text:
    A95A2703.
    PARKER v. THE STATE.
    (469 SE2d 410)
   Andrews, Judge.

Anthony Parker was convicted by a jury of aggravated sodomy, possession of a firearm during the commission of a crime, two counts of aggravated assault, and two counts of simple battery. He appeals from the judgment entered on the convictions.

All of the charges stemmed from a series of incidents which occurred at the victim’s house on the evening of June 28, 1990. The victim testified that Parker, her boyfriend at the time, violently attacked her and threatened to kill her. She testified that Parker repeatedly struck her in the face with his fists, choked her, threatened to stab her through the heart with a pair of scissors, and held a gun to her head while threatening to kill her. The victim further testified that, immediately after these events, and while the gun was within his reach, Parker forced her against her will to put his penis in her mouth.

Physicians who examined the victim shortly after the attack testified that she had contusion and abrasion injuries to her head and face and tenderness around her neck. A police officer testified that he observed the victim at the hospital the evening of the attack and that her face was swollen. The State also produced similar offense evidence and evidence of prior difficulties between the victim and Parker. Parker testified and denied all the charges. He claimed the victim received her injuries when she got into a fight with another woman at a local grocery store.

1. On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and the evidence is viewed in a light most favorable to the verdict. Grier v. State, 218 Ga. App. 637, 638 (463 SE2d 130) (1995). This Court does not assume the jury’s role as factfinder by weighing the evidence or by determining the credibility of witnesses, but only determines whether the evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), for a rational trier of fact to find Parker guilty of the charged offenses beyond a reasonable doubt. The evidence was sufficient under this standard to support Parker’s conviction on all the charges. Id.

2. Parker claims his Sixth Amendment right to assistance of counsel was violated when, after he completed his direct testimony at the conclusion of proceedings on a Friday afternoon, the trial court ordered defense counsel not to consult with him about his ongoing testimony during the weekend recess of the trial.

In Geders v. United States, 425 U. S. 80 (96 SC 1330, 47 LE2d 592) (1976), the Supreme Court held that the defendant’s Sixth Amendment right to assistance of counsel was denied by a court order prohibiting any consultation between the defendant and his attorney during an overnight recess which occurred during the defendant’s ongoing testimony. In Perry v. Leeke, 488 U. S. 272 (109 SC 594, 102 LE2d 624) (1989), however, the Supreme Court decided the Geders rule did not apply to a similar order entered by the trial court prior to a brief 15-minute recess taken during the defendant’s ongoing testimony. In Perry, the Court stated that the defendant there had no constitutional right to confer with defense counsel to discuss his ongoing testimony and held that “just as a trial judge has the unquestioned power to refuse to declare a recess at the close of direct testimony — or at any other point in the examination of a witness — we think the judge must also have the power to maintain the status quo during a brief recess in which there is a virtual certainty that any conversation between the [defendant] witness and the lawyer would relate to the ongoing testimony.” Id. at 283-284. The rule is designed to prevent unethical “coaching” or other improper influence on the witness during ongoing testimony. Id. at 282-283. Accordingly, the Court in Perry found that the order prohibiting consultation between the defendant and his attorney during the brief recess did not violate the defendant’s Sixth Amendment right to assistance of counsel. In so holding, the Court noted that the contrary holding in Geders was based on a concern that during a long recess any consultation between the defendant and defense counsel would normally encompass matters beyond the defendant’s ongoing testimony, which the defendant had a constitutional right to discuss with his attorney. Id. at 284. The Court in Perry concluded that: “It is the defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess. [Geders, supra at 88]. The fact that such discussions will inevitably include some consideration of the defendant’s ongoing testimony does not compromise that basic right.” Perry, supra at 284.

Here, in response to a motion by the prosecutor, the trial court prohibited consultation between Parker and his attorney over the weekend recess only with respect to Parker’s ongoing testimony. Since the order applied to a weekend recess, the Geders rule applicable to consultation during long recesses controls. Assuming the Geders rule provides for unrestricted access even as to the defendant’s ongoing testimony, there is nothing in the record showing that Parker or his attorney indicated a desire to confer over the weekend recess but were prevented from doing so by the trial court’s order. In fact, defense counsel made no objection to the motion and told the trial court there were no plans for any consultation between him and Parker over the weekend recess. “We conclude that a defendant or the defendant’s counsel must indicate, on the record, a desire to confer in order to preserve a deprivation of assistance of counsel claim.” Crutchfield v. Wainwright, 803 F2d 1103, 1109 (11th Cir. 1986). In the absence of any such indication, we find no deprivation of the defendant’s Sixth Amendment right to assistance of counsel. Parker’s testimony at the motion for new trial hearing that he wanted to confer with defense counsel over the weekend recess was given long after the fact and does not serve to resurrect this claim.

3. Parker claims the trial court erred when, during jury deliberations, the jury sent a written question to the court, and the court sent a written response to the jury without consulting defense counsel.

The record contains a copy of a written note from the jury asking whether or not they could have Parker’s written statement as evidence and a written response from the trial court stating: “No — the statement in written form cannot be given to you.” There is no transcript of the proceedings relating to this inquiry and response, and nothing is in the record showing whether or not the trial court brought the jury’s inquiry to the attention of defense counsel. At best, the testimony and colloquy at the hearing on the motion for a new trial showed a lack of recollection as to these events.

Parker has the burden on appeal to show error by the record. State v. O’Quinn, 192 Ga. App. 359, 360 (384 SE2d 888) (1989). The record was not supplemented by any of the methods provided in OCGA § 5-6-41 to establish the facts relating to this claim. Since the record is not sufficient for consideration of this enumeration, we find no error.

4. Parker claims the trial court erroneously admitted evidence of similar transactions.

The trial court conducted a pre-trial hearing at which the State made an affirmative showing establishing the admissibility of prior similar offenses committed by Parker against three of his ex-girl friends. The only objection made by Parker prior to trial was that the prior offenses were not sufficiently similar to the present offenses. Since no objection was made when the similar transaction evidence was introduced at trial, this claim was waived. Hunter v. State, 202 Ga. App. 195, 197-198 (413 SE2d 526) (1991). In any event, there was sufficient similarity between the prior offenses admitted by the trial court and the crimes charged such that proof of the former tended to prove the latter. Campbell v. State, 263 Ga. 824, 825 (440 SE2d 5) (1994); Obiozor v. State, 213 Ga. App. 523, 526 (445 SE2d 553) (1994). We will not address other claims of error made on appeal but not raised in the trial court.

5. Parker claims the trial court erred by admitting evidence of prior difficulties between him and the victim.

We find no error. In the first place, since no objection was made at trial when this evidence was introduced, any such claim was waived. Toney v. State, 216 Ga. App. 240, 241 (453 SE2d 813) (1995). Even if these claims had been preserved for appellate review, there is no merit to Parker’s claim that admission of prior difficulties evidence is limited to murder cases (Sloan v. State, 214 Ga. App. 784, 785 (449 SE2d 328) (1994)), and no merit to the claim that the requirements of Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), were not complied with in the introduction of prior difficulties and similar transactions evidence. See Maxwell v. State, 262 Ga. 73, 74-75 (414 SE2d 470) (1992). This case was tried in 1990 prior to the Williams, supra, decision which, nevertheless, is given retroactive effect. Ramirez v. State, 205 Ga. App. 217, 218 (422 SE2d 3) (1992). Even if the trial court did not make specific rulings on the record that each of the elements enunciated in Williams for admission of the evidence was satisfied, there was no harmful error because the evidence was sufficient for the trial court to have concluded that the Williams requirements were satisfied. Morales v. State, 210 Ga. App. 414, 416 (436 SE2d 528) (1993).

6. Parker claims his convictions must be reversed because his trial counsel was ineffective in: (a) failing to object to character evidence; (b) failing to investigate the crime scene; (c) failing to prepare him to testify; (d) failing to object to or investigate the chain of custody of certain evidence; (e) failing to investigate or defend against similar transaction and prior difficulties evidence; (f) failing to object to the trial court’s order prohibiting him from consulting with counsel; (g) failing to present mitigating evidence during the sentencing portion of the trial; (h) failing to discover and object to the trial court’s response to a note from the jury; (i) failing to call witnesses mentioned in the opening statement; (j) improperly waiving and otherwise failing to ensure his presence at critical stages of the trial; and (k) failing to object to the trial court’s improper charges and comments on the evidence.

The Sixth Amendment right to assistance of counsel also guarantees a criminal defendant the right to effective assistance of counsel. Black v. State, 264 Ga. 550 (448 SE2d 357) (1994). In order to obtain the reversal of a conviction on a claim of ineffectiveness of counsel, a defendant has the burden of proof under both prongs of the test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Zant v. Moon, 264 Ga. 93, 97 (440 SE2d 657) (1994). Under Strickland, supra, the defendant must prove: (1) counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced the defense. In determining whether or not counsel’s performance was deficient under the first prong, a court must measure counsel’s performance against an objective standard of reasonableness in light of all the circumstances and apply the strong presumption that all of counsel’s significant decisions were made in the exercise of reasonable professional judgment. Strickland, supra; Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985). Under the second prong, the test is whether there was a reasonable probability that the outcome of the proceedings would have been different but for counsel’s deficient performance. Id. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.” Williams v. State, 214 Ga. App. 106 (446 SE2d 789) (1994). We apply these standards to each of the claims of ineffectiveness.

As to the claim that trial counsel failed to object to the admission of improper evidence of Parker’s character, we find no citation of authority, no argument, and no reference to the record addressed to this claim. Accordingly, we deem this claim abandoned. Court of Appeals Rule 27 (c). To the extent Parker may be generally referring to the admission of similar transaction and prior difficulties evidence, this evidence was properly admitted, and there is no merit to the claim. See Divisions 4 and 5.

