text:
    A99A1098.
    JOVA DANIELS BUSBY, INC. v. GREENFOREST COMMUNITY BAPTIST CHURCH, INC.
    (523 SE2d 629)
   Phipps, Judge.

The Georgia Constitution protects all persons from deprivation of property without due process of law. That protection extends to a judgment creditor seeking to enforce its judgment by garnishing a third party holding assets of the debtor. The garnishee here, Green-forest Community Baptist Church, sought relief from a default judgment entered in favor of the garnishor, Jova Daniels Busby, Inc. (JDB). We must determine if the trial court erred by modifying the default judgment without conducting a hearing on the substance of the motion for relief from judgment. Because we find the court’s action deprived the garnishor of due process, we reverse and remand for an appropriate hearing.

JDB obtained a judgment against MST International in the amount of $119,324.43. JDB sought to collect that judgment by garnishing money allegedly owed to MST by Greenforest. When Green-forest failed to answer the summons of garnishment within 45 days of service, JDB sought and obtained a default judgment against Greenforest in the amount of $119,324.43, plus interest. Greenforest received notice of the default judgment on May 22, 1998.

OCGA § 18-4-91 allows a garnishee to seek relief from a default judgment by filing a motion within 60 days from receiving notice of the judgment and paying all court costs. By this procedure, the garnishee may have the judgment reduced to $50 or more based on the amount of the debtor’s money or property that came into the garnishee’s possession from the time the garnishment was served until the date the answer was due.

On June 9, 1998, Greenforest filed a motion to set aside the default judgment on the grounds it was not aware of any indebtedness to MST and had no money or effects belonging to MST in its possession or control. Greenforest submitted a supporting affidavit with its motion. Greenforest also paid all court costs within 60 days of receiving notice of the default judgment.

JDB opposed Greenforest’s motion with an affidavit stating that Greenforest owed MST $23,270, plus interest, and a copy of the contract forming the basis for the debt. The judge conducted a hearing on Greenforest’s motion, but limited argument to the statutory grounds for a motion to open or set aside a judgment: (1) excusable neglect in failing to respond timely to the garnishment summons and (2) fraud, accident or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant (OCGA §§ 9-11-55; 9-11-60 (d) (2)). At the conclusion of the hearing, the judge instructed the parties to file briefs supporting their positions on the procedural issues and indicated that she would conduct an additional hearing on substantive issues such as the amount owed MST by Greenforest.

Although both parties complied with the judge’s instruction, JDB also submitted an additional affidavit stating that the amounts owed MST by Greenforest far exceeded $23,270. Prior to the court’s ruling, Greenforest submitted an amended motion for relief from default judgment in which it specifically cited to OCGA § 18-4-91.

On December 1, 1998, the judge issued an order denying Green-forest’s motion to set aside the default judgment but treating the original motion as one for relief from judgment under OCGA § 18-4-91. Based on Greenforest’s affidavit that it owed nothing to MST and JDB’s various affidavits regarding the amounts owed, the judge held that, at the time JDB filed the garnishment action, Greenforest was indebted to MST in the amount of $13,000. The judge modified the judgment to $13,050, plus costs, and denied as moot Greenforest’s amended motion for relief from judgment.

JDB appeals the judge’s actions in (1) construing the motion to set aside as a motion for relief from judgment under OCGA § 18-4-91 and (2) doing so without providing JDB an evidentiary hearing.

1. JDB contends that because Greenforest’s initial motion was entitled “Motion to Set Aside Default Judgment,” it cannot be reclassified as a motion for relief from judgment. Although there is no dispute that Greenforest’s initial motion was filed within 60 days after receiving notice of the default judgment, JDB contends Greenforest is precluded from modifying the judgment because it failed to file a “Motion for Relief from Judgment” within the 60-day period.

Georgia courts must construe pleadings, motions and orders according to their substance and function and not merely as to their titles. Planet Ins. Co. v. Ferrell, 228 Ga. App. 264, 266 (491 SE2d 471) (1997). Courts must also construe such documents in a manner consistent with the best interests of justice. Id. Greenforest’s original motion, although labeled a motion to set aside judgment, included the elements necessary for a motion for relief from judgment — a statement that Greenforest owed nothing to MST and had no money or effects of MST at the time — and was supported by an affidavit. Because we find that construing Greenforest’s original motion as a motion for relief from judgment is consistent with the best interests of justice, we affirm that portion of the trial court’s decision.

Decided October 19, 1999

Shapiro, Fussell, Wedge, Smotherman & Martin, J. Ben Shapiro, Jr., George M. Kent, Jr., for appellant.

Ernest N. Tate, for appellee.

2. Prior to modifying the judgment, however, the judge should have conducted a hearing on the merits of the garnishment action. The statutory language recognizes the need for a hearing by specifically referring to “the trial of the motion” for relief from judgment. OCGA § 18-4-91. An evidentiary hearing would have allowed both parties to present their positions on the proper amount of the judgment and provided a proper basis for modifying the judgment. Instead, the judge reviewed the affidavits submitted by the parties and modified the judgment to an amount found on an invoice from MST to Greenforest, which differed from the amounts claimed due by either party.

By failing to provide a hearing on the propriety of modifying the amount of the judgment, the judge deprived JDB of due process of law. See Apex Supply Co. v. Johnny Long Homes, 143 Ga. App. 699, 701 (2) (240 SE2d 171) (1977). Although Apex Supply interpreted the predecessor to OCGA § 18-4-91 (Code 1933, § 46-509), we find its reasoning equally applicable to the language of the current statute. We therefore reverse that portion of the judge’s order modifying the judgment against Greenforest and remand for a hearing as required by OCGA § 18-4-91.

Judgment affirmed in part, reversed in part, and case remanded.

Barnes and Ellington, JJ, concur.

       In fact, both parties appeared at the hearing on the motion to set aside the judgment with witnesses able to testify regarding the proper amount of the judgment.


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A99A1381.
    CRUMPTON v. THE STATE.
    (523 SE2d 624)
   Barnes, Judge.

Michael Crumpton was convicted of two counts of burglary. Following the denial of his motion for new trial, Crumpton appeals, claiming that the State failed to prove his involvement in the two break-ins because he was in jail at the time both crimes were committed.

Along with his two brothers, Darious and Curtis Crumpton, and a first cousin, Robert Bowen, Michael Crumpton was tried under a two-count indictment for the burglary of two businesses: the Pickle Shed on July 22, 1996, and the Berrien Gin Company on August 5, 1996. Payroll checks were stolen in the first burglary and business checks and a typewriter in the second.

Shortly thereafter, forged checks stolen from the Pickle Shed and the Berrien Gin Company began being cashed, eventually totaling more than $23,000. According to Georgia Bureau of Investigation Agent Michael Clayton and Berrien County Sheriff Jerry Brogdon, the Crumptons’ brother-in-law, Joseph Martin, confessed that he, Curtis Crumpton, and Darious Crumpton burglarized the Berrien Gin Company and the Pickle Shed. Martin, who provided a written statement to investigators, led them to a large bag of stolen checks and entered guilty pleas to both burglaries.

At trial, however, Martin claimed he acted alone in both break-ins and retracted his earlier statement implicating Curtis and Darious Crumpton. Martin testified that before these burglaries, he never discussed, called, or conferred with Michael Crumpton about “hitting any places.” Martin denied that Michael Crumpton was involved in the burglaries or helped in any way, nor was GBI Agent Clayton able to link Michael Crumpton to either burglary.

The State’s own witness conceded that Michael Crumpton was in jail in another county when both burglaries occurred. When Sheriff Brogdon was asked if he would agree that Michael Crumpton did not participate in the cotton gin burglary, he responded, “I would agree from the records and what I know that, no, Michael Crumpton wasn’t physically there at the cotton gin or at the [P]ickle [S]hed at the time that those two buildings were entered and those checkbooks were seized.” Sheriff Brogdon added that he had no reason to doubt that Michael Crumpton “was in jail the day that these two burglaries occurred.” Sheriff Brogdon also conceded that Martin did not implicate Michael Crumpton. According to the Sheriff, the only evidence allegedly connecting Michael Crumpton to the two burglaries for which he was under indictment was $4,837 worth of forged checks from the Pickle Shed and the Berrien Gin Company that were cashed after the burglaries.

Four former crack addicts testified for the State at trial. Thomas Sheppard, an inmate serving time for a forgery conviction, admitted cashing checks for the other defendants but denied even knowing Michael Crumpton. Kevin Washington similarly denied having any dealings with Michael Crumpton but implicated two of the other defendants. Kenneth Rountree, an inmate serving time for possession of cocaine, denied that Michael Crumpton ever tried to get him to cash any checks. Rountree, however, claimed that on one occasion Michael Crumpton knew that they were going to cash some forged checks because Curtis Crumpton borrowed his car. Derrick Davis, who received a probated sentence for forgery, implicated all three Crumptons in cashing checks from the Pickle Shed.

1. Crumpton contends that the trial court erred in denying his motion for directed verdict. We agree and reverse.

A motion for directed verdict in a criminal trial should be granted only where the evidence does not conflict and demands a verdict of acquittal as a matter of law. Alexander v. State, 263 Ga. 474, 478 (3) (435 SE2d 187) (1993). Although the State offered evidence indicating that Martin, along with Darious and Curtis Crumpton, committed the two burglaries, no evidence showed that Michael Crumpton actually participated in either planning or executing them. OCGA § 16-7-1. Because no evidence showed Michael Crumpton’s participation in either break-in, the question is whether the State proved that he was a party to the crimes or a co-conspirator.

