in the battery as a matter of fact; therefore, only one punishment may be inflicted. [Cit.] It was proper to submit both counts to the jury; however, as a matter of fact there was but one criminal act.” Biddy v. State, 138 Ga. App. 4, 6-7 (3) (225 SE2d 448) (1976). The conviction and sentence entered for the aggravated assault of Wanda Kitchens must therefore be reversed. Id.; Montes, supra.

Judgment affirmed in part and reversed in part.

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


author: Birdsong, Presiding Judge.

text:
    A95A0004.
    WORKMAN v. McNEAL AGENCY, INC.
    (458 SE2d 707)
   Birdsong, Presiding Judge.

Shelby J. Freeman Workman appeals the grant of summary judgment to McNeal Agency, Inc., on her claims alleging that the McNeal Agency failed to procure insurance coverage for her property. The record shows Workman owned certain commercial property that she leased to an automobile dealership, and a provision in the lease required the dealership to hold Workman harmless from any loss. To satisfy this obligation the dealership listed Workman’s property as a covered premises on the dealership’s insurance policy and listed Workman as an additional named insured on the dealership’s policy. Consequently, when a fire damaged Workman’s property leased to the dealership, the insurance company paid the proceeds directly to Workman.

After this fire, the dealership began discussions with its insurance agent, McNeal Agency, about renewing the dealership’s insurance coverage for its various locations, including the one owned by Workman. Although it appears that the dealership may have informed McNeal Agency that it wanted the policy to list the premises as a covered location and to list Workman as an additional named insured, the policy did not do so. Consequently, when there was a second fire at the premises and Workman filed an insurance claim, the insurance company denied the claim because her property had been deleted from the coverage.

Workman then filed suit against McNeal Agency alleging that McNeal Agency breached its contractual obligation to her by failing to keep the coverage on her property in force and by failing to notify her that the coverage was not continued, and that McNeal Agency was liable for negligently failing to maintain coverage on the property until she was given notice that the coverage was not being continued. McNeal Agency’s answer to the complaint stated that it had no contract with Workman and that it owed her no duty as she claimed. Subsequently, McNeal Agency was granted summary judgment on these grounds, and Workman now appeals. Held:

1. Workman, without citation of authority, contends that because she put McNeal Agency on notice that she wanted to continue coverage on her property under the dealership’s insurance policy and that she wanted to remain an additional named insured on the tenant’s policy, she created a contractual relationship with McNeal Agency as there was a clear meeting of the minds that her property would be covered. This contention is without merit.

As the party asserting the contract, Workman had the burden of proving that a contract between McNeal Agency and herself existed. Jackson v. Easters, 190 Ga. App. 713, 714 (379 SE2d 610). Consequently, she was required to prove that there was a subject matter of the contract, consideration, and mutual assent by the parties to all the terms of the contract. See OCGA § 13-3-1. As Workman failed to prove that McNeal Agency agreed to obtain insurance coverage on her property and she failed to prove that any consideration passed from her to the McNeal Agency, Workman failed to prove that was a contract between herself and McNeal Agency. The trial court also correctly concluded that under the facts of this case Workman was not a third-party beneficiary of the contract between McNeal Agency and the auto dealership. See Backus v. Chilivis, 236 Ga. 500, 502 (224 SE2d 370).

2. The trial court also did not err by ruling that McNeal Agency was not liable under a negligence theory of recovery. McNeal Agency was procuring insurance coverage for the automobile dealership, not for Workman. Therefore, McNeal Agency had no duty to procure coverage for Workman. Thus, Workman’s negligence claim must fail because she did not establish that McNeal Agency owed a duty to her to procure coverage on her property. See OCGA § 51-1-1; Mauldin v. Sheffer, 113 Ga. App. 874, 879-880 (150 SE2d 150). The cases cited by Workman in support of her argument are not persuasive because they concern circumstances in which an insurance agency failed to procure insurance coverage for a client. See, e.g., Moseley v. Coastal Plains Gin Co., 199 Ga. App. 99 (404 SE2d 123). As McNeal Agency was not Workman’s insurance agent, it had no duty to obtain insurance for her property, list her as an additional named insured, or to advise her that it had not done so.

Decided June 30, 1995.

John R. Gaughen, for appellant.

Weissman, Nowack, Curry & Zaleon, Linda B. Foster, Frances R. Mathis, for appellee.

Therefore, the trial court did not err by granting summary judgment to the McNeal Agency. Workman’s remedy, if any, is against her lessee under the hold harmless provisions of the lease.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A0022.
    HODGE v. SADA ENTERPRISES, INC. et al.
    (458 SE2d 876)
   Birdsong, Presiding Judge.

Wesley P. Hodge appeals the grant of summary judgment to SADA Enterprises, Inc., and Jay Patel on Hodge’s claims arising from an incident while Hodge was a guest at Kings Motor Inn. Both defendants were sued individually and as doing business as Kings Motor Inn.

Hodge contends the trial court erred by granting summary judgment in this case on grounds not asserted in the motion for summary judgment. We agree and reverse.

