text:
    A97A0531.
    JOHN CRANE, INC. v. WOMMACK.
    (489 SE2d 527)
   Ruffin, Judge.

Edgar Wommack sued John Crane, Inc. (“Crane”) for injuries he allegedly sustained from his exposure to asbestos contained in Crane’s packing material. Wommack alleged, inter alia, that Crane knew or should have known about the hazards posed by the asbestos and that Crane was negligent in failing to warn him of those hazards. Following trial, a jury returned a verdict in favor of Wommack. Crane appeals from the denial of its motions for directed verdict and new trial. For reasons which follow, we affirm.

1. We note initially that Crane’s brief is in violation of Court of Appeals Rule 27 (c) (1), which provides that “[t]he sequence of argument or arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.” Although Crane enumerates eleven errors, its brief contains only seven listed arguments which do not follow the order of the enumerations and which are not numbered.

Rule 27 (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, Crane has hindered the Court’s review of his assertions and has risked the possibility that certain enumerations will not be addressed. Accordingly, to the extent that we are able to discern which of the enumerations are supported in the brief by citation of authority or argument, we will address those enumerations. Pursuant to Court of Appeals Rule 27 (c) (2), however, all other enumerations will be treated as abandoned.

2. Crane asserts that the trial court erred in denying its motions for a directed verdict and new trial because there was no evidence that (1) Crane knew or should have known of any hazard with respect to asbestos packing; (2) Crane had any duty to warn Wommack of any hazards; (3) Crane’s asbestos packing released any respirable asbestos fibers; and (4) Crane’s packing was a substantial contributing factor of his disease.

“ ‘Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. . . . The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for directed verdict [and] new trial. . . will not be disturbed.’ . . . [Cit.]” Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 162 (1) (473 SE2d 256) (1996). Because the same standard is used to review Crane’s enumerations concerning the trial court’s denial of its motions for directed verdict and new trial, we will consider them together.

Viewed in a light most favorable to upholding the verdict, the evidence at trial showed as follows. Wommack worked as a pipefitter at ITT Rayonier from 1958 to 1973. During his employment there, Wommack used various types of packing material to prevent leaking around pressurized valves and other pipe fittings. Wommack testified that among these various types of packing materials, he used asbestos packing to contain steam or high-temperature water, and that he specifically remembered using Crane’s asbestos packing “in the late ’50s and ’60s.” Wommack further stated that it was common knowledge among pipefitters that the packing contained asbestos and that he knew it was Crane’s packing by the name on the box and the paper in which it was wrapped.

George McKillop, a former product manager of Crane’s packing division, acknowledged that Crane sold asbestos packing. In fact, the evidence showed that Crane started manufacturing products containing asbestos circa 1930, that the packing products at issue contained between 35 and 55 percent asbestos, and that Crane first put warning labels on the products in 1983. McKillop testified that based on Wommack’s job description and his testimony that he used Crane’s packing, he believed Wommack would have used two different asbestos packings sold by Crane.

The evidence further showed that Wommack became exposed to the asbestos fibers in the packing while removing old packing from pipes and installing new packing. Wommack testified that when he removed old packing “if the packing wasn’t in real bad shape, you could take a packing puller, which looked like a corkscrew, and you could screw it down in the packing and pull it out.” On some occasions, however, “if the packing had been there a long time, ... it would be so brittle that the corkscrew wouldn’t pull it out, it would break up inside the gland and you would have to just dig it out with some type of pick, sharp object that you could gouge it out with. . . . [SJome of it was in really bad shape, it would crumble up, and you would have to take an air hose with a nozzle on it and just blow the particles out after you would get it broke [sic] up.” Wommack stated that these very fine particles, which he could see, would become airborne and that this happened throughout his years as a pipefitter. Wommack was sure that some of the old packing he removed was Crane’s because it was from valves he had previously packed. According to Wommack, he was also exposed to asbestos when he installed new packing. He stated that if the packing was not the correct length he would cut it with a hacksaw and “some fiber come off of it [sic]. . . like if you sawed a piece of lumber with it.”

In 1993, due to .concern that he may have developed an asbestos-related lung disease, Wommack went to see Dr. Richard Saleeby. Based on his examination and various tests and X-rays, Dr. Saleeby subsequently diagnosed Wommack as having asbestosis and asbestos-related pleural changes. Dr. Saleeby further concluded that these conditions resulted from Wommack’s exposure to asbestos in his work. Dr. Saleeby’s diagnosis was confirmed at trial by testimony from two other physicians and two pathologists who examined Wommack’s medical records and samples of Wommack’s lung tissue.

(a) Wommack met his burden of proving that Crane knew or should have known of hazards associated with the asbestos contained in its packing when the packing was used in a foreseeable manner. See Bagley v. CSX Transp., 219 Ga. App. 544, 545 (1) (465 SE2d 706) (1995); Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 335-336 (2) (319 SE2d 470) (1984); Talley v. City Tank Corp., 158 Ga. App. 130, 137 (3) (279 SE2d 264) (1981).

The evidence showed that reports concerning dangers associated with the industrial use of asbestos were published in the United States in the 1930s. By 1964, as many as 1,000 studies were published concerning asbestos and asbestos-related diseases. According to one expert, publications concerning the hazards of asbestos were disseminated to asbestos-related, industries, were published in book form, and were available to read. The expert stated his opinion that the hazards of asbestos would have been “known to all industries working with asbestos” and that these industries and “[a]nybody who could read the word asbestos” should have known in 1938 about the hazards of asbestos.

From the foregoing evidence, the jury was authorized to find that, prior to the time of Wommack’s exposure, there was substantial information available to Crane which would have informed it of the hazards associated with asbestos exposure. See generally Wells v. Ortho Pharmaceutical Corp., 788 F2d 741, 745-746 (11th Cir. 1986). See also Bishop v. Farhat, 227 Ga. App. 201 (489 SE2d 323) (1997).

Furthermore, although the asbestos contained in the packing may not have become airborne if the packing remained unaltered in any manner, viewed in a light to support the verdict, the evidence showed that Wommack’s use of the packing was foreseeable. Wommack used the packing to seal pipe joints, which was the intended purpose, and his exposure to the asbestos dust resulted from merely cutting the packing to the appropriate size to fit a joint and in removing old packing from previously sealed joints. The jury was authorized to find that such cutting and removal were foreseeable in utilizing the packing for its intended purpose. Because there was evidence supporting the jury’s verdict, the trial court did not err in denying Crane’s motions for directed verdict and new trial on this ground. See id.; Hotle, supra. Compare Gideon v. Johns-Manville Sales Corp., 761 F2d 1129, 1144-1145 (5th Cir. 1985) (no evidence that encapsulated asbestos was released during plaintiff’s use of defendant’s product and evidence of asbestos released from other products insufficient to impute knowledge).

(b) In addition, because the evidence showed that Crane should have known about the hazards resulting from Wommack’s use of the packing, the trial court correctly ruled that Crane had a duty to warn Wommack of those hazards. See Wells, supra at 745.

(c) There was evidence that Crane’s asbestos packing released respirable asbestos fibers. It was undisputed at trial that Crane’s asbestos packing contained between 35 and 55 percent asbestos. It was further undisputed that when Wommack removed the old asbestos packing, it created visible dust and that when he cut the packing, he noticed fibers “like if you sawed a piece of lumber. . . .” One of Wommack’s experts testified that although individual asbestos fibers are not visible to the naked eye, they become visible when much greater concentrations are clustered together. He stated that when dust is created from an asbestos-containing product “the actual number of fibers likely to be present in the air where you see the dust would be in the billion [particles per cubic foot] range.” Accordingly, contrary to Crane’s assertion, there was evidence showing its packing released respirable asbestos fibers, and the trial court did not err in denying Crane’s motions for directed verdict and new trial on this ground. See Hotle, supra.