OCGA § 16-2-20 (b) provides in pertinent part that a person may be found guilty as a party to a crime only if that person “[intentionally aids or abets in the commission of a crime[ ] or . . . [i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime.” Here, neither direct evidence nor sufficient circumstantial evidence existed to convict Michael Crumpton as a party to the crimes. See Bullard v. State, 263 Ga. 682, 685 (1) (436 SE2d 647) (1993) (defendant’s participation in concealing the victim’s body did not make her a party to the crime). At most, the State’s evidence indicated that after these burglaries occurred, Michael Crumpton could have been involved in cashing some of the stolen checks. Compare Todd v. State, 189 Ga. App. 538, 540 (2) (376 SE2d 917) (1988) (by offering to purchase stolen guns, the defendant became a party to the crime because he encouraged the commission of the burglary). Although the State presented proof that the burglaries occurred and that Michael Crumpton had taken one crack addict to cash a forged check afterward, the State presented no proof that Michael Crumpton had intentionally advised, encouraged, hired, counseled, or procured anyone to commit the crimes. Moreover, an accessory after the fact is not a party to the crime within the meaning of OCGA § 16-2-21. Martinez v. State, 222 Ga. App. 497, 499 (2) (474 SE2d 708) (1996).

Conspirators are responsible for the acts of each other in carrying out their common purpose or design, although these acts may constitute another criminal offense. Solomon v. State, 180 Ga. App. 636 (1) (350 SE2d 35) (1986).

Conspiracy may be established by inference, as a deduction from acts and conduct establishing a common design to act together for the accomplishment of an unlawful purpose. Once that common design is shown by evidence tending to indicate that the individuals have associated themselves together to do an unlawful act, any act done in pursuance of that association by any one of the associates, would, in legal contemplation, be the act of each of them.

(Citations omitted.) Ferrell v. State, 169 Ga. App. 592, 593 (1) (314 SE2d 253) (1984).

However, the State did not offer any evidence which showed that Michael Crumpton participated in an ongoing burglary. Although Sheriff Brogdon testified that the scheme started in 1994, the State offered no evidence that Michael’s involvement began at that time. Even though Michael Crumpton might well have participated in a criminal enterprise to steal business checks, forge them, and enlist crack addicts to cash them, as the prosecutor suggested to the court, the State presented no witnesses connecting him to any conspiracy existing when these two burglaries occurred. See Kilgore v. State, 251 Ga. 291, 298-300 (3) (c) (305 SE2d 82) (1983). Nor did the State offer any evidence that Michael Crumpton helped originate or orchestrate a common scheme to commit the burglaries. Compare Bruce v. State, 263 Ga. 273, 275 (5) (430 SE2d 745) (1993) (where defendant helped design a common scheme to commit the burglary, the fact that he did not participate in the actual burglary was irrelevant).

Conspiracy may be proven by circumstantial evidence. Waldrip v. State, 266 Ga. 874, 880 (3) (471 SE2d 857) (1996). But, here, none was offered. Compare Robertson v. State, 268 Ga. 772, 773-774 (1) (493 SE2d 697) (1997) (defendant acted as “set up” man by supplying information about potential burglary targets); Peach v. State, 168 Ga. App. 55 (2) (308 SE2d 60) (1983) (burglary traced to Peach’s co-defendant and evidence connected Peach to mobile home where stolen goods were located).

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

Decided October 19, 1999.

John W. Strickland, Jr., for appellant.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

Judgment reversed. Blackburn,

P. J., and Ellington, J., concur.

       Michael Crumpton was arrested on an unrelated matter on July 3,1996, and released on November 11, 1996.


author: Blackburn, Presiding Judge.

text:
    A99A1458, A99A1459.
    THE STATE v. BURKS; and vice versa.
    (523 SE2d 648)
   Blackburn, Presiding Judge.

Gabriel Burks was indicted on charges of obstruction of an officer, aggravated assault, loitering or prowling, public drunkenness, criminal trespass, and possession of cocaine. In Case No. A99A1458, the State appeals the trial court’s order suppressing Burks’ positive drug test results. In Case No. A99A1459, Burks cross-appeals the trial court’s denial of a motion to suppress all evidence obtained as a result of an allegedly illegal arrest. The cases were combined for the purpose of this appeal. Because the trial court correctly denied Burks’ motion to suppress by finding that his arrest was valid, but incorrectly granted his motion to suppress by finding that State action was involved in the testing of Burks’ urine, we affirm in part and reverse in part the decision of the trial court.

The standard of review of a trial court’s decision on a motion to suppress requires that “an appellate court must adopt the trial court’s findings of fact unless they are clearly erroneous and not supported by any evidence admitted at the suppression hearing.” State v. David, 269 Ga. 533, 535 (1) (501 SE2d 494) (1998). However, “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

Case No. A99A1459

The material facts applicable to Burks’ cross-appeal are undisputed. Three police officers were dispatched to arrest a subject unrelated to this case on February 25, 1997, at approximately 4:15 a.m. The officers went to a building located at 201 South Second Street, Warner Robins. This building was on private property and was a reputed location for drug activity. Officer Brian Smith positioned himself at the back of this building to prevent anyone from escaping through the back door. While Officer Smith was in the back, Burks entered the fenced-in backyard through an opening in the fence and proceeded toward the back door where Officer Smith was located. Burks had a hood over his head and his hands in his coat pockets. When Burks proceeded closer to the door, Officer Smith drew his gun and yelled, “Stop, police!” At this point, Smith was unaware whether Burks had any weapons in his possession. Upon hearing Officer Smith’s instruction, Burks ran. After a pursuit, Smith caught Burks, struggled with him, and finally subdued him with the help of the two other officers on the scene.

1. Burks alleges that his arrest was illegal, and that any evidence subsequent to that arrest should have been suppressed. Burks contends that he was arrested at the moment Officer Smith drew his gun and told him to stop. Burks further contends that this act was illegal because Officer Smith had no reason to suspect any criminal activity on the part of Burks.

“Under our law, there are three levels of police-citizen encounters. In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. This tier provides no Fourth Amendment protection. . . . The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.” (Citations omitted.) State v. Banks, 223 Ga. App. 838, 839-840 (479 SE2d 168) (1996). The third tier of police-citizen encounters include [s] “full-scale arrests that must be supported by probable cause.” (Punctuation omitted.) Alexander v. State, 166 Ga. App. 233, 234 (2) (303 SE2d 773) (1983).

State v. Kaylor, 234 Ga. App. 495, 496-497 (507 SE2d 233) (1998). See also Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

Burks contends he was illegally arrested after he entered the property through an opening in the fence and Officer Smith drew his gun and ordered him to stop. Because Burks was not arrested when he was ordered to stop, we disagree. “An investigatory stop is not automatically an arrest simply because an officer is armed with a shotgun.” Franklin v. State, 143 Ga. App. 3, 5 (237 SE2d 425) (1977). Additionally, “[i]t is often necessary for the police to approach a person with a drawn weapon in a suspiciously dangerous situation in order to protect the physical well-being of both police officers and the public.” Id. Officer Smith reasonably believed that any person coming onto this particular property under the outlined circumstances warranted investigation and could also pose a danger to him. It was certainly reasonable for him to inquire as to why anyone would enter the property at 4:15 a.m.

After the initial attempt to stop, “ ‘[f] light in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search.’ ” Howie v. State, 218 Ga. App. 45, 46 (1) (459 SE2d 179) (1995). After Smith made the attempted investigative stop, Burks ran. “Flight at the approach of law officers is a strong indicium of mens rea.” State v. Grimes, 195 Ga. App. 773, 774 (1) (395 SE2d 42) (1990). The trial court’s denial of Burks’ motion to suppress the evidence obtained after his initial detention was not clearly erroneous and is therefore affirmed.

Case No. A99A1458

2. The State appeals the trial court’s decision to suppress the results of a urinalysis performed by the hospital pursuant to its procedures which showed the presence of cocaine in Burks’ system.

Burks contends he was injured when Officer Smith apprehended him, and he requested medical treatment for his injuries. Burks was taken to the hospital by Officer Wanda Bishop where doctors requested a blood or urine sample from Burks to determine whether he was under the influence of any drugs. When Burks declined, he was informed that he must comply or treatment would be denied. Burks continued to refuse, and the doctors eventually asked for the assistance of Officer Bishop. Bishop reiterated to Burks that he must submit a urine sample or he could not be treated. Nothing in the record supports the notion that Burks was forced to submit a urine sample. Additionally, there is no evidence in the record of any State action sufficient to trigger a Fourth Amendment analysis.

The record establishes that Burks requested to go to a hospital for treatment and that it was the hospital’s requirement that Burks submit a blood or urine sample prior to any treatment. There is no evidence in the record that the State was involved in any way other than to reiterate the hospital’s policy.

The cases relied upon by the trial court all involve situations in which some regulation of the State required that the defendant submit to a blood or urine test. See Beasley v. State, 204 Ga. App. 214, 215 (419 SE2d 92) (1992) (administration of drug test required before bond determination); State v. Frazier, 229 Ga. App. 344 (494 SE2d 36) (1997) (results of blood tests pursuant to implied consent were inadmissible as to evidence of possession of drugs). Additionally, in Gadson v. State, 223 Ga. App. 342, 345 (4) (477 SE2d 598) (1996), we specifically determined that Beasley, supra, did “not require an officer to explain all charges which could result from a search for the search to be the product of ‘free and voluntary’ consent.”

Decided October 19, 1999.

Kelly R. Burke, District Attorney, A. James Rockefeller, Assistant District Attorney, for appellant.

The Lucas Firm, Alex H. Morrow, for áppellee.

Because we find no State action was involved in Burks’ urinalysis and the cases relied upon by Burks are inapposite, we reverse the trial court’s grant of Burks’ motion to suppress the evidence of possession of cocaine.

We do not address the appropriateness of the State’s ability to obtain Burks’ medical records and whether those actions violated his right to privacy, as that issue was not raised in the trial court.

Judgment affirmed in Case No. A99A1459. Judgment reversed in Case No. A99A1458.

Barnes and Ellington, JJ., concur.


author: Andrews, Presiding Judge. Ruffin, Judge,

text:
    A99A1558.
    WILLIAMS v. KROGER COMPANY, INC.
    (523 SE2d 655)
   Andrews, Presiding Judge.

Mildred Williams appeals from a jury verdict for the defendant on her slip and fall claim. Williams argues the court erred in refusing her motion to strike the jury panel after the judge made remarks to the jury which she claims prejudiced them against her. Williams also contends the verdict was against the weight of the evidence and was contrary to law and principles of justice. We disagree and affirm.

