text:
    A92A0472.
    LUPTON v. THE LANDINGS COMPANY.
    (420 SE2d 346)
   Birdsong, Presiding Judge.

David W. Lupton, defendant and third-party plaintiff below, appeals from the grant of summary judgment in favor of The Landings Company, the third-party defendant. Lupton contends the trial court erred by granting summary judgment because material issues of fact remain for trial.

The record shows Lupton signed a contract with George and Sara Hills to purchase a lot on a certain future date for an amount specified in the contract and, in accordance with the contract, paid $10,000 as earnest money. Lupton, however, did not complete the purchase.

The record also shows that the contract provided specifically that The Landings was the Hills’ agent and not Lupton’s, and also provided that “if the sale is not consummated due to purchaser’s default, the earnest money shall be applied to agent’s commission hereunder and agent shall pay the balance, if any, to seller as seller’s damages caused by purchaser’s default.” Thus, when Lupton did not complete the purchase, The Landings deducted from the earnest money the amount it was owed as its commission and paid the remainder to the Hills.

Later, the Hills sued Lupton for specific performance of the contract, and Lupton filed a third-party complaint against The Landings, the Hills’ real estate agent, asserting that if the Hills prevailed in their action for specific performance, Lupton was entitled to recover from The Landings all or a portion of the Hills’ recovery. Lupton’s answer contended that under the contract it was the parties’ intention that the Hills’ only remedy would be retention of the earnest money or, if that was not the intention of the parties, there was no contract because there was no meeting of the minds. Lupton, however, filed no counterclaim against the Hills seeking rescission of the contract or any other remedy.

Lupton’s third-party complaint contended that he was entitled to recover from The Landings because he told The Landings’ representative he could not purchase the Hills’ house unless he sold his home in another state, The Landings’ agent told him that the contract Lupton signed was only preliminary, was a “binder” for 60 days, and if he did not complete the sale, he would only lose his earnest money.

The Landings’ motion for summary judgment asserted that the merger/integration clause in the sales contract prevents Lupton from relying on any contingency or condition not set forth in the contract, that Lupton did not justifiably rely on any representations made by the sellers’ agent, that Lupton did not make an independent verification of the contractual terms and representations, and that Lupton did not come forward with sufficient evidence of fraudulent intent to create a genuine issue for trial. Lupton’s response to this motion asserted that under the contract the Hills were only entitled to recover as damages for any breach of the contract a portion of the earnest money and that The Landings was not entitled to retain a portion of the earnest money that was used to pay its commission after Lupton refused to purchase the property. Lupton maintains The Landings was not entitled to a commission because he was not a ready, willing, and able purchaser so as to entitle The Landings to its commission. See OCGA § 10-6-32. Held:

Pretermitting whether material issues of fact remained, this was not a proper case for a third-party complaint. Our law permits a defendant to bring a third-party complaint against one who is not a party to the action, but “who is or may be liable to him for all or part of the [plaintiff’s] claim” against him. OCGA § 9-11-14 (a). This section, however, does not authorize a defendant to file a third-party complaint to seek affirmative relief solely on his own behalf. The third-party complaint must be predicated on secondary or derivative liability, such as indemnity, subrogation or contribution. See Hennessy Cadillac v. Pippin, 197 Ga. App. 448, 449-450 (398 SE2d 725). Although Lupton’s theory of recovery against The Landings is not entirely clear, it is clear that Lupton does not assert a claim against the Hills’ agent, The Landings, which is based upon derivative or secondary liability. See Southern R. Co. v. Union Camp Corp., 181 Ga. App. 691, 693 (353 SE2d 519).

Accordingly, this claim is not a proper third-party claim. The Landings, however, is not entitled to summary judgment as that would constitute a judgment on the merits of the claim. See McCormick v. Rissanen, 177 Ga. App. 623 (340 SE2d 268). Therefore, the grant of summary judgment is reversed and the trial court is directed to dismiss Lupton’s third-party claim without prejudice.

Decided June 24, 1992.

Clark & Clark, Fred S. Clark, for appellant.

Barnard M. Portman, Miller, Simpson & Tatum, John M. Tatum, Robert A. Lewallen, Jr., for appellee.

Judgment reversed with direction.

Beasley and Andrews, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A0506.
    NANCE v. THE STATE.
    (420 SE2d 348)
   Birdsong, Presiding Judge.

Beverly June Nance appeals her conviction for criminal attempt to violate the Georgia Controlled Substances Act by purchasing crack cocaine during a police “sting” operation. She contends the trial court prejudiced the testimony of a defense witness by stating, in the presence of the jury, that the witness was making false statements.

The transcript shows the matter Nance complains of occurred during the testimony of her brother, who was arrested with her during the sting operation, was charged with the same offense, and subsequently pleaded guilty in return for first offender treatment. Nevertheless, during Nance’s trial, her brother’s testimony directly contradicted his sworn testimony during his guilty plea and supported her contention that they were innocently in the neighborhood and did not attempt to purchase any crack cocaine. Although Nance was arrested immediately after attempting to buy the fake cocaine, the fake drug was not found; although the policeman who purportedly sold Nance the fake cocaine wore a recording device, no tape of the conversation was made.

The transcript shows the following colloquy during the brother’s cross-examination: “WITNESS: . . . [My defense counsel] spoke to me five minutes prior to the Judge making this deal. COURT: I want to correct you. The Court hadn’t made any deal. WITNESS: Well, it’s plea bargaining — COURT: Don’t say things on the record in this case about this court that aren’t true. I haven’t made any deal with you or anybody else and that terminates this conversation. WITNESS: I’m saying deal; I meant plea bargaining or whatever they call it. COURT: This conversation is terminated. WITNESS: Fine, sir. COURT: Don’t imply that this court has made a deal with anybody because that’s not true. Under oath or not, that’s not true.”

Nance promptly moved for a mistrial because “the communication, though understandable, between yourself and the witness, has, in the presence of the jury, unduly tainted them and I don’t think we can get a fair trial at this point.” The motion was denied and the jury was given no instructions about the matter at this time, but during the general charge the court gave this instruction: “By no ruling or comment which the court has made during the progress of the trial has the court intended to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence or upon the guilt or innocence of the defendant.” Held:

Questions of credibility are for the jury to decide (OCGA § 24-9-80), and OCGA § 17-8-57 prohibits judges in criminal cases from expressing or intimating their opinion on what has or has not been proven, and mandates reversal for any violation of the Code section. The trial judge’s comments were limited in their scope and did not in fact disparage the witness’ credibility in general or his credibility with regard to any fact at issue in the trial or with regard to the guilt or innocence of appellant, nor did they tend to leave the jury with the impression that the witness supporting appellant’s story had lied under oath. In this instance, the witness impugned the integrity of the court and the trial judge had the right and obligation to protect the court’s integrity. Further, neither the comments of the witness nor those of the trial court were directed toward a material issue or the relevant evidence in the case. See Dixon v. State, 196 Ga. App. 15, 18-19 (395 SE2d 577). And the trial judge gave the curative instructions stated above; this effectively cured any possible misimpression given by the court’s correction of the witness’ statement that the court had made “a deal.” The jury therefore could not reasonably conclude the court had in fact expressed an opinion as to the credibility of the witness or as to any issue relevant to appellant’s guilt or innocence. Moreover, OCGA § 17-8-57 is violated when the trial court intimates to the jury “what the judge believes the evidence to be.” (Citation and punctuation omitted.) Williams v. State, 257 Ga. 788, 789 (364 SE2d 569)

In this instance, the trial judge was simply assuring that there was no confusion about whether the court made a deal with the witness. In this regard, the record shows that a State’s exhibit used to impeach Nance’s brother’s testimony shows the following: “I am informed that [the trial judge in this case], an assistant district attorney, and my attorney have discussed this case and that, if I plead guilty, I will receive the following sentence: 4 years probation, 1st off. probation, $500 fine, $15/month probation fee, $300 att. fee restitution.” Clearly the trial judge made no deal with the witness, and it was necessary for the trial judge to assure that the jury was not confused.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

Decided June 24, 1992.

Terry L. Shaw, for appellant.

Robert E. Keller, District Attorney, Gregory K. Hecht, Assistant District Attorney, for appellee.


text:
    A92A0522.
    LOWMAN v. THE STATE.
    (420 SE2d 94)
   Birdsong, Presiding Judge.

We granted this interlocutory appeal of the trial court’s order denying Ranell Lowman’s plea in bar based upon the running of the four-year period of limitations. This appeal arises from the same underlying facts as State v. Lowman, 198 Ga. App. 8 (400 SE2d 373), in which this court affirmed the trial court’s grant of Lowman’s plea in bar because of the period of limitations on all but one of the counts of theft by conversion against Lowman. We reversed the trial court on the remaining count because we found that offense was within the period of limitations. The State now seeks to prosecute Lowman for perjury (OCGA § 16-10-70).