Hodge was shot during a robbery while attempting to recover his stolen property; when Hodge realized that someone was stealing his property from his room, he chased the robbers from his room and was shot when one of them suddenly turned and fired a pistol. Ultimately, Hodge filed this action alleging that appellees had a duty to use due care to keep the motel premises reasonably safe and to take such reasonably necessary precautions to protect the guests from foreseeable criminal attacks. His complaint further alleged that appellees had actual, imputed, or constructive knowledge the motel was in a high crime area, that there had been numerous criminal attacks on guests while at the motel, that attacks were reasonably likely, and that appellees knew or should have known that persons with criminal intent could and would enter the premises unless reasonable precautions were taken to prevent or deter such persons from gaining access to the premises. The complaint also set forth various ways in which appellees failed to take reasonable precautions to protect the guests.

After appellees answered denying liability, they moved for summary judgment. The motion contended that Hodge failed to exercise ordinary care for his own safety upon discovering a potentially dangerous situation, and that Hodge’s actions were the cause of his injury. Appellees contended that Hodge’s action in chasing the criminal who stole his property was the sole proximate cause of his injuries, and that, as a matter of law, chasing an unknown criminal intruder from a place of safety, at night in an unknown city, constituted the failure to exercise ordinary care for one’s own safety.

Appellees’ motion, however, did not challenge the allegations in Hodge’s complaint concerning appellees’ knowledge of previous criminal activity at the motel. Moreover, appellees’ statement of undisputed material facts did not assert facts that denied knowledge of previous criminal activity at the motel.

Nevertheless, the trial court granted summary judgment, not on the bases asserted in the motion, but because the trial court found that Hodge had not established that criminal activity substantially similar to the criminal activity which caused his injuries had occurred previously at the motel. Hodge contends the trial court erred by granting summary judgment on a ground that was not asserted in the defendants’ motion and also contends the trial court erred by granting summary judgment for any reason. Held'.

1. Under our law, “[t]o prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

Nothing in Lau’s Corp., however, places a burden on a plaintiff to respond to issues which are not raised in the motion for summary judgment or to present its entire case on all allegations in the complaint — even on issues not raised in the defendants’ motion. Indeed, until appellees pierced the allegations of Hodge’s complaint on a particular issue, he was neither required to respond to the motion on that issue (Sullivan v. Fabe, 198 Ga. App. 824, 825 (403 SE2d 208); Doughty v. Assoc. Commercial Corp., 152 Ga. App. 575, 576 (263 SE2d 493)), nor required to produce evidence in support of his complaint on that issue. Hamner v. Emory Univ., 190 Ga. App. 788, 789 (380 SE2d 83); Baldwin County Hosp. Auth. v. Coney, 188 Ga. App. 339, 341 (373 SE2d 252); Hill v. Goodyear Tire &c. Co., 187 Ga. App. 890, 891 (371 SE2d 661). See also Bales v. Central Bank &c. Co., 204 Ga. App. 675, 676 (420 SE2d 358): The issues that must be rebutted on motion for summary judgment are those raised by the motion. Consequently, Hodge was not required to present proof on all matters raised in his complaint until appellees pierced his complaint on those issues.

Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court’s authority to do so is not unlimited. The grant of summary judgment must be proper in all other respects. Howell Mill/Collier Assoc. v. Penny packer’s, 194 Ga. App. 169, 170 (390 SE2d 257). “This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment. [Famble v. State Farm Ins. Co., 204 Ga. App. 332, 336 (419 SE2d 143)]; OCGA § 9-11-56.” Spivey v. Safeway Ins. Co., 210 Ga. App. 775, 776 (437 SE2d 641). This record shows that although the trial court granted summary judgment on a ground that was not raised in appellees’ motion for summary judgment, Hodge was neither given notice the court intended to consider an issue not raised in appellees’ motion nor given the opportunity to respond on that issue before summary judgment was granted.

Accordingly, the trial court erred by granting summary judgment on an issue which was not raised in appellees’ motion.

2. Although appellees urge us to affirm the grant of summary judgment under the right for any reason theory, we find no basis to do so on this record. Issues of negligence and causation such as these are generally not appropriate for summary adjudication (see Smith v. Southeastern &c. Ins. Co., 258 Ga. 15, 16 (365 SE2d 105); Collie v. Hutson, 175 Ga. App. 672, 673 (334 SE2d 13)), and the existing record does not warrant an exception from the general rule. Moreover, the issues which appellees assert require determination of whether, applying the reasonable man standard to the evidence, Hodge’s action was the sole proximate cause of his injuries and whether under the circumstances, he exercised sufficient care for his own safety. Such issues are generally for resolution by the factfinder, and, in particular, under this record as it now exists they were for the jury. North v. Toco Hills, 160 Ga. App. 116, 119 (286 SE2d 346). Further, because appellees will bear the burden of proof at trial on the affirmative defenses raised in their motion, they could not prevail on their motions by merely demonstrating by reference to the record the absence of evidence disproving their affirmative defenses. See Lau’s Corp. v. Haskins, supra at 495.

Decided June 30, 1995.

William S. Stone, for appellant.

Swift, Currie, McGhee & Hiers, John W. Campbell, for appellees.

Therefore the grant of summary judgment must be reversed.

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A95A0104.
    HELTON v. THE STATE.
    (458 SE2d 872)
   Birdsong, Presiding Judge.

