author: Smith, Judge. Beasley, Judge,

text:
    A97A2434.
    A97A2435.
    CHRISON v. H & H INTERIORS, INC. et al. HOLT v. CHRISON.
    (500 SE2d 41)
   Smith, Judge.

On July 25, 1996, Chris Chrison filed this action in the State Court of DeKalb County against H & H Interiors, Inc. (“H & H”), Scott Sherrill, and Mark Holt, seeking to recover damages for defendants’ alleged breach of a contract for the sale of Chrison’s carpet business. The complaint later was amended to add a claim for fraud.

Holt and Sherrill are Georgia residents, and H & H is a Georgia corporation. But prior to filing this action, Chrison previously filed suit against defendants on March 8, 1995, in the Chancery Court of Davidson County, Tennessee, seeking damages for the breach of the same contract of sale (the “Tennessee action”).

H & H was never served in the Tennessee action and therefore did not file an answer. When Sherrill and Holt could not be located, the sheriff gave the complaint and summons to the regional manager of H & H at the corporation’s place of business in Tennessee. Sherrill and Holt did not answer the Tennessee complaint but moved to dismiss, alleging insufficiency of service of process because neither defendant was personally served.

The Tennessee court ruled on Holt’s motion to dismiss but not on Sherrill’s, and Holt was dismissed from the Tennessee action without prejudice on June 5,1995. The entire Tennessee action subsequently was dismissed by the Tennessee court “for failure to prosecute” on March 15, 1996.

After Chrison filed this action in DeKalb State Court, all three defendants filed answers and discovery responses making no mention of the affirmative defense of res judicata. But a year after the Tennessee action’s dismissal, apparently when under Tennessee law the dismissal could no longer be set aside, all three defendants moved for summary judgment in the DeKalb action on the ground that the DeKalb action was barred by the doctrine of res judicata. The trial court denied Holt’s motion because he was dismissed without prejudice from the Tennessee action prior to judgment. The trial court granted the motions of Sherrill and H & H because in Tennessee, unlike the law in Georgia, a dismissal for failure of prosecution operates as an adjudication on the merits unless the order expressly provides otherwise. See, e.g., Madyun v. Ballard, 783 SW2d 946, 948 (Tenn. 1989). In Case No. A97A2434, Chrison appeals the trial court’s ruling granting summary judgment to H & H and Sherrill. In Case No. A97A2435, Holt cross-appeals the trial court’s ruling denying his motion for summary judgment.

Case No. A97A2434

1. Chrison’s first four enumerations will be considered together because they address overlapping issues. Broadly stated, Chrison argues the Tennessee judgment does not act as a bar to the present action because the Tennessee court did not have jurisdiction over defendants due to insufficiency of service of process; the Tennessee judgment is not entitled to full faith and credit because it is void on its face; and the Tennessee judgment does not serve as a judgment on the merits for purposes of res judicata.

Georgia’s principle of res judicata, codified as OCGA § 9-12-40, provides that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” See also Fowler v. Vineyard, 261 Ga. 454, 455 (405 SE2d 678) (1991).

The doctrine of full faith and credit renders the judgments and adjudications of courts of sister states of competent jurisdiction res judicata in this state unless the court lacked personal or subject matter jurisdiction or unless the judgment was procured by fraud. Tandy Computer Leasing v. Bennett’s Svc. Co., 188 Ga. App. 594 (373 SE2d 647) (1988). The doctrine of res judicata makes conclusive a prior foreign judgment between the parties and their privies as to all matters placed in issue or that might have been placed in issue, including jurisdictional issues. Id. See also Gordon v. Gordon, 237 Ga. 171 (1) (227 SE2d 53) (1976).

Several prerequisites must be established in order for the res judicata doctrine to apply: (1) identity of cause of action; (2) identity of parties; (3) prior adjudication by a court of competent jurisdiction; and (4) a full and fair opportunity for the party against whom the doctrine of res judicata is raised to have litigated the issues in the first action. Fowler, supra at 455-456. See also Sorrells Constr. Co. v. Chandler Armentrout &c., P.C., 214 Ga. App. 193, 194 (447 SE2d 101) (1994); Bradley v. Ga. Institute of Technology, 228 Ga. App. 216, 217 (491 SE2d 453) (1997). Additionally, OCGA § 9-12-42 provides that the merits of the case must have been adjudicated for the judgment to be a bár to subsequent action. State Bar of Ga. v. Beazley, 256 Ga. 561, 562 (1) (350 SE2d 422) (1986); Fowler, supra at 456 (2).

(a) Sherrill. Applying these principles to the facts of this case, we find the trial court correctly determined that res judicata bars the present action against Sherrill.

First, identity of claims exists in both the DeKalb and Tennessee actions. Both complaints seek damages against Sherrill for his alleged breach of the contract of sale of Chrison’s carpet business. By pleading the same breach of contract claim in both actions, Chrison seeks to reassert exactly the same claim previously asserted and dismissed in the Tennessee court.

Second, identity of parties exists. Both complaints name Sherrill as a party defendant, and Sherrill was served with process in both actions. Chrison argues, as does the dissent, that Sherrill was improperly served under Tennessee law, but in his pleadings in this action Sherrill acknowledged that he was served with process in the Tennessee action. Moreover, this argument was decided adversely to him in the Tennessee action.

Under the fall faith and credit clause of the United States Constitution, a judgment of a foreign court will be enforced by courts of this state. That judgment may be collaterally attacked when the foreign court lacked jurisdiction of the person or subject matter. Gordon, supra at 171 (1). But when a party appears and defends in the foreign court, the judgment of that court, regular upon its face, may not be attacked in the courts of this state. And when the issue of jurisdiction is raised in the foreign court and decided against a party, this determination may not be attacked collaterally. Green Acres Discount v. Freid & Appell, Inc., 135 Ga. App. 816, 817-818 (219 SE2d 39) (1975). “Where the question as to the jurisdiction of the court depends merely upon the existence or non-existence of a fact, and the judgment is otherwise regular, and the court otherwise a court of competent jurisdiction, it is to be presumed that the court found facts to exist such as warranted its assuming jurisdiction, and such finding of fact cannot be collaterally attacked.” (Citation and punctuation omitted.) Id. at 818-819.

Here, the record shows that both Sherrill and Holt made special appearances in the Tennessee action to contest jurisdiction. After Chrison had a full and fair opportunity to litigate the issues, the Tennessee court dismissed Holt from the action but did not dismiss Sherrill. Under these circumstances, we must presume that the Tennessee court adjudicated the issue of sufficiency of process prior to its dismissal of Chrison’s complaint. Edwards v. Fireman’s Fund Ins. Co., 147 Ga. App. 27, 28 (248 SE2d 2) (1978), relied upon by the dissent as authority for the proposition that an express ruling must have been made in the prior action to warrant res judicata effect, stands for no such proposition. It is, in fact, perfectly in agreement with the general principle that courts, foreign or otherwise, are presumed to have acted properly absent evidence to the contrary. The facts in Edwards, however, are completely distinguished from those here. In Edwards, a workers’ compensation case, the administrative law judge who rendered the prior decision later acknowledged that he overlooked certain evidence presented because of an oversight. This Court held that the insurer’s argument that the evidence could not now be considered because of the presumption that the judge did what he in fact admitted he did not do was “ludicrous,” since “[a]ll presumptions must yield to the truth.” Id. at 27.

The facts here are different. The jurisdictional issue in this case was raised in Sherrill’s motion to dismiss in the foreign court and decided adversely to Chrison. The Tennessee court’s determination therefore is conclusive, res judicata, and binding upon the DeKalb State Court under the full faith and credit clause of the United States Constitution. Tandy Computer, supra at 595. See also Intl. Systems v. Bladen County, North Carolina, 168 Ga. App. 316, 317-318 (1) (308 SE2d 679) (1983).

Third, under Rule 41.02 of the Tenn. Rules of Civ. Proc., the dismissal of Chrison’s complaint by the Tennessee Chancery Court was an adjudication on the merits by a court of competent jurisdiction for the purposes of res judicata. Madyun, supra at 948. This dismissal was therefore a dismissal with prejudice. “A dismissal with prejudice is res judicata of all questions which might have been litigated in the action and is a final disposition, barring the right to bring another action on the same claim.” (Citation and punctuation omitted.) Mobley v. Sewell, 226 Ga. App. 866, 868 (487 SE2d 398) (1997).

We reject Chrison’s argument that Georgia law, rather than Tennessee law, controls the determination of whether the dismissal of the Tennessee action for failure to prosecute was an adjudication on the merits. A judgment entered in a foreign court is entitled to full faith and credit in Georgia if it comports with due process requirements and is otherwise valid and binding. See Crosby v. Wenzoski, 164 Ga. App. 266, 270 (2) (296 SE2d 162) (1982). If under Tennessee law a judgment is entitled to res judicata effect, it must have that effect here, as well. Id. at 271. See also Gordon, supra; Intl. Systems, supra; Green Acres Discount, supra; Greer v. State, 201 Ga. App. 775 (2) (412 SE2d 843) (1991); Chapman v. State, 177 Ga. App. 580, 581-582 (2) (340 SE2d 237) (1986). Choice of law provisions that may appropriately be considered prior to judgment are simply not material or relevant when considering the effect of a judgment entered in a foreign action. Because the face of the record in the Tennessee action reflects the entry of a prior judgment on the merits, that judgment is a bar to the present action in DeKalb State Court.

