text:
    A98A1205.
    HOLMES et al. v. CHATHAM AREA TRANSIT AUTHORITY et al.
    (505 SE2d 225)
   Blackburn, Judge.

Brenda Holmes, as executrix of the estate of Albert Leroy Holmes, Jr., and Albert Holmes appeal the trial court’s order dismissing their suit against the Chatham Area Transit Authority (CATA) on the ground they failed to give the State of Georgia proper ante-litem notice under the Georgia Tort Claims Act (the Act). Because CATA, as local government authority, is expressly excluded from the Act, we hold that the trial court erred in dismissing the suit on this basis and reverse.

On April 5, 1995, Albert Holmes, Jr., was hit by a car shortly after exiting a CATA bus. He died as a result of his injuries. On March 24, 1997, the appellants brought a wrongful death action against the bus driver and CATA. CATA answered, asserting the appellants’ failure to comply with the ante-litem notice requirements of the Georgia Tort Claims Act, OCGA § 50-21-26. Appellants petitioned the trial court for a ruling that CATA was a local authority. CATA responded, arguing that it was a state authority, and moved the court to dismiss the complaint based upon the appellants’ failure to provide the required notice. The trial court found that CATA was an “instrumentality of the state” and therefore subject to the Tort Claims Act. Consequently, the trial court dismissed the complaint upon finding that the appellants failed to give timely ante-litem notice.

The Act, including its ante-litem notice provisions, applies in this case only if CATA is deemed to be a creature of the State within the meaning of the Act. Miller v. Ga. Ports Auth., 266 Ga. 586 (470 SE2d 426) (1996). “By its express terms, the [A]ct clarifies that the ‘State’ includes state authorities and instrumentalities, but not local governmental entities, for purposes of waiving sovereign immunity.” Id. at 588; Crisp County School System v. Brown, 226 Ga. App. 800, 801 (1) (487 SE2d 512) (1997). The Act defines a “state government entity” as a “state office, agency, authority, department, commission, board, division, instrumentality, or institution.” OCGA § 50-21-22 (6). “State’; is defined to exclude “counties, municipalities, school districts, other units of local government, hospital authorities, or housing and other local authorities.” OCGA § 50-21-22 (5). Thus, the dispositive question before us is whether CATA is a state or a local government entity.

To resolve this issue, it is necessary first to examine the legislation creating CATA. CATA was created in 1986 by local legislation, Act No. 1298 (House Bill 1699). Ga. L. 1986, p. 5082. This local act provided that “[t]here is created a body corporate and politic to be known as the Chatham Area Transit Authority, which shall be deemed to be an instrumentality of the State of Georgia and a public corporation.” Id. at 5085, § 2.1. CATA was authorized to operate “a transit system for the purpose of transporting persons inside and outside of Chatham County.” Id. at 5089, § 3.1 (5). The local act also provided that CATA “shall have sovereign immunity” except to the extent waived by liability insurance. Id. at 5092, § 3.4. CATA’s membership is comprised of the members of the Board of Commissioners of Chatham County and three local citizens. Id. at 5085, § 2.2. Further, CATA is authorized to issue revenue bonds “in the same manner and to the same extent as counties and municipalities of this state.” Id. at 5092, § 4.1. Any indebtedness incurred by CATA in issuing its revenue bonds is not to be considered an obligation of the State. Id. at 5095, § 4.11. CATA is audited by the external auditor of Chatham County or a certified public accountant chosen by the authority. Id. at 5088, § 2.4.

CATA is registered with the Georgia Department of Community Affairs pursuant to OCGA § 36-80-16 as a “local authority.” CATA stated in its responses to interrogatories that none of its employees were members of the State Merit System. CATA also admitted it was not subject to any control or supervision by the State of Georgia. Further, no claim brought against CATA has ever been turned over to the Director of Administrative Services, processed under the State Tort Claims Act, or paid from the Trust Fund created for purposes of the Act.

Despite these numerous indications that CATA is a local authority, the trial court determined that CATA was a state governmental entity to which the Act applied solely because the local act which created CATA stated that it shall be deemed “an instrumentality of the State of Georgia.” For the reasons which follow, we disagree with the trial court’s interpretation of this language.

It is axiomatic that if an enactment is plain and unambiguous, we must give its words their plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1 (b). We must seek “to give meaning to each part of the statute and to avoid constructions which render a portion of the statute mere surplusage.” Moritz v. Orkin Exterm. Co., 215 Ga. App. 255, 256-257 (450 SE2d 233) (1994). “ £[A] statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes “in pari materia,” are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.’ ” Bennett v. Wood, 188 Ga. App. 630, 632 (1) (373 SE2d 645) (1988). Finally, ££[i]t is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning.” (Punctuation omitted.) Gilbert v. Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476) (1994).

In this case, the phrase “instrumentality of the state” is hot subject to simple definition. Rather, it is a term whose meaning has changed and evolved over time and which has been used in many contexts. An “instrumentality,” at its most fundamental, is a tool. It is a device — a “means or an agency,” according to the Random House Dictionary — which enables an individual or a government to achieve an end. Typically, state and local authorities and public corporations which were created to serve public purposes, but which did not fall within the traditional definition of a political subdivision of the state, were referred to as instrumentalities. E.g., Miller, supra (Georgia Ports Authority); Fulton-DeKalb Hosp. Auth. v. Gaither, 241 Ga. 572 (247 SE2d 89) (1978) (local hospital authorities); Smith v. State of Ga., 217 Ga. 94 (121 SE2d 113) (1961) (Waycross and Ware County Development Authority); Tippins v. Cobb County Parking Auth., 213 Ga. 685 (100 SE2d 893) (1957) (local parking authority); Culbreth v. Southwest Ga. &c. Housing Auth., 199 Ga. 183 (33 SE2d 684) (1945) (local housing authorities). However, counties, which are clearly political subdivisions of the state, have also been referred to as instrumentalities of the state. See Wojcik v. State, 260 Ga. 260, 262 (392 SE2d 525) (1990).

In many opinions, this Court and the Supreme Court of Georgia have held that if the authority or public corporation was deemed to be an instrumentality of the state, it enjoyed many of the benefits ordinarily reserved to a political subdivision of the state. For example, because the Southwest Georgia Housing Authority was deemed an instrumentality of the state, its property was “exempt from taxation to the same extent as if the legal title thereto was in the State itself or in a county or city.” Culbreth, supra at 189. Also, local authorities, by asserting their status as instrumentalities to which public duties had been delegated, have challenged the courts to determine whether they were entitled to claim sovereign immunity (compare Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40, 41 (440 SE2d 195) (1994) with Hosp. Auth. of Fulton County v. Litterilla, 199 Ga. App. 345 (404 SE2d 796) (1991) rev’d at 262 Ga. 34 (413 SE2d 718) (1992)) or whether they should be afforded the status of a state employer under the then existing workers’ compensation laws (see Fulton-DeKalb Hosp. Auth. v. Gaither, 241 Ga. 572 (247 SE2d 89) (1978)).

Based upon our review of these cases, we find that in 1986 when the local legislation creating CATA was passed, the phrase “instrumentality of the state” was not used to indicate that CATA was a political subdivision of the State of Georgia. Rather, the phrase was loosely used to mean that CATA was a public entity entitled to claim many of the benefits typically reserved to counties and state agencies and other recognized political subdivisions of the state. The use of this language, therefore, does not transform what is by all indications a local authority into a state governmental entity.

Although the trial court relied on Miller, supra, in reaching its conclusion that CATA was a state governmental entity, the holding in that case does not change our analysis. The Supreme Court’s analysis in Miller was premised on an assumption that the Georgia Ports Authority was an instrumentality of the state created to carry out state functions. The issue was whether a state “instrumentality” was a state governmental entity which could claim the defense of sovereign immunity. If it was such an entity, then the provisions of the Act applied to it. The Supreme Court looked to the broad definition of “State” contained in the Act to determine that the Georgia Ports Authority, though called an “instrumentality,” was such a state government entity: “Our earlier cases distinguishing between instrumentalities of the state and state agencies are not dispositive since both instrumentalities and agencies are included in the [A]ct’s definition of the state. ... In determining the state departments and agencies that are entitled to sovereign immunity, this Court has never restricted the defense or its waiver to entities with the words ‘department’ or ‘agency’ in their title. Instead, we have held that the terms apply to state political subdivisions and governmental entities, including the Board of Regents of the University System of Georgia and counties.” (Footnotes omitted.) Miller, supra at 588-589.

Decided July 30, 1998

Reconsideration denied August 20, 1998.

Robert P. Phillips III, for appellants.

Kent, Worsham & Smart, A. Martin Kent, Joseph Y. Yahimi II, for appellees.

CATA, though called an “instrumentality” is unlike the Georgia Ports Authority in that it serves local rather than state interests. It was created by local legislation to satisfy local public transportation needs. It is governéd, audited, and funded locally. Consequently, it appears to be a creature of local government.

Because we find that CATA is a local authority specifically excluded from the act’s definition of “state government entity,” OCGA § 50-21-22, we hold that the appellants were not required to give it ante-litem notice of their claim under OCGA § 50-21-26. The trial court, therefore, erred in dismissing the appellants’ complaint on this basis.

Judgment reversed.

McMurray, P. J., and Eldridge, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A98A1042.
    WAYCROSS MOLDED PRODUCTS, INC. v. McKELVIN.
    (505 SE2d 826)
   Beasley, Judge.

In this workers’ compensation case, the State Board awarded benefits to the employee based upon a change in condition for the worse. OCGA § 34-9-104. We granted the employer’s discretionary appeal to determine whether the State Board applied the proper burden of proof and whether the evidence supported the award.

Raymond McKelvin operated a press mold for Waycross Molded Products, Inc., and injured his lower back on January 11, 1995. Way-cross Molded paid benefits for that injury but suspended them effective June 25, 1995, because McKelvin’s treating physician released him to return to work without restriction. McKelvin reported to work based on that medical release, but before he actually resumed working Waycross Molded terminated him for a reason unrelated to his work injury.

In April 1996 McKelvin developed lower back pain after moving a sofa at home. On April 30, the treating physician found him capable of moderate work lifting or carrying no more than 50 pounds and released him for light-duty work. McKelvin then sought to have income benefits reinstated based on this lower back pain.

