text:
    A91A0495.
    TURNER v. WALKER COUNTY et al.
    (408 SE2d 818)
   Banke, Presiding Judge.

Acting individually and as next friend of her three minor children, Turner brought suit against Walker County and its Commissioner to recover for the alleged wrongful death of her husband. She brings this appeal from an order granting summary judgment to the defendants and dismissing her complaint.

The decedent had received a probationary sentence for a misdemeanor, pursuant to which he was required to complete 80 hours of community service work. His probation officer averred that because the decedent told him he was an experienced heavy equipment operator and expressed a desire to perform work of that nature which was available at the Walker County landfill, he assigned him that duty as his community service work. Before beginning this work, the decedent signed a document captioned, “Georgia Department of Corrections Community Service Agreement,” which provided in pertinent part as follows: “I will assume liability for any bodily or personal injury received as a result of performing this community service. I will not institute any proceedings against the AUTHORITY [defined as “any court approved agency”] or its Insurers, Court Officials, Probation Officers or any party associated with the Community Service in law or equity in any Federal Court, State Court, Administrative Court or Worker’s Compensation Board because of any injury arising out of this community service or because of any injury sustained while going to or from any location where such community service is or is to be performed.”

Subsequently, a county-owned front-end loader being operated by the decedent at the landfill overturned, pinning him beneath it and killing him. It was alleged in the complaint that this vehicle had not been equipped with “roll bars or similar protective devices” and that the decedent’s death had occurred “[a]s a direct and proximate result of the reckless disregard and conscious indifference of the [appellees] of peril occasioned by their use of inferior and unsafe equipment.” It was revealed during the course of discovery that the vehicle was approximately 20 years old when the county purchased it in 1987 and that the county maintained a liability insurance policy covering both it and the landfill premises in the amount of $500,000 per occurrence. Held:

1. The trial court properly concluded that the agreement signed by the decedent established a complete defense to the present action. “The . . . pertinent issue is whether plaintiffs may bring a cause of action if deceased himself would have been barred by the covenant not to sue. The answer under Georgia law is plainly no. Although it is true that the action created by the wrongful death statute is different from the cause of action which [the decedent] would have possessed had he lived, any defense which would have been good against [the decedent] is good against his representatives in a wrongful death action. . . . [Thus,] ‘no recovery could be had unless the deceased in his lifetime could have maintained an action for damages for the injury to him, and that any defenses good as against the deceased would be good as against the action brought by the beneficiaries.’ Thompson v. Watson, 186 Ga. 396, 401 (197 S.E. 774) (1938). [Cits.]” Wade v. Watson, 527 FSupp. 1049, 1052 (N.D. Ga. 1981), aff’d, 731 F2d 890 (11th Cir. 1984).

2. The county acknowledges that “an exculpation provision like the one in this case does not relieve one from liability for wilful or wanton conduct,” Hawes v. Central of Ga. R. Co., 117 Ga. App. 771, 772 (162 SE2d 14) (1968); and the record in the case reveals that the appellant’s allegations of “reckless disregard and conscious indifference” on the part of the county have not been negated. However, the county contends that the doctrine of sovereign immunity nevertheless constitutes a bar to any claim against it based on such conduct because the liability insurance policy in question does not provide coverage for such conduct. See Dugger v. Sprouse, 257 Ga. 778 (364 SE2d 275) (1988). We are unable to determine from the record before us whether or not the policy in question in fact contains such an exclusion. In the event it does not contain such an exclusion, then sovereign immunity would be waived with respect to liability resulting from wilful and wanton misconduct, and material issues of fact would remain for trial. Because it is not apparent as a matter of law from the record whether the county’s insurance covers liability for such misconduct, we hold that the trial court erred in granting the county’s motion for summary judgment as to this aspect of the appellee’s claim.

3. Punitive damages are not available in a wrongful death action. See Truelove v. Wilson, 159 Ga. App. 906 (2) (285 SE2d 556) (1981). Thus, even in the event it is ultimately determined that the county has liability insurance coverage for wilful and wanton misconduct, its motion for summary judgment was properly granted with respect to the punitive damage claim.

Judgment affirmed in part and reversed in part.

Sognier, C. J., and Carley, J., concur. Beasley, J., disqualified.

Decided July 8, 1991

Reconsideration denied July 22, 1991

Bruce & Hentz, William D. Hentz, for appellant.

Watson & Dana, Dennis D. Watson, Frederick M. Milligan, for appellees.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A0652.
    CHESSER et al. v. WALLACE et al.
    (408 SE2d 814)
   Andrews, Judge.

Driver Chesser and passenger Waters sued Wallace, Express America, Cook Transports, and the insurers of the two companies for injuries suffered when Chesser’s pickup ran into the side of a tractor trailer rig operated by Wallace. A claim for loss of consortium was filed by Waters’ wife. Plaintiffs dismissed without prejudice as to Cook and its insurer during trial. Chesser and Waters appeal from the jury’s verdict in defendants’ favor.

The accident occurred shortly before 5:00 a.m. on Highway 341 north of Brunswick, Georgia. Highway 341 is five lanes, including a turn lane. The tractor trailer was pulling out of a shopping center parking lot, turning into the southbound lanes of the highway. The tractor was turned southwesterly, with its headlight beams shining toward the shoulder of the highway. Tractor and trailer extended across both northbound lanes, the turn lane, and the innermost southbound lane. There was no, illumination in the area other than vehicle lights and there were no marker lights on the side of the trailer as required.

Chesser’s pickup truck left 30 feet of skid marks before impacting the trailer and its roof was nearly totally sheared from the body. The pickup was wedged beneath the trailer until wreckers lifted the trailer off.

The pretrial order delineated the issues, including whether Wallace was an agent of Express America and whether Chesser was negligent so as to have caused or contributed to the accident.

Appellants’ brief is not in compliance with Rule 15 of this court, in that the argument is not numbered sequentially following the enumeration of errors but is one continuous argument, Rule 15 (c) (1) and some enumerations are without citations of authority. Rule 15 (c) (2).

The mere repetition and rephrasing of an enumeration of error without more is not the argument anticipated by that rule. “The principal purpose of argument is to provide guidance to this court on the basis for a claim of error and for citations of authority which tend to support appellant’s allegation of error. [Cits.] A mere recital, or repetition, of the enumerated error is not argument. [Cits.]” Montgomery v. City of Sylvania, 189 Ga. App. 515, 517 (1) (376 SE2d 403) (1988); Wilson v. Cotton States &c. Ins. Co., 183 Ga. App. 353, 355 (2) (358 SE2d 874) (1987).

Decided July 3, 1991

Reconsideration denied July 22, 1991

W. Douglas Adams, for appellants.

Gilbert, Harrell, Skelton & Gilbert, M. Lynn Frey III, for appellees.

1. The first enumeration is not supported with argument or citation and is deemed abandoned. Rule 15 (c) (2); Prevost v. Taylor, 196 Ga. App. 368, 370 (6) (396 SE2d 17) (1990).

2. The fifth enumeration alleges error in the court’s giving of the following charge to the jury: “In order for the plaintiffs to recover their injuries and damages must have been the result of the proximate cause by the negligence of the Defendant Leroy Wallace, the driver of the truck. In order for the plaintiffs to recover they must prove to your satisfaction that Leroy Wallace’s negligence was the sole and proximate cause of their damages and injuries.”

This part of the charge, in isolation, is incorrect. However, the charge went on to correctly and fully express the differing standards to be applied to the claims of the driver Chesser and the passenger Waters. “[T]he isolation of segments of the overall charge to the jury and the individual dissection of such parts is not grounds for reversal. It is consideration of the charge as a whole that determines the issue.” Womack v. St. Joseph’s Hosp., 131 Ga. App. 63, 64 (205 SE2d 72) (1974). The fifth enumeration is thus without merit.

3. We have reviewed the remaining enumerations of error and they are without merit.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


author: Cooper, Judge.

text:
    A91A0684.
    EVANS v. FULTON COUNTY et al.
    (408 SE2d 816)
   Cooper, Judge.

Appellant appealed her dismissal from employment with the Fulton County Health Department to the State Personnel Board (the “Board”). The Board upheld the dismissal, and appellant filed a petition for certiorari in the superior court. We granted this discretionary appeal from the superior court’s order affirming the decision of the Board.

The evidence reflects that at the time of appellant’s dismissal, she was employed by the Fulton County Health Department as a clerk. On March 16, 1988, appellant was involved in an automobile accident but was able to report to work on that day and the following two days. On March 21, appellant reported to work and informed her immediate supervisor that she was going to the doctor. When appellant returned later that day, she told her supervisor that her doctor advised her not to do any work that involved bending or stooping. When she was told that there was no such work available, she requested a leave of absence. Appellant was requested to bring in a statement from her doctor stating her condition, her prognosis and an estimated date on which she could return to work. Appellant was specifically told that the statement should be on the doctor’s letterhead stationery. On March 22, 1988, appellant came to work and gave her immediate supervisor a signed prescription pad sheet from her doctor’s office which had the notation, “off work status.” Appellant left work and was informed later that day that the documentation was inadequate. Appellant did not report to work again until March 28, on which date she gave her supervisor another signed prescription pad sheet which stated, “Has back/neck injury from auto accident. She will be unable to work for an indefinite time.” Appellant left work and was later informed that her documentation was still inadequate. She did not return to work, and on April 6, 1988, she was dismissed for abandonment of her job. Appellant testified at the personnel board hearing that she had understood that she had not been given authorized leave to be excused from work after March 28, 1988.