On appeal, the evidence must be construed to uphold the jury’s verdict, and the sole question for determination is whether there is any evidence to authorize the verdict. It is well settled that questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s protection ordinarily are to be decided by a jury, and a court should not decide them except in plain and indisputable cases.

(Citations and punctuation omitted.) Axom v. Wendy’s Intl., 238 Ga. App. 528-529 (1) (518 SE2d 734) (1999).

Accordingly, the evidence at trial, construed to support the verdiet, was that Mildred Williams, after getting her groceries, went to the check-out counter to pay. The cashier told her to go over to customer service to cash her check. Williams turned away to walk over to the customer service counter and then suddenly slipped and fell backward to the floor. Williams said that after her fall, she saw a bag of ice on the floor nearby. A store employee testified that after Williams fell, they found two pieces of ice “at the end of the register.” The ice on which Williams slipped was the type dispensed from a self-service drink machine in the deli. The employee said the ice could not have been there long because there was very little melted water around the ice.

Williams’s husband said that after his wife fell, he looked around and saw a ripped open bag of ice on the floor. He also stated that the only store employee in the vicinity was the cashier who was checking out their groceries. The cashier, who went around to help Williams, said there was a piece of ice next to Williams and that must have been what caused the fall. She said she was unable to see the ice from her position behind the counter. Some children with cups of ice had just come through the line at that same register, and the cashier speculated that they might have dropped some of the ice on the floor, but no one saw them do so. None of the Kroger employees saw a bag of ice on the floor.

1.

[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the . exercise of ordinary care due to actions or conditions within the control of the owner/occupier.

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

There was no evidence in this case that any Kroger employee had actual knowledge that there was ice on the floor. The jury could also conclude from the evidence that no employee had constructive knowledge of the ice.

In order to show constructive knowledge, the plaintiff must present evidence that an employee was in the immediate vicinity of the hazard and could easily have seen the substance or that the substance was on the floor for such a length of time that it should have been discovered and cleaned up if the proprietor had exercised reasonable care. Lovins v. Kroger Co., 236 Ga. App. 585, 586 (512 SE2d 2) (1999).

Here, the cashier testified that she could not see the floor from behind her counter and that the ice could possibly have been spilled by some children who had just gone through the check-out line. There was also testimony that the ice cubes looked “intact,” and there was no puddle of water from melting ice at the time Williams fell. Therefore, the jury could have concluded that the only employee in the vicinity could not have seen the ice and also that the ice had been there only for a short time. Accordingly, there was evidence to support the verdict.

2. Williams also argues that the trial court erred in refusing to strike the jury panel after the trial judge made certain comments to the jury. There was no transcript of the jury selection, but it appears that during voir dire, certain jurors expressed concern that the courts were awarding “excessive verdicts” in personal injury cases. The trial judge told them the court did not award anything, it was the jurors who determined the award. After the court’s comment, Williams requested that the court strike the panel, and the court denied the request.

There was no error. The court corrected a false impression held by certain jurors with a simple statement of fact. Williams’s main argument appears to be that the judge was too vehement in his statement. But, Williams makes only conclusory allegations about the judge’s vocal emphasis. Complaints about the tone of voice or demeanor of a trial judge, without more, are not reviewable on appeal unless the appellant has completed a record which will enable an appellate court to review her contentions. Milhouse v. State, 254 Ga. 357, 359 (329 SE2d 490) (1985).

Williams also complains about remarks the judge made to the jury after they reached a verdict. Because Williams can show no harm from these statements, there was no reversible error. Wehunt v. ITT &c. Corp., 183 Ga. App. 560, 562 (359 SE2d 383) (1987).

Judgment affirmed.

Pope, P. J, and Ruffin, J., concur specially.

Ruffin, Judge,

concurring specially.

I concur in the result reached by the majority and in the analysis in Division 1. I cannot agree, however, with the analysis in Division 2.

During voir dire, the trial judge apparently told the prospective jurors that juries — not courts — were responsible for awarding excessive verdicts in personal injury cases. After the plaintiff’s attorney objected, the trial judge explained that he felt he needed to educate the jury. The majority found no error because “[t]he court corrected a false impression held by jurors with a simple statement of fact.” I believe the trial judge’s remark was improper, ergo error, but the error is harmless.

We have recognized the importance of ensuring that nothing takes place before a jury panel that might cause jurors to form an opinion about the merits of the case. A trial judge’s instructions to the jury about the mechanics of the trial process serve a useful function when those instructions are informative, accurate, and topical. But a judge’s extraneous or inaccurate comments, even though well intentioned, may impair prospective jurors’ views of the parties. In Edmonds v. State, for example, the trial court told the jury panel during introductory remarks that prior criminal records of defendants are usually inadmissible and that most criminal cases are resolved by plea bargaining. Defense counsel moved to strike the panel, arguing that the jurors could infer from the judge’s comments that the defendant had a criminal history and was guilty. We held that the trial court’s remarks were inappropriate and that the motion to strike should have been granted.

Decided October 19, 1999.

C. Victor Long, for appellant.

In this case, the trial judge’s comment about jury verdicts was similarly inappropriate. First, the comment was not entirely accurate. Although personal injury cases are often tried to a jury, they may also be tried by the court in certain instances. When a plaintiff prevails in a bench trial, the trial court determines the amount of damages and may award a large amount if the evidence supports it. The judge’s remark suggested that courts never award verdicts to personal injury plaintiffs, or that if they do, such awards are not in an amount that could be called “excessive.” The remark also may have suggested that the judge disapproved of large damage awards. The remark was therefore neither correct nor relevant.

On the record before us, however, I find that the remark was harmless error. It was a general comment, not directed to the plaintiff in this case; it was apparently brief and made in passing; and there is no indication that it was intended to prejudice the plaintiff. In addition, as the majority points out, the plaintiff’s objection to the comment centered upon the judge’s tone of voice and, as such, is not reviewable. For these reasons, reversal is not required.

I am authorized to state that Presiding Judge Pope joins in this opinion.

Webb, Carlock, Copeland, Sender & Stair, James R. Doyle II, Douglas A. Wilde, Erika K. Kohler, for appellee.

       See Glaze v. State, 180 Ga. App. 526, 527 (349 SE2d 496) (1986); Franklin Life Ins. Co. v. Hill, 136 Ga. App. 128, 131 (2) (220 SE2d 707) (1975).

        Decker v. State, 139 Ga. App. 707, 708-709 (4) (229 SE2d 520) (1976).

       196 Ga. App. 190, 191-192 (395 SE2d 566) (1990).

         Id. at 192-193.

       See, e.g., Bonner v. Smith, 226 Ga. App. 3 (485 SE2d 214) (1997); Grissett v. Wilson, 181 Ga. App. 727 (353 SE2d 621) (1987).

       See Glaze, supra.


author: McMURRAY, Presiding Judge.

text:
    A00A0274.
    HAMMOND et al. v. UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY et al.
    (525 SE2d 709)
    Decided October 19, 1999.

      Grady K. Dukes, for appellants.

      McLeod, Benton, Begnaud & Marshall, Michael C. Pruett, for appellees.
   McMURRAY, Presiding Judge.

Plaintiff William R. Hammond and similarly situated police officers sued the Unified Government of Athens-Clarke County and James H. Alford, Jr., its Personnel Director, alleging the Unified Government unlawfully paid plaintiffs at a lower rate and grade than certain other officers. The trial court granted defendants’ motion for summary judgment in an order entered Thursday, June 3, 1999. Plaintiffs’ notice of appeal was filed on Thursday, July 8, 1999. Held:

“A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of. . . .” OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. Barnes v. Justis, 223 Ga. App. 671, 672 (478 SE2d 402). In this instance, the thirtieth day after entry of summary judgment fell on Saturday, July 3, 1999. The following Monday was an official holiday in remembrance of Independence Day. Under OCGA § 1-3-1 (d) (3), plaintiffs had until Tuesday, July 6, 1999, to perfect their appeal. The notice of appeal filed on July 8, 1999, is not timely. We are without jurisdiction to consider the merits, and so the appeal in Case No. A00A0274 must be dismissed.

Appeal dismissed.

Johnson, C. J, and Phipps, J., concur.


author: Miller, Judge.

text:
    A99A1028.
    HILLMAN v. CARLTON COMPANY.
    (522 SE2d 681)
   Miller, Judge.

Johnell Hillman, Jr. sued Carlton Company for injuries arising out of a forklift malfunctioning and dumping Hillman 20 feet onto a concrete floor. Carlton, which maintained the forklift, defended on grounds that Hillman voluntarily assumed the risk of the fall by climbing onto the vehicle’s forks despite his awareness of visible warnings prohibiting such. Agreeing that Hillman assumed the risk, the court granted Carlton’s motion for summary judgment. We reverse on the ground that although Hillman assumed the risk of falling, he did not assume the risk of being dumped by the forklift.

Construed in favor of Hillman, the record showed that Carlton negligently maintained the forklift by failing to adjust certain anchor devices controlling the lift chains, thus allowing the stop bar to repeatedly slam against and weaken the stop bolts when the forks reached their maximum height. Over time Carlton replaced four stop bolts, including two six months prior to the accident. On the morning of the accident, Carlton inspected the machine and certified it as “ready to go.”

During his employment Hillman had, without injury, often climbed onto the forklift’s forks for various purposes, despite being aware of written warnings on the machine expressly prohibiting such. On the morning of the accident, Hillman stood in a box stacked inside another box that was on the forks, so that the forklift operator could raise him to measure the height of the warehouse ceiling. As the forks neared their peak height, the stop bolts failed, and the forks exceeded their peak height. The top two sets of carriage rollers came out of the mast channel, and the forks tilted downward, dumping Hillman and the boxes onto the floor. Hillman had never before seen a forklift malfunction in this manner.

1. The issue is whether Carlton showed, as a matter of law, that Hillman assumed the risk of the forklift dumping him onto the floor.

In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.

(Footnote omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996); see Cornwell v. Chambers of Ga., 228 Ga. App. 64, 65 (491 SE2d 132) (1997).