(d) There was also evidence showing that Crane’s packing caused Wommack’s injuries. Viewed in a light most favorable to support the verdict, we find that the foregoing evidence showed that during the approximately 15 years Wommack used Crane’s asbestos packing, he became exposed to a substantial amount of respirable asbestos fibers. Expert testimony showed that it is universally agreed that asbestos fibers are intrinsically dangerous and that the respiration of each fiber is cumulatively harmful, and physicians and other experts attributed Wommack’s asbestos-related diseases to his work. This constituted sufficient evidence for a jury to find that Wommack’s injuries were caused by his exposure to asbestos contained in Crane’s packing. See Blackston v. Shook & Fletcher Insulation Co., 764 F2d 1480, 1482-1483 (11th Cir. 1985).

3. Crane asserts that the trial court erred in allowing Wommack to give his opinion concerning whether he installed or removed any of Crane’s packing because his testimony was based on speculation. We disagree.

In response to the question, “did you remove any John Crane packing[,]” Wommack stated “I feel sure that I did.” Wommack explained that he was sure because he had previously packed the same valves. Other testimony showed that when Wommack packed the valves, he knew he was using Crane’s packing because Crane’s name was on the packaging.

“A witness may testify to facts about which he has personal knowledge.” Aman v. State, 223 Ga. App. 309, 310 (1) (477 SE2d 431) (1996). Wommack’s response in this instance was based on facts within his personal knowledge and merely showed that he was sure he removed Crane’s packing and why he was sure of this fact. It would be elevating form over substance to call his response an opinion. See generally Jobson v. Dooley, 164 Ga. App. 440, 442 (296 SE2d 388) (1982). Accordingly, we find no error.

4. The trial court did not err in denying Crane’s request to present the jury with special interrogatories. The decision of whether to present a special verdict form under OCGA § 9-11-49 (a) is within the discretion of the trial court, and the trial court’s decision will not be reversed absent an abuse of that discretion. Pressley v. Jennings, 227 Ga. 366, 376 (20) (180 SE2d 896) (1971). Inasmuch as Crane has failed to cite any facts showing the court abused its discretion, we find no error.

5. Finally, Crane asserts that the trial court erred in allowing the deposition of Dr. Yasunosoke Suzuki to be read into evidence because the trial court did not find, pursuant to OCGA § 9-11-32 (a) (3), that the witness was unavailable to testify.

The transcript shows that immediately prior to adjourning for the day, Wommack’s counsel informed the court that it would be introducing the deposition testimony the following day. The transcript next indicates that there was a discussion off the record. Upon resuming the proceedings the following day, the trial judge stated that the previous afternoon he had asked counsel for both parties to “get together and resolve any matters that could not be resolved [concerning the deposition], and [he would] address those that could not be resolved.” The transcript shows that the only unresolved issue, and the only objection then raised by Crane, concerned certain photographs being admitted with the deposition.

Under these circumstances, we are unable to determine (1) whether the trial court resolved the matter off the record in the unrecorded discussion, (2) whether Crane objected at trial on the ground asserted here, and (3) whether admission of the deposition caused any harm. Accordingly, because Crane failed to show by the record that the trial court erred and that it preserved any such error for appeal, we must presume that the trial court did not err. See Stolle v. State Farm &c. Ins. Co., 206 Ga. App. 235, 236 (2) (424 SE2d 807) (1992); Hoover v. State, 198 Ga. App. 481, 482 (3) (402 SE2d 92) (1991).

Decided June 27, 1997

Reconsideration denied July 24, 1997

Hawkins & Parnell, Dennis J. Manganiello, for appellant.

Lane & Gossett, C. Darrell Gossett, for appellee.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A0735.
    FRANK et al. v. FLEET FINANCE, INC. OF GEORGIA.
    (489 SE2d 523)
   Ruffin, Judge.

Fleet Finance, Inc. of Georgia (“Fleet Finance”) filed a dispossessory action in magistrate court, alleging that John and Connie Frank are tenants at sufferance on property it owns in Henry County, Georgia (“the property”). The magistrate court issued a Writ of Possession to Fleet Finance, and the Franks appealed to the superior court. During the appeal, the Franks amended their answer to assert a counterclaim for specific performance of a residential real estate sales contract. Both parties moved for summary judgment. After a hearing, the trial court granted summary judgment to Fleet Finance and denied the Franks’ motion. The Franks now appeal, and for reasons which follow, we affirm in part and reverse in part.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The record shows that in January 1988, the Franks purchased the property with financing from Griffin Federal Savings Bank. On October 26, 1990, the Franks obtained a second mortgage on the property from Mortgage Lenders, Inc., which transferred and assigned its promissory note and deed to secure debt on the property to Fleet Finance five days later. Griffin Federal Savings Bank subsequently foreclosed, and Fleet Finance purchased the property at the foreclosure sale held on January 5, 1993.

John Frank testified that after the foreclosure sale, Ron Hodges from Fleet Finance contacted him “to give [him] a way that [he] could keep [his] house.” According to Mr. Frank, Hodges suggested that they “go into a contract where [Mr. Frank would] put down five percent and that [Fleet Finance] would then finance it for thirty years with a ten year balloon at a ten or ten and a half percent rate, something in that range. [Hodges] said all [Mr. Frank] had to do was just come up with the five percent.”

On May 7, 1993, the Franks entered into a purchase and sale contract with Fleet Finance. Pursuant to that contract, Fleet Finance agreed to sell the property to the Franks under the following terms: “The purchase price of [the property] shall be: One hundred ninety two thousand DOLLARS ($192,000.00) to be paid as follows: $10,000 down and Fleet to hold a 1st [mortgage] for remainder at 10.5% for 30 [years] with a balloon on the 120th payment.” The contract further provided that “[t]he date of closing shall be on or before 5/31/93 unless both parties agree in writing to extend the time of closing. Time is of the essence.” The record shows that the sale did not close on May 31, 1993, as planned. According to Mr. Frank, he and Hodges agreed to extend the closing date and Hodges told him it was “ ‘not necessary to change the date on the contract.’ ”

Fleet Finánce presented evidence that on or about June 6, 1993, it prepared and submitted a loan application for the Franks, which it rejected two days later. The Franks, however, deny that they filled out a loan application and contend that when they signed the purchase contract, Hodges stated that they did not need further approval for a loan with Fleet Finance. We note that the loan application appearing in the record is not signed by the Franks.

Mr. Frank testified that after the sale failed to close on May 31, 1993, he wrote numerous letters to Fleet Finance in an effort to obtain another closing date, but received no response. In October 1993, Mr. Frank delivered a cashier’s check for $10,00.0 to the Fleet Finance offices. As described by Mr. Frank, he “was ready to close and [he] wanted to make sure everything was going to be fine to close. [He] gave that money to speed up the process.” Fleet Finance placed the money in an escrow account.

In March 1994, Fleet Finance sent a $10,000 check drawn from its own account to the Franks via certified mail. The Franks never claimed the check from the post office, which returned the funds to Fleet Finance. While meeting with Mr. Frank in March 1995, a Fleet Finance representative again attempted to return the money. Mr. Frank took the $10,000 check from the representative and gave it to his attorney, who sent it to Fleet Finance’s attorney.

According to the Franks, Fleet Finance ultimately informed them that it would not honor the sale contract and that they needed to obtain approved financing from another source to purchase the property. One individual who worked with the Franks at Fleet Finance testified that the contract was not valid for two reasons: “One, because the contract has expired as of May 31st, 1993, and number 2, because Mr. Frank was denied his loan with Fleet Finance.”

Ruling on the parties’ motions for summary judgment, the trial court determined that “[t]he contract for sale ended on May 31, 1993, when both [Fleet Finance] and [the Franks] could not close. This Court reluctantly finds that no title passed at the signing of the contract and [the Franks] have maintained the position of tenant since the expiration of the contract.” The trial court further denied the Franks’ claim for specific performance of the contract and granted Fleet Finance a Writ of Possession.

1. In their first two enumerations of error, the Franks argue that the trial court erred in granting Fleet Finance’s motion for summary judgment. In particular, the Franks contend that the trial court improperly found that (1) the sales contract terminated on May 31, 1993; (2) the Franks failed to meet the conditions for closing under the contract; and (3) the Franks were tenants on the property.

(a) We agree that the trial court erred in granting summary judgment to Fleet Finance on the contract termination issue. The trial court determined, and Fleet Finance argues, that the contract terminated as a matter of law on May 31, 1993, when the parties failed to close or extend the specified closing date in writing. We find, however, that a fact question remains as to whether the parties waived the closing deadline.