1. Appellant contends in her first enumeration of error that the decision of the Board was not supported by substantial evidence. The last day appellant reported for work was March 28, 1988, on which day she left work at approximately 11:30 a.m. Appellant was notified on April 4, 1988 that she was being dismissed from her employment effective April 6, 1988, for abandonment of her position for five or more consecutive work days. On April 15, 1988, the administrator of the Health Department wrote to appellant clarifying that appellant’s termination was due to her failure to report to work or communicate with her supervisor for more than five working days. Specifically, appellant was advised that her termination was authorized by Fulton County Personnel Regulations 800-4 and 1800-2. Fulton County Personnel Regulation 800-4 provides that an employee who is absent from duty five (5) or more consecutive work days without proper notification and authorization shall be deemed to have abandoned his position and shall be terminated immediately, subject to any extenuating or mitigating circumstances that may apply. Regulation 1800-2 provides that an employee shall be dismissed upon the first offense for abandonment without reasonable excuse. The personnel board found that appellant’s dismissal was for cause and was not based upon personal, political or religious motives. The trial court found that the Board acted justifiably and non-arbitrarily in dismissing appellant and that the dismissal was supported by substantial evidence. On appeal, we must determine whether there is any evidence supporting the trial court’s ruling that the personnel action taken by the Board was supported by substantial evidence. Sullivan v. Brownlee, 174 Ga. App. 813 (2) (331 SE2d 622) (1985). We find that sufficient facts were set forth at the hearing before the Board to support the trial court’s ruling that the Board’s action was supported by substantial evidence.

2. In her second enumeration of error appellant contends that her dismissal was contrary to Board Rule 800-4 which allows for dismissal on grounds of abandonment subject to any discoverable extenuating or mitigating circumstances. Appellant argues that her medical disability was an extenuating or mitigating circumstance which justified her action in not reporting to work. It is undisputed that appellant did not comply with the proper procedure for seeking a leave of absence; that she never received authorization excusing her absence from work; and that appellant knew that she had not been granted a leave of absence or permission to not report to work. The Board considered all of the evidence and found that appellant’s injury was not an extenuating or mitigating circumstance such as to protect her from the Board’s regulation requiring her dismissal for abandonment of her position. As noted in Division 1, there was sufficient evidence to support the trial court’s ruling that the Board’s decision was supported by substantial evidence. Accordingly, appellant’s second enumeration is without merit.

3. Appellant’s third enumeration of error, that she was denied due process because there was no rule specifying the type of medical documentation required, is without merit because no personnel action was taken against appellant for failing to submit the proper documentation with her leave request. Rather, appellant was dismissed because she unilaterally abandoned her employment after being informed that she had not been granted a leave of absence.

4. In her final enumeration of error, appellant contends that she was denied due process because she was not notified that her dismissal was the result of progressive discipline. Appellant was notified that she was being dismissed on the grounds that she had abandoned her job for five or more consecutive work days. Although the Board heard evidence regarding problems with appellant’s job performance during her 14 months with the Department, it is apparent from the trial court’s order that the reason for appellant’s dismissal was job abandonment. Since appellant received notice of the reason for her dismissal, her contention that she was denied due process is without merit.

Decided July 5, 1991

Reconsideration denied July 22, 1991

William L. Skinner, for appellant.

Kilpatrick & Cody, Michael W. Tyler, Craig E. Bertschi, for appellees.

For the foregoing reasons, we find no error with the trial court’s ruling affirming the decision of the Board.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0178.
    BATSON-COOK COMPANY v. AETNA INSURANCE COMPANY et al.
    (409 SE2d 41)
   Cooper, Judge.

In 1980, appellant, Batson-Cook Company, was chosen by a Florida developer to provide construction management services on a project in Florida. The developer procured a comprehensive general liability insurance policy from Aetna Insurance Company (“Aetna”), which listed appellant as an additional insured. Appellant was also the named insured under a comprehensive general liability policy of insurance issued by Fireman’s Fund Insurance Company (“Fireman’s Fund”). In 1983, appellant was sued in a federal district court in Florida by one of the contractors on the project (the “federal action”). Appellant forwarded the complaint to Fireman’s Fund and was subsequently informed by a Fireman’s Fund claim supervisor that the complaint did not allege any matters for which coverage would be provided under the policy; therefore, Fireman’s Fund would not defend the action on behalf of appellant. In 1984, an action was brought by another contractor against appellant and several other defendants in a Florida state court. Two of the defendants subsequently filed cross-claims against appellant. When several more civil actions were filed in Florida state courts involving claims arising out of construction management services rendered by appellant at the same project, all of the state court cases were consolidated into one action (hereinafter referred to as “the state action”). In December 1984, an attorney for appellant sent a letter to Fireman’s Fund enclosing “copies of the various complaints pertaining to the litigation” and informing Fireman’s Fund that “one or more of the allegations [in the complaints] was covered under [appellant’s] insurance.” In response, a Fireman’s Fund agent informed appellant’s attorney by letter that the allegations in the various complaints did not come within the scope of the policy’s coverage. In early 1985, appellant wrote to an agent for Aetna and requested copies of any policies which listed appellant as an insured for the purpose of making “an independent determination as to whether or not there is any available coverage.” The agent’s response was to inform appellant’s attorney that appellant had already received copies of the Aetna policies. In March 1988, appellant filed an action against Aetna and Fireman’s Fund, appellees herein, seeking damages for breach of contract resulting from the refusal of appellees to defend the above-mentioned lawsuits against appellant. Appellees answered the complaint, contending that appellant did not give timely notice of the claims against appellant and that none of the claims in the various complaints was covered by the insurance policies. After completing discovery, appellant filed a motion for partial summary judgment, and appellees filed cross-motions for summary judgment. The trial court denied appellant’s motion and granted appellees’ motions, finding as a matter of law that appellees had no duty to defend appellant under the policies of insurance. This appeal followed.

This case first presents a choice of law question. The Aetna insurance policy was issued in Florida and contemplated coverage of appellant’s activities in Florida. However, the Fireman’s Fund policy was a general liability policy issued through its Atlanta agent and provided coverage for appellant’s activities in a number of states in which appellant conducted business. This court has recognized that since insurance contracts often have no particular place where performance is contemplated, it is reasonable to apply the law of the place where the contract was made. General Elec. Credit Corp. v. Home Indem. Co., 168 Ga. App. 344 (2) (309 SE2d 152) (1983); see also Brown v. Inter-Ocean Ins. Co., 438 FSupp. 951, 953 (N.D. Ga. 1977). Therefore, the law of Florida will be used to construe the Aetna policy, and the law of Georgia will be used to construe the Fireman’s Fund policy.

Next, we must determine whether either the federal action or the state action alleged any claims against appellant within the scope of coverage of the Aetna or Fireman’s Fund policies. An insurer’s duty to defend is determined by comparing the allegations of the complaint with the provisions of the policy. See Great American Ins. Co. v. McKemie, 244 Ga. 84, 85 (259 SE2d 39) (1979); see also Commercial Union Ins. Co. v. R. H. Barto Co., 440 S2d 383, 385 (1) (Fla. App. 1983). We, therefore, must look to the complaints filed in the federal action and the state action and the applicable provisions of the respective insurance policies to determine whether a defense was required by either insurance company.

The six-count federal action included three counts which alleged that appellant negligently performed its duties as supervisor of the project, resulting in damages to the plaintiff for overhead and profit, additional costs of labor, materials and tools, additional job overhead and supervisory expenses, additional insurance expenses, loss of use of equipment, and additional costs of maintenance and repairs. Both the Aetna and Fireman’s Fund policies provided coverage for “bodily injury or property damage, to which this insurance applies, caused by an occurrence. ...” The policies also provided that the insurer had a “duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations in the suit are groundless, false or fraudulent.” In each policy “property damage” was defined as: “(1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period,” and “occurrence” is defined as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.”

“[T]he phrase ‘property damage’ in liability insurance law has been the subject of construction in a variety of cases, all of which, under definitions substantially identical to the [ones involved in this case], have emphasized the tangible and physical nature of the property and the necessity for bringing it within physical three-dimensional limits.” Southeastern Color Lithographers v. Graphic Arts Mut. Ins. Co., 164 Ga. App. 70, 71 (296 SE2d 378) (1982). See also Commercial Union Ins. Co. v. R. H. Barto Co., supra at 387. We conclude that the federal action did not allege any occurrence of property damage as contemplated by the terms of either policy. Although the complaint alleged a loss of use of equipment, it did not allege a loss of use of equipment which resulted from a physical injury to the equipment as is required to come within the definition of “property damage” in the policies. Therefore, we conclude that appellees had no duty to defend appellant in the federal action, and the trial court properly granted summary judgment to appellees.

Upon review of the state action, we find that only paragraphs 39 and 42 of the complaint styled Sharsand Associates, Inc. v. Kessel Construction Co., et al., Civil Action No. 84-1692 B (hereinafter “Sharsand complaint”), alleged claims potentially covered by the policies. Those paragraphs allege that appellant breached its duties as construction manager by, among other enumerated items, “directing other contractors and subcontractors to use and move the swings and other equipment and materials rented by or belonging to plaintiff,” causing plaintiff to incur expenses for rentals on idle equipment, compensation to idle laborers, additional start-up and resetting of equipment, laborers and materials and for “damage to swings and other equipment during periods of unauthorized use. . . .” Even if we conclude that paragraphs 39 and 42 together are a sufficient allegation of property damage covered by the policies, the insurer’s duty to defend was not triggered because the damage alleged was excluded under the terms of both policies. Both policies contained an exclusion for “liability assumed by the insured under any contract or agreement.” In addition, the Fireman’s Fund policy contained an exclusion which provided that “the insurance does not apply to bodily injury or property damage arising out of the rendering of or the failure to render any professional services by or for the named insured, including (1) the preparation or approval of maps, plans, opinions, reports, surveys, designs or specifications and (2) supervisory, inspection or engineering services.” The allegations contained in paragraphs 39 and 42 of the Sharsand complaint relate to appellant rendering or failing to render services as construction manager of the project pursuant to its agreement with the developer. Therefore, notwithstanding the issue of whether the allegations in paragraphs 39 and 42 of the Sharsand complaint alleged property damage which may have been included within the coverage of the policies, we find that the damages claimed in the state action fall within the exclusions contained in both insurance policies. Inasmuch as the allegations contained in the state action did not state a cause of action requiring appellees to defend appellant, summary judgment was properly granted to appellees. See Commercial Union Ins. Co. v. R. H. Barto Co., supra; see also Barge & Co. v. Employers &c. Ins. Co., 163 Ga. App. 573 (295 SE2d 851) (1982).

Decided May 28, 1991

Reconsideration denied July 22, 1991

Glover & Davis, J. Littleton Glover, Jr., R. Keith Prater, for appellant.

