text:
    A01A0119.
    CHRISTENSEN v. OVERSEAS PARTNERS CAPITAL, INC. et al.
    (549 SE2d 784)
   Ruffin, Judge.

Lilian Christensen sued Overseas Partners Capital, Inc. (“Overseas Partners”) and Sterling Parking, Inc. (“Sterling”) for damages allegedly sustained when she fell in a parking deck. The trial court granted both defendants’ motions for summary judgment. Christensen appeals, and we reverse.

To prevail on a motion for summary judgment, the movant must demonstrate that no genuine issues of material fact exist and that “the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law.” A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” If the defendant discharges its burden, the plaintiff must point to specific evidence giving rise to a triable issue of fact. On appeal, we review the trial court’s summary judgment ruling de novo.

Viewed favorably to Christensen, the evidence shows that, on January 29, 1997, she visited the Atlanta Financial Center to apply for a job. Christensen parked her car in the building’s parking deck, which was owned by Overseas Partners and managed and operated by Sterling. She then walked up a handicap ramp from the parking deck and entered the office building. When Christensen returned to the parking deck, she walked back down the handicap ramp. At the bottom of the ramp, her foot “got caught on something,” and she fell. Christensen initially thought that she had tripped on a step that she had not seen. She then noticed that the bottom of the handicap ramp was “sunken in” below the parking deck pavement, creating a one and one-half to two-inch height difference between the two surfaces. Christensen determined that she tripped on the uneven pavement at the bottom of the handicap ramp as she tried to step onto the parking deck.

At her deposition, Christensen agreed that she traversed the ramp without incident as she entered the building, but asserted that the “sunken in part” was not noticeable when “coming from the parking deck.” She admitted that the height difference could be seen on the way down the ramp. She testified, however, that she “never saw” the “sunken in” concrete at the bottom of the ramp. Christensen stated: “I did not see it at all. I just walked down [the ramp]. There was [sic] a lot of people up and down, some going up, some going down. I really did not see it. If I had seen it, this would have never happened.” Asked whether anything prevented her from seeing the height gap, Christensen responded: “Not other than maybe the traffic or I didn’t look for it. Of course you don’t look for something like that to be [there].”

In a premises liability case,

proof of a fall, without more, does not give rise to liability on the part of a proprietor. The true basis of a proprietor’s liability for personal injury to an invitee is the proprietor’s superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm. Recovery is allowed only when the proprietor had knowledge and the invitee did not.

The trial court determined that Christensen had equal knowledge of the open and obvious condition caused by the uneven pavement. On appeal, Christensen argues that fact questions remain as to the parties’ relative knowledge and the reasonableness of their actions. We agree.

1. Christensen has pointed to no evidence that Overseas Partners or Sterling actually knew about the height gap at the end of the handicap ramp. We have noted, however, that “[failure to discover the defect through the exercise of reasonable care in inspecting the premises gives rise to constructive knowledge where the owner or occupier had an opportunity to discover the dangerous condition and to remedy it.” Christensen testified that the bottom of the handicap ramp had “sunk” below the parking deck, creating the height difference. A jury could infer that this concrete gap, a static condition, had existed “for a sufficient time for an inspection to discover it and to remove the danger.” Questions of fact remain, therefore, as to Overseas Partners’ and Sterling’s constructive knowledge of the alleged hazard.

2. The evidence also raises issues of fact regarding Christensen’s knowledge of the allegedly dangerous condition. The record contains no evidence that Christensen had actual knowledge of the uneven joint between the handicap ramp and the parking deck. Christensen clearly testified that she did not see the height difference. She also indicated that, although she walked up the handicap ramp to enter the office building, the alleged defect was not noticeable at that point and did not present a similar hazard because pedestrians could simply walk over the one and one-half to two-inch drop in height. In a static defect case such as this, “when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.” Construing the evidence favorably to Christensen, however, we cannot conclude as a matter of law that Christensen negotiated the allegedly dangerous condition on her way up the ramp.

Furthermore, a question of fact remains as to whether Christensen should have known about or seen the “sunken” condition at the bottom of the ramp. In Robinson v. Kroger Co., our Supreme Court determined that

Decided June 4, 2001

Kenneth L. Shigley, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Douglas W. Smith,

an invitee’s failure to exercise ordinary care is not established as a matter of law by the invitee’s admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which led to his downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.

The Supreme Court thus determined that an invitee need not “look continuously at the [ground] for defects because the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe.”

Although Robinson involved a slip and fall on a foreign substance, its analysis applies to static defect cases. In this case, Christensen explained that a number of people were “going up [and] going down” the ramp and she did not see the height difference. As Christensen described, she just “followed the [pedestrian] traffic.” Christensen’s testimony about the pedestrian traffic in the area raises a question of fact as to whether, under the circumstances at the time of the fall, her failure to see the height gap was reasonable. Summary judgment, therefore, was improper.

Judgment reversed.

Johnson, R J., and Ellington, J., concur.

Nicholas M. Hollander, Goldner, Sommers, Scrudder & Bass, Thomas E. McCarter, for appellees.

       (Punctuation omitted.) Hannah v. Hampton Auto Parts, 234 Ga. App. 392 (506 SE2d 910) (1998).

       (Punctuation omitted.) Id.

       Id.

       Id.

       There is no evidence that Christensen chose to use the handicap ramp because she was disabled.

       (Citations and punctuation omitted.) Hannah, supra at 394.

        CFUS Properties v. Thornton, 246 Ga. App. 75, 76 (1) (539 SE2d 571) (2000).

       Id.

       Sterling contends that, under its management agreement with Overseas Partners, it had no duty to inspect the premises or perform structural repairs and thus could not have had constructive knowledge of the alleged hazard. Sterling was obligated, however, to perform routine and preventative maintenance in the parking deck. Furthermore, an owner or occupier of land must “exercise ordinary care in keeping the premises and approaches safe” for invitees. OCGA § 51-3-1. Sterling does not argue that it was not an “owner or occupier” of the parking deck. We cannot determine in this appeal, therefore, that it owed no duty to reasonably inspect the premises for defects.

       Compare Gray v. Oliver, 242 Ga. App. 533 (530 SE2d 241) (2000) (before her fall, plaintiff saw a curbside culvert in which she slipped and was familiar with this type of culvert); Tanner v. Larango, 232 Ga. App. 599 (502 SE2d 516) (1998) (plaintiff saw mossy area before she tripped on moss-filled gap between sidewalk and parking lot).

       (Punctuation omitted.) Hannah, supra at 394.

       268 Ga. 735 (493 SE2d 403) (1997).

       Id. at 748 (2) (b).

       (Punctuation omitted.) Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 749 (2) (527 SE2d 36) (2000).

       See Freyer v. Silver, 234 Ga. App. 243, 246-247 (3) (507 SE2d 7) (1998) (“Freyer IF). In its order granting summary judgment, the trial court cited a prior decision in Freyer for the proposition that “ ‘[i]t is common knowledge that small cracks, holes and uneven spots often develop in pavement.’ ” See Freyer v. Silver, 227 Ga. App. 253, 256 (2) (488 SE2d 728) (1997) (“Freyer F). In Freyer II, however, we vacated Freyer I and reconsidered our ruling in light of Robinson v. Kroger Co. See Freyer II, supra at 245 (1).

       See Robinson, supra; see also Freyer II, supra at 247.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A01A0289.
    KITCHENS et al. v. KEADLE LUMBER ENTERPRISES, INC.
    (549 SE2d 781)
   Ruffin, Judge.

Peggy Kitchens (“Kitchens”) and her husband sued Keadle Lumber Enterprises, Inc. (“Keadle”) for damages allegedly sustained when Kitchens fell on Keadle’s property. The trial court granted Keadle’s motion for summary judgment, and the Kitchenses appeal. For reasons that follow, we reverse.

To prevail on summary judgment, the movant must demonstrate that no genuine issues of material fact remain and “that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law.” A defendant meets this burden “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” Once the defendant discharges its burden, the plaintiff must point to specific evidence giving rise to a triable issue of fact. On appeal, we review the trial court’s grant of summary judgment de novo.

Viewed favorably to the Kitchenses, the evidence shows that Kitchens drove a lumber truck for Oconee River Logging, delivering logs to lumberyards such as Keadle. On the day of her fall, Kitchens drove her truck into Keadle’s yard and pulled to the end of a paved runway, where logs were unloaded. She exited her truck and walked around the front of the cab. It had been raining, and the area, including the concrete runway, was covered with bark, dirt, and mud. According to Kitchens, she made her way carefully through the mud, trying to walk in other people’s footprints or tire tracks. At one point, she stepped in a mud tire track that appeared to be packed down, but her foot sank at least twelve inches. As she pulled her foot out of the mud, she fell forward onto her hands and knees, injuring herself.

In her complaint, Kitchens alleged that “she fell when her foot went into an obscured hole in the dirt (mud) next to the cement driveway causing her to fall.” She testified at deposition that her fall resulted from “the way the pavement and the dirt go together.” According to Kitchens, although she thought she was walking on the mud-covered concrete, “[she] must have” stepped off the pavement, where her foot sank. She indicated that the mud made the paved and unpaved areas difficult to distinguish. Kitchens further testified that her sunken foot caught on what she believed to be the concrete runway as she pulled it out of the mud.