Finally, we find that Chrison had a full and fair opportunity to litigate all issues, including issues of jurisdiction, in the Tennessee action. The fact that the Tennessee action was dismissed for failure to prosecute does not affect our decision. As the trial court aptly stated, “[tjhat the Plaintiff chose not to prosecute the case is of no moment to the Court. Rather than suffer a dismissal ‘for want of prosecution,’ the Plaintiff could have voluntarily dismissed his case. The Plaintiff chose to ignore the Tennessee rules at his own peril.”

The Tennessee judgment is res judicata, and the trial court correctly determined that the dismissal of the Tennessee action is a bar to the present action against Sherrill in DeKalb State Court.

(b) H & H. We reach the opposite conclusion with regard to H & H. Although H & H was named as a defendant in the Tennessee action, the record indicates that H & H was never served with process and never filed an answer in that court. H & H therefore was not a party to the Tennessee action when it was dismissed with prejudice. See Gordon, supra at 171 (1). See also Schowe v. Amster, 236 Ga. 720 (1) (225 SE2d 289) (1976).

Because the prerequisites for establishing a valid res judicata defense were not met as to this defendant, the trial court’s grant of summary judgment to H & H was error and must be reversed.

2. In his next two enumerations of error, Chrison relies on the Uniform Enforcement of Foreign Judgments Law, OCGA § 9-12-130, to argue again that Georgia law, rather than Tennessee law, should be used to determine whether the Tennessee judgment was an adjudication on the merits. OCGA § 9-12-132. This argument, however, was neither raised nor ruled upon below. We will not consider it for the first time on appeal. See Clark v. Randall, 155 Ga. App. 806, 807 (272 SE2d 769) (1980).

3. Chrison also argues the trial court erred in determining that defendants did not waive the defense of res judicata by failing to raise it in their answer or in any of their answers to interrogatories and requests for production of documents. We disagree.

Res judicata is an affirmative defense and must be pleaded affirmatively. OCGA § 9-11-8 (c). “The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense. If it is not pleaded it is generally held that the defense is waived, but if it is raised by motion, or by special plea in connection with the answer or by motion for summary judgment there is no waiver.” (Citations and punctuation omitted.) McFadden Business Publications v. Guidry, 177 Ga. App. 885, 887 (1) (a) (341 SE2d 294) (1986).

Here, defendants filed their motion for summary judgment on March 18, 1997, more than 30 days prior to the May 2, 1997, hearing on the motion. Chrison had ample notice and opportunity to prepare his response prior to the hearing. Further, the requests for production of documents and interrogatories filed lay Chrison did not specifically request documents relating to the Tennessee action or seek information about defendants’ affirmative defenses. Defendants were under no obligation to supply this information.

The defense of res judicata was properly raised in this case, and there was no waiver. Guidry, supra at 887. See also Albany Oil Mill v. Sumter Elec. Membership Corp., 212 Ga. App. 242 (1) (441 SE2d 524) (1994).

4. In his final enumeration of error, Chrison argues that Georgia public policy dictates that we not allow the dismissal of the Tennessee action to operate as a dismissal on the merits for purposes of res judicata. Otherwise, argues Chrison, we would allow litigants to be punished for technical mistakes and deny them a full and fair opportunity to have their day in court in direct contravention of OCGA § 9-11-41 (b).

We find no public policy concerns or other compelling reasons to refuse to afford the Tennessee judgment full faith and credit in this case. Chrison, not defendants, elected to bring suit first in Tennessee, where Tennessee procedural law governs Tennessee actions. Chrison, not defendants, ignored Tennessee procedural rules and allowed his action to languish in the courts for over a year. Tennessee has a legitimate interest in ensuring the prompt and final adjudication of legal disputes brought in its courts. Under these circumstances, we do not find Tennessee procedural law to be so repugnant to the public policy of Georgia that we should hold unenforceable a judgment that otherwise would be entitled to full faith and credit in this state. See generally Crosby, supra at 271 (3).

Case No. A97A2435

5. Holt enumerates as error the trial court’s denial of his motion for summary judgment. The trial court denied the motion because Holt was dismissed without prejudice from the Tennessee action prior to judgment.

In his cross-appeal, Holt does not dispute the trial court’s determination that he was no longer a party to the Tennessee action at the time the Tennessee action was dismissed. Instead he argues that if Holt and H & H are alter egos, as alleged by Chrison in his amended complaint, then Holt is a privy to H & H for the purpose of this motion for summary judgment. If the Tennessee action bars suit against H & H because of res judicata, argues Holt, it follows that it must also bar suit against him.

We need not address this argument, however, in light of our decision in Division 1 (b), above, finding that the DeKalb State Court action against H & H is not barred by the doctrine of res judicata. The trial court’s denial of summary judgment to Holt was not error.

Judgment affirmed in Case No. A97A2435. Judgment affirmed in part and reversed in part in Case No. A97A2434.

McMurray, P. J., Birdsong, P. J., and Eldridge, J., concur. Andrews, C. J., Beasley and Ruffin, JJ, concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur as to Divisions 1 (b), 2, 3, 4, and 5 of the majority’s opinion. I respectfully dissent as to Division 1 (a).

1. As stated in the majority opinion, one prerequisite to applying res judicata is that the two actions must have an identity of parties. OCGA § 9-12-40; see Fowler v. Vineyard, 261 Ga. 454, 455 (1) (405 SE2d 678) (1991). Sherrill was not personally served in the Tennessee action, as the record affirmatively shows. He learned of the suit and, a month after service was attempted, specially appeared to move to dismiss for insufficiency of service of process. Tennessee law is that Sherrill’s special appearance to challenge service did not constitute a general appearance as a party. Landers v. Jones, 872 SW2d 674 (Tenn. 1994). Since the court did not rule on his motion, and the question of jurisdiction over him, which he raised, became moot when the action was dismissed, he never became a party to the Tennessee action by appearance, default, or court order.

The majority opinion states that “Sherrill was served with process in both actions,” i.e., the Tennessee action and the instant Georgia action. But this statement depends on the validity of the opinion’s statement that “we must presume that the Tennessee court adjudicated the issue of sufficiency of process prior to its dismissal of Chrison’s complaint.” We can presume no such thing, for the record contradicts this presumption. Sherrill’s self-serving statement in the Georgia action that he now believes he was served in the Tennessee action is not determinative of the issue.

The Tennessee court simply did not rule on the question and instead dismissed the suit for failure to prosecute. Sherrill’s special appearance motion was pending at the time. (The Georgia trial court acknowledged as much, in the order appealed from.) But it was not necessary for the Tennessee court to rule on Sherrill’s special appearance motion. The practice of that court was to dispose of cases within 12 months of filing unless an order had been entered setting the case for trial. Unlike a default judgment, there was in the Tennessee case no unchallenged assertion of jurisdiction.

Because the Tennessee court, understandably, did not resolve the issue of whether Sherrill was properly served and consequently was subject to the court’s jurisdiction, he was never a party to the suit. Thus, there is no identity of parties in the two suits. The dismissal of the action could not be res judicata as to Sherrill, who was not yet adjudicated a party.

Ironically, the majority allows the dismissal of the suit in Tennessee to have greater status in Georgia than it does in Tennessee. This is an unfounded departure from what the Full Faith and Credit Clause requires. The Supreme Court of Tennessee explained in Dickerson v. Godfrey, 825 SW2d 692, 694 (Tenn. 1992) that “ 'the doctrine of collateral estoppel or estoppel by judgment is an extension of the principtle] of res judicata, and is generally held to be applicable only when it affirmatively appears that the issue involved in the case under consideration has already been litigated in a prior suit between the same parties ... if the determination of such issue in the former action was necessary to the judgment.’ [Cit.]” See Garrett v. Corry Foam Products, 596 SW2d 808, 810 (Tenn. 1980).

Plaintiff, having discovered Sherrill was in Georgia, simply allowed the attempted Tennessee action to be dismissed and, four months later, filed the instant suit in Georgia and gained service here. A special process server was permitted by the court because Sherrill was avoiding service, after plaintiff Chrison got a new address for him. He testified in deposition that he and his wife owned their present home in Atlanta since about June 1995. He had only a temporary apartment in Nashville, Tennessee, from about late June to September 1994, and a hotel room in Knoxville for two to three months in early 1995. In 1992 and 1993 he had a hotel room in Warner Robins while his family maintained residence in Atlanta. Those were his whereabouts during the five years preceding March 10, 1997, the date of the deposition. Service had been attempted on him at a business address in Nashville on March 30, 1995.