The record shows that on January 30, 1990, Lowman was indicted for allegedly committing perjury on March 1, 1985, during a probate court hearing on a motion for an accounting of his brother’s estate of which he was executor. According to the indictment, Low-man testified falsely about his handling of the estate. In general, his testimony was that he had properly performed his duties as executor and that money was available to close out the estate. When Lowman, the heirs, and the probate judge went to the bank, however, there was only $7 in the estate’s account. On the motion of one of the heirs, Lowman was removed as executor on August 9, 1985.

On October 9, 1989, Lowman was indicted for 14 counts of theft by conversion from the estate, and upon Lowman’s assertion of a plea in bar, as noted above, this court affirmed the trial court’s dismissal of 13 counts. Thereafter, in January, 1991, Lowman' was indicted for perjury.

Lowman again asserted a plea in bar based on expiration of the period of limitations, but this time the trial court denied that plea because it found that perjury is an offense against public administration and the “offense was unknown as contemplated by OCGA § 17-3-2 (2) until discovered and disclosed to the District Attorney . . . during the summer and fall of 1989.” Lowman contends this ruling was erroneous. Held:

The knowledge at issue in OCGA § 17-3-2 (2) is the knowledge of the State, including that imputed to the State through the knowledge of the prosecution, the knowledge of someone interested in the prosecution, or the knowledge of one injured by the offense. Duncan v. State, 193 Ga. App. 793-794 (389 SE2d 365); State v. Brannon, 154 Ga. App. 285, 287 (267 SE2d 888). In this appeal, even though perjury is classified as an offense against public administration, the heirs and the probate judge were interested in the prosecution because of the potential effect Lowman’s perjury could have had upon the motion pending in the probate court. Further, if the perjury had been successful, the heirs, if not the probate judge would have been injured by it. In Sears v. State, 182 Ga. App. 480, 481-482 (356 SE2d 72), we held that when the offense is known by an injured party, the statute begins to run and that if a crime against the public involves also a wrong upon an individual, who is not a party to the crime, the knowledge of the victim is imputed to the State, even though the victim does not represent the State in an official capacity. Accord Womack v. State, 260 Ga. 21, 22 (389 SE2d 240). Further, in Lowman v. State, supra, we held that the knowledge of the heirs, as persons interested in Lowman’s prosecution or injured parties, would be imputed to the State. The same reasoning applies in this appeal.

Decided June 24, 1992.

William L. Reilly, for appellant.

Roger Queen, District Attorney, for appellee.

As the heirs knew as early as March 1, 1985, that Lowman, in the judicial proceeding in the probate court, knowingly and wilfully made false statements material to the issue before the probate court, both the person committing the crime and the crime were known within the meaning of OCGA § 17-3-2 (2) and therefore the period of limitations was not' tolled. Moreover, in this appeal Lowman’s perjury was also known to the probate judge, and, pretermitting whether the judge could qualify as a victim of perjury, as the presiding official of the court in which the perjury was committed, the probate judge also has an interest in the prosecution of anyone who commits perjury in his court. Thus, the knowledge of the probate judge is also imputed to the State for purposes of OCGA § 17-3-2 (2).

Accordingly, the trial court erred by denying Lowman’s plea in bar because the statute of limitation was not tolled. Womack v. State, supra; Duncan v. State, supra. Therefore, the judgment is reversed and the case remanded to the trial court with direction that the plea in bar be granted.

Judgment reversed with direction.

Beasley and Andrews, JJ., concur.


text:
    A92A0312.
    DAVIS v. THE STATE.
    (420 SE2d 349)
   Birdsong, Presiding Judge.

Elroy Davis appeals his conviction for statutory rape of his daughter. He contends the trial court erred by tainting the jury panel by unfairly blaming his counsel for the length of jury selection, by denying his motion for complete recording of the trial, by refusing to allow scientific tests to be conducted on a semen sample, by allowing the prosecution to bolster the victim’s testimony, and by allowing the prosecution to introduce evidence of medical reports and testimony in violation of OCGA §§ 17-7-210 and 17-7-211. He also contends the evidence was insufficient to support a conviction for statutory rape. Held:

1. Davis’ argument on the insufficiency of the evidence to support his conviction for statutory rape contends that the victim’s testimony was not corroborated sufficiently as only the victim’s testimony identified him as the perpetrator. See OCGA § 16-6-3 (a). This argument is without merit. “Corroborating identification evidence is not necessary in statutory rape prosecutions. The quantum of corroboration needed in a rape case is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury.” (Citation and punctuation omitted.) Byars v. State, 198 Ga. App. 793 (403 SE2d 82). Considering all the evidence presented at trial, we are satisfied that the evidence was sufficient to corroborate the victim’s testimony. Further, we have reviewed the evidence in the light most favorable to the jury’s determination, and we conclude that a rational trier of fact could have found the defendant guilty of the crime for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131). Accordingly, this enumeration is without merit.

2. Davis contends the trial court prejudiced the jury against him by instructing the jurors that defendant had invoked his right and that they should not be prejudiced against defendant because it would take longer to select a jury. According to the trial judge, he stated: “Do not let it prejudice your minds against the defendant in any way whatsoever.” During the trial, Davis based his challenge to the array on the Fourteenth and Fifth Amendments to the United States Constitution. Now he contends the trial judge’s remark violated OCGA § 17-8-57. The record shows that Davis’ election to question all the jurors on the panel before starting to strike a jury (OCGA § 15-12-133) prompted the trial court’s comments to the jury.

Although we agree that “ ‘[j]urors are generally unfamiliar with the mechanics of a trial, civil or criminal, and may enter upon their duties with little or no idea as to how an actual trial is conducted,’ ” (Edmonds v. State, 196 Ga. App. 190, 194-195 (395 SE2d 566)) and that a trial court should not make the defense counsel a “heavy” in the presence of a jury (Lahr v. State, 239 Ga. 813, 814 (238 SE2d 878)), nevertheless, nothing in this record shows that Davis was in any way prejudiced by this remark. Accordingly, any error was harmless. Taylor v. State, 202 Ga. App. 445, 446 (414 SE2d 687). Although we are satisfied that the trial court was well intentioned in this matter, the better practice would be for the court not to make such remarks. See Taylor v. State, supra at 446-447, Carley, J., concurring opinion.

3. Davis asserts that the trial court erred by denying his motion to record the entire trial. This enumeration is without merit. Our law only requires such recordation when the State seeks the death penalty. OCGA § 17-8-5; State v. Graham, 246 Ga. 341, 343 (271 SE2d 627).

4. Appellant asserts that the trial court erred by denying his motion to conduct scientific tests of certain items of evidence. (The record shows, however, that at the time in question the motion actually made was for a continuance to conduct the tests.) The transcript reveals that a sheet upon which the sexual assault of the victim took place was inadvertently placed in the evidence room rather than being sent to the crime lab, and that the rape kit was not analyzed until shortly before the trial. Thus, when Davis moved for a continuance for a test of these objects, the trial court denied the request as untimely. As Davis concedes the police and prosecution were not guilty of bad faith in their handling of this evidence, there was no error arising from the handling of the evidence. Spaulding v. State, 195 Ga. App. 420 (394 SE2d 111). Further, appellant’s motion was untimely. Compare Thornton v. State, 255 Ga. 434, 437 (339 SE2d 240). Nothing in our law either requires or permits defendants to rely solely on information provided by the State for their pretrial investigation, and before they are entitled to continuance, they must show the exercise of due diligence. OCGA § 17-8-20. Accordingly, the trial court did not abuse its discretion by denying Davis’ motion for a continuance to conduct scientific tests which was made on the morning of trial. Fowler v. State, 195 Ga. App. 874, 875 (395 SE2d 33).

5. Davis contends that the trial court erred by allowing the prosecuting attorney to bolster the testimony of the complaining witness by vouching for the victim’s testimony by sitting close to the victim before the jury and touching the victim. Although we agree with the observations made by the Supreme Court of Alabama in Sexton v. State, 529 S2d 1041, 1044 (Ala. 1988), that “[i]f, because of age, timidity or frailty, a witness requires aid in order to testify, that aid should be rendered by someone other than the prosecuting attorney,” in this instance we find no reversible error. It is not error for a child witness to sit in a small chair in front of the jury (Boatright v. State, 192 Ga. App. 112, 115-116 (385 SE2d 298); Ortiz v. State, 188 Ga. App. 532, 533-535 (374 SE2d 92)), or for a witness coordinator (Miles v. State, 201 Ga. App. 568, 569 (411 SE2d 566)) or a foster parent to sit near the witness. Boatright v. State, supra. Further, our “courts have traditionally accorded a great deal of latitude in the examination of young or timid or otherwise disadvantaged witnesses.” (Citation and punctuation omitted.) Cherry v. State, 199 Ga. App. 879, 880 (406 SE2d 531). Therefore in the absence of evidence that the trial court has abused its broad discretion in controlling the trial of the case, the exercise of that discretion will not be reversed.

Decided June 25, 1992.

Travis T. Vance III, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Michael L. Spotts, Rebecca A. Keel, Assistant District Attorneys, for appellee.