The ALJ found that McKelvin had demonstrated a change in condition for the worse, and that his back complaints were occasionally aggravated by the ordinary wear and tear of everyday life and were related to the original work injury. For the reason that McKelvin had not actually returned to work before he was discharged for cause, the ALJ did not require him to show a good faith but unsuccessful job search as set forth in Maloney v. Gordon County Farms. The appellate division upheld the ALJ’s decision. On appeal the award was affirmed by operation of law due to the inaction of the superior court, which held a hearing but did not enter a ruling. OCGA § 34-9-105 (b).

1. Waycross Molded contends that the evidence only supported a finding that McKelvin sustained a new injury moving furniture in April 1996, which was not compensable because it was not work-related. Whether a new injury or an aggravation of an old injury occurred is a question of fact for the ALJ. The evidence regarding this issue was conflicting but some evidence supported the factual finding, and this Court will not disturb that finding on appeal.

2. An employee who has returned to work and no longer receives workers’ compensation benefits is not entitled to a resumption of benefits after being terminated for cause unless the employee establishes “by a preponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination.”

“The concern addressed in Maloney is that benefits should be awarded [in a change in condition case] only where the economic change for the worse is proximately caused by the work-related injury. Proof of a diligent job search allows the board to infer this critical causal connection where the termination is for reasons wholly unrelated to the injury.”

Decided August 20, 1998

Dillard, Bower & East, Bryant H. Bower, Jr., Rebecca R. Crowley, for appellant.

Hackel & Hackel, Thomas M. Hackel, for appellee.

It is undisputed that McKelvin’s treating physician released him for return to work without restrictions, that McKelvin attempted to return to work pursuant to that medical release, and that Waycross Molded terminated McKelvin for a reason unrelated to his original work injury. Under these circumstances, the fact that McKelvin did not actually return to work before his termination is not a material distinction from the employee’s situation in Maloney. It does not affect the need to connect the economic change to the work injury as cause. In order to have his benefits reinstated based on a change in condition for the worse, McKelvin was likewise required to show a diligent but unsuccessful effort to find suitable employment following his termination.

Accordingly, the superior court erred in allowing affirmance of the State Board’s decision and in failing to remand the case with direction for the State Board to determine whether McKelvin met that burden of proving proximate cause.

Judgment reversed and case remanded with direction.

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

       265 Ga. 825 (462 SE2d 606) (1995).

        Columbus Intermediate Care Home v. Johnston, 196 Ga. App. 516 (396 SE2d 268) (1990).

        Sanders v. Ga. Pacific Corp., 192 Ga. App. 439 (385 SE2d 101) (1989).

        Maloney v. Gordon County Farms, supra at 828.

        Padgett v. Waffle House, 269 Ga. 105, 106 (1) (498 SE2d 499) (1998).


author: Blackburn, Judge.

text:
    A98A1055.
    ROCHA v. THE STATE.
    (506 SE2d 192)
   Blackburn, Judge.

Larry Rocha appeals his convictions of aggravated assault, possession of a firearm during the commission of a felony, and giving a false name to a law enforcement officer in the Superior Court of Gwinnett County, contending: (1) that the superior court erred in failing to quash his indictment; (2) that he was wrongfully indicted in superior court on offenses not properly transferred by the juvenile court; (3) that the superior court erred by not allowing him to present evidence that some of the crimes he was charged with were committed by someone else; (4) that the superior court improperly combined jury charges relating to identity and party to a crime; (5) that the superior court erroneously denied his motion to sever the charges against him; and (6) that the superior court erroneously denied his plea of double jeopardy. For the reasons set forth below, we affirm.

On March 11, 1995, Jacob Cobb, Brett Halama, Chris Sherrill, and Brad Boyette were out riding in Halama’s Jeep. Cobb, seeing a car with some girls whom he knew, raised his hand to hail them and motioned them to pull over to a nearby convenience store. Cobb testified that Rocha, who is Hispanic, and his companions followed them to the convenience store, jumped out of Rocha’s maroon low-rider truck, and accused Cobb and his friends of making an obscene gesture at him. Cobb further testified that Rocha pointed a gun at Sherrill’s head while making such accusations. Rocha then pointed the gun at Cobb while threatening him with bodily harm. Two eyewitnesses at the scene, including Cobb, picked Rocha’s picture from a photo lineup as the perpetrator. Stacy South, another eyewitness, told police that the tag number of the truck was 385EE. The tag number of Rocha’s truck was actually 835EE.

On March 15, 1995, Adam Raudebaugh was a passenger in a gray 1987 Chevrolet Nova driven by Emily Stoddard. After he exchanged rude gestures with individuals riding in the back of a maroon truck, Raudebaugh testified that the driver, whom he remembered being Hispanic, pulled out a gun and fired approximately four shots at Stoddard’s car. One bullet struck Raudebaugh in his chest. On the day of this incident, Christopher Watts was driving his vehicle, and, after being passed by Rocha’s pickup, he observed an arm extend out of the window on the driver’s side of the car and fire three or four shots into Stoddard’s car. Watts testified, however, that he believed the shooter was a black male wearing a long-sleeved plaid shirt. Kathleen Bass was a passenger in Rocha’s truck on March 15, 1995, and she identified Rocha as the driver on that day.

Based on this conduct, delinquency petitions were filed against Rocha in the juvenile court alleging five counts of aggravated assault. After a hearing, the juvenile court ordered that the cases against Rocha should be transferred to the superior court. On May 22, 1995, Rocha filed a notice of appeal with regard to this decision, and this Court issued an opinion affirming the transfer order on January 3, 1996. See In the Interest of L. R., 219 Ga. App. 755, 756 (2) (466 SE2d 653) (1996). In the interim, on July 11, 1995, Rocha was indicted by the grand jury of Gwinnett County on five counts of aggravated assault, two counts of possession of a firearm during the commission of a felony, and one count of giving a false name to a law enforcement officer.

1. In his first enumeration of error, Rocha contends that the superior court erroneously failed to quash the indictment returned against him, arguing that the superior court had no jurisdiction over Rocha’s case at the time that he was indicted by the grand jury. Rocha argues that the appeal of the transfer order vested jurisdiction of his case solely in this Court until such appeal was decided. We disagree.

In general, a juvenile court may transfer a juvenile’s case over which it has jurisdiction to superior court if, after a statutorily mandated hearing, the court determines, among other things, that there are reasonable grounds to believe that “(A) [t]he child committed the delinquent act alleged; (B) [t]he child is not committable to an institution for the mentally retarded or mentally ill; and (C) [t]he interests of the child and the community require that the child be placed under legal restraint and the transfer be made.” OCGA § 15-11-39 (a) (3). As noted above, we have previously decided that Rocha’s case was appropriately transferred to the superior court.

“In all cases of final judgments of a juvenile court judge, appeals shall be taken to the Court of Appeals or the Supreme Court in the same manner as appeals from the superior court. However, no such judgment or order shall be superseded except in the discretion of the judge; rather, the judgment or order of the court shall stand until reversed or modified by the reviewing court.” (Emphasis supplied.) OCGA § 15-11-64.

An appropriately entered transfer order constitutes a final judgment of the juvenile court. J.T.M. v. State of Ga., 142 Ga. App. 635, 636 (1) (236 SE2d 764) (1977). OCGA § 15-11-64 expressly states that any such judgment or order shall stand until reversed or modified by the appellate court. Accordingly, even though the transfer order was on appeal at the time Rocha was indicted, it remained in effect at that time, and the proceedings which occurred in the superior court, pursuant to the transfer order which had not been superseded, including Rocha’s indictment, were valid. Although Rocha complains that it would be unfair to allow proceedings to continue in the superior court while the appellate court considered the transfer order, Rocha was not bound to sit idly by while his case proceeded below. He could have moved this Court for a stay if a trial were to be initiated in the court below and he truly wished to stop the engines of the superior court.

In this case, the superior court judge wisely exercised his discretion to continue Rocha’s case after his indictment until this Court reached its opinion with regard to his transfer order. In doing so, the trial court ensured the speediest disposition possible for Rocha’s case. Accordingly, we find no error.

2. In his second enumeration of error, Rocha contends that he was wrongfully charged with indictments which were not first considered and transferred by the juvenile court. Although the juvenile court transferred five counts of aggravated assault to the superior court, Rocha was also indicted for two additional counts of possession of a firearm during commission of a felony and one count of giving a false name to a law enforcement officer.

Our Supreme Court has previously held: “‘[T]he concurrent jurisdiction of the superior court over capital felonies committed by juveniles must necessarily extend to related lesser crimes which are part of the same criminal transaction. To rule otherwise would be to bisect criminal conduct artificially and require the state to follow two procedures with no substantive meaning other than to satisfy procedural requirements, with the end result that the case involving the lesser crime would be instituted in juvenile court and transferred to the superior court, OCGA § 15-11-39, and the juvenile would still be tried for the lesser crime along with the crime giving the superior court concurrent jurisdiction. There is no loss of substantive protection of the juvenile, and the public’s rights should not be impeded by meaningless procedural steps which delay the judicial process and conceivably could lead to the frustration of justice under the rigorous requirements of the double jeopardy clause.’ ” Reynolds v. State, 266 Ga. 235, 236 (466 SE2d 218) (1996), quoting Worthy v. State, 253 Ga. 661, 662 (324 SE2d 431) (1985).

In the matter at hand, the juvenile court considered all the relevant evidence surrounding Rocha’s criminal conduct on March 11 and March 15, 1995, prior to transferring five counts of aggravated assault to the superior court. At that point, the superior court had jurisdiction over the aggravated assault charges. For similar reasons cited in Reynolds, supra, we find that such jurisdiction over the aggravated assault charges should also extend to the related lesser crimes resulting from the same criminal transaction, namely the counts regarding possession of a firearm and giving a false name. To rule otherwise would be to advocate the same sort of “meaningless procedural steps” and “frustration of justice” which our Supreme Court has rejected. Accordingly, we find no error in Rocha’s indictment in the superior court for two counts of possession of a firearm and one count of giving a false name to a police officer.