As noted above, the sale contract provided that “[t]he date of closing shall be on or before 5/31/93 unless both parties agree in writing to extend the time of closing. Time is of the essence.” This provision, including the “time is of the essence” clause, may be waived, and conduct before or after the closing date may show waiver. McCullough v. McCullough, 263 Ga. 794, 795 (1) (439 SE2d 486) (1994); Edwards v. McTyre, 246 Ga. 302, 303 (3) (271 SE2d 205) (1980). “It has been held by [our Supreme Court] many times that if time is of the essence of a contract, it may be waived; and that subsequent conduct of the obligor may have that effect. [Cits.]” Bolton v. Barber, 233 Ga. 646, 648 (2) (212 SE2d 766) (1975). Thus, “[w]hile the contract in the present case provided that no modification of [the closing deadline] could be made except by written agreement,. . . this would not prevent a subsequent waiver of the time of performance by the conduct of the sellers.” Id.

The evidence in the record raises a question of material fact regarding waiver. According to Mr. Frank, Hodges stated that they were not bound by the May 31, 1993 closing date and that it was “not necessary to change the date on the contract.” The record further shows that Fleet Finance prepared, processed, and denied a loan application for the Franks in June 1993, raising an inference that Fleet Finance did not view the contract as void after May 31,1993. In addition, Fleet Finance accepted and deposited Mr. Frank’s $10,000 check in October 1993, well after the closing date.

“A seller should not, after the time for closing a sale, act in such a manner as to lead the buyer to believe that the time for closing will not be insisted upon.” Bolton, supra. We find that a question of fact remains as to whether the parties waived the time restriction for closing the sale. Accordingly, the trial court erred in finding that, as a matter of law, “[t]he contract for sale ended on May 31, 1993, when both [Fleet Finance] and [the Franks] could not close.”

(b) The trial court also erred to the extent it granted Fleet Finance summary judgment based on the Franks’ failure (1) to tender $192,000 in cash as a prerequisite for closing, or (2) to obtain financing approval for the purchase money loan.

Both parties concede on appeal that the contract is “plain and unambiguous.” Given this stipulation, we will not address this issue further and will abide by the following principles. “Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Such a contract is the only evidence of what the parties intended and understood by it.” (Citations and punctuation omitted.) Paige v. Jurgensen, 204 Ga. App. 524, 525 (1) (419 SE2d 722) (1992). “[P]arol evidence [is not] admissible to contradict or construe an unambiguous contract. [Cit.]” Petroziello v. U S. Leasing Corp. &c., 176 Ga. App. 858, 861 (338 SE2d 63) (1985).

In a subsection entitled “PURCHASE PRICE AND METHOD OF PAYMENT,” the parties agreed that “[t]he purchase price of [the property] shall be: One hundred ninety two thousand DOLLARS ($192,000.00) to be paid as follows: $10,000 down and Fleet to hold a 1st [mortgage] for remainder at 10.5% for 30 [years] with a balloon on the 120th payment.” Professing to draw this Court’s attention to “the actual terms and language utilized by the parties to [the] sale contract,” (emphasis in original), Fleet Finance argues on appeal that “[b]ased upon the clear and unambiguous terms of the Sale Contract, the Franks were required to tender at closing $192,000.00 to Fleet Finance, said sum representing the purchase price of the property.” Fleet Finance further contends that, pursuant to the contract, the Franks were required to obtain an approved mortgage loan to finance the purchase price, but failed to do so.

Even a cursory reading of the contract, however, completely undermines Fleet Finance’s arguments. The contract does not, in any way, require the Franks to present Fleet Finance with $192,000 in cash on the day of closing. Rather, the contract clearly anticipates a $10,000 downpayment, with the balance to be financed by Fleet Finance as a first mortgage pursuant to the stated terms. Similarly, the clear and unambiguous terms of the contract do not require the Franks to obtain approved financing before the closing. The contract itself obligates Fleet Finance to issue a first mortgage to the Franks, again, pursuant to the stated terms. Further loan qualification or approval is not contemplated by the contract terms.

Fleet Finance’s effort to alter the contract terms with citation to testimony about what it actually intended fails. Fleet Finance cannot argue that the contract terms are “plain and unambiguous” on the one hand, but urge this Court to consider parol evidence on the other. Accordingly, to the extent the trial court granted Fleet Finance summary judgment based upon the Franks’ failure to tender $192,000 prior to closing or to obtain approved financing, it erred. The contract does not impose such requirements.

(c) The Franks also argue that the trial court erroneously found them to be tenants on the property. According to the Franks, they are “contract vendees or purchasers of real property[,]” rather than tenants, and thus not subject to the summary dispossession procedure authorized by OCGA § 44-7-50 et seq. We agree with the trial court that, at this point, the Franks are tenants.

“As former owners remaining in possession after a foreclosure sale, [the Franks] were tenants at sufferance subject to being dispossessed. [Cit.]” Cloud v. Ga. Central Credit Union, 214 Ga. App. 594, 598 (8) (448 SE2d 913) (1994). That the Franks ultimately entered into a sale contract with Fleet Finance does not alter their status. Despite the contract, the Franks have not yet become owners and thus remain tenants. Hallisy v. Snyder, 219 Ga. App. 128 (1) (464 SE2d 219) (1995); see also OCGA § 44-7-1 (a) (“[t]he relationship of landlord and tenant is created when the owner of real estate grants to another person, who accepts such grant, the right simply to possess and enjoy the use of such real estate either for a fixed time or at the will of the grantor”).

Indisputably at this point, the Franks must be characterized as tenants. We note, however, that if the contract is enforced on remand, the Franks are entitled to possession as owners, and Fleet Finance’s dispossessory action must fail. On the other hand, if the factfinder concludes that the contract terminated, Fleet Finance may seek possession. The validity of the contract, therefore, remains the central issue.

2. In their final enumeration of error, the Franks argue that the trial court erred in denying them partial summary judgment on the following issues: “the validity and .enforceability of the Sale Contract, the Franks’ entitlement to specific performance of the Sale Contract as sought by Count One of their counterclaim, and the right of possession of the Premises as sought by Fleet Finance.”

As found in Division 1 (a), a fact question remains as to whether the parties waived the May 31, 1993 closing deadline incorporated in the contract. The Franks argue that by accepting their $10,000 cashier’s check, Fleet Finance clearly waived any breach of the contract’s closing terms. The record raises at least a question of fact, however, as to whether Fleet Finance accepted the $10,000 as the required downpayment on the house, or simply followed its customary practice of depositing checks from prospective purchasers into an account so that the funds would not be lost, stolen, or misplaced.

Decided June 19, 1997

Reconsideration denied July 24, 1997

Parker & Day, James A. Parker, Vallerina F. Day, for appellants.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, John G. Aldridge, Jr., Daniel D. Phelan, for appellee.

We find that questions of material fact exist as to whether the contract survived the May 31, 1993 closing deadline. Accordingly, the trial court properly denied the Franks’ motion for partial summary judgment.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A0785.
    CRAWFORD v. JOHNSON.
    (489 SE2d 552)
   Ruffin, Judge.

Donald Crawford appeals from the trial court’s grant of summary judgment to William Johnson on Crawford’s cross-claim for contribution and indemnity. For reasons which follow, we affirm in part and reverse in part.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The record shows that Presbyterian Home, Inc. (“Presbyterian”) sued Crawford and Johnson to recover funds allegedly owed Presbyterian as a residuary legatee of Roberta Jane Gibson’s estate. Presbyterian alleged that Crawford, as executor of Gibson’s estate, and Johnson, as Crawford’s attorney, depleted the estate through negligence, fraud, conversion, and improper conduct. Crawford answered and cross-claimed against Johnson for contribution and indemnity.

Prior to trial, Presbyterian settled its claims against Johnson, who was dismissed from the suit. In addition, the trial court severed Crawford’s cross-claim from the main action. The jury found against Crawford and awarded Presbyterian $80,000 in direct and consequential damages and $10,000 in punitive damages. We subsequently affirmed the judgment against Crawford. Crawford v. Presbyterian Home, 216 Ga. App. 54 (453 SE2d 480) (1994). Crawford’s cross-claim against Johnson, however, remained pending.