Construed in favor of Hillman, the evidence does not conclusively establish the first element, let alone the latter elements. Hill-man had actual knowledge of the inherent risk he could fall if he stood on or was raised by the forks, but his knowledge did not extend to the possibility that because of poor maintenance, the forks would malfunction, tilt forward, and dump him onto the ground. Vaughn emphasized that the first element can be shown only if the plaintiff had actual, subjective knowledge of the specific defect and fully appreciated its danger.

Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, nonspecific risks that might be associated with such conditions or activities.

(Punctuation and footnotes omitted; emphasis in original.) Vaughn, supra, 266 Ga. at 864; Cornwell, supra, 228 Ga. App. at 65 (evidence must show plaintiff fully appreciated the specific danger).

Even the federal circuit case cited by Carlton, Mitchell v. Young Refining Corp., 517 F2d 1036, 1040 (5th Cir. 1975), explained that plaintiff must be “fully and completely aware of the dangerous or defective conditions he is encountering, and the danger to himself entailed therein. . . .” Mitchell relied in part on Kreiss v. Allatoona Landing, 108 Ga. App. 427 (2) (133 SE2d 602) (1963), in which summary judgment for the defendant was reversed because, even though the plaintiff assumed certain general risks by traversing defendant’s dock in the dark, she did not know of the defect in the dock that caused her fall.

A more recent case reversed summary judgment on this very ground. Sutton v. Sumner, 224 Ga. App. 857, 859-860 (482 SE2d 486) (1997), held that although a spectator in a pit area during a race assumed the general inherent risk of getting hit by a car (such as by a car over which the driver lost control), he had no reason to anticipate the risk of getting hit by an improperly towed car. Such was not a “normal, ordinary danger inherent in watching the race from the pit area.” Id. at 860.

Similarly, Vaughn, supra, 266 Ga. at 865 (2), reversed a defense verdict where the plaintiff police officer’s car was struck by a truck as the officer was proceeding through an intersection in the wrong lane with his siren sounding and his blue lights flashing. The truck, parked at the road’s right side and facing the same direction as the officer, suddenly and without signaling turned left into the officer’s path. Although the officer had assumed the general risks associated with speeding through an intersection on the wrong side of the road, he had no reason to anticipate the negligent actions of the parked truck driver who would ignore the siren and flashing lights and from a parked position and without signaling turn left across the path. “Quite simply, the evidence of record shows that Vaughn had no knowledge of the dangerous condition that awaited him at the intersection. Therefore, it was error to have charged the jury on assumption of risk.” Id.

Other cases analyzing the assumption of risk doctrine support this conclusion. See Gen. Mfg. Housing v. Murray, 233 Ga. App. 382, 384 (1) (504 SE2d 220) (1998) (plaintiff knew of risk of falling through skylight, but did not know of defective condition in roof that would cause him to lose balance and step into skylight; directed verdict for defendant properly denied); Perton v. Motel Properties, 230 Ga. App. 540, 544-545 (e) (497 SE2d 29) (1998) (physical precedent only) (bicyclist not aware of specific defect that would cause bike to malfunction and throw her to the ground; summary judgment reversed); Jordan v. Atlanta Replex Corp., 228 Ga. App. 670, 677 (c) (2) (492 SE2d 536) (1997) (physical precedent only) (ice skater assumed normal dangers associated with slippery ice surface and collisions with other skaters;.she did not know or assume danger of tripping on holes in the ice caused by negligent maintenance; summary judgment reversed); Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 479 (3) (491 SE2d 909) (1997) (although plaintiff was aware of the general risks inherent in rowing, he was not necessarily aware of the specific risk that another boat would be grossly negligent by ignoring express traffic directions and proceeding the wrong way in the river lane; directed verdict for defendant properly denied).

Significant is the distinction, outlined in Little Rapids Corp. v. McCamy, 218 Ga. App. 111, 113 (1) (460 SE2d 800) (1995), between assumption of risk and contributory or comparative negligence. Assumption of risk means the plaintiff is fully aware of the dangerous defect or condition caused by defendant’s negligence but freely chooses to proceed nonetheless. Contributory or comparative negligence means the plaintiff, though exposing himself to danger, nevertheless is unaware of the defendant’s negligence and thus expects the defendant to act or to have acted with reasonable care. Because Hill-man was aware of the prohibition against riding on forks, he was exposing himself to the dangers inherent in such actions, such as falls, but because he was unaware of the inadequate maintenance by Carlton, he did not relieve Carlton of its duty of reasonable care. Thus, the undisputed facts show he may have been contributorily or comparatively negligent (cf. Union Camp Corp. v. Helmy, 258 Ga. 263, 267 (367 SE2d 796) (1988)), but they do not show he assumed the risk of being dumped from the forks as a result of a malfunction caused by Carlton’s negligence.

Finally, whether a party assumed the risk of his injury is generally a jury issue that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable, and undisputed evidence. Cornwell, supra, 228 Ga. App. at 66. This is not such a case. The court erred in entering summary judgment.

Decided September 20, 1999

Reconsideration denied October 20, 1999

Mathis, Cannon & Cormack, J. Philip Cannon, for appellant.

Watson, Spence, Lowe & Chambless, Thomas S. Chambless, for appellee.

2. The ruling in Division 1 moots the other enumerations of error.

Judgment reversed.

Andrews, P. Jand Ruffin, J., concur.


author: Andrews, Presiding Judge.

text:
    A99A1346, A99A1347.
    HOLY FELLOWSHIP CHURCH OF GOD IN CHRIST v. BRITTAIN et al. (two cases).
    (523 SE2d 93)
   Andrews, Presiding Judge.

Holy Fellowship Church (the Church) appeals from the trial court’s grant of Mark Brittain, as trustee for a group of bondholders, and Church Loans & Investments Trust’s (Church Loans’) motion for summary judgment. The Church filed a complaint to cancel a deed under power conveying the Church property to Brittain and Church Loans following their foreclosure. The Church claims that after the foreclosure, an agreement between the securities broker that helped the Church arrange the original mortgage and Reverend Michael Paden, the Church’s pastor, reinstated the loan and mortgage and waived the notice of foreclosure. Because we conclude that the securities broker had no authority to make an agreement on behalf of Brittain and Church Loans, we affirm the judgment of the trial court.

This case arose when the Church issued a deed to secure debt for $660,000 to Brittain, as trustee for a certain number of individuals who bought bonds from the Church under a trust indenture, and to Church Loans, which also loaned money to purchase the property. By November 1, 1997, the Church was in arrears on its payments to Brittain and Church Loans, who notified the Church that they were accelerating the debt. The notification also provided that “no future installments or partial payments shall result in your indebtedness being reinstated or renewed.” Despite this, the Church continued to make payments to Commonwealth Church Finance, Inc., the securities broker that originally assisted the Church in issuing its mortgage bonds. Commonwealth forwarded these payments to Colonial Trust Company, the servicing agent that made sure the payments were made and properly disbursed to the bondholders and to Church Loans. These partial payments did not make the Church current on its indebtedness, and it continued to be in arrears on the loan until foreclosure.

After Brittain and Church Loans foreclosed and received a deed under power, the Church filed the complaint in this case, seeking to prevent Brittain and Church Loans from selling the property. The complaint alleged that the acceptance of the partial payments after the notice of foreclosure evidenced a new agreement between the parties which reinstated the loan and mortgage and waived the notice of foreclosure. Brittain and Church Loans moved for summary judgment on the complaint, and the court granted the motion. This appeal followed.

The Church argued below and on appeal that Commonwealth’s President, Jim Murphy, and Marketing Manager, David Turner, met with the Church’s pastor, Rev. Paden, and agreed that if the Church made certain payments before the foreclosure date, the foreclosure sale would be cancelled. Because the Church made the payments and the foreclosure sale took place anyway, the Church argues there was no legal basis for the sale.

The Church claims that Commonwealth had apparent authority to modify the agreement. Specifically, the Church argues that because Brittain and Church Loans allowed Commonwealth to accept payments after the foreclosure notice was sent and then retained the payments forwarded by Commonwealth, this was a ratification of the agreement between Murphy and Turner and the Church and also created the appearance of an agency relationship between Brittain and Church Loans and Commonwealth.

1. There is no evidence of apparent agency. An agency relationship “arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” OCGA § 10-6-1. It is undisputed that Commonwealth did not have express authority to act for Brittain and Church Loans.

There may be apparent authority, however, “when the statements or conduct of the alleged principal reasonably cause the third party to believe that the principal consents to have the act done on his behalf by the purported agent.” (Emphasis omitted.) Augusta Surgical Center v. Walton &c. Office Venture, 235 Ga. App. 283, 286 (508 SE2d 666) (1998). In other words,

Decided October 6, 1999

Reconsideration denied October 20, 1999

Newton H. Purvis, John A. Pickens, for appellant.

Smith, Welch, Studdard & Brittain, John P. Webb, for appellees.

[a]pparent authority is not predicated on whatever a third party chooses to think an agent has the right to do, or even upon what the agent says he can do, but must be based on acts of the principal which have led the third party to believe reasonably the agent had such authority.

(Punctuation omitted.) Thompson v. Gen. Motors Acceptance Corp., 193 Ga. App. 740, 741 (1) (389 SE2d 20) (1989). See Vandiver v. McFarland, 179 Ga. App. 411, 413 (346 SE2d 854) (1986).

Here, the Church does not allege that Brittain or Church Loans ever made any statements or did any act which would cause the Church to believe that they consented to have Commonwealth act as their agent. Therefore, the Church has not raised an issue of fact as to whether Commonwealth had apparent authority to make the agreement.

2. Likewise, the Church introduced no evidence tending to show that Brittain and Church Loans ever ratified the agreement between Commonwealth and the Church. “For ratification to be effective, the principal must know of the agent’s unauthorized act and, with full knowledge of all the material facts, accept and retain the benefits of the unauthorized act.” Bresnahan v. Lighthouse Mission, 230 Ga. App. 389, 392 (496 SE2d 351) (1998); Southtrust Bank of Ga. v. Parker, 226 Ga. App. 292, 295 (486 SE2d 402) (1997). Not only is there no evidence in the record that Brittain and Church Loans knew about the agreement, the only evidence in the record is to the contrary. As previously stated, Brittain and Church Loans specifically told the Church that future payments would not reinstate the loan.