Parker claims trial counsel failed to investigate the crime scene and, thus, failed to determine whether the physical condition of the premises supported the victim’s testimony that she was violently attacked. The victim testified that Parker damaged some items in her house months prior to the present attack and that, during the present attack, she bled on the carpet when her finger was cut. Even if trial counsel could have conducted a more complete investigation, we find no basis for reversing the convictions on the possibility that an investigation of the victim’s house may have shown the absence of damage which occurred months prior to the present charges or the absence of blood on the floor from the cut sustained by the victim. There was no showing that trial counsel’s investigation fell below an objective standard of reasonableness, or, even if it did, that there was a reasonable probability that the outcome of the case would have been different but for the alleged deficiencies.

Parker claims trial counsel failed to prepare him to testify. Defense counsel testified at the hearing on the motion for a new trial that he met with Parker four times prior to trial for at least five hours during which he discussed defense strategy and Parker’s testimony. We find no merit to this claim of ineffectiveness.

As to the claim that defense counsel failed to object to or investígate the chain of custody of certain evidence, Parker has provided no references to the record, no substantive argument, and no citation of authority in support of this claim. Accordingly, it is deemed abandoned. Court of Appeals Rule 27 (c).

Parker claims trial counsel failed to investigate or defend against similar transaction and prior difficulties evidence. The only citation to the record and argument made by Parker in support of this claim relates to his assertion at the motion for new trial hearing that trial counsel failed to investigate and raise the fact that one of his ex-girl friends, who gave similar transaction testimony about a prior assault, initially lied to the police about an incident involving him. Parker claims trial counsel should have obtained the testimony of the police officers involved to impeach the witness. There is no merit to this ineffectiveness claim. Defense counsel used the police report on cross-examination of the witness to demonstrate that she lied to the police, and Parker did not demonstrate that testimony from the police officers would have added anything further.

Parker claims trial counsel was ineffective for failing to object to the trial court’s order prohibiting him from consulting with counsel over the weekend recess about his ongoing testimony. Even if defense counsel could have objected and argued that Parker was entitled to unrestricted access to counsel over the weekend recess (see Division 2), there is no indication in the trial record that there was any desire or request for any such communication over the weekend recess. Accordingly, there has been no showing that any such deficiency had the effect of denying access to counsel or that there was a reasonable probability that the outcome of the proceedings would have been different but for counsel’s deficient performance.

Parker claims trial counsel was ineffective in failing to present mitigating evidence during the sentencing phase of the trial. Although defense counsel offered no witnesses, he called the court’s attention to evidence that Parker had two children, that he had been working and had been educated through two years of college, and that he had earned an honorable discharge after serving three years in the United States Marine Corps. Parker testified at the sentencing phase that he did not commit any of the offenses for which he had just been convicted. At the hearing on his motion for new trial, Parker testified that he had family members, friends, or employers who could have testified in mitigation of his sentence about “what kind of person I am in relationships . . . knowing I work . . . my conduct in the community . . . anything to show that [I am] not as bad a person as the State’s portraying [me] to be . . . [and] the kind of person I am in general.” The trial judge who sentenced Parker heard this description of the mitigating evidence Parker said should have been presented and found no basis for concluding that counsel was ineffective. We find no reason to conclude this decision was clearly erroneous. See Baines v. State, 201 Ga. App. 354, 355 (411 SE2d 95) (1991).

Parker claims trial counsel was ineffective for failing to discover and object to the trial court’s response to a note from the jury. In the absence of any transcript of the proceedings related to this claim and the lack of any record established pursuant to OCGA § 5-6-41, the record is not sufficient to address the claim. See Division 3.

Parker contends trial counsel promised in the opening statement to present testimony from a witness who was never called to testify. The witness at issue was a person Parker said might have assaulted the victim. Trial counsel testified at the new trial hearing that he was unable to locate this witness despite using a private investigator, that he never mentioned the witness in opening statement, and he never stated he would call him as a witness. The opening statements of counsel were not part of the record. Parker also claims trial counsel was ineffective for failing to call the victim’s next door neighbor as a witness because she could have corroborated Parker’s claim that no physical altercation occurred between him and the victim. Parker did not produce this witness at the new trial hearing to substantiate this claim, and the witness’s statement given to defense counsel prior to the trial and defense counsel’s testimony at the new trial hearing about the witness indicated that the witness had a vague recollection of the events and could not say whether or not the man she saw was Parker. There is no basis for reversing the trial court’s conclusion that trial counsel was not ineffective for failing to call these witnesses.

Parker claims trial counsel improperly waived and otherwise failed to ensure his presence at critical stages of the trial. The record reflects that, during a break in the trial, it was brought to the trial court’s attention that, while a juror was using the telephone, he may have had the opportunity to hear some comments about the case. With defense counsel and the prosecutor present, the trial court asked the juror if he had heard any comments about the case while he was using the phone and the juror replied that he had not heard anything. Parker was not present when the juror was questioned because defense counsel waived his presence. Pretermitting whether this brief exchange was a critical stage at which Parker had a right to be present, we find no basis for concluding that defense counsel’s failure to insist on Parker’s presence had any reasonable probability of causing a different outcome in the case. Parker also testified from memory that he believed he was not present when the trial court questioned the jury about the status of ongoing deliberations. Given defense counsel’s testimony that he had no recollection of Parker’s absence during that period, and the lack of any support in the record for Parker’s claim that he was not there, we find no error in the trial court’s ruling that counsel was not ineffective on this basis.

Although Parker also claims trial counsel was ineffective for failing to object to the trial court’s charges to the jury and alleged comments on the evidence, he provides no argument, citation of authority, or references to the record in support of these claims. They are deemed abandoned. Court of Appeals Rule 27 (c).

7. Parker’s claim that his constitutional rights were violated when the trial court sentenced him to life imprisonment on the aggravated sodomy conviction were raised for the first time in his motion for new trial. These claims “cannot be raised for the first time in a motion for new trial but must be made at the first opportunity, either in pleadings, objections to evidence, or in some other appropriate way pending the trial.” Woods v. State, 222 Ga. 321 (149 SE2d 674) (1966). Since these constitutional claims were not timely raised and ruled upon by the trial court, they conferred no jurisdiction upon the Supreme Court and present nothing for appellate review in this Court. Harper v. State, 213 Ga. App. 611, 612 (445 SE2d 300) (1994); Maynard v. State, 217 Ga. App. 344, 345 (457 SE2d 253) (1995).

8. Parker claims the trial court erroneously allowed the State to improperly place his character into evidence.

During the State’s direct examination of the witness, in response to a question from the prosecutor about how many times a week Parker would call her, the witness testified that Parker “had a history of violence [and] had recently gotten out of jail.” Defense counsel objected and moved for a mistrial. The trial court denied the motion for a mistrial and immediately instructed the jury to disregard those comments by the witness. The trial court did not abuse its discretion in determining that a mistrial was not necessary under the circumstances to preserve Parker’s right to a fair trial. Stanley v. State, 250 Ga. 3 (295 SE2d 315) (1982).

9. Parker contends his right to due process, equal protection, confrontation, effective appellate counsel, and direct appeal were violated because the transcript of the proceedings in the trial court does not fully and accurately reflect what occurred below. Appellate counsel has abandoned most of these claims by failing to support them with argument or citation of authority. Court of Appeals Rule 27 (c). Nevertheless, this enumeration of error has no merit. Since Parker, through his appellate counsel, has not attempted to establish what he claims the record should reflect by any of the methods provided in OCGA § 5-6-41, we will not presume error. See Southerton v. State, 205 Ga. App. 366, 367 (422 SE2d 251) (1992).

10. Parker claims the trial court erroneously allowed a physician to testify over defense objection as to statements made by the victim to him during his examination of the victim at the hospital in which the victim described the attack and stated Parker was the attacker. There was no error. “[WJhere the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible.” Edwards v. State, 255 Ga. 149, 151 (335 SE2d 869) (1985); Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985).

11. Parker claims the trial court erroneously admitted an audio tape of threatening telephone messages the victim claimed Parker left on her answering machine. He claims no proper foundation was laid for admission of the tape, the admitted tape was incomplete and inaccurate because parts of it were unintelligible, and the complete tape was not admitted.

As to the claim that portions of the tape were unintelligible, this objection was not made in the trial court and will not be considered for the first time on appeal. The only objection made by defense counsel at trial to the admissibility of the tape was that the trial court should have admitted not only the portion of the tape reflecting numerous messages the victim testified were left by Parker, but also a subsequent message on the same tape left by another man stating he would like to meet with the victim. Defense counsel argued that the subsequent message was relevant for purposes of impeaching the credibility of the victim by showing that another man had called her. As the victim had never contended otherwise, we find no error in the trial court’s conclusion that the subsequent message was not relevant for this purpose. The trial court correctly concluded that a proper foundation was laid for admission of the recorded messages. Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207, 211-212 (88 SE2d 167) (1955).

12. Parker claims the trial court erred in conducting a critical stage of the trial when he was not present.

A question was raised as to whether a juror who was making a telephone call during a break in the trial may have had the opportunity to overhear comments about the case. The trial court conducted a brief hearing at which only the juror, the prosecutor, and defense counsel were present. The trial court asked the juror if he had heard any comments about the case, and the juror said he had heard nothing about the case. Parker was not present at the brief hearing. The record reflects that, prior to asking the juror the question, the following colloquy occurred between the trial court and defense counsel: “Defense Counsel: And we need Mr. Parker. Trial Court: Oh, yes. Where is he? . . . Would you waive Mr. Parker’s presence at this point? Or would you rather have him here? Defense Counsel: I’ll waive it.”