Timothy Helton appeals his conviction for aggravated child molestation. Helton contends the trial court erred by admitting evidence of a similar transaction because the information was gained in violation of the marital privilege contained in OCGA § 24-9-21, the transaction was not sufficiently similar under Williams v. State, 261 Ga. 640 (409 SE2d 649), and the State was collaterally estopped from re-litigating the issue because the evidence was not admitted in an earlier trial of the case that ended in a mistrial. Helton also contends the trial court erred by not granting a mistrial after his sister-in-law testified that Helton and his wife had engaged in “threesomes” in the past; by allowing the victim’s mother to explain why she thought the victim could not demonstrate the sodomy alleged with anatomically correct dolls; by allowing a State’s witness to testify that she believed the victim was telling the truth; and by refusing to charge on the lesser included offense of child molestation.

Helton was indicted for aggravated sodomy after the victim told her father, mother, and the Department of Family & Children Services (DFCS) investigator that Helton had pulled down her pants and licked her bottom. Helton’s first trial ended in a mistrial after a witness’s testimony exceeded limitations established by the trial court. Upon his retrial, Helton was convicted as charged, and this appeal followed. Held:

1. Helton’s first enumeration of error concerns testimony by his wife’s sister that she overheard Helton and his wife talking about the two of them engaging in some sort of sexual activity with a 15-year-old girl, including their plan to drug the teenager so that she would participate in the sex acts.

(a) Helton’s contention that this testimony violated the marital privilege contained in OCGA § 24-9-21 is without merit. As neither spouse testified about matters protected by OCGA § 24-9-21, there was no violation. This Code section does not prohibit testimony about communications between spouses by someone who overheard the communication. Knight v. State, 114 Ga. 48 (39 SE 928). Although Helton asks us to reverse this precedent, we cannot do so because decisions of our Supreme Court are binding upon this court. The decision in Sims v. State, 251 Ga. 877 (311 SE2d 161), relied upon by Helton, is distinguished on its facts because that opinion concerns the psychiatrist-patient privilege and the third party was present as an integral part of the therapy.

(b) Helton’s contention that the transaction concerning the teenager was not sufficiently similar under Williams v. State, supra at 642, is also without merit. Evidence of similar crimes has been most liberally extended in cases concerning sex crimes. Johnson v. State, 242 Ga. 649 (250 SE2d 394). Further, evidence concerning sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible when the accused is being tried for some form of sexual abuse of a child. Oller v. State, 187 Ga. App. 818, 820 (371 SE2d 455). See also Adams v. State, 208 Ga. App. 29, 32-34 (430 SE2d 35) (physical precedent). In this instance, we find the crimes sufficiently similar to warrant admission, notwithstanding the difference in the ages of the victims. See Yelverton v. State, 199 Ga. App. 41, 43 (403 SE2d 816). Consequently, we find the evidence was admissible. Stephens v. State, 261 Ga. 467 (405 SE2d 483); Williams v. State, supra.

(c) Helton’s contention that the State was collaterally estopped from relitigating the trial court’s ruling in his first trial which limited evidence concerning the similar transaction to testimony by his sister-in-law is also without merit. The trial court did not err by allowing the teenage girl who was the intended victim of Helton’s scheme to testify about the incident because a proceeding that ends in a mistrial does not result in a final judgment that would limit issues under the doctrine of collateral estoppel or bar another trial. 1983 Ga. Const., Art. I, Sec. I, Par. XVIII. Moreover, a trial court can modify a ruling on a motion in limine. Agnor’s Georgia Evidence (2d ed.), Motion in Limine, § 8-1.1, citing Frink v. State, 177 Ga. App. 604 (340 SE2d 631).

2. Helton also contends the trial court erred by denying his motion for a mistrial after his sister-in-law referred to other “threesomes” involving Helton, his wife, and others. The transcript shows that the witness testified that Helton and his wife “were talking about their past, threesomes,” when Helton interrupted her testimony to seek a hearing out of the presence of the jury so he could move for a mistrial because the testimony about the “threesomes” improperly placed his character in issue. After the trial court denied the motion and instructed the jury to disregard this testimony, Helton renewed his motion for a mistrial. Under the circumstances, we find no abuse of discretion, and, hence, no error. “When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions. Here, the trial judge acted immediately, ruled out the offensive testimony, and properly instructed the jury not to consider the testimony in its deliberations. Under the facts of this case, we cannot say that this amounted to an abuse of discretion.” (Citations omitted.) Stanley v. State, 250 Ga. 3, 4 (295 SE2d 315).

3. We also find no merit to Helton’s contention that the trial court erred by allowing the victim’s mother to explain why she believed the victim could not demonstrate the act of sodomy alleged with anatomically correct dolls. Pretermitting whether it was error to allow the mother to so testify, Helton has not identified any prejudice resulting from this testimony. Therefore, we find any such error harmless beyond a reasonable doubt. Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869); Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38).