Therefore, there is no evidence that Commonwealth was acting as an agent for Brittain and Church Loans when it made the agreement with the Church. The trial court correctly granted the motion for summary judgment.

3. Brittain and Church Loans’ motion to assess a penalty for frivolous appeal is denied.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

       The Church filed a first notice of appeal on June 11,1998, after the court granted Brittain and Church Loans’ motion for summary judgment. The Church filed a second notice of appeal on November 20, 1998, after the trial court denied its motion for reconsideration, amended motion for reconsideration, and motion for leave to amend complaint and to add parties. Therefore, although two notices of appeal were filed, there is only one set of enumerations of error.


text:
    A99A1547.
    OLIVER v. GREEN.
    (523 SE2d 68)
    Decided September 29, 1999
    Reconsideration denied October 20, 1999
    Marguerite Oliver, pro se.

      Smith, White, Sharma & Halpern, Laurence H. Margolis, for appellee.
   Miller, Judge.

Tommie Green instituted dispossessory proceedings against Marguerite Oliver, claiming Oliver failed to pay rent pursuant to a lease agreement. The jury returned a verdict in favor of Green on the dispossessory and against Oliver on her counterclaims for repairs and reimbursement. Acting pro se, Oliver appealed, claiming the evidence did not support the verdict. Oliver did not include a transcript of the evidence in the appellate record.

The appellant has the burden to show error by the record. Brown v. Frachiseur emphasized the need for a transcript where the alleged error concerns the sufficiency of the evidence.

Where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at his expense. Thus, where the transcript is necessary for the review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.

Because Oliver omitted the transcript from the record on appeal, and her arguments address the sufficiency of the evidence, we must affirm.

Green’s request to sanction Oliver for frivolous appeal is denied.

Judgment affirmed.

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

       247 Ga. 463 (277 SE2d 16) (1981).

       (Citations, punctuation and footnote omitted; emphasis in original.) Id. at 464; see Kirkendall v. Decker, 271 Ga. 189, 191 (516 SE2d 73) (1999).


author: Ellington, Judge.

text:
    A99A1884, A99A2000.
    SYMS v. THE STATE (two cases).
    (523 SE2d 42)
   Ellington, Judge.

In Case No. A99A1884, Leroy Syms appeals from the trial court’s order denying his motion for an out-of-time appeal. He contends the trial court failed to inform him that he had 30 days in which to appeal the entry of his guilty plea. In Case No. A99A2000, Syms appeals from the trial court’s order denying his motion for supersedeas bond pending this appeal. Because these appeals arise from the same criminal convictions, we consolidate them. Because the superior court had no duty to inform Syms of his qualified right to appeal from convictions which were the result of his guilty plea, we affirm the superior court’s orders.

The history of this case is set out in Syms v. State, 232 Ga. App. 724 (502 SE2d 741) (1998):

On September 24, 1996, Leroy Syms, while represented by legal counsel, pled guilty to eight counts of forgery, nine counts of theft by receiving stolen checks and one count of financial transaction card theft. The trial court sentenced Syms to ten-year concurrent terms on each forgery count, twelve months on each theft by receiving stolen checks, and three years on the financial transaction card theft. On December 23, 1996, the trial court denied Syms’ pro se Motion for Modification of Sentence. On April 14, 1997, Syms filed a pro se Motion to Correct Void and Illegal Sentence. The trial court denied the modification motion by order dated September 4, 1997. Syms filed a pro se notice of appeal on September 22, 1997.

(Footnote omitted.) Id. We dismissed Syms’ notice of appeal because it was untimely filed. Id. On December 28, 1998, Syms filed with the superior court a motion for an out-of-time appeal, which was denied on December 31, 1998. On January 11, 1999, Syms filed a notice of appeal from that order. On May 7, 1999, Syms filed a motion for supersedeas bond pending this appeal. The superior court summarily denied the bond motion on May 11, 1999, and Syms filed a notice of appeal from that order on May 20, 1999.

1. In Case No. A99A1884, Syms contends the superior court erred in denying his motion for an out-of-time appeal. Syms argues he was entitled to an out-of-time appeal because the court failed to inform him of his right to appeal his convictions within 30 days and to have counsel appointed to assist him on appeal. Syms, who was represented by counsel, does not argue that he lost his appellate rights due to ineffective assistance of counsel.

“The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent abuse of such discretion.” Dover v. State, 237 Ga. App. 797, 798 (516 SE2d 839) (1999). Syms, as the movant, bears the burden of showing “good and sufficient” reason entitling him to an out-of-time appeal. Wheeler v. State, 269 Ga. 547, 548 (499 SE2d 629) (1998). Also, an out-of-time appeal is a remedy for a frustrated right of appeal; therefore, Syms must show that he was entitled to a direct appeal. Grantham v. State, 267 Ga. 635 (481 SE2d 219) (1997). Because a criminal defendant has no unqualified or absolute right to file a direct appeal from a judgment of conviction and sentence entered upon a guilty plea, Syms can meet his burden in this case only by setting “forth the questions he would raise should the appeal be granted, and showing] that the questions could be resolved by facts appearing in the appellate record.” (Citation omitted.) Wheeler v. State, 269 Ga. at 548; see also Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996). Finally, the disposition of a motion for out-of-time appeal hinges on who bore the ultimate responsibility for the failure to file a timely appeal. Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985). An out-of-time appeal is not authorized if the delay was attributable to the appellant’s conduct, either alone or in concert with counsel. Hasty v. State, 213 Ga. App. 731, 732 (445 SE2d 836) (1994).

Pretermitting whether the issues raised in Syms’ appeal could be resolved by facts appearing in the appellate record, Syms has failed to show that whatever qualified appellate rights he might have had were frustrated as a result of the superior court’s conduct. The superior court’s duty was to ensure that Syms understood the constitutional rights he was waiving by entering a guilty plea and to confirm that he had a full understanding of what the plea connotes and of its consequences. Knight v. Sikes, 269 Ga. 814, 816 (1) (504 SE2d 686) (1998). We find no case or statutory law imposing upon the superior court a duty to advise a defendant that he may have a right to directly appeal the convictions which result from the entry of his guilty plea. See id.; Uniform Superior Court Rules 33.5, 33.8-33.12. Syms has not alleged he received ineffective assistance of counsel nor has he argued that his guilty plea was less than knowing, voluntary, and intelligent. Rather, his entire argument for an out-of-time appeal is premised upon the court’s failure to perform a non-existent duty. Therefore, we must conclude the delay in filing the appeal was attributable to Syms or to Syms and his counsel. Because Syms has not carried his burden of proving “good and sufficient” reason entitling him to an out-of-time appeal, the trial court did not abuse its discretion in denying his motion. See Wheeler v. State, 269 Ga. at 548.

Decided September 28, 1999

Reconsideration denied October 20, 1999

Leroy Syms, pro se.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, David T. Lock, Assistant District Attorneys, for appellee.

2. In Case No. A99A2000, Syms contends the trial court erred in denying his motion for supersedeas bond. However, since we affirm the order dismissing his appeal, this issue is moot. See Hunter v. State, 219 Ga. App. 758, 759 (3) (467 SE2d 2) (1996).

Judgments affirmed.

Andrews, P. J., and Ruffin, J., concur.

       The court also denied Syms’ previous motion for an appeal bond during the pendency of his untimely direct appeal on May 11, 1999. The court found that Syms’ appeal was frivolous and untimely and that Syms posed a significant risk of flight and of committing other crimes while on bond.

       Syms also enumerates several allegations of error pertaining to sentencing. Because we conclude that Syms is not entitled to an out-of-time appeal, we lack jurisdiction to address these arguments.


text:
    A99A1232.
    CARROLL et al. v. GEORGIA POWER COMPANY.
    (523 SE2d 896)
   Miller, Judge.

Oscar Carroll sued Georgia Power Company for injuries arising out of his fall from a vertical ladder fixed to the side of a Georgia Power building. His wife jointly sued for loss of consortium. Arguing among other things that the ladder was not defective and that its condition was open and obvious, Georgia Power moved for summary judgment. The court granted the motion, finding the undisputed evidence established that Georgia Power did not have superior knowledge of the alleged defects in the ladder and that Carroll failed to exercise ordinary diligence. Carroll and his wife appeal.

Construing the evidence in the light most favorable to Carroll, the record reveals that Carroll had been working at the Georgia Power building for four to five months as an employee of a company that was under contract with Georgia Power to remodel and construct additions to the building. Georgia Power notified Carroll’s company of a developing fracas on the roof of the building between an employee of Carroll’s company and the employee of another independent contractor. Carroll’s company directed him to investigate, which he did immediately. Eschewing conventional ladders farther away for the sake of speed, Carroll chose to ascend to the roof via a fixed vertical ladder attached to the side of the building, which he had periodically viewed during his tenure at the site but had not previously climbed to the top. As he hurriedly climbed, he focused his attention on the two men on the roof who were about to exchange punches. Once at the top of the ladder, he reached for a rung in the mistaken belief that the rungs continued another few feet. But the rungs of the ladder ceased a few inches below the roof level, with only the side rails continuing six inches above the roof. He fell, severely injuring his legs, arm, wrist, and shoulder.

1. Carroll’s suit is based on premises liability. “The plaintiff’s first burden in a premises liability case is to show the premises were defective or hazardous.” Though Georgia Power pointed out the lack of evidence on this point, Carroll did not submit competent evidence that the ladder was defective or hazardous. He proffered no expert testimony that the ladder was hazardous, nor did he point to any rule or regulation allegedly violated by the ladder. Rather, he simply testified that the ladder was defective because (a) it did not have a cage surrounding the climber and (b) the rungs did not extend higher.