“It is the legal right of a person accused of a crime in this State to be present at all stages of his trial. . . .” Wilson v. State, 212 Ga. 73, 74 (90 SE2d 557) (1955). Although a defendant can personally waive this right, in order for a waiver by the defendant’s counsel to be binding on the defendant, defense counsel’s waiver must be made in the defendant’s presence, or by the defendant’s express authority, or the defendant must subsequently acquiesce in- the waiver. Id. at Ills.

Parker testified at the new trial hearing that he was not present at the brief hearing and that he did not give defense counsel permission to waive his presence. Defense counsel was questioned at the hearing about the waiver of Parker’s presence and was asked if he brought the colloquy he had with the court to Parker’s attention after he returned. Defense counsel testified that since it was his normal policy to ensure the defendant’s presence at all times, he would have informed Parker of what happened when he returned. Parker did not contradict defense counsel’s testimony. Accordingly, there was evidence upon which the trial court could conclude that defense counsel immediately informed Parker that the trial court requested and counsel agreed to waive his presence at the brief hearing. There is no evidence that Parker subsequently indicated any objection to the waiver until he raised the issue in his motion for new trial. Pretermitting whether this brief hearing was a critical stage of the trial at which Parker had a right to be present (see Smith v. State, 209 Ga. App. 699, 700 (434 SE2d 528) (1993); Stone v. State, 177 Ga. App. 750, 751 (341 SE2d 280) (1986)), we find the evidence was sufficient to support a finding that Parker knew about the hearing and the waiver and acquiesced in the waiver by failing to repudiate it at the first opportunity. See Allen v. State, 199 Ga. App. 365, 368 (405 SE2d 94) (1991); Wilson, supra at 78. Accordingly, the denial of the motion for new trial on this basis should not be disturbed. Allen, supra at 368.

13. Parker contends the trial court erroneously ignored the requirements of OCGA § 17-10-2 during the pre-sentencing hearing.

He does not contend the State failed to notify him of its intention to use three prior convictions in aggravation of punishment. Nevertheless, he claims the trial court erred in considering the convictions at the sentencing hearing because, after being tendered by the State, they were not formally admitted into evidence. Although apparently through inadvertence the tendered exhibits were not formally admitted, Parker did not object, they are a part of the record on appeal, and they were apparently treated as evidence at the sentencing hearing. Under these circumstances, we find no error in the trial court’s consideration of the prior convictions. Bryson v. State, 210 Ga. App. 642, 644 (437 SE2d 352) (1993); Clayton v. State, 149 Ga. App. 374, 375 (254 SE2d 495) (1979). Contrary to Parker’s contentions, there was no error in the trial court’s consideration of any evidence properly admitted in the guilt-innocence phase of the trial in determining the sentence. Boney v. Tims, 254 Ga. 664, 665 (333 SE2d 592) (1985).

14. There is no merit to Parker’s contention that the offenses of aggravated assault by use of a handgun and aggravated sodomy merged as a matter of fact. The evidence clearly shows the commission of two separate and distinct offenses — aggravated assault when Parker placed the gun to the victim’s head and threatened to kill her, followed by aggravated sodomy when Parker put the gun down and forced the victim to put his penis in her mouth. Gilbert v. State, 176 Ga. App. 561, 562 (336 SE2d 828) (1985); Taylor v. State, 202 Ga. App. 671 (415 SE2d 483) (1992). Parker has abandoned his claim that the two crimes merged as a matter of law. Court of Appeals Rule 27 (c).

15. Parker contends the trial court erroneously used the phrase “to a moral and reasonable certainty” in its charge to the jury dealing with reasonable doubt. The trial court gave the same charges during this 1990 trial which were later disapproved in Vance v. State, 262 Ga. 236, 237-238 (416 SE2d 516) (1992). Although the better practice is to omit any references to a “moral and reasonable certainty,” there was no reversible error because the charge viewed in its entirety “repeatedly and accurately conveyed to the jury the concept of reasonable doubt.” Id. at 237; Caldwell v. State, 263 Ga. 560, 563-564 (436 SE2d 488) (1993); Armstrong v. State, 265 Ga. 18, 19 (453 SE2d 442) (1995).

16. Parker claims the trial court: (a) improperly made comments to the jury which expressed an opinion in the case in violation of OCGA § 17-8-57, and (b) erroneously charged the jury on evidence of prior difficulties just prior to the introduction of this evidence during the course of the trial.

Parker’s claim that the trial court commented on the victim’s testimony in a manner that violated OCGA § 17-8-57 by expressing an opinion as to what had been proved or as to Parker’s guilt is patently without merit. The record shows that, as an introduction to the court’s instructions to the jury on evidence of Parker’s prior difficulties with the victim, the trial court simply reminded the jury that they had heard testimony from the victim about events presently at issue. There was no error.

Since no objection was made in the trial court to the instructions given immediately prior to introduction of the prior difficulties evidence, this claim cannot be raised for the first time on appeal. Harrison v. State, 213 Ga. App. 366, 367 (444 SE2d 613) (1994).

17. Parker claims the trial court: (a) committed error in its instructions to the jury on similar transaction evidence given immediately prior to the admission of this evidence during the course of the trial, and (b) erred in refusing to give his request to charge no. 5 on similar transactions during the court’s instructions to the jury after the close of the evidence.

Since no objection was made in the trial court to the instructions given immediately prior to introduction of the similar transaction evidence, this issue cannot be raised for the first time on appeal. Harrison, supra at 367.

Decided February 21, 1996

Zion, Tarleton & Siskin, Jonathan J. Wade, for appellant.

J. Tom Morgan, District Attorney, Desiree L. S. Peagler, Gregory J. Lohmeier, Robert M. Coker, Assistant District Attorneys, for appellee.

The trial court adequately charged the jury after the close of evidence as to consideration of the similar transaction evidence. Accordingly, there was no error in the court’s refusal to give Parker’s requested charge.

18. Contrary to Parker’s contentions, the trial court did not err by giving the State’s requested charges on similar transactions which Parker admits were correct statements of the applicable law.

19. Parker contends the trial court failed to instruct the jury to separately consider his guilt or innocence on each offense charged in the indictment.

There is no merit to this claim. The trial court instructed the jury as to the elements of each offense Parker was charged with under each count of the indictment. The court also instructed the jury that it must consider each count of the indictment individually and that the State had the duty of proving Parker’s guilt beyond a reasonable doubt as to each of the separate counts.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A2448.
    AMERICAN CAR RENTALS, INC. et al. v. WALDEN LEASING, INC.
    (469 SE2d 431)
   Beasley, Chief Judge.

Walden Leasing, Inc. (“Walden”) sued American Car Rentals, Inc. and its five personal guarantors (“American”) for allegedly failing to make timely payments pursuant to a motor vehicle lease agreement into which the companies had entered two years earlier. Walden’s complaint sought all unpaid amounts under the lease agreement and the related vehicle lease orders as well as reasonable costs and attorney fees.

American counterclaimed for breach of contract, disparagement, and tortious interference with American’s business opportunities and relationships. It claimed that Walden’s failure to provide the automobiles it ordered in a timely manner destroyed American’s ability to conduct business and to maintain its customer base. American contended that Walden breached oral agreements by reclaiming the leased vehicles before American had an opportunity to obtain replacement vehicles, thereby effectively destroying American’s car rental business. It also asserted that as a result of Walden’s disparaging remarks, American’s franchisor cancelled American’s line of credit, making it impossible for American to obtain automobiles to replace those reclaimed by Walden.

The trial court granted Walden’s motion to dismiss American’s counterclaim and ordered the parties to arbitration. In American Car Rentals v. Walden Leasing, 215 Ga. App. 621 (451 SE2d 537) (1994), this Court vacated the trial court’s order because of procedural error for failure to comply with OCGA § 9-11-56. Thereafter, following a summary judgment motion hearing, the trial court granted summary judgment to Walden on American’s counterclaim and ordered the case to arbitration.

1. American urges that summary judgment was precluded by unresolved questions of material fact.

(a) The record shows that Walden as lessor and American as lessee entered into a motor vehicle lease agreement (“Agreement”) under which Walden leased vehicles to American for American’s car rental business. In connection with the Agreement, the parties executed vehicle lease orders (“VLO’s”) describing which vehicles were being leased and the amounts due as monthly lease payments. The Agreement included previously existing VLO’s and provided for subsequently executed VLO’s. When American’s business fluctuated and it needed more automobiles, it would contact Walden and request specified additional vehicles. Walden would then attempt to fill American’s request and a delay might ensue if the requested vehicles were not available. Only when Walden was able to satisfy American’s request did the parties then complete their transaction and execute a VLO.

According to the Agreement, Walden could not be held liable for a late delivery or a failure to deliver the number and type of vehicles American requested because American waived all rights provided by Uniform Commercial Code sections 2A-508 through 2A-522, including the right to cover, the right to substitute goods, and the right to damages for non-delivery. In addition, the Agreement seeks to insulate Walden from any claim relating to delivery delays as follows: “The Lessor shall not be liable to the Lessee for the failure to deliver any Vehicle leased hereunder for any reason.” Also, the Agreement prohibits oral modifications as follows: “This instrument, and the duly executed Vehicle Lease Order (s), and other addenda attached hereto, constitute the entire agreement between the parties, and may be modified only in writing duly executed by both parties.”

To avoid the plain terms of the Agreement, American seeks to characterize its requests for vehicles and Walden’s efforts to supply vehicles as oral agreements not subject to the Agreement. American claims that a regular course of conduct developed between the parties through which Walden extended the term of leases in order to mitigate American’s injury when Walden failed to perform under the contracts entered for specific numbers of vehicles, at specific prices for delivery, on specific dates. American contends that a new and different oral contract thereby replaced any earlier agreement and that the Agreement’s written modification requirement did not apply because the parties modified their agreement through their regular business practices.