Green Acres Discount v. Freid & Appell, Inc., 135 Ga. App. 816, 818 (219 SE2d 39) (1975), cited by the majority for the presumption that the foreign court found it had personal jurisdiction, is distinguishable. Green Acres Discount involved an express ruling by the New York trial court that it had personal jurisdiction over the defendant based on its finding the defendant had transacted business in New York. Obviously, when a foreign trial court has expressly found personal jurisdiction after hearing both sides argue the issue, such must be accorded full faith and credit and be considered res judicata. See also Gordon v. Gordon, 237 Ga. 171, 172 (1) (227 SE2d 53) (1976) (collateral attack on Tennessee judgment not allowed because “[the] same jurisdictional issues were raised and decided against [appellant] in the Tennessee court, and therefore the Tennessee judgment must be given full faith and credit. . . as to the finding of jurisdiction”); Crosby v. Wenzoski, 164 Ga. App. 266, 267 (296 SE2d 162) (1982) (California court denied motion to set aside judgment, thereby evidencing and documenting decision rejecting claim of insufficient service; California judgment accorded full faith and credit, despite claim in Georgia of improper service of California action).

The statement in the majority opinion for which Green Acres Discount is cited depends on a ruling in Tennessee on the issue of jurisdiction over Sherrill, which is not present. The same failing relates to the majority statement that “when a party appears and defends in the foreign court,” the judgment may not be attacked elsewhere. While this is true, Sherrill did not appear and defend or otherwise subject himself to the jurisdiction of the Tennessee court, such as by defaulting. He merely challenged service of process.

Finally, the majority states that Chrison had “a full and fair opportunity to litigate all issues, including issues of jurisdiction, in the Tennessee action.” That is not so, as it is apparent Chrison had not been able to bring Sherrill into court as a party. The only return of service relating to Sherrill is service on the regional manager of an unnamed organization in Tennessee.

Edwards v. Fireman's Fund Ins. Co., 147 Ga. App. 27, 28 (248 SE2d 2) (1978), supports the general principle that there must be an express ruling. Edwards held that even though the workers’ compensation award was silent on two hospital bills put in the record, the administrative law judge could hold later that such was a mistake and could award additional benefits based on these bills. Edwards explained: “Having made no ruling in regard to these bills in his first award, the issue remained open and he was authorized to hold a hearing and issue an award to determine the question of whether these hospital bills should be allowed.” Id. Edwards rejected the res judicata argument. As to the instant case, the Tennessee court’s inaction on the pending motion to dismiss similarly precludes res judicata from operating on this issue.

2. Res judicata also requires that there be a prior adjudication by a court of competent jurisdiction. Fowler, supra. Under Tennessee law, a judgment against an unserved defendant is void. Overby v. Overby, 457 SW2d 851 (Tenn. 1970). Georgia law is likewise: a “suit is void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit. [Cits.]” Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994); see Allen v. Kahn, 231 Ga. App. 438 (499 SE2d 164) (1998) (action void if purported agent without authority to receive service); Reid v. U. S. Fidelity &c. Co., 223 Ga. App. 204, 205 (1) (477 SE2d 369) (1996) (“A suit is void if service was never perfected”), aff’d, 268 Ga. 432 (491 SE2d 50) (1997). Thus, insofar as Sherrill is concerned, the final order entered in Tennessee, which left the issue of proper service unresolved, carries no res judicata effect in either Tennessee or Georgia.

Two prerequisites for res judicata as to Sherrill are not present. The majority has allowed him to deny service in Tennessee and avoid suit in Georgia. This is built on the supposition that the Tennessee court rejected his challenge to service there. A supposition would not bar a new suit in Tennessee, and such a diaphanous bar should not constitute an impermeable wall to prevent a Georgia citizen’s suit against another Georgia citizen in their home state.

Decided March 20, 1998

Reconsideration denied April 3, 1998

Brock, Clay, Wilson & Rogers, Randall F. Rogers, Nicholas P. Panayotopoulos, for Chrison.

Decker & Hallman, David C. Moss, Anne L. Hunt, for Holt and H & H Interiors, Inc. et al.

I am authorized to state that Chief Judge Andrews and Judge Ruffin join in this opinion.

       The return of service states “C. T. Corp. would not accept! No listing with [Secretary] of State.”

       Holt and Sherrill were served in an identical manner and filed virtually identical motions to dismiss. Chrison claims Holt’s motion was granted because his attorney submitted a proposed order for the court to sign while Sherrill’s attorney did not. Defendants contend Sherrill was not dismissed because Chrison filed a brief in opposition to Sherrill’s motion to dismiss but did not contest Holt’s motion. Nothing in the record supports either contention.

       Ironically, Chrison opposed Sherrill’s motion to dismiss in the Tennessee action, arguing that service of process was perfected in accordance with Tennessee law. In the present action, Chrison argues just the opposite.

       Although we agree with the dissent that under Tennessee law Sherrill did not make a general appearance, his appearance to contest service did constitute a full and fair opportunity for him, as well as for Chrison, to litigate the issue of jurisdiction.

       If Sherrill had desired to do so, he could have insisted upon a ruling on his motion to dismiss. Instead, he chose to utilize the opportunity to have the suit dismissed for want of prosecution. He was still a party to the suit when it was so dismissed, and it therefore operates in his favor for purposes of res judicata.

       OCGA § 9-11-41 (b) provides, in pertinent part, that a “dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits.”

       Contrary to defendants’ assertions, nothing in the record indicates any service upon the corporation.

       We note without deciding that Chrison’s reliance on this statute appears to be misplaced. Defendants have not filed a complaint for domestication in DeKalb State Court or attempted to enforce the foreign judgment against Chrison in the manner contemplated by this statute. Defendants have simply raised the prior Tennessee action as a bar to the subsequent action brought by Chrison in DeKalb State Court.

       It is inconsistent for the majority to make this crucial presumption while at the same time noting in footnote 2 that the briefs state certain facts not supported by the record so we do not rely on them. The same is true respecting footnote 7.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A97A2594.
    WADE et al. v. HOWARD et al.
    (499 SE2d 652)
   Smith, Judge.

This appeal presents the question of a landowner’s liability for fatal injuries caused by a falling tree. Following the three leading cases of Carter v. Ga. Power Co., 204 Ga. App. 77 (418 SE2d 379) (1992); Willis v. Maloof, 184 Ga. App. 349 (2) (361 SE2d 512) (1987); and Cornett v. Agee, 143 Ga. App. 55 (1) (237 SE2d 522) (1977), we affirm the trial court’s grant of summary judgment in favor of the landowner’s estate because the record demonstrates that the tree had no visible, apparent, or patent decay.

Plaintiff-appellants Gene E. and Nelsie I. Wade are the parents of Christopher Wade, and plaintiff-appellant Michael F. Barnsley is the father of Edward F. Barnsley. Christopher Wade and Edward Barnsley were killed by a tree that struck their car. The Wades and Barnsley (“plaintiffs”) brought this renewal action in 1995 against James C. Howard as the executor and personal representative of Grace M. Nesbitt, deceased, and five employees of DeKalb County. Summary judgment in favor of the county defendants was granted in February 1996, with plaintiffs’ consent. Howard subsequently moved for summary judgment. Oral argument was heard in March 1997, and summary judgment was granted in Howard’s favor in June 1997. This appeal followed.

The underlying facts are undisputéd. In June 1991, plaintiffs’ decedents were traveling in a vehicle along Briarcliff Road in unincorporated DeKalb County during or immediately after a thunderstorm. As they passed Nesbitt’s property, they were struck by a large tree that fell across the road. The tree stood on a seven- or eight-acre parcel owned by Nesbitt, since deceased. Nesbitt at the time of the incident was approximately 90 years old, was very ill and infirm, and had not lived on her property since 1988.

Howard presented evidence that Nesbitt had trees removed from her property from time to time during the 1980s. In October 1987 she hired a man to remove two trees that were dead or dying, apparently because they had been struck by lightning. At that time, Nesbitt asked a friend who was caring for her and seeing to her affairs to inspect her property for any other dead or diseased trees; he did so and found no other trees that needed cutting. This caretaker also testified that he looked at the trees along the roadway “many times” on later occasions as he walked Nesbitt’s property at her request. He specifically testified that nothing about the tree in question appeared unusual. The base of the tree was over 20 feet from the roadway, behind a fence, and across a steep gully in a heavily overgrown area of the property. Before the tree fell, the base of the tree was invisible because it was covered with heavy overgrowth and vines. The tree grew towards the sun over the roadway “like many do on Briarcliff Road, hundreds of them.” The caretaker observed the fallen tree while it was being cut up and there were no dead limbs on it; it was “just healthy on the outside, and this is what baffled everybody, you know.” “So far as I could determine there was nothing visible that would have indicated ... if you’d have gone up and looked at it close, . . . that it was [a] bad tree.” No one ever notified him or Nesbitt of a problem with this particular tree, and if they had been notified they would have taken action.

Plaintiffs’ original expert, retained at the beginning of this litigation, personally inspected the stump of the fallen tree within six months after the incident. He provided a letter to plaintiffs’ original counsel stating that the tree was severely decayed and hollow at the base, but that “this internal defect would not have been readily apparent [to] an untrained casual observer.” While he stated that the tree appeared to have leaned over the road, predisposing it to fall in that direction, he also stated that the tree leaned and had more branches on one side because it was an “edge tree” seeking sunlight over the roadway. He stated that “[a]ll 'edge trees’ behave in this manner.” Plaintiffs dismissed that expert and the attorneys who hired him. The earliest record of service of this expert’s letter upon Howard is in 1994, in response to discovery propounded by the county defendants. The expert later provided Howard with an affidavit affirming the facts recounted in his 1991 letter.