6. Finally, Davis contends the trial court erred by allowing testimony concerning the presence of semen on the rape kit slides because the reports were not provided him ten days before trial in accordance with OCGA § 17-7-211. There was no error. The record shows that there were no scientific reports to be provided ten days before trial and that the prosecution advised him of the results of the test when learned. “Since there was no written report available before the trial, the report itself was not excludable under the statute. Boyce v. State, 184 Ga. App. 578, 579 (5) (362 SE2d 229).” Paggett v. State, 188 Ga. App. 174, 176 (372 SE2d 504).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Cooper, Judge.

text:
    A92A0467.
    PARHAM v. THE STATE.
    (420 SE2d 356)
   Cooper, Judge.

Appellant was convicted in a jury trial of aggravated assault and appeals the trial court’s denial of his motion for new trial.

Review of the evidence adduced at trial reveals that appellant approached the victim, who was seated at a table with a woman having a beer in a VFW hall, and said “[I]f you put your hands on my wife again, I’m going to hurt you.” Appellant then pushed the victim’s chin up. As the victim stood ujp to respond, appellant swung his clenched fist at the victim, slashing the side of the victim’s neck with a knife. Appellant then left the hall and was apprehended later by the police. At trial, appellant admitted stabbing the victim; however, as justification for his conduct, appellant testified that when he confronted the victim on a previous, occasion, the victim displayed a sawed-off shotgun; that the victim was known to carry a knife; and that on the night of the assault, as the victim stood up, he appeared to be reaching for his pocket. Testimony offered by the woman who was seated with the victim described a similar gesture toward the victim’s pocket; however, the victim denied making such a gesture, and another eyewitness testified that the victim did not reach for his pocket. The victim denied having a sawed-off shotgun, and testified that he had not carried a knife for several weeks and that when he did carry the weapon, he would check it at the door of the VFW hall. The victim was not carrying a knife on the night of the assault.

Decided June 25, 1992.

Richard L. Dickson, J. Michael Mullís, for appellant.

Harry N. Gordon, District Attorney, for appellee.

In his sole enumeration of error, appellant argues that the evidence was insufficient to support his conviction because he acted in self-defense. “[T]he burden was on the State to prove that [appellant] did not act in self-defense. [Cits.]” Shackleford v. State, 198 Ga. App. 768 (1) (403 SE2d 74) (1991). “A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself. . . .” OCGA § 16-3-21 (a). Viewing the evidence in a light to support the jury’s verdict, we find that the State presented sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that appellant did not act in self-defense and that appellant was guilty of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Dixon v. State, 197 Ga. App. 684 (399 SE2d 275) (1990).

Judgment affirmed.

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


text:
    A92A0485.
    RICHARDS v. FIRST UNION NATIONAL BANK OF GEORGIA.
    (420 SE2d 352)
   Cooper, Judge.

Appellee brought an action against appellant seeking recovery on three promissory notes. Appellant answered, asserting breach of an oral contract and breach of fiduciary duty as defenses, and filing a counterclaim against appellee for breach of an oral contract. Appellee moved for summary judgment on its complaint, and the motion was granted. Appellant appealed, and this court affirmed the grant of summary judgment to appellee. Richards v. First Union Nat. Bank of Ga., 199 Ga. App. 636 (405 SE2d 705) (1991). Thereafter, appellee moved for summary judgment on the counterclaim, and the trial court granted the motion. This appeal followed.

Appellant agreed to personally guarantee two business loans made to his son and daughter-in-law as an accommodation party, and the third note represented a consolidation and renewal of loans made by appellee to appellant. Appellant argued in defense of the initial motion for summary judgment on the complaint that he should be discharged from obligation under the promissory notes because appellee’s commercial loan officers breached an oral agreement not to make loans to the accommodated parties without his prior knowledge and consent. Appellant also contended that appellee impaired the collateral which secured the notes by allowing it to be pledged and liquidated in satisfaction of subsequent loans advanced to his son and daughter-in-law without his consent. In Richards, supra, we held that the parol evidence rule precluded enforcement of such oral agreements; that the evidence failed to support appellant’s contention that such an oral agreement was ever made; and that the evidence was insufficient to show impairment of collateral under OCGA § 11-3-606. Id. at 637. We also rejected appellant’s argument that appellee violated a duty owed to appellant arising out of a fiduciary or confidential relationship. In his counterclaim, appellant alleges that as an inducement to execute the promissory notes, appellee entered into a separate oral contract wherein appellee agreed not to make loans to the accommodated parties without appellant’s knowledge and consent and that appellee breached a duty arising from the oral agreement. Appellant also seeks punitive damages “due to the aggravating circumstances in the act and intention of the plaintiff.” In its motion for summary judgment on the counterclaim, appellee argued that appellant’s theories of recovery were identical to the claims addressed and rejected by this court in Richards, supra. Moreover, as to the breach of duty claim, appellee contended that as a director of the corporations through which his son and daughter-in-law received the loans, appellant had a duty to exercise due diligence to educate himself as to the financial condition of the corporations. The trial court agreed that this court in Richards, supra, rejected appellant’s argument and concluded that it was bound to follow the decision of the Court of Appeals in its grant of summary judgment to appellee on the counterclaim.

1. Appellant enumerates as error the trial court’s application of the law of the case rule in granting summary judgment on the counterclaim. “ ‘The “law of the case” has been defined as a controlling legal rule established by a previous decision between the same parties in the same case. (Cit.)’ [Cit.] However, the principle only establishes the law of the case in its then existing evidentiary posture. ‘ “When a case is brought to this court ... , all questions as to pleadings and the effect of evidence adjudicated by this court are binding as the law of the case on this court and ... in the court below, unless additional pleadings and evidence prevail to change such adjudications.” ’ (Emphasis supplied.) [Cit.]” Modern Roofing &c. Inc. v. Owen, 174 Ga. App. 875 (1) (332 SE2d 14) (1985). “ ‘ “Where the second motion for summary judgment is based on matters not involved in the decision on the first motion, the ‘law of the case’ is not involved. (Cit.)” (Cits.)’ [Cit.]” Id. at 876. Appellant argues that the issues in the first case related to the admissibility of parol testimony as to defenses in an action on promissory notes and that the issues in the instant case related to an action on a simple oral contract; thus, the evidentiary postures of the cases are different and the law of the case rule is inapplicable. We disagree.

It is apparent that the alleged oral agreement which is the basis of appellant’s counterclaim is the same oral agreement that was rejected by this court in Richards, supra, based on the parol evidence rule. Our examination of the record reveals that no additional evidence has been submitted by appellant for the trial court’s consideration in connection with the motion for summary judgment on the counterclaim, nor does appellant cite to any such evidence. See Yaeger v. Stith Equip. Co., 185 Ga. App. 315, 316 (364 SE2d 48) (1987). Thus, “[t]he rule applies because the same parties and issues are involved and the evidentiary posture of the case remains the same. [Cit.]” Bruce v. Garges, 259 Ga. 268, 270 (2) (379 SE2d 783) (1989). See also Navistar Intl. Transp. Corp. v. Ogletree, 199 Ga. App. 699 (2) (405 SE2d 884) (1991); Dacosta v. Allstate Ins. Co., 199 Ga. App. 292 (1) (404 SE2d 627) (1991). Appellant’s reliance on the holding in Modern Roofing, supra, is misplaced because in Modern Roofing, additional evidence was presented and a new issue was raised in the second motion for summary judgment; therefore, the case was not in the same evidentiary posture. In May v. Macioce, 200 Ga. App. 542 (409 SE2d 45) (1991), also relied upon by appellant, the rule was likewise inapplicable because the complaint was amended to allege a new theory of recovery after the appellate court decision.

2. In his second enumeration of error, appellant contends that because the trial court did not include in its findings of fact and conclusions of law that it found “no genuine issues of material fact and defendant is entitled to judgment as a matter of law,” the court did not employ the proper standard in granting summary judgment to appellee. “[T]he mere entry of findings of fact and conclusions of law in ruling on a motion for summary judgment does not constitute error per se.” Harrell v. Louis Smith Mem. Hosp., 197 Ga. App. 189 (1) (397 SE2d 746) (1990). OCGA § 9-11-56 (c) requires that the movant in a motion for summary judgment to show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; however, the trial court is not required to make a specific finding of such. OCGA § 9-11-52. In the instant case, the trial court entered findings of fact and conclusions of law which amply demonstrated that appellee met its burden and was entitled to judgment as a matter of law. Hence, we find no error in the trial court’s grant of summary judgment.

Decided June 25, 1992.

Harl C. Duffey, Jr., for appellant.

Jones, Byington, Durham & Payne, Frank H. Jones, for appellee.

3. Contrary to appellant’s third enumeration of error, our discussion in the divisions above demonstrates that the trial court did not err in granting summary judgment in favor of appellee based on the enumerations of error asserted in this appeal. This enumeration is without merit.

Judgment affirmed.