R. Patrick White, Fortson & White, Michael J. Rust, Beth H. Paradies, for appellees.

Because of our ruling that the appellees had no duty to defend under either the federal or the state action, we need not address the issue of whether appellant provided Aetna or Fireman’s Fund with timely notice as required under both policies.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0061.
    GRIER et al. v. CITY OF ATLANTA et al.
    (408 SE2d 794)
   Cooper, Judge.

This appeal arises from an action for personal injuries brought by appellant Brendianne Grier, on behalf of her minor son Derrick Grier, against the City of Atlanta (“City”), CSX Transportation, Inc. (“CSX”) and the City’s Commissioner of Parks & Recreation. Appellant sought to recover under theories of negligence and maintenance of a nuisance for injuries suffered by her son when he jumped from a moving CSX freight train. Appellant subsequently dismissed the action against CSX as well as her claim of negligence against the City. This appeal follows the trial court’s grant of summary judgment to the City and its commissioner, appellees herein, on appellant’s nuisance claim.

The record reflects that the property which is now known as Maddox Park was acquired by the City in 1891, to be used as a sanitary dumping ground. In 1904, the City granted an easement to a local railroad company for the right-of-way through the dumping ground, and that easement was later assigned to CSX. In 1910, the dump site was declared a city park and has since that time been known as Maddox Park. Various improvements were made to the park over the next several decades, including a swimming pool, swing sets, and playing area. It is undisputed that the CSX railroad tracks intersected Maddox Park, separating the swimming pool from the playing area and that CSX trains ran through Maddox Park at least daily. The speed limit for the trains through the park was 10 mph.

The accident occurred when Derrick Grier, then 12 years old, attempted to cross from one side of the park to the other side so that he could go home. Derrick testified that he climbed aboard a moving train going approximately 2 mph, but before he could get across, the train speeded up and he was afraid to jump off the train. Derrick stayed on the train until the train reached Union City, Georgia, where he then attempted to jump off the train while it was still moving. Derrick’s leg was injured in his attempt to jump from the train and had to be amputated below the knee.

The trial court granted appellees’ motion for summary judgment finding that there had been no nuisance shown as a matter of law, and the sole enumeration on appeal is the propriety of the trial court’s ruling. “ ‘ “In City of Bowman v. Gunnells, 243 Ga. 809 (2) (256 SE2d 782) (1979), the Supreme Court set out three guidelines to define a nuisance for which a city may be liable. First, the defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. Second, the act must be of some duration. Third, the city must have failed to act within a reasonable time after knowledge of the defect or dangerous condition.” [Cit.]’ ” City of Ea tonton v. Few, 189 Ga. App. 687 (1) (377 SE2d 504) (1988). “ ‘Under some factual situations, it can be held as a matter of law that no nuisance exists; however, that question ordinarily is a question of fact for the jury.’ [Cits.]” Whiddon v. O’Neal, 171 Ga. App. 636, 638 (320 SE2d 601) (1984). The City contends that prior to the injury to appellant’s son, it had no knowledge of children playing on or around the trains in Maddox Park. However, several employees of CSX testified that they had observed children playing on or near the trains on many occasions prior to the injury to Derrick Grier. One employee testified that he had probably witnessed children playing on the trains more than 100 times. The City’s district maintenance manager testified that during the summer months approximately 150 children play in Maddox Park daily; that city maintenance crews are in Maddox Park every other day engaging in various maintenance activities; and that in his opinion, children playing on the trains is a hazardous condition. Although there was no evidence of actual knowledge, we find that the evidence presented by appellant was sufficient to raise a question of fact as to whether the City had constructive notice of the dangerous condition.

Appellees’ argument that they cannot be held liable as a matter of law for a nuisance because the accident occurred outside the city limits on property owned by the railroad is without merit. See City of Gainesville v. Pritchett, 129 Ga. App. 475, 476 (199 SE2d 889) (1973). Questions of proximate cause are matters for the jury except in clear cases. Cunningham v. Nat. Service Indus., 174 Ga. App. 832, 836 (331 SE2d 899) (1985). Nor do we find the fact that the railroad had a lawful easement through the park to be a bar to the nuisance action against the City. The railroad easement existed prior to the City’s decision to build and maintain a park on both sides of the railroad track, and appellant’s lawsuit questions the propriety of that decision.

Appellees, citing City of East Point v. Terhune, 144 Ga. App. 865 (242 SE2d 728) (1978), argue that they cannot be held liable under a nuisance theory because there has been only one occasion of injury. We disagree. That case, which involved a single occasion flooding, did not involve a regular, repetitious act or condition which caused the injury, and therefore was not sufficient to constitute a nuisance. In the case sub judice, the condition which created the hazard — the presence of moving trains directly through a park where children played — had been in existence for several decades. Furthermore, the evidence shows that occurrences involving children playing on or near the trains were regularly repeated. Thus, the City can be chargeable with “creating a continuous or regularly repetitious condition” which caused injury. Mayor &c. of Savannah v. Palmerio, 242 Ga. 419 (3) (i) (249 SE2d 224) (1978). Accordingly, we reverse the trial court’s grant of summary judgment to appellees. “As the evidence was sufficient to raise a jury question, the trial court erred in granting summary judgment in favor of the City on the issue of nuisance.” Kicklighter v. Savannah Transit Auth., 167 Ga. App. 528 (3) (307 SE2d 47) (1983).

Decided May 31, 1991

Reconsideration denied July 23, 1991

Michael A. Young, R. Lee Marlow, for appellants.

Marva J. Brooks, Kendric E. Smith, Jo A. Crowder, for appellees.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    A91A0070.
    SWANSON v. DEPARTMENT OF TRANSPORTATION.
    (409 SE2d 74)
   Pope, Judge.

This is the second appearance of this case before this court. In 1983, the Georgia Department of Transportation filed a declaration of taking of .801 acre of land owned by appellant/condemnee La Myra Kane Swanson. In the first appearance of this case before this court, the court reversed a jury verdict for Swanson in the amount of $132,000 and remanded the case for new trial. Department of Transp. v. Swanson, 191 Ga. App. 752 (382 SE2d 711) (1989). The case was retried in June 1990. The jury returned a verdict in favor of Swanson in the amount of $60,000. Swanson appeals from that verdict.

1. In her first enumeration of error Swanson contends that it was error for the trial court to charge the jury as follows: “You should also look at all the evidence and circumstances of this case and determine for yourselves whether or not Mrs. Swanson should have minimized her alleged consequential damages, and if so, to what extent such should have reasonably and fairly have been done by her, if any should have been done by her. You may determine that there was no duty on her part to minimize her alleged consequential damages under the evidence of this case and under the circumstances of this case. What you find on this issue, like the other issues in this case, is purely a matter for you, the members of the jury to determine from the evidence of this case and on the law that I now give you to apply to the evidence.” Swanson contends that this charge was error because there was no evidence that noise was a factor that reduced the value to the remainder of Swanson’s property. We cannot agree.

Swanson clearly made noise an issue in this case. The record is replete with testimony concerning noise on the remainder of Swanson’s property, including testimony by Swanson’s witnesses that the property is now noisier than before the taking. Swanson’s counsel informed the court that Swanson was seeking damages stemming from the exposure of Swanson’s property to the increased noise of the expanded right-of-way. Swanson’s first request to charge, which was given by the trial court, contained the following language: “I further charge you that in determining the diminished market value of her remaining property, due consideration should be given to all of the elements reasonably affecting value, such as . . . the increase in noise . . . arising from the close proximity to the remaining property of the traffic lanes of the interstate highway abutting the remaining property. ...” There was evidence presented about how Swanson could minimize the noise inside her home by installing storm windows and doors, without objection by Swanson’s counsel. From the evidence presented, the jury could have determined that a reasonable mitigatory option existed. Therefore, the trial court’s charge on mitigation of consequential damages cannot be error in this case. Department of Transp. v. Ladson Investments, 158 Ga. App. 687, 690 (3) (282 SE2d 171) (1981); Garber v. Housing Auth., 123 Ga. App. 29 (179 SE2d 300) (1970).

2. Swanson also asserts that the trial court erred in charging the jury as follows: “Now in determining the value of property, you are restricted to the uses which may be lawfully made of it at the time of the taking as set out in the zoning ordinances then in effect, provided that if there is a possibility or probability that a zoning ordinance would be repealed or amended so as to authorize a more valuable use in the immediate future sufficient to have an effect on the value.” (Emphasis supplied.) Swanson argues that the charge was erroneous because it required the jury to find that there was a possibility or probability that the property could be immediately rezoned to a higher density use before it could award consequential damages to Swanson for a zoning change. The jury, however, was further charged on this issue as requested by Swanson as follows: “I charge you that while you may, in determining the value of property condemned, consider all uses to which it might reasonably have been put, including any use not permitted under the applicable zoning ordinance affecting the property at the time of the taking, and the time of the taking again was November [3], 1983; if the likelihood of obtaining a change of zoning to permit such use then existed to such an extent as to have a measurable influence on its market value at the time, and even then the property must not be evaluated as though the rezoning had already been accomplished, but in light of the existing zoning with the prospect of obtaining the zoning change, and the impact of that prospect upon its market value. The question of the existence of a reasonable possibility or probability of a change in zoning regulations is a question of fact for your sole determination.

Decided July 8, 1991

Reconsideration denied July 23, 1991

Gambrell, Clarke, Anderson & Stolz, Paul H. Anderson, for appellant.

“Now, if you find that on November [3], 1983, immediately before the taking, there was a reasonable possibility or probability of the property being rezoned, to a zoning classification which would permit the construction on the property of more than one residence per acre, and if you should further find that because of the taking by the Department of Transportation of the remaining property easements of access into Mt. Paran Road and the dead ending of Flintlock Road at Mt. Paran, the prospect of obtaining such zoning was destroyed or materially diminished, then Mrs. Swanson would be entitled to recover as consequential damages in this case the amount by which the fair market value of her remaining property was reduced thereby.” (Emphasis supplied.) Thus, Swanson’s requested charge also uses the word immediate when discussing the time frame for rezoning.