Plaintiffs apparently waited until 1997 to retain a second expert, who executed an affidavit based on 81 photographs made of the scene in 1991 and 1993. But the photographs were not attached to his affidavit or to the accompanying affidavit of plaintiff Gene Wade that purported to identify the photographs. While four unidentified photographs were attached to the expert’s affidavit, he did not testify to their origin or that they were true and accurate representations of the scene depicted. Evidence was presented that the scene had changed substantially with the sale of the land and its clearing and regrading for a subdivision in 1996.

At the hearing on Howard’s motion for summary judgment, Howard objected to the affidavits. Ten days later, plaintiffs sought to amend the affidavits by revising them to add “personal knowledge” language and the photographs, and Howard again objected. The trial court refused to allow amendment of the affidavits, and plaintiffs have not argued or enumerated as error the trial court’s order denying their motion to amend the affidavits. This issue therefore is not raised on appeal, see Schill v. A.G. Spanos Dev., 217 Ga. App. 260, 262 (457 SE2d 204) (1995), and we will not consider the amended affidavits or the photographs offered with them.

With respect to the affidavits in their original form, it is well established that an affidavit purporting to rely on papers or other materials not attached to the affidavit or otherwise made part of the record is insufficient to create a genuine issue of fact on summary judgment. Hayes v. Murray, 252 Ga. 529, 530 (314 SE2d 885) (1984). The photographs purportedly identified in Gene Wade’s affidavit were never successfully incorporated into the record because they were not submitted until plaintiffs’ motion to amend, which was denied and not appealed. As a result, the four photographs attached to the second expert’s affidavit remain unidentified as to time, place, or origin, and no witness has testified that they are true and accurate representations of objects or events at the time of the incident. While the second expert recited that he had visited the scene, he did not identify the photographs from his personal knowledge or state any facts based on his inspection of the site, which in any event had altered substantially with the clearing and grading of the land in the intervening years. The second expert’s affidavit is fatally defective, as is the Wade affidavit which purported to identify unattached photographs not offered until plaintiffs’ later, unsuccessful, and unappealed motion to amend. Hayes, supra.

Plaintiffs also presented the affidavit of a neighbor who testified she believed the tree was dangerous because it leaned over Briarcliff Road. She did not attribute her conclusion to observed rot or decay, but entirely to the fact that the tree was leaning. She also did not state that she ever notified Nesbitt or her caretaker of this belief.

The law governing a landowner’s responsibility for trees is well-established. In Cornett v. Agee, supra, a tree fell due to an apparent combination of high winds and visible rot. The tree was partially dead, it was standing near the lot line and leaning visibly toward the neighboring yard, the landowner’s attention had been called to the tree, and he had been advised to remove it. This Court recognized the prevailing rule that distinguishes between the owner of rural land and the owner of land in an “urban area,” who is held to a standard of reasonable care in inspecting trees to ensure safety. Id. at 55-56. Under those circumstances, we limited liability to trees having “patent visible decay and not the normal usual latent micro-non-visible accumulative decay. In other words, there is no duty to consistently and constantly check all pine trees for non-visible rot as the manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.” Id. at 57.

In Willis v. Maloof, 184 Ga. App. 349 (361 SE2d 512) (1987), a jointly owned boundary tree fell on the defendant landowner’s next-door neighbor. The defendant’s vegetable garden was adjacent to the tree, and he had frequent opportunities to observe it. The plaintiff’s expert testified that unusual bark growth, a cavity or hollow in the side of the tree, and fungus growth on the bark indicated to him that the tree was diseased and posed a hazard, and that in his opinion the average person’s “ ‘attention would have been drawn’ ” to these conditions. Id. at 350 (2). Relying on Cornett, supra, for the proposition that the owner of a tree is liable for injuries from its fall “only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition,” we held that “[e]ven assuming defendant should have noticed these conditions, no evidence was presented from which a jury could find that defendant should reasonably have known the tree was diseased. The expert witness presented testimony from which a jury could find that the tree was in fact diseased. However, the testimony of the expert witness did not establish that a layman should have reasonably known the tree was diseased.” Id. at 350.

Finally, in Carter v. Ga. Power Co., supra, we cited Willis and Cornett to hold: “Just as the owner of a tree has no duty to check it constantly for non-visible rot, a city has no duty to check limbs overhanging a public road for non-visible rot.” (Citations and punctuation omitted.) Id. at 78 (1).

In applying these decisions to the case before us, we first assume, without deciding, that undeveloped acreage in its natural state falls within the Cornett rule because it is located in the Atlanta metropolitan area, even though in an unincorporated area of a county. We also assume that the rule applies to property on which the owner does not reside, and that the same standard of care applies to an ill and infirm landowner in her nineties. Even in light of all these assumptions, however, plaintiffs have failed to carry their burden of responding to Howard’s motion for summary judgment.

“In response to a properly supported motion for summary judgment which pierces the pleadings, plaintiffs may not stand upon their allegations, but must come forward with evidence to contravene defendants’ proof or suffer judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” Bowden v. Pryor, 215 Ga. App. 351, 352 (450 SE2d 845) (1994). Plaintiffs have failed to demonstrate patent visible decay in the tree before its fall. Their own expert witness testified that the decay would have been invisible to a layperson on inspection of the tree. Moreover, plaintiffs have not demonstrated that the decay would have been visible, apparent, or patent before the fall of the tree despite its inaccessible location and the heavy undergrowth and vines surrounding the tree’s base.

The neighbor’s lay opinion regarding the danger of a leaning tree in the absence of any decay was refuted by plaintiffs’ own expert witness. Moreover, this Court has declined to use the fact that a tree may be overhanging or leaning in one direction as a basis for notice that it is in a dangerous condition. We rejected liability for an overhanging portion of a tree in Carter, supra. In Cornett, supra, the tree that fell was also leaning, but this Court noted that it was “specifically limiting liability in this case to patent visible decay. . . . [T]he manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.” Id. at 57. Plaintiffs have failed to meet this test, and the trial court did not err in granting summary judgment in favor of Howard.

Howard has moved for dismissal of the appeal and the award of penalties for a frivolous appeal under Court of Appeals Rule 15 (b). His motion to dismiss is denied, but his motion for frivolous appeal penalties is granted for the following reasons:

As noted above, plaintiffs began this litigation by replacing the attorney and expert witness who apparently advised them that their claims had no merit. Howard argues that plaintiffs “shopped” this case through a number of law firms. Although all plaintiffs are Atlanta residents, they eventually hired an attorney in Americus. Plaintiffs through their new counsel concealed the existence of the original expert’s report from Howard for a substantial period of time; it was fortuitously revealed only when produced in response to the DeKalb County defendants’ discovery.

Counsel never responded to Howard’s interrogatories seeking facts supporting the essential elements of their claims and refused to respond to interrogatories regarding the expert’s report after its belated discovery. No motion to compel was ever filed because Howard had no reason to pursue these matters after his summary judgment motion was granted.

As also noted above, plaintiffs’ counsel filed inadequate affidavits without the described attachments on the day before a scheduled hearing on Howard’s motion for summary judgment, which had already been postponed at counsel’s request. He then attempted to amend the fatally defective affidavits ten days after the renewed hearing, which had been postponed again. As noted above, a second expert was not retained until years after the incident and only shortly before plaintiffs’ response to Howard’s motion for summary judgment. Counsel apparently limited the information provided to this second expert, omitting the caretaker’s deposition and affidavit, apparently with a view towards influencing the expert’s conclusions.

Plaintiffs’ counsel also undertook a “shotgun” approach of suing every possible defendant. Claims were made against two automobile insurers, although no uninsured motorist claim appears to arise from the facts of this case. Plaintiffs also sued numerous employees of DeKalb County, but those claims ultimately were disposed of on summary judgment with plaintiffs’ consent, in return for the stipulation that DeKalb County would not seek costs, fees, or expenses. There is no liability coverage because Nesbitt’s insurer went into receivership.

There is also a persistent pattern of delay throughout this litigation. The original action was filed on the day before expiration of the statute of limitation. After the defendants filed motions for summary judgment, plaintiffs sought several extensions and then dismissed the original action without filing a response. The renewal action was filed two days before expiration of the six-month grace period. In this renewal action, plaintiffs again sought additional time to respond to Howard’s renewed motion for summary judgment, which was essentially identical to his original motion. Plaintiffs’ counsel sought postponement of the summary judgment hearing three times.

Decided March 2, 1998

Reconsideration dismissed April 3, 1998

William J. Murray, for appellants.

Perry O. Lemmons, for appellees.

Throughout the lengthy course of this action, plaintiffs have avoided stating a legal basis for their claims or the supporting facts until faced with an imminent ruling against them. While plaintiffs as laypersons may not have been informed of the controlling law or the substantial delay that occurred as a result of their counsel’s conduct, it is clear that counsel was well aware from the inception of this litigation that these claims have no merit. We therefore assess frivolous appeal penalties pursuant to Court of Appeals Rule 15 (b) in the amount of $1,000 against plaintiffs’ counsel.

Judgment affirmed.