Neither of these assertions withstands scrutiny. With regard to the absence of a cage, Carroll in his summary judgment brief correctly referred to the Code of Federal Regulations as applicable to the construction of vertical fixed ladders. The section he cited, 29 CFR § 1910.27, does not require cages on vertical ladders, but rather refers to the different clearances required when a vertical ladder has a cage and when it does not. He provided no evidence that the absence of a safety cage constituted a defect in a vertical ladder.

Moreover, even if the lack of a cage were a defect, Carroll testified that he had previously climbed vertical fixed ladders with cages, and that he was aware, based on his observations of the Georgia Power ladder prior to the date of the incident, that this ladder had no cage to prevent a fall. The crux of a premises liability case is the owner’s superior knowledge of the hazard; thus, a plaintiff’s actual, subjective awareness of the hazard precludes a recovery under this theory.

The assertion that the rungs should have continued similarly fails. Every ladder is finite and eventually runs out of rungs. In accordance with federal regulations, the ladder here, a “through ladder,” stopped its rungs just below the roof level so that a person could step through the ladder onto the roof. Although the side rails of the ladder continued only six inches above the roof line as opposed to the three and one-half feet required by the same regulation, this defect did not cause Carroll’s fall, as he frankly admitted that in his hurried climb he was using the rungs as handholds, not the side rails, and that it was the omission of additional rungs that caused his fall, not the shortness of the side rails extending above the roof line.

Even if the lack of additional rungs were a defect, this defect was open, obvious, and in plain view. Carroll admitted that if his attention had been focused on his climbing, and not on the developing fight, then he would have easily seen that the ladder’s rungs ceased just below the roof line, and he would not have fallen. The “plain view” doctrine precludes recovery where a hazard is in plain view at a location where it is customarily found and can be expected to be. A climber can clearly expect that as he nears the top of a ladder, the rungs will at some point run out, which will be in plain view to him.

Carroll claims that he was distracted by the fight and thus excused from maintaining a proper lookout. But to provide a legal excuse, the distraction must be in the control of the owner. As conceded by Carroll, the impending fight was not the fault of nor caused by Georgia Power, nor did it involve Georgia Power employees. The fact that Georgia Power notified Carroll’s company that it should handle a situation involving one of its own employees and the employee of a third party is not a valid basis for ascribing the distraction to the control of Georgia Power.

2. Finally, since climbing ladders involves an activity inherently more dangerous than, for instance, walking the aisles of a store, and since all ladders eventually run out of rungs, it is plain and palpable negligence on the part of a climber to not pay attention to the rungs of the ladder as he nears the top. For example, Carroll testified he knew he was supposed to climb ladders slowly and carefully. Even a shopper walking the aisles of a store knows that every aisle will eventually terminate, and that he should maintain a lookout so as not to run into a wall or counter at the end of the aisle. This aspect of the duty to pay attention is heightened for a ladder climber. A plaintiff’s lack of ordinary care for personal safety, when established by plain, palpable, and undisputed evidence, mandates summary judgment in a premises liability case.

Decided October 20, 1999.

Weinstock & Scavo, Michael Weinstock, John B. Levy, for appellants.

Buchanan & Land, Jerry A. Buchanan, for appellee.

The undisputed evidence reveals the ladder had no defect. Even assuming the ladder was defective, Carroll was either keenly aware of the defect or in the exercise of ordinary diligence should have been aware. Although we are aware of Robinson’s reminder that the routine issues of premises liability are generally not susceptible of summary adjudication, we are also aware of Robinson’s statement that where the evidence is plain, palpable, and undisputed on the key issues, summary judgment should be granted. The court did not err in granting summary judgment.

Judgment affirmed.

Barnes and Ellington, JJ., concur.

       (Footnote omitted.) Beman v. Kmart Corp., 232 Ga. App. 219, 220 (2) (501 SE2d 580) (1998); see Denham v. Young Men’s Christian Assn. &c., 231 Ga. App. 197, 199 (499 SE2d 94) (1998).

       Although the trial court based its order on other grounds, “[i]t is axiomatic that a grant of summary judgment must be affirmed if it is right for any reason. [Cit.]” Stephens v. State Farm &c. Ins. Co., 236 Ga. App. 758, 759 (1) (513 SE2d 508) (1999). See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (once defendant has pointed out the absence of evidence on a material element, plaintiff is obliged to submit such evidence or else suffer summary judgment).

       Compare Davis v. GBR Properties, 233 Ga. App. 550, 551 (1) (504 SE2d 204) (1998).

       Compare Aggeles v. Theater of the Stars, 235 Ga. App. 57, 60 (507 SE2d 856) (1998) (Andrews, C. J., dissenting).

       29 CFR § 1910.27 (c) (2), (3).

        Robinson v. Kroger Co., 268 Ga. 735, 736, 748-749 (493 SE2d 403) (1997); Herrin v. Peeches Neighborhood Grill &c., 235 Ga. App. 528, 533 (1) (509 SE2d 103) (1998).

       29 CFR § 1910.27 (d) (3).

        Robinson, supra, 268 Ga. at 743 (1); see West Lumber Co. v. Beck, 231 Ga. App. 46, 48 (1) (497 SE2d 647) (1998).

       See Robinson, supra, 268 Ga. at 746 (2) (a).

       Id.

       Id. at 748 (2) (b); Beman, supra, 232 Ga. App. at 221 (3).

        Robinson, supra, 268 Ga. at 748.


author: Phipps, Judge.

text:
    A99A1253.
    PYLE v. CITY OF CEDARTOWN.
    (524 SE2d 7)
   Phipps, Judge.

This case involves a dispute over title to a burial plot in a city cemetery. The City of Cedartown was drawn into the controversy when it conveyed title to the plot to the deceased’s son by his first marriage and not to his widow. The City was unaware of the animosity between the widow and her stepson.

When Danny Pyle died, he was survived by his second wife, Caron Pyle, and children from his first marriage, including a son, Michael Pyle. The day after Danny Pyle died, family members, including his widow and son, Michael Pyle, met at Northview Cemetery and chose two adjacent burial plots — one in which to bury Danny Pyle. Caron Pyle expected to be buried in the other. North-view Cemetery is owned and operated by the City of Cedartown. Its Superintendent of Parks & Cemeteries, Jim Denton, met with the family when the cemetery plot was selected.

Caron Pyle and Denton thought the funeral home would pay for the plot and include the cost in its bill to Caron Pyle. The funeral home paid the City for the plot and thereby acquired the right under city ordinance to designate the name in which the plot would be titled.

After the burial, the funeral home informed the City that Michael Pyle was going to pay for the plot and requested a refund of its money. The City accepted payment from Michael Pyle, refunded the funeral home, and conveyed the plot to Michael Pyle in compliance with directions from the funeral home and Michael Pyle. Caron Pyle never personally made or offered payment for the plot to the City. The City was not suspicious of Michael Pyle’s motives in this transaction because it knew that he was Danny Pyle’s son and that he and Caron Pyle were together when the plot was selected. Caron Pyle claims that she told the City that title should be conveyed to her. She discovered that Michael Pyle had title to the cemetery plot when he would not allow her to place a monument on the grave.

Pyle sued her stepson, the funeral home, and the City for fraud and intentional infliction of emotional distress, among other claims. The City was granted summary judgment on the issues of fraud and intentional infliction of emotional distress. We affirm because we find that the record does not contain evidence from which a jury could find each of the elements of fraud and intentional infliction of emotional distress.

In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). On appeal of the grant of summary judgment, we must determine whether the trial court erred in concluding that no genuine issue of material fact exists and that the City was entitled to summary judgment as a matter of law. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

The City may prevail in its motion for summary judgment “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 [Pyle’s] case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review is de novo. Walker v. Virtual Packaging, 229 Ga. App. 124 (493 SE2d 551) (1997).

1. Pyle has not presented sufficient evidence to prove fraud.

The tort of fraud has five elements. These are: (1) false representation by a defendant; (2) scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.

(Citations and punctuation omitted.) Reeves v. Edge, 225 Ga. App. 615, 617-618 (2) (484 SE2d 498) (1997).

On April 22, 1997, Denton asked Pyle if the selected burial plots should be placed in her name, and she said yes. Denton then asked Pyle for her name and address and recorded the information. This conversation between Pyle and Denton was not a fraudulent misrepresentation by the City. The City did not receive instructions from the funeral home to title the plot in Michael Pyle’s name until after the burial. Even if Denton made a representation on April 22 by asking for and writing Pyle’s name and address as the person to whom the City was to convey the burial plot, there is no evidence that Denton intended the representation to be false. Thus there was no fraudulent misrepresentation. See, e.g., Martin Burks Chevrolet v. McMichen, 136 Ga. App. 845, 847 (222 SE2d 633) (1975) (for there to be fraud, defendant must know the representation is false at the time it is made). Because the record contains no evidence of either misrepresentation or deception on the part of the City, we affirm the trial court’s grant of summary judgment to the City on Pyle’s claim of fraud.

2. A claim for intentional infliction of emotional distress has four elements: (1) intentional or reckless conduct (2) which is extreme and outrageous and (3) caused the emotional distress (4) which is severe. Trimble v. Circuit City Stores, 220 Ga. App. 498, 499 (469 SE2d 776) (1996). Although there may be evidence to show that Pyle suffered severe emotional distress, there is no evidence that the City intended to harm her. Even assuming the City breached its duty to Pyle by transferring title to her husband’s burial plot to her stepson, “[u]nder these circumstances, it is difficult to imagine how the recitation of the facts to an average member of the community would arouse his resentment against [the City] and leave him to exclaim ‘[o]utrageous!’ ” (Citations and emphasis omitted.) Williams v. Stepler, 227 Ga. App. 591, 594 (2) (490 SE2d 167) (1997). We affirm the trial court’s grant of summary judgment to the City on Pyle’s claim of intentional infliction of emotional distress.

3. Pyle maintains that the trial court erred in granting summary judgment to the City without addressing other claims included in her amended complaint. These claims include interference by the City in her right to bury her husband, to memorialize his grave site, and in her right to be buried in the adjoining plot.

Decided October 20, 1999.

James A. Satcher, Jr., for appellant.

Freeman, Mathis & Gary, Theodore Freeman, Robyn L. Oliver, Dana K. Maine, for appellee.