Swanson is correct that the jury charges this court has approved for consideration of changes in zoning in determining the fair market value of property that has been condemned do not use the term “immediate future,” as used by the trial court, but “near future.” See Department of Transp. v. Sconyers, 151 Ga. App. 824, 826 (2) (261 SE2d 728) (1979); Civils v. Fulton County, 108 Ga. App. 793 (134 SE2d 453) (1963). We do not find that the trial court’s use of the word “immediate” gives rise to harmful error in this case since the trial court also gave Swanson’s requested charges on this issue in full, and Swanson also used the word “immediate” in referring to the time frame of rezoning. It is well-settled that when a party contributes to what he subsequently assigns as error on appeal, this court will not grant him relief. Price v. Hitchcock, 174 Ga. App. 606, 607 (330 SE2d 807) (1985). Furthermore, “ ‘[t]o constitute harmful error within the meaning of (OCGA § 5-5-24 (c)), an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial. [Cit.]’ . . . [Cit.]” Strickland v. Dept. of Transp., 196 Ga. App. 322, 323 (3) (396 SE2d 21) (1990). We do not find that Swanson was deprived of a fair trial by the trial court’s use of the term “immediate future” rather than “near future.”

3. The court has considered Swanson’s final enumeration of error and finds it to be without merit.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

Michael J. Bowers, Attorney General, Howel & Whiting, James S. Howell, John C. Whiting, for appellee.


author: McMurray, Presiding Judge.

text:
    A91A0196.
    EDWARDS v. THE STATE.
    (408 SE2d 802)
   McMurray, Presiding Judge.

Defendant was charged in a 76 count indictment with 48 counts of burglary, 24 counts of entering a motor vehicle without authority and with intent to commit a theft therein, two counts of theft by taking, one count of theft by conversion and one count of giving a false name. Defendant pleaded not guilty and moved to sever the offenses for separate trials. An order on the motion to sever was not entered, but a 25 count indictment was entered and it reflects several charges of the original indictment, i.e., entering 24 motor vehicles without authority and with intent to commit a theft therein (Counts 1 through 24) and theft by taking (Count 25). The charges of the 25 count indictment were tried before a jury and defendant was found guilty of entering a van belonging to Clifford Parker (Count 12), entering eight motor vehicles belonging to Edd Kirby Chevrolet Incorporated (Counts 13-19) and theft by taking property belonging to Edd Kirby Chevrolet Incorporated (Count 25). Defendant was found not guilty on the remaining counts of the 25 count indictment. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion for mistrial after it was discovered that five jurors read a newspaper article which placed defendant’s character in issue.

At the beginning of the second day of trial, the following transpired: “[DEFENSE COUNSEL]: Your honor, I have a motion to make. . . . [W]hen I got home last night I received my copy of the Daily Citizen News, . . . and I looked on the left part of the front page, and I noticed ‘In the News — Superior Court Begins’ And I’d like to read this into the record. ‘Among the trials expected this week in Whitfield County Superior Court are cases of two suspected armed robbers plus one man accused of multiple thefts. Assistant District Attorney Kermit McManus said . . . [t]he trial of Randy Sherrill [defendant], also known as Randy Edwards, twenty-three, of Dalton is expected to begin today. Edwards is to be tried on multiple theft charges including Theft by Taking and Theft by Receiving. Though charged with more than sixty counts of theft, McManus said Sherrill will only be tried on about half the charges today, with the others to be tried at a later date. . . .’

“Your Honor, I suspect, although I’m not able to prove, that this story was planted on purpose. Apparently the District Attorney’s office will sell their soul for a conviction in this case. And I think they’re becoming perilously close. This is not the first time I’ve seen such as this in the paper on the day that court begins or just before. But what we have here is just like an infection. We try to cut it out now for the jury, we may well spread it. . . . [The article is] not only not factual, to my knowledge [defendant] is not charged with more than sixty counts of theft. He is not charged with even one count of Theft by Receiving here that I know of. And to publish this that he would only be tried on about half the charges today, with the others to be tried at a later date, flies right in the face of all of the efforts that this Court has had, including instructing the District Attorney’s office on the prophylactic means to be used on the indictment. Your Honor, I move for a mistrial.”

The State’s Attorney responded, “Your Honor, I was not aware of the article. I didn’t read the paper last night. I didn’t see it myself until [defense counsel] mentioned it this morning. We just move that it is not grounds for a mistrial in this case. If there were any curative instructions that the Court would care to give in regard to newspaper articles that may be printed in relation to this case or any other case involving criminal matters, would be fine to cure the record and cure any instance in this case that might be prejudicial to the defendant.”

The trial court admonished the office of the District Attorney of the Conasauga Judicial Circuit for commenting on pending criminal cases and summoned the jury, giving instructions and making inquiry as follows: “THE COURT: Good morning, ladies and gentlemen. . . . I want to ask the jury whether or not any of you read an article or several paragraphs that appeared in yesterday’s newspaper. I don’t want you to tell me what it was. I just want to have a — and it referred to this case. I want to know if any of you read it? (Whereupon, four jurors indicate by raising their hands.) THE COURT: The Court sees four hands. MALE JUROR: Is that the one that was on the front page that — THE COURT: Yeah. Five. The article was inaccurate in almost every respect. I instruct the jury and particularly those of you who read the article that this defendant is on trial for these charges that have been stated to the jury. He is not on trial for anything else. That article should be given no weight by this jury whatsoever. This case depends upon the evidence that is presented from the witnesses who take the stand and testify and any exhibits that are admitted. You are to consider nothing else in determining whether or not the State carries its burden of proving this defendant guilty beyond a reasonable doubt. Now, I want to know whether you five jurors who have read the article will be able to follow that instruction, ignore that inaccurate article and give it no weight whatsoever in consideration. If you believe you will not be able to do that, I would like to see your hand raised so that I can pursue that further. (No indication from the jurors.) THE COURT: I see no hand raised, and the Court concludes by that that you all will be able to put that out of your minds. I instruct you that you are not to discuss the contents of that article with any other jurors who fortunately did not read it. It should never have been in the paper. The District Attorney’s office should have known better than to make any comments, and certainly should not have made any inaccurate comments to the paper. Now, in the future I instruct you that if there are other articles in the paper concerning this case, or if there is anything on the radio or the television, although I can’t imagine that there will be, you are not to listen to, read or watch any of those matters. You can save them and when you get through you can read them later if you want to. But don’t read them now, because it’s not fair to the parties in the case that you be exposed to information that comes to you other than from this witness stand where both sides are present and both sides have an opportunity to cross-examine and examine the witnesses who are giving testimony. Now, after today, if there are future articles, it may be necessary for the Court to again ask you similar questions. And I’m sure that you will all at that time be in a position to say that you have not disobeyed the Court’s instructions which I have just given you and that you have not read any such articles. And then we would not need to go further and inquire to make sure that you can put those out of your mind. All right, counsel approach the bench.”

The State’s alleged misconduct is not an issue, the controlling issue is whether a mistrial was essential to the preservation of defendant’s right to a fair trial. Whiteley v. State, 188 Ga. App. 129 (1), 131 (372 SE2d 296).

“ ‘The trial court has a broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by the appellate courts unless it appears that there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right to a fair trial. Gasaway v. State, 137 Ga. App. 653, 657 (224 SE2d 772); Jones v. State, 128 Ga. App. 885, 886 (198 SE2d 336). Where a motion for mistrial is made on the ground of inadmissible matters being placed before the jury, the corrective measure to be taken by the trial court also is largely a matter of discretion, and where proper corrective measures are taken and there is no abuse of that discretion, the refusal to grant a mistrial is not error.’ Bradham v. State, 148 Ga. App. 89, 94-95 (250 SE2d 801).” Grayson v. State, 159 Ga. App. 138, 139 (1) (282 SE2d 755).

In the case sub judice, the trial court informed the jury that the newspaper article was inaccurate; instructed the jury to disregard the article and rebuked the State’s attorney’s office for its alleged misconduct. See OCGA § 17-8-75. The trial court also informed the jury that the article had no evidentiary value and emphasized that “defendant is on trial for these charges that have been stated to the jury [and that he] is not on trial for anything else.” These instructions and the affected jurors’ indication that they could “ignore that inaccurate article and give it no weight whatsoever ...” support a conclusion that the jurors’ exposure to the newspaper article did not deprive defendant of a fair trial. Consequently, we cannot say the trial court abused its discretion in denying defendant’s motion for mistrial. Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315). See Hampton v. State, 179 Ga. App. 14 (345 SE2d 117), warning that prosecutorial misconduct may sometimes result in a mistrial and may even bar subsequent prosecution of a defendant for the same offense.

2. Defendant contends the trial court erroneously denied his motion for mistrial after a law enforcement officer from the Dalton Police Department testified that an investigator from the Murray County Sheriff’s Department went with him to defendant’s home. Defendant argues that this testimony inappropriately “brought in other investigations relating to the severed counts” because “[n]one of the counts being tried related to incidents in Murray County.”

“Our duty as an appellate court is to correct errors alleged to have been made at trial by the trial court and not to manufacture them. Finch v. State, 138 Ga. App. 668, 672 (226 SE2d 779).” Jones v. State, 181 Ga. App. 651, 653 (2) (353 SE2d 593). In the case sub judice, there is nothing to indicate that the investigator from the Murray County Sheriff’s Department went to defendant’s home with the officer from the Dalton Police Department to investigate crimes other than those charged in the 25 count indictment. Defendant merely speculates that this testimony had a malignant effect upon the jury. See McClendon v. State, 170 Ga. App. 790 (318 SE2d 145). This enumeration is without merit.

3. Defendant contends the trial court erred in denying his motion for mistrial after the accomplice impermissibly placed defendant’s character in issue.

The pertinent portion of the accomplice’s testimony was as follows: “[STATE’S ATTORNEY:] At the time that you met [defendant], where were you living out there in Oregon? [THE ACCOMPLICE:] Nowhere, really. [STATE’S ATTORNEY:] Okay. How did you decide to come to Dalton? [THE ACCOMPLICE:] Just wasn’t planning on it. [Defendant] was going to Tennessee. [STATE’S ATTORNEY: ]. Ho w’d you end up leaving Oregon? How’d you decide on leaving the Portland area? [THE ACCOMPLICE: Defendant] said he had some charges or other stuff —” Defense counsel then objected and moved for a mistrial. The trial court denied the motion for mistrial, but offered to instruct the jury “that the defendant is on trial for these 25 counts and he’s not charged with anything else.” Defense counsel refused the curative instructions and stated, “I would say that curative instructions such as that would not cure it. For the record, I renew my motion for mistrial.”