“Waiver of a written modification requirement in a contract may be established through the course of conduct between the parties. [Cit.]” Caribbean Lumber Co. v. Anderson, 205 Ga. App. 415, 417, n. 1 (422 SE2d 267) (1992). Although parties can modify their agreement through their course of conduct and regular business practices, American has failed to prove that occurred here. Instead, the record shows that the parties proceeded according to the terms of the Agreement and routinely executed VLO’s. The Agreement specifically provided for subsequent leasing agreements whereby American could lease vehicles from Walden on an as-needed basis.

The plain contract language of the Agreement is clearly inconsistent with any oral guarantees or oral commitments to deliver vehicles by particular dates or to extend the leasing period. Moreover, the Agreement contains a waiver clause protecting- Walden from any failure to insist on the performance of any term or condition. Even if Walden agreed to a temporary extension of a lease term, it did not waive its rights under the Agreement to later elect its remedy, including taking immediate repossession of the vehicles. In addition, according to paragraph 2 (H) of the standard VLO, “Unless the Lessee and the Lessor have agreed to enter into a Lease Term Extension Option under a Schedule ‘O’ to this VLO, the Lessee has no option to renew or extend the lease term of a Vehicle.”

By the merger of any alleged oral agreements into the Agreement or by the application of the parol evidence rule, however, any such alleged oral representations, assuming they occurred, were not enforceable. See OCGA §§ 11-2A-202; 13-2-2; Harden v. Orr, 219 Ga. 54, 56 (1) (131 SE2d 545) (1963).

(b) In the consolidated pretrial order, American stated it was seeking “damages for lost profits, both past and future.” The express terms of the Agreement limit American’s remedies to only actual and direct damages: “The lessee (American) agrees that the lessee’s sole and exclusive remedy for any matter or cause of action related directly or indirectly to any breach by the lessor (Walden) of this lease agreement shall be a cause of action sounding in contract, and with damages limited to actual and direct damages incurred. Under no event shall the lessor be liable for any consequential, special, exemplary, punitive, incidental or indirect damages, including without limitation, loss of profit or goodwill.” Paragraph 11 (E). A clause excluding the recovery for consequential damages is valid and enforceable, unless prohibited by statute or public policy. Mark Singleton Buick v. Taylor, 194 Ga. App. 630, 633 (2) (391 SE2d 435) (1990). There is no applicable prohibition.

American seeks to avoid the limitation of damages provision on the ground that the alleged oral contracts which are the subject of the counterclaim preceded the formation of the written contract containing the limitation language. As discussed above, the purported oral agreements were not enforceable. Moreover, the Agreement explicitly bars recovery for consequential damages and American has failed to show that any of the VLO’s permitted recovery for lost profits. American cannot recover what is expressly disallowed by the contractual language of the Agreement it signed.

2. Finally, American contends the court erred in ordering the case to be submitted to binding arbitration in Minnesota after the parties knowingly, wilfully and voluntarily waived the contractual provisions pertaining to binding arbitration and elected to proceed to jury trial.

At the outset, we reject Walden’s contention that this Court lacks jurisdiction over the trial court’s order directing the parties to binding arbitration due to the absence of a certificate for immediate review, as required by OCGA § 5-6-34 (b). “Section 5-6-34 (d) is . . . broad enough to permit a party to raise on the appeal of a directly appeal-able order issues regarding an order that, standing alone, is subject to the application requirements of § 5-6-35.” Martin v. Williams, 263 Ga. 707, 709 (3) (438 SE2d 353) (1994). This serves to avoid piecemeal review. To the extent our decision in the earlier appeal in this case implies the contrary, it is overruled. In the case cited by Walden, Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488, 490 (299 SE2d 538) (1983), the only matter appealed was the trial court’s denial of appellant’s motion to stay judicial proceedings pending arbitration. That appeal thus required adherence to the interlocutory procedure.

It is undisputed that the Agreement requires binding arbitration. American claims that both parties by their conduct from the outset of the dispute, continuously and unambiguously abandoned the arbitration clause, thereby rendering it inapplicable. “ ‘An agreement to arbitrate is waived by any action of a party which is inconsistent with the right of arbitration. (Cits.)’ McCormick-Morgan, Inc. v. Whitehead Elec. Co., 179 Ga. App. 10, 13 (345 SE2d 53) (1986).” Tillman Group v. Keith, 201 Ga. App. 680 (411 SE2d 794) (1991).

Decided February 22, 1996

Evert & Weathersby, Michael N. Weathersby, for appellants.

Lamberth, Bonapfel, Cifelli, Wilson & Stokes, Gary D. Stokes, Stuart F. Clayton, Jr., for appellee.

Walden initiated the legal action instead of proceeding to arbitration. Its complaint does not seek arbitration or even mention it. At no point did Walden file a motion to compel arbitration or to stay the court proceedings to await arbitration. Before the case reached this Court the first time, Walden stipulated it to the active jury list for trial, did not object to the court order placing it on the ready list, and all parties participated in a pretrial conference which resulted in a consolidated pretrial order never referencing arbitration.

The case has been pending since January 1993 and proceeded twice to the appellate level. By taking actions inconsistent with the arbitration clause, the parties waived that provision. Weyant v. MacIntyre, 211 Ga. App. 281, 283 (3) (438 SE2d 640) (1993). See Nat. Parents’ Resource Institute &c. v. Peachtree Hotel Co., 201 Ga. App. 637, 638 (2) (411 SE2d 884) (1991) (holding arbitration clause may be repudiated, waived or abandoned by either or both parties to a contract). Consequently, the trial court’s ruling on arbitration is reversed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. Blackburn, J., concurs in the judgment only.

       Although American raised tort claims in its counterclaim, it failed to pursue those claims in its response to Walden’s motion for summary judgment.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A2451.
    BROWN v. AMERSON et al.
    (469 SE2d 723)
   Andrews, Judge.

Brown’s wife slipped and fell in the parking lot of the branch of Great Southern Federal Savings and Loan Association (Great Southern) located in the Summit Center Shopping Center (Summit Center). Brown sued the owners of Summit Center for loss of consortium with his wife resulting from the fall, claiming the defendant owners negligently failed to keep the premises in a safe condition for invitees. Brown appeals from the trial court’s grant of summary judgment in favor of the defendants.

Mrs. Brown deposed that she was going to transact business at the Great Southern branch at Summit Center. She parked her car in a parking space adjacent to the branch office, got out of her car, took one step toward the office, and slipped and fell and broke her ankle. She testified it was misty at the time and that she slipped on the pavement on a “combination of moisture and oil from the previous cars parked there.” When asked how she knew that was what she slipped on, she responded: “Well, it was misting that day and I do have knowledge that when there is moisture in the air and on the pavement that oil from parking lots and asphalt go straight to the top.” When asked if she was able to observe anything that caused her to slip and fall, Mrs. Brown said, “No.” Upon further questioning, she admitted she did not know specifically what caused her to slip and fall.

“Q: I think you told me that you don’t know specifically what it was that caused you to fall on this occasion? A: I don’t know specifically, no. Q: And you didn’t — what I mean by that is you didn’t look down and see something and observe and say that’s what I —. A: No, I didn’t. Q: And do you know whether there was a hole in the pavement or if there was just a surface there that was slippery? A: At the time of the fall? Q: Right. A: No.”

Mrs. Brown further testified that she was not looking down at where she stepped when she slipped and fell and that she did not know exactly where in the parking lot she slipped and fell. She was only able to identify a ten- to fifteen-foot-wide area in the parking lot where she believed she slipped and fell.

After his wife’s deposition, and in response to the defendants’ motion for summary judgment, Brown filed an affidavit from his wife in which she stated that, “I slipped because the moisture and oil which had accumulated on the pavement made the pavement extremely slippery. . . She further explained in her affidavit that, when she said in her deposition that she did not know specifically what caused her to slip, “I was trying to state and at that time understood that I was communicating that I did not know what caused my fall more specifically than I had testified to already during the deposition.” The affidavit continued: “That is, the extreme slipperiness of the parking lot caused by the accumulated oil and water on it caused my fall. My understanding of the questions asked at the deposition was that they sought information as to whether some other specific thing or item in the parking lot, besides the general extreme slipperiness, was the cause of my fall. I could not identify any other such cause because I did not see any other thing which could have been the cause.” Mrs. Brown further stated in her affidavit: “[W]hile I appreciated some risk due to the misting conditions and the usual presence of some oil in parking lots and therefore exercised caution and used my vision to look around for any obstructions or dangers, I did not expect or appreciate the extremely slippery condition I encountered on that parking lot. While I could not identify later specifically where in the parking lot I fell, I know, because of the way I fell and how the parking lot felt as my foot slipped out from under me that the fall resulted from the unusually slippery condition of the parking lot, a condition I did not expect.”

Mrs. Brown’s deposition testimony clearly indicates that she did not observe anything which caused her to slip and fall, and she did not know of any specific thing which caused her to slip and fall. Her deposition testimony that she slipped on a combination of moisture from the misty conditions and oil from the previous cars parked there is pure speculation supported only by her statement that “I do have knowledge that when there is moisture in the air and on the pavement that oil from parking lots and asphalt go straight to the top.” This statement amounts to no more than a guess or speculation by Mrs. Brown as to what may have caused her to slip and fall. Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment. Brumbelow v. City of Rome, 215 Ga. App. 321, 322 (450 SE2d 345) (1994); Jiffy Store v. Bishop, 190 Ga. App. 716, 717 (379 SE2d 602) (1989). Accordingly, the deposition did not provide evidence that Mrs. Brown slipped on water and oil in the parking lot. Rather, it established that she did not see or otherwise know of what caused her to slip and fall.