“The entry of a judgment as to one or more but fewer than all the claims or parties is not a final judgment. . . . [Cits.]” Culwell v. Lomas &c. Co., 242 Ga. 242, 243 (248 SE2d 641) (1978). We interpret the order of the trial court to be an order of partial summary judgment under OCGA § 9-11-56 (d).

The City’s motion for summary judgment was limited to the issues of fraud and intentional infliction of emotional distress. The trial court analyzed Pyle’s claims of fraud and intentional infliction of emotional distress and granted summary judgment as to each claim specifically.

The City maintains that if Pyle cannot prevail on her theory of fraudulent conveyance, her other theories of recovery against the City must also fail. The trial court did not rule on her other theories. This court is for the correction of errors, and where the trial court has not ruled on an issue, we will not address it.

We affirm the grant of summary judgment to the City on the issues of fraud and intentional infliction of emotional distress.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A99A1270.
    EXCEL DESIGN & CONSTRUCTION, INC. v. AUTRY.
    (523 SE2d 658)
   Miller, Judge.

Subcontractor Leon Autry sued general contractor Excel Design & Construction and the Georgia Islamic Institute of Religious & Social Sciences for breach of contract for failure to compensate him for services he performed. After a bench trial, the court dismissed Autry’s claims against the institute, finding that there was insufficient evidence of an enforceable contract between the two parties. But the court found that Excel had a contract with Autry, which it breached. Excel appeals, contending that there was insufficient evidence to support the trial court’s rulings on the existence of the contracts. Because some evidence supported the finding of an Excel contract but not an institute contract, we affirm.

In a bench trial, the trial court sits as the trier of fact, and its findings shall not be disturbed unless clearly erroneous. Since the clearly erroneous test is the same as the any evidence rule, we will not disturb factfindings of the trial court if there is any evidence to sustain them.

Decided October 20, 1999.

Gerard D. Hegstrom, for appellant.

Russell T. Bryant, for appellee.

Excel hired Leon Autry to do construction work on property owned by the institute. Autry testified that after performing his duties under the first contract, he entered into a second agreement with Excel, through its representative Cedric Drayton, to do additional work for $9,000. Excel claims that the document was not approved by the proper parties and that Drayton was no longer representing Excel when the contract was signed. But Autry testified that Drayton told him that he represented both Excel and the institute and that the president of Excel, Emmanuel Abua, not only directed Drayton to prepare a second contract, but was also present when Drayton signed the contract. The director of the institute testified that neither he nor anyone acting on the institute’s behalf was involved in any negotiation with Autry. He further testified that although the institute’s contract with Excel was terminated on August 7, Excel was still responsible for completing some work, which included the supervision of Autry’s work.

There was some evidence to support the court’s finding of the existence of a second contract between Autry and Excel and the finding that there was no contract between Autry and the institute.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       OCGA § 9-11-52 (a).

        Lancaster v. USAA Cas. Ins. Co., 232 Ga. App. 805 (1) (502 SE2d 752) (1998).


text:
    A99A1407.
    GEARING v. ETOWAH BANK.
    (523 SE2d 899)
   Andrews, Presiding Judge.

Charles Gearing appeals from the judgment entered in favor of Etowah Bank after a jury trial of his premises liability action arising from his fall on ice outside the bank’s entrance.

Viewed in favor of the jury’s verdict, the evidence was that Gearing was a regular customer of Etowah Bank, maintaining accounts there and financing his rental properties through the bank. During Christmas weekend of 1993, it snowed Christmas Day, then warmed up the next day. On Monday, December 27, 1993, the weather turned “real cold.” Gearing drove to the bank between 9:00 and 9:30 a.m. and parked in front of the bank. He did not see any ice as he exited the van, but started up the walkway and fell. Gearing contended that a leaking gutter caused the ice to form.

Hoard, Senior Vice President of Etowah Bank, supervised this branch, and it was his practice every morning as he entered to check the premises. On Monday, December 27, he did not notice either a problem with the gutter or any ice on the premises as he entered around 7:30 a.m. Hoard recalled Gearing later coming into the bank, walking sideways because he said he had ripped the seat out of his pants. Gearing did not mention falling to him.

1. Gearing’s first enumeration is that the trial court erred in allowing the bank’s cross-examination of Gearing concerning prior back, neck and shoulder problems.

During direct examination, Gearing testified that he had previous problems with his back in 1979 and 1993, prior to this incident. During the bank’s cross-examination, when Gearing was being asked about prior complaints he had made to his doctor, his counsel objected only that the testimony was repetitive of the doctor’s and further acknowledged that Gearing had had previous back problems. Thereafter, during argument over the objection, Gearing’s counsel withdrew the objection.

Pretermitting the fact that Gearing opened the door to this area of inquiry, the argument made here is not that made below, which was in fact withdrawn. Therefore, there is nothing in this regard to review. See, e.g., Thomas v. American Global Ins. Co., 229 Ga. App. 107, 108 (2) (493 SE2d 12) (1997); Potts v. State, 134 Ga. App. 512 (1) (215 SE2d 276) (1975); see Heffernan v. Home Depot U.S.A., 226 Ga. App. 167, 169 (3) (486 SE2d 51) (1997).

2. Gearing next complains of a portion of the bank’s counsel’s closing argument. Review of the transcript, however, reflects no objection made either during the argument or thereafter.

Having failed to object to any erroneous argument below, Gearing will not now be allowed to complain because the trial court has had no opportunity to consider the issue. Padilla v. Melendez, 228 Ga. App. 460, 461 (491 SE2d 905) (1997); Blaxton v. Clemens, 202 Ga. App. 668, 669 (2) (415 SE2d 304) (1992).

Further, even assuming the argument made was improper, the court repeatedly instructed the jury that the arguments were not evidence and were not to be so considered by them, making any such error harmless. See Thimble Square v. Frost, 221 Ga. App. 379 (1) (471 SE2d 305) (1996).

Decided October 20, 1999.

Chad A. McGowan, for appellant.

Goodman, McGuffey, Aust & Lindsey, James E Cook, Jr., for appellee.

3. In his third enumeration, Gearing claims error in the trial court’s acceptance of a verdict in the bank’s favor which was the verdict of only 11 of 12 jurors.

Again, however, the transcript clearly reflects that Gearing acquiesced in the acceptance of a nonunanimous verdict and made no objection below. This occurred after the jury informed the court, without indicating which way the vote was split, that it was deadlocked eleven to one.

As appellate counsel acknowledges, there is no legal impediment to a nonunanimous verdict. Phillips v. Meadow Garden Hosp., 139 Ga. App. 541, 542 (1) (228 SE2d 714) (1976).

There was no error. Thomas, supra; Padilla, supra.

4. Finally, error is claimed in denial of his motion for new trial. No such motion was filed below, and there is nothing in this regard to review. Padilla, supra.

5. We have considered Etowah Bank’s motion for imposition of penalty for frivolous appeal, and it is denied.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


author: Johnson, Chief Judge.

text:
    A99A0838.
    BURT DEVELOPMENT COMPANY et al. v. LEE COUNTY TAX ASSESSORS.
    (523 SE2d 81)
   Johnson, Chief Judge.

The Lee County Board of Tax Assessors hired a firm to reappraise the value of real property in the county, including apartments, a trailer park and a tract of land owned by the Burt family. After the reappraisals, the assessed values of the Burts’ properties were higher than they had been the previous year, so the tax assessors sent notices to the Burts informing them of the increased tax assessments. The Burts appealed the higher tax assessments to the Lee County Board of Equalization, which upheld the increased valuations of the Burts’ properties. The Burts then appealed the Board of Equalization’s decision to the superior court. After a hearing, the trial court, on its own motion, entered an order granting summary judgment on all issues to the tax assessors. The Burts appeal from the order.

1. The Burts claim the court’s grant of summary judgment was improper because it was on the court’s own motion and was based solely on the pleadings. These claims are without merit.

“Summary judgment can be granted to a non-moving party provided that the grant is proper in all other respects.” (Citations, punctuation and emphasis omitted.) Signet Bank/Va. v. Tillis, 196 Ga. App. 433, 434 (396 SE2d 54) (1990). Here, the court made specific factual and legal findings which support the conclusion that there are no genuine issues of material fact. See OCGA § 9-11-56. The court’s grant of summary judgment, without a motion by the tax assessors, was therefore appropriate.

Given the record before us, we also cannot accept the Burts’ suggestion that the court considered only the pleadings, and no evidence, in granting summary judgment. Contrary to the Burts’ claim, the record provided to this court contains some evidence, including two depositions and various documents, which the trial court could have considered. Moreover, numerous other pieces of evidence were expressly excluded from the appellate record by the Burts in their notices of appeal. There is no way for us to know if the trial court relied on any of that excluded evidence in granting summary judgment.

While the court’s written order states that the court considered the pleadings, this statement does not necessarily mean that the court considered no evidence in reaching its decision. First of all, the pleadings themselves — the trial briefs filed by both the Burts and the tax assessors — refer to certain pieces of evidence. So the court in considering those pleadings must also have considered the evidence cited in them. Additionally, in the order, the court expressly refers to some evidence in the form of deposition testimony.

Finally, the record contains no transcript of the hearing held before the trial judge. Consequently, “we cannot determine whether evidentiary submissions, stipulations, or statements in place by counsel were tendered at the hearing.” Gill v. B & R Intl., 234 Ga. App. 528, 531 (1) (c) (507 SE2d 477) (1998). Absent a transcript, or some affirmative showing to the contrary, we must presume that the trial court’s findings are supported by competent evidence and that the court applied the appropriate standard in granting summary judgment. Patriot Gen. Ins. Co. v. Millis, 233 Ga. App. 867, 871 (3) (506 SE2d 145) (1998); Lakeshore Marine v. Hartford, Accident &c. Co., 164 Ga. App. 417, 418 (1) (296 SE2d 418) (1982).