In passing on a motion for mistrial because of an improper remark before the jury, “ ‘the trial judge may take such action as in his judgment will prevent harm to the defendant, and a new trial will not be granted unless it is clear that such action failed to eliminate the statement from consideration by the jury.’ Watkins v. State, 237 Ga. 678, 682-683 (229 SE2d 465) (1976).” Hoerner v. State, 246 Ga. 374, 375 (4) (271 SE2d 458). In the case sub judice, we find no error in the denial of defendant’s motion for mistrial. The trial court attempted to eliminate the accomplice’s unresponsive statement from the jury’s consideration, but defense counsel refused the instructions and thereby acquiesced in the denial of his motion for mistrial. See Fitzgerald v. State, 193 Ga. App. 76 (4) (386 SE2d 914). This enumeration is without merit

4. Defendant contends there was insufficient evidence to support the jury’s guilty verdicts, arguing that there was no evidence to corroborate the accomplice’s testimony that he and defendant committed the crimes charged in Counts 12 through 19 and Count 25 of the indictment.

To sustain a conviction on an accomplice’s testimony, there must be corroborating circumstances which independently connect defendant to the crime charged. Castell v. State, 250 Ga. 776, 780 (1c) (301 SE2d 234). However, “ ‘the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. (Cit.)’ Castell v. State, 250 Ga. 776[, supra]. ‘(S)ufficient corroboration may consist of either direct or circumstantial evidence which connects the defendant with the crime, tends to show his participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice. (Cits.)’ Gunter v. State, 243 Ga. 651 (2) (256 SE2d 341) (1979).” Howard v. State, 181 Ga. App. 187, 188 (351 SE2d 550).

In the case sub judice, the accomplice testified that he and defendant committed the crimes charged in the indictment and that defendant’s employment as a security guard enabled them to gain access to the property described in Counts 13 through 19 and Count 25 of the indictment. This testimony was corroborated by independent evidence showing that defendant was employed as a security guard at the time of the crimes charged in Counts 13 through 19 and Count 25 of the indictment and that defendant was then assigned to protect the property described in those counts of the indictment. This evidence and evidence showing that defendant was in possession of property taken from the motor vehicle described in Count 12 of the indictment is sufficient to corroborate the accomplice’s testimony that defendant committed the crimes charged in Counts 12 through 19 and Count 25 of the indictment. In other words, the evidence was sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of the crimes charged in Counts 12 through 19 and Count 25 of the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). This enumeration is without merit.

Decided June 26, 1991

Reconsideration denied July 23, 1991.

Waycaster, Corn, Murray & Morris, Cynthia N. Johnson, for appellant.

Jack 0. Partain III, District Attorney, Todd L. Ray, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A91A0257.
    HALL v. THE STATE.
    (409 SE2d 221)
   Andrews, Judge.

Hall appeals his conviction of possession of methamphetamine, a felony (Count 2); misdemeanor possession of marijuana (Count 3); driving under the influence of drugs and alcohol, a misdemeanor (Count 4); and leaving the scene of an accident, a misdemeanor (Count 5).

1. The fourth enumeration claims error in denial of the motion to suppress urine and blood test results. These tests showed marijuana and methamphetamine in Hall’s urine and .07 blood alcohol. The motion stated, with regard to the arrest, that it was without probable cause or reasonable ground, “illegal, in violation of defendant’s constitutional and statutory rights, and all evidence seized as a result of said arrest should be suppressed.” Even if the unidentified constitutional provisions had been specified, “rote repetition of constitutional provisions is totally ineffective in raising a constitutional issue for this court’s determination. See Taylor v. State, 177 Ga. App. 624, 628 (3) (340 SE2d 263) (1986), where we pointed out that ‘merely intoning’ a citation to a constitutional provision fails to provide a basis for our examination of the right purportedly deemed to have been violated. [Cit.]” Harbin v. State, 193 Ga. App. 248 (1) (387 SE2d 367) (1989).

Had the intonation of “probable cause” been sufficient to raise that issue, however, no facts in support of suppression were contained in the motion, as required by OCGA § 17-5-30 (b). McConnell v. State, 193 Ga. App. 801, 830 (389 SE2d 388) (1989).

Although not properly raised, there was sufficient evidence to give the officer probable cause to arrest defendant for driving under the influence.

“A ‘warrantless arrest’ is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed ... an offense. [Cits.]” Callaway v. State, 257 Ga. 12, 13 (2) (354 SE2d 118) (1987). See Napier v. State, 184 Ga. App. 770, 771 (1) (362 SE2d 501) (1987).

The officer received a call of a wreck around 3:00 a.m. Upon arrival at the scene, he found a damaged mailbox and culvert, but no vehicle. He found an ashtray at the scene which contained a leafy substance which the officer believed to be marijuana. Witnesses told him the color of the vehicle and where it had pulled in and that it looked like the “Hall boy” and his truck. The officer located such a vehicle about a half-block from the scene of the wreck and it was extensively damaged, including having the windshield busted out.

Certainly, at this point, the officer had reason to believe that injuries might have occurred, in addition to the need to further investigate the circumstances of the accident, including the use of the suspected marijuana. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); State v. Brown, 178 Ga. App. 307, 308 (1) (342 SE2d 779) (1986). Upon his knocking at the door and inquiring, the owner of the residence, which was not Hall’s, took the officer to Hall who was being ministered to by a woman removing glass shards from his head. Asked if he owned the pickup truck, he responded affirmatively. The officer noticed the smell of alcohol on his breath and that his eyes were bloodshot. At that point, he was arrested.

The argument here is that there was no probable cause to believe that Hall had been driving the truck while under the influence. It is not necessary for a conviction of driving under the influence, much less for probable cause, that the driver actually be seen behind the wheel driving the car while under the influence. Napier, supra; Brown, supra. Such facts, as any others, may be shown by circumstantial evidence, OCGA § 24-1-1 (4).

Further, the implication in the dissent that a field sobriety test is required in order to have probable cause is not warranted. Howard v. State, 177 Ga. App. 589 (1) (340 SE2d 212) (1986).

By considering all the facts available to him and weighing the reasonableness and probabilities of the circumstances, the officer had the requisite probable cause to arrest. State v. Grant, 257 Ga. 123, 125 (1) (355 SE2d 646) (1987). The same strictness of proof required for a finding of guilt is not necessary for probable cause. Upon conducting the tests, the presence of marijuana and methamphetamine was confirmed.

Therefore, we conclude there was sufficient probable cause to support the arrest of defendant for driving under the influence.

2. Unlike Clay v. State, 193 Ga. App. 377 (387 SE2d 644) (1989) and Groom v. State, 187 Ga. App. 398 (370 SE2d 643) (1988) cited by the dissent, this case did not involve only one or two facts, i.e., consumption of alcohol and a wreck, or bloodshot eyes and the odor of alcohol.

Upon the trial of the case by the court without a jury, the additional evidence of .07 grams percent alcohol was a fact to be considered by the factfinder, OCGA § 40-6-392 (b) (2), as well as the presence of methamphetamine and marijuana in Hall’s blood. Additional facts included the early morning hour; the striking of fixed objects; the bloodshot eyes and odor of alcohol; the opinion of the experienced police officer who observed defendant within a short period of the accident that he was intoxicated to the extent it was less safe for him to drive; and the opinions of the expert witness that .07 blood alcohol rendered one less safe to drive. These facts, viewed in a light in favor of the decision of the factfinder, were sufficient to support the convictions of Counts 2, 3 and 4. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lawrence v. State, 157 Ga. App. 264 (1) (277 SE2d 60) (1981).

3. Hall enumerates as error denial of his motion to quash the indictment as to Count 4 (DUI), because it failed to charge him with a crime under OCGA § 40-6-391 due to the failure to allege “to the extent that it was less safe for the person to drive.”

While this specific language was added to the statute by Ga. L. 1988, p. 1893, it has always been required, in order to convict of OCGA § 40-6-391 (a) (1), (2) or (3), that the State prove it was less safe for the accused to drive due to consumption of alcohol, drugs, or both. Cook v. State, 220 Ga. 463, 465 (2) (139 SE2d 383) (1964); Hooks v. State, 97 Ga. App. 897 (104 SE2d 623) (1958). Failure to include this language in Count 4 of the indictment did not require granting of the motion to quash since the indictment alleged “driving under the influence . . . contrary to the laws of said State.” Hooks, supra; State v. Howell, 194 Ga. App. 594, 595 (391 SE2d 415) (1990).

4. Defendant Hall also contended that, the motion to quash should have been granted on the basis that jurisdiction of the misdemeanor offenses was conferred upon the county probate court and never properly transferred to the superior court pursuant to Uniform Probate Court Rule 16.1. This argument is apparently premised on the issuance of a Uniform Traffic Citation made returnable to probate court. There is no indication in the record that any proceedings were conducted in the probate court before the indictment containing the felony count and the misdemeanors was returned and proceedings initiated in the superior court. The superior courts have concurrent jurisdiction over misdemeanors with inferior courts. Ga. Const., Art. VI, Par. IV, Sec. I; OCGA § 15-6-8; Allen v. State, 85 Ga. App. 887 (1) (70 SE2d 543) (1952).

In addition, the transfer rule relied upon applies by its terms to civil matters. There was no error.

5. Here, for the first time, Hall argues that the offenses in Counts 2, 3 and 4 merged as matters of law and fact and he could not be sentenced on all three of those counts. This ground, however, was not presented to the court below and no objection having been made to the sentence, it will not be considered here for the first time. Johncox v. State, 189 Ga. App. 188 (1) (375 SE2d 139) (1988).