4. Helton further contends the trial court erred by denying his motion for a mistrial because a State’s witness, a DFCS investigator, testified she believed the victim was telling the truth. Although such opinion evidence about the credibility of a witness is generally inadmissible (see Guest v. State, 201 Ga. App. 506 (411 SE2d 364)), in the circumstances of this case we find no error. The question whether this witness believed the victim was first introduced by the defense during cross-examination when the witness was asked whether she was predisposed to believe anything the victim said and why the victim’s testimony that Helton licked her bottom should be believed when the child said earlier that nothing happened. On redirect, the State continued this line of questioning by asking whether the witness was predisposed to believe anything the child said and whether the witness developed her belief in the child from what the child said. At this point, Helton objected on the basis of relevancy; after the trial court overruled the objection because the defense had opened the door, Helton then moved for a mistrial because the witness testified she believed the witness. We find no error. “ ‘Trial counsel may not take chances in propounding questions which may elicit damaging answers and then demand a mistrial on the basis of the answer. Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984). Furthermore . . . whether to grant a mistrial is within the sound discretion of the trial court and his ruling will not be disturbed absent an abuse of discretion. Ladson v. State, 248 Ga. 470 (285 SE2d 508) (1981).’ Buxton v. State, 253 Ga. 137 (3) (317 SE2d 538).” Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420). We find no abuse of discretion.

Decided June 30, 1995.

Timothy Helton, pro se.

Summer & Summer, Daniel A. Summer, for appellant.

Lydia J. Sartain, District Attorney, Denise M. Arenth, Assistant District Attorney, for appellee.

5. Helton contends the trial court erred by refusing to charge the jury on the lesser included offense of child molestation. He contends he was entitled to such a charge because one State witness testified that the victim said that Helton merely touched her bottom. As the transcript shows that the victim, in fact, said that Helton licked her bottom, we find no factual support for this argument; the victim did not say that Helton touched her bottom. Further, defense counsel at trial conceded there was no evidence that Helton merely touched the child. Accordingly, as the evidence did not support a charge on the lesser included offense, there was no error. Edwards v. State, 264 Ga. 131, 132 (442 SE2d 444).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A0178.
    FEDERATED MUTUAL INSURANCE COMPANY v. LAWSON.
    (458 SE2d 709)
   Birdsong, Presiding Judge.

Eddie Lawson sued Federated Mutual Insurance Company to collect on a default judgment against Onslow Ross. Federated was the insurer of Macon Automotive, Inc., under a policy which insured “anyone else while using with your permission a covered ‘auto’ you own, hire or borrow.” Ross was a prospective buyer. Macon Automotive’s employee (Livingston) allowed Ross to take a car away from the dealership. At about 6:45 p.m., Lawson was injured in a hit-and-run collision with this car. Lawson took a default judgment against Ross. Before suing Federated, Lawson obtained Ross’s sworn statement to the effect that he called Macon Automotive and Livingston brought a car to him and took him to get a copy of his driver’s license which he had lost; Livingston took Ross to the dealership where Ross selected a car; and Livingston then filled out a buyer’s order, filled the car up with gas, and gave Ross a copy of the buyer’s order so that Ross would have proof of insurance in the car. A buyer’s order and a temporary driver’s license of the same date are included in the record. Ross stated it was his intention to buy the car with money from his credit union, and one of his fraternity brothers was driving the car at the time of the collision.

Federated contends the car was not being driven while Ross was “using [the car] with [the dealer’s] permission” so as to allow coverage under its insurance policy, because Ross stole the car. The dealer’s employee affied that Ross took the car on a test drive at about 3:00 p.m. with the understanding that he would return “within a couple of hours,” but “as time passed” Livingston began to worry that it had been stolen; he called the police and reported it stolen; officers arrived at the dealership “shortly after [the salesman’s] telephone conversation” with the police; and “at some point after” the police arrived, Ross was involved in a collision with Lawson.

According to a police officer’s affidavit, the officer who worked that case had died. The incident report shows the alleged theft occurred April 16, 1991, at 3:00 p.m., but there is no indication when the incident report was written. The space for “date of report” is blank. Lawson contends the evidence is not clear when the car was reported stolen; that Ross was allowed to take the car home until he arranged to get the purchase money; that the dealer did not take out a warrant against him for stealing the car until two days later; that Ross denied any intent to steal the car; and he was not prosecuted for theft.

The trial court denied Federated’s motion for summary judgment and granted summary judgment to Lawson. Federated appeals. Held:

Decided June 30, 1995.

Alston & Bird, Gerald L. Mize, Jr., R. Clay Milling II, for appellant.

The trial court erred in granting summary judgment to Lawson, but correctly denied summary judgment to Federated.

This is not a case where the driver was clearly not using the vehicle with the permission of the owner. See Wynn v. State Farm &c. Co., 118 Ga. App. 421 (164 SE2d 153); Maryland Cas. Co. v. U. S. Fidelity &c. Co., 91 Ga. App. 635 (86 SE2d 801). It is not a case where use of the car was plainly outside the scope of permission (see Select Ins. Co. v. Register, Inc., 192 Ga. App. 145 (384 SE2d 238)); nor is it a case where the car was clearly stolen and the policy excluded coverage to one using the car “ ‘without a reasonable belief that (he was) entitled to do so.’ ” McCraney v. Fire &c. Ins. Co. of Conn., 182 Ga. App. 895 (357 SE2d 327). The evidence is in strong dispute whether Ross stole the car or was using it with the dealer’s permission. Viewed in favor of the respondent to Federated’s motion for summary judgment (see Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)), the evidence shows the dealer’s employee allowed Ross to take the car under what amounted to very liberal terms. He gave Ross a “buyer’s order” so Ross would have proof of insurance, and he gave Ross permission to take the car for “a couple of hours”; this could be a term of art indicating an unspecified time (within which this collision occurred). Ross stated that he intended to buy the car, and in his view he had already bought it. In the jury’s view all the evidence may show the car was not stolen but was being “used” with permission at the time of Lawson’s injury.