Following her fall, Kitchens filed an incident report with Keadle’s safety director. The report noted that Kitchens “stepped in [a] pot hole [and] tripped [,] falling face forward hitting both knees and wrist[s].” Several Keadle employees denied seeing any potholes on the concrete runway. According to Keadle’s yard supervisor, however, potholes did develop “off the edge” of the concrete because the “[t] rucks [did not] stay completely on the concrete.” The supervisor testified that fixing these holes was not “uncommon.” He also noted that Keadle cleaned the mud and other debris off the concrete runways every two and one-half to three days.

When the yard supervisor first heard about Kitchens’ accident, he thought that she had fallen as she stepped off the concrete surface into a “little dip,” or hole. A Keadle employee who saw Kitchens fall, however, told the supervisor that she simply slipped on the muddy concrete. At deposition, that employee similarly testified that Kitchens fell while walking on the paved runway. According to him, Kitchens slipped forward on the soft, uneven surface created by bark, dirt, and mud.

In a premises liability case such as this,

proof of a fall, without more, does not give rise to liability on the part of a proprietor. The true basis of a proprietor’s liability for personal injury to an invitee is the proprietor’s superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm. Recovery is allowed only when the proprietor had knowledge and the invitee did not.

A landowner does not warrant safety from all things but must “exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters.” The requisite diligence includes “inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.”

Kitchens testified that she fell not on the concrete runway, but “where the mud separates from the cement.” When she stepped, her foot sank at least 12 inches into the mud, and as she pulled it out, she caught it on what she believed to be concrete. Although Keadle contends that she slipped on the muddy runway, Kitchens’ testimony creates a question of fact as to whether mere mud or a hole off the edge of the concrete runway caused the fall.

The evidence also raises a question of fact about the parties’ relative knowledge of the alleged pothole. Keadle’s yard inspector testified that it was “not uncommon” for him to repair holes that developed off the side of concrete surfaces at the lumberyard. Nothing in the record indicates that Keadle knew about the particular hole in which Kitchens allegedly stepped. A question of fact, however, remains as to whether Keadle acted reasonably in inspecting the premises for potholes, which Keadle’s yard inspector assumed could cause a fall, and in keeping the runways clear so that individuals would know if they were on the concrete.

A question of fact similarly exists as to Kitchens’ knowledge. Keadle argues on appeal that Kitchens, who had been to the lumberyard numerous times, knew about the muddy conditions. Yet, Keadle has pointed to no evidence that Kitchens knew about the pothole in which she allegedly stepped or was even aware that potholes sometimes developed next to concrete surfaces in the yard. Furthermore, Kitchens testified that she thought she was walking on packed mud and that, because of the debris on the runway, she did not realize that she had stepped off the concrete. A question of fact exists as to Kitchens’ knowledge of the alleged hole.

As our Supreme Court has noted, “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 . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.” The evidence in this case is not plain, palpable, or undisputed. Accordingly, the trial court erred in granting summary judgment to Keadle.

Decided June 4, 2001.

Reynolds & McArthur, Charles M. Cork III, for appellants.

Fain, Major, Wiley & Brennan, Gene A. Major, JohnK. Miles, Jr., for appellee.

Judgment reversed.

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

       (Punctuation omitted.) Hannah v. Hampton Auto Parts, 234 Ga. App. 392 (506 SE2d 910) (1998).

       (Punctuation omitted.) Id.

       Id.

       Id.

       (Citations and punctuation omitted.) Id. at 394.

       (Punctuation omitted.) Dumas v. Tripps of North Carolina, 229 Ga. App. 814, 816 (2) (495 SE2d 129) (1997).

       (Punctuation omitted.) Id.

       The supervisor’s testimony about the location of these potholes is unclear. At one point, he appears to talk generally about holes off the edge of concrete in the yard, while at another point he mentions potholes in relation to a “roadway” different from the concrete runways. At the supervisor’s deposition, the parties drew a map of the lumberyard, which they used as a reference. On appeal, that map was not included with the deposition transcript, leaving us without a guide for the supervisor’s testimony. Construing his testimony favorably to the Kitchenses, however, a jury could find that potholes had developed throughout the yard at the edge of concrete surfaces, including the concrete runways.

       See CSX Transp. v. Franklin. Indus., 213 Ga. App. 778, 783, n. 4 (445 SE2d 861) (1994) (individual’s knowledge of dangers presented by muddy conditions does not demand finding that individual knew about dangers of concealed hole); see also Pierce v. Golden Corral Corp., 237 Ga. App. 261, 262 (514 SE2d 470) (1999) (physical precedent only) (“We do not think that, simply because a patron has seen oil spots on previous occasions, she is automatically charged with knowledge of every single oil spot that may be present in the parking lot on any given day.”).

        Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997); see also Dumas, supra at 817.


author: Smith, Presiding Judge.

text:
    A01A0659.
    FRANKLIN v. THE STATE.
    (549 SE2d 794)
   Smith, Presiding Judge.

Larry Franklin was indicted by a DeKalb County grand jury on three counts of burglary, aggravated assault, aggravated sexual battery, and criminal attempt to commit rape. The charge of criminal attempt was nolle prossed as duplicative, and he was found guilty of the lesser included offense of criminal trespass on two counts of burglary and convicted of the remaining charges. Franklin’s motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. In his first enumeration of error, Franklin contends the trial court erred in denying his motion to suppress his tape-recorded statement to the police after his arrest. “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50.

The standard for determining the admissibility of confessions is the preponderance of the evidence. To determine whether the state has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.

(Citation and punctuation omitted.) Martin v. State, 271 Ga. 301, 304 (2) (518 SE2d 898) (1999).

We first note Franklin’s contention that the trial court erroneously stated the law with respect to the application of a “totality of the circumstances” test. During the pretrial Jackson-Denno hearing, Franklin’s counsel argued that the trial court “has to look at the totality of the circumstances.” The court responded, “That is for a juvenile only.” The trial court was correct to the extent that the explicit nine-factor analysis set forth in Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976), in considering the confession of a juvenile is not applicable to the confession of an adult. McDade v. State, 270 Ga. 654, 656 (513 SE2d 733) (1999); see also King v. State, 273 Ga. 258, 260 (3) (539 SE2d 783) (2000); Hance v. State, 245 Ga. 856, 858 (2) (268 SE2d 339) (1980). But the trial court nevertheless must consider “the totality of the circumstances surrounding the . . . statement.” Martin, supra at 306 (2); King, supra. The trial court therefore was incorrect in. its statement that the totality of the circumstances need not be considered in evaluating the admissibility of Franklin’s statement.

This does not, however, require reversal under the facts of this case. The facts surrounding Franklin’s arrest and questioning are not in dispute. Only the police officer who conducted the interview testified, and a tape recording of the interview was introduced in evidence and forms part of the record. Under these circumstances, this court conducts a de novo review of the evidence “to determine whether the State has carried its burden of proving the admissibility of appellant’s confession by a preponderance of the evidence.” (Citations and punctuation omitted.) State v. Roberts, 273 Ga. 514, 515 (1) (543 SE2d 725) (2001). See also Esposito v. State, 273 Ga. 183,185 (2) (538 SE2d 55) (2000). After considering the transcript of the motions hearing and the tape of the interview, we conclude that the totality of the circumstances clearly demonstrates that Franklin’s statement was given voluntarily and not induced by the slightest hope of benefit or remotest fear of injury.

Franklin was 37 years old at the time the offenses were committed. His level of education does not appear in the record, although he clearly is not illiterate; the police officer testified that he appeared to read his statement before signing it. He was arrested early in the morning, and he was interviewed by the police a short time later. According to the interviewing officer, his demeanor was “calm, almost carefree.” He did not appear to be under the influence, of alcohol or drugs and denied to the officer that he had consumed any drugs or alcohol at all. He was coherent, appeared to understand the officer, and indicated after receiving his Miranda warnings that he understood them and wished to talk about the incident. He acknowledged on the tape recording that he had been given the opportunity to get water and use the bathroom and that he had not been mistreated in any way. Franklin argues that he had been wandering the streets for several days and could have been unduly stressed due to lack of proper food or rest. But Franklin did not testify at the Jackson-Denno hearing or at trial and presented no evidence of lack of food or rest or any resulting diminished capacity; the mere fact that he had no established residence, standing alone, does not render his statement involuntary. Under the totality of the circumstances, we find that Franklin waived his constitutional rights and that his statement to the police was knowing and voluntary. Martin, supra at 304.

2. Franklin also contends the trial court abused its discretion in denying his motion to redact a portion of his tape-recorded statement in which he denied his intention to rape one of the burglary victims and then volunteered that he was. unable to achieve an erection because he was taking medicine to “sterilize” himself. Franklin contends this portion of his statement demonstrated that he was “prone to sexual deviance” and thus placed his character in evidence. We disagree.

Assuming without deciding that the jury could have drawn such a conclusion from Franklin’s ambiguous and unclear statement, it nevertheless remains directly relevant to the issues on trial. One of the burglary victims testified that her assailant woke her from sleep by shaking and hitting her, put a pillow over her face, climbed on top of her, exposed himself, manually penetrated her, and explicitly expressed his intention to rape her. According to the victim, he was unable to do so because she was wearing a body suit. Franklin’s denial of any intention to rape the victim, followed by his spontaneous assertion that he was unable to do so, was directly relevant to the charges against him. The fact that a portion of his statement might incidentally be unfavorable to Franklin does not render it inadmissible. Sleeth v. State, 197 Ga. App. 349, 350 (2) (398 SE2d 298) (1990).

Decided June 4, 2001.

Jennifer Snyder-Surges, for appellant.