Following the trial in the main action, Crawford amended and restated his cross-claim to allege that Johnson engaged in “fraud, simple negligence, and improper conduct.” Crawford further alleged that “[a]t all times relevant herein, Johnson acted as attorney and advisor for Crawford, individually and in Crawford’s capacity as [executor].” Seeking costs of the main action plus interest, Crawford claimed that “Johnson’s acts of fraud, and/or simple negligence, and/ or conversion, and/or improper conduct in connection with the handling of [Gibson’s estate] have resulted in damage, harm and loss to Crawford in these amounts.”

Johnson moved for summary judgment, arguing that Crawford’s cross-claim must fail because (1) his own intentional and fraudulent acts cannot support recovery for contribution and indemnity, and (2) he neglected to attach an expert affidavit'to his cross-claim pursuant to OCGA § 9-11-9.1. The trial court agreed and granted Johnson’s motion for summary judgment. Crawford now appeals from the trial court’s order.

1. Crawford argues that the trial court erred in finding, as a matter of law, that he has no right of contribution or indemnity because his liability to Presbyterian stemmed from his own intentional conduct. We agree.

Generally, a tortfeasor who pays a judgment enjoys a right of contribution against other joint tortfeasors. OCGA § 51-12-32 (a). Even if Crawford and Johnson are found to be joint tortfeasors, however, Crawford may not seek contribution for liability arising from his own acts of moral turpitude. Id. Both actual fraud and wilful conversion involve moral turpitude, which has been defined as “ ‘everything done contrary to justice, honesty, modesty, or good morals.’ ” (Citation omitted.) Huff v. Anderson; 212 Ga. 32, 34 (2) (90 SE2d 329) (1955). See also Ramey v. Leisure, Ltd., 205 Ga. App. 128, 129 (1) (421 SE2d 555) (1992) (“ ‘Actual fraud involves moral turpitude[.]’ ”); Privitera v. Addison, 190 Ga. App. 102, 105-106 (2) (378 SE2d 312) (1989) (describing conversion and wilful diversion of funds as acts of moral turpitude).

Similarly, Crawford’s intentional acts cannot support his indemnification claim. Indemnification contemplates imputed liability arising from the torts of another. “A person who is compelled to pay damages because of liability imputed to him as the result of a tort committed by another may maintain an action for indemnity against the person whose wrong has thus been imputed to him. [Cits.]” North Ga. Elec. Membership Corp. v. Thomason &c. Constr. Co., 157 Ga. App. 719, 720 (1) (278 SE2d 433) (1981).

Thus, to the extent Crawford’s liability to Presbyterian was grounded in actual fraud, conversion, or other acts of moral turpitude, he has no claim for contribution or indemnity. The record shows, however, that the jury was not charged solely on such intentional acts. For example, the trial court also instructed on constructive fraud and ordinary care. The trial court further told the jury that Presbyterian’s contentions against Crawford included claims of negligence.

The jury returned a general verdict of liability, along with a punitive damages award. Johnson argues that the punitive damages award “demonstrates unequivocally that Crawford’s conduct involved moral turpitude.” Pretermitting whether the punitive award establishes that at least some portion of Crawford’s liability arose from intentional acts not supporting contribution or indemnity, however, we cannot agree that his claim fails as a matter of law. The jury’s general verdict does not specify the basis for its compensatory award. Thus, it is impossible to determine from the verdict itself whether any part of that award relates to claims, such as negligence, that may give rise to contribution and indemnity.

“A general verdict must be construed in light of the pleadings, the issues made by the evidence and the charge of the court.” Hickman Datsun v. Foster, 181 Ga. App. 229, 230 (2) (351 SE2d 678) (1986). The jury was charged on intentional torts involving moral turpitude, as well as negligence and constructive fraud, which involve no moral guilt. See Farmers State Bank v. Huguenin, 220 Ga. App. 657, 660 (1) (469 SE2d 34) (1996); Conner v. Branch, 185 Ga. App. 565, 566 (364 SE2d 890) (1988); Alford v. Oliver, 169 Ga. App. 865, 866 (2) (315 SE2d 299) (1984). We cannot determine from the general verdict the underlying basis for the jury’s award in this case.

Questions of fact remain as to (1) whether Crawford may seek contribution or indemnity for any portion of Presbyterian’s award, and (2) if so, what portion of that award is subject to a claim for contribution or indemnity. Accordingly, the trial court erred in granting Johnson summary judgment on Crawford’s overall claim for contribution and indemnity.

2. Even if Crawford can seek contribution and indemnity from Johnson, however, not all of the allegations in his cross-claim present viable bases for recovery. Thus, we next consider which grounds alleged by Crawford survive summary judgment.

(a) To the extent Crawford’s contribution and indemnity claim alleges negligence by Johnson, the trial court properly dismissed the claim for failure to comply with OCGA § 9-11-9.1.

OCGA § 9-11-9.1 (a) provides that “[i]n any action for damages alleging professional malpractice . . . , the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” Failure to attach the required affidavit subjects a malpractice claim to dismissal on the merits. Hodo v. Gen. Hosp. of Humana, 211 Ga. App. 6, 8 (2) (438 SE2d 378) (1993). Crawford did not attach an expert affidavit to his cross-claim against Johnson. He contends, however, that his cross-claim alleges simple negligence by Johnson, rather than professional malpractice, and thus is not subject to OCGA § 9-11-9.1. We disagree.

As an initial matter, Crawford argues that non-compliance with OCGA § 9-11-9.1 should be raised in a motion to dismiss, not in a motion for summary judgment, as Johnson did here. He is correct “ ‘that a failure to comply with the pleading requirements of OCGA § 9-11-9.1 would not authorize the grant of summary judgment. [Cit.] However, we will address the merits of this [portion of the] appeal as if the trial court had dismissed [Crawford’s cross-claim] rather than granted summary judgment in [Johnson’s] favor.’ [Cit.]” (Emphasis in original.) Hodo, supra.

In his amended cross-claim, Crawford alleged that he “relied on Johnson and Johnson’s [employee] to guide and direct him in his duties, responsibilities, and obligations as [executor], ... At all times relevant herein, Johnson acted as attorney and advisor for Crawford in this regard.” Crawford further alleged that Johnson negligently advised him on legal and other fees paid by the estate; negligently failed to inform Presbyterian regarding its beneficiary interest in the estate; negligently depleted the estate’s assets; and negligently handled fees incurred by the estate.

“The determinative factor as to whether a suit in negligence is or is not a malpractice action within the ambit of OCGA § 9-11-9.1 is the existence or absence of allegations that the defendant-professional has rendered negligent professional services.” Jordan, Jones & Goulding, Inc. v. Wilson, 197 Ga. App. 354, 355-356 (1) (398 SE2d 385) (1990). “Where the failure to do a thing, or the negligent doing of it, is proved by reliance upon a general standard of care or by rules of procedure used by others competently performing the same service, it is a ‘professional’, act or practice. [Cit.] Wherever it is ‘necessary to establish the parameters of acceptable professional conduct’ ([cit.]) in order to prove negligence or breach for failure to perform in a workmanlike manner, the case must be deemed a professional malpractice case.” (Emphasis in original.) Razete v. Preferred Research, 197 Ga. App. 69, 70 (397 SE2d 489) (1990).

Despite Crawford’s claim that he intended only to allege simple negligence, he prefaced his negligence contentions by stating that “[a]t all times relevant herein, Johnson acted as attorney and advisor for Crawford, individually and in Crawford’s capacity as [executor].” Crawford’s cross-claim clearly alleges negligence by Johnson in his capacity as attorney and advisor. The cross-claim does not allege that Johnson committed a mere clerical error or mistake involving no professional judgment. Compare Creel v. Cotton States Mut. Ins. Co., 260 Ga. 499, 500 (397 SE2d 294) (1990) (allegation that defendant negligently transmitted information to claimant involved claim of simple negligence, rather than malpractice); Razete, supra at 70 (“The omission of the last page [of a title examination report] showing the liens [on property] was a simple act of negligence and not an act of malpractice.”).