To the extent Mrs. Brown’s subsequently filed affidavit attempts to establish otherwise by stating that she slipped on accumulated moisture and oil, it contradicts her previous deposition testimony without giving any reasonable explanation for the contradiction. Under the contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), the contradictory portions of the affidavit are excluded from consideration. Accordingly, at best, the evidence in this case shows that Mrs. Brown slipped and fell as a result of a slippery condition of unknown origin which occurred somewhere in the ten- to fifteen-foot-wide area of the parking lot identified by Mrs. Brown.

In order to recover for loss of consortium resulting from the fall, Brown must show that the defendants had actual or constructive knowledge of a hazard which caused his wife to slip and fall and that his wife was without knowledge of the hazard or for some reason attributable to the defendants she was prevented from discovering the hazard. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Mrs. Brown has produced no evidence of what foreign substance, condition, or hazard was present in the parking lot and caused her to slip and fall. Accordingly, even assuming Mrs. Brown was without knowledge of the hazard, despite exercising reasonable care for her own safety, there is no evidence that the defendants had actual or constructive knowledge of any foreign substance, condition, or hazard which caused Mrs. Brown to slip and fall. The defendants stated by affidavit that they had no actual knowledge of any hazardous condition in the parking lot, and there is no evidence to the contrary. There is no evidence that anyone prior to Mrs. Brown had ever slipped or fallen in the parking lot. Without any proof as to the specific nature of the hazard, there is no basis for claiming that one of the defendant owners or an employee was in a position to have easily seen and removed the alleged hazard or that the alleged hazard had existed on the premises for a period of time sufficient to impute knowledge of it to the defendants. McConnell v. Winn-Dixie Atlanta, 194 Ga. App. 700, 701 (391 SE2d 785) (1990); Bishop, supra at 716-717.

In the absence of any evidence that the defendants had actual or constructive knowledge of the alleged hazard which caused the fall, the trial court correctly granted summary judgment in favor of the defendants. Alterman Foods, supra; Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the affirmance of summary judgment granted to the defendant landowners in plaintiff I. Stanley Brown’s loss of consortium action arising from personal injuries sustained by plaintiff’s wife, Debra Brown, when she slipped on the wet pavement of defendants’ parking lot on a misty May afternoon, breaking her left ankle.

In my view, the majority should not have applied the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680), because Debra Brown’s affidavit gave a perfectly consistent explanation for the cause of her fall, namely, a presence of oil on top of wet asphalt. Consequently, “when the deposition is, in its entirety, construed most strongly in [plaintiff’s] favor, there is no conflict with the subsequent affidavit.” Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348, 350 (2), 351 (349 SE2d 241). In the case sub judice, Debra Brown’s credibility remained a matter peculiarly and exclusively for the jury to determine. OCGA § 24-9-80; Ryder v. Schreeder, 224 Ga. 382 (2), 386 (162 SE2d 375). I cannot agree that the majority is correct in dismissing, as speculative, Debra Brown’s opinion that she slipped because the asphalt pavement was made especially slick

Decided February 22, 1996.

Sell & Melton, Mitchell P. House, Jr., Robert D. McCullers, for appellant.

Miller & Towson, Craig N. Cowart, for appellees.

with oily residue brought to the surface by the misty weather. Debra Brown is competent to testify about this phenomenon as a matter of her experience. See, e.g., Wood v. Morris, 109 Ga. App. 148, 151 (3) (135 SE2d 484). The trier of fact could very well find that any such oily patch was nonexistent or was not a breach of defendants’ duty to exercise ordinary care to keep their premises safe for invitees, or that there was no causal relationship between plaintiff’s wife’s injury and the circumstance that it occurred on defendants’ property. Smith v. Clifford H. Pryor & Assoc., 193 Ga. App. 523, 524 (388 SE2d 383). But that determination is for the jury and not this Court. I respectfully dissent.


text:
    A95A2775.
    ROMANO v. THE STATE.
    (469 SE2d 726)
   Beasley, Chief Judge.

At arraignment in the City Court of Atlanta on March 24, 1995, Romano entered a plea of guilty to a charge of driving under the influence. OCGA § 40-6-391. The court imposed a $700 fine and 12-month suspended period of confinement.

On April 24, 1995, Romano filed motions for new trial and for modification of his sentence on grounds that he had been denied his right to counsel and did not knowingly, intelligently, and voluntarily enter his guilty plea.

Prior to entering his guilty plea, Romano signed a pre-printed affidavit which stated that he was not under the influence of alcohol or drugs and was not suffering from any mental or physical disability; that he had been advised of, among other things, his right to be represented by a private attorney or by a public defender if he was eligible and his right to trial by jury and assistance of counsel; and that he was pleading guilty freely and voluntarily, devoid of promise or threat by anyone and without knowledge of what sentence would be imposed. At the bottom of this affidavit, the judge signed a statement that he had satisfied himself that the defendant’s plea was free and voluntary, that he was in possession of his faculties, and that he was able to understand the nature and consequences of his plea.

Thereafter, Romano executed another affidavit in which he testified that when he appeared at arraignment, he thought he was entitied to appointed counsel; that when he was informed he was not so entitled, he asked for additional time to hire an attorney; that the judge refused and told him his only options were to plead guilty or not guilty; that he pled guilty under protest because he felt that he had no other choice; and that he simply signed the paperwork that was presented to him. Although the affidavit was styled an “Application as to Stipulated Transcript” and was purported to be “pursuant to OCGA § 5-6-42 (g) and (i),” neither of those procedures was completed and the affidavit does not substitute for a transcript. There is no transcript of Romano’s arraignment, as it was not reported.

The court, presided over by the same judge who presided at arraignment, denied Romano’s motions. It did so upon finding that he was properly advised of his rights, that he made no attempt to withdraw his plea before sentence was pronounced, and that his plea was freely and voluntarily entered.

1. Romano contends that the court erred in not holding a hearing on his motion for new trial.

“ ‘[A] defendant who files a guilty plea cannot move for a new trial since there has been no verdict. [Cit.]’ [Cit.] [Romano’s] motion for new trial was inappropriate and the trial court correctly denied it.” Bowens v. State, 194 Ga. App. 391 (1) (390 SE2d 634) (1990). A motion to withdraw the guilty plea was the appropriate motion to file. See Crosby v. State, 148 Ga. App. 215 (251 SE2d 81) (1978). A hearing on such a motion is not required.

2. Romano enumerates as error the court’s refusal to appoint counsel to represent him.

“Although the right to counsel extends to misdemeanor prosecutions where imprisonment may result (Argersinger v. Hamlin, 407 U. S. 25 (92 SC 2006, 32 LE2d 530) (1972)), our Supreme Court has interpreted Argersinger as requiring that a defendant in a misdemeanor criminal prosecution be entitled to counsel only where the defendant is sentenced to actual imprisonment. [Cits.]” Capelli v. State, 203 Ga. App. 79 (1) (416 SE2d 136) (1992), citing Johnston v. State, 236 Ga. 370 (3) (223 SE2d 808) (1976). Since Romano was not sentenced to actual imprisonment, the court did not err in refusing to appoint counsel to represent him.

3. Romano contends that the court erred in accepting a waiver of trial by jury and guilty plea from him without an affirmative showing on the record that same was intelligent and voluntary.

“Once a defendant raises the issue of intelligent and voluntary waiver with respect to his prior guilty plea, it is the burden of the State to establish a valid waiver. [Cit.]

“ ‘Before accepting a plea of guilty, a trial court must determine that the plea is voluntarily made and that the defendant “ ‘intelligently and understanding^’ ” waives his constitutional rights, which requires a showing on the record that the defendant has freely and voluntarily entered the plea with an understanding of the nature of the charges against him and the consequences of his plea. (Cit.) When a defendant enters a plea of guilty and subsequently challenges the validity of the guilty plea, the State may meet its burden of demonstrating the plea was intelligently and voluntarily entered “ ‘by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill(ing) a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.’ (Cit.)” (Cit.)’ [Cit.]” Bowens, supra at 391 (2).

Decided February 22, 1996.

Furlong & Franco, Walter W. Furlong, for appellant.

Louise T. Hornsby, Solicitor, for appellee.

The court was authorized to reject the testimony given by Romano in his post-plea affidavit and accept the testimony given by him in his pre-plea affidavit. The latter constituted an adequate record showing. Moreover, the post-plea affidavit even concedes that the court twice left to defendant the choice between pleading guilty and not guilty, and he acknowledged that he knew he was entitled to a court-appointed attorney only “if” there was a possibility of incarceration.

Payne v. State, 217 Ga. App. 386 (460 SE2d 297) (1995), relied upon by Romano, is distinguishable. Payne entered a plea of not guilty by signing a form which stated that he waived his right to a jury trial. The form was also used for guilty pleas, and it was unclear whether the waiver language was intended to apply to pleas of not guilty. Secondly, the form in Payne did not detail the specific rights being waived; this one did. We held that this form standing alone failed to establish that Payne had knowingly or intelligently waived his constitutional rights, and we remanded the case for an evidentiary hearing. The same defects are not present here.

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A95A2610.
    TOWNSEND et al. v. WRIGHT.
    (469 SE2d 281)
   Johnson, Judge.