Moreover, there are issues as to whether the car was in fact stolen and, if it was not stolen, whether the dealer could “withdraw” its permission unknown to Ross merely by erroneously concluding it was stolen.

As for the allegation that the car was in any event not being used with the dealer’s permission because Ross’s fraternity brother was driving it, the policy does not limit coverage to persons driving the car with the dealer’s permission. It defines “insured” as “anyone else while using [the covered auto] with your [Macon Automotive’s] permission.” (Emphasis supplied.) Under the liberal permission given to Ross, who claims he had bought the car, he may have been “using” it with the dealer’s permission when he allowed someone else to drive it. These are jury questions, and neither party was entitled to summary judgment.

Judgment affirmed in part and reversed in part.

Johnson and Smith, JJ., concur.

Mullís, Marshall, Lindley & Powell, J. A. Powell, Jr., Gerald S. Mullís, for appellee.


author: Ruffin, Judge.

text:
    A95A0223.
    MOORE v. BERRY et al.
    (458 SE2d 879)
   Ruffin, Judge.

Robbie Moore sued James and Kathryn Berry d/b/a Berry Sporting Goods (“the Berrys”) for injuries he sustained when the tree-climbing stand he purchased from the Berrys’ store collapsed and caused him to fall from a tree. Moore alleged the Berrys were liable under both implied and express warranties by virtue of the representations made to him prior to the sale by Mr. Berry and his sales clerk that the tree stand was “probably the safest one on the market” and that there is “no way you can fall in this stand.” The Berrys do not deny these statements were made, and Moore swore that he relied on the statements in deciding to purchase the product. The trial court granted the Berrys’ motion for summary judgment on both theories of recovery and Moore appeals.

1. In two enumerations of error, Moore contends that the trial court erred in finding as a matter of law that the tree stand had a patent defect and that recovery under an implied warranty of merchantability was therefore precluded. OCGA § 11-2-314 provides that a contract for the sale of goods implies a warranty of merchantability of the goods. OCGA § 11-2-314 (2) (c) defines the term merchantable as goods which “[a]re fit for the ordinary purposes of which such goods are used. ...” But an implied warranty protects the buyer only against latent defects which are not discoverable by the exercise of caution on his part. See Smith v. Northeast Ga. Fair Assn., 85 Ga. App. 32, 36 (7) (67 SE2d 836) (1951). Moore’s expert witness stated in his affidavit that the tree stand was defective and unsuitable for its intended purpose. The trial court determined that the affidavit suggested the alleged defect was patent, and accordingly, granted summary judgment on the issue of an implied warranty.

We do not read the affidavit as suggesting that the alleged defect — a veneered area of filler on the wooden stand — was patent; to the contrary, it is hard to imagine how a layperson, even upon close examination, could discern the defective area, no less appreciate its danger. Moreover, the Berrys’ expert stated that the tree stand had no defect and that it was suitable for its intended purpose. Standing alone, the contradiction between the expert’s conclusion that the defect was non-existent yet somehow patent is sufficient to raise an issue of fact. Accordingly, the trial court erred in determining that as a matter of fact, the alleged defect was patent. In addition, the statement by Moore’s expert that the product was not fit for its ordinary use was sufficient evidence to present a jury question on the issue of an implied warranty. See, e.g., Gold Kist v. Williams, 174 Ga. App. 849 (1) (332 SE2d 22) (1985).

2. Moore also contends the trial court erred in granting summary judgment with respect to whether an express warranty was created by virtue of his reliance on the statements by Mr. Berry and his sales clerk that the tree stand was “probably the safest one on the market” and that there is “no way you can fall” from it.

OCGA § 11-2-313 (1) describes the various ways express warranties are created. OCGA § 11-2-313 (1) (a) provides that “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” The trial court held the statements made to Moore were mere sales talk or “puffing” and did not constitute a warranty. Citing Taratus v. Smith, 245 Ga. 107 (263 SE2d 145) (1980), the court also held the statements were too vague to create an express warranty.

We do not agree with the trial court that the statements made to Moore can be compared to a vague undertaking to treat an unspecified ailment, as the Supreme Court held was the case in Smith, supra. Indeed, if this constitutes vague language, we can hardly imagine words which could be deemed specific. Nor do we agree that the statements were mere sales talk or opinion. In Bell v. Menzies, 110 Ga. App. 436 (138 SE2d 731) (1964), the plaintiff hired the defendant for landscaping services, including transplanting grass. The defendant stated that the transplanted grass would live and that cold weather would not hurt it. The grass died, and we held that the defendant’s representations were sufficient to establish a cause of action for breach of an express warranty. “The decisive test, in determining whether language used is a mere expression of opinion or a warranty, is whether it purported to state a fact upon which it may fairly be presumed the seller expected the buyer to rely and upon which a buyer would ordinarily rely. If the language used is of that character, the fact of reliance on the part of the buyer and the presumption of intent on the part of the seller which the law would raise in such a case would operate to create a warranty. No particular form of words is necessary to constitute a warranty. . . . [W]hether the words used amount to a warranty or not, is a question for the jury, under the rules of law applicable to the case.” (Citations and púnctuation omitted.) Id. at 438.