J. Tom Morgan, District Attorney, Kristin L. Wood, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

3. Finally, Franklin contends the trial court erred in failing to give his requested jury instruction on criminal attempt. But the criminal attempt charge against Franklin was nolle prossed. Moreover, “[t]he trial court is obligated to give a properly requested instruction on lesser included offenses only if the evidence warrants such an instruction.” (Citation and punctuation omitted.) Spivey v. State, 243 Ga. App. 785, 786 (1) (534 SE2d 498) (2000). The evidence presented by the State, including the testimony of the victims, showed the completed crimes of burglary, aggravated assault with intent to rape, and aggravated sexual battery. While Franklin did not testify, in his statement to police he admitted entering the victim’s home but denied touching her at all. “This evidence offered the jury a choice of completed crimes or of no crime at all. As there was no evidence requiring a charge on attempt. . . the trial court did not err in failing to charge the jury on the law relating thereto.” (Citations and punctuation omitted.) Id. at 787 (1).

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       The Supreme Court of Georgia has not been entirely consistent in its application of this rule. In State v. Roberts, 273 Ga. 514 (543 SE2d 725) (2001), it cites Reinhardt a State, 263 Ga. 113, 115 (3) (b) (428 SE2d 333) (1993), for the application of the Riley factors to an adult’s confession. Hut Reinhardt without comment or explanation applies Williams v. State, 238 Ga. 298, 302 (1) (232 SE2d 535) (1977), to an adult defendant, although Williams relies upon Riley and both cases are clearly limited to juveniles. This runs counter to the clear rule established in Hance, supra; King, supra; and McDade, supra.

       Although this was Franklin’s description, he identified the drug he was taking as Stelazine. This is a powerful anti-psychotic medication which is not used to “sterilize” the recipient. Impotence is, however, one of many potential side effects. Physicians’ Desk Reference (49th ed. 1995), pp. 2399-2401.

       Although the victim was unable to identify her assailant, Franklin acknowledged that he entered her house, and blood found on a statue the victim used to strike her assailant was identified as Franklin’s.


author: Barnes, Judge.

text:
    A01A0816, A01A0817.
    INSURANCE INDUSTRY CONSULTANTS, INC. v. ESSEX INVESTMENTS, INC.; and vice versa.
    (549 SE2d 788)
   Barnes, Judge.

This appeal concerns a renewal clause in a commercial lease. In 1995, Insurance Industry Consultants, Inc. (“IIC”), as tenant, executed a five-year lease of an office in the Triangle Building in northwest Atlanta, that was later managed by Essex Investments, Inc. (“ESSEX”). By its terms, the lease would expire on October 31, 2000.

The renewal provision states:

Lessee shall have two 3-year options to renew the lease by giving four (4) months prior written notice. Lessee will receive new building standard carpet and paint when the renewal option is taken. The rental rate for the renewal term shall be the fair market rental with fair market escalations. Fair market rental rate and fair market escalations being that rate and escalation found within comparable premises in comparable properties within the Northwest office submarket, taking into account any concessions being offered at that time.

The lease also contains an entire agreement clause requiring that all modifications to the lease be in writing signed by all parties.

On October 6, 1999, representatives of IIC and ESSEX met and discussed, among other subjects, an extension of the lease. During the meeting, ESSEX indicated its interest in keeping IIC as a tenant. On October 20,1999, the parties again discussed extending the lease, and IIC expressed its intention to amend the current lease. ESSEX would give them “initial lease numbers for 3 and 5 year leases” by November 10, 1999, and IIC understood that because there was not a big hurry to sign the renewal, a tight timetable was not required. IIC reviewed the lease in preparation for the meetings with ESSEX but never provided written notice that it had decided to exercise its option to renew the lease.

On November 4, 1999, ESSEX sent a letter by fax to IIC stating, “I have prepared the following renewal proposal for IIC’s office space located in the Triangle Building.” Among other details, the proposal included rental rates and monthly rentals for a three-year extension. The letter concluded: “If you have any questions, please do not hesitate to call.” When IIC did not promptly respond to this letter, ESSEX followed up with telephone calls to confirm that IIC had received the letter. Ultimately in December, ESSEX confirmed that IIC had received the letter, and IIC stated that it would get back to ESSEX about it. IIC, however, never responded to the letter.

IIC admits that it never gave written notice of its intention to exercise its option to renew the lease and never told ESSEX orally that it intended to do so. IIC never mentioned renewal of the lease from December 1999 to August 2000. Further, even at the meeting on October 6, 1999, IIC never told ESSEX that it was exercising its option to renew the contract. Although IIC believed that its intention to renew was plain from the meeting on October 20, 1999, IIC never accepted the terms of the proposal sent on November 4, 1999. The trial court specifically found that IIC did not respond to any communications from ESSEX regarding the November 4, 1999 renewal proposal.

Finally on August 16, 2000, ESSEX sent two letters by fax. One stated that ESSEX was not renewing the lease with IIC, and the other stated that ESSEX had received IIC’s telephone message at 10:50 that morning, that it would renew the lease, and that it would send the papers the next day. The second letter also advised IIC that ESSEX “will not renew the lease with Insurance Industry Consultants, Inc.”

After IIC stated that it would refuse to vacate the premises at the end of the lease, ESSEX filed this action seeking a declaration of its rights and obligations under the lease. Later, IIC filed a counterclaim also seeking declaratory relief that the prior written documents between the parties were sufficient to constitute written notice of the extension or, in the alternative, that the court declare that ESSEX either waived the written notice provision or was estopped from asserting it. .

In a bench brief, filed in court before the trial, ESSEX contended the renewal provision in the lease was too indefinite to be enforced. It further contended that even if the renewal provision was enforceable, IIC had not exercised the option to renew properly and that an oral extension to renew a lease for three years was barred by the Statute of Frauds.

After the bench trial, the trial court issued a declaratory judgment in favor of ESSEX because it found the renewal provision was legally unenforceable. Before doing so, however, the trial court, relying on Storey v. Austin, 221 Ga. 692 (146 SE2d 728) (1966), concluded as a matter of law that “IIC had sufficiently exercised its option by clearly indicating an intent to renew the lease well before the requisite four (4) month notice period.” The trial court denied IIC’s counterclaim for a declaratory judgment and denied both parties’ requests for award of attorney fees, expenses, and costs.

IIC has appealed that ruling, contending that the trial court erred by holding that the objective market rate renewal provision of the lease was unenforceable and also erred by holding that the Statute of Frauds applied to this lease provision. ESSEX has filed a cross-appeal in which it asserts that the trial court erred by denying its claim for attorney fees and expenses of litigation. ESSEX, however, has not challenged the trial court’s ruling that IIC effectively exercised the renewal option.

1. Under OCGA § 9-11-52 (a), a trial court’s findings in nonjury trials “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Because the clearly erroneous test is in effect the same standard as the any evidence rule, appellate courts will not disturb factfindings of a trial court if there is any evidence to sustain them. Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544, 545-546 (382 SE2d 388) (1989). The trial court’s interpretation and application of the law to those findings, however, are subject to de novo review. See Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

Case No. A01A0816

2. When no dispute of fact is involved, the construction of a plain and definite lease, if needed, is a matter of law for the court, and when construing lease provisions concerning renewals, the tenant is given the benefit of any uncertainty. Thornton v. Ellis, 184 Ga. App. 884-885 (1) (363 SE2d 584) (1987). Since the words in this lease are plain and obvious, however, they must be given their literal meaning. United States Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 79 (355 SE2d 428) (1987).

Although the parties have at various times referred to “renewal” and “extension” of the lease, the words used are not important.

That the parties used the term “renewal” when referring to the stipulation is not controlling. Where a stipulation is called a “renewal” and the amount of rent for the additional period is not a set amount contained in the original lease but is subject to determination at the time of renewal, a new lease is indispensable. The Court of Appeals has also opined that a renewal rental amount was not uncertain if it were not a matter of negotiation and, in dicta, the court noted that the original lease need not fix all of the terms of the future term, but “may furnish a certain and definite method for their ascertainment and determination in the future.”

(Citations omitted.) Crystal Blue Granite Quarries v. McLanahan, 261 Ga. 267-268 (1) (404 SE2d 266) (1991). When a stipulation merely lengthens the time upon terms and conditions stated in the lease, it is an extension, and a new agreement is not required. Powell v. Norman Elec. Galaxy, 229 Ga. App. 99, 100 (1) (493 SE2d 205) (1997). “ ‘[R]enewal’ contemplates the execution of a new contract, whereas ‘extension’ does not. [Cits.]” Chalkley v. Ward, 119 Ga. App. 227, 229 (1) (166 SE2d 748) (1969). Because a determination of the new rent was necessary here, renewal and a new lease were required.

To be enforceable,

[a] provision for the renewal of a lease must specify the terms and conditions of the renewal with such definite terms and certainty that the court may determine what has been agreed on, and if it falls short of this requirement it is not enforceable. It must be certain and definite both as to the time the lease is to extend and the rent to be paid. A provision for renewal need not presently fix all of the terms of the new lease; it may furnish a certain and definite method for their ascertainment and determination in the future. On the other hand, if terms, such as duration and rent, are left for future ascertainment, and no method is provided by which they are to be determined, the contract is unenforceable for uncertainty.