6. Defendant contends the evidence was insufficient to prove a violation of OCGA § 40-6-273 and that the court erred in sentencing him on it. That section provides that “[t]he driver of any vehicle involved in an accident resulting only in damage to a fixture legally upon or adjacent to a highway shall take reasonable steps to locate and notify the owner or person in charge of such property of such fact and of his name and address and of the registration number of the vehicle he is driving and shall, upon request and if available, exhibit his operator’s license.”

Here, the State relied upon hearsay statements of unidentified persons relayed by the investigating officer to show that Hall’s truck was righted by unidentified people and he fled the scene without attempting to notify the unidentified owner of the mailbox and culvert. Although no objection was made to this hearsay evidence, it was without probative value. Duke v. State, 205 Ga. 106, 110 (1) (52 SE2d 455) (1949); Curtis v. State, 190 Ga. App. 173, 175 (378 SE2d 516) (1989).

There was no probative evidence to show that Hall did not take “reasonable” steps to comply with this statute and this conviction is reversed.

Judgment affirmed in part and reversed in part.

Banke, P. J., Carley, Pope, Beasley and Cooper, JJ., concur. Sognier, C. J., McMurray, P. J., and Birdsong, P. J., dissent.

McMurray, Presiding Judge,

dissenting.

Review of the transcript in a light most favorable to the verdict reveals that a peace officer dispatched to the scene of a reported motor vehicle accident found no vehicle there. There was some indication that a wreck had occurred, a mailbox and a culvert had been hit and it appeared that a vehicle had rolled a couple of times. Witnesses directed the officer to a nearby residence, where he found defendant and his extensively damaged vehicle. Defendant was placed under arrest for leaving the scene of an accident and for driving under the influence of alcohol. After defendant was read the implied consent warning, he agreed to the officer’s request that he permit the taking of blood and urine samples. Defendant’s blood sample contained .07 grams percent alcohol and his urine sample tested positive for both methamphetamine and marijuana.

Contending that his arrest was illegal because not based on probable cause, defendant moved to suppress all evidence seized as a result of the arrest. Defendant’s motion to suppress evidence contended that he “was arrested in Banks County, Georgia at the residence of Terry O’Kelly on or about March 11, 1989, and charged with the offenses of driving under the influence and leaving the scene of the accident.

“That the arrest of defendant was without sufficient probable cause or reasonable ground to believe that defendant was violating the provisions of Section 40-6-391 as charged by the arresting officer.

“That the arrest of defendant was illegal, in violation of defendant’s constitutional and statutory rights, and all evidence seized as a result of said arrest should be suppressed by this Court.” In my view, defendant’s motion to suppress, albeit skeletal, sufficiently presented the facts and constitutional principle upon which it was predicated.

Prior to arresting defendant, the arresting officer did not conduct any sobriety test, nor did the. officer, after speaking with defendant, have any indication that defendant was intoxicated other than the smell of alcohol on defendant’s breath and his bloodshot eyes. There is no evidence that defendant displayed any physical or mental impairment. The smell of alcohol on one’s breath is an indication that one has been drinking, but does not independently indicate intoxication such as would render one a less safe driver. Clay v. State, 193 Ga. App. 377, 379 (2) (387 SE2d 644). Nor does involvement in a motor vehicle wreck after consuming alcohol (and other drugs) alone provide proof that one was driving while intoxicated to such an extent as would render one a less safe driver. Groom v. State, 187 Ga. App. 398, 400 (370 SE2d 643). At the time of the arrest in the case sub judice, the arresting officer lacked any information which would reasonably lead him to a conclusion that defendant was a less safe driver due to the consumption of alcohol or other drugs. Clay v. State, 193 Ga. App. 377, 379 (2), supra. Therefore, in my view, the officer lacked probable cause for the arrest of defendant for driving under the influence.

Decided June 17, 1991

Reconsideration denied July 23, 1991

Darryl R. Vandeford, for appellant.

Timothy G. Madison, District Attorney, Jeffrey G. Morrow, As sistant District Attorney, for appellee.

I would also hold that the officer did not have probable cause to arrest defendant for “leaving the scene of an accident.” This phrase is usually used to refer to OCGA § 40-6-270 which is clearly inapplicable to the case sub judice since there was no injury to a person or damage to a vehicle such as would invoke this statute. It is apparent from his testimony that the officer, although referring to defendant’s leaving the scene of an accident, may have actually intended to arrest defendant for violation of OCGA § 40-6-273 which requires “[t]he driver of any vehicle involved in an accident resulting only in damage to a fixture legally upon or adjacent to a highway shall take reasonable steps to locate and notify the owner or person in charge of such property of such fact and of his name and address and of the registration number of the vehicle he is driving and shall, upon request and if available, exhibit his. operator’s license.” However, at . the time of defendant’s arrest the officer had no knowledge of whether or not defendant had complied with this statute. Therefore, whichever statute the officer had in mind, he lacked probable cause to arrest defendant for “leaving the scene of an accident.”

As the officer lacked any probable cause for the arrest of defendant, the evidence obtained following and as a result of the arrest of defendant was therefore illegally obtained. I would hold that the trial court should have granted defendant’s motion to suppress. State v. Bishop, 188 Ga. App. 881, 882-883 (374 SE2d 808); Moore v. State, 155 Ga. App. 299, 300 (3) (270.SE2d 713).

There was no evidence presented at trial which would authorize a trier of fact to conclude that defendant was a less safe driver due to consumption of alcohol, another drug, or a combination thereof. Also, defendant’s blood alcohol content was not shown to be at or in excess of .12 grams. Indeed, under the statutory scheme no presumption as to whether or not defendant was under the influence of alcohol to an extent that he was a less safe driver arose from the concentration of alcohol in his blood of .07 grams. OCGA § 40-6-392 (b) (2). In my view, a rational trier of fact was not authorized under these circumstances to find defendant guilty beyond a reasonable doubt of driving under the influence. Clay v. State, 193 Ga. App. 377, 379 (2), supra; Groom v. State, 187 Ga. App. 398, 400, supra.

I am authorized to state that Chief Judge Sognier and Presiding Judge Birdsong join in this dissent.

       Defendant did claim below that the implied consent procedures of OCGA § 40-6-391 were not properly followed, but that issue is not included in the appeal.


text:
    A91A0281.
    BOYD v. THE STATE.
    (409 SE2d 44)
   Cooper, Judge.

Defendant appeals from the judgment and sentence entered on his misdemeanor conviction of making harassing telephone calls. OCGA § 16-11-39 (4). Although he was represented by counsel at trial, his appeal is pro se.

The trial transcript reveals that in August 1988, R. L. Conway, a part-time magistrate, signed a warrant against appellant taken out by appellant’s estranged wife. On September 18, 1988, appellant telephoned Conway at his home, questioned Conway about whether he intended to run for the city council and threatened to sue Conway if he did run for office. Conway told appellant not to call him at home and hung up the telephone. A short time later, appellant called Conway again for no apparent reason and Conway again told appellant not to call him at home and hung up the telephone. Appellant telephoned Conway two more times that day to the point that Conway felt harassed and threatened.

1. Appellant’s first, third, and fourth enumerations of error amount to his contention that the evidence was insufficient to support the verdict. We conclude that the evidence was sufficient for a reasonable trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration of error, appellant contends that he was denied a speedy trial. The record reflects that in February 1989 appellant filed a document captioned “Plea of Not Guilty and Demand for a Jury Trial.” “A written demand for a jury is not analogous to a demand for trial pursuant to OCGA § 17-7-170.” Kramer v. State, 185 Ga. App. 254, 255 (363 SE2d 800) (1987). Furthermore, unlike Green v. State, 191 Ga. App. 873 (383 SE2d 359) (1989), the text of appellant’s document does not make a request for a speedy trial pursuant to OCGA § 17-7-170, but merely sets forth appellant’s request for a trial by jury. Appellant’s second enumeration is without merit.

3. Appellant contends in his fifth enumeration of error that the trial court erred in denying his motion for directed verdict made at the close of the State’s evidence. “The denial of a motion for directed verdict of acquittal should be affirmed if any rational trier of fact could have found the ‘essential elements of the crime beyond a reasonable doubt.’ [Cit.]” Garmon v. State, 192 Ga. App. 250 (384 SE2d 278) (1989). In accordance with Division 1 of this opinion, we find appellant’s fifth enumeration of error to be without merit.

Decided May 31, 1991

Reconsideration denied July 23, 1991

Jimmy A. Boyd, pro se.

Gerald N. Blaney, Jr., Solicitor, for appellee.

4. Appellant has raised for the first time on appeal that his counsel at trial was ineffective. The judgment and sentence from which appellant appeals were entered on June 26, 1990. Appellant filed his pro se notice of appeal on July 9, 1990. “ ‘Currently, the rule appears . . . to be that a challenge to the effectiveness of trial counsel will not be considered on appeal where it has not been raised in the trial court in such a manner as to enable the court to rule on it.’ [Cit.] Because no motion for new trial was ever filed in this case, the trial court has not had the opportunity to consider the issue of the effectiveness of appellant’s] trial counsel, with the result that the present appeal presents nothing for review. [Cit.]” White v. State, 192 Ga. App. 703 (386 SE2d 56) (1989).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge. Sognier, Chief Judge,

text:
    A91A0338, A91A0339.
    THOMAS et al. v. WELLS FARGO CREDIT CORPORATION (two cases).
    (409 SE2d 71)
   McMurray, Presiding Judge.

Wells Fargo Credit Corporation (plaintiff) filed, a dispossessory warrant against Barry K. Thomas and Sylvia B. Thomas (defendants) in the State Court of DeKalb County and alleged that it is the owner of a house in Lithonia, Georgia (premises) and that defendants are tenants at sufferance. Defendants filed a pro se answer and denied that they are tenants at sufferance and alleged that they own the premises because plaintiff fraudulently induced them to give up interest in the premises through the execution of a promissory note that was not supported by consideration. (Defendants admit in a document entitled, “AFFIDAVIT AND NOTICE OF RESCISSION OF CONTRACT FOR FRAUD, USURY, AND BREACH OF CONTRACT,” that they borrowed $38,500 against the premises and that the transaction is evidenced by “a certain Deed to Secure Debt in the amount of Thirty-eight thousand five hundred and no/100 Dollars ($38,500.00). . . .”) Defendants demanded a jury trial and asserted that the State Court of DeKalb County has no authority to consider this matter because disputes “involving title to land [are] the exclusive jurisdiction of Superior Court.”