3. In his third enumeration of error, Rocha contends that the trial court erroneously denied him the right to present evidence that the March 15, 1995 shooting was perpetrated by Moses Ford. Specifically, Rocha contends that the following evidence should have been allowed to show that Ford was the actual shooter: (1) that Moses Ford was the leader of a gang known as “Clientele”; (2) that Ford employed methods of intimidation to control other gang members; (3) that Ford was known to carry a gun at all times; and (4) that Ford had “bargained” himself out of a similar aggravated assault charge by implicating Rocha in the March shooting.

Rocha attempted to introduce evidence that Ford was the leader of the Clientele and used methods of intimidation for the purpose of showing that other members of the gang would be biased against Rocha due to their fear of implicating Ford as the actual shooter. Specifically, Rocha makes this claim with regard to the testimony of Kathleen Bass and Kenyatta Martin. Although a defendant is entitled to a thorough and sifting cross-examination, the trial court appropriately limited such cross-examination in this case. The court stated: “I think you can ask if [Ford] ever suggested to them, ‘well, don’t implicate me.’ And if she’s afraid of him, I think you can inquire into that. But going into all the acts, sexual acts and physical acts or acts of abuse or violence or that sort of thing, with the posture of the case as it is, I don’t think it’s relevant.” As Rocha presented no evidence that Bass or Martin had actually been coerced by gang tactics, the trial court did not abuse its discretion in limiting his cross-examination. Nor did the court err in excluding testimony that Ford bargained himself out of a similar conviction, as Rocha presented no substantive evidence establishing this fact.

Under this enumeration, Rocha argues several additional errors. However, “OCGA § 5-6-40 requires that enumerations shall set out separately each error upon which relied. When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned.” (Citation and punctuation omitted.) White v. State, 221 Ga. App. 860, 861 (1) (473 SE2d 539) (1996). Moreover, with regard to a number of his arguments, Rocha raises new grounds for his objections for the first time on appeal. “Since the objection argued on appeal was not raised in the trial court, it presents nothing for this court to review.” Woods v. State, 210 Ga. App. 172, 174 (3) (435 SE2d 464) (1993).

4. In his fourth enumeration of error, Rocha contends that the trial court improperly combined jury charges relating to identity and party to a crime. We disagree.

“The evidence introduced at trial established without dispute that an aggravated battery had in fact been committed, and in such case the co-conspirators are guilty as parties to the commission of the crime under OCGA § 16-2-20. Where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue.” Day v. State, 197 Ga. App. 875, 876 (2) (399 SE2d 741) (1990).

Moreover, despite the fact that Rocha was not charged with being a party to a crime, the trial court’s charge on the law of party to a crime did not constitute reversible error. “The trial court charged the jury on the law of parties to a crime even though the State main - tained that defendant alone was responsible. . . . Even if the charge here was error, it would be harmless in light of the strong evidence” against Rocha. Lewis v. State, 195 Ga. App. 59, 60 (2) (392 SE2d 563) (1990).

Finally, considering the jury instructions as a whole, we do not find them to be so confusing as to mislead the jury. Viewed in its entirety, therefore, the charge to the jury was adequate, and we find no reversible error. See generally Hambrick v. State, 256 Ga. 688, 690 (3) (353 SE2d 177) (1987).

5. In his fifth enumeration of error, Rocha contends that the trial court erroneously denied his motion to sever the charges against him. We disagree.

“The decision to grant a severance rests within the sound discretion of the trial judge, who may balance the interests of the state and the accused by considering such factors as whether the same evidence would be necessary and admissible in each count, and whether the joining of counts in one trial might confuse the jury. It is not an abuse of that discretion in the interest of justice and economy for the judge to refuse a motion for severance of the trial of multiple charges where the crimes alleged were part of a continuous transaction or series of similar transactions conducted over a relatively short time, and from the nature of the entire transaction, it would be difficult to present to a jury evidence of one of the crimes without also referring [to] or permitting evidence of the others.” (Citations omitted.) Gilbert v. State, 163 Ga. App. 688, 690 (3) (295 SE2d 173) (1982).

Here, “[t]he facts in the two cases, as discussed above, are so similar that even if the two cases had been severed, each would have been admissible in the other case as evidence of a similar transaction. Accordingly, where the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying the motion for severance.” (Citation and punctuation omitted.) Redding v. State, 219 Ga. App. 182, 184 (3) (464 SE2d 824) (1995).

6. In his sixth enumeration of error, Rocha argues that the trial court erroneously denied his plea of double jeopardy, contending that the juvenile court conducted an adjudicatory hearing in his case. We disagree.

“[Rocha] contends . . . that the procedure the juvenile court used in considering transfer of the case to superior court constituted an adjudication of delinquency which barred further prosecution for the offenses involved. Had there been such an adjudication, it would have had the impact [Rocha] contends the transfer hearing had. In re T.E.D., 169 Ga. App. 401, 402 (2) (312 SE2d 864) (1984). The record, however, does not support [Rocha’s] contentions regarding the conduct and effect of the transfer hearing.” Livingston v. State, 266 Ga. 501, 506 (5) (467 SE2d 886) (1996).

Decided August 20, 1998

Rich & Smith, Randolph G. Rich, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A1114.
    SAWYER v. DeKALB MEDICAL CENTER, INC.
    (506 SE2d 197)
   Beasley, Judge.

After being admitted to DeKalb Medical Center (“DMC”), Horace K. Sawyer developed respiratory complications and died. Shortly before the expiration of the two-year statute of limitation (OCGA § 9-3-71 (a)), Mrs. Sawyer sued DMC for medical malpractice and attached the affidavit of Dr. Bryant, who swore that DMC’s medical personnel committed at least four acts of negligence. Almost a year later DMC deposed Dr. Bryant, who could not confirm the acts of negligence set forth in the affidavit. Mrs. Sawyer subsequently dismissed the action and within six months refiled in April 1997, this time attaching an affidavit from another physician.

DMC moved for summary judgment, arguing that Dr. Bryant’s deposition testimony vitiated his affidavit attached to the original complaint, which in turn rendered that action void under OCGA § 9-11-9.1. DMC reasoned that a void suit could not sustain the renewal action, and thus the running of the statute of limitation required summary judgment. The court agreed.

1. OCGA § 9-2-61 (a) provides that when a plaintiff voluntarily dismisses a timely filed suit, she may within six months refile that suit in a Georgia state court, even though the statute of limitation has run by the time she files the renewal action. Even if the first suit was defective, “[u]nless the case is an absolute nullity, the defective or improper suit may be used to nurse the cause of action into full life in the proper form and forum.”

Since 1987 plaintiffs bringing a medical malpractice action have been required to file with the complaint an affidavit of a competent expert that sets forth at least one negligent act or omission and the factual basis for such. Failure to do so subjects the action to dismissal for failure to state a claim.

In Patterson v. Douglas Women’s Center, P.C. the plaintiff failed to file an affidavit with her medical malpractice complaint. After the statute of limitation expired, she voluntarily dismissed and refiled within three months. The trial court granted the defendants’ motion for summary judgment, holding that the failure to comply with OCGA § 9-11-9.1 rendered the initial action void and incapable of renewal under OCGA § 9-2-61 (a). The decision was reversed.

Patterson held that OCGA § 9-2-61 “is remedial and is to be construed liberally. The ‘privilege’ of dismissal and renewal does not apply to cases decided on their merits or to void cases, but does allow renewal if the previous action was merely voidable.” Patterson construed the failure to file the § 9-11-9.1 affidavit as rendering the complaint voidable, not void, and reversed summary judgment. The affidavit is not intrinsic to the claim but is required for the benefit of defendant, so if defendant does not insist on it, the suit can still be tried on its merits. The suit is not lacking an essential element of such a cause of action, any more than it would if the affidavit was somehow defective or inadequate within its four corners and defendant did not challenge it. The lack of legal perfection would be waived. Thus, under Patterson DMC’s arguments fail, for even if Dr. Bryant’s affidavit were deemed invalid, the failure to file any affidavit at all in the first action would not preclude a renewal action with the proper affidavit.

Within months of the Patterson decision, the General Assembly added subsection (f) to OCGA § 9-11-9.1 to carve out an exception to Patterson: “If a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation,” unless plaintiff simply failed to attach an existing affidavit to the complaint by mistake.

Subsection (f) of OCGA § 9-11-9.1 does not apply to Sawyer’s case. When DMC moved for summary judgment, the only evidence or pleadings it filed from the previous action were the complaint, Dr. Bryant’s affidavit, and Dr. Bryant’s deposition. DMC provided no evidence nor argument that in its initial responsive pleading in the previous action it raised the failure to file a proper affidavit. It is unlikely DMC initially raised any such defense since DMC admits that Dr. Bryant’s affidavit per se was sufficient under OCGA § 9-11-9.1 and that it was only Dr. Bryant’s subsequent deposition testimony that rendered it defective by comparison. Movant DMC bore the burden of indisputably establishing that under OCGA § 9-11-9.1 (f) it was entitled to summary judgment, and it failed to do so.

2. Even if DMC had shown it raised the issue in its initial responsive pleading in the prior action, DMC’s position is not tenable. Mrs. Sawyer was required to file “an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” DMC concedes these requirements were met: Dr. Bryant was qualified to testify, he personally swore before a notary public to the truth of the statements contained in the affidavit he (not the lawyers) drafted, and he specified the factual basis for four separate acts of negligence by DMC medical personnel.

DMC contends that Dr. Bryant’s subsequent deposition testimony voided the affidavit and consequently the complaint. DMC reasons that under Prophecy Corp. v. Charles Rossignol, Inc., Dr. Bryant’s affidavit must be construed against Mrs. Sawyer because he could not confirm the acts of negligence set forth in the affidavit.

DMC’s reasoning misapprehends the law in at least three respects. First, “[t]he purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer. OCGA § 9-11-9.1 merely imposes an initial pleading requirement on the plaintiff. Pleading rules apply when addressing whether a plaintiff’s action is subject to dismissal under OCGA § 9-11-12 (b) (6); for a complaint to be subject to dismissal for failure to state a claim, the affidavit must disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts. A Section 9-11-9.1 affidavit should be construed most favorably to” the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible, so long as such construction does not detract from the purpose of § 9-11-9.1 of reducing the number of frivolous malpractice suits.” Reversing the trial court’s summary judgment for defendant, Fidelity Enterprises v. Beltran applied these principles in the context of a renewal action to hold valid the affidavit filed in the original action.