(Citations and punctuation omitted.) McCormick v. Brockett, 167 Ga. App. 325-326 (306 SE2d 344) (1983) (renewal at the same rent offered by any reputable person not enforceable). A renewal provision is enforceable only if the terms are specified or a method is provided in the provision through which the terms can be ascertained. Asian Square Partners v. Ly, 238 Ga. App. 165, 166 (1) (518 SE2d 166) (1999), citing Patellis v. 100 Galleria Parkway Assoc., 214 Ga. App. 154-155 (1) (447 SE2d 113) (1994) (rental rate to “be negotiated in good faith” not enforceable).

In considering circumstances under which options to purchase agreements could be enforced, this court held that such a provision must state the essential elements or provide a “key” or “practical mode” within the contract through which a definite price may be determined. Wiley v. Tom Howell & Assoc., 154 Ga. App. 235, 237 (267 SE2d 816) (1980). The “key,” however, cannot be provided by parol evidence. Id.

Therefore, we must consider whether the following renewal provision is sufficiently definite and certain to be enforced.

The rental rate for the renewal term shall be the fair market rental with fair market escalations. Fair market rental rate and fair market escalations being that rate and escalation found within comparable premises in comparable properties within the Northwest office submarket, taking into account any concessions being offered at that time.

Obviously, the provision does not contain a specific rental rate. Therefore, the question is whether “that rate and escalation found within comparable premises in comparable properties within the Northwest office submarket, taking into account any concessions being offered at that time,” provide a sufficiently definite key through which the fair market rental rate and escalation could be determined. We must conclude that it does not.

In Smith v. Huckeba, 232 Ga. App. 374, 376 (1) (501 SE2d 877) (1998), we concluded that a renewal provision stating that “the rental rate shall be the fair market rental value” of the property was unenforceable even though “fair market rental value” is not ambiguous because

the monetary sum it represents is obviously a contested question. Fair market value would have to be determined by an undesignated party, presumably a third party. The contract is too indefinite to be enforced without a further specification by [the parties] of who was to establish the fair market value or, absent that, a mathematical or other objective method which would supply the figure.

(Footnote omitted.) Id. We have the same problem here because no objective method of ascertaining the fair market rental rate is given, and neither comparable premises, comparable properties, nor the Northwest office submarket is defined elsewhere in the lease or in the renewal provision. More significantly, the person or agency charged with selecting these factors and ultimately determining the fair market rental rate is also unspecified. Therefore, this renewal clause does not provide with sufficient certainty a key by which a rental price could be determined by a court without any new expression of the parties. Accordingly, the trial court did not err in declaring that the clause was not enforceable. Compare Miller v. McCullough, 236 Ga. 666, 667 (224 SE2d 916) (1976) (sales price in an option contract based on Mortgage Associates, Inc. appraisal sufficiently definite).

In the face of the Georgia precedent cited above, IIC’s reliance on authority from other states is misplaced. See, e.g., Aycock v. Vantage Mgmt. Co., 554 SW2d 235 (Tex. Civ. App. 1977); George Y. Worthington & Son Mgmt. Corp. v. Levy, 204 A2d 334 (D.C. App. 1964). Moreover, the underlying principle in these cases is that agreements to agree in the future are enforceable, which is not the law in this state.

If there was in fact any essential part of the contract upon which the minds of the parties had not met, or upon which there was not an agreement, even though the negotiations evidenced a complete willingness, or even an announced determination, to agree in the future upon such issues as might subsequently arise, it must follow that a valid and binding contract was not made as of the earlier date. Unless all the terms and conditions are agreed on, and nothing is left to further negotiations, a contract to enter into a contract in the future is of no effect. An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.

(Citations and punctuation omitted.) Jackson v. Easters, 190 Ga. App. 713, 714-715 (1) (379 SE2d 610) (1989). In this instance, the amount of rent to be paid was not agreed upon and was subject to future negotiations. Further, it is not significant that ESSEX actually made a proposal regarding the rent to be paid. The question is whether that proposal was enforceable, and under the law of Georgia, it is not.

3. In view of our disposition of IIC’s first enumeration, we need not consider whether the trial court erred by finding that the Statute of Frauds applied.

Case No. A01A0817

4. In this cross-appeal ESSEX contends the trial court erred by finding that it was not entitled to attorney fees and expenses under Section 7.3, Indemnity, of the lease:

Tenant during the term hereof shall indemnify and save harmless Landlord from and against any and all claims and demands whether for injuries to persons . . . , or damage to property, occurring within the Premises and immediately adjoining the Premises and arising out of the use and occupancy of the Premises by Tenant, or occasioned wholly or in part by any act or omission of Tenant, [its agents, customers, et cetera], excepting however such claims and demands,. . . caused by the negligence of the Landlord. If, however, any liability arises in the Common Areas because of the negligence of the Tenant, . . . then in such event Tenant shall hold Landlord harmless. In case Landlord shall, without fault on its part, be made a party to any litigation commenced by or against Tenant, then Tenant, shall protect and hold Landlord harmless and shall pay all costs, expenses, and reasonable attorneys fees incurred or paid by Landlord in connection with such litigation. Tenant shall also pay all costs, expenses and reasonable attorneys fees that may be incurred or paid by landlord in enforcing the covenants and agreements of this Lease.

(Emphasis supplied.) We also note that Section 9.2, Landlord’s Right on Default, contains the statement that: “In the event of any litigation arising out of enforcement of this Lease, the prevailing party in such litigation shall be entitled to recovery of all costs.”

ESSEX asserts it is entitled to attorney fees, expenses, and costs under the lease because it prevailed. IIC, however, contends the trial court did not err because ESSEX did not enforce a covenant or agreement in the lease, but instead had one of the lease provisions declared unenforceable, and because ESSEX did not give the notice required by OCGA § 13-1-11 (a) (3) (authorizing recovery of attorney fees in cases based upon notes and other evidence of indebtedness). Under our law, leases can be “ ‘evidence of indebtedness’ within the meaning of OCGA § 13-1-11. Holmes v. Bogino, 219 Ga. App. 858, 859 (2) (467 SE2d 197) (1996).” (Punctuation omitted.) Ga. Color Farms v. K.K.L., L.P., 234 Ga. App. 849, 852 (3) (507 SE2d 817) (1998).

Decided June 4, 2001

Owen, Gleaton, Egan, Jones & Sweeney, Maurice M. Egan, Jr., Marla M. Eastwood, for appellant.

Kritzer & Levick, Joseph S. Carr, Christen C. Carey, Catrina C. Creswell, for appellee.

Applying the usual rules of contract interpretation, we find that IIC’s argument is too narrow. ESSEX brought the action to secure a declaration that IIC had to vacate the leased premises at the end of the lease. Thus, the action was to enforce the five-year term of the lease. The fact that the result was obtained through a ruling that declared another section of the lease unenforceable is of no significance. Additionally, although OCGA § 13-1-11 is applicable to some actions involving leases, it is not applicable to all claims for attorney fees based on a lease provision. Boddy Enterprises v. City of Atlanta, 171 Ga. App. 551, 552-553 (320 SE2d 374) (1984). Under the circumstances, we do not find that ESSEX’S failure to give the notice under OCGA § 13-1-11 precludes the grant of attorney fees. Therefore, as the plain terms of the lease authorize the award of attorney fees, expenses, and costs, we find that the trial court erred by denying ESSEX’S request in its entirety. Accordingly, that part of the trial court’s order denying ESSEX’S request must be vacated and the case remanded with instructions to consider an appropriate award of attorney fees, expenses, and costs.

Judgment affirmed in Case No. A01A0816. Judgment vacated and remanded with direction in Case No. A01A0817.

Smith, P. J, and Phipps, J., concur.


author: Johnson, Presiding Judge.

text:
    A01A0819.
    POOLE v. THE STATE.
    (549 SE2d 787)
    Decided June 4, 2001.

      McGee & McGee, James B. McGee III, for appellant.

      Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.
   Johnson, Presiding Judge.

A jury found Anthony Nathaniel Poole, Jr. guilty of armed robbery. In his sole enumeration of error, Poole contends that the trial court erred in failing to give a charge on the alternate crime of theft by receiving stolen property as a lesser included offense of armed robbery. Theft by receiving stolen property, as a matter of law, is not a lesser included offense of armed robbery.

Poole acknowledges the Young decision but argues that we should not apply it to the facts of this case, as that would effectively deprive him of the defense that he was not guilty of armed robbery by virtue of the fact that he admitted to actions that would constitute theft by receiving stolen property. However, Poole was certainly not precluded from making this argument to the jury, and furthermore, a defendant is not entitled to an instruction on an offense for which he has not been charged when, as a matter of law, that offense is not a lesser included offense of the one for which he has been charged.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       OCGA § 16-8-41 (a).

       OCGA § 16-8-7 (a).

       See Young v. State, 246 Ga. App. 651, 652-653 (1) (541 SE2d 670) (2000); Barnett v. State, 244 Ga. App. 585, 590 (6) (536 SE2d 263) (2000); Hemphill v. State, 242 Ga. App. 751, 752-753 (2) (a) (531 SE2d 150) (2000).

       See Pruitt v. State, 217 Ga. App. 681, 683 (3) (458 SE2d 696) (1995).


author: Phipps, Judge.

text:
    A01A0244.
    HITCHCOCK v. JACK WIGGINS, INC.
    (549 SE2d 806)
   Phipps, Judge.