In this suit, Crawford claims that Johnson, as his attorney, negligently handled and advised him about Gibson’s estate. “The [cross-claim] is based upon acts and omissions by [Johnson], in [his] capacity as [Crawford’s] legal representative, in a legal proceeding. Recognizing that professional malpractice exists only where the act or omission by a professional requires the exercise of expert professional judgment, we find that the various acts and omissions averred in the [cross-claim] attempting to establish negligence on the part of [Johnson] each involves a situation requiring the exercise of legal judgment.” (Citations and punctuation omitted.) Richmond Leasing Co. v. Cooper, Cooper, Maioriello &c., 207 Ga. App. 623 (1) (428 SE2d 603) (1993). Accordingly, to the extent Crawford alleges that Johnson acted negligently, the trial court properly dismissed the claim for failure to comply with OCGA § 9-11-9.1.

(b) We note, however, that “the affidavit requirements of OCGA § 9-11-9.1 are limited to those claims Tor professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.’ [Cit.]” (Emphasis in original.) Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507, 508 (451 SE2d 66) (1994). Thus, to the extent Crawford’s contribution and indemnity claim alleges fraud, conversion, or other conduct not involving Johnson’s negligence, it survives summary judgment.

(c) Crawford’s final basis for contribution and indemnity against Johnson involves the theory of respondeat superior. In his cross-claim, Crawford alleged that one of Johnson’s employees “fraudulently, negligently, and by improper conduct, used her position to wrongfully convert to her own use . . . funds of the Estate . . . entrusted to her by Crawford . . . and Johnson is responsible for [the employee’s] fraud, negligence, conversion, and misconduct under the legal theory of respondeat superior”

“The rule of ‘respondeat superior,’ or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of the servant’s act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant’s employment.” (Citations and punctuation omitted.) Johnson Realty v. Hand, 189 Ga. App. 706, 713-714 (14) (377 SE2d 176) (1988).

On appeal, Johnson only argues that Crawford’s respondeat superior claim fails because Johnson and his employee are not technically “joint tortfeasors” and thus are not subject to contribution. An employee and employer liable for the employee’s actions through respondeat superior generally are not viewed as joint tortfeasors. See St. Paul Fire &c. Ins. Co. v. MAG Mut. Ins. Co., 209 Ga. App. 184, 185 (433 SE2d 112) (1993). Thus, the employee has no right of contribution against the employer. Id. Johnson and his employee, however, do not seek contribution amongst themselves. Rather, Crawford seeks contribution and indemnity from Johnson based upon the employee’s actions. Crawford’s claim is not precluded simply because Johnson’s alleged liability may be imputed through respondeat superior. See Williams Bros. Lumber Co. v. Anderson, 210 Ga. 198, 204 (2) (78 SE2d 612) (1953) (allowing contribution against partnership for negligence of partnership’s servant).

Johnson has presented no other basis for summary judgment on Crawford’s respondeat superior allegation. Accordingly, the trial court erred to the extent it granted Johnson summary judgment on this portion of Crawford’s claim.

3. In his final enumeration of error, Crawford argues that the trial court erred in denying his motion to (1) create a transcript of two pretrial conferences pursuant to OCGA § 5-6-41 and (2) add the transcript to the appellate record. Specifically, Crawford asked the trial court to order a transcript made of discussions held in the main action regarding the applicable punitive damages statute. According to Crawford, the transcript would show that the trial court employed the old punitive damages statute at the trial of the main action, rather than OCGA § 51-12-5.1. The trial court denied Crawford’s request.

We find that the additional transcript sought by Crawford is unnecessary. The transcript of the charge conference held during the main trial clearly establishes that, as Crawford contends, the trial court utilized the old punitive damages standard embodied in OCGA § 51-12-5. “[T]his issue can be resolved by looking to the remaining portions of the transcript. Therefore, it can not be said that anything material to [Crawford] has been omitted from the record on appeal.” (Footnote omitted.) Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779) (1980). Accordingly, the trial court did not err in denying Crawford’s motion to create a transcript pursuant to OCGA § 5-6-41.

Decided July 11, 1997

Reconsideration denied July 24, 1997

Van C. Wilks, for appellant.

Hawkins & Parnell, H. Lane Young II, Thomas F. Wamsley, Jr., Thomas G. Tidwell, for appellee.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Eldridge, J., concur.

       On appeal, Crawford contends that res judicata bars Johnson from arguing that this case involves professional malpractice. According to Crawford, the trial court rejected the professional malpractice argument when it denied Johnson’s original motion for summary-judgment against Presbyterian, a ruling Johnson never appealed. The trial court’s ruling on that motion, however, makes no findings regarding the underlying basis of Presbyterian’s negligence claims against Johnson, much less Crawford’s cross-claim for negligence. We find no evidence that res judicata bars Johnson’s argument.


author: Blackburn, Judge.

text:
    A97A0853.
    HILLCREST FOODS, INC. v. KIRITSY.
    (489 SE2d 547)
   Blackburn, Judge.

By interlocutory appeal, Hillcrest Foods, Inc. d/b/a Waffle House (Hillcrest) contests the denial of its motion for summary judgment as to premises liability and punitive damages in Matthew Kiritsy’s action for personal injury damages. This case arises out of a drive-by shooting at a Waffle House where Kiritsy was a patron. The trial court granted Hillcrest’s motion for summary judgment on Kiritsy’s claim for negligent retention of its employee Letitia Johnson, the intended victim, who was the wife of the shooter, Nathaniel Johnson. The trial court did not rule on Hillcrest’s motion for summary judgment as to punitive damages, which is therefore deemed denied. See Kim v. Tex Financial Corp., 223 Ga. App. 528, 529 (2) (479 SE2d 375) (1996).

The standard of review of the denial of a defendant’s motion for summary judgment is a de novo review of the evidence of record with all reasonable inferences therefrom viewed in the light most favorable to the nonmoving party. The purpose of the review is to determine whether there remains a question for jury determination as to at least one material fact upon which plaintiff’s case rests. If defendant points out the failure of plaintiff to establish any single element essential to the claimed cause of action, then defendant is entitled to summary judgment as to such claim.

“A defendant may [establish entitlement to summary judgment] by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” (Citation omitted; emphasis in original and supplied.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see Artlip v. Queler, 220 Ga. App. 775, 776-777 (470 SE2d 260) (1996).

It is undisputed that while Kiritsy was a patron at the Waffle House on West Broad Street in Athens at approximately 1:00 a.m. on September 16, 1994, three or four shots were fired from a gun in a vehicle traveling on West Broad Street. Kiritsy was struck by two bullets and is paralyzed from the waist down. Although no arrests have been made, a witness to the shooting, who had been a passenger in the vehicle from which the shots were fired, testified in his deposition that Nathaniel Johnson fired the shots in an attempt to kill his wife, Letitia Johnson, a waitress at the Waffle House.

1. Hillcrest maintains that the trial court erred in failing to grant its motion for summary judgment with regard to Kiritsy’s claims for damages based upon premises liability. Hillcrest contends that: there is no causal relationship between its conduct and the criminal act of a drive-by shooting; there is no evidence of prior, substantially similar crimes on its property or the approaches thereto and therefore the shooting was not foreseeable; and that there was no reasonable action which it could have taken which would have prevented the incident in any event.

Hillcrest filed its motion for summary judgment on all counts and outlined the record upon which it relied. The trial court granted summary judgment to Hillcrest on plaintiff’s claim that Hillcrest was liable for his injuries based upon its negligent retention of Letitia Johnson. Kiritsky contends that Hillcrest negligently retained Johnson after it became aware of prior disputes between Johnson and her husband.

In its order, the trial court found that “plaintiff alleges that the direct cause of his injuries was the intervening criminal act of a third party, Nathaniel Johnson” and that “it violates public policy and is patently absurd to suggest that, because Letitia Johnson was a victim of domestic violence, she should have been terminated.” The trial court held that a question of fact regarding foreseeability remained as to the premises liability claim in that prior similar criminal acts are not the only way of proving foreseeability, relying on Doe v. Prudential-Bache/A. G. Spanos Realty &c., 222 Ga. App. 169 (474 SE2d 31) (1996) and Wallace v. Boys Club of Albany &c., 211 Ga. App. 534 (439 SE2d 746) (1993).