Second, “[t]he rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986) — that a party/witness’ testimony is to be construed against him when self-contradictory — does not apply to the testimony of a third-party witness.” Dr. Bryant was a third party to the action between Mrs. Sawyer and DMC. Finally, even ignoring that impediment, Prophecy Corp. does not require us to construe Dr. Bryant’s affidavit against Mrs. Sawyer. Prophecy Corp. set forth the rule that on summary judgment “the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is contradictory, vague or equivocal.”

The validity of an affidavit for OCGA § 9-11-9.1 purposes is not a summary judgment question; it is a motion to dismiss question. “Unlike OCGA § 9-11-56, which imposes an evidentiary requirement in the context of summary judgment on the merits, OCGA § 9-11-9.1 merely imposes an initial pleading requirement on the plaintiff in a malpractice action. Accordingly, an expert affidavit which would be insufficient to satisfy the evidentiary standards of OCGA § 9-11-56 may nevertheless be sufficient to satisfy the pleading standards of OCGA § 9-11-9.1.” Unlike Prophecy Corp., the affidavit is to be construed favorably to the plaintiff.

The Prophecy Corp. rule also does not apply because in determining the sufficiency of an affidavit under OCGA § 9-11-9.1, “consideration of essential evidentiary matters not included in the affidavit is improper.” We “limit our consideration to the four corners of the affidavit.” The question is whether the affidavit as filed is sufficient under OCGA § 9-11-9.1, not whether the affiant will repeat that testimony a year later in a deposition.

Decided August 20, 1998.

Joseph H. King, Jr., for appellant.

Love & Willingham, Jonathan C. Peters, Sullivan, Hall, Booth & Smith, Terrance C. Sullivan, Kevin P. Race, Thomas A. Graham, Elaine W. Whitehurst, for appellee.

The court erred in granting summary judgment to DMC.

Judgment reversed.

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

        Atlanta &c. R. Co. v. Wilson, 119 Ga. 781, 786 (47 SE 366) (1904).

       OCGA § 9-11-9.1 (a); see Ga. L. 1987, pp. 887, 889-890, § 3.

        Lutz v. Foran, 262 Ga. 819, 824 (4) (427 SE2d 248) (1993).

       258 Ga. 803 (374 SE2d 737) (1989).

       Id. at 804 (3); see Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994).

       258 Ga. at 804 (4).

       Ga. L. 1989, pp. 419, 421-422, § 3. In 1997, the General Assembly amended this subsection, which amendment does not apply to actions filed before July 1, 1997. Ga. L. 1997, pp. 916-917, 919, §§ 1, 2.

       See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       OCGA § 9-11-9.1 (a).

       See Carnes v. Carnes, 138 Ga. 1, 6 (3) (74 SE 785) (1912) (“[i]n order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath”); Schmidt v. Feldman, 230 Ga. App. 500, 501 (1) (497 SE2d 23) (1998) (same); Crook v. Funk, 214 Ga. App. 213, 214-215 (1) (447 SE2d 60) (1994) (need only specify factual basis for one act of negligence).

       256 Ga. 27 (343 SE2d 680) (1986).

       (Citations and punctuation omitted; emphasis in original.) Lee v. Visiting Nurse Health System &c., 223 Ga. App. 305, 306 (477 SE2d 445) (1996); see Hewett v. Kalish, 264 Ga. 183, 184 (1) (442 SE2d 233) (1994); Gadd v. Wilson & Co., 262 Ga. 234, 235 (416 SE2d 285) (1992).

       214 Ga. App. 205 (447 SE2d 150) (1994).

        Allen v. King Plow Co., 227 Ga. App. 795, 799 (4) (490 SE2d 457) (1997); see Miller v. Douglas, 235 Ga. 222, 223 (219 SE2d 144) (1975).

       (Citations and punctuation omitted.) 256 Ga. at 30.

       (Citations omitted; emphasis in original.) Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992); see Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 66 (4) (424 SE2d 632) (1992) (“[a]n expert affidavit, submitted by plaintiffs, has ‘a lesser evidentiary standard to meet when used to fulfill the requirement of OCGA § 9-11-9.1 (a),’ than when also relied upon as expert testimony to create genuine issues of material fact in the disposition of a motion for summary judgment”) (citation omitted).

        Bowen, 203 Ga. App. at 123-124.

        HCA Health Svcs. of Ga. v. Hampshire, 206 Ga. App. 108, 110 (2) (424 SE2d 293) (1992).

        Deal v. Handson, 210 Ga. App. 499, 500 (1) (436 SE2d 519) (1993), rav’d on other grounds, Handson v. HCA Health Svcs. of Ga., 264 Ga. 293 (443 SE2d 831) (1994).


author: JOHNSON, Presiding Judge.

text:
    A98A1175.
    JOHNSON v. THE STATE.
    (506 SE2d 212)
   JOHNSON, Presiding Judge.

A jury found Gary Johnson guilty of driving under the influence of alcohol to the extent he was a less safe driver, failing to stop at a stop sign, and possessing an open container of alcohol while operating a vehicle. Johnson appeals, and we affirm.

1. In his first enumeration of error, Johnson contends the trial court erred in commenting on the evidence. Specifically, Johnson argues that during a colloquy with counsel regarding the admissibility of the uniform traffic citation, the trial court stated in the presence of the jury that the citation, which Johnson signed, was admissible to show Johnson’s knowledge of the contents of the traffic citation. The record shows that Johnson’s description of the facts at issue varied greatly from the state’s description of the facts at issue. Thus, his knowledge of the facts as stated in the traffic citation may have been an important issue for the jury’s determination regarding the credibility of the witnesses and the weight to be given the evidence. The officer testified that he informed Johnson of what was on the ticket and Johnson signed the ticket.

During the colloquy, the trial judge stated, “I’m admitting [the traffic citation] as evidence in this case. It’s one of the charges against him to show his knowledge.” Johnson’s counsel excepted to the admission of the traffic citation and then stated, “And I would object, Your Honor, to the Court’s comments saying it shows his knowledge.” To which the trial judge responded, “Well, if somebody signs something,. . . as a matter of law they are presumed to — if he can’t read and write that’s a different story. Now, I don’t know anything about it. Objection overruled.” Johnson’s counsel then made another motion for mistrial “based on the comments of the Court on the evidence as to whether it shows knowledge.” The trial judge replied, “I’m not commenting on the evidence. That’s up to the jury.”

Even assuming that the trial court’s comments were opinions as to what had been proven in the case, the rule which prohibits an expression or intimation of opinion by the trial court as to what has or has not been proven does not extend to colloquies between the judge and counsel regarding the admissibility of evidence. OCGA § 17-8-57; Rowe v. State, 266 Ga. 136, 139 (2) (464 SE2d 811) (1996); Aman v. State, 223 Ga. App. 309, 310 (2) (477 SE2d 431) (1996). “[Rjemarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” (Citation and punctuation omitted.) McGinnis v. State, 258 Ga. 673, 675 (4) (372 SE2d 804) (1988); Mathis v. State, 171 Ga. App. 620 (1) (320 SE2d 861) (1984). The trial judge’s comments in this case were correct statements of the law explaining the reason for his ruling. They did not constitute an improper expression or intimation of opinion.

Furthermore, the trial judge charged the jury that “by no ruling or comment which the Court has made during the progress of the trial or during this charge has the Court intended to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence or upon the guilt or innocence of the defendant. All of these matters belong exclusively to you for your judgment and determination.” For these reasons, we believe this enumeration lacks merit.

2. Johnson next contends the trial court erred in admitting into evidence the uniform traffic citation, which contains the arresting officer’s notation that Johnson refused the state-administered breath test. He maintains that evidence of his refusal to take the breath test constitutes a discovery violation and that allowing the traffic citation to go out with the jury constitutes a violation of the continuing witness rule. We disagree.

(a) According to Johnson, he requested prior to trial that the state provide him with copies of all custodial statements made by him. He argues that under OCGA § 17-16-22, providing discovery rights in misdemeanor cases, he requested a copy of the uniform traffic citation showing his refusal to submit to the state-administered breath test. Johnson contends that since the state did not provide him with a copy of the citation, it was not admissible at trial, and the admission of the citation harmed his case. This argument lacks merit.

Decided August 20, 1998.

Weaver & Weaver, George W. Weaver, Jeffrey L. Floyd, for appellant.

The arresting officer testified without objection that Johnson refused to submit to a breath test. In fact, Johnson admitted at trial that he refused the officer’s request that he take a breath test. Pretermitting the question of whether the notation on the traffic citation was an in-custody statement subject to the provisions of OCGA § 17-16-22, Johnson was not harmed by the introduction of evidence which was already before the jury. “We will not grant a new trial or reverse a case for error unless it is also shown to be harmful, and evidence is harmless where admissible evidence of the same fact is before the jury. [Cit.]” Young v. State, 191 Ga. App. 651, 653 (2) (382 SE2d 642) (1989); see also Arrington v. State, 224 Ga. App. 676, 680 (3) (b) (482 SE2d 400) (1997). Assuming without deciding that error occurred in admitting the uniform traffic citation, any such error was harmless.

(b) Allowing the uniform traffic citation to go out with the jury does not violate the continuing witness rule. It is well established that the proscription against allowing the jury to possess “written testimony” during deliberations does not extend to documents that are relevant and admissible as original documentary evidence in the case. Hodson v. Mawson, 227 Ga. App. 490, 491 (2) (489 SE2d 855) (1997). Moreover, all the circumstances connected with an accused’s arrest are admissible as evidence at trial, including copies of traffic citations issued against the accused. Howell v. State, 179 Ga. App. 632, 634 (2) (347 SE2d 358) (1986).

The fact that the traffic citation in the present case included the arresting officer’s notation that Johnson refused to submit to a breath test does not alter our opinion. If there was any error in allowing this evidence to go out with the jury, the error was harmless as a matter of law since both Johnson and the arresting officer testified during trial that Johnson had refused to submit to the breath test. See Ansley v. State, 198 Ga. App. 452, 453 (402 SE2d 73) (1991). Therefore, it is highly probable that the notation on the traffic citation did not contribute to the verdict. See Hightower v. State, 166 Ga. App. 744, 748 (5) (305 SE2d 372) (1983), rev’d on other grounds, State v. Hightower, 252 Ga. 220 (312 SE2d 610) (1984); Rains v. State, 161 Ga. App. 361, 362 (3) (288 SE2d 626) (1982).