Robert and Teresa Townsend, along with their three children and a niece, went to Juanita Wright’s house so that Mr. Townsend could discuss with Wright the cost of installing a septic tank on her property. While Wright and Mr. Townsend discussed the septic tank, Ms. Townsend sat under a tree in the yard holding the Townsend’s one-year-old son. The other children played in the yard. After Wright and Mr. Townsend finished talking, Wright got into her parked car, started it and proceeded in reverse gear. As Wright backed up the car, she ran over two-year-old Sherry Townsend, who was behind the car. Sherry and Teresa Townsend filed a two-count complaint against Wright. In Count 1, Sherry, by her next friend and mother, Ms. Townsend, sought damages for personal injuries caused by Wright’s alleged negligence; in Count 2, Ms. Townsend sought reimbursement for Sherry’s medical expenses. Wright filed an answer to the complaint, claiming, among other things, that she was not negligent and that the Townsends were negligent in failing to supervise the child. The case was tried before a jury, which returned a verdict in favor of Wright. The Townsends appeal.

1. The Townsends correctly assert that the court erred in charging the jury on the last clear chance doctrine. The last clear chance doctrine contains two essential elements, which must be proved by the plaintiff. First, the plaintiff must show that by her own negligence she put herself in a perilous position from which she could not extricate herself. Second, the plaintiff must prove that the defendant knew and appreciated the plaintiff’s peril in time to avoid the injury. Stallings v. Cuttino, 205 Ga. App. 581, 583 (1) (422 SE2d 921) (1992). In the instant case, two-year-old Sherry Townsend is incapable as a matter of law of being negligent and any negligence of her parents cannot be imputed to her. See Commerce Properties v. Linthicum, 209 Ga. App. 853, 855 (2) (434 SE2d 769) (1993). Because Sherry was not negligent as a matter of law, as to her claim, the first element of the last clear chance doctrine is not met. See Johnson v. Ray, 206 Ga. App. 262, 263 (2) (424 SE2d 892) (1992). Moreover, as to both Sherry’s claim and Ms. Townsend’s claim for medical expenses, the second element of the last clear chance doctrine cannot be proven. That element requires that the defendant knew of the plaintiff’s perilous situation and had opportunity to take proper evasive action to avoid injuring her; the doctrine “does not apply to a ‘should know’ or ‘should have known’ situation.” (Citations and punctuation omitted.) Stallings, supra at 583 (1). Here, it is uncontroverted that Wright did not actually know that Sherry Townsend was behind the car; rather, the Townsends claim that Wright should have known that Sherry was behind the car. Because both elements of the last clear chance doctrine do not apply to the Townsends’ claims, the trial court erred in charging the jury on that doctrine.

Furthermore, we cannot say that the erroneous charge was harmless. The Townsends did not assert the last clear chance doctrine and in fact argued against its application to this case. Instead, defendant Wright requested the last clear chance jury instruction. We are not certain why Wright would request such a charge which, if properly given, would benefit the plaintiffs. However, we note that it appears from a review of the entire jury charge, that the instruction as given may have misled the jury into believing that the doctrine could be applied, not to hold Wright liable even if the Townsends were negligent, but to find that Mr. and Ms. Townsend’s alleged negligence proximately caused the accident. During the last clear chance charge, the court did not clarify that the doctrine must be proved by the plaintiffs and that if proved, the jury could find that Wright’s failure to take the last clear chance to avoid the accident proximately caused Sherry’s injuries, in spite of any negligence by the Townsends. Rather, the court instructed the jury that “persons are under an obligation to use ordinary care to avoid injuring others after finding them in a dangerous place . . . [and] if the person who has the last clear chance to avoid cause of injury fails to use ordinary care to avoid it, then that negligence is considered to be the proximate cause of the injury.” This charge was immediately followed by charges that the negligence of parents is not imputable to the child, that if the parents knew of a danger and did not protect the child from it then the parents were negligent, that this parental negligence was the sole proximate cause of the child’s injuries and that parents are under a duty of seeing that their child is not in a place of obvious danger. In this context, the jurors could have construed the last clear chance instruction as meaning that if Sherry Townsend’s parents had the last clear chance to remove her from behind the car, and failed to do so, then that failure, rather than any possible negligence by Wright, proximately caused Sherry’s injuries. That is an incorrect application of the last clear chance doctrine. Because the doctrine charged does not apply to this case and may have misled the jury, the court’s error was harmful and a new trial is required. See Smith v. Mobley, 185 Ga. App. 462, 463 (2) (364 SE2d 597) (1988).

2. The Townsends claim the court erred in charging the jury “that it would be normally the duty of a parent to see that the child would not be in a place of obvious danger.” The Townsends argue that this rule applies only to premises liability cases, and thus does not apply to this negligence case. It is true that the rule charged by the trial judge is often cited in premises liability cases. See, e.g., Bowers v. Grizzle, 214 Ga. App. 718, 720-721 (4) (448 SE2d 759) (1994); Wright v. Shoney’s of Savannah, 141 Ga. App. 362, 363 (233 SE2d 474) (1977). But we do not agree with the Townsends that the rule is therefore limited to such cases. The principle is, instead, a general statement of the duty of parents and other custodians of children which also applies in situations other than premises liability actions. The most simple and direct statement of this duty is that children of tender years and youthful persons generally are entitled to care proportioned to their ability to foresee and avoid perils that they may encounter. See, e.g., Wallace v. Boys Club of Albany, Ga., 211 Ga. App. 534 (439 SE2d 746) (1993); Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 424 (405 SE2d 61) (1991); Herring v. R. L. Mathis Certified Dairy Co., 118 Ga. App. 132, 139 (162 SE2d 863) (1968). Because issues related to this duty owed by custodians to children are likely to arise again upon the retrial of the case, we believe further analysis is required.

Despite being an accurate statement of law, the charge complained of here is problematic for two reasons not raised by the plaintiffs. First, the charge complained of was problematic because it was not fully adjusted to the facts. The record in the case reveals that the injured child was playing in a grassy yard at the time she was struck by the defendant’s car. She was not in the road, or even in the one-lane dirt driveway located on the premises where the injury occurred. Grassy yards, and driveways in residential yards, standing alone, are not “places of obvious danger” as that phrase is used in the legal principle stated above. By adding the phrase “place of obvious danger,” the trial judge may have inadvertently communicated to the jury that the area where the injured child was playing was in fact a place of obvious danger. At most, the record here suggests that if the jury believes the child’s custodian saw the defendant return to her car, saw her crank the car, and if the jury further believes the custodian, at that point, should have realized that the car was about to be driven in the yard, the yard could have become a place of danger for the child such as would require the custodian to act reasonably to protect the child. Whether it became a place of danger, and, if so, when, are questions for the jury to decide.

Second, the charge complained of was redundant. A better statement of the principle was given to the jury when the trial court instructed the jury: “I charge you that concerning the duties of adults toward children the rule of law is that children of tender years are entitled to a degree of care proportionate to their ability to foresee and avoid perils which may be encountered. . . .” Thus, the more controversial statement complained of by plaintiffs was nothing more than a second instruction of the same legal principle.

The harm of any such confusion may have been exacerbated because the context within which this charge was delivered included an erroneous statement of law, not complained of in this appeal, to the effect that if the jury found the plaintiff mother negligent in caring for the plaintiff child, then that mother’s negligence would be the sole proximate cause of the child’s injuries. The exact words used in this portion of the charge were: “If the evidence is such that the custodian of a minor child should have foreseen that the child might be in danger and the custodian knew of the danger, the custodian was negligent in not taking measures to protect the child and her negligence was the sole proximate cause of the child’s injuries.” (Emphasis supplied.)

We are unable to say how the jury arrived at its verdict, of course, so the harm or lack of harm of a problematic series of charges cannot be determined. If indeed the jury found the mother was negligent, it could have found her negligence to be the sole proximate cause of the child’s injuries, but it was certainly not required to make such a finding. The jury had other options as well. If the jury found the mother negligent but found the defendant was also negligent, it also could have concluded that the mother’s negligence was only a contributing proximate cause of the child’s injuries. The jury could also have concluded that the mother’s negligence, if any, was not a contributing proximate cause and that the negligence of the defendant was the sole proximate cause of the child’s injuries.

If the jury found that any negligence on the part of the mother was the sole proximate cause of the injuries, of course, the child could not recover against the defendant. However, if the jury had determined that negligence of the defendant and negligence of the mother combined to proximately cause the injuries, or if the jury determined that negligence of the defendant was the sole proximate cause of the injuries, in either case the child could fully recover from the defendant. Since there is evidence in the record to support all of these possible findings by a jury, a suggestion by the court that the mother’s negligence would be the sole proximate cause of the child’s injuries, especially in the context of the other charges discussed herein, is plain error which cannot be said to be harmless.

Though the fact issues of this case are relatively simple, the defenses are such that they are available against one of the plaintiffs only under certain conditions. This makes the task of the trial judge in charging the jury much more complex and much more difficult. Upon the retrial, we are confident that great care will be given to the context as well as the substance of this series of charges, and that the trial judge will go to whatever lengths are necessary to assure that the jury understands all of the implications of these principles and to explain to the jury all of its various options under the evidence. It may be that this is a case where a verdict form cast as special interrogatories to the jury would be appropriate, as the jury’s answers regarding its findings may reveal whether the legal principles have been correctly understood and applied.

Judgment reversed.

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

Decided February 8, 1996

Reconsideration denied February 23, 1996

A. Russell Blank, Robert B. Lipman, for appellants.

Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., A. Spencer McManes, Jr., for appellee.


author: Pope, Presiding Judge.

text:
    A95A2041.
    BRAINARD v. McKINNEY.
    (469 SE2d 441)
   Pope, Presiding Judge.