We granted the discretionary application of Wendell Hitchcock, the claimant in this workers’ compensation case, to determine if the administrative law judge (ALJ) was authorized to count Jack Wiggins of Wiggins Auto Salvage, Inc. (Wiggins Auto) as an employee of the business for purposes of determining whether the Workers’ Compensation Act applies to Hitchcock’s claim. OCGA § 34-9-2 (a) exempts corporations with less than three employees from complying with the Act, unless the corporation and its employees elect to be bound. Wiggins Auto, the employer, controverted Hitchcock’s claim on the ground that corporate officer Wiggins exempted himself from coverage under the Act, as authorized by OCGA § 34-9-2.1. Wiggins Auto contended that if Wiggins is exempt from coverage, Hitchcock’s claim is not covered under the Act, because it would then have less than three employees for purposes of OCGA § 34-9-2 (a). The ALJ rejected this contention, however, finding that Wiggins Auto failed to prove that Wiggins had filed a valid exemption with the State Board of Workers’ Compensation or with any insurance company, as required by OCGA § 34-9-2.1.

The appellate division adopted the ALJ’s award without modification. Wiggins Auto then appealed to the superior court, which reversed the award of the appellate division. The superior court determined that the ALJ and appellate division erred as a matter of law in rejecting as evidence copies of written exemptions tendered by Wiggins Auto, as well as Wiggins’s sworn testimony that those exemptions were delivered to the employer’s insurer. The superior court essentially held that the ALJ and appellate division should have treated these submissions by Wiggins Auto as prima facie evidence that it complied with the requirements of OCGA § 34-9-2.1.

The superior court’s ruling on this point is erroneous. The fact that Wiggins Auto kept copies of papers it allegedly forwarded to insurers does not prove that those papers were in fact filed as required. Moreover, the superior court found Wiggins’s testimony to be credible as a matter of law, despite the ALJ’s finding that Wiggins “testified vaguely that exemption forms had been sent to his insurance company, but he did not name an insurer.”

On appeal of an award or denial of workers’ compensation benefits, the superior court may not substitute its findings for the appellate division’s findings of fact, and when sitting as an appellate body, it is bound by the “any evidence” standard of review and is not authorized to substitute its judgment as to weight of the evidence or the credibility of the witnesses. [Cit.]

Moreover, even if the superior court had been correct in finding that Wiggins Auto demonstrated that Wiggins exempted himself from the Act, that finding would be immaterial, because the superior court erred in its interpretation of OCGA § 34-9-2.1 (a) (3). That subsection provides that

[a]ny employer subject to this chapter pursuant to subsection (a) of Code Section 34-9-2 before the filing of any exemptions shall remain subject to this chapter without regard to the number of exemptions filed. However, in the event that there shall be no covered employees once exemptions are elected, no coverage shall be required unless and until additional employees are employed.

Relying on this Code section, the ALJ and appellate division determined that Wiggins’s claimed exemption was irrelevant, since Wiggins Auto would be subject to the Act regardless. The ALJ and appellate division reasoned that at the time of Hitchcock’s injury, “the law had changed so that the requisite number of employees is determined without regard to the fact of exemptions, unless there are no non-exempt employees.” The superior court disagreed, stating that:

In October 1997 when Wiggins Auto Salvage, Inc. started Wiggins Paint and Body Shop the corporate officer had previously elected to be exempt and there were no covered employees. Thus, no coverage was required until additional employees were employed. The Workers Compensation Act does not apply to any person, firm, or private corporation that has regularly in service less than three employees in the same business within this state. OCGA § [34-9-2 (a)]. Reading this section together with OCGA § [34-9-2.1 (a) (3)], Wiggins Auto Salvage, Inc. d/b/a Wiggins Paint and Body Shop would not be subject to the Act until it had employed three part-time or full-time employees. The evidence in the record shows that at the time of Claimant’s injury, Wiggins Auto Salvage, Inc. d/b/a Wiggins Paint & Body Shop had two [covered] employees. At the time of Claimant’s accident, the Employer was not subject to the jurisdiction of the Workers’ Compensation Act, and the order of the State Board of Workers Compensation is reversed.

Decided June 5, 2001.

Buzzell, Graham & Welsh, David C. Bowers, Jr., for appellant.

Ham, Jenkins & Wangerin, Phillip B. Ham, Kevin A. Wangerin, for appellee.

The superior court’s interpretation apparently is based on the premise that if a corporation has no covered employees after exemptions, then it is not subject to the Workers’ Compensation Act until such time as at least three additional employees are hired.

A plain reading of OCGA § 34-9-2.1 (a) (3) contradicts the superior court’s interpretation. The Code section states that exemptions by corporate officers are ineffective to reduce the employee count for determining applicability of the Act except where the exemptions reduce the employee count to zero. Once an “additional employee” is hired, corporate officers must be included in the total employee count regardless of whether they are personally exempt from the Act.

A hypothetical example illustrates the problem with the superior court’s interpretation: Assume Corporation A has five exempt officers and no additional employees and Corporation B has two exempt officers and one additional employee. Under both the superior court and appellate division interpretations of OCGA § 34-9-2.1 (a) (3), Corporation A would be exempt from the Act and Corporation B would not, because only Corporation A has no covered employees. But according to the superior court’s interpretation, Corporation A could subsequently hire two additional employees, creating a five-officer, two-employee corporation, and still not be subject to the Act, while Corporation B, with its two officers and one employee, remains subject to the Act because it failed to attain “no covered employee” status at any time. The General Assembly certainly did not intend such an illogical result, and a plain reading of the statute does not otherwise compel that result. It follows that the superior court erred in failing to include Wiggins as an “employee” for purposes of applying the minimum employee rule of OCGA § 34-9-2 (a).

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

       (a) A corporate officer or a member of a limited liability company who elects to be exempt from coverage under this chapter shall make such election by giving written certification to the insurer or, if there is no insurer, to the State Board of Workers’ Compensation. The right of any corporation or limited liability company to exempt its officers or members from coverage under this chapter is limited as follows: . . . (3) Any employer subject to this chapter pursuant to subsection (a) of Code Section 34-9-2 before the filing of any exemptions shall remain subject to this chapter without regard to the number of exemptions filed. However, in the event that there shall be no covered employees once exemptions are elected, no coverage shall be required unless and until additional employees are employed. . . . (c) No certification given pursuant to subsection (a) or (b) of this Code section shall become effective until it is filed with the proper entity.

       (Emphasis supplied.) Owens-Brockway Packaging v. Hathorn, 227 Ga. App. 110, 111 (488 SE2d 495) (1997).

       (Emphasis in original.)


text:
    A01A0428.
    In the Interest of J. W. et al., children.
    (549 SE2d 802)
   Barnes, Judge.

The mother of two minor children, J. W. and C. W., appeals from the juvenile court’s order terminating her parental rights. She contends the trial court erred (1) in its appointment of a Court Appointed Special Advocate (“CASA”); (2) by allowing witnesses to testify about statements made by one of the minors about sexual abuse by the father; (3) by admitting into evidence a psychological report containing hearsay; and (4) by finding that the deprivation of the children was likely to continue. For reasons that follow, we affirm.

1. In her first enumeration of error, the mother contends that the juvenile court erred by allowing a CASA who had already recommended a termination of rights in the deprivation case to continue in that role in the termination case.

The record shows that the court appointed Helen Styles and Patricia Brewer as CASAs for the minor children on March 19, 1999, before the Carroll County Department of Family & Children Services (“DFACS”) filed a petition to terminate the mother’s parental rights on July 21,1999. During the hearing on the termination petition, the attorney representing DFACS explained to the court that one of the CASAs was waiting outside the courtroom and wanted to be present during the proceeding if no one planned to call her as a witness. The court and the parties agreed that no one would be calling the CASA as a witness or introducing her report into evidence. Nonetheless, the mother’s attorney objected to her continuing as a CASA in the case because she had recommended termination of the mother’s parental rights before DFACS filed the termination petition. The mother claims this CASA was therefore an “interested party” to the termination proceeding.

We find no harm resulted from the error alleged. The CASA did not testify in the termination proceeding, her report was not admitted into evidence for consideration by the court, and she was not a party to the termination proceeding initiated by DFACS. Thus, we need not consider whether the trial court erred in allowing her to continue as the CASA.

2. The mother contends the trial court erred by allowing the psychologist, caseworkers, and foster mother to testify about allegations of sexual abuse made by the minor daughter, who was nine years old at the time the allegations were made. According to the mother, there were insufficient indicia of reliability to allow the statements into evidence under OCGA § 24-3-16, which provides:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

In this case, the minor daughter was available to testify, but no party asked her to do so. In Gregg v. State, 201 Ga. App. 238, 240-241 (3) (b) (411 SE2d 65) (1991), we set forth certain factors the trial court should consider when deciding if a child’s statements provide sufficient indicia of reliability pursuant to OCGA § 24-3-16. The factors include, but are not limited to:

(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. These factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness. Nor does the fact that the statement is made days, weeks, or even several months after the alleged incident, in and of itself make the statement unreliable.

(Citations, punctuation and emphasis omitted.) Id. On appeal, we will reverse a trial court’s ruling on the admissibility of statements under OCGA § 24-3-16 only if the trial court abused its discretion. Ingram v. State, 192 Ga. App. 196,198-199 (2) (384 SE2d 262) (1989).