Plaintiff filed a motion to strike defendants’ answer and moved for a judgment on the pleadings. Plaintiff also filed certified copies of financial statements from the United States Bankruptcy Court, wherein defendants admitted that the premises were encumbered as a result of a $38,000 debt to plaintiff. The trial court struck defendants’ answer and granted plaintiff a judgment on the pleadings, ordering an immediate writ of possession. Defendants filed a “NOTICE OF APPEAL” and an appeal was subsequently docketed in this Court in Case No. A91A0338. The trial court ordered defendants to pay rent into the registry of the trial court pursuant to OCGA § 44-7-56 and defendants filed an appeal from this order. The appeal was docketed in this Court in Case No. A91A0339. Defendants filed a joint enumeration of errors and brief in support of Case Nos. A91A0338 and A91A0339. Held:

1. Plaintiff seeks dismissal of Case Nos. A91A0338 and A91A0339 on the grounds that the trial court issued an immediate writ of possession after defendants failed to pay rent into the registry of the trial court in accordance with the trial court’s OCGA § 44-7-56 order. This contention is without merit. See Hyman v. Leathers, 168 Ga. App. 112, 113 (1) (308 SE2d 388).

Case No. A91A0338

2. Defendants contend in their first and sixth enumerations that the State Court of DeKalb County had no authority to consider the case sub judice and that the case should have been transferred to the superior court because it involved a dispute over title to the premises. These contentions are without merit. Jordan v. Atlanta Neighborhood Housing Svcs., 169 Ga. App. 600 (1) (313 SE2d 787).

“Claimed defects in the landlord’s title to premises cannot be raised as a defense to a proceeding for possession under Code Ann. § 61-301, 303 [now OCGA §§ 44-7-50 and 44-7-53]. Ryals v. Atlantic Life Ins. Co., 53 Ga. App. 469 (2) (186 SE 197).” McKinney v. South Boston Savings Bank, 156 Ga. App. 114, 115 (2) (274 SE2d 34). Defendants’ claim that they own the premises is relevant only to the extent that it challenges the allegations that plaintiff owns the premises and that defendants are tenants at sufferance, i.e., that plaintiff is a landlord with right of immediate possession. See Jordan v. Atlanta Neighborhood Housing Svcs., 251 Ga. 37, supra, and Cloud v. Groves, 135 Ga. App. 50, 51 (2) (217 SE2d 381).

3. Defendants contend in their third and fourth enumerations that the trial court erred in striking their answer and that plaintiff “failed to prove that [it] had ownership.”

“The defense of lack of landlord-tenant relationship is a proper defense to a dispossessory action [and] if the defendant so answers, a trial of the issues raised shall be had in a civil court of record. OCGA § 44-7-53; Lopez v. Dlearo, 232 Ga. 339 (206 SE2d 454); Lamb v. Sims, 153 Ga. App. 556 (265 SE2d 879); see Rucker v. Fuller, 247 Ga. 423 (276 SE2d 600).” Bread of Life Baptist Church v. Price, 194 Ga. App. 693, 694 (392 SE2d 15). In the case sub judice, defendants answered and denied that a landlord-tenant relationship exists between the parties. Further, there is no evidence or admission that plaintiff is the owner of the premises or that defendants are on the premises without the landlord’s consent. Consequently, genuine issues of material fact remain as to plaintiff’s allegations that it is the owner of the premises and that defendants are tenants at sufferance. The trial court erred in striking defendants’ answer, granting a judgment on the pleadings and entering an immediate writ of possession. See OCGA § 9-11-12 (c) and (f). Defendants are entitled to a trial of the issues in accordance with procedure prescribed for civil actions in courts of record. See Crymes v. Crymes, 148 Ga. App. 299 (2) (251 SE2d 155).

4. In their fifth enumeration, defendants contend they are entitled to a jury trial. We agree. “The Georgia Constitution provides for the right of trial by jury in dispossessory actions.” Hill v. Levenson, 259 Ga. 395 (1) (383 SE2d 110).

Case No. A91A0339

5. In their second enumeration, defendants contend the trial court erred in ordering them to pay rent into the registry of the trial court.

“If the judgment of the trial court is against the tenant and the tenant appeals this judgment, the tenant shall remain in possession of the premises; provided, however, that the tenant shall be required to pay rent into the registry of the trial court . . . until the issue has been finally determined on appeal.” OCGA § 44-7-56. In the case sub judice, judgment was obviously entered against defendants and defendants appealed. Consequently, the trial court did not err in requiring defendants to pay rent into the registry of the court as a condition of their remaining on the premises. Hyman v. Leathers, 168 Ga. App. 112, 113 (1), supra.

Judgment reversed in Case No. A91A0338. Judgment affirmed in Case No. A91A0339. Andrews, J., concurs.

Sognier, C. J., concurs specially.

Sognier, Chief Judge,

concurring specially.

I concur in the result and in Divisions 2, 4, and 5. While I agree generally with Divisions 1 and 3, I write to offer my rationale for the results obtained in those divisions.

1. In reaching the conclusion that judgment was improperly entered on the merits, thereby agreeing with the result reached in Division 3, I rely on my finding that no proper basis was shown for striking the appellants’ pleadings in their entirety. Motions to strike are not favored and should not be granted “if there is any doubt as to whether under any contingency the matter may raise an issue.” Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga. App. 297, 302 (3) (208 SE2d 258) (1974). While I can certainly agree with the trial court that appellants’ answer contains many extraneous matters, it also contains a germane averment that no landlord-tenant relationship existed between themselves and appellee. This is plainly a relevant matter and, in my opinion, should not have been stricken. See id. Had it not been improperly stricken, I must agree with appellants that an issue of fact would remain for trial whether such a relationship existed, since appellee produced no evidence of the alleged foreclosure proceeding in which it purchased the property to rebut appellants’ averments that appellee was not their landlord. See Harold v. Modern Homes Constr. Co., 104 Ga. App. 415, 416-417 (121 SE2d 809) (1961).

2. It is not clear from my reading of the record and briefs in this case that appellee seeks dismissal of the appeal, but it is clear that it does urge this court to find the issue of possession moot by virtue of appellee’s physical possession of the premises. I note initially that if that is the case, the record does not so reflect. Chronologically, the last document shown in the record is appellee’s application for a writ of possession based on appellants’ failure to pay rent into court pending this appeal.

Moreover, even if appellee is correct in its assertion that it is now in physical possession of the premises pursuant to a writ of possession issued because of appellants’ failure to meet the requirements of OCGA § 44-7-56, a trial of the issues on the merits must still be had because the writ was issued at the appellee’s request and at its peril. Hyman v. Leathers, 168 Ga. App. 112, 113 (1) (308 SE2d 388) (1983). Even if tenants have not paid rent into court and consequently have lost possession pending trial, see OCGA § 44-7-54, or pending appeal, see OCGA § 44-7-56, possession of the premises may still be restored to them when the issues are tried or considered on their merits on appeal. That is why the fact that appellee is in physical possession of the premises does not render moot the question of its ultimate legal right to that possession.

Decided July 5, 1991

Reconsideration denied July 23, 1991

Barry K. Thomas, pro se.

Lefkoff, Duncan, Grimes & Dermer, John R. Grimes, for appellee.


text:
    A91A0425.
    OTWELL v. FLOYD COUNTY BOARD OF COMMISSIONERS et al.
    (408 SE2d 799)
   Cooper, Judge.

Appellant, Anne Otwell, filed a pro se petition in the Superior Court of Floyd County against appellees, the Floyd County Board of Commissioners, the county manager, the county attorney, and three of the county’s five commissioners. In her prayer for relief, appellant requested, inter alia, that the case be certified as a class action, that the county attorney be removed, and that an injunction issue to enjoin construction of a government complex. Appellees filed a motion to dismiss the petition on the ground that it failed to state a claim upon which relief could be granted. Appellant filed a motion to dismiss appellees’ motion to dismiss and a motion to replace appellees’ attorney due to an alleged conflict of interest. Following a hearing, the trial court entered an order refusing to certify the class action on the grounds that appellant could not fairly and adequately represent the class. The trial court also entered an order denying appellant’s motion to dismiss appellees’ motion to dismiss, and denying appellant’s motion to replace appellees’ attorney. Finally, the trial court entered an order granting appellees’ motion to dismiss. Appellant subsequently filed a motion for new trial and a motion to set aside the orders entered by the trial court. The court denied the motion to set aside and dismissed the motion for new trial, and appellant brought this pro se appeal.

1. In her first enumeration of error, appellant contends that the trial court erred in allowing appellees’ attorneys to represent appellees because of an alleged conflict of interest. Appellant claims that if the government complex were to be constructed, the property surrounding the complex would increase in value; and since the attorneys representing appellees own property next to the proposed site of the complex, they have a conflict of interest and should be disqualified from representing appellees. The record is devoid of any evidence presented by appellant that appellees’ attorneys did in fact have an interest in the litigation or how appellant and the other citizens she purported to represent would be harmed by the attorneys’ representation of appellees. “Under these circumstances, we cannot agree with [appellant] ‘that such an appearance of impropriety exists here to outweigh (appellees’) interest in being represented by (their) counsel of choice.’ [Cit.]” Rivers v. Goodson, 184 Ga. App. 70 (1) (360 SE2d 740) (1987). “ ‘Absent an abuse of discretion, the trial court’s finding of facts (in orders of disqualification) will not be disturbed on appeal. (Cit.) The question on review is whether there is any evidence to support the trial court’s finding of facts. (Cits.)’ [Cit.]” Southern Shipping Co. v. Oceans Intl. Corp., 174 Ga. App. 91, 94 (2) (329 SE2d 263) (1985).

Decided June 11, 1991

Reconsideration denied July 23, 1991

Anne Otwell, pro se.

Frank H. Jones, William W. Byington, Jr., J. Bryant Durham, Jr., for appellees.