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


text:
    A92A0631.
    WALTERS v. MABLETON WHOLESALE COMPANY, INC.
    (420 SE2d 354)
   Cooper, Judge.

Appellant brought suit against appellee for injuries sustained in a fall from a ramp maintained by appellee on its loading dock. In his complaint, appellant alleged that the configuration of the loading dock was unconventional because its floor did not conform to the standard height of trucks used by appellant’s employer and other standard trucking companies. To facilitate the use of wheeled carts in the unloading of goods, a portable metal ramp was used to bridge the gap between the dock and delivery trucks. Appellant contends that he was completing his delivery when he stepped onto the ramp and it slipped away from the truck, causing him to slip and land heavily on the edge of the delivery truck. After appellant’s deposition was taken, appellee moved for summary judgment, invoking the “superior/equal knowledge rule.” The trial court granted appellee’s motion, and this appeal followed. In his sole enumeration of error, appellant contends the trial court erred in granting summary judgment in favor of appellee.

In support of its motion for summary judgment, appellee argued that appellant’s deposition testimony demonstrated that appellant’s knowledge was equal or superior to appellee’s knowledge of the ramp. In his deposition, appellant testified that he delivered goods to the loading dock on at least eight occasions prior to his injury; that appellant was always responsible for unloading his cargo and often unloaded alone; that appellant made between five and ten trips across the ramp to unload his cargo immediately prior to his accident; that several months before the accident, appellant reported the height difference and the absence of restraints to his supervisor as well as his observation that the ramp did not look safe; that appellant was instructed by his supervisor to do the best he could and to be careful; and that appellant made other deliveries to appellee after complaining to his supervisor. On the other hand, appellant contends that he was not aware that the ramp would shift while in use; that such shifting could lead to a collapse; and that appellee failed to warn appellant. In addition, appellant submitted the affidavit of another delivery man who averred that at an earlier time while he was in the process of making a delivery, the ramp slipped and collapsed causing him to stumble and nearly fall and that the incident was witnessed by at least one of appellee’s employees. Appellant argues that such evidence demonstrates that appellee and its employees were aware of the tendency of the ramp to shift.

“ ‘We have stated the rule many times with respect to defects, foreign substance on floors, and static dangerous conditions, that “(t)he basis of the proprietor’s liability is his superior knowledge and if his invitee (or licensee) knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee or licensee has as much knowledge as the proprietor does and then by voluntarily acting, in view of his knowledge, assumes the risks and dangers incident to the known condition. (Cits.) [Cits.]” O’Steen v. Rheem Mfg. Co., 194 Ga. App. 240 (1) (390 SE2d 248) (1990). “ ‘The superior/equal knowledge rule presumes the plaintiff, knowing of the danger, could have avoided the consequences of defendant’s negligence with the exercise of ordinary care. [Cit.]’ ” Id. at 242. In addition to the testimony discussed above, appellant testified that the ramp was a “homemade dock plate,” not a Department of Transportation regulation dock plate which would have contained the proper restraints to prevent its movement while in use and that all of the other places where appellant made deliveries had such dock plates. When asked if he tested the ramp to make sure it was secure prior to the accident, appellant replied that he looked at the ramp and that it never looked secure. In our view, the evidence demonstrates that this is not a case of a general hazard of which appellant was unaware but of which appellee was' aware. Appellant “was well aware of the condition of the ramp and his knowledge was, or at least should have been, equal to that of [appellee]. (‘ “An invitee is under an equal duty with the owner to use (his) sight to discover any defect or dangers. (Cits.)” [Cit.]’ [Cit.])” Harmon v. Reames, 188 Ga. App. 812, 814 (374 SE2d 539) (1988). Moreover, “[w]hen 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. [Cits.]” Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 612 (3) (376 SE2d 698) (1988). Accordingly, the trial court did not err in granting summary judgment to appellee.

Decided June 25, 1992.

Albert B. Wallace, for appellant.

Joe O’Connor, for appellee.

Judgment affirmed.

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


text:
    A92A0742.
    JESTER v. THE STATE.
    (420 SE2d 357)
   Cooper, Judge.

Appellant was convicted of aggravated assault and armed robbery and appeals from the entry of judgment and sentence on the jury’s verdict and the trial court’s denial of his motion for new trial, raising the general grounds as to the armed robbery conviction.

The evidence, viewed in a light to support the jury’s verdict, shows that appellant stood outside a grocery store and watched the victim, the owner of the store, as he prepared to leave for the evening. Appellant then stepped behind an ice box located on the side of the store, and when the victim came out and locked the doors, appellant came from behind the ice box and stabbed the victim with a knife appellant brought to the scene from his own kitchen. The victim was holding a bag containing cash and mail which he testified appellant took from him and ran across the parking lot. As appellant fled, the victim recognized him and called out his name. Appellant then dropped the bag, and its contents scattered in the parking lot. The victim sought the assistance of store personnel from another grocery store across the street, telling them he had been robbed by appellant. There are conflicts in the evidence as to how the victim came to know appellant. The victim testified that appellant was a customer, and appellant testified that he was a former store employee. Appellant admitted stabbing the victim with a knife he brought to the scene but contends he went to the store only to collect past due wages and did not intend to take anything and, in fact, did not take anything from the victim.

Decided June 25, 1992.

Kenneth A. Glenn, for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

OCGA § 16-8-41 (a) provides in pertinent part: “[a] person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” Based on the foregoing, there was ample evidence from which a rational trier of fact could have found appellant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the trial court did not err in denying appellant’s motion for new trial.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A92A0035.
    BONNER et al. v. FOX et al.
    (420 SE2d 312)
   Andrews, Judge.

Bonner, Davis and Johnson (appellants) are high school teachers employed by the Fulton County Board of Education (school board). Under a school consolidation plan implemented to reduce the number of high schools, appellants retained their full-time teaching positions, but their supplemental duties for which they received a pay supplement were discontinued because the number of such supplemental positions was reduced by the consolidation. In an administrative action, appellants challenged the loss of the supplemental positions under the Fair Dismissal Act (OCGA § 20-2-940 et seq.) and OCGA § 20-2-1160.

After determinations in the administrative action adverse to appellants were adopted by the school board and affirmed by the State Board of Education, appellants filed an administrative appeal to the Fulton County Superior Court pursuant to OCGA § 20-2-1160 (c). While the administrative appeal was pending, appellants filed the present action against James Fox “in his individual and professional capacity as Superintendent of Schools for Fulton County School Board,” the Fulton County School District, and the school board. The complaint alleges that the consolidation process violated various rights of the appellants; that OCGA § 20-2-1160 unconstitutionally deprived them of a jury trial; and, seeks injunctive relief and damages. The defendants (appellees herein) subsequently filed a motion to dismiss the present action on the basis that the plaintiffs (appellants herein) had failed to exhaust administrative remedies; that a de novo review of these claims was barred, and that all the facts relevant to the claims in the complaint had previously been determined adversely to the plaintiffs in the administrative proceedings. In opposition to the motion to dismiss, the plaintiffs argued in part that the complaint presented claims not addressed in the administrative action.

At a hearing on March 29, 1991, the Superior Court affirmed the previous administrative rulings on the appeal; announced for the first time on the record that it was converting the pending motion to dismiss the present action to a motion for summary judgment; orally granted summary judgment in favor of the defendants; and, directed the defendants to prepare a written order. Without further proceedings, the written order granting summary judgment was signed on April 29 and entered on April 30, 1991. This appeal is from the grant of summary judgment.

In their first enumeration of error, appellants argue that summary judgment was improperly granted without proper notice and opportunity to be heard under OCGA § 9-11-56. Given the trial court’s oral conversion of the motion to summary judgment at the hearing and immediate ruling on the motion from the bench, we are constrained to agree that a procedural defect in the award of summary judgment prevents us from reaching the merits of this appeal. Although the trial court may convert a motion to dismiss to a motion for summary judgment (see OCGA § 9-11-12 (b)), where this is done there must be compliance with OCGA § 9-11-56 requiring 30 days notice and an opportunity for a hearing. Charming Shoppes, Inc. v. Black, 252 Ga. 207 (312 SE2d 604) (1984); Royston v. Royston, 236 Ga. 648, 649-650 (225 SE2d 41) (1976); Hart v. Sullivan, 197 Ga. App. 759-760 (399 SE2d 523) (1990). “A respondent to a motion to dismiss is entitled to notice of conversion of the motion into one for summary judgment and to thirty days to respond to the motion for summary judgment unless such notice and opportunity are waived.” Peppers v. Elder, 248 Ga. 136 (281 SE2d 582) (1981). Since the record does not reflect any such waiver, it was error to render judgment in favor of the defendants. Fleming v. Caras, 170 Ga. App. 579 (317 SE2d 600) (1984); Williams v. Columbus, Ga., 151 Ga. App. 311 (259 SE2d 705) (1979). The judgment must be reversed, and the case remanded to provide an opportunity for the opposing party to submit evidence in opposition to the motion for summary judgment, and for an opportunity for a hearing on the motion. Royston, supra at 650.