Plaintiff Sarah Brainard brought suit against defendant Stephen McKinney d/b/a The Building Inspector of America seeking to recover $23,700 in damages allegedly resulting from the negligent inspection of a condominium purchased by plaintiff. Defendant filed a motion for partial summary judgment, contending its liability was limited to the cost of the inspection pursuant to the terms of the contract plaintiff signed at the time of the inspection. The trial court granted defendant’s motion, and plaintiff filed the present appeal to this Court.

1. At issue here is the following language: “Loss is limited to the cost of the inspection.” Relying on OCGA § 13-8-2 (b), plaintiff argues that this provision is void as against public policy and thus unenforceable. Although a plain reading of OCGA § 13-8-2 (b) reveals the specious nature of this argument, because the question of the applicability of that section to exculpatory clauses in home inspection agreements has previously been raised but not resolved by this Court, see Amerispec Franchise v. Cross, 215 Ga. App. 669 (452 SE2d 188) (1994), we will take this opportunity to lay this issue to rest.

“ ‘It is a general rule of contract law that unless prohibited by statute or public policy the parties (to a contract) are free to contract on any terms and about any subject matter in which they have an interest, and any impairment of that right must be specifically expressed or necessarily implied by the legislature in a statutory prohibition and not left to speculation. (Cits.)’ ” Piedmont Arbors Condominium Assn. v. BPI Constr. Co., 197 Ga. App. 141 (397 SE2d 611) (1990).

OCGA § 13-8-2 applies “to a contract or agreement relative to the construction, alteration, repair, or maintenance of a building . . . purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees. ...” Although we agree with the statement in Amerispec Franchise, 215 Ga. App. at 671, that “OCGA § 13-8-2 (b) does not represent a model of legislative clarity[,]” it is clear to us that it is inapplicable to the exculpatory clause at issue in this case for at least three reasons: the agreement here does not pertain to the construction, alteration, repair or maintenance of a building; it is not an indemnification or hold harmless provision; and plaintiff’s claim is not one for property damage or bodily injury caused by the negligence of the defendant. See Piedmont Arbors Condominium Assn., 197 Ga. App. at 142; West Side Loan Office v. Electro-Protective Corp., 167 Ga. App. 520 (306 SE2d 686) (1983); McAbee Constr. Co. v. Ga. Kraft Co., 178 Ga. App. 496, 498 (343 SE2d 513) (1986). This enumeration is thus without merit.

Decided February 23, 1996.

Bentley, Karesh & Seacrest, Wendell K. Willard, for appellant.

Swift, Currie, McGhee & Hiers, Robin F. Clark, for appellee.

2. Plaintiff’s remaining enumerations of error also are meritless and need not be specifically addressed here. See, e.g., McCrimmon v. Tandy Corp., 202 Ga. App. 233, 236 (2) (414 SE2d 15) (1991) (plaintiff cannot hide behind failure to read document or fact that document was executed after the service was performed).

Judgment affirmed.

Ruffin, J., concurs. Beasley, C. J., concurs in judgment only.

       Plaintiffs complaint contained additional claims against other parties which are not pertinent to the present appeal.


author: Smith, Judge.

text:
    A95A2247.
    D. B. v. CLARKE COUNTY BOARD OF EDUCATION.
    (469 SE2d 438)
   Smith, Judge.

In this case of first impression in Georgia, we are called upon to decide whether a 12-year-old student may lawfully be expelled permanently from a county’s public schools.

The facts are not in dispute. D. B. was found in possession of a knife on school property after a fight in which she stabbed another student. After an administrative disciplinary hearing, D. B. was expelled permanently from all public schools in Clarke County. Because the audiotape of the disciplinary hearing was undecipherable, the Clarke County Board of Education did not review the record of that hearing. Instead, it granted D. B. a de novo evidentiary hearing. After hearing evidence, the board voted unanimously in favor of permanent expulsion. The local board’s decision was appealed to the State Board of Education and then to the superior court, both of which affirmed the decision imposing permanent expulsion. We granted D. B.’s application for discretionary appeal to review the propriety of this disciplinary measure.

D. B. does not dispute the fact that she violated both school rules and state law. She contends only that the punishment administered — permanent expulsion — is unlawful and that her right to due process of law was violated because she had no notice before the incident that her conduct might result in permanent expulsion.

1. D. B. contends that permanent expulsion violates her right to a free public education, which is granted by the Georgia Constitution of 1983.

“Education, of course, is not among the rights afforded explicit protection under our Federal Constitution,” nor is it implicitly so protected. San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 35 (93 SC 1278, 36 LE2d 16) (1973); see Plyler v. Doe, 457 U. S. 202, 221 (102 SC 2382, 72 LE2d 786) (1982). Under Art. VIII, Sec. I, Par. I of the Ga. Const, of 1983, however, “[t]he provision of an adequate public education for the citizens [is] a primary obligation of the State of Georgia. Public education for the citizens prior to the college or postsecondary level shall be free and shall be provided for by taxation.” The Georgia Supreme Court held in Crim v. McWhorter, 242 Ga. 863 (252 SE2d 421) (1979), that “the right to a free education is guaranteed” by this provision of our state constitution. Id. at 867 (3).

The protection afforded by the Georgia Constitution is clearly both broader and more specific than that provided by the federal constitution in this area. The right to a free public education is not unlimited, however, under the Georgia Constitution. Even in those states recognizing an entitlement to education, courts have declared that “[t]his entitlement does not allow the child to escape the consequences of misconduct in a public school, nor does it contradict the inherent authority of a school board to maintain order and discipline in public schools. [Cit.]” C. L. S. v. Hoover Bd. of Ed., 594 S2d 138, 139 (Ala. Civ. App. 1991).

The Georgia Supreme Court recognized in Crim, supra, that in this state, the right to a free public education could be, and has been, limited by statute. Therefore, to determine whether the right of students in Georgia to a free public education may be restricted by means of permanent expulsion as a punishment for disciplinary infractions, we must look to the relevant statutes.

In enacting the Public School Disciplinary Tribunal Act, OCGA § 20-2-750 et seq., the Georgia General Assembly recognized that local boards properly may limit students’ access to education in response to disciplinary infractions. The Act provides that local boards of education may establish tribunals with authority to impose both suspension and expulsion as disciplinary measures; it sets forth certain procedures that must be followed. OCGA § 20-2-751 defines expulsion as “expulsion of a student from a public school beyond the current school quarter or semester.” OCGA § 20-2-751 (1). Contrary to D. B.’s argument, this definition is not ambiguous. OCGA § 20-2-751 clearly sets no time limit for the permissible duration of expulsion. Under the statute, permanent expulsion is therefore authorized.

In addition, the parties set forth cogent but conflicting policy arguments for and against permanent expulsion, and they support their arguments with citation to foreign authorities. The board points out that certain misconduct is of such grave nature that the offending student’s presence must be viewed as detrimental to the education of many other students. See Fortman v. Texarkana School Dist., 514 SW2d 720, 722 (Ark. 1974). Conversely, we could agree with D. B. that although it may be authorized, permanent expulsion may be shortsighted public policy: denying children access to education not only creates obstacles to their individual achievement in terms of bettering their own lives, but also greatly diminishes their chances of making a positive contribution to society in general. We note also that in this case, the imposition of permanent expulsion creates an anomalous result. Because D. B. was sentenced to probation in the juvenile court for aggravated assault, the State is not required to provide schooling for her. Had she committed a more serious offense, or had a more stringent sentence been imposed by the juvenile court, committing D. B. to a youth detention center, the State would be compelled by law to provide an education for her. See OCGA §§ 15-11-43; 49-5-3 (12) (C). Because she was sentenced to probation and no Georgia statute addresses the responsibility for providing her education, the effect is to deny schooling.

However compelling these concerns may be, they must be addressed in another forum. The Georgia Constitution has delegated the administration and management of local school districts to county and area boards of education. Ga. Const, of 1983, Art. VIII, Sec. V, Par. I. In OCGA § 20-2-754 (c), the legislature has provided that in such matters, the local board “may take any action it determines appropriate.” (Emphasis supplied.) It has been held consistently that the courts will not interfere with a local board’s administration of its schools unless the board’s actions are contrary to law or it appears that the board has grossly abused its discretion. Bedingfield v. Parkerson, 212 Ga. 654, 660 (4) (94 SE2d 714) (1956); Colston v. Hutchinson, 208 Ga. 559, 560 (67 SE2d 763) (1951); Keever v. Bd. of Ed. of Gwinnett County, 188 Ga. 299, 300 (1), 302 (3 SE2d 886) (1939). We find neither in this case. Given that the constitutional right to a free public education may be limited by statute and our determination that the applicable statute does not prohibit permanent expulsion, we hold that the board’s action was not contrary to law. In so holding, we must reject D. B.’s argument that permanent expulsion conflicts with or violates Georgia’s compulsory school attendance statute, OCGA § 20-2-690.1.

Other courts have addressed this argument, and we agree with the reasoning of the Supreme Judicial Court of Massachusetts in Bd. of Ed. v. School Comm. of Quincy, 612 NE2d 666 (Mass. 1993). That court found, in rejecting a similar argument, that a compulsory school attendance “statute, read as a whole, addresses only who shall attend school and where. It does not consider curriculum, student performance, discipline, or teacher qualifications. It does not include a specific requirement that a school [board] provide an educational alternative to an individual child who is excluded from the public school for disciplinary reasons. [It] does not indicate a legislative intention that local school committees must make such educational alternatives available.” Id. at 670. Our legislature, like that of Massachusetts, has given local school boards the power and authority to oversee the discipline of students. Id. Even when alternatives exist, the board, and not this court, must determine whether those alternatives are appropriate for disciplining a student.