2. In her second and third enumerations of error, appellant contends that the trial court erred in refusing to certify the class action. “It is well established that the discretion of the trial judge in certifying or refusing to certify a class action is to be respected in all cases where not abused. [Cits.]” Hill v. General Finance Corp. of Ga., 144 Ga. App. 434, 436 (1) (241 SE2d 282) (1977). The trial judge found that appellant was neither trained in the law nor licensed to practice law, and that appellant was financially unable to adequately represent the class. We find no abuse of discretion in the trial judge’s findings; therefore, enumerations two and three are without merit.

3. Appellant enumerates as error the trial court’s denial of her motion for new trial. The record reflects that the trial court dismissed appellant’s motion for new trial and stated: “This Court entered an order . . . dismissing appellant’s complaint. Said order was entered on the basis that the complaint failed to set forth a cause of action. Under these circumstances a motion for new trial will not lie.” “While appellant may disagree with the trial court’s legal conclusions, we are constrained to conclude that appellant has pursued the wrong channel of appeal. ‘ “Objections which go to the judgment only, and do not extend to the verdict, cannot properly be made grounds of a motion for new trial. A motion for new trial seeks to set aside the verdict. No new trial is necessary to correct a judgment or decree. If a judgment or decree is erroneous or illegal, direct exception should be taken to it at the proper time.” ’ [Cit.]” Sands v. Lamar Properties, 159 Ga. App. 718, 719 (285 SE2d 24) (1981). Accordingly, we find no error with the trial court’s dismissal of appellant’s 'motion for new trial.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0535.
    E. H. CRUMP COMPANY OF GEORGIA, INC. et al. v. MILLAR.
    (409 SE2d 235)
   Cooper, Judge.

This is the second appearance of this case before this court in an action in which the appellee is seeking to recover, inter alia, commissions which appellee alleged he earned in 1987, pursuant to the terms of an employment agreement with appellant, E. H. Crump Company of Georgia, Inc. (“E. H. Crump”). During the first appearance of this case, this court upheld the trial court’s grant of partial summary judgment to appellee and its ruling that appellee was entitled to receive all unpaid commissions earned prior to August 4, 1987. E. H. Crump Co. of Ga. v. Millar, 194 Ga. App. 687 (391 SE2d 775) (1990) (“Crump I”). Upon return of the remittitur, the appellee filed an application for judgment requesting that the trial court enter a monetary judgment against appellants in accordance with the grant of partial summary judgment. Appellant, E. H. Crump, filed a response to the application for judgment and its own motion for partial summary judgment, contesting the dollar amount of the judgment sought by appellee and seeking a ruling that appellee could not earn any incentive compensation (“commissions”) pursuant to the terms of the employment agreement. Appellants now appeal the trial court’s orders denying the motion for partial summary judgment and entering judgment in favor of appellee in the principal sum of $329,302.82 on the application for judgment.

1. Appellants argue that the trial court erred in denying E. H. Crump’s motion for partial summary judgment because under the terms of the employment agreement, appellee could not have earned any commissions in 1987 unless he had remained employed for the entire calendar year. The trial court, in denying appellants’ motion, rejected appellants’ argument finding that the contract provided otherwise and that the matter had already been decided against defendants.

We first note that ordinarily, a denial of a motion for partial summary judgment would be appealable only if an application for interlocutory review were granted after the trial court certified the matter for immediate review. OCGA § 5-6-34 (b). However, under the holding of Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980), we may consider this enumeration of error along with other issues appealed because it is tied to an appealable order or judgment.

We next consider whether the trial court’s order, upheld by this court in Crump I, specifically resolved the issue of whether appellee earned commissions in 1987. Appellants argue that Crump I merely decided that appellee was entitled to compensation for his services for the period of time prior to August 4, 1987, the date that appellee allegedly breached certain of the provisions of his employment agreement with E. H. Crump and did not decide whether appellee had, under the terms of the employment agreement, actually earned any commissions. We disagree.

The trial court’s order, reviewed by this court in Crump I, stated that “[Appellee] is entitled to those commissions earned during the periods where no breach of contract is alleged. . .. [Appellant] specifically alleges that the breach by [appellee] began August 4, 1987. [Appellee] is hereby granted summary judgment for all commissions earned before this date.” In Crump I, appellants specifically enumerated as error the ruling of the trial court interpreting the employment agreement to allow appellee to receive commissions earned prior to the date he allegedly breached the employment agreement. Although the opinion in Crump I makes no express reference to appellee’s entitlement to commissions for the period prior to August 4, 1987, this court had to necessarily interpret the terms of the employment agreement in order to reach the conclusion that appellee was entitled to receive compensation for the period of time preceding his alleged breach of employment. This conclusion is further bolstered by the dissenting opinion (dissenting only to that portion of Crump I which upheld the trial court’s determination of the date that appellee’s alleged disloyalty first occurred), which carefully analyzed the terms of the employment agreement and concluded that the employment agreement expressly allowed appellee to recover his commissions for the period of time prior to his breach of the employment contract. See Crump I at 692. Therefore, the issue of whether appellee was entitled to commissions under the terms of the employment agreement for the period prior to August 4, 1987, having once been before this court, has become the law of the case. OCGA § 9-11-60 (h). In denying appellants’ motion for partial summary judgment, the trial court correctly applied our previous decision pursuant to OCGA § 9-11-60 (h). Bruce v. Garges, 259 Ga. 268 (2) (379 SE2d 783) (1989); Associated Grocers Co-op. v. Trust Co. of Columbus, 158 Ga. App. 115 (1-2) (279 SE2d 248) (1981). Although we need not address the other basis for the trial court’s denial of appellants’ motion for summary judgment, we do note that the employment agreement clearly and unequivocally provided that “[i]n the event of the [appellee’s] termination of employment for any reason . . . incentive compensation shall be computed as of the end of the month preceding the month in which termination took place. ...” Because of the clear and unambiguous language of the employment agreement, the trial court’s construction of the contract was proper. See generally Long v. City of Midway, 169 Ga. App. 72, 74 (311 SE2d 508) (1983). Accordingly, the trial court’s order denying summary judgment to E. H. Crump is affirmed.

2. Appellants contend that even if the appellee had been entitled to a judgment on the issue of liability for commissions, the trial court erred in entering judgment for appellee in the amount of $329,302.82 because there was no evidence in the record to support the dollar amount of the judgment. Relying on Blue Ridge Ins. Co. v. Maddox, 185 Ga. App. 153 (2) (363 SE2d 595) (1987), appellants argue that the record in the present case was void of any sworn evidence of the amount of the commissions owed appellee.

OCGA § 9-11-56 (c) provides, in part, that summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .” “ ‘ “(T)he court is obliged to take account of the entire setting of the case on a Rule 56 motion. In addition to the pleadings, it will consider all papers of record, as well as any material prepared for the motion that meets the standard prescribed in Rule 56 (e).” (Cit.)’ [Cit.]” Nelson v. Smothers, 164 Ga. App. 112, 113 (296 SE2d 414) (1982). In the present case, we have examined the documents produced by appellants in response to appellee’s request for production of documents, particularly the letter agreement between appellee and Henritze dated October 9,1987, the commission summary attached thereto, the “commission runs” prepared by appellants in the ordinary course of business, and the transcript of the deposition of Henritze and conclude that sufficient evidence existed to support appellee’s claim that he had earned commissions in the amount of $329,302.82 through August 4, 1987. In the absence of evidence to the contrary, we will presume that the trial court reviewed the entire record and verified appellee’s calculations prior to entering its judgment against appellants in the amount of $329,302.82. See generally Smith v. Jones, 154 Ga. App. 629 (1) (269 SE2d 471) (1980); Franklin v. Demico, Inc., 179 Ga. App. 775 (2) (347 SE2d 718) (1986). Accordingly, this enumeration of error is without merit.

3. Appellants further argue that the trial court erred in entering judgment for appellee in the amount of $329,302.82 because the affidavit of David Henritze (“Henritze”), submitted in support of appellants’ motion, created a genuine issue of material fact as to the amount of money due appellee that should have been decided by a jury, and not as a matter of law.

“Evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment. [Cits.]” Biggs v. McDougall, 175 Ga. App. 87, 88 (1) (332 SE2d 381) (1985). Many of the averments contained in the affidavit consisted of Henritze’s conclusory statements interpreting the provisions of the employment agreement to provide that appellee was not entitled to any commissions. “Generalized arguments amounting to mere conclusions have no probative value to pierce the facts presented by the movant for summary judgment. [Cit.]” Jay Gleason &c. v. Gleason, 193 Ga. App. 445 (2) (388 SE2d 43) (1989). See also Freeman v. Pumpco, Inc., 167 Ga. App. 312, 313 (306 SE2d 385) (1983). Moreover, as discussed in Division 1 of this opinion, Henritze’s legal conclusions were incorrect.

Decided June 28, 1991

Reconsideration denied July 23, 1991

Smith, Gambrell & Russell, David A. Handley, Thomas E. McCarter, Stack & Rogers, Ronald W. Rogers, for appellants.

Alembik, Fine & Callner, Bruce W. Callner, Kathy L. Portnoy, Mark E. Bergeson, Webb, Carlock, Copeland, Semler & Stair, David F. Root, for appellee.

The remaining portions of the affidavit alleged that if appellee were held to be entitled to commissions under the employment agreement, appellee would only be entitled to commissions in the amount of $270,522.32, calculated in accordance with a commission summary set forth on an exhibit to the affidavit. To be admissible as business records, the summary must have been shown to be “made in the regular course of . . . business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.” OCGA § 24-3-14 (b). See also Growth Properties of Fla. &c. v. Wallace, 168 Ga. App. 893 (3) (310 SE2d 715) (1983). The Henritze affidavit does not allege that the summaries were made in the regular course of business and could not so allege, as it appears that the summaries were specifically created for use in this litigation. Therefore, the summaries attached to the affidavit would not be admissible as evidence in the motion for summary judgment and need not have been considered by the trial court. Goss v. Mathis, 188 Ga. App. 702 (373 SE2d 807) (1988). Appellants’ affidavit failed to create a genuine issue of material fact to dispute the amount of commissions claimed by appellee to be owed him under the employment agreement.

4. The appellee’s motion for the assessment of a penalty against the appellants pursuant to OCGA § 5-6-6 for filing a frivolous appeal is denied.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.