Decided June 1, 1992

Reconsideration denied June 26, 1992.

Zimring & Ellin, Jonathan Zimring, Martin L. Ellin, for appellants.

Sutherland, Asbill & Brennan, Judith A. O’Brien, Teresa W. Roseborough, for appellees.

Judgment reversed and case remanded.

Birdsong, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A92A0671.
    HAMBRICK v. THE STATE.
    (420 SE2d 308)
   Beasley, Judge.

Hambrick appeals his judgment of conviction and sentence for armed robbery, OCGA § 16-8-41, and possession of a firearm by a convicted felon, OCGA § 16-11-131 (b), following the denial of his motion for new trial.

1. Relying on Salisbury v. State, 221 Ga. 718 (2) (146 SE2d 776) (1966), appellant contends that the trial court’s preliminary instruction on the burden of proof, given just after the jury was impanelled and sworn, improperly restricted them to consideration of the state’s evidence.

First, appellant made no contemporaneous objection to the instruction. A criminal defendant is not relieved “of the obligation to make timely objection throughout the trial. This obligation is essential to the court’s trying the case with as few errors as possible.” Foshee v. State, 256 Ga. 555, 557 (2) (350 SE2d 416) (1986). OCGA § 5-5-24 (c), which relieves a criminal defendant from making exceptions to errors in a charge except in certain well-defined instances, applies to the jury instruction at the end of the case. Id. at 557.

Second, Salisbury, supra, is inapposite. There the Court rejected as harmful error an instruction that if the State’s evidence proved the material allegations of the indictment beyond a reasonable doubt, “the defendant on trial would be guilty and it would be your duty to so say by your verdict.” In contrast, the court here instructed that “the State has the burden of proof. That simply means that the State has the responsibility of presenting to you the evidence on which they contend shows the defendant is guilty of the offense as charged. . . . The defendant does not have to present to you any evidence and is not obligated to prove to you that he is guilty - or not guilty in the case.” The court continued by instructing that the State has the burden of going forward and “once they’ve completed . . ., offering their evidence, the defense will have the opportunity to offer evidence, if they wish to do so,” and that it is the duty of the jury to determine the facts “once both sides have offered all their evidence.” The instruction, “taken as whole and not adjudged in isolation,” Catchings v. State, 256 Ga. 241, 248 (11) (347 SE2d 572) (1986), was not erroneous.

2. Appellant contends that he was improperly impeached by references to his post-arrest silence.

Appellant testified in his own defense that on the day in question he and his girl friend had been arguing, that he had moved into his friend Jones’ apartment, and that he was in Jones’ company at 4:45 p.m. when the robbery occurred. Jones testified for the defense but was unable to specify whether he was with appellant on that day. On cross-examination, appellant was asked whether this was the first time he had mentioned having had a fight with his girl friend, to which he responded in the negative. The State then inquired, “Did you tell anybody else when you were arrested?” Appellant’s counsel objected on Fifth Amendment grounds, and the State abandoned the question before any response was given. The State then asked again whether this was the first time he had told the story about the fight with his girl friend and moving into Jones’ apartment. An objection was asserted on the same grounds. The court admonished, “Counsel, he’s not bound to tell anybody anything. . . [There] wouldn’t be any ■need to ask him if the jury can’t make any determination from that. I already told them he had no burden to do anything.” The State abandoned the question, which when asked the first time had been answered “no.” No further relief was requested.

To the extent that the State sought to tread on territory protected by the Fifth Amendment privilege against self-incrimination, the court curtailed the inquiry. Compare Clark v. State, 237 Ga. 901 (1) (230 SE2d 277) (1976) (harmful error resulted where the State was permitted to cross-examine defendant extensively regarding his failure to advise investigating officers of his alibi defense). Compare also Paschal v. State, 181 Ga. App. 794 (2) (354 SE2d 5) (1987).

The inquiry here, which yielded only responses that defendant had related his alibi earlier, and which was stopped by the court before prejudice arose, did not constitute a comment on defendant’s silence or failure to come forward, such as would mandate reversal on State evidentiary grounds under Mallory v. State, 261 Ga. 625 (5) (409 SE2d 839) (1991).

3. In three enumerations of error, appellant complains that he was compelled to give a handwriting exemplar during his cross-examination, in violation of his right against self-incrimination, under the State Constitution, and OCGA § 24-9-20 (a); that the court violated its duty under OCGA § 17-8-75 in failing sua sponte to limit the State’s cross-examination in that regard; and that the State was precluded under OCGA § 24-7-7 from introducing that evidence at trial.

The victim testified that he hired appellant and agreed to pay him $175 to do some painting at an apartment complex which he managed. The victim advanced appellant $20 for supplies for which he obtained a receipt, signed by appellant in his presence. Later in the day appellant robbed him at gunpoint of $300 in cash rental proceeds. Appellant denied his participation in the crime. The signed receipt was introduced in evidence without objection. On cross-examination, appellant denied that the signature on the receipt was his. The State then asked, “You want to write your signature down for us so we’ll know what your signature looks like?” Appellant responded, “Sure. How many times?” He proceeded to sign his name several times. No objection was raised throughout this process, and the exhibit was received without objection.

Without deciding that the contentions were not waived, we address their merits. “[Although evidence may be compulsorily adduced from an accused, it is constitutionally impermissible to compel an accused to perform an act which results in the production of incriminating evidence. [Cit.] The distinction is between forcing an accused to do an act against his will and requiring an accused to submit to an act. While the latter ‘takes evidence from the defendant’ [cit.], and is constitutionally acceptable, the former compels the defendant, in essence, to give evidence which violates an individual’s right not to incriminate himself.” (Emphasis in original.) State v. Armstead, 152 Ga. App. 56 (1) (262 SE2d 233) (1979).

Appellant was not compelled to give the exemplar; he was asked to submit to the act, which he readily agreed to do. There was no violation of the Georgia constitutional right nor of OCGA § 24-9-20 (a). The statutory prohibition against self-incrimination provides that no accused “shall be compellable to give evidence for or against himself.” No compulsion was involved.

OCGA § 17-8-75 provides: “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same.” “The statute prohibits statements of prejudicial matters not in evidence. Its usage has been confined to counsel’s oral statements in which prejudicial facts not in the record are introduced [cit.]; oral statements in which counsel expresses his belief as to a defendant’s guilt [cit.], or a witness’ veracity [cit.]; or oral questions posed by counsel that accomplish the same result as an oral statement. [Cit.] However, an act has fallen beyond the bounds of OCGA § 17-8-75.” (Emphasis in original.) Patten v. State, 184 Ga. App. 152, 153 (2) (361 SE2d 203) (1987). The court had no duty under that Code section to prevent appellant from giving the handwriting exemplar.

Nor was there a violation of OCGA § 24-7-7 which mandates that writings “intended to be introduced, shall be submitted to the opposite party before he announces ready for trial.” The exhibit was not even in existence until after the conclusion of the State’s case-in-chief.

4. Appellant enumerates as error the jury charge on the entire armed robbery statute, OCGA § 16-8-41 (a). He was indicted for armed robbery “by intimidation and by use of a handgun, the same being an offensive weapon.” The court instructed that the statute defines armed robbery and read the statute, including the reference to the alternative complained-of “any replica, article or device having the appearance of such weapon.” The instruction continued, “the State contends that the alleged victim was robbed by the use of a handgun, an offensive weapon. . . .”

“It is not usually cause for new trial that an entire Code section is given. [Cits.] This is so even though a part of the charge may be inapplicable under the facts in evidence. [Cits.]” Keller v. State, 245 Ga. 522 (1) (265 SE2d 813) (1980). The indictment was read to the jury as part of the court’s instruction and was provided to them during deliberations. The targeted instruction was a correct statement of the law and, considering the entire charge, could not have misled the jury into convicting defendant of a manner not charged by the grand jury. Moreover, it was not disputed that the weapon, if any, was a handgun, so the jury could not have been confused. Cf. Estes v. State, 251 Ga. 347 (2) (305 SE2d 778) (1983). Compare Owens v. State, 173 Ga. App. 309 (326 SE2d 509) (1985), where defendant was indicted for trafficking in cocaine; an instruction that a conviction would be authorized upon a finding that he was in actual or constructive possession of the contraband constituted reversible error.

5. Appellant contends that the trial court violated OCGA § 17-8-57 during its charge to the jury. That Code section prohibits the court from expressing or intimating an “opinion as to what has or has not been proved or as to the guilt of the accused.”