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.

Roger Queen, District Attorney, Joe W. Hendricks, Jr., Assistant District Attorney, for appellee.


author: Johnson, Presiding Judge.

text:
    A98A1198.
    CARL v. THE STATE.
    (506 SE2d 207)
   Johnson, Presiding Judge.

Richard John Carl, Jr. appeals his conviction of rape of a 14-year-old girl.

1. Carl contends that his motion for new trial should have been granted based on a claim of newly discovered evidence. We disagree.

A new trial should be granted due to newly discovered evidence when a defendant satisfies the six requirements of Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980). Among these requirements are that the evidence has come to defendant’s knowledge since trial, that it was not owing to the want of due diligence that he did not acquire it sooner, and that it is so material that it would probably produce a different verdict. All six requirements must be met to secure a new trial. Id.

Carl’s appellate counsel contends that the testimony of Jason Bodie, a/k/a Jason Boody, the only eyewitness to the alleged rape of the victim, is newly discovered evidence requiring the grant of Carl’s motion for new trial. Bodie was Carl’s friend and was with him on the night of the incident. The substance of Bodie’s testimony is that he observed Carl and the victim having what appeared to him, from the positions and sounds of the parties, to be consensual sex.

The record establishes that at trial Carl’s counsel was aware Bodie had been present on the night of the incident, was aware that prior to trial a detective had interviewed Bodie, and was aware that Bodie was not present at trial and probably would not be called as a state’s witness. As a matter of trial strategy, trial counsel asserted that it was Bodie and not Carl who had sex with the victim. Thus, this is not a situation involving a newly discovered witness. Bodie had entered the vacant house with Carl and the victim on the night of the incident. Further, on appeal Carl makes no claim that Bodie refused to testify or refused to submit to pretrial interview by Carl. See Davis v. State, 221 Ga. App. 375 (471 SE2d 307) (1996) (defendant made no effort to subpoena accomplice and sought no continuance because of his unavailability).

“A new trial may be granted when material evidence, not merely cumulative [sic] in its character, but relating to new and material facts, shall be discovered by the applicant after the rendition of a verdict against him; but it must appear that neither the applicant nor his counsel knew of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence. [Cit.]” Norman v. Goode, 121 Ga. 449, 453 (49 SE 268) (1904). A defendant is not entitled to go to trial hoping to convince the jury by relying on a particular trial strategy and, when that strategy fails, attempt to obtain a new trial by proffering evidence which he knew or which, although newly available, could have been discovered earlier by exercise of due diligence. See also Humphrey v. State, 252 Ga. 525, 528 (3) (314 SE2d 436) (1984). One of the requirements of Timberlake, supra at 491, is that it must not be because of want of due diligence that the allegedly newly discovered evidence was not acquired sooner. Due diligence must have been employed by the defendant. Carl was fully aware of the existence of Bodie and his close proximity to the crime scene. He was also aware that Bodie had been interviewed prior to trial by a law enforcement official. Carl has failed to carry his burden on appeal of establishing that he used due diligence as required by Timberlake.

Additionally, the trial court found that Bodie’s credibility would be seriously impaired in the event of a new trial; thus, his testimony would serve only to impeach the victim’s credibility and would not be so material that it probably would produce a different verdict in the event of a new trial. One of the Timberlake requirements is that new evidence must be so material that it would probably produce a different verdict. Id. at 491. In determining whether any newly discovered evidence would probably produce a different verdict, a trial court should not consider new evidence in isolation. Alexander v. State, 186 Ga. App. 787, 790 (4) (368 SE2d 550) (1988). Rather, it should consider the strength and weaknesses of both the state’s and the defendant’s case and the nature and strength of a defendant’s new evidence. See id. Moreover, the court should evaluate any credibility problems inherent in the new evidence and determine whether because of such problems, the proffered evidence probably would not result in a different verdict. See Davis, supra at 378. The trial court did not abuse its discretion in this matter. See Jewell v. State, 261 Ga. 861, 862 (2) (413 SE2d 201) (1992).

2. The trial court did not err in denying Carl’s motion for new trial on the grounds of ineffective assistance of trial counsel. To establish a claim of ineffective assistance of counsel, Carl must show his trial counsel’s performance was deficient and the deficiency so prejudiced his defense that a reasonable probability exists that the trial result would have been different if the deficiency had not occurred. Nihart v. State, 227 Ga. App. 272, 273 (1) (488 SE2d 740) (1997).

(a) Pretermitting whether trial counsel’s performance was deficient in failing to interview Bodie and to call him for trial is whether if such deficiency had not occurred, a reasonable probability exists that a different verdict would have been reached. We conclude that no such reasonable probability exists. It is asserted Bodie would testify that: Carl and the victim were kissing that evening and were holding hands as they went upstairs in the vacant house; Bodie later heard sounds of intercourse from upstairs and observed the victim on top of Carl engaged in an act of sexual intercourse; the act of intercourse appeared to be consensual; and Bodie did not hear the victim scream or protest. At trial, the victim testified that Carl had sexual intercourse with her by force and without her consent and, although she was crying at the time, she did not scream or call for help. Thus, some of Bodie’s post-trial testimony would be cumulative.

Additionally, review of the record in its entirety shows that it was the strategy of Carl and his trial counsel to blame the Tape on Bodie should the jury believe the victim was in fact raped. As Bodie would deny that he committed the rape and would testify that he saw Carl having sexual intercourse with the victim, it is clear that presenting Bodie as a defense witness would undermine the original defense strategy. Carl has not overcome the presumption that the failure to call Bodie as a defense witness at trial falls v/ithin the range of reasonable professional assistance and might be considered sound trial strategy. Ferrell v. State, 261 Ga. 115, 119 (3) (401 SE2d 741) (1991). We will not use hindsight to evaluate the wisdom of this strategy.

(b) Carl also claims his trial counsel was inadequate for failing to call Terry Hicks as a witness. Hicks observed the similar transaction rape victim in the presence of Carl after the alleged rape had occurred and would have testified that she was smiling, was not crying, and did not appear to be upset, and that Carl’s reputation was pretty good as far as he knew.

Pretermitting whether the failure to interview and call Hicks as a witness was deficient professional conduct is whether if such deficiency had not occurred a reasonable probability exists that a different verdict would have been reached. We conclude that no reasonable probability exists that a different verdict would have likely been reached. Hicks merely observed a similar transaction rape victim’s demeanor later during the night of her asserted rape by Carl. At most, Hicks’ testimony would have been offered to impeach the similar transaction rape victim’s rape claim and to show Carl’s “pretty good” character. Carl has failed to make an affirmative showing that specifically demonstrates how trial counsel’s failure to call Hicks probably would have affected the outcome of this case! See Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995).

(c) Trial counsel’s decision not to call character witnesses, including Hicks, was a matter of trial tactics. We agree with the trial court’s findings that trial counsel’s decision not to call witnesses cannot be considered as deficient performance. As the trial court held “[t]he decision to preserve the valuable right to closing argument by trial counsel, even in light of the evidence presented by appellate counsel at the motion for new trial hearing, was a reasonable trial tactic.” Further, trial counsel testified that Carl made a decision not to testify or to have any witnesses testify in his behalf. The decision to call character witnesses, the making of objections and motions, and the conduct of the defense in general are the exclusive province of the lawyer after consulting with the client. Young v. State, 191 Ga. App. 651, 652 (2) (382 SE2d 642) (1989). Carl has not overcome the strong presumption that counsel’s performance was not deficient and that his actions in failing to call these witnesses might be considered sound trial strategy. See Luallen v. State, 266 Ga. 174, 176 (3) (a) (465 SE2d 672) (1996); Ferrell, supra.

(d) Pretermitting whether trial counsel’s performance was deficient in failing to investigate the background of the victim, the similar transaction victim, and the police detective is whether if such deficiency had not occurred, a reasonable probability exists that a different verdict would have been reached. We conclude that it would not. The trial court found that trial counsel’s cross-examination of the state’s key witnesses was effective. This finding is supported by examination of the record. Carl has failed to show affirmatively that but for any deficiency in investigating these witnesses’ backgrounds there probably would have been a different verdict. Moreover, a trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. See Karvonen v. State, 205 Ga. App. 852, 853 (2) (424 SE2d 47) (1992).

(e) Carl contends that trial counsel’s failure to object to the state’s opening and closing statements, asserting that Bodie had claimed Carl raped the victim, was deficient. Contrary to Carl’s contention the jury was not informed by the state that Bodie claimed Carl had raped the victim. Rather, the record reflects that the jury at most was informed, without objection, that Bodie was the one who reported the incident to the police. Carl has not overcome the strong presumption that counsel’s performance was not deficient and that his actions in failing to object to the state’s opening statement and the testimony of the victim that Bodie reported the incident might be considered sound trial strategy. See Luallen v. State, supra; see also Key v. State, 230 Ga. App. 359, 360 (1) (496 SE2d 497) (1998) (defendant failed to show the requisite deficiency and prejudice needed for reversal where trial counsel failed to move in limine to redact defendant’s name from taped telephone conversation).

(f) Carl contends that his trial counsel did not spend an adequate amount of time in trial preparation. There exists no specific amount of time which a trial counsel must spend in trial preparation; each situation must be judged upon its own circumstances in light of its own degree of complexity. Reddin v. State, 223 Ga. App. 148, 151 (3) (e) (476 SE2d 882) (1996).

Decided August 20, 1998

Strongwater & Cherniak, Leeza R. Cherniak, for appellant.

James R. Osborne, District Attorney, for appellee.