The record shows that when the daughter returned from an overnight visit with her aunt, her foster mother noticed discharge in her panties. The foster mother testified that when she asked the child about it, she told her that she had wet herself. Because the child’s outer garments were dry, the foster mother did not believe the child’s story and called the aunt, who informed her that the child had not wet herself. When she asked her about what had happened, the child told her that she and a five-year-old female cousin had touched and played with one another. The foster mother then asked where she had learned to do this and whether she had seen other people doing it, perhaps in a movie. The child did not tell her immediately. A couple of days later, the foster mother asked her again

if she was willing to tell me the truth about those panties, about the fact that, how she had known about doing those kinds of things, if she didn’t see a movie. She didn’t tell me, ‘cause I thought maybe that she had seen a movie at this other home. The first time I asked her she didn’t answer me, so I told her, if you saw a movie or you saw something, then you don’t need to go back over there if this, you know, if you saw that there; we need to get to the bottom of it. And that’s when she finally told me that, she answered my question then and said, I didn’t see it on a movie and I didn’t see other people doing it... , my father did it.

The foster mother testified that this revelation was a “total shock.” The foster mother reported the sexual abuse of the child to DFACS, and the child told two caseworkers and a psychologist that she had been sexually abused by her father.

The foster mother further testified that the child told her that she was afraid to visit her parents without DFACS supervision. When the foster mother asked her why she was afraid, the child responded, “I don’t think I’ll be safe there. I don’t want my daddy to do those things to me again. ... I don’t know if my mom would always know if we go in the bathroom, or if she did know that we go to the bathroom if she would do anything about it.” According to the child, “her mother had seen it once and hadn’t come in the bathroom to stop it.”

The mother testified that one time her daughter came out of the bathroom, where she had been with her father, crying, but refused to tell her what had happened. The mother further testified that she did peek in the bathroom door one time when her daughter had been in there an abnormally long period of time with her father but denied seeing anything.

The juvenile court admitted testimony about the child’s statements under OCGA § 24-3-16, and we find no abuse of discretion in that decision. The mother’s testimony corroborates the statements made by the child to others, and the foster mother never suggested to the child that her father had abused her. On the contrary, the foster mother was totally shocked by the child’s revelation.

3. The mother contends the trial court erred by admitting into evidence psychological evaluations of the children because these evaluations contained hearsay statements. Specifically, the evaluations contained statements made by the children, caseworkers, and foster parents. The record shows that the psychologist testified that her report contained background information obtained from others, but that her opinions and recommendations were based upon statements made by the child and the results of tests she administered.

The statements made by the children were not hearsay. “The history that a patient gives to a psychologist during examination or treatment is not hearsay and is admissible as an exception to the hearsay rule.” In the Interest of C. W. D., 232 Ga. App. 200, 209 (4) (501 SE2d 232) (1998). Because the expert testified that his recommendations were not based on the remaining hearsay in his report, and we presume that a trial court in a bench trial considers only admissible evidence (Corsini v. State, 238 Ga. App. 383, 385 (2) (519 SE2d 39) (1999)), we find no merit in this enumeration.

4. In her final enumeration of error, the mother contends the trial court erred in terminating her parental rights because DFACS presented insufficient evidence that the deprivation of the children was likely to continue, as the record shows that she complied with the case plan prepared by DFACS.

In reviewing a parent’s challenge to the sufficiency of the evidence, we determine whether, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found by clear and convincing evidence that the parent’s rights to custody have been lost. In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998). We do not weigh the evidence or determine witness credibility but defer to the juvenile court’s fact finding. In the Interest of L. H., 236 Ga. App. 132, 133 (1) (511 SE2d 253) (1999).

The juvenile court issued a thoughtful, 11-page order terminating the parents’ rights that separately analyzed the issue of whether the causes of the children’s deprivation were likely to continue. The record shows that the mother was a slow learner placed in special education classes who left school in the ninth grade. She also suffers from a debilitating, deteriorating bone disease and cannot work. The children were initially removed from her custody, not because of sexual abuse, but because the family had nowhere to live and the mother refused to enter a women’s shelter without her husband. The foster mother testified that when the children were first placed in her care they were ages six and seven, extremely dirty, had head lice, and did not know how to use a toothbrush or wipe themselves after using the bathroom. The record further shows that the mother was sexually abused by her father as a child and that she placed another child born while she was imprisoned for writing bad checks in the same home with her father to be raised by her mother.

Decided June 5, 2001.

Jerry F. Pittman, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, William F. Collins, for appellee.

Although it is commendable that the mother complied with the minimal requirements of the DFACS case plan, this fact alone does not overcome the other clear and convincing evidence demonstrating that the deprivation of the children was likely to continue.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       The natural father was a party to the proceedings below but did not appeal.


text:
    A01A0571.
    VERNON LIBRARY SUPPLIES, INC. v. ARD.
    (550 SE2d 108)
   Barnes, Judge.

Vernon Library Supplies, Inc. (“VLS”) appeals the judgment entered on behalf of its former employee, James Ard d/b/a On Time Label, following a bench trial. VLS contends the trial court erred in failing to make findings of fact and conclusions of law and in finding for Ard on its claims for promissory estoppel, breach of fiduciary duty, and duty of loyalty, as well as punitive damages and attorney fees. We affirm the judgment.

1. VLS first contends the trial court abused its discretion in failing to make findings of fact and conclusions of law. The record shows that, at the end of the bench trial, the trial court orally pronounced its ruling on each of VLS’s claims. After concluding that it was going to enter judgment in favor of the defendant, plaintiff’s counsel asked, “Would your Honor be entering findings of fact and conclusions of law?” The court replied, “To the extent they’re in the record,” and counsel for both sides thanked the court. The judgment was entered on July 31, 2000, and on August 3, 2000, VLS filed its motion asking the court to enter findings of fact and conclusions of law. No ruling on the motion appears in the record.

OCGA § 9-11-52 (a) provides that, in ruling on a bench trial, the court shall making findings of fact and conclusions of law “upon request of any party made prior to such ruling.” OCGA § 9-11-52 (c) provides that the court may amend its judgment to add findings and conclusions upon motion by a party within 20 days after judgment is entered. The request in this case being made after judgment, we review the trial court’s failure to make such findings for abuse of discretion. Greene County v. North Shore Resort, 238 Ga. App. 236, 241 (2) (517 SE2d 553) (1999). While we have found such an abuse in cases involving multiple parties and complicated facts, Gold Kist v. Wilson, 220 Ga. App. 426, 428 (1) (469 SE2d 504) (1996); Zumpano Enterprises v. Ga. Tile Distrib., 200 Ga. App. 563, 564 (408 SE2d 813) (1991), this case is straightforward, and the record is small. We find no abuse of discretion. Greene County v. North Shore Resort, supra, 238 Ga. App. at 241.

2. VLS further contends the trial court erred in ruling against it on its promissory estoppel claim. The evidence at trial established that the majority of VLS’s business comes from distributing supplies to library customers, with about three percent of the business from its commercial label customers. Although VLS president Shai Robkin fired Ard, the operations manager, in July 1997, Robkin allowed Ard to continue working for two more months, both to ease his financial hardship and so Ard could train his successor. Two weeks later, Robkin approached Ard to discuss rumors that Ard was planning to start a competing business.

Robkin testified that he asked Ard what his intentions were and Ard responded that he intended to “ ‘go into the commercial label business.’ ” Robkin continued, “We certainly understood what that meant, to distinguish that from the library supplies business.” The president further testified that he offered to refer commercial label business to Ard and extracted a promise from Ard that he would not pursue VLS’s library supply customers. In exchange for this promise, Robkin allowed Ard to stay for the remainder of his time and continued to allow him access to all information about VLS’s library supply customers.

Ard also testified that the two men discussed his proposed upcoming business, agreed that he told Robkin he was going to start a new commercial label business, and did not tell him he might pursue VLS’s library supply customers. Ard also testified that Robkin made it clear in a subsequent conversation that he would be upset if Ard tried to steal any of his library supply clients. Ard denied, however, making any promises or commitments to Robkin.

Under the doctrine of promissory estoppel, “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” OCGA § 13-3-44 (a). We will not reverse the trial court’s ruling if any evidence in the record supports it. Lamb v. Tretiak, 194 Ga. App. 764, 765 (2) (391 SE2d 722) (1990). We need not reach the issue of whether VLS has shown “reasonable” reliance on what is essentially a very broad oral covenant not to compete, because the record contains some evidence that Ard made no promises to VLS. As there is evidence to sustain the trial court’s judgment, we cannot disturb it. Id.

3. VLS contends the trial court erred in ruling against it on its claims of breach of fiduciary relationship and breach of duty of loyalty.

An employee breaches no fiduciary duty to the employer simply by making plans to enter a competing business while he is still employed. Even before the termination of his agency, he is entitled to make arrangements to compete and upon termination of employment immediately compete. He is not, however, entitled to solicit customers for a rival business before the end of his employment nor can he properly do other similar acts in direct competition with the employer’s business.

Instrument Repair Svc. v. Gunby, 238 Ga. App. 138, 140 (1) (518 SE2d 161) (1999). The question before us, then, is whether any evidence supports the conclusion that Ard did not solicit customers or directly compete with VLS before the end of his employment. In fact, Robkin testified that he had no evidence Ard contacted VLS’s customers before he stopped working for VLS and knew of no specific activities in which Ard engaged to compete with VLS while still employed. Further, “a cause of action against an employee for breach of loyalty must be based upon a fiduciary duty owed by the employee and must rise and fall with any claim for breach of fiduciary duty.” Physician Specialists in Anesthesia v. Wildmon, 238 Ga. App. 730, 735 (3) (521 SE2d 358) (1999). The trial court did not err in granting judgment to Ard on VLS’s claims for breach of fiduciary relationship and employee loyalty.