The charge is considered in its entirety in order to determine whether a portion of it improperly constituted an expression of opinion on the facts. Sweat v. State, 173 Ga. App. 441 (326 SE2d 809) (1985). After fully instructing the jury on appellant’s defense of alibi, the court concluded: “Now, of course, the court does not suggest that there is evidence or is not evidence of an alibi. That depends on what you believe and what you think about the evidence. The defendant says he was not there. The state contends that the evidence does not show that he was not there. The evidence shows that he was there. That’s for you, the jury, to determine based on how you size up the evidence in the case.” The court merely restated the contentions of the parties; it expressly declined to intimate or suggest an opinion with respect to the evidence. The judge’s omission of the word “that” before stating the positive aspect of the State’s contention as the other side of the coin from the negative aspect which addressed the alibi, could not have led the jury to understand the recital as the opinion of the judge. If there was any doubt about it whatsoever, it was eliminated by the later charge confirming that determination of the facts is “the jury’s business” and that “I can’t even comment or hint on what I think. It doesn’t make any difference what I think.” OCGA § 17-8-57 was not violated. See Lee v. State, 186 Ga. App. 849 (368 SE2d 804) (1988).

Decided May 29, 1992

Reconsideration denied June 26, 1992

Anna Blitz, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0703.
    SILER et al. v. BLOCK et al.
    (420 SE2d 306)
   Beasley, Judge.

Barbara Siler, individually and as next friend of her minor son Daniel Todd Siler, brought this action naming as defendants Block, the physician who had provided her with obstetrical care and treatment, and the professional corporation through which he practices. Defendants allegedly administered the drug Provera negligently, so that the minor plaintiff was seriously and permanently injured.

Defendants began rendering obstetrical care and treatment to Barbara Siler in 1975, and Daniel was born in October of that year. Barbara instituted the original action in December 1986 and dismissed it without prejudice in August 1990 pursuant to OCGA § 9-11-41 (a). She filed the present action in February 1991, within six months of dismissing the original complaint. Daniel was age 15 when the suit was refiled. The trial court granted defendants’ motion for summary judgment, concluding that this action is barred by OCGA § 9-3-73 (c) (2) (A).

1. Plaintiffs contend that they had a right to dismiss the earlier action and renew it under OCGA § 9-2-61 (a). That section provides in pertinent part: “When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state . . . either within the original period of limitations or within six months after discontinuance or dismissal, whichever is later. ...”

A recommenced action “ ‘is an action de novo,’ not a continuance of the original action. (Emphasis in original.) [Cit.] ‘The same cause may be renewed, recommenced, or brought over, but is in effect de novo, except that the statute of limitation does not run, provided it is brought within six months from the time of the dismissal. (Cit.)’ (Emphasis in original.) [Cits.]” Archie v. Scott, 190 Ga. App. 145, 146 (2) (378 SE2d 182) (1989); also see Rakestraw v. Berenson, 153 Ga. App. 513 (266 SE2d 249) (1980).

Defendants contend that this action is barred by OCGA § 9-3-73 (c) (2) (A), which is the statute of repose applicable to medical malpractice actions brought by or on behalf of minors and others with legal disabilities. Defendants argue that the right to dismiss and renew under OCGA § 9-2-61 tolls the statute of limitation but not the statute of repose.

The distinction between limitation and repose is stated in Hill v. Fordham, 186 Ga. App. 354, 357 (2) (367 SE2d 128) (1988): “A statute of limitation is a procedural rule limiting the time in which a party may bring an action for a right which has already accrued. A statute of ultimate repose delineates a time period in which a right may accrue. If the injury occurs outside that period, it is not actionable. [Cit.]” See also Daniel v. American Optical Corp., 251 Ga. 166 (304 SE2d 383) (1983).

Statutory limitations for medical malpractice actions are found in OCGA §§ 9-3-70 through 9-3-74. OCGA § 9-3-71 (a) generally requires an action for medical malpractice to be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred. OCGA § 9-3-71 (b) states that “in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.” Thus, subsection (a) creates a two-year statute of limitation, and subsection (b) creates a five-year statute of ultimate repose and abrogation. See subsection (c).

Prior to 1987, OCGA § 9-3-73 provided that “[t]he disabilities and exceptions prescribed in Article 5 of this chapter in limiting actions on contracts shall be allowed and held applicable to actions, whether in tort or contract, for medical malpractice.” In 1987, the General Assembly amended this Code section by designating the foregoing as subsection (a), adding “Except as provided in this Code section” at the beginning of subsection (a), and adding subsections (b) through (g).

Decided May 20, 1992

Reconsideration denied June 26, 1992

William Q. Bird, Steven R. Wisebram, for appellants.

Subsection (b) states: “Notwithstanding Article 5 of this chapter . . ., all minors who have attained the age of five years shall be subject to the periods of limitation for actions for medical malpractice provided in this article. A minor who has not attained the age of five years shall have two years from the date of such minor’s fifth birthday within which to bring a medical malpractice action if the cause of action arose before such minor attained the age of five years.” According to subsection (c), this is a statute of limitation.

In pertinent part, subsection (c) states: “Notwithstanding subsections (a) and (b) . . . , in no event may an action for medical malpractice be brought by or on behalf of: . . . (2) A minor: (A) After the tenth birthday of the minor if such minor was under the age of five years on the date on which the negligent or wrongful act or omission occurred.” According to subsection (d), this is a statute of repose. Siler’s suit is in this category.

Under subsection (g), no action barred before July 1, 1987, by the 1987 amendment but not barred by prior law would be barred until July 1, 1989. See Mansfield v. Pannell, 261 Ga. 243 (404 SE2d 104) (1991); Hill, supra.

OCGA § 9-2-61 (a) allows a dismissed action to be renewed after expiration of the applicable statute of limitation. It says nothing about a statute of repose. The subsequent enactment of OCGA §§ 9-3-71 and 9-3-73 clearly distinguishes between the statutes of limitation and the statutes of repose. OCGA § 9-3-73 (b) concerns the tolling of the statute of limitation for certain minors, and OCGA § 9-3-73 (c) states that “in no event” may the action be brought beyond the designated date. The result is that the renewal provisions of OCGA § 9-2-61 (a) may not be used to avoid the bar of the statute of repose.

2. Plaintiffs argue that the statute of repose is being applied retroactively.

The law, enacted in 1987, acts as a bar to the suit filed in 1991, not to the suit filed in 1986. This law existed at the time the original complaint was dismissed in 1990. Consequently, the parties have not been denied a period after enactment of the statute to perfect their rights. See Mansfield, supra; Hill, supra. Accordingly, there is no merit in plaintiffs’ contention that their constitutional rights of due process and equal protection have been violated.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Mark E. Robinson, for appellees.


author: McMurray, Presiding Judge.

text:
    A91A0400.
    MORRIS et al. v. CHANDLER EXTERMINATORS, INC. et al.
    (420 SE2d 822)
    Decided June 26, 1992.

      Wilson, Strickland & Benson, Warner R. Wilson, Jr., Samuel T. Brannan III, for appellants.

      Eason, Kennedy & Associates, Richard B. Eason, Jr., for appellees.
   McMurray, Presiding Judge.

The Supreme Court of Georgia in Chandler Exterminators v. Morris, 262 Ga. 257 (416 SE2d 277), having affirmed in part and reversed in part this Court’s prior judgment in this case wherein we reversed the trial court, the judgment as to Division 1 of the opinion of this Court in Morris v. Chandler Exterminators, 200 Ga. App. 816 (409 SE2d 677), is vacated and Division 1 of that opinion is withdrawn, and the judgment of the trial court is hereby affirmed as to plaintiffs’ claims for damages for personal injuries and remains reversed as to plaintiffs’ claims for property damage.

Judgment affirmed in part and reversed in part.

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


author: Carley, Presiding Judge.

text:
    A92A0235.
    BALES v. CENTRAL BANK & TRUST COMPANY.
    (420 SE2d 358)
   Carley, Presiding Judge.

Appellant-defendant is the guarantor of a note held by appelleeplaintiff. After the note went into default, the collateral which secured it was sold by appellee. Appellee then initiated the instant deficiency action against appellant. Appellant answered and asserted that the collateral had been sold “in a commercially unreasonable manner. ...” (Emphasis supplied.) After discovery, appellee moved for summary judgment. The trial court granted appellee’s motion and appellant appeals.

OCGA § 11-9-504 (3) provides, in relevant part, that “every aspect of the [post-default] disposition [of the collateral] including the method, manner, time, place, and terms must be commercially reasonable.” In his answer, appellant challenged only the “manner” in which the post-default disposition of the collateral had been made. In its motion for summary judgment, appellee introduced uncontradicted evidence that the post-default disposition of the collateral had been made in a commercially reasonable “manner.” On appeal, appellant urges only that it was error to grant appellee’s motion because a genuine issue of material fact remains as to the commercial reasonableness of the “terms” of the post-default disposition of the collateral.