(g) Carl asserts that the effect of the totality of his trial counsel’s allegedly deficient representation was to prejudice him within the meaning of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case. Brown v. State, 268 Ga. 354, 357 (4) (490 SE2d 75) (1997). Each claim of inadequacy must be examined independently of other claims, under the two-prong standard of Strickland, supra. Compare Hawes v. State, 240 Ga. 327, 328 (1) (240 SE2d 833) (1977) (appellant contended that cumulative impact amounted to ineffective assistance of counsel); Reddin, supra at 151 (3) (multiple claims of inadequacy independently analyzed). Georgia does not recognize the cumulative error rule. See Bridges v. State, 268 Ga. 700, 708 (8), (9) (492 SE2d 877) (1997).

3. Carl has asserted two separate claims of error in both his third and fourth enumerations of error in violation of OCGA § 5-6-40. In his third enumeration of error, Carl asserts: (a) the trial court erred in excluding evidence of the separate transaction victim’s prior sexual contact with Bodie, and (b) trial counsel provided ineffective assistance in failing to cite authority to support the introduction of such evidence. In his fourth enumeration of error, Carl asserts: (a) the trial court erred in admitting evidence of an alleged similar transaction because it was unduly prejudicial and did not bear sufficient indicia of reliability, and (b) trial counsel was ineffective for failing to request a Uniform Superior Court Rule 31.3 hearing. A statutory rule which is not consistently enforced ceases to be an effective rule. Because of the violation of the provisions of OCGA § 5-6-40, we will not review any of the errors asserted in these two enumerations of error. Duggan v. State, 225 Ga. App. 291, 297 (7) (483 SE2d 373) (1997); Arrington v. State, 224 Ga. App. 676, 677 (1) (482 SE2d 400) (1997); White v. State, 221 Ga. App. 860, 861 (1) (473 SE2d 539) (1996).

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A1458.
    EDWARDS v. INGLES MARKET, INC.
    (506 SE2d 205)
   Blackburn, Judge.

Rose Edwards appeals the trial court’s grant of summary judgment to Ingles Market, Inc. in this “rainy day” slip and fall case. For the reasons set forth below, we reverse.

“In determining whether the trial court properly granted summary judgment, we review the record evidence de novo to determine whether that evidence, with all inferences construed in [Edwards’] favor, showed as a matter of law that [Ingles was entitled to summary judgment].” Bell v. Smith, 227 Ga. App. 17 (488 SE2d 91) (1997).

Viewing the evidence in this light, the record shows that Edwards entered Ingles on August 15, 1994, during a rainstorm, to do her weekly grocery shopping. Edwards was accompanied by her granddaughter, whose hand she was holding. As Edwards approached the shopping carts near the entrance, she slipped in a puddle of water approximately 12 inches in diameter and fell. She testified that she was not looking at the floor as she was walking, but was looking at the shopping carts she was approaching. She also stated that, if she had been looking at the floor, she would have been unable to see the puddle, which was invisible. Edwards was wearing flat, rubber-soled shoes at the time of her fall.

Virginia Hand, another customer who had entered the store before Edwards, testified that, approximately 15 minutes prior to Edwards’ fall, she reported the presence of the puddle which caused the fall to the store manager. She also stated that no warnings regarding the wet floor were posted. Ingles’ manager, Enman Hayes, disputed this testimony, stating that he was not forewarned about the puddle on the floor by Hand.

“[T]o recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997). See also Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980). Moreover, “an invitee might recover for personal injury in a slip and fall only when the perilous instrumentality is known to the owner or occupant and not known to the person injured.” (Punctuation omitted.) Robinson at 736. The true ground of liability is the owner or occupier’s superior knowledge of the hazard and the danger therefrom. Cook v. Home Depot, 214 Ga. App. 133, 134 (1) (447 SE2d 35) (1994).

1. In this case, Hand testified that she informed Ingles’ manager about the puddle on the floor approximately 15 minutes prior to Edwards’ fall. Although Ingles’ manager denies such knowledge, for purposes of summary judgment, we must construe the evidence in Edwards’ favor. As such, the first prong of the Robinson test is satisfied because there was testimony that Ingles had actual, and therefore superior, knowledge of the puddle which caused Edwards’ fall.

Contrary to Ingles’ arguments, the fact that Edwards and Ingles must be considered to have equal constructive knowledge that the floor might be wet in a general sense on such a rainy day does not prevent Edwards from satisfying the first prong of Robinson. “Gibson v. Consolidated Credit Corp.[, 110 Ga. App. 170 (138 SE2d 77) (1965),] and subsequent cases hold that store proprietors are not liable to patrons who slip and fall on floors made wet by rain conditions where there has been no unusual accumulation of water and the proprietor has followed reasonable inspection and cleaning procedures. As do Alterman Foods[, supra,] and Robinson[, supra,] Gibson and the cases following it recognize that the proprietor is not an insurer of its invitees’ safety and the true ground of its liability is its superior knowledge of the hazard. As stated in Gibson, it is a matter of common knowledge that some water would normally be present at a place where shoppers continually pass in and out during rainy weather. It is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas.” (Punctuation and footnotes omitted.) Smith v. Toys “R” Us, 233 Ga. App. 188, 191 (504 SE2d 31) (1998).

The present case, however, is distinguishable from Gibson and its progeny as Ingles had superior knowledge of the puddle which caused Edwards to fall. “Equal knowledge of both parties as to weather conditions does not bar recovery, as would the invitee’s knowledge of the specific hazard which caused the fall. Although it can be said that both parties had constructive knowledge that the weather conditions would produce a wet floor at the store’s entrance, as the evidence now stands defendant but not plaintiff knew that [the puddle in which plaintiff slipped had formed prior to plaintiff’s fall]. Plaintiff, on the other hand, could assume that the owner/operator was keeping the premises safe.” Smith, supra at 192. Whether Ingles was therefore negligent for failing to mop up the puddle prior to Edwards’ fall is a question for a jury. See, e.g., Weight Watchers of Greater Atlanta v. Welborn, 165 Ga. App. 290 (299 SE2d 760) (1983).

2. The second prong of Alterman Foods, supra, requires that “the customer must exercise care for [her] own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it.” (Punctuation omitted; emphasis in original.) Piggly Wiggly Southern v. James, 225 Ga. App. 846, 847 (485 SE2d 223) (1997). A customer employs ordinary care when she uses “all senses to discover and avoid hurtful things. The established standard is whether, taking everything into account, the act is one which the common sense of mankind pronounces want(s) of such prudence as the ordinarily careful person would use in a like situation.” (Citations omitted.) Robinson, supra at 741.

Decided August 20, 1998.

Van C. Wilks, for appellant.

Chambers, Mabry, McClelland & Brooks, Emory S. Mabry III, Robert M. Malcom, for appellee.

“Given the evidence, it is a jury question whether [Edwards] failed to exercise ordinary care for her own safety. Her testimony that she was not looking directly at the floor at the time she fell because she was [looking at the shopping carts] does not alone show she was not exercising ordinary care. Looking continuously, without intermission, for defects in a floor is not required in all circumstances. What is a reasonable lookout depends on all the circumstances at the time and place.” (Citations and punctuation omitted.) Smith, supra at 192.

It is the duty of this Court to follow the mandate of our Supreme Court which “remind[s] members of the judiciary that the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson, supra at 748. As the evidence here was not plain, palpable or undisputed, summary adjudication was inappropriate.

Judgment reversed.

McMurray, P. J., and Eldridge, J., concur.


author: Judge Harold R. Banke.

text:
    A98A1534, A98A1535.
    DISCOVERY POINT FRANCHISING, INC. et al. v. MILLER et al.; and vice versa.
    (505 SE2d 822)
   Judge Harold R. Banke.

The underlying litigation arose from disputes involving Discovery Point Franchising, Inc. (“DPFI”), a corporate franchisor of child care centers, and a DPFI franchise owned by Douglas and Sharon Miller. Ultimately, the litigation encompassed Clifford Clark and Diane Alexander, the owners of DPFI, as well as the Millers individually. A divided jury verdict resulted in the instant appeal and cross-appeal.

The record showed the following. While residing in Florida, Douglas Miller received a letter dated June 4, 1993, faxed from Clifford Clark. This document states in pertinent part: “[w]e have proposed the following: 1. We will assist you in the purchase and opening of a Discovery Point Center with your investment of a minimum of $50,000 in the project. $25,000 would be for the Franchise Fee and the other $25,000 would purchase equipment. This means that we are prepared to loan you and Sharon personally up to $150,000, dependent upon the actual cost of the project. I emphasize actual cost of the project, as there is ample opportunity for the developer to add profit to the project. You would own the real estate, equipment, etc. and would be the very first DP franchisee to do so.” The Millers sought to enforce this facsimile as a binding “actual cost” contract.

In September 1993, Douglas Miller, who had relocated to Atlanta and become a DPFI franchise salesman, and his wife entered into a franchise purchase agreement with DPFI. The Millers also sought to buy the land on which their new facility was to be located, the building, and certain equipment and supplies (“franchise property”). In early October 1993, the Millers executed a real estate sales contract with Clark and Alexander for the purchase of the franchise property for $1.2 million. To obtain most of the financing, the Millers applied for a $950,000 SBA loan from the Commercial Bank of Georgia. Notwithstanding DPFI’s termination of Douglas Miller’s employment in December, the Millers proceeded with the closing on January 27, 1994. Among other documents, the Millers executed a $230,000 promissory note to Clark and Alexander secured by a deed.

Shortly after the Millers began operating their new franchise, problems between them and DPFI surfaced. When DPFI sued Douglas Miller for repayment of a $3,500 commission, the Millers counterclaimed for breach of Miller’s employment contract, fraud in connection with the employment contract, intentional infliction of emotional distress, and rescission of the franchise agreement. After the Millers refused to repay the $230,000 note, Clark and Alexander filed a separate collection action to which the Millers counterclaimed for intentional infliction of emotional distress. While DPFI’s action was pending, the Millers notified DPFI on March 1, 1996, that they were terminating the franchise agreement. DPFI then amended its suit to assert claims for breach of the franchise agreement, franchise fees, and attorney fees.