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

       This action was a renewal of an earlier civil action dismissed without prejudice in 1995.

       It does not appear from the affidavit that the expert was provided with either the deposition or the affidavit of the caretaker describing the condition of the property at the time of the incident.

       We note that “[w]hile the trial court is vested with discretion to consider affidavits not timely filed, the refusal to exercise that discretion is not error.” (Citations and punctuation omitted.) Professional Cleaners v. Phenix Supply Co., 201 Ga. App. 634, 636 (411 SE2d 781) (1991).

       Some of the photographs unsuccessfully offered in the motion to amend were taken over two years after the incident, a significant lapse of time in assessing the degree of rot or decay in a fallen tree.

       The tree in Cornett, supra, was a tree standing between two house lots in an urban area of Fulton County; the tree in Willis, supra, was a single tree in a side yard adjoining the defendant’s vegetable garden; the tree in Ga. Power was a street tree within the city limits of Macon. But we need not reach the issue of what constitutes an “urban area” under Cornett.


author: McMurray, Presiding Judge.

text:
    A98A0226.
    SISSON v. THE STATE.
    (499 SE2d 422)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of driving under the influence of alcohol (“DUI”) in violation of OCGA § 40-6-391 (a) (1) (less safe driver) and no proof of insurance. The evidence at trial revealed that on the night in question, defendant quarreled with his girl friend, Pam Mullins. Defendant had come home “intoxicated enough for [the couple] to have an argument.” When Mullins tried to call 911, defendant “jerked the phone out of [her] hands, threw it on the floor and broke it.” From a pay phone, Mullins telephoned the police and told them she and defendant “are fighting and he’s drunk, and he’s driving a red Mazda truck and he was going to his mother’s in Rockmart. . . . Going down Bankhead Highway, [Officer John H. Turney of the Cobb County Police Department] picked up on a red Mazda pickup truck that was headed . . . toward the direction of Rockmart. . . . [Officer Turney observed] an older male driving [and] a younger male in the passenger’s seat.” Officer Turney initiated a traffic stop and “asked the driver for his license and insurance card.” Defendant “kept fumbling around for about a minute trying to give [the officer] his license. . . . He [defendant] was going through his wallet, then going through his dash, then flipping through the truck seat, then back to his wallet. . . . [Defendant finally located his documents] in his wallet.” Officer Turney “could smell an odor of an alcoholic beverage about [defendant]. . . . [Defendant] eventually gave [Officer Turney] his license [but] never could produce an insurance card. . . . When [defendant] stepped out of his truck, he kind of staggered and swayed and he grabbed the side of his truck to hold himself up. . . . [Defendant] continued to walk down the bed side of the truck using the truck to hold his balance to hold him up.” An alco-sensor tested positive for alcohol. “After [Officer Turney] administer[ed] that test, [defendant] made a comment . . . that he did have a few beers. . . .” Defendant was unable to touch the tip of his nose with his right and left index fingers. Defendant informed Officer Turney “that he did not know his ABCs to do the ABC test[, so they] went ahead and passed that test on by. . . . [When] asked ... for the date and the time[, defendant got the day of the week correct but] was off about 52 minutes . . .” as to the lateness of the hour. Defendant’s “eyes were bloodshot and watery. . . . [H]is breath was strong of an alcoholic beverage, and his speech was slurred.”

At that point, defendant was placed under arrest and read his implied consent warnings. Mullins came to the scene and took custody of defendant’s 14-year-old son. When Officer Turney attempted to administer a breath test at the precinct, he admonished defendant “to take a deep breath, seal his lips around the mouthpiece and continue to blow approximately four to eight seconds until the machine quits giving a tone. . . . [But defendant only] blew one to two seconds, just a quick little blow. [Officer Turney then] instructed [defendant] that he need[ed] to blow until [the officer told] him to stop. . . . [Defendant] then again blew . . . two seconds, just kind of a quick breath. That was it.” They “did this approximately four times, and all four times he [defendant] would just give a quick, little short breath. . . .” Officer Turney “offered [defendant] the test again for his benefit of the doubt [but defendant] refused to take the test again. . . .” Officer Turney again read defendant his implied consent warnings and “offered him a test of his blood for his benefit of the doubt. He refused that test as well.” Based on Officer Turney’s training and experience, and his observation of defendant’s mannerisms and demeanor, he was of the opinion that defendant “was a less safe driver. . . .” Deputy Earl Head of the Carroll County Sheriff’s Office and formerly with the traffic unit of the City of Rockmart Police Department related the circumstances of defendant’s July 16, 1994 arrest and subsequent conviction for “DUI [in the] Recorders Court — Rockmart[, Polk County, Georgia].” Defendant’s blood alcohol concentration was “13 grams [sic] at 16:22 hours.”

The jury found defendant guilty as charged on each count. Defendant’s direct appeal to the Supreme Court of Georgia was determined to “involve the application and not the construction and interpretation of the Georgia Constitution, [and so] this case [was] transferred to the Court of Appeals.” Held:

1. Defendant first contends he was denied equal protection under Art. I, Sec. I, Par. II of the 1983 Georgia Constitution, arguing that “[p]ursuant to OCGA § 24-9-103 [(b) (1) and (2)], hearing impaired persons are given preferential treatment [because] the law provides that no evidence can be obtained from hearing impaired persons, during the first hour following an arrest, without the presence of an interpreter.” Since defendant is not hearing impaired, he claims he is unfairly subject to roadside questioning about the state of his sobriety during “a critical period during which time people arrested for DUI may reduce the quantity of alcohol in the body to a level below the DUI threshold.” The trial court concluded “the State can and does make exceptions to compensate for people who are suffering under handicaps. . . .”

(a) “There are three standards generally accepted for determining constitutionality under the Equal Protection Provisions of both the U. S. and [Georgia] Constitutions: (1) The rational relationship test; (2) The intermediate level of scrutiny; and (3) The strict judicial scrutiny standard.” (Citation and punctuation omitted.) McDaniel v. Thomas, 248 Ga. 632, 638 (III) (285 SE2d 156). DUI suspects who are not themselves hearing impaired do not constitute a suspect classification nor do they implicate a fundamental right for equal protection analysis such as to implicate strict scrutiny. Nor does such classification invoke the intermediate scrutiny of gender-based classifications. Consequently, the standard of review is the rational basis standard.

(b) “Under this analysis, . . . statutory classifications are presumed valid and will survive an equal protection challenge if the classification bears a rational relationship to a legitimate government interest. McDaniel, 248 Ga. at 638-639[, supra]. The claimant must establish that he is similarly situated to members of the class who are treated differently from him. Next, the claimant must establish that there is no rational basis for such different treatment. [Cit.]” Henry v. State, 263 Ga. 417, 418 (434 SE2d 469).

In our view, defendant cannot meet either prong of this test. He conceded he “has perfectly good hearing,” and so he is not similarly situated to hearing-impaired DUI suspects who, in the absence of a translator, are not interrogated or read their implied consent warnings for up to one hour. Secondly, “[t]he intent of OCGA § 24-9-101 et seq. is to provide qualified interpreters to convey to hearing impaired [drivers] their implied consent warnings and rights before any questioning. . . . OCGA § 24-9-103 (b).” Allen v. State, 218 Ga. App. 844, 846 (1), 847 (463 SE2d 522). In the case sub judice, defendant failed to meet his burden to show the procedure whereby criminal suspects who are hearing impaired are not interrogated for up to one hour except in the presence of a translator is arbitrary or otherwise not rationally related to a legitimate state interest. See Gaines v. State, 260 Ga. 267, 268 (392 SE2d 524).

2. Next, defendant contends he was denied the right to confront his accuser, as guaranteed by the Sixth Amendment to the U. S. Constitution and Art. I, Sec. I, Par. XIV of the 1983 Georgia Constitution. In this regard, he complains of the admission into evidence of State’s Exhibit 1, which is the Georgia Bureau of Investigation Certificate of Inspection for “breath testing instrument, [serial number] 68-001337.” Attached to this certificate are printouts purporting to be the test results from the inspection as performed by Trooper R. M. Webb, the signatory to the certificate. Defendant argues “the test results should not have been tendered in the trial as evidence along with the certificate required by OCGA § 40-6-392 (f).”

At trial, defendant interposed objections based on hearsay, denial of cross-examination of Trooper Webb, and best evidence. Officer Turney was then permitted to offer foundation evidence. He testified he knew R. M. Webb is a state trooper; that Trooper Webb is the implied consent area supervisor whose duty it is to “go around to all of our Intox machines and to inspect them and calibrate them and make sure they are working properly”; that “Trooper Webb run[s] a test on the machine when he inspects it quarterlyt; and that] he [ran] a test on the machine when he inspected it on January 2nd, 1996.” Officer Turney identified the attachments to the inspection certificate as “[a] printout of the machine and the test that Trooper Webb ran on it.”

In our view, this was an adequate foundation to admit the printouts as business records under OCGA § 24-3-14 (b), in that it was in the regular course of Trooper Webb’s business to perform such a test, and these printouts were the result of one of those tests conducted in the regular course of Trooper Webb’s duties. Consequently, “there [was] no violation of defendant’s right of confrontation. [Cit.]” Stewart v. State, 246 Ga. 70, 73 (3), 74, n. 2 (268 SE2d 906).