Since OCGA § 11-9-504 (3) itself recognizes that the “manner” and the “terms” are separate and distinct aspects of the commercial reasonableness of a post-default disposition of the collateral, it follows that the commercial reasonableness of each of those aspects is likewise a separate and distinct issue. See Emmons v. Burkett, 256 Ga. 855, 856 (2) (353 SE2d 908) (1987); McMillian v. Bank South, 188 Ga. App. 355, 356 (2) (373 SE2d 61) (1988). In his answer, appellant challenged only the commercial reasonableness of the “manner” in which the post-default disposition of the collateral had been made. Accordingly, there was no burden on appellee to address in its motion the issue of the commercial reasonableness of the “terms” of the post-default disposition. “Although it is axiomatic that ‘(o)n a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant,’ [cit.], exactly what facts the movant must rebut can only be determined by reference to what particular facts have been pleaded or otherwise shown by the record in each individual case. . . . Where there is no allegation of a particular fact, and no evidence showing such a fact, the movant need not disprove that fact, in order to prevail.” Baldwin County Hosp. Auth. v. Coney, 188 Ga. App. 339, 340 (1) (373 SE2d 252) (1988). “In the instant case, appellant did nothing in the trial court which could be construed as a challenge to the commercial reasonableness [of the terms] of the sale of the [collateral]. It follows that appellant failed to render commercial reasonableness [of the terms of the sale] a material fact in the instant case and that the absence of evidence as to that issue is no ground for reversing the trial court’s grant of summary judgment in appellee’s favor. [Cit.]” (Emphasis in original.) Branch v. Charlie Pike Chevrolet-Buick, 198 Ga. App. 672, 673 (2) (402 SE2d 544) (1991).

If, unlike the instant case, commercial reasonableness of the terms is specifically contested by the defendant-debtor, “ ‘[t]he burden is on the secured party to prove the value of the collateral at the time of repossession and that such value does not equal the debt. . . .’ ” Farmers Bank v. Hubbard, 247 Ga. 431, 435 (276 SE2d 622) (1981). For purposes of summary judgment, a plaintiff-creditor may not meet his burden of proving the value of the collateral by opinion testimony. See generally Jain v. Carload Delivery Svc., 189 Ga. App. 95, 97 (375 SE2d 99) (1988). If, however, the debtor does specifically contest the commercial reasonableness of the terms of the post-default disposition and successfully avoids summary judgment on that basis, he may nevertheless subject himself to potential liability for attorney’s fees and expenses of litigation should it subsequently appear that his contest of that issue falls within the proscription of OCGA § 9-15-14.

Decided June 26, 1992.

Alfred L. King, Jr., for appellant.

Russell T. Bryant, for appellee.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0287.
    WILSON et al. v. BRIGHTON HOMES, INC.
    (420 SE2d 360)
   Cooper, Judge.

Appellants filed suit against appellee for breach of contract, breach of warranty, negligent construction and fraud with respect to a house built by appellee and purchased by appellants. The case was tried before a jury, and at the close of the evidence, appellee moved for directed verdict on the issues of breach of contract, breach of warranty, negligent construction, fraud, punitive damages, vindictive damages, actual damages and attorney fees. The trial court granted appellee’s motion for directed verdict on the issues of negligent construction, fraud, vindictive damages, punitive damages and attorney fees, and denied the motion as to the other issues. These issues were submitted to the jury and the jury returned a verdict in favor of appellants in the amount of $7,930. The court entered a final judgment on the jury verdict, appellants filed a motion for new trial, which was denied by the trial court, and this appeal followed. Appellants raise as enumerations of error the trial court’s grant of directed verdict to appellee on the issues of negligent construction, fraud and punitive and vindictive damages, as well as the trial court’s failure to charge the jury on these issues.

1. The grant of directed verdict to appellee “was a determination of non-liability on the part of [appellee].” Turner v. Taylor, 179 Ga. App. 574 (1) (b) (346 SE2d 920) (1986). Therefore, appellants properly filed this direct appeal rather than following the procedures for a discretionary appeal. Id.

2. In support of their claim for negligent construction, appellants describe two alleged defects in the construction of their home. They first assert that there is a hole or a gap in the foundation wall below ground level and that water is flowing through the gap into the crawlspace under the house. Appellants allege that this leakage creates standing water many inches deep in the crawlspace and results in a stream of water into the crawlspace from the outside. The second defect alleged by appellants is that one of the foundation footers was erected on uncompacted dirt, causing the footer to sink and the foundation walls of the house to crack. “The determination of whether a ‘defect’ existed which the homebuyer could not have discovered and which the builder knew or should have known, is the grounds for actionable negligence set froth in [Holmes v. Worthey, 159 Ga. App. 262 (282 SE2d 919) (1981), affirmed Worthey v. Holmes, 249 Ga. 104 (287 SE2d 9) (1982)].” Hudgins v. Bacon, 171 Ga. App. 856 (1) (321 SE2d 359) (1984). See Williams v. Runion, 173 Ga. App. 54 (1) (325 SE2d 441) (1984). At trial, appellants called a witness who was allowed to testify as an expert in foundation footers, water control and repair. The witness testified that the crawlspace under appellants’ house was very wet and was retaining water; that there were gaps in the footings and foundations of the house that he could observe from the inside; that water from the outside was flowing through the gaps into the crawlspace; that he observed blocks in the foundation that were not properly packed and waterproofed; that the flow of water was “like a river basin” down one interior wall; that on one visit he saw a puddle of standing water six to eight inches deep; that in one area the water was bubbling up through the mud like an artesian well; that he observed mud lines eight inches high and mushrooms growing in the basement, indicating a very wet situation; that he could barely walk in certain areas of the crawlspace because it is pure mud; that a gap in the foundation as he observed is not normal practice in footing and foundation; and that there should be no gaps. The witness further testified that he observed cracks in the foundation walls that indicated the footer may have been erected on fill dirt; that it appeared to him that one corner of the house had dropped; and that a footer should not sink. “[A] builder [of homes] expressly or impliedly promises that he has built the house in a fit and workmanlike manner. Thus, the law imposes upon the professional builder and others performing skilled services the obligation to exercise a reasonable degree of care, skill and ability, which certainly can be shown as that degree of care and skill which, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession. [Cit.] ” Williams, supra at 57. Although the appellants’ expert testified that he was not familiar with the specifics of the building code applicable to appellants’ house, the court allowed him to testify as an expert based upon his professional experience in laying foundations and footings, and he then stated that the problems he perceived with the home were not normal practice in the profession. Further, the alleged defects in the house were not defects that appellants knew about or in the exercise of ordinary care should have discovered. See Worthey, 249 Ga. at 105. Both defects were below ground level and when appellants asked appellee’s representatives about the water in the basement, they were given assurances that the water was left over from construction and that appellee would alleviate the problem. After appellants moved into the house and the rainy weather commenced, the water began to flow in the crawlspace. The defects alleged by appellants were latent, not patent. See Thompson Enterprises v. Coskrey, 168 Ga. App. 181 (2) (308 SE2d 399) (1983). Appellee presented two of its employees who testified as experts at trial and who stated that they observed no problem with appellants’ house, that the house was built according to code and that it had passed inspection by the county. However, considering the record in its entirety, we conclude that the trial court erred in directing a verdict for appellee on the issue of negligent construction. A directed verdict should be granted “ ‘(i)f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .’ ‘“[I]t is error to direct a verdict unless the evidence demands the particular verdict and fails to disclose any material issue for jury resolution.” ’ [Cits.]” Thompson Enterprises, supra at 185. We cannot ignore the testimony of appellants’ expert, which in our opinion creates a conflict in the evidence that should be properly resolved by the trier of fact.

3. Appellants next enumerate that the trial court erred in directing a verdict for appellee on the issue of fraud. Appellants argue that appellee passively concealed the defects in the house and made material misrepresentations to them at the closing regarding the defects and appellee’s intent to correct the problems. “[W]hen the defects in the property [are] of such a nature that the buyer could not discover them through the exercise of due diligence, the burden [is] on the seller to disclose the seriousness of the problems of which he [is] aware, provided the seller [knows] that the buyer [is] acting under a misapprehension as to facts which would be important to the buyer in making his decision.” Holman v. Ruesken, 246 Ga. 557 (2) (272 SE2d 292) (1980). See Cohen v. Stuhler, 180 Ga. App. 543, 544 (349 SE2d 541) (1986). A thorough review of this record reveals no evidence that appellee concealed any facts about the house from appellants. Appellee’s representatives testified that they observed no problems with the house and that it had been built according to code and the plans and specifications. Further, we find no evidence that appellee did not intend to perform when it made representations regarding repair at the closing. In fact, appellee did make several attempts to repair the problems after appellants moved into the house. The trial court did not err in directing a verdict for appellee on the issue of fraud.

Decided June 26, 1992.

Zimmerman & Associates, Suzette G. Price, Keith F. Brandon, for appellants.

Johnston & Marsh, Howard H. Johnston, for appellee.

4. Pursuant to our decision in Division 2, we find no evidence of wilful misconduct or an entire want of care which would authorize punitive damages; therefore the trial court did not err in directing a verdict for appellee on the issues of punitive and vindictive damages. See Powell v. Ferreira, 198 Ga. App. 465, 467 (402 SE2d 85) (1991).

5. In accordance with Division 1, those requests to charge relating to negligent construction should have been included in the court’s charge to the jury.

As appellee did not file a cross-appeal in this case, appellee’s arguments on the breach of contract and breach of warranty claims are not properly before this court.