The trial court stated in its denial order that “[t]he shooting of the Plaintiff was a crime against the person. Plaintiff presented evidence of prior crimes against persons committed on the premises as follows: 1) December 8, 1991, Tamra White was punched in the face; 2) July 21, 1992, an employee of the Waffle House was the victim of an aggravated assault and attempted rape; 3) July 20, 1993, an unidentified person attempted to run over John Batch with an automobile; 4) January 1, 1994, an unidentified male robbed a patron at gunpoint on the premises; 5) February 6, 1994, Keith Hodapp was attacked on Defendant’s premises by Trey Ford and struck with fists; 6) March 20, 1994, a fight broke out at the Waffle House wherein the victim was punched in • the face resulting in the offender being charged with simple battery, impersonating a law enforcement officer and giving false information. There was also evidence from employee Sarah Collins that fist fights and arguments on the premises were quite common.” For purposes of summary judgment analysis, we accept all these findings as true, such view being most favorable to the nonmovant.

In order for plaintiff to establish the negligent tort claim, it must show that Hillcrest violated its duty to plaintiff, and that such violation was the proximate cause of plaintiff’s injuries. See OCGA § 51-1-1. Hillcrest’s customers, having been induced to come onto its property by implied invitation, are invitees. The duty of a proprietor to an invitee is to “exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. “The proprietor is not the insurer of the invitee’s safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge.” (Citation omitted.) Lau’s Corp., supra at 492 (1).

In order to establish liability of a proprietor for the independent criminal acts of another which result in injury to one of its customers, it must generally be shown that the subject criminal act occurred on the premises or approaches of the proprietor’s property or on adjacent property over which the proprietor has exercised some degree of control, that the proprietor had reasonable notice of prior, similar criminal acts of such a nature that the proprietor was put on notice of the likelihood of the subject criminal act being committed, and that given such notice, the proprietor could reasonably have acted thereon to protect its customers. See OCGA § 51-3-1; Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785 (482 SE2d 339) (1997); Lau’s Corp., supra.

We first address the issue of whether Hillcrest’s duty under OCGA § 51-3-1 to protect its customers while on its premises or approaches extends to acts which are initiated from a public thoroughfare over which Hillcrest has no authority and has not otherwise exercised control. We have held that a proprietor “has a duty, when [it] can reasonably apprehend danger to a customer from the misconduct of other . . . persons on the premises, to exercise ordinary care to protect the customer from injury caused by such misconduct.” (Citation and punctuation omitted; emphasis supplied.) Adler’s Package Shop v. Parker, 190 Ga. App. 68, 69 (1) (a) (378 SE2d 323) (1989).

Although the premises owner has a duty to keep the premises and approaches safe, see OCGA § 51-3-1, “[i]f the approach is a public way, the occupier’s duty . . . is to exercise due care within the confines of his right in the public way.” (Punctuation omitted.) Reed v. Ed Taylor Constr. Co., 198 Ga. App. 595, 597 (402 SE2d 346) (1991).

No evidence has been introduced showing that Hillcrest used the public road in front of the Waffle House in any manner other than that consistent with the general motoring public. The premises owner’s duty to keep the approaches safe does not generally extend to the busy public thoroughfare on which the premises is located, where the owner has no legal right to control such thoroughfare. OCGA § 51-3-1 generally contemplates approaches over which the proprietor has a right of control. Hillcrest had no right to control the use of the public road adjacent to the Waffle House and thus no duty arose to it based upon its use or control thereof. See Rischack v. City of Perry, 223 Ga. App. 856 (479 SE2d 163) (1996).

The evidence indicates that several prior crimes against persons, as outlined above, had occurred on Hillcrest’s property during the three years prior to the drive-by shooting. None of the prior crimes involved a drive-by shooting, and there is nothing in the record to put Hillcrest on notice of the likelihood of a future drive-by shooting.

Kiritsy contends that Hillcrest should have anticipated Johnson’s criminal act because it had knowledge of an incident at the Waffle House in which Johnson had threatened to shoot a male employee who had been harassing Johnson’s wife. That incident occurred over five months prior to the drive-by shooting at issue. Johnson did not display a gun during that verbal incident, and the male employee was fired for harassment, thereby removing any further threat of such an incident occurring. While this might show Johnson’s violent verbal tendencies in defense of his wife, his threats to the male employee did not put Hillcrest on notice that Johnson might attempt to kill his wife, or that he was physically violent toward his wife or Hillcrest’s customers. Plaintiff contends that the tumultuous relationship between the Johnsons was known to Hill-crest. Even if this were so, there is nothing in such relationship which would have put defendant on notice of the likelihood of a drive-by shooting.

A drive-by shooting is a totally different crime from those in which all actions constituting the crime occur on the defendant’s property. In this drive-by shooting, the perpetrator was not even on the defendant’s property, but rather was traveling on a busy public thoroughfare. It is difficult to imagine what effective action Hillcrest could reasonably have taken which could have prevented a drive-by shooting even had there been a prior such event.

Georgia courts have not dealt previously with a proprietor’s duty in a drive-by shooting case; therefore, we look to other jurisdictions who have addressed this situation. In Thai v. Stang, 263 Cal. Rptr. 202, 206 (214 Cal.App.3d 1264) (1989), the California Court of Appeals determined that a drive-by shooting in a roller skating rink parking lot was an unforeseeable criminal attack by a third party. The court determined that despite evidence of prior crimes against persons on the owner’s property, “the random nature of drive-by shootings . . . makes them difficult to police against.” Id. at 207. The court questioned the property owner’s ability to have prevented the injuries sustained by the plaintiff under such circumstances, and it noted, “[wjhile we do not minimize the policy of preventing future harm, imposing a duty to protect against drive-by shootings would place an onerous burden on business owners. Moreover, when the burden of preventing future harm is great, a high degree of foreseeability is required.” Id.

The trial court’s reliance on Wilks v. Piggly Wiggly Southern, 207 Ga. App. 842 (429 SE2d 322) (1993) as authority for the proposition that the law does not require that the criminal act occur on the premises or approaches of the proprietor’s premise in order to establish foreseeability is misplaced. In Wilks, the victim was mugged around the corner from the defendant’s property. Id. We reversed the trial court’s grant of the property owner’s motion for summary judgment, however, because the property owner had allowed the attackers to loiter on his premises waiting for victims. Id. at 844. Wilks is factually distinguishable from the present case and does not require a different result.

The trial court’s reliance on Doe (a case involving a rape which occurred in a parking garage where the court acknowledged that if the defendant admitted the existence of a dangerous condition, foreseeability may be established even in the absence of a prior substantially similar criminal act) and on Wallace (a case involving the failure to properly supervise a child who was injured after wandering off from the premises of the defendant) is also misplaced as the cases are factually distinguishable. There has been no admission by Hillcrest in the instant case and the criminal conduct was not initiated on its property. Therefore, Doe is inapplicable to the present analysis. Wallace was not a true premises liability case, as it involved a failure to supervise a child, and has no application to the present case.

Without foreseeability that a criminal act will occur, no duty on the part of the proprietor to exercise ordinary care to prevent that act arises. Our Supreme Court has reaffirmed the requirement of substantially similar criminal acts to establish the foreseeability of the proprietor in Sturbridge Partners, Ltd. v. Walker, supra. There, the Supreme Court affirmed this Court’s holding that notice of prior burglaries of vacant apartments was sufficient to make foreseeable to the landlord the potential for violence in the event of the burglary of an occupied unit. Off-premises conduct or injury was not involved in Walker, and it does not change the general law in such cases.