3. In the third enumeration, defendant contends the trial court erred in admitting evidence of a prior incident of driving under the influence of alcohol. Relying on Old Chief v. United States, 519 U. S. _ (117 SC _, 136 LE2d 574), he argues that proof of the nature of his previous DUI was more prejudicial than probative and was erroneously admitted over objection because he offered to stipulate that he was a misdemeanant. We do not agree.

In Old Chief, that defendant was charged with a violation of 18 USC § 922 (g) (1), which forbids possession of a firearm by anyone convicted in any court of a crime punishable by imprisonment for a term exceeding one year. He offered to stipulate he had been convicted of such an offense (assault causing serious bodily injury), but moved to exclude reference to the name and violent nature of the actual prior offense. The district court admitted the unredacted judgment of conviction, disclosing that defendant Old Chief “ ‘did knowingly and unlawfully assault Roy Dean Fenner, said assault resulting in serious bodily injury,’ for which Old Chief was sentenced to five years’ imprisonment.” 136 LE2d 574, 584 (I) at 586. The Ninth Circuit had ruled that “a stipulation is not proof, and, thus, it has no place in the [Federal Rules of Evidence] 403 balancing process. [Cit.]” Id. The Supreme Court of the United States reversed and remanded, holding that Rule 403 of the Federal Rules of Evidence requires the relative probative value of prior conviction evidence be balanced against its prejudicial risk of misuse, and if an alternative method of proof (such as an admission against interest) had substantially the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk. Id. at 589 (II) (B) (1). Consequently, the trial court in that case abused its discretion in admitting the record of conviction when an admission of defendant’s status as a convicted felon was available. Id. at 595 (II) (B) (4).

(a) Thus, in Old Chief, that defendant’s proposed stipulation amounted to an admission against his penal interest because it established an element of the subsequently charged crime. Our Supreme Court has recently reached the same result as Old Chief (independent of that decision’s analysis) with respect to a charge of possession of a firearm by a convicted felon. Robinson v. State, 263 Ga. 424, 425 (2) (b) (435 SE2d 207). In the case sub judice, however, defendant’s proposed stipulation that he is a misdemeanant for an undisclosed offense does not in any way establish any element of the alleged violation of OCGA § 40-6-391 (a) (4). Rather, it is the fact of his. previous incident of driving with a blood alcohol level of .13 grams percent (versus any conviction therefor) which tends to establish guilty knowledge and to rebut any claim of accidental intoxication in the subsequent offense.

(b) Moreover, the interpretation of Rule 403 of the Federal Rules of Evidence by the Supreme Court of the United States simply is not any precedent binding on this Court regarding the admissibility of similar crimes or extrinsic acts evidence.

In Georgia, the admission of evidence, including questions of relevancy, is a matter committed to the sound legal discretion of the trial court. Baker v. State, 246 Ga. 317, 318 (3), 319 (271 SE2d 360). “As said by Mr. Wigmore (4 Wig. Ev. 20 ed., 73, § 1904): ‘Circumstantial evidence, concededly relevant, may nevertheless be excluded by reason of the general principle that the probative usefulness of the evidence is more than counterbalanced by its disadvantageous effects in confusing the issues before the jury, or in creating an undue prejudice in excess of its legitimate probative weight.’ ” Candler v. Byfield, 160 Ga. 732, 738 (2), 739 (129 SE 57). See also Kicklighter v. Woodward, 267 Ga. 157, 160 (4), 161 (476 SE2d 248). “The general rule is that evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial. See Cawthon v. State, 119 Ga. 395, 408 [(4-6)] (46 SE 897) (1903).” Hicks v. State, 232 Ga. 393, 397 (207 SE2d 30). But the determination that extrinsic acts evidence is more probative than prejudicial is implicit in the trial court’s determination that such evidence is substantially relevant for an appropriate purpose. Humphrey v. State, 218 Ga. App. 574, 576 (2) (462 SE2d 641). The Supreme Court of Georgia has ruled that the calculus of whether relevant and admissible similar crimes evidence should nevertheless be excluded as more prejudicial than probative need not be an express determination on the record. Farley v. State, 265 Ga. 622 (2), 625 (458 SE2d 643).

In the case sub judice, we find no error in the trial court’s implicit determination that defendant’s prior DUI was more probative than prejudicial. “Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the perpetrator has the bent of mind to get behind the wheel of a vehicle when [it is] less safe for him to do so.” (Citations and punctuation omitted.) McCullough v. State, 230 Ga. App. 98, 99 (1), 100 (495 SE2d 338).

4. In his fourth enumeration, defendant contends he was denied his rights under Art. I, Sec. I, Par. XVI of the 1983 Georgia Constitution, which provides: “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” He argues “that Miranda rights [Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)] apply immediately after arrest and before the reading of Implied Consent warnings.”

Decided April 1, 1998

Reconsideration denied April 3, 1998.

J. Guy Sharpe, Jr, for appellant.

Under Georgia law, Miranda warnings must precede a request to perform a field sobriety test only when the suspect is “in custody.” Price v. State, 269 Ga. 222, 224 (3) (498 SE2d 262); State v. O’Donnell, 225 Ga. App. 502, 504 (2) (484 SE2d 313); Montgomery v. State, 174 Ga. App. 95 (1) (329 SE2d 166). The test of “in custody” is whether a reasonable person in the suspect’s position would have thought the detention would not be temporary. Price v. State, 269 Ga. 222, 224 (3), supra.

“For the proscriptions of Miranda v. Arizona, [supra,] to apply, £a person must have been taken into custody or otherwise deprived of his freedom of action in some significant way.’ Lobdell v. State, 256 Ga. 769, 773 (6) (353 SE2d 799). Tn determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but “the ultimate inquiry is simply whether there (was) a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” (Cits.)’ Stansbury v. California, 511 U. S. 318, 322 (114 SC 1526, 128 LE2d 293). Since it is undisputed that defendant in the case sub judice had not been formally arrested at the time [Officer Turney asked defendant to perform field sobriety tests or to submit to a breath test], the proper inquiry becomes whether he had been ‘restrained to the degree associated with a formal arrest, not whether the police had probable cause to arrest. (Cits.)’ Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16).” McConville v. State, 228 Ga. App. 463, 464 (1), 465 (491 SE2d 900).

In our view, defendant was not in the custody of the police as that phrase has been construed. Trudewind v. State, 224 Ga. App. 223 (1) (480 SE2d 211). Nor was he compelled by force or threats to perform roadside field sobriety tests in violation of his right against self-incrimination as guaranteed by Art. I, Sec. I, Par. XVI of the 1983 Georgia Constitution and OCGA § 24-9-20. “Thus, any recitation of individual rights guaranteed by the federal and [Georgia] constitutions was not necessary at the time [defendant] was requested to perform the field sobriety test[s].” Montgomery v. State, 174 Ga. App. 95 (1), 96, supra.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Barry E. Morgan, Solicitor, Lawton W. Scott, Assistant Solicitor, for appellee.

       Since the prior DUI in the case sub judice was relevant only as similar transaction evidence and not for impeachment, it is the circumstance of driving with an unlawful blood alcohol concentration rather than any conviction that is logically connected to the subsequently charged crime. “It is not essential for admissibility that the similar crime resulted in a conviction. [Cits.]” Green v. State, 178 Ga. App. 203 (2), 204 (342 SE2d 386). This case does not present the question whether, over defendant’s best evidence objection, a prior DUI conviction can be established for similar transaction purposes by a driving record as printed from a computer connected to the Georgia Crime Information Center, admissible per OCGA § 24-3-17 (b). Compare Johnson v. State, 48 Ga. 116, hn. 3.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A97A1936.
    QUEEN et al. v. CITY OF DOUGLASVILLE.
    (500 SE2d 918)
   Beasley, Judge.

This is an action for damages arising from an incident in which two young girls were struck by a train while attending an Independence Day parade held by defendant City of Douglasville. The Independence Day parade through downtown Douglasville has been held for more than 30 years. Since 1992 the parade has been planned and sponsored by defendant. The parade route which has not changed over the years uses the main thoroughfare through the center of the city which is known alternately as Highway 78, Bankhead Highway, and in the business district, as Broad Street.

Both parallel and adjacent to the parade route section of Highway 78 is the right-of-way and rail line of Norfolk Southern Railway Company. There is a grassy slope, from the railroad line down to the highway, which is a favored viewing spot for parade spectators.

On July 4, 1994, the two girls, Lisa Michelle Queen, age ten, and Rebecca Ann Queen, age twelve, accompanied their parents and little brother to Douglasville. They parked at a business location on Highway 78, then walked across and along that highway on the grassy median area separating it from the railroad tracks until they reached their desired spot for observing the parade. As they had arrived early, they were able to walk near the highway curb and their chosen observation position was at the highway curb. The family did not walk on or cross the railroad track in reaching their position at the curb.

Since the area where the family wanted to sit was damp, Lisa and Rebecca were sent back to the family vehicle to get a poncho to sit on. The girls returned to the vehicle by reversing the route they had come with their family. But on their return to the parade route, after they crossed Highway 78 they proceeded on across 45-50 feet of the grassy median and onto the railroad tracks. The girls walked on the railroad tracks looking down and talking. While they had no audible warning of the approaching train, Rebecca eventually looked up, saw the train, and jumped away from the tracks but reached back for her baseball cap; her arm was struck by the train. Lisa was hit by the train and killed.