We find the representations that the tree stand is “probably the safest one on the market” and “there is no way you can fall” from it, upon which Moore relied, sufficient to raise a jury question as to whether they were an intentional affirmation relating to the quality of the tree stand such that an express warranty was created. Accordingly, we find that the trial court also erred in granting summary judgment on this issue.

Decided June 30, 1995.

Moore & Hawthorne, W. James Moore, Marc D. Hawthorne, for appellant.

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

Judgment reversed.

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


text:
    A95A0697.
    BELLSOUTH TELECOMMUNICATIONS, INC. v. HENRY COUNTY BOARD OF ASSESSORS.
    (458 SE2d 705)
   Birdsong, Presiding Judge.

BellSouth Telecommunications, Inc. appeals from the judgment of the superior court, after a de novo bench trial in an appeal under OCGA § 48-5-311, establishing a 40 percent level of assessment for Bellsouth’s property in Henry County. In essence, BellSouth contends the superior court erred in holding that Henry County’s use of a 40 percent assessment for Bellsouth’s property did not violate the uniformity clause of the Georgia Constitution of 1983 (Art. VII, Sec. I, Par. Ill (f)) when all statistical evidence showed the average level of assessment of other property to be 38.84 percent of fair market value or below.

The record shows the trial court concluded that Bellsouth’s property was taxed equally and uniformly in accordance with our Constitution, that Henry County did not arbitrarily assess Bellsouth’s property at 40 percent of its fair market value because the county’s in-house study fell within the criteria for reasonableness established by the State Department of Revenue, that the county was not required to reduce the level of assessment for any individual taxpayer to the level of sales ratio study, and that the method used by the county was reasonable and realistic under the circumstances. The effect of these conclusions is that even though the various studies showed the average level of assessments in Henry County ranged from 36.39 percent to 38.84 percent of fair market value, Henry County’s 40 percent level of assessment on Bellsouth’s property was correct because the county used a 38.84 percent level which was then rounded up to 40 percent based upon Revenue Department guidelines authorizing rounding up or down to 40 percent when the overall assessment percentage was between 38 percent and 42 percent. Held:

1. Bellsouth’s motion to strike the amicus curiae brief is denied.

2. The findings of trial courts in non-jury trials “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” OCGA § 9-11-52 (a). As the clearly erroneous test is, in effect, the same as the any evidence rule, appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them. Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544, 545-546 (382 SE2d 388).

We find the evidence sufficient to sustain the trial court. The fair market value to tax assessment percentage urged by BellSouth was but one of several percentages developed in the evidence. The trial court was not required to accept the testimony of Bellsouth’s expert, and the other evidence presented was sufficient to authorize its findings and judgment. Stoddard v. Bd. of Tax Assessors &c., 163 Ga. App. 499, 501 (295 SE2d 170).

Further, we find the results of the various studies in this case which showed assessment to fair market value percentages ranging from 36.9 percent to 38.30 percent vastly different from the disparity condemned by our Supreme Court in Undercofler v. Seaboard Air Line R. Co., 222 Ga. 822 (152 SE2d 878). Thus, we find no violation of Art. VII, Sec. I, Par. Ill of the Georgia Constitution of 1983.

Under our constitution, “all taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” Art. VII, Sec. I, Par. Ill (a), Ga. Const, of 1983. To achieve this result, our law mandates that “taxable tangible property shall be assessed at 40 percent of its fair market value and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of the property’s fair market value.” OCGA § 48-5-7 (a). Therefore, the mandate is to tax property at 40 percent of its fair market value.

3. Under our constitutionally mandated goal for uniform taxation and the statutory direction that all property be taxed at 40 percent of fair market value, the trial court did not err by finding Henry County’s procedures for determining the assessment percentage of the value of Bellsouth’s properties to be taxed, including the use of the State policy for rounding up or down to 40 percent, were not arbitrary and capricious. Our law requires only reasonable uniformity in taxation. Strickland v. Douglas County, 246 Ga. 640 (272 SE2d 340). Given the stipulation that Bellsouth’s property was assessed at its fair market value and the preference in our law for taxing property at 40 percent of its fair market value, the superior court did not err in approving the 40 percent valuation.

BellSouth contends the policy of allowing rounding up or down to 40 percent when the overall assessment percentage was within the 38 to 42 percent range permits violation of our Constitution’s public utility equalization clause, Art. VII, Sec. I, Par. Ill (f). We find that argument misplaced. This policy merely recognizes that studies and ratios do not render exact results and that by their nature averages are derived from assessments that are both below and above the average.

Decided June 30, 1995

Beck, Owen & Murray, James R. Fortune, Jr., Richard W. Bell, William J. Ellenberg II, for appellant.

Blount & Cash, Ernest D. Blount, Crumbley & Crumbley, Wade M. Crumbley, for appellee.

Michael J. Bowers, Attorney General, Daniel M. Formby, Senior Assistant Attorney General, Harold D. Melton, Assistant Attorney General, amici curiae.

Although BellSouth asserts that this policy cannot be relied upon because it was not adopted pursuant to the rule-making provisions of the Administrative Procedures Act, we do not find this non-binding policy to be a rule within the meaning of OCGA § 50-13-2 (6).