Clark testified that several months before the closing the parties agreed to a $1.2 million purchase price with him and Alexander providing part of the financing as a second mortgage. Both Clark and Alexander testified that they never agreed to accept anything less from the Millers than the full amount of the $230,000 note and never agreed to sell the franchise property at cost. The SBA loan documents repeatedly reflect a second mortgage of $230,000 to the sellers and a $1.2 million purchase price. David Boehmig, Commercial Bank’s vice president in charge of SBA lending, oversaw the Millers’ loan application. From early on, it was Boehmig’s understanding that there would be “seller subordinated financing” by Clark and Alexander, the realty owners. The SBA “Funds Provided Statement,” which the Millers signed and dated October 29, 1993, lists a $1.2 million purchase price and a $230,000 second mortgage. In an equity affidavit provided to Commercial Bank, the Millers attested that they owed a $230,000 note to Alexander and Clark. Boehmig recalled discussing the second mortgage note of $230,000 with the Millers. According to Boehmig, the bank would not have loaned the $950,000 to the Millers if the Millers did not have to repay the $230,000 note. Several months later, when Douglas Miller listed the business for sale with a commercial real estate broker, Miller informed the broker that the property was encumbered by an SBA loan for $950,000 and an assumable second mortgage for $230,000. Miller told the broker that the appraised value was $1.3 million and his asking price was $1.5 million.

The gist of the Millers’ testimony was that they were fraudulently induced to purchase the franchise property and fraudulently induced to sign the note. The Millers claimed that relying on the June 1993 fax and statements by Clark and Alexander, they understood that they were to purchase the franchise property at “actual cost” a figure less than the $1.2 million purchase price. They testified that notwithstanding all the closing documents, the parties had a side agreement for repayment of less than the $230,000 note and less than the $1.2 million purchase price. According to the Millers, the promissory note would be enforced only to the extent that the actual cost of the project exceeded $950,000, the amount of the SBA loan. On cross-examination, Douglas Miller claimed that the $230,000 note was a sham transaction trumped up to deceive the bank and the SBA into believing there had been an equity infusion into the property. The Millers asserted that DPFI harassed them by threatening to accelerate the note and by instituting excessive inspections of their facility because DPFI wanted to wrest the franchise away and drive them out of business.

The six-page verdict form was complicated and consisted of nineteen questions. Initially, on question one, the jury determined that Clark and Alexander could enforce the $230,000 note and awarded $107,752.63 in damages to them on that claim. But the trial court rejected this verdict as inconsistent since it awarded less than the full amount of the note. The court then instructed the jury to consider question one as “an all or nothing proposition.” The jury then apparently repositioned the $107,752.63 amount to the section for damages under the “actual cost” contract. The jury also awarded $120,403.50 to DPFI for the Millers’ wrongful termination of the franchise agreement. Although the jury also found that DPFI breached the franchise agreement, it awarded no damages to the Millers. Similarly, the jury found for the Millers on their claim for fraud in the procurement of the note, but awarded no damages. The jury valued the Millers’ claim for intentional infliction of emotional distress at $50,000. DPFI, Clark, and Alexander appeal, and the Millers cross-appeal. Held:

Case No. A98A1534

1. The trial court erred by denying the motion for j.n.o.v. on the jury’s finding that an “actual cost” contract governed the parties’ relationship rather than the written real estate sales contract. The purported agreement that Clark and Alexander would sell the franchise property to the Millers at an “actual cost” to be determined later is simply too vague to be enforced. Lemming v. Morgan, 228 Ga. App. 763, 764 (1) (492 SE2d 742) (1997). Further, the written document, the fax of June 4, 1993, is legally insufficient because it lacks all essential terms including a legal description of the land, a sales price, and the specifics of payment. Smith v. Wilkinson, 208 Ga. 489, 493 (2) (67 SE2d 698) (1951). See Smith v. Cox, 247 Ga. 563 (277 SE2d 512) (1981) (contract for the sale of land which is partly written and partly oral is not enforceable). Moreover, this purported “actual cost contract” which included the sale of realty fails as a matter of law because it does not identify that realty. Smith, 208 Ga. at 493 (2); East Piedmont 120 Assoc. v. Sheppard, 209 Ga. App. 664, 665 (434 SE2d 101) (1993); OCGA § 13-5-30 (4).

2. Clark and Alexander contend that the trial court erred in denying their motion for j.n.o.v. on the issue that the $230,000 note was procured by fraud and unenforceable. We agree. “ ‘Evidence that at the time the maker signed the note it was distinctly understood that the maker would not have to pay the note is not permitted to compete with the written contents of the note which fails to contain the alleged stipulations.’ [Cits.]” Weintraub v. Cobb Bank & Trust Co., 249 Ga. 148, 149 (1) (288 SE2d 553) (1982). Oral representations made as inducements to a contract are inadmissible to add to, take from, or vary a written contract. C & S Trust Co. (Ga.) v. Johnson, 201 Ga. App. 464, 465 (411 SE2d 543) (1991). An oral agreement between parties relating to a condition not expressed in a note is incompetent to change the contract as represented on its face. Devin Lamplighter, Ltd. v. American Gen. Finance, 206 Ga. App. 747, 749 (2) (426 SE2d 645) (1992) (parol evidence rule prohibits parties from introducing evidence of an alleged oral promise which, if proven, would contradict the terms of a promissory note). OCGA § 24-6-1. See Cooper v. Mercantile Nat. Bank, 137 Ga. App. 605, 609 (2) (224 SE2d 442) (1976) (complete and unambiguous instrument cannot be varied by inconsistent parol statements).

In the absence of fraud, accident, or mistake, parol evidence cannot be considered to alter or vary the terms of an unambiguous promissory note. Johnson, 201 Ga. App. at 465. But, here, a finding of fraud in the procurement of this note would implicitly mean that the Millers, as borrowers, deceived Commercial Bank and the SBA by testifying falsely in the SBA equity affidavit that “$230,000 in the form of Note to Diane Alexander and Clifford Clark” had been injected into the transaction. Assuming solely for the sake of argument the existence of a side agreement for the repayment of less than the full amount of that note, in light of Boehmig’s uncontroverted testimony that the bank would not have extended the loan without the $230,000 note, the Millers should not be able to derive any benefit from their false testimony that they were, in fact, indebted for that amount. See Lee v. White, 249 Ga. 99, 101 (1) (c) (286 SE2d 723) (1982); compare Seymour v. Bruce, 187 Ga. App. 357, 359 (370 SE2d 210) (1988).

3. DPFI contends that the trial court erred in denying its motion for j.n.o.v. on the issue that it breached the franchise agreement. DPFI claims that the jury was not authorized to find it in breach because the Millers failed to provide written notice and 30 days to cure any such breach as mandated by the terms of the franchise agreement. But those terms applied to a franchisee’s right to terminate the agreement and would not foreclose a finding that DPFI breached the agreement. Because the Millers offered some evidence that DPFI breached the agreement by conducting unreasonable inspections and by failing to provide the requisite support services, we must affirm. F.A.F. Motor Cars v. Childers, 181 Ga. App. 821 (354 SE2d 6) (1987).

4. DPFI, Clark, and Alexander contend that they were entitled to judgment notwithstanding the verdict on the Millers’ intentional infliction of emotional distress claim because no evidence or law supported the jury’s verdict. We agree. To prevail on a claim for intentional infliction of emotional distress, a defendant’s conduct “must be so extreme . . . as to go beyond all [reasonable] bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Turnbull v. Northside Hosp., 220 Ga. App. 883, 884 (2) (470 SE2d 464) (1996). Only where the distress inflicted is so severe that no reasonable person could be expected to endure it does the law intervene. Peoples v. Guthrie, 199 Ga. App. 119, 121 (2) (404 SE2d 442) (1991).

In this case, under the franchise agreement DPFI was entitled to make reasonable inspections of the Millers’ child care facility. Even assuming arguendo that DPFI’s use of nineteen inspections over a six-month period was excessive, “nitpicky” or “burdensome,” this is not evidence of outrageousness. See Peoples, supra. In fact, some of DPFI’s inspection reports give glowing commendations to the Millers while others apparently document some legitimate concerns: failure to submit State-mandated fingerprint cards, children having access to medications, and the failure to label and date food products.

Although the evidence may indicate that DPFI engaged in sharp business practices and may have exerted some pressure on its franchisees, the Millers have not directed our attention to evidence of outrageous conduct. See Peoples supra. Having reviewed the evidence adduced at trial, we conclude that the Millers failed to offer any evidence of allegedly wrongful conduct which arose to the requisite level of outrageousness and egregiousness to support a claim for intentional infliction of emotional distress. Phillips v. Pacific & Southern Co., 215 Ga. App. 513, 517 (451 SE2d 100) (1994); Peoples, 199 Ga. App. at 121 (2).

5. DPFI contends that as the “prevailing party,” it was entitled to attorney fees under the franchise agreement which provides, “[t]he prevailing party shall be entitled to recover reasonable attorneys’ fees and court costs [from] the other party.” The jury determined that both parties had breached the agreement but awarded $120,403.50 in damages to DPFI and no damages to the Millers. In a separate proceeding, the trial court refused to award attorney fees to either side. Although DPFI has offered no authority precisely on point, we think that it should be deemed the prevailing party. See Ellis v. Gallof, 220 Ga. App. 518, 519 (1) (469 SE2d 288) (1996); Barnett v. Morrow, 196 Ga. App. 201, 203 (396 SE2d 11) (1990). Therefore, under the franchise agreement, DPFI was entitled to recoup its attorney fees. Indus. Distrib. Group v. Waite, 268 Ga. 115, 116 (1) (485 SE2d 792) (1997) (prevailing party may obtain attorney fees when contract so provides). Layfield v. Southeastern Constr. Coordinators, 229 Ga. App. 71, 72 (1) (492 SE2d 921) (1997); Hope & Assoc. v. Marvin M. Black Co., 205 Ga. App. 561 (1) (422 SE2d 918) (1992). Upon return of the remittitur, we direct the trial court to conduct further proceedings for the purpose of determining DPFI’s attorney fees relating solely to this claim.

Decided August 20, 1998.

Meadows, Ichter & Trigg, Cary Ichter, Karen R. Cashion, for appellants.

Thomas R. Todd, Jr., for appellees.

Case No. A98A1535

In a cross-appeal, the Millers contend that the trial court erred in entering judgment of $107,752.63 under the “actual cost” contract because that judgment is illegal, irrational, inconsistent, and not supported by evidence. We agree and reverse.

Judgment affirmed in part, reversed in part and case remanded with direction in Case No. A98A1534. Judgment reversed in Case No. A98A1535.