Neither do we find that the board has grossly abused its discretion. “[A] gross abuse of discretion which will authorize resort to the courts must be such as of itself amounts to a violation of the law. [Cit.]” Bedingfield, supra, 212 Ga. at 660 (4). Precisely because differing policy considerations exist, even those who disagree with the punishment imposed cannot minimize the severity of the offense committed and the potential danger to other students. Finding, therefore, that permanent expulsion is neither contrary to law nor an abuse of the board’s discretion, we hold that the superior court did not err in affirming the board’s imposition of permanent expulsion as a disciplinary measure.

Decided February 23, 1996

Patricia D. Barron, Wendy J. Glasbrenner, Christina Petrig, Hannibal F. Heredia, Homero Leon, for appellant.

Terrell W. Benton, Jr., for appellee.

2. D. B. also contends she was denied due process because she had no notice in advance of her action that such action could result in permanent expulsion. She also argues that the board did not have jurisdiction to permanently expel her because permanent expulsion is not permissible under local board policy or state law.

We do not agree. The Clarke County School District Code of Student Conduct, distributed to all students, informed them that carrying weapons to school is prohibited. The Code provides that for weapons infractions, “[t]he principal will recommend to the disciplinary hearing officer that the student be expelled from the Clarke County Schools.” In addition, the Code defines expulsion as “losing the privilege of continuing school for the remainder of the grading period, year, or longer.” (Emphasis supplied.) The Code thus clearly notifies students, including D. B., that expulsions longer than the school year are possible. By failing to limit the length of any expulsion, it permits permanent expulsion.

We have already determined that permanent expulsion is permissible under state law. Contrary to D. B.’s argument, it is also permissible under local board policy. The Clarke County Board of Education Policy Manual provides that “[e]xpulsion shall mean the denial to a student of the right to attend school and take part in any school function for an academic quarter, the remainder of a school year, an entire school year, or indefinitely.” (Emphasis supplied.) We see no meaningful distinction between permanent expulsion and indefinite expulsion. Consequently, D. B.’s due process rights were not violated.

Judgment affirmed.

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

       Under a recently enacted statute, other school systems have the right to refuse to enroll a student who is under a disciplinary order from another school district. OCGA § 20-2-751.2 (b). Therefore, as D. B. correctly notes, she could also be barred from any public school in Georgia.

       We reject, however, the arguments of amicus Florence Moise-Stone Center For Law And Education that the Georgia Constitution provides a “fundamental” right to a free public education requiring strict scrutiny under equal protection analysis. The Georgia Supreme Court has held unequivocally that “education per se is not a ‘fundamental right.’ ” McDaniel v. Thomas, 248 Ga. 632, 647 (285 SE2d 156) (1981).

       D. B. was charged in the juvenile court with carrying a concealed weapon as well as aggravated assault. The weapons charge was dismissed, however, because the knife did not meet the definition of a weapon in OCGA § 16-11-127.1 (a) (2); its blade was determined to be less than three inches long.


text:
    A95A2357.
    GWINNETT HOSPITAL SYSTEM, INC. v. MASSEY et al.
    (469 SE2d 729)
   Smith, Judge.

Although this action is essentially one for medical malpractice, we address in this opinion the procedural issue of whether the proper corporate entity was named as a party defendant.

Appellee, Rhonda Rice Massey, the mother of David Jeremiah Massey, filed this action against Gwinnett Hospital System, Inc. (GHS) and others alleging that their incompetent care resulted in the stillborn birth of David Jeremiah Massey. GHS moved for summary judgment, contending the Hospital Authority of Gwinnett County, Inc. (the Authority), rather than GHS, is the proper party defendant. The trial court denied the motion, and we granted GHS’s application for interlocutory review.

Massey alleges that on October 15, 1991, she received negligent care and treatment when she went to the Gwinnett Women’s Pavilion for delivery of her child. It is undisputed that on that date, the Gwinnett Women’s Pavilion was owned and operated by the Authority, that GHS was not yet incorporated, and that GHS did not become a legal entity until May 21, 1992. It is likewise undisputed that the Authority remains in existence and continues doing business, complete with a board of trustees, officers, and legal counsel, and that GHS has its own board of directors, maintains separate books and records, and files separate tax returns. The parties also do not dispute that GHS and the Authority executed a lease and transfer agreement on September 1, 1992, by which the Authority leased its “real property, improvements and related assets of the system” and transferred “all of the operations, operating assets and liabilities of the system to [GHS].”

GHS contends it is not the proper party defendant because it was not the entity that committed a tort, it was not a successor corporation to the Authority, and it was not an “alter ego” of the Authority. GHS further contends that an “assumption of liabilities” provision in the lease and transfer agreement did not impose liability on it. We focus on this last contention because it is dispositive of the issues in this case.

The agreement contains the following assumption of liabilities provision: “Effective as of the commencement date, [GHS] assumes, and agrees to perform and discharge, all of the assumed liabilities as of the commencement date.” “Assumed liabilities” are defined as “all of the liabilities and obligations of [the Authority] which were incurred or arose in connection with the existing operations, whether known or unknown, contingent or otherwise, including, without limitation, all obligations and liabilities of [the Authority] in connection with the bonds, all obligations and liabilities of [the Authority] under the assigned contracts, and all obligations of [the Authority] to the Medicare and Medicaid programs.” (Emphasis supplied.) “Existing Operations” are defined as “all of the system, health care, administrative and related activities conducted as of the commencement date hereof or in the past by [the Authority] in the ordinary course of owning and operating the existing facilities” which include “the system, the real property, the equipment, and all improvements which are leased by [the Authority] to [GHS] hereunder.” (Emphasis supplied.)

OCGA § 9-2-21 (b) does provide that a tort action “shall be brought against the party committing the injury, either by himself, his servant, or an agent in his employ.” We recognize that GHS was not incorporated and that the Authority owned and operated the Gwinnett Women’s Pavilion when the alleged negligent care occurred. Liabilities, though, may be assumed under an agreement to do so. See Howard v. APAC-Georgia, 192 Ga. App. 49, 50 (383 SE2d 617) (1989); Bullington v. Union Tool Corp., 254 Ga. 283, 284 (328 SE2d 726) (1985). Here, an express agreement between GHS and the Authority recited in broad, unambiguous language that GHS assumed all liabilities and obligations, “whether known or unknown, contingent or otherwise,” incurred with regard to existing operations as of the commencement date “or in the past.”

Ignoring this language, GHS argues that Massey cannot avail herself of the assumption of liabilities provision because she was not an intended third-party beneficiary of the contract. This argument fails. The claim here is for breach of a medical duty, not for damages resulting from a breach of contract between two other parties, and the action was not brought to enforce a contract. Armor Elevator Co. v. Hinton, 213 Ga. App. 27 (2) (443 SE2d 670) (1994) does not demand a different result. The plaintiff in Hinton brought a tort action against PSI Security and others seeking damages arising from her fall from an elevator. She alleged that PSI, a private security service that provided services on a contract basis to the owner of the building in which she fell, was liable for its failure to warn her of the elevator malfunction. Id. We held that the contract between the owner of the building and PSI revealed no intent to benefit patrons of the building. The plaintiff therefore was not an intended third-party beneficiary, and PSI had no duty to warn her of the malfunction. Id. at 30. Here, Massey has not alleged a tort arising out of a failure to perform a duty imposed by contract. Instead, she has recognized and alleged that under the agreement, GHS assumed the Authority’s legal obligations. For pre-existing liabilities of operations it took over from the Authority, the clear, unambiguous terms of the agreement made GHS liable.

We disagree with GHS’s contention that affirmance of the trial court’s decision “could have negative implications for corporations contemplating entering into lease agreements and similar arrangements, because a party taking over the operations of another party would then become responsible for all of its torts.” GHS took responsibility for the Authority’s torts only because it expressly agreed to do so. Had GHS wished to limit its liabilities to certain types of claims, or to those occurring within a certain time period, it could have done so in the agreement. See generally Blum v. RES Assoc., 211 Ga. App. 543, 545 (1) (439 SE2d 712) (1993) (buyer agreed to assume liabilities and obligations “only as of and with respect to periods following the [cjlosing [d]ate”). (Emphasis supplied.)

Decided February 23, 1996

Long, Weinberg, Ansley & Wheeler, Lance D. Lourie, Arthur K. Engle, for appellant.

Further, we are not persuaded by argument that GHS is merely an indemnitor of the Authority, subject to suit only if liability against the Authority is found first. The language of the assumption of liabilities provision is not couched in terms of indemnity; it is, instead, a straightforward acceptance of liabilities by GHS, liabilities that are “contingent or otherwise,” “known or unknown.” This language negates GHS’s contention that it agreed to assume only liability which the Authority “may incur.” Pursuant to the plain words of the agree.ment, the liabilities assumed by GHS were those liabilities incurred as of the commencement date of the agreement “or in the past.”

Neither do we find merit in the contention that GHS was not a purchasing corporation but that the relationship between it and the Authority was unequivocally that of lessor and lessee. The caption of the agreement itself indicates that the transaction was a lease and transfer. The agreement recites that the Authority “wishes to lease the real property, improvements and related assets of the system, and to transfer all of the operations, operating assets and liabilities of the system” to GHS. (Emphasis supplied.) Regardless of the status of the relationships between the two entities — whether seller and buyer or lessor and lessee, or whether one was a continuation of, alter ego of, or successor to the other — the agreement between them contained an unambiguous provision that GHS assumed all liabilities of the Authority, known or unknown. Massey was entitled to bring this action against GHS as a result of this assumption of liabilities.

The trial court did not err in denying GHS’s motion for summary judgment.

Judgment affirmed.

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

Alexander J. Repasky, Michael A. Cole, David M. Toolan, for appellees.

       All other defendants, except one, were dismissed from the action. The remaining defendant, Deneen Bulloch, is not involved in this appeal.