4. Accordingly, Bellsouth’s enumeration of errors are without merit.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A0806.
    HICKMAN v. ALLEN.
    (458 SE2d 883)
   Birdsong, Presiding Judge.

Charlotte Hickman appeals the grant of directed verdict to defendant Margaret C. Allen, her former landlord, in Hickman’s suit for damages on account of being robbed, raped, strangled and sodomized by Eddie Bradford. Bradford was a worker authorized by Allen’s property manager Suzanne Roberts to perform repair work in Hickman’s cottage. Hickman sued Allen, Mrs. Roberts, Mrs. Roberts’ husband O. M. Roberts and his company Roberts Development, Inc. (RDI), which employed Bradford. Allen was released by directed verdict. After four days of trial, the jury returned a verdict against Mrs. Roberts, Mr. Roberts and RDI. Held:

Allen contends, and the trial court found, that the question is whether Allen assumed the right to control the execution of the work, that the evidence “sufficiently” establishes that Allen totally surrendered control of the premises to Mrs. Roberts to make repairs, that Allen did not supervise or inspect any of the work, that she could not reasonably have foreseen workers would have had unsupervised access to keys in the premises and could not reasonably have foreseen the conduct which caused the injuries to Hickman.

The standard used by the trial court to determine potential liability of the landlord is incorrect.

Generally an employer is not liable for the torts of an independent contractor or its employee because the employer does not control the manner in which the independent contractor’s work is done; but where the duty owed to an invitee by a landlord is statutory and nondelegable, the landlord may not escape liability by claiming the negligent act was done by a property manager or other “filter.” See Peach-tree-Cain Co. v. McBee, 254 Ga. 91 (327 SE2d 188), where it was held that a property owner was responsible for the intentional torts of an employee of a security agency hired by a property manager. Under Georgia law, a landowner is liable to invitees for injuries caused by his failure to use ordinary care in keeping the premises safe. OCGA § 51-3-1. This is a statutory duty and is nondelegable. As for the contention that the landlord would not in any case be liable for Bradford’s intervening criminal act, a defendant is not insulated from liability by the intervention of an illegal act which proximately causes an injury if the defendant had reasonable grounds to apprehend such a criminal act would be committed. Confetti Atlanta v. Gray, 202 Ga. App. 241, 242 (414 SE2d 265); Thurmond v. Richmond County Bd. of Ed., 207 Ga. App. 437, 440 (4) (428 SE2d 392). The proper inquiry to determine whether Allen performed her nondelegable duty to use ordinary care is thus whether there was evidence from which a jury could conclude Allen had reasonable grounds to believe a person of criminal propensity might be hired to work on the premises, might obtain a key to the premises if keys were accessible and might wrongfully enter the premises to harm a single female resident (Confetti Atlanta v. Gray, supra at 243), and, if so, whether Allen used ordinary care to keep these premises safe.

When the evidence is construed in favor of Hickman as respondent to Allen’s motion for directed verdict (OCGA § 9-11-50; Butler v. McCleskey, 208 Ga. App. 341, 343 (430 SE2d 631); Lawson v. Athens Auto Supply &c., 200 Ga. App. 609 (5) (409 SE2d 60)), there is ample evidence that Allen could reasonably have foreseen this occurrence. The evidence construed in favor of Hickman shows Allen knew that as landlord she had a duty to hire responsible agents. Allen initially intended another person to do the work in Hickman’s cottage, and she obtained Hickman’s key only after assuring Hickman that person was of good character and had worked for Allen for years in her home and on other property she owned; Allen thus induced Hickman to have an extra key made. That person became unavailable to do the work, and Allen authorized Mrs. Roberts to hire her husband and his company to do the work. Roberts had employed Bradford for about seven months and made no background check on him. Bradford was a day worker. Roberts knew Bradford was a convicted felon and even took him to the probation office. Roberts told Mrs. Roberts that Bradford was on probation, but Mrs. Roberts denied having heard this; she did not know much about Bradford, and she never investigated him. Roberts knew that one of Bradford’s co-workers, Rhoades, had been arrested for rape and had served time in prison; Roberts procured a lawyer for him on a charge of entering an automobile, to which Rhoades pled guilty, and Roberts even asked him if he had been raped in prison, yet Roberts allowed Rhoades in Hickman’s cottage. All three of Roberts’ workers, including Bradford, used cocaine at the work site. When working on properties his wife managed, Roberts got keys from her. Roberts provided a key to the three workers working on the Hickman cottage. The key was left in Roberts’ unlocked pickup which was used on the jobs and was left at Roberts’ house overnight, was driven by Bradford and was accessible to RDI workers. The key was kept in the truck on the left turn signal arm and was put there by his men. Roberts knew Bradford was aware of this. To Roberts’ recollection, the key to Hickman’s cottage was last in Bradford’s possession. Roberts was never able to find the key to the Hickman cottage after Bradford had it. If Hickman had known her key would be left in an unlocked pickup truck overnight, she would never have given her key to Allen. On September 10, 1990, after working at the cottage and after using drugs and alcohol, Bradford, using the key which Roberts had left on the left turn signal arm, entered Hickman’s cottage in the early morning hours. Hickman was awakened by Bradford’s hands squeezing her throat. Bradford brutally beat her, raped and sodomized her.