Ronnie H. Queen, the girls’ father, filed this action for the wrongful death of Lisa and for the injuries received by both girls. Claims against Norfolk Southern Railway Company have been dismissed with prejudice. The amended complaint seeks damages from the City on theories of nuisance, negligence, premises liability, and mantrap. The City’s motion for summary judgment was granted, and Queen appeals.

1. Nuisance. We reverse the grant of summary judgment in favor of defendant. Instructive authority is the factually similar case of Grier v. City of Atlanta, 200 Ga. App. 575 (408 SE2d 794) (1991) in which this Court reversed a grant of summary judgment on a nuisance claim based on the maintenance of a public park bisected by a rail line. The parade route in the current case did not cross the rail line, but conduct of a public gathering of 10,000 or more persons along a parade route within 50 to 75 feet of a rail line on which trains were authorized to travel at up to 50 mph may have involved even more dangerous conditions than in Grier, where the train was subject to a speed limit of 10 mph.

Similarly to Grier, the evidence in this case shows a large level of pedestrian traffic across the rail line. Those who parked or lived on the opposite side of the tracks but desired to attend the parade often walked across the tracks with their families. Others watched the parade from the far side of the tracks. There was a large number of children of all ages at the parade, many of whom were not closely supervised and went on the tracks.

“In City of Bowman v. Gunnells, 243 Ga. 809, 811 (2) (256 SE2d 782) (1979), [the Supreme] Court established guidelines for determining whether a municipality will be liable for creating or maintaining a nuisance: the defect or degree of misfeasance must exceed mere negligence (as distinguished from a single act); the act complained of must be of some duration and the maintenance of the act or defect must be continuous or regularly repetitious; and there must be a failure of municipal action within a reasonable time after knowledge of the defect or dangerous condition.” Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996).

The City contends that Queen has failed to describe a dangerous defect which it has created and maintained, but this is simply incorrect. The nuisance claim arises from misfeasance in the holding of the parade in an area which would cause congestion along the rails where trains would be running at high speed and is not predicated upon mere failures to act. There is evidence that the congestion and pedestrian traffic on and about the rail line had occurred in connection with the parade in prior years and that the City was well aware of these circumstances. And the dangerous conditions had been regularly repeated with each year’s parade, although the 1994 parade was even more dangerous due to an increase in the speed limit applicable to passing trains.

The Grier decision disposes of two additional arguments submitted by defendant. The fact that the injuries occurred on property owned by the railroad presents no bar to plaintiffs nuisance claim. The fact that there had been no prior occasion of injury on the railway tracks caused by the alleged nuisance does not support the grant of summary judgment on the nuisance issue. Id. at 576. Genuine issues of material fact remain for resolution by a jury on Queen’s nuisance claim.

2. Negligence. In concluding that there was no evidence of the City’s negligence, the superior court relied upon the public duty doctrine set forth in City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993). The summary judgment being appealed was entered before the decision in Hamilton v. Cannon, 267 Ga. 655, 656 (1) (482 SE2d 370) (1997), which limits the public duty doctrine to police officers and to police protection. The alleged negligent conduct goes beyond issues of police protection to the choices made by the City in planning the parade.

“Whether one who causes a crowd or group of people to foregather for some purpose such as a parade is liable for an injury suffered by one spectator . . . depends on the circumstances, and becomes a jury question where the minds of reasonable men differ as to whether the defendant was negligent in maintaining the premises, in controlling the crowd after notice of potential danger, or in failing to exercise ordinary care to anticipate and guard against injury the proximate cause of which is within its control.” Armburst v. Cox Broadcasting Corp., 117 Ga. App. 381, 382 (160 SE2d 609) (1968).

There was evidence that the City recognized the hazard posed by conducting the parade in close proximity to the rail line but continued to use the traditional route in order to pass the downtown commercial district and did so without providing any protection from this hazard. The negligence claim presents genuine issues of material fact for resolution by a jury.

In connection with the negligence claim, we note that the City has liability insurance covering the parade. See OCGA § 36-33-1.

3. Premises liability and mantrap. The trial court’s judgment is affirmed with respect to the theory of premises liability.

The law provides: “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1.

The City was neither owner nor occupier of the railroad tracks where the injury and death to the little girls occurred. Norfolk Southern’s railroad tracks were on the railroad’s right-of-way. It cannot be found that the City “occupied” the tracks on the theory that it did not stop people from crossing the tracks to get to and from the parade or did not stop children from going upon the tracks to play. There is no evidence or contention that the City had permission to allow this or that Norfolk Southern knew this was occurring. In fact, the City had not even notified Norfolk Southern that the parade was to be held, and Norfolk Southern did not know of it.

Queen argues that the City was occupier on the strength of the fact that it “attracted, encouraged, lured and allowed parade spectators to view the parade from such location.” It is true that the City kept the grassy slope which was located between the railroad track and the roadway mowed on a regular basis, and that the spectators viewed the parade from that slope. Even if that made the City an occupier for premises liability purposes, which is doubtful at the least, it did not attract, encourage, lure or allow spectators to view the parade from the railroad track.

The sole case relied upon by Queen with respect to this theory of occupancy is Macon Tel. Publishing Co. v. Graden, 79 Ga. App. 230 (53 SE2d 371) (1949). In that case the municipality (not a defendant) had set aside for the defendant sponsor a certain street for the purpose of a soapbox derby and the viewing thereof by the public. A spectator was injured on those premises by a runaway racing car and sued the derby sponsor. The court ruled that the sponsor was occupier of that street for the event, for the purposes of the premises liability statute. The facts here are dissimilar; the railroad track, and for that matter the slope, had not been set aside by the railway company for the use of the City in holding the parade. The City did not occupy the track.

For the same reason, the City cannot be held liable in this case on a claim of mantrap. The doctrine of mantrap applies to a species of premises liability cases. Thus it applies to the duties owed by owners or occupiers of property. See, e.g., Tollman v. Zamani, 224 Ga. App. 518 (481 SE2d 232) (1997) (claim of mantrap-caused injury to licensee on property of defendants).

As stated in Wren v. Harrison, 165 Ga. App. 847, 848-849 (303 SE2d 67) (1983): "An owner [or occupier] owes to a licensee no duty as to the condition of the premises save that he should not knowingly let. him run upon a hidden peril or wilfully cause him harm. This is the obligation not to lay for him or permit to exist pitfalls or mantraps in which it may be reasonably anticipated he will become ensnared.” (Citations and punctuation omitted.) See OCGA § 51-3-2 (b).

The mantrap cases cited by Queen all involve defendants who were owners or occupiers of the premises on which the alleged mantrap causing the injury was located. McKinsey v. Wade, 136 Ga. App. 109 (220 SE2d 30) (1975) (injury on premises of store operator); Brooks v. Logan, 134 Ga. App. 226 (213 SE2d 916) (1975) (plaintiff child stepped in hole in defendants’ yard); Kahn v. Graper, 114 Ga. App. 572 (152 SE2d 10) (1966) (suit against owner of building); Clark v. Rich’s, Inc., 114 Ga. App. 242 (150 SE2d 716) (1966) (injury in defendant merchant’s parking lot); Crosby v. Savannah Elec. &c. Co., 114 Ga. App. 193 (150 SE2d 563) (1966) (defendant was owner of power pole and high voltage wires); Clinton v. Gunn-Willis Lumber Co., 77 Ga. App. 643 (49 SE2d 143) (1948) (owner of sawmill and owner of electric wires).

Instructive here is the statement of the Court in Crosby: “The doctrine of mantrap or pitfall is rested upon the theory that the owner is expecting a trespasser or a licensee and has prepared the premises to do him injury. [Cit.]” 114 Ga. App. at 198. See also Hawkins v. Brown, 228 Ga. App. 311, 313 (2) (491 SE2d 423) (1997), which quotes Crosby and discusses the doctrine of mantrap and its application. Given the evidence in favor of Queen in this case, he could not recover against the City on the claim that the railroad track was a mantrap for which the City was responsible.

The case shall be tried on the claims of negligence and nuisance.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Smith, J., concur. Andrews, C. J., concurs in the judgment only. McMurray, P. J., Ruffin and Eldridge, JJ., concur in part and dissent in part.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I concur with Divisions 1 and 2 of the majority opinion which reverse the grant of summary judgment in favor of defendant on plaintiff’s nuisance and negligence claims. However, I am unable to join the majority in approving of the grant of summary judgment to defendant on plaintiff’s premises liability and mantrap claims. Therefore, I respectfully dissent to Division 3 of the majority opinion.