Johnson, P. J., and Smith, J., concur.

       An independent appraisal conducted for the lender valued the property at $1.2 million.

       The note permitted acceleration in the event of a breach of the franchise agreement.

       Part of the Curry Real Estate Appraisal discloses that Clark and Alexander did not even own the land at the time of the fax and did not purchase it until July 13,1993.


text:
    A98A1743.
    THOMPSON v. THE STATE.
    (506 SE2d 201)
   Blackburn, Judge.

Earl Fenton Thompson appeals his convictions by a jury of carrying a concealed weapon, carrying a pistol without a license, and possession of a firearm by a convicted felon. Thompson contends that the trial court erred by: (1) denying his motion in limine; (2) denying his motion to dismiss the indictment; and (3) refusing to give a requested jury charge. For the reasons discussed below, we affirm Thompson’s convictions.

1. In his first enumeration of error, Thompson asserts that the trial court erred in denying his motion in limine in which he sought to exclude the introduction of statements he made at the time of his arrest. In our review of the trial court’s order denying Thompson’s motion to suppress, we construe the evidence most favorably to uphold the trial court’s ruling. Mao v. State, 222 Ga. App. 482, 483 (474 SE2d 679) (1996). It is the trial court’s duty to resolve conflicts in the evidence, and its findings of credibility and fact will not be disturbed on appeal unless they are clearly erroneous. Id.

During the hearing on Thompson’s motion in limine, Officer Mike Embry with the Savannah Police Department testified that Andrea Beasley drove her car into the police precinct yard while several officers were present during a shift change. Beasley exited the car, identified herself to Officer Embry, and told him that her boyfriend beat her up, threatened her, and had a gun. Officer Embry went to the vehicle and confronted Thompson who was sitting in the passenger seat. Officer Embry testified that Thompson was loud, belligerent, and vulgar, and that he denied that there was a gun in the car. However, another officer found a gun under the front passenger seat. At that point, Thompson started talking in a rambling manner — first denying the gun was his, then admitting it was his, but saying that the police could not prove it. Thompson was put in a police cruiser where he continued to talk, saying to Beasley; “I can’t believe you told them about — that I had the gun, had the gun on me.”

Based on this testimony, Thompson’s statements can be put in two groups: (a) those statements made in Beasley’s car in response to the officer’s initial inquiry, and (b) those statements made once he was put into the police cruiser. Thompson contends that none of his statements should have been admitted at trial because he had not been given his Miranda warnings.

(a) The trial judge determined that the first statements made by Thompson either were made in response to the officer’s initial inquiry while investigating the situation or were made prior to Thompson being placed in custody.

We have specifically held that ‘Miranda warnings are not required when a person responds to an officer’s initial inquiry at an on-the-scene investigation which has not become accusatory.” Williamson v. State, 171 Ga. App. 904, 905 (321 SE2d 762) (1984). We agree with the trial court that the first of Thompson’s statements were made in response to the officer’s initial inquiry and were admissible.

“The issue presented, as to whether [Thompson] was in custody for Miranda purposes, is a mixed question of law and fact. We will not reverse the trial court’s fact findings which underpin its legal conclusion made at a suppression hearing, unless they are clearly erroneous. Whatley v. State, 196 Ga. App. 73, 78 (5) (395 SE2d 582) [(1990)]. A person is not in a state of custody merely because he is a prime suspect at the time he is interrogated by the police or their agent. See Vaughn v. State, 261 Ga. 686, 687 (2) (410 SE2d 108) [(1992)]. Even if the police have probable cause to arrest at the time of the interview and secretly intend to charge the suspect at some future time, such facts are immaterial to a determination of whether the suspect was in custody at the time of the interview, except when and to what extent the police communicate their future intent to arrest during the course of the interview. State v. Brannan, 222 Ga. App. 372, 376 (2) (c) (474 SE2d 267) [(1996)]. ... A suspect must be in a custodial situation for Miranda to apply; a suspect is not entitled to Miranda warnings, as a matter of right, unless he has been taken into custody or has been deprived of freedom of action in another significant way. Hardeman v. State, 252 Ga. 286, 288 (1) (313 SE2d 95) [(1984)]; Carroll v. State, 208 Ga. App. 316, 317 (2) (430 SE2d 649) [(1993)]. . . . The real issue for adjudication is whether the individual was formally arrested or restrained to the degree associated with a formal arrest. Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16) [(1995)]. In resolving this issue, the relevant inquiry is how a reasonable person in [a] suspect’s position would perceive his situation (Hodges, supra, citing Berkemer v. McCarty, 468 U. S. 420, 442 (104 SC 3138, [3151,] 82 LE2d 317) [(1984)]); that is, whether a reasonable person in [Thompson’s] position would have understood the situation to constitute restraint on freedom of movement of the degree which the law associates with formal arrest. Manchester v. State, 226 Ga. App. 653, 655 (1) (487 SE2d 449) [(1997)].” (Punctuation omitted.) Hendrix v. State, 230 Ga. App. 604, 605-606 (497 SE2d 236) (1998).

Applying these standards to the evidence before us, we conclude the trial court’s finding that Thompson’s initial statements were voluntarily made under noncustodial circumstances was not clearly erroneous. Compare Hodges, supra; Vaughn, supra; Manchester, supra.

(b) The trial court determined that the remainder of Thompson’s statements were voluntary and not the result of police interrogation.

“Not all in-custody statements are subject to Miranda. A volunteered statement, which is not the product of interrogation or its functional equivalent, would not be suppressible on this ground. Rhode Island v. Innis, 446 U. S. 291 (100 SC 1682, 64 LE2d 297) (1980). . . . The definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. . . . Zubiadul v. State, 193 Ga. App. 235, 237 (387 SE2d 431) (1989).” (Punctuation omitted.) Johnson v. State, 224 Ga. App. 568, 569 (481 SE2d 268) (1997). In the present case, the trial court’s finding that Thompson’s statements were not made as a result of custodial interrogation is not clearly erroneous.

2. In Thompson’s second enumeration of error, he contends that the trial court erred in denying his motion to dismiss the indictment which was premised on the fact that the warrant was not signed by a judicial officer. Thompson’s motion to dismiss was untimely. It was filed on the morning of jury selection for his trial. We have previously determined that OCGA § 17-7-111 and Uniform Superior Court Rule 31.1 require that any demur to the indictment be made in writing at or before arraignment unless extended by the judge in writing prior to trial. See Bennett v. State, 216 Ga. App. 365, 366 (454 SE2d 562) (1995). As Thompson did not obtain an extension, his motion was untimely and, therefore, properly denied.

3. In his final enumeration of error, Thompson contends that the trial court erred in failing to give his requested jury charge regarding the presumption that the driver of a car is assumed to be in possession, custody, or control of all things in it and his requested charge regarding equal access.

“The equal access rule, as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. Lombardo v. State, 187 Ga. App. 440 (5) (370 SE2d 503) [(1988)]; Mendez v. State, 185 Ga. App. 1 (1) (363 SE2d 262) [(1987)]; Castillo v. State, 166 Ga. App. 817 (2) (305 SE2d 629) [(1983)]. However, if two or more persons shared actual or constructive possession of a thing, possession is joint. Mendez, supra at 1-2.

“We are satisfied that the evidence of record, when viewed in a light most favorable to the verdict, does not reasonably raise the issue of equal access, but only the issue of joint possession. It is not error to decline to instruct on an issue not reasonably raised by the evidence. See Britt v. State, 184 Ga. App. 445 (1) (361 SE2d 710) [(1987)]; Pittman v. State, 175 Ga. App. 50 (1) (332 SE2d 356) [(1985)]. Equal access is merely a defense available to the accused to whom a presumption of possession flows. Where the State did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense. Akins v. State, 184 Ga. App. 441 (1) (361 SE2d 707) [(1987)]. Likewise, when the trial judge elects not to change the [jury] on the presumption of possession, an equal access instruction is not required. See Akins, supra.” (Punctuation omitted.) Lance v. State, 191 Ga. App. 701, 703 (2) (382 SE2d 726) (1989).

Thompson was not entitled to an equal access charge because such charge applies only in cases where the presumption of possession is in the accused. Thompson attempted to use the presumption of possession as a defense, which it is not. See Lance, supra. The trial court did not err in refusing to give Thompson’s requested charges.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

Decided August 20, 1998.

Joyce M. Griggs, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.


text:
    A98A1850.
    HEWITT et al. v. WALKER.
    (506 SE2d 215)
    Decided August 20, 1998.

      William J. Mason, for appellants.

      Grogan, Jones, Rumer & Gunby, Lee R. Grogan, for appellee.
   Beasley, Judge.

Plaintiffs sued Bill Walker for breach of contract and negligence. On October 14, 1996, the court entered summary judgment in favor of Walker, which we affirmed in Hewitt v. Walker, 226 Ga. App. 764 (487 SE2d 603) (1997). The Supreme Court denied certiorari on October 31, 1997. On December 9, 1997, 421 days after final judgment, Walker moved for attorney fees and expenses of litigation pursuant to OCGA § 9-15-14. The court granted the motion and awarded Walker $9,000.

“[T]here is a ‘window of opportunity’ for seeking attorney fees under OCGA § 9-15-14 which begins with the entry of final judgment as defined in OCGA § 5-6-34 (a) (1) and ends 45 days later.” Fairburn Banking Co. v. Gafford, 263 Ga. 792, 794 (439 SE2d 482) (1994). Fairburn Banking specifically rejected the argument that an appeal extends that time until 45 days after final disposition of the appeal. The rule announced in Fairburn Banking has been applied in this Court since. See, e.g., Gist v. DeKalb Tire Co., 223 Ga. App. 397 (477 SE2d 616) (1996). Walker’s contention that we should overrule Fairburn Banking, a Supreme Court decision, is specious. Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI; Adams v. State, 174 Ga. App. 558, 559 (2) (331 SE2d 29) (1985).

Just as in Fairburn Banking, “[s]ince the motion which the trial court granted in the present case was not filed within that window of opportunity, the trial court lacked jurisdiction to consider it.” 263 Ga. at 794. Likewise, the award to Walker was error.

This moots the other enumerations of error.

Judgment reversed.

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