The jury found that Roberts could reasonably foresee or should have foreseen these criminal acts, and the jury may likewise find Allen had reasonable grounds to apprehend that such criminal acts would be committed and that Allen failed to use ordinary care to guard against these acts. The evidence with all reasonable deductions does not demand a conclusion that, as landlord and having a nondelegable duty with regards to safety of her tenants’ premises, she could not reasonably have foreseen that making a key accessible to casual workers might result in these consequences.

Whenever a party is entitled to a directed verdict, it should be granted (OCGA § 9-11-50), but when the erroneous grant of directed verdict to a defendant will require a new trial, and particularly where there is extensive evidence and debate as in this case, it is a wise exercise in judicial economy to let the jury decide the matter and then to grant a judgment n.o.v., rather than court the prospect of trying the entire matter again as to that defendant, with resulting prejudice to all parties. See similarly Lawson v. Athens Auto Supply, supra.

Decided July 3, 1995.

McLain & Merritt, Albert J. Decusati, Jeffrey E. Hickcox, for appellant.

Greene, Buckley, Jones & McQueen, John D. Jones, Frank C. Schenck, Fortson, Bentley & Griffin, J. Edward Allen, Jr., Blasingame, Burch, Garrard & Bryant, E. Davison Burch, for appellee.

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A95A0830.
    KING v. CODISCO, INC.
    (458 SE2d 881)
   Birdsong, Presiding Judge.

Annette King d/b/a King Heating & Air Conditioning Service Company appeals the grant of summary judgment to Codisco, Inc. d/b/a Coastline Distributing of Atlanta. King contends the trial court erred by granting summary judgment to Codisco on its claims against her and on her claims against Codisco.

After King’s account with Codisco became delinquent, Codisco sued King. King then counterclaimed for fraud and claimed that Codisco had overcharged King, and further claimed that she should be allowed to offset against Codisco’s claims the amount owed her, claimed she was entitled to recoupment, and claimed the amount she was owed.

Codisco first sought summary judgment on King’s fraud claim, and after summary judgment was granted on that claim, Codisco moved for and was granted summary judgment on its own claim and King’s counterclaims. Codisco’s motions were based on its claim that any statements made to King that she would receive the lowest price were mere “puffing,” and the motion was supported by the affidavit of a Codisco employee who supported his affidavit with Codisco’s records showing King’s account. King responded to Codisco’s motion with affidavits from the Kings and with the affidavit of a former employee of Codisco who serviced the King account. These affidavits stated that to induce King to give Codisco her business, Codisco promised to give King the lowest price available in the Atlanta area. Codisco’s response to King’s contentions was to rely on the contradictory testimony rule and an affidavit by one of its employees. Held:

1. Under our law “dealer talk,” “puffing,” or expressions of opinion as to quality or price ordinarily do not constitute fraud. See Marler v. Dancing Waters Lakes, 167 Ga. App. 99 (305 SE2d 876); American Food Svcs. v. Goldsmith, 121 Ga. App. 686 (175 SE2d 57). Contrary to Codisco’s assertions, however, the affidavit by Thompson, Codisco’s account representative, shows he told King, on the instructions of his superiors at Codisco, that in return for King’s business, Codisco would give King the “lowest” price that Codisco gave to any of its customers in the Atlanta area. This statement, however, is not such an expression of opinion; it is definite, capable of exact proof, and not a mere expression of opinion. Indeed, it was a statement of fact. See American Food Svcs., supra at 688. According to King’s affidavit, although Codisco provided King with a price sheet showing that it was receiving the lowest price, it did not receive the lowest price because Codisco fraudulently provided King with false price sheets. Other price sheets provided to other customers showed that King did not receive the lowest price Codisco gave its customers in the Atlanta area for purchasing these products. Given Thompson’s affidavit, whether this conduct constitutes actionable fraud within the meaning of Georgia law is an issue for the jury, del Mazo v. Sanchez, 186 Ga. App. 120, 127-128 (366 SE2d 333).

Decided July 3, 1995.

Paul S. Weiner, for appellant.

2. Pretermitting Codisco’s assertions regarding contradictory testimony and affidavits by King (see Gentile v. Miller &c., 257 Ga. 583 (361 SE2d 383); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680)), we find that the affidavit from Codisco’s employee, Jenkins, was insufficient to rebut Thompson’s affidavit which was not self-contradictory. Jenkins was merely the custodian of Codisco’s business records and was not involved in direct contact with King. Further, his affidavit is contradicted by the price sheets provided King showing the prices charged for the product and the other price sheets provided other customers. In any event, Jenkins’ denial of the promises made to King merely create an issue of fact on what representations were made. Under the circumstances, genuine issues of material fact exist on King’s fraud claims as well as on her affirmative defenses. Accordingly, the trial court erred by granting summary judgment to Codisco.

3. As King’s brief does hot contain argument or citation of authority supporting her seventh enumeration of error concerning the grant of summary judgment on her slander claim, this enumeration of error is deemed abandoned. Court of Appeals Rule 27 (c) (2); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (328 SE2d 564).

Judgment affirmed in part and reversed in part.

Johnson and Smith, JJ., concur.

Gray, Gilliland & Gold, Charles A. Ratz, John T. Sparks, for appellee.