In my view, the superior court also erred in granting summary judgment as to plaintiff’s premises liability claim. While defendant did not own the railroad right-of-way, a jury could reasonably conclude that defendant occupied those premises each Independence Day by conducting the parade in such a manner as to encourage the use of that premises by the attending crowd. As occupier of the premises, defendant owed to the spectators, who were present at its invitation and thus invitees, ordinary care in keeping the premises safe. Macon Tel. Publishing Co. v. Graden, 79 Ga. App. 230, 233 (1) (53 SE2d 371). Under this theory, defendant’s liability would be predicated on its superior knowledge of the hazards posed by the railroad tracks. While defendant argues that plaintiff and his children had equal knowledge of the hazards, and also relies upon the defense of assumption of risk, the evidence on these issues is at least conflicting. Rebecca testified that she did not expect trains to be passing during the parade, while defendant was aware that they had done so in the past and that it had not taken any precaution to lessen that danger through crowd control or by requesting that the trains pass at a reduced speed during the time the crowd would be present.

Decided April 3, 1998

Parker & Lundy, William L. Lundy, Jr., Johnny R. Pannell, for appellants.

Hawkins & Parnell, Charles R. Beans, Michael J. Goldman, for appellee.

I would also hold that the superior court erred in granting summary judgment as to plaintiff’s mantrap claim. The occupier of premises, as well as an owner, owes a duty to even a mere licensee or trespasser not to maintain a mantrap on the premises. McKinsey v. Wade, 136 Ga. App. 109 (220 SE2d 30); Clark v. Rich’s, Inc., 114 Ga. App. 242 (150 SE2d 716). The doctrine of mantrap or pitfall is based on the theory that the owner or occupier is expecting a trespasser or licensee and has prepared the premises to do him harm. However, a mantrap may result from the knowledge on the part of the owner or occupier of the existence of a dangerous condition coupled with a conscious indifference to the consequences, so that an intent to inflict injury is inferable. McKinsey v. Wade, 136 Ga. App. 109, 111 (5), supra; Brooks v. Logan, 134 Ga. App. 226 (213 SE2d 916); Kahn v. Graper, 114 Ga. App. 572 (152 SE2d 10). The evidence of record would authorize such a finding in this case.

I am authorized to state that Judge Ruffin and Judge Eldridge join in this opinion.


author: Judge Harold R. Banke.

text:
    A98A0125.
    THE STATE v. DIBLE.
    (502 SE2d 245)
   Judge Harold R. Banke.

Richard Dible was charged with two counts of driving under the influence (less safe to drive and driving with an unlawful alcohol concentration) and failure to maintain lane. In its sole enumeration, the State appeals the trial court’s order granting Dible’s motion to suppress.

During the early morning hours, 17-year-old Dible ran over an embankment and hit a sign. When the arresting officer arrived at the scene, he approached Dible, who was standing next to the car, and asked what happened. Dible responded, “I’m drunk” and pointed to his car resting on the embankment. Dible, appearing intoxicated and smelling of alcoholic beverages, gave the officer his driver’s license and insurance card. The officer then directed Dible to the front of the patrol car and asked him to perform some field sobriety tests. Dible cooperated, but failed three of the four tests. The officer then arrested Dible. After advising Dible of the implied consent requirements and transporting him to the local jail, the officer arranged for a breath test, which registered .15.

Prior to trial, Dible moved to suppress the field sobriety test results, arguing that the officer’s failure to advise him of his Miranda rights before administering the tests required their exclusion. The trial court agreed, suppressing the field sobriety test results on the ground that the custodial situation implicated the Fifth Amendment sufficiently to require Miranda warnings before the tests. Held:

The trial court erred in suppressing the test results. State v. Brannan, 222 Ga. App. 372, 374 (2) (474 SE2d 267) (1996). The necessity for administering Miranda warnings attaches when a detainee is “in custody.” State v. Pastorini, 222 Ga. App. 316, 317 (1) (474 SE2d 122) (1996). That status arises when a reasonable person in the detainee’s position would have thought the detention was not temporary. Id.

Roadside questioning during the investigation of a routine traffic accident generally does not constitute a custodial situation. Pastorini, supra. Nor does a custodial situation necessarily arise when an officer briefly retains a detainee’s license during the course of an investigation, even if the detainee could, by leaving, be arrested for violating State law. Id.; see Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295) (1990).

The crucial question necessary to determine whether Dible’s freedom was sufficiently impeded to consider him “in custody” is what his immediate business was. Pastorini, 222 Ga. App. at 318 (1). Here, Dible’s immediate business was that he had been involved in a traffic accident. Id. The field testing was initiated to determine whether to arrest Dible, notwithstanding his profession of drunkenness. See Coates v. State, 216 Ga. App. 93, 94 (7) (453 SE2d 35) (1994); Crum, 194 Ga. App. at 272. “ ‘[Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.’ [Cit.]” State v. Peters, 222 Ga. App. 484 (474 SE2d 623) (1996). In similar circumstances, we have routinely found that the detainee was not in custody. Id.; see Coates, 216 Ga. App. at 94 (7); Crum, 194 Ga. App. at 272; Montgomery v. State, 174 Ga. App. 95, 96 (1) (329 SE2d 166) (1985).

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Gary S. Vey, Jeffrey P. Kwiatkowski, Assistant Solicitors, for appellant.

Clark & Towne, Jessica R. Towne, for appellee.

Judgment reversed.

Pope, P. J., and Beasley, J., concur.

       The trial court’s order did not suppress the intoximeter results.

       We further note that the Supreme Court held that the results of field sobriety tests given without benefit of Miranda warnings need not be excluded under the Fifth Amendment because such results are not evidence of a testimonial or communicative nature.
        Hughes v. State, 259 Ga. 227, 228 (2) (b) (378 SE2d 853) (1989). Dible’s motion to suppress does not rely on OCGA § 24-9-20 (a). Compare State v. O’Donnell, 225 Ga. App. 502, 504 (2) (484 SE2d 313) (1997).


text:
    A98A0740.
    GIARRATANO v. GLICKMAN.
    (501 SE2d 266)
   McMurray, Presiding Judge.

Elena Giarratano obtained a default judgment in New York against her half-brother, Mark Glickman, for breach of his promise to repay a $10,000 personal loan. She then sought to domesticate the judgment in Gwinnett County, Georgia, pursuant to OCGA § 9-12-130 et seq. Glickman moved to set aside the judgment pursuant to OCGA §§ 9-12-132 and 9-11-60 (d) (1), alleging the New York court lacked personal jurisdiction over him. The trial court granted Glickman’s motion, and Giarratano appeals. Held:

When suit is brought to domesticate a foreign judgment, the judgment may be attacked collaterally on the ground the foreign court lacked personal jurisdiction over the defendant. If the foreign judgment was obtained by default, no presumption of personal jurisdiction exists. The party seeking to domesticate the judgment bears the burden of negating the defense of lack of personal jurisdiction. See Sanwa Leasing Corp. v. Stan Hunt Constr. Co., 214 Ga. App. 837 (449 SE2d 347) (1994); Brown v. U. S. Fidelity &c. Co., 208 Ga. App. 834, 835 (2) (432 SE2d 256) (1993).

Giarratano argues Glickman was subject to suit in New York under New York’s long arm statute. However, because Giarratano did not give written notice of her intent to rely on foreign law pursuant to OCGA § 9-11-43 (c) nor did she prove New York law as required by OCGA § 24-7-24, the trial court properly applied Georgia law. Brown, supra at 835 (1); Abruzzino v. Farmers’ & Merchants’ Bank, 168 Ga. App. 639, 640 (1) (309 SE2d 911) (1983).

Giarratano contends Glickman was subject to suit in New York because Glickman had sufficient minimum contacts with that state. “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’ [Cit.]” Burger King Corp. v. Rudzewicz, 471 U. S. 462, 471-472 (105 SC 2174, 85 LE2d 528) (1985). “[T]he constitutional touchstone [is] whether the defendant purposefully established ‘minimum contacts’ in the forum State.” Id. at 474. “ ‘[T]he foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ [Cit.]” Id. Considering these basic principles, we must determine whether Glickman has done some act or consummated a transaction availing himself of the laws of New York. See, e.g., Eastlawn Corp. v. Bankers Equip. Leasing Co., 211 Ga. App. 551, 553 (439 SE2d 753) (1993).

Decided April 3, 1998.

Chad A. McGowan, for appellant.

Bricks & Hedden, Kathryn N. Hedden, for appellee.

Glickman is a resident of Georgia. He was a resident of Georgia when Giarratano loaned him the money. He regularly traveled to New York on business and to visit family. During one visit, he was cited for traffic violations. Glickman also inherited property from his grandfather, who lived and died in New York. Glickman received at least half of the loan proceeds from Giarratano while visiting in New York. In support of her brief in opposition to Glickman’s motion, Giarratano submitted letters and phone bills evidencing her collection attempts. However, she submitted no writing evidencing a contract, loan agreement, or promissory note.

As the trial court correctly held, Glickman’s travels to, his traffic citations in, and his inheritance of property in New York have no connection to the suit. Glickman’s receipt of half the loan proceeds in New York and subsequent letters and phone calls to Giarratano in New York regarding the loan are insufficient contacts under Burger King to give Glickman “fair warning” that he would be subject to suit there. See Beverage Mgmt. Solutions v. Yankee Spirits, 218 Ga. App. 95, 96-97 (460 SE2d 564) (1995); Eastlawn Corp. v. Bankers Equip. Leasing Co., supra at 555. The trial court, therefore, did not err in granting Glickman’s motion to set aside.

Judgment affirmed.

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