2. Because this is an appeal from a grant of summary judgment, we must conduct a de novo review of the record to determine if there are genuine issues of material fact. Fowler v. City of Marietta, 233 Ga. App. 622, 623 (504 SE2d 726) (1998). The Burts’ appellate brief, which is essentially the same brief that they filed in the trial court, does not properly assert that the trial court’s grant of summary judgment was erroneous because there are genuine issues of material fact. Rather, the Burts argue that the court erred in failing to find that (1) business personal property in the county was not taxed, (2) certain real estate in the county was not taxed, (3) the notices of new tax assessments sent to them by the county were deficient, and (4) the tax assessors improperly changed the value of their apartment property from a value established by a prior appeal. Nevertheless, even if we construe these arguments as properly challenging the trial court’s summary judgment rulings, the Burts still have not met their burden of proving such challenges by the record.

Decided October 4, 1999

Reconsideration denied October 21, 1999

Burt & Burt, Hilliard P. Burt, for appellants.

As the parties appealing from an adverse ruling, it is the Burts’ burden to prove any alleged errors by the record. See North Fulton Feed v. Purina Mills, 221 Ga. App. 576, 577 (472 SE2d 122) (1996). The Burts have not met this burden because, without a transcript of the hearing held before the trial judge or a stipulation as to what occurred at the hearing, we must presume that the court’s summary judgment rulings are supported by the evidence. Ga. Recovery v. Danley, 215 Ga. App. 236, 238 (2) (450 SE2d 263) (1994). Thus, based on the limited record provided to us by the Burts, we cannot find that the court erred in ruling that there are no genuine issues of material fact on the four arguments set forth above.

3. But we do agree with the Burts’ assertion that the trial court should have found that the Board of Equalization improperly failed to render any decision on the issue of whether the valuations of the Burts’ properties were uniform with other real property in the county. Even the tax assessors concede in their appellate brief that the Board of Equalization did not expressly address the issue of uniformity, and they ask us to remand the case to the Board for determination of this issue. Because the parties agree that the Board did not adequately address the issue of uniformity, we reverse the grant of summary judgment on that issue only and remand the case to the trial court with direction that it remand the case to the Board of Equalization for determination of the unresolved issue of uniformity. See Hulse v. Joint City-County Bd. &c., 219 Ga. App. 309, 310 (1) (464 SE2d 890) (1995).

Judgment affirmed in part, reversed in part, and case remanded with direction.

Smith and Eldridge, JJ, concur.

Ellis, Easterlin, Peagler, Gatewood & Skipper, George R. Ellis, for appellee.


author: Smith, Judge.

text:
    A99A1050.
    NELSON v. THE STATE.
    (521 SE2d 593)
   Smith, Judge.

Johnny Nelson was convicted by a jury of possession of cocaine with intent to distribute and possession of a firearm during the commission of a felony. His motion for new trial, as amended, was denied, and he appeals. We affirm.

Construed to uphold the jury’s verdict, evidence was presented that Officer Tony Litle of the Columbus Police Department responded to a call that an individual was shooting a rifle or shotgun in a residential neighborhood. After arriving in the area and observing a car matching the description given to him, Litle stopped the car and learned that its driver was Nelson. He searched the car and found two loaded firearms, an AK47 and a pistol. In the glove compartment, Litle discovered a bag containing approximately 100 smaller bags of a substance identified at trial as crack cocaine. Another officer who assisted with the stop also found $294 on Nelson’s person.

On appeal, Nelson raises several arguments with respect to evidence of similar transactions admitted at trial. Prior to trial, the court conducted a Uniform Superior Court Rule 31.3 hearing to determine the admissibility of two prior incidents. The first incident arose after a police officer responded to a loitering call in January 1994 at a local motel. During a search of Nelson’s person, the officer discovered a cocaine smoking device containing residue. Nelson pled guilty to the charge of possession of a controlled substance.

The second incident involved a sale of cocaine in 1996. During the USCR 31.3 hearing, Officer Bennie Jennings testified that with the assistance of confidential informant Frank Beasley, a cocaine buy was set up at a certain residence. He stated that Beasley entered the residence after being equipped with a monitoring device and purchased cocaine with money supplied by Jennings. Jennings listened to the transaction as it occurred and identified Nelson’s voice as the voice of the individual from whom Beasley bought cocaine. Beasley did not testify, however, at this hearing, and the trial court initially refused to allow the State to introduce evidence of the cocaine sale, apparently on hearsay grounds.

During the trial, however, the trial court revisited the issue of whether evidence concerning the prior sale was admissible when Beasley himself testified before the trial court and positively identified Nelson as the individual from whom he had purchased $40 worth of cocaine during the controlled buy. The trial court then permitted the State to introduce evidence of the sale through the testimony of Beasley and Jennings.

As pointed out by Nelson, before the evidence of the prior transactions was admitted, the trial court did not expressly make the affirmative findings required by Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), that the two similar transactions were offered for an appropriate purpose, that Nelson was identified as the person who committed the offenses, and that proof of the prior incidents tended to prove that he committed the offense for which he was on trial. On motion by the State following Nelson’s conviction, however, the trial court entered an order reciting that the prior offenses were offered for the proper purposes of showing intent, knowledge, course of conduct, and identity. The order further recited that Nelson was the perpetrator of the prior offenses and that

there was sufficient similarity and connection to the present case in that the prior possession case dealt with the same type of drugs, the same town, and tends to shed light on the defendant’s prior knowledge and familiarity with the drugs in the present case, and in that the prior sale case deals with the same type of drugs, in the same town, and tends to show that the defendant is an active dealer of the type of drugs found in 100 individual hits in the defendant’s car.

1. In a single enumeration of error, Nelson makes separate contentions, including an argument that the trial court allowed the evidence into trial for improper purposes. It is well settled that when an appellant asserts multiple errors within one enumeration, we are authorized “to review none, or one or more, of the errors asserted within the single enumeration.” (Citations and punctuation omitted.) Hall v. State, 235 Ga. App. 44, 46 (4) (508 SE2d 703) (1998). We elect to exercise our discretion and consider only Nelson’s argument that the similar transaction evidence was admitted for improper purposes.

We find no merit in this contention. Nelson argues that the State failed to recite any purpose for the admission of evidence of his guilty plea to possession of a controlled substance. He also contends that the State’s purpose for introducing evidence of the transaction involving the sale was not a proper purpose for admitting the evidence. But Nelson did not object at trial to the admission of either transaction on the ground that the State failed to articulate a proper purpose for their admission. In this circumstance, he failed to preserve the argument for our consideration on appeal. See Corey v. State, 211 Ga. App. 333, 334 (3) (439 SE2d 513) (1993); Walker v. State, 208 Ga. App. 690, 693 (2) (431 SE2d 459) (1993).

Also, we note that Stephan v. State, 205 Ga. App. 241 (422 SE2d 25) (1992), cited by Nelson, is not controlling on this issue. In that case, the State failed to articulate any purpose for which the similar transaction testimony was offered, and the trial court failed to give the jury a proper limiting instruction. Instead, the trial court “merely articulated a laundry list of possible reasons for which similar transaction evidence may be admissible.” Jordan v. State, 230 Ga. App. 560, 562 (497 SE2d 48) (1998). But here, the trial court expressly charged the jury that the evidence “may be considered for the limited purpose of showing . . . the identity of the perpetrator, or the state of mind or knowledge of the defendant in the crime charged. . . . [S]uch evidence if any may not be considered by you for any other purpose.” Compare Hall v. State, 230 Ga. App. 741, 742-743 (497 SE2d 603) (1998) (prosecution not allowed to state purpose for which similar transaction evidence offered and trial court cited only comprehensive list of possible permissible purposes).

2. Nelson also contends that the trial court was not authorized to enter a post-trial order concerning the admissibility of the similar transactions. We do not agree. First, Nelson bases his argument on his contention that the prosecution never stated a proper purpose for the admission of the evidence. But as discussed above, Nelson waived appellate review of this contention. It follows that he cannot base further argument on such a contention. Also, this court has repeatedly remanded cases for post-trial hearings, when the record did not affirmatively reflect that a USCR 31.3 hearing was previously held, or where such a hearing was inadequate to show the admissibility of similar transaction evidence. See, e.g., Hall, supra, 230 Ga. App. at 743; White v. State, 213 Ga. App. 429, 431 (1) (445 SE2d 309) (1994).

Furthermore, Harris v. State, 222 Ga. App. 52 (473 SE2d 232) (1996), is instructive on the issue of whether the trial court was authorized to enter a post-trial order. In that case, unlike here, both the trial court and the State “fully complied with the most important procedural aspect oí Williams, to wit: affirmatively identifying on the record the legitimate purpose for which [evidence of similar transactions] was being introduced.” Id. at 55. But in Harris, as here, the trial court also instructed the jury “as to the legitimate limited purpose for which [similar transaction] evidence could be considered.” Id. at 55. More importantly, we explicitly held “that the procedural requirements of Williams can be substantially complied with by issuance of a timely post-trial nunc pro tunc order.” Id. at 56. The trial court in this case did not expressly indicate that its post-trial order was issued nunc pro tunc to the time of trial. But here, as in Harris, permitting the order to serve as an order substantially complying with Williams would be “the only result consistent with the prior rulings” of this court directing that an appeal be remanded for the purpose of conducting a proper hearing. Id. at 56.

Decided August 9, 1999

Reconsideration denied October 21, 1999

Berry & Shelnutt, John M. Shelnutt, Jennifer E. Cobb, for appellant.

J. Gray Conger, District Attorney, Patrick B. Moore, Assistant District Attorney, for appellee.

3. Nelson argues that the trial court erroneously failed to balance the legal relevance of the prior convictions against their prejudice. We find no merit in this contention. The trial court’s post-trial order making the appropriate Williams findings constituted “an implicit finding that the probative value of that evidence outweighs its prejudicial impact.” Farley v. State, 265 Ga. 622, 625 (2) (458 SE2d 643) (1995). And here, as in Farley, evidence of the prior transactions was not “overly prejudicial,” given the trial court’s “detailed limiting instructions” to the jury at the close of the case. Id.; see also Byrd v. State, 236 Ga. App. 485, 488-489 (6) (c) (512 SE2d 372) (1999) (no error in failing to make express balancing determination).

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.