Under the facts of this case, the plaintiff has failed to establish that the drive-by shooting was foreseeable by the defendant. While there may bé situations in which off-premises criminal conduct will not preclude a proprietor’s liability, any such case would necessarily involve a higher degree of foreseeability, not here present, than would those cases involving on-premises conduct. Although a premises owner must exercise ordinary care to protect its customers from the unreasonable risks of which the proprietor is aware, the owner is not the insurer of its customers’ safety. See Lau’s Corp., supra. The law must be applied uniformly to the parties even where egregious injuries have occurred. Hillcrest did not ensure Kiritsy’s safety, and under the facts herein involved, it cannot be responsible for Kiritsy’s injuries because the drive-by shooting was not a foreseeable act. It was an act of terrorism that could have occurred anywhere that the intended victim happened to be. Hillcrest had no basis to foresee such event, and there was no effective action which it could reasonably have taken to prevent said act under the circumstances of this case. Hillcrest and Kiritsky are both victims of the despicable shooting for the same reason. That being the perpetrator’s decision to shoot Letitia Johnson at the subject time and location. The shooting was a transitory act that could have been carried out at any time and place that the intended victim happened to be.

Although Kiritsy’s security expert averred that Hillcrest was negligent in failing to hire security guards, the expert did not indicate how a security guard would have been a deterrent for a drive-by shooting. Furthermore, the expert did not recommend the use of bullet-proof glass.

The trial court erred in denying Hillcrest’s motion for summary judgment on Kiritsy’s claims based on premises liability. Even assuming Hillcrest had knowledge that the Johnsons had a tumultuous marital relationship, we cannot say that such information translates into notice of potential danger to customers. For to do so would jeopardize the job of every employed victim of domestic violence. Nor can we say that verbal confrontations are indicative of a future drive-by shooting. To so hold would threaten the job security of every person in an abusive relationship.

Decided July 11, 1997

Reconsideration denied July 24, 1997

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, Jo B. Gosdeck, for appellant.

Gorby & Reeves, Michael J. Gorby, Mary D. Peters, Blakely H. Frye, for appellee.

Our determination regarding Hillcrest’s duty makes it unnecessary to address Kiritsy’s additional arguments.

2. Because of our holding in Division 1, Hillcrest is not liable for punitive. damages and the trial court erred in denying Hillcrest’s motion for summary judgment on this issue.

Judgment reversed.

Pope, P. J., and Johnson, J., concur.


author: Judge Harold R. Banke.

text:
    A97A1011.
    SCHULTHEISS v. PRENTISS PROPERTIES, LTD., INC. et al.
    (489 SE2d 545)
   Judge Harold R. Banke.

Juanita Schultheiss sued Prentiss Properties, Ltd., Inc. and Turner Parking Systems, Inc. (collectively “Prentiss”) to recover for damages relating to an unwitnessed parking garáge incident in which Schultheiss allegedly injured her foot. Asserting three errors, Schultheiss challenges the award of summary judgment to Prentiss.

Viewed in a light most favorable to the non-movant, the evidence was as follows. See Rodriquez v. City of Augusta, 222 Ga. App. 383 (474 SE2d 278) (1996). After parking her vehicle in the parking garage of One Atlantic Center, Schultheiss proceeded to the elevator area. When she opened the elevator vestibule door, the door swept across the top of her foot allegedly injuring three toes. Schultheiss admitted that she placed her right foot directly in the door’s swing path. Schultheiss conceded that she was aware that the door would open toward her when she pulled the door handle and made no claim that Prentiss somehow distracted her. According to her rendition of events, when she opened the door, it came across her foot and “[i]nstantly that door was on me.” Schultheiss testified that “I did a normal door opening,” and did not exert any additional force. When asked “Cw]as there anything about the door that didn’t operate properly as you were turning the knob down and pulling it toward you,” she responded, “It was not noted. If there was something there I didn’t know it.”

Notwithstanding her belated, self-serving assertion that it was the “jagged edge” that injured her foot, Schultheiss testified on deposition that she did not know which part of the door struck her foot. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986). In fact, she admitted that she had no recollection of a jagged piece of metal jutting out from the door and striking her foot.

Two employees testified that when they performed tests on the same day as the mishap, they were not able to find any problem with the door including any sticking or resistance to opening. A third employee, Samuel Iddins, the lead engineer who had replaced the door handle on the preceding day, testified that after he completed the repair he checked the door and found no problems. According to Iddins, whenever he performed repairs it was his standard procedure to check the swing of the door, its closure and other aspects generally. According to Iddins, there was no record of any prior problem with this door.

Prentiss moved for summary judgment asserting that Schultheiss failed to show any evidence of a defect in the door, any knowledge on Prentiss’ part of a defective condition, and further contending that Schultheiss was responsible for her injuries because she failed to exercise reasonable care for her own safety. Held:

1. In three enumerations of error, Schultheiss asserts that unresolved issues of material fact precluded summary judgment. She claims that: (1) the door in question had a jagged edge on the door sweep, (2) on the day before the incident, Iddins failed to properly inspect the door sweep, and (3) Iddins failed to discover the door’s resistance to opening.

The owner or occupier of premises is under a duty to discover and either keep the premises and approaches safe from or warn of hidden dangers or defects not observable to invitees who are exercising ordinary care. Newell v. Great A & P Tea Co., 222 Ga. App. 884 (1) (476 SE2d 631) (1996); OCGA § 51-3-1. However, a property owner is not an insurer of the safety of entrants. Wells v. C & S Trust Co., 199 Ga. App. 31 (403 SE2d 826) (1991). The mere showing of the occurrence of an injury does not create a presumption of negligence. Rather, the true ground of liability is the owner’s or occupier’s superior knowledge of the perilous instrumentality and the danger therefrom. Cook v. Home Depot, 214 Ga. App. 133, 134 (1) (447 SE2d 35) (1994).

Decided July 3, 1997

Reconsideration denied July 24, 1997.

Paul R. Vancil, David T. Markle, for appellant.

Dermer & Black, Richard W. Brown, for appellees.

The principle of equal or superior knowledge applies to static defective or dangerous conditions on property. Newell, 222 Ga. App. at 885 (2). To establish Prentiss’ negligence, Schultheiss had to show: (1) that Prentiss had actual or constructive knowledge of the hazard, and (2) that she was without knowledge of the hazard or for some reason attributable to Prentiss was prevented from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). See Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305) (1992).

At summary judgment, Schultheiss had the burden to come forward with specific evidence that Prentiss’ knowledge of the alleged peril was superior to hers. Cook, 214 Ga. App. at 135 (1). Schultheiss offered no evidence that Prentiss had actual knowledge of the alleged hazards — the jagged edge or the door’s resistance to opening, prior to the incident. Thus, to avoid summary judgment, Schultheiss had to present evidence of Prentiss’ constructive knowledge, that Prentiss should have discovered the alleged hazards and corrected them. See Smith v. Winn-Dixie Atlanta, 203 Ga. App. 565 (417 SE2d 202) (1992). This she failed to do. In fact, Prentiss’ evidence revealed the opposite — that an employee inspected that door the day before and did not discover any alleged defect. The evidence further showed that no person had ever sustained a similar injury. Even assuming for the sake of argument that Prentiss ordered all such door edges be rounded off after the injury occurred, such activity would not prove that Prentiss had prior knowledge of the alleged hazard. See Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 77 (4) (460 SE2d 532) (1995) (evidence of subsequent remedial measures generally inadmissible to show negligence). Having successfully pierced an essential element of Schultheiss’ prima facie case, Prentiss was entitled to summary judgment as a matter of law. OCGA § 9-11-56 (c).

2. In light of our holding in Division 1, we need not reach Schultheiss’ remaining enumeration.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Beasley, Judge.

text:
    A97A1096.
    KIM v. METROPOLITAN ATLANTA OLYMPIC GAMES AUTHORITY.
    (489 SE2d 372)
   Beasley, Judge.

The Metropolitan Atlanta Olympic Games Authority (MAOGA) instituted this condemnation proceeding. Kim and another condemnee appealed the special master’s award to superior court, asserting error in the determination that they cannot recover business losses because their leasehold property interests are not “unique.” The court entered judgment on the jury verdict which resolved the foregoing issue favorably to the other condemnee but adversely to Kim. Kim moved for new trial, asserting error in the court’s jury charge, and now appeals the denial of his motion.