4. Finally, VLS asserts the trial court erred in failing to award punitive damages and attorney fees. However, a claim for punitive damages will not lie when general damages are not awarded, May-field v. Ideal Enterprise, 157 Ga. App. 266, 267 (1) (277 SE2d 62) (1981), and since VLS is not entitled to any general damages, the trial court correctly found for Ard on the claims for attorney fees and the expenses of litigation under OCGA § 13-6-11. Russell Corp. v. BancBoston Financial Co., 209 Ga. App. 660, 663 (6) (434 SE2d 716) (1993).

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

Decided June 5, 2001.

Stokes, Lazarus & Carmichael, William K. Carmichael, for appellant.

Maddox, Nix, Bowman & Zoeckler, John A. Nix, for appellee.


text:
    A01A0649.
    BLAND v. GRAHAM et al.
    (549 SE2d 809)
   Phipps, Judge.

The Colonial Club Homeowner’s Association and two of its members sued Margarete Bland for violating a restrictive covenant in her warranty deed by constructing a separate residence on her property. They also sued Bland for breaching the contract that sought to resolve the dispute over the second residence by failing to seek prior approval from the association before proceeding with corrective construction. They sought injunctive relief, monetary damages and attorney fees.

After conducting a hearing and considering evidence from both sides, the trial court ordered Bland to proceed immediately with corrective construction on her property to give the two residences the appearance of a single home. The court also found that the association was entitled to place a lien on Bland’s property for unpaid association fees and awarded attorney fees to the association. Finally, the court enjoined and restrained Bland “from interfering with the common areas and the 16-foot wide roadway of the Colonial Club Homeowner’s Association.” Bland appeals from the last portion of the order.

Bland argues that when the trial court precluded her from interfering with the common areas and the association’s roadway, it granted injunctive relief on an issue not properly before the court. We agree and reverse that portion of the order. Bland does not appeal the remainder of the order.

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. ... If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of the evidence would prejudice him in maintaining his action or defense upon the merits. . . ,

Decided June 5, 2001.

Pierce Winningham III, for appellant.

Margarete A. Bland, pro se.

William A. Neel, Jr., for appellees.

The association’s complaint, which was never amended, was directed solely at the improper construction on Bland’s property and did not mention any controversy related to the common areas or a roadway. Thus, the issue was not raised by the pleadings.

Nor was the issue tried by express or implied consent of the parties. Bland’s attorney objected to questions related to maintenance of the roadway adjacent to Bland’s property on the ground of relevancy, noted that no amended complaint had been filed and requested leave to file a counterclaim because "both parties contend that the road has been altered in ways that affect the property.” The association’s attorney did not pursue the issue further. The only other mention of the claim was by the association’s president, who testified that part of the relief sought by the association was “[n]o interference about maintaining the road.” Because Bland’s attorney clearly objected to evidence of this additional claim, it cannot be said that the claim was tried with Bland’s express or implied consent. In the absence of an amendment to the pleadings, the trial court was not authorized to admit evidence of this separate claim or to grant relief on the claim. We therefore reverse that portion of the trial court’s order.

Judgment reversed.

Smith, P. J, and Barnes, J., concur.

       OCGA § 9-11-15 (b).

        Burger King Corp. v. Garrick, 149 Ga. App. 186, 188 (253 SE2d 852) (1979).

       Id.


text:
    A01A0668.
    A01A0669.
    A01A0670.
    HAYES v. THE STATE. KILLEN v. THE STATE. TOWNS v. THE STATE.
    (549 SE2d 813)
   Barnes, Judge.

As these appeals follow a joint trial, we have consolidated them for disposition. Darrell Lamar Hayes, Kelvin Lorenzo Killen, and Jatavius Lamar Towns appeal their convictions of three counts of burglary, two counts of criminal attempt to commit burglary, four counts of armed robbery, six counts of aggravated assault, six counts of possession of a firearm during the commission of a felony, one count of terroristic threats and acts, and one count of hijacking a motor vehicle.

Hayes contends the trial court erred by denying his motion to suppress evidence seized after what he contends was an illegal stop and search of his vehicle; by allowing the State to rebut his alibi defense without providing the notice required under OCGA § 17-16-5 (b); by denying his motion to sever offenses; by denying his motion to sever his trial from the other appellants’ trials; by denying his motion for a mistrial after the State referred to gang activity in its opening statement; by denying his motion for the court to take judicial notice of peijured testimony, denying his motion to strike the peijured testimony, and denying his motion for a mistrial because of the unreliable and peijured testimony; and by denying his motion for a directed verdict of acquittal on all counts. Hayes also contends the evidence is insufficient to sustain his conviction on all charges.

Killen and Towns allege the trial court erred by allowing the State to rebut their alibi defense without providing the notice required under OCGA § 17-16-5 (b), by denying their motion for a mistrial after the State referred to gang activity, and by denying their motion for a severance of the offenses. They also contend the trial court erred by denying their motion for a new trial because the evidence was not sufficient to authorize their conviction on all counts.

Viewed in the light most favorable to the verdict, the evidence shows that on September 7, 1997, someone burglarized a home and outbuildings, taking among other items a double-barrel .20 gauge shotgun and a .22 caliber pistol. About a week later on September 15, 1997, another home was burglarized. Three gold coins were among the items taken. As these burglaries were discovered after the crimes were committed, no description of the perpetrators was available. In both burglaries, the perpetrators committed what appeared to be unnecessary vandalism.

On September 26, 1997, two men with guns wearing ski masks and gloves entered the home of two victims who were present at the time, robbed them, and took their automobile. One of the men was armed with a double-barrel shotgun. An accomplice drove a car that followed the robbers in the victims’ car. A victim described one man as black and about six feet tall and the other man as slightly shorter and more slender.

Later, three men with weapons robbed a gas station. One of the men had a small pistol, one a shotgun, and the other an “Uzi-type” gun. The robbers put the money they took in a blue plastic bag they had brought with them. While the victims could not identify the robbers, one victim described them as three black men wearing “sock-type” hats and bandannas across their faces.

Then, late in the evening of October 10, 1997, a man sitting in his home was wounded by shots fired through the window by unknown attackers. The county sheriff and a deputy responded to the incident and stopped an automobile driving in this area. Hayes was driving the car which was owned by Killen, who was in the backseat; Towns was also a passenger in the car. The authorities found the sawed-off double-barrel shotgun and the .22 caliber pistol taken in the first burglary, the gold coins taken in the second, and a Tech-9 automatic pistol similar to a weapon used in the service station robbery. A victim of the home invasion robbery identified the sawed-off shotgun as that used in the robbery of her home, and the gloves, found in the trunk of the car, as similar to those used by the robbers. The Tech-9 found under the rear seat was the weapon used to shoot into the house that night. The authorities also found three hoods or masks, bandannas, and the blue plastic bag from the gas station robbery.

Subsequently, Killen was interviewed by a Georgia Bureau of Investigation agent, and, after being warned of his rights, he admitted he went to the last victim’s home and shot into his house. Killen, however, denied participating in the other crimes. He stated that he bought the guns found in his car from a white man in another city.

1. Hayes, Killen, and Towns all challenge the sufficiency of the evidence. Hayes contends the trial court erred by denying his motion for a directed verdict and further contends the evidence is not sufficient to sustain his conviction. Killen and Towns contend the trial court erred by denying their motion for a new trial because the evidence was not sufficient to sustain their convictions. Nevertheless, the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the appropriate one to use when the sufficiency of the evidence is challenged, whether the challenge is from the denial of a directed verdict or the denial of a motion for new trial based upon alleged insufficiency of the evidence. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

Thus, we must measure all the appellants’ evidentiary challenges against the Jackson v. Virginia standard. In doing so, we view the evidence in the light most favorable to the verdict, the appellants no longer enjoy the presumption of innocence, and we will determine the sufficiency of the evidence, but not its weight. Also, we do not judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

Additionally, motions for directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 311) (1984). On appeal, a reviewing court may consider all the evidence in the case (Bethay v. State, 235 Ga. 371, 375 (1) (219 SE2d 743) (1975)), and as in the case of all challenges to the sufficiency of the evidence, it must view the evidence in the light most favorable to the verdict. Humphrey v. State, supra, 252 Ga. at 527.

The appellants’ challenges rely upon their alibi defense, their assertions that no one could identify them as the perpetrators of any of the crimes, and the absence of physical evidence connecting them to the crimes. Proof by direct evidence, however, is not required. A conviction may be based upon circumstantial evidence if the proved facts are not only consistent with the hypothesis of guilt, but exclude every other reasonable hypothesis but the guilt of the accused. OCGA § 24-4-6. When the evidence meets this test, circumstantial evidence is as probative as direct evidence (Christmas v. State, 171 Ga. App. 4, 7 (2) (318 SE2d 682) (1984)), and “[w]hether this burden has been met is a question for the jury.” Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546) (1989). When the jury is authorized to find that the evidence, though circumstantial, excluded every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law. Pattillo v. State, 250 Ga. 510, 512 (1) (299 SE2d 710) (1983); Jones v. State, 165 Ga. App. 36, 38 (1) (299 SE2d 576) (1983). Further, while circumstantial evidence must exclude every other reasonable hypothesis but the defendant’s guilt, the evidence need not exclude every inference or hypothesis. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987).

After reviewing the evidence in the light most favorable to the jury’s determination, we conclude that the jury rationally could have found from the circumstantial evidence that every reasonable hypothesis was excluded except that the appellants were guilty of the crimes, and the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that they were guilty of the offenses of which they were convicted. Jackson v. Virginia, supra. The appellants were apprehended in a car containing the masks, clothing, and bandannas used in the earlier crimes, the stolen weapons used in the crimes, and gold coins taken in an earlier crime. Further, the witnesses to two of the crimes testified that three men were involved. And, finally, Eallen admitted shooting into the home. Accordingly, the appellants’ allegations regarding the sufficiency of the evidence are without merit.