Judgment reversed in part and affirmed in part.

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


text:
    A92A0430.
    TAHAMTAN v. TAHAMTAN et al.
    (420 SE2d 363)
   Cooper, Judge.

In 1987, appellant and his wife (hereinafter “appellee”) entered into a settlement agreement pursuant to their divorce to resolve all issues of property division and child custody. Following the divorce, and continuing for several years thereafter, appellant engaged in a course of harassing and threatening conduct toward appellee and her business, which included physically abusing appellee and destroying items in her home with a sledge hammer. As a result of appellant’s continuing behavior, appellee entered into an agreement to transfer certain property owned by her and her corporation to appellant. Appellant brought a pro se action against appellee and her corporation for breach of that agreement. Appellee counterclaimed for damages, alleging physical and mental abuse, false imprisonment and the tbeft of several valuable rugs from her home by appellant. Appellant represented himself at trial, which resulted in a directed verdict in favor of the corporation,'and a jury verdict in favor of appellee on the main claim and the counterclaim. The jury awarded appellee $250,000 in damages plus $30,000 in costs of litigation. Appellant appeals from the judgment entered on the jury verdict and the denial of his motion for new trial.

1. Appellant contends in his first enumeration of error that the trial court erred in allowing appellee’s expert to testify that the value of the rugs taken by appellant was in excess of the amount stated in the pre-trial order. Appellee’s expert testified at trial as to the value of those rugs when he appraised them in October 1988 and stated further that, assuming the rugs remained in good condition, they would appreciate by five percent annually. Appellee testified that the rugs were in excellent condition when they were taken by appellant. Although the testimony of the expert together with the testimony of appellee allowed the jury to consider the value of the rugs to be in excess of the value stated in the pre-trial order, appellant did not object to any of the testimony. “A pre-trial order, ‘when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.’ OCGA § 9-11-16 (b). Thus, an issue that is clearly outside the scope of a pre-trial order is generally not a viable issue in the trial of the case. [Cit.]” Ackley v. Strickland, 173 Ga. App. 784, 786 (328 SE2d 549) (1985). However, the fact that appellee did include the appreciated value of the rugs in the pre-trial order is not controlling since evidence was introduced on the issue without objection, appellant expressed no surprise and the issue was fully litigated. See Mansell v. Benson Chevrolet Co., 165 Ga. App. 568 (3) (302 SE2d 114) (1983). Accordingly, we find no error with the admission of the expert’s testimony regarding the value of the rugs.

2. In his second enumeration of error, appellant contends that the trial court erred in failing to instruct the jury that they could not find the value of the rugs to be an amount higher than the amount stated in the pre-trial order. For the reasons stated in Division 1, we find this enumeration of error to be without merit.

3. Appellant next contends that the trial court erred in entering a judgment for attorney fees. The verdict form returned by the jury reflected the following: “We, the Jury, find for [appellee] in the amount of $250,000 plus $30,000 costs of litigation.” The final judgment entered on the jury verdict awards appellee $250,000 plus $30,000 attorney fees and costs of litigation. Appellant argues that it is impossible to determine from the verdict form what amount was awarded for attorney fees and what amount was awarded for costs of litigation. Appellee’s attorney testified that the total amount of attorney fees incurred from his prosecution of the counterclaim was $33,510. The trial court instructed the jury that as to the counterclaim, they were authorized to award appellee attorney fees or other expenses of litigation if it found that appellant had acted in bad faith. The verdict form submitted to the jury had a blank for the jury to write in the amount of the judgment and a blank for the jury to specify an award for costs of litigation. There was no blank which specifically referred to attorney fees. “The judgment is to be fashioned to conform to the intendment of the jury as it appears from the record. [Cit.]” Osburn v. Harbison, 175 Ga. App. 397, 399 (333 SE2d 429) (1985). “In determining whether a judgment conforms to the verdict, the judgment must be construed with reference to the pleadings and the evidence. [Cits.]” Taylor v. Taylor, 212 Ga. 637 (1) (94 SE2d 744) (1956). Considering the extensive testimony by appellee’s attorney regarding his fees, the court’s instructions to the jury regarding attorney fees and the amount of the verdict for costs of litigation, which is very close to the amount testified to by appellee’s attorney as his fees, we find that the judgment entered by the court conforms to the verdict returned by the jury.

4. In his fourth enumeration of error, appellant contends that the trial court erred in admitting hearsay testimony. Appellant first argues that appellee was allowed to testify over objection as to statements made by some of her former employees about appellant’s violent behavior being the reason for leaving appellee’s employ. One of those former employees testified that she terminated her employment with appellee because of threats, harassment and violent displays by appellant. “The admission of evidence over objection, even if erroneous, is not reversible error where substantially the same evidence is admitted without objection. [Cit.]” Doster v. Central of Ga. R. Co., 177 Ga. App. 393, 398 (5) (339 SE2d 619) (1985). Similarly, we find no merit to appellant’s argument that one of appellee’s witnesses should not have been allowed to testify about an occasion, related to him by appellee, during which appellant destroyed property in appellee’s house and made threats against appellee. The transcript reveals that appellee testified about that occasion and gave substantially the same description of the occasion as that related by her witness. Accordingly, we find no error. Doster, supra.

5. In his fifth enumeration of error, appellant contends that the trial court erred in allowing a witness' to testify as to the ultimate issue in the case. The following colloquy occurred during the trial:

“[APPELLEE’S COUNSEL]: Mr. Krell, in your opinion, based on your knowledge as an attorney, do you believe that Mr. Tahamtan has continually harassed (sic.) and threatened Ms. [Tahamtan]?

“A: Yes sir.

“THE COURT: I don’t think that’s appropriate so I’ll not let him answer that.”

Appellant failed to object before the witness answered the question; nor did appellant request that the jury be instructed to disregard the witness’ answer. Accordingly, this, issue has not been preserved for appeal. See Americani v. Sidky, 199 Ga. App. 823 (1) (406 SE2d 259) (1991).

6. Appellant argues that the trial court erred in admitting evidence of his worldly circumstances. OCGA § 51-12-6 provides that “[i]n a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except the enlightened consciences of impartial jurors. In such an action, punitive damages . . . shall not be awarded.” “Under OCGA § 51-12-6, evidence of worldly circumstances is admissible only where a party seeks damages only for injury to peace, happiness or feelings. . . . [Cit.]” Collins v. State Farm &c. Ins. Co., 197 Ga. App. 309, 310 (4) (398 SE2d 207) (1990). Appellee’s counsel informed the court that with the exception of Count 4 of the counterclaim concerning the unlawful taking of the rugs, he was seeking damages only under OCGA § 51-12-6 for injuries to appellee’s peace, happiness and feelings. Appellee’s counsel stated that with respect to Count 4, he was seeking actual and punitive damages. The trial judge ruled that he was bifurcating the trial, and that during the first phase, the jury could determine what amount, if any, appellee was entitled to recover on Count 4 of her counterclaim and indicate whether she was entitled to recover punitive damages. If the jury returned a verdict for appellee on the issue of punitive damages, a second hearing would be held to determine the amount of punitive damages. The trial judge admitted the worldly circumstances evidence as to appellee’s claim under OCGA § 51-12-6 but informed the parties that if the jury determined that appellee was entitled to recover punitive damages, he would instruct them that the worldly circumstances evidence could not be considered. In light of the jury’s verdict that appellee was not entitled to recover punitive damages, we find no error in the admission of the worldly circumstances evidence.

Appellant also contends that the trial court erred in its charge to the jury on OCGA §§ 51-12-5 and 51-12-6. The record reveals that no objection was made to the charge. “Failure to object to the trial court’s instruction to the jury before, the jury returns its verdict constitutes a waiver of the right to raise the issue on appeal, [cits.], and we find no substantial error which would require our review under the exception set forth in OCGA § 5-5-24 (c). [Cit.]” Sanders v. Hughes, 183 Ga. App. 601, 603 (2) (359 SE2d 396) (1987).

7. In his final enumeration of error, appellant contends that the trial court erred in denying his motion for new trial based on the evidence. “ ‘The denial of (a motion) for new trial on the ground that the verdict is contrary to the evidence addresses itself only to the discretion of the trial judge. [Cits.]’ [Cit.] It is of no consequence on review of the denial of a motion for new trial based on the sufficiency of the evidence that the evidence adduced at trial would have authorized a verdict for either party. [Cit.] A reviewing court must view the evidence in a light most favorable to upholding the jury’s verdict and any evidence which supports the jury’s verdict is sufficient to sustain the trial court’s denial of a motion for new trial based on the sufficiency of the evidence. [Cits.]” Clark v. United Ins. Co. of America, 199 Ga. App. 1 (1) (404 SE2d 149) (1991). Based on our review of the evidence, we conclude that the trial court did not err in denying appellant’s motion for new trial.

Decided June 26, 1992.

Ralph J. Hunstein, for appellant.

Stern & Edlin, George S. Stern, Susan A. Hurst, for appellees.

Judgment affirmed.

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