2. The appellants allege the trial court erred by denying their motions to sever the offenses because the offenses were joined for trial only because they were of the same or similar character. We disagree with this contention because the evidence shows the crimes were part of a single plan or scheme. As the offenses were “based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the discretion of the trial court.” (Punctuation omitted.) Bailey v. State, 157 Ga. App. 222, 223 (3) (276 SE2d 843) (1981). Thus, “[t]he test for the court to consider is [w]hether, in light of the number of offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense.” (Punctuation omitted.) Dobbs v. State, 204 Ga. App. 83, 84 (1) (418 SE2d 443) (1992).

It is not an abuse of discretion in the interest of justice 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 conducted over a relatively short time, and from the nature of the entire transaction, it would be almost impossible to present to a jury evidence of one of the crimes without also permitting evidence of another.

(Citations and punctuation omitted.) Id. at 83 (1).

Offenses are not joined solely because they are of the same or similar character when the similarity of the crimes reaches the level of a pattern showing a common motive, plan, scheme, or bent of mind. Sanders v. State, 236 Ga. App. 578, 580 (1) (a) (512 SE2d 678) (1999); see Scroggins v. State, 237 Ga. App. 122, 123 (3) (514 SE2d 252) (1999). Further, a trial court may refuse to sever offenses for trial if, as in this case, they “are based on the same conduct, on a series of connected acts, or on a series of acts constituting parts of a single scheme or plan.” (Punctuation omitted.) Jones v. State, 226 Ga. App. 428, 431 (2) (487 SE2d 62) (1997). Therefore, we find no merit to the appellants’ argument.

3. All appellants allege that the trial court erred by denying their motion for a mistrial following the State’s reference to gang activity in its opening statement. This issue arose because the State responded to the appellants’ pretrial motion in limine seeking to exclude any reference to gang activity by stating that it would not refer to or introduce evidence about gang activity. During opening statements, however, the prosecutor said the appellants were the “same buddies, same little group, same little gang.” The appellants moved for a mistrial, but the motion was denied.

We find no error because there is no factual support for the appellants’ basic allegations. The prosecutor’s comments were not a reference to gang activity either as this term might be commonly understood or as defined in our criminal code. See OCGA § 16-15-4 (a) (conducting or participating in a criminal street gang through a pattern of criminal gang activity is unlawful). A “ £[p]attern of criminal gang activity’ ” is defined in OCGA § 16-15-3 (2) as “the commission, attempted commission, conspiracy to commit, or solicitation, coercion, or intimidation of another person to commit at least two” of certain designated offenses, none of which were alleged in this case.

In proper context, the prosecutor’s comments could be reasonably understood as referring only to the appellants, and not to some larger group. Moreover, the prosecutor made no mention of “activities.” Under the evidence in this case, the prosecutor’s comments were fairly based on the evidence.

4. All appellants also allege the trial court erred by allowing the State to rebut their alibi defense even though it did not serve them with the notice required by OCGA § 17-16-5 (b). This subsection provides that

[t]he prosecuting attorney shall serve upon the defendant within five days of the defendant’s written notice but no later than five days before trial, whichever is later, a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the state, upon whom the state intends to rely to rebut the defendant’s evidence of alibi unless previously supplied.

Thus, when the defendants revealed their intention to rely on an alibi defense, the State was required to make timely notifications to them of the anticipated rebuttal. OCGA § 17-16-5 (b). If the State fails to comply with this Code section, “the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.” OCGA § 17-16-6.

Although the State argues that it was authorized to rebut the testimony of the alibi witness regardless of the requirements of OCGA § 17-16-5 (b), this contention was rejected by our Supreme Court in White v. State, 271 Ga. 130, 131 (2) (518 SE2d 113) (1999). The State may not rely on its general witness list as a substitute for compliance with OCGA § 17-16-5 (b). Id.

The statute, however, is concerned not with witnesses generally, but with witnesses who will testify regarding the alibi defense. Requiring specific disclosure of the witnesses upon whom the state will rely to rebut the alibi furthers the act’s purpose of preventing surprise and promoting fairness. Furthermore, a defendant who knows which witnesses will testify to rebut an alibi can more accurately assess the strength of his case prior to trial and may consider avoiding a trial through a plea bargain.

Id. Accordingly, we find that the State was obligated to respond to the appellants’ notification of their intention to rely upon alibi as a defense in this case, and neither the general witness list nor the State’s entitlement otherwise to rebut or impeach a witness’s testimony with conflicting testimony or statements (see OCGA §§ 24-9-82; 24-9-83) is a substitute for compliance with OCGA § 17-16-5 (b).

Under the circumstances of this case, however, the appellants were not entitled to the relief that they sought. A trial court is authorized to prohibit the State from introducing the evidence or producing the witness not disclosed “upon a showing of prejudice and bad faith.” OCGA § 17-16-6. Here, the appellants did not show that the State acted in bad faith or that they were prejudiced by the State’s failure to separately disclose the names of the witnesses who would rebut the alibi defense. “The finding of prejudice that is required by § 17-16-6 in order for a trial court to prohibit a witness from testifying is not the prejudice that is inherent in the testimony of any opposing party’s witness. Instead, the prejudice must arise from the failure to comply with the discovery statute.” Malaguti v. State, 273 Ga. 398, 402 (2), n. 9 (543 SE2d 1) (2001).

Additionally, a defendant is obliged to request a continuance to cure any prejudice which may have resulted from the State’s failure to comply with the requirements of the reciprocal discovery act. State v. Dickerson, 273 Ga. 408, 411 (2) (542 SE2d 487) (2001). Under the circumstances, we hold that the appellants waived their right to assert error on appeal by their failure to seek a continuance. Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) (510 SE2d 87) (1998).

5. Hayes contends the trial court erred by denying his motion to suppress evidence seized after what he contends was an illegal stop of the vehicle he was driving, because no reasonable suspicion existed for the stop. We disagree.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that a substantial basis existed for the decision. Evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

In this instance, the car was stopped because it had been seen parked “right down the road” from the house someone had just fired into. A witness saw the car parked on the roadside, facing the wrong way; then later, while standing in the yard at the crime scene, the witness saw the car drive by with three black people inside. Based on the witness’s identification of the suspicious car, the sheriff and his deputies stopped it.

Once they stopped the car, a deputy standing outside the car saw in plain view a gun case under the front seat and a ski mask on the floor near the front passenger’s seat. After they discovered these items, the deputies searched the car.

Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. A Terry stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. (Citations and punctuation omitted.) Fritzius v. State, 225 Ga. App. 642, 643-644 (484 SE2d 743) [(1997)].

(Punctuation omitted.) Buffington v. State, 228 Ga. App. 810, 811 (492 SE2d 762) (1997). We are satisfied that the witness’s observation of the car parked at the time of the shooting for an extended period not far from the crime scene and her subsequent identification of the car as it passed the scene provided reasonable suspicion for stopping the car. As some evidence exists supporting the trial court’s finding of fact, we cannot disturb it. Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975).

6. Hayes also contends the trial court erred by denying his motion to sever his trial from the other appellants’ trials. In a non-capital case, whether to sever defendants’ trials lies within the trial court’s discretion, which will not be disturbed unless it is abused. OCGA § 17-8-4; Slaughter v. State, 240 Ga. App. 758, 759 (1) (525 SE2d 130) (1999). To warrant a severance, Hayes was required to do more than raise the possibility that a separate trial would have given him a better chance of obtaining an acquittal. He was required to make a clear showing of prejudice sufficient to establish a denial of due process. Barnett v. State, 204 Ga. App. 491, 495 (2) (b) (420 SE2d 43) (1992); Emmett v. State, 199 Ga. App. 650, 652 (4) (405 SE2d 707) (1991).

Decided June 5, 2001

Wright, Hyman & Pack, George R. Wright, Adrian L. Patrick, for appellants (case nos. A01A0668 and A01A0670).

John W. Sherrer, Jr., for appellant (case no. A01A0669).

Denise D. Fachini, District Attorney, Cheri L. Nichols, Assistant District Attorney, for appellee.

A trial court must consider the following factors in exercising its discretion on a motion to sever: (1) whether the number of defendants will create confusion as to the law and evidence applicable to each, (2) whether there is a danger that evidence admissible against one defendant will be considered against the other despite the court’s instructions, and (3) whether the defendants’ defenses are antagonistic to each other or to each other’s rights. Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975). None of these factors is present in this case, and Hayes has failed to carry his burden to make a clear showing of prejudice and denial of due process.

7. Hayes contends the trial court erred by denying his request to take judicial notice of a witness’s perjured testimony, denying his motion to strike that testimony, and denying his motion for a mistrial based on that testimony. He contends the witness was a racist and her testimony was perjured and highly prejudicial. This argument misperceives the responsibilities of the court and the jury. “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80. Therefore, this was not a matter of which the trial court could take judicial notice. See OCGA § 24-1-4. Hayes was free to attempt to impeach the witness by any means authorized (OCGA §§ 24-9-82; 24-9-83), but the credit to be given to the witness’s testimony was for the jury to decide. OCGA § 24-9-85. Accordingly, we find no error in the trial court’s denial of these motions.

Judgments affirmed.

Smith, P. J., and Phipps, J., concur.