1. The jury charge enumerated as error is that the condemnees “have the burden of proving the issue of uniqueness.”

“The term ‘uniqueness’ is used in two contexts. One is where the property on which a business is situated constitutes a ‘unique’ location, allowing business losses. The other is where property is ‘unique,’ so that its fair market value does not represent the condemnee’s actual loss. [Cits.]” Raiford v. Dept. of Transp., 206 Ga. App. 114, 119 (2) (424 SE2d 789) (1992). This case involves the first type of uniqueness.

The condemnee has the burden of proving the property to be unique in both the first and second contexts. See Housing Auth. &c. of Atlanta v. Southern R. Co., 245 Ga. 229, 231 (1) (A) (264 SE2d 174) (1980) (second context); Dept. of Transp. v. Bales, 197 Ga. App. 862, 865 (4) (400 SE2d 21) (1990) (second context); MARTA v. Ply-Marts, 144 Ga. App. 482, 483 (1) (241 SE2d 599) (1978) (first context).

Kim relies on decisions holding that the condemnor must prove the value of the land taken and consequential damages to the remainder; that this burden of proof never shifts from the condemnor, though a burden of producing evidence may arise on the part of the condemnee when he asserts the value of the land taken or the consequential damage amount is greater than that shown by the condemnor’s evidence; and that it is error to charge that where the condemnee makes the foregoing assertion, the burden of proof rests on him to prove by a preponderance of the evidence that such assertion is true. Glover v. Dept. of Transp., 166 Ga. App. 512 (304 SE2d 567) (1983); Lewis v. State Hwy. Dept., 110 Ga. App. 845 (140 SE2d 109) (1964).

The law is as set forth in the previously cited cases: the condemnor’s burden of proving land value or consequential damages never shifts to the condemnee; and the condemnee has the burden of proving the fact that the property is unique, so as to be entitled to have land value or consequential damages determined by a method other than fair market value, or to have business losses determined as a separate item of damages.

Decided July 24, 1997.

David W. Graybeal, Jr., for appellant.

Paul, Hastings, Janofsky & Walker, John G. Parker, Brian D. Sullivan, for appellee.

In addition to giving the complained-of charge, the court instructed the jury that the burden of proof is on the condemnor to prove by a preponderance of evidence what amount of money constitutes just and adequate compensation for the property taken. We find no error.

2. Kim also challenges the jury instruction that the jury would be authorized to find in favor of either or both condemnees if it believed “from a preponderance of the evidence” that the property interest of either or both was unique.

Although Kim did not object to this part of the charge at trial or cite it in his motion for new trial, he argues in essence that appellate review is still required because this instruction constituted substantial error harmful as a matter of law. OCGA § 5-5-24 (c). Far from reaching that category, the charge was not error. A party in a civil case meets the burden of proof by a preponderance of the evidence. See generally Consolidated American Ins. Co. v. Spears, 218 Ga. App. 478, 480 (1) (462 SE2d 160) (1995).

Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 542 (1) (309 SE2d 816) (1983), relied on by Kim, holds that only slight evidence is necessary to authorize a jury charge on the uniqueness of a business and subsequent recovery of its losses. The foregoing rule is not inconsistent with placement of the burden on the condemnee to prove the fact of uniqueness by a preponderance of the evidence. See Stinson v. State, 215 Ga. App. 12, 13 (2) (449 SE2d 544) (1994) (slight evidence will justify a charge even where the preponderance of the evidence tends to show the non-existence of such a fact).

Judgment affirmed.

McMurray, P. J, and Senior Appellate Judge Harold R. Bahke concur.


author: Johnson, Judge.

text:
    A97A1286.
    CUMMINGS v. THE STATE.
    (489 SE2d 370)
   Johnson, Judge.

A jury found LaChant Pierre Cummings guilty of armed robbery and possession of a firearm during the commission of a felony. See OCGA §§ 16-8-41 (a); 16-11-106 (b). He appeals from the judgment entered on the conviction, contending the evidence was sufficient to show only that he was present at the scene of the crime, not that he participated in committing it. We affirm.

On appeal, we view the evidence in the light most favorable to the verdict, and the presumption of innocence no longer applies. We may not weigh the evidence or speculate which evidence the factfinder chose to believe or disbelieve. Redding v. State, 217 Ga. App. 529 (458 SE2d 168) (1995). Viewed in this light, the evidence shows the victim, Matthew Jones, was approached by three men in the parking lot of the restaurant where he worked. They asked if they could come inside to use the telephone. Jones told them they could not because the restaurant was already closed, and they turned and started to walk away. Because it was raining, however, Jones called out that he could go inside and make a call for them. Upon hearing this, the three men turned and approached Jones again. When they reached Jones, one of the men stood in front of Jones and to his left; another stood in front of Jones and to his right; and the third man stood behind Jones and to his right, so close he was touching Jones. Jones sensed something was wrong and turned to confront the man behind him. When he did, one of the other two said, “Look here.” Jones turned to face forward again and saw that the speaker was pointing a pistol, which Jones recognized as a .25 caliber automatic, at Jones’ head. The same man told Jones to empty his pockets, and the other man in front of Jones looked through the items Jones produced. During the incident Jones was able to see the faces of all three men clearly and to note what all three were wearing.

After taking Jones’ cash and a check made out to him, the three men ran away in the direction of a nearby apartment complex. Jones immediately went inside and called the police.

A police officer on patrol in the area heard the report of Jones’ robbery over his radio. He drove into the apartment complex and soon saw three men matching the broadcast description of the robbers. As he drove toward the men, they began to run away. The officer radioed for backup, got out of his car, and gave chase on foot, catching one of the men and arresting him. About 45 minutes later, the officers found Cummings and another man lying on the ground in a wooded area and took them into custody. One of Cummings’ co-defendants had the check made out to Jones in his pocket, and the police found a .25 caliber automatic pistol in the area through which the three men had fled.

Jones was brought to the complex and identified Cummings and the other two men as the people who had robbed him. Jones also identified Cummings at trial as one of the robbers.

Cummings argues the evidence at most establishes his mere presence at the scene of the crime, not his participation. In support of this argument, Cummings points to the absence of evidence to show he was one of the men who stood in front of Jones during the robbery and contends the evidence at most shows he was the man who stood behind Jones. He also claims the fact that the three started to walk away before Jones called them back shows there was no premeditated plan to rob him.

Decided July 24, 1997.

Edwin J. Wilson, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

One who intentionally aids or abets in the commission of a crime is a party to it. OCGA § 16-2-20 (b) (3). It is true mere presence at the scene of a crime, even coupled with knowledge and approval, is insufficient to convict one of being a party. See Slaton v. State, 224 Ga. App. 422, 425 (3) (d) (480 SE2d 872) (1997). However, “presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citation and punctuation omitted.) Grace v. State, 210 Ga. App. 718, 719 (1) (437 SE2d 485) (1993). See also OCGA § 16-2-6: “A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” In this case, the jury was authorized to infer from Cummings’ physical position during the robbery, his flight with the robbers immediately afterward, and his attempt later to hide from police that he was a participant and not merely a bystander. See Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980). Cummings’ conviction as a party was authorized as to both the armed robbery charge and the charge of possession of a firearm during the commission of a felony, even though he did not personally possess the firearm. See Victrum v. State, 203 Ga. App. 377, 379-380 (3) (416 SE2d 740) (1992). Cummings’ factual arguments go to the weight of the evidence, not its sufficiency, and were for the trier of fact to accept or reject.

Judgment affirmed.

Pope, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A1436.
    HOPKINS v. THE STATE.
    (489 SE2d 368)
   Blackburn, Judge.

Stanley Javon Hopkins appeals his convictions of armed robbery and burglary, contending that the prosecution made improper comments in closing argument and that the trial court erred in failing to charge on the lesser included offenses of robbery and theft by taking. For the reasons set forth below, we affirm.

1. Hopkins contends the trial court erred in failing to instruct the jury on the lesser included offenses of robbery and theft by taking. “A written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” (Citation and punctuation omitted.) Edwards v. State, 264 Ga. 131, 132 (442 SE2d 444) (1994). However, “where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” (Emphasis in original.) Id. at 133.

Maria Wiley testified that, at approximately 4:00 a.m., three masked men broke into her house. At the time, she was babysitting three children and talking with two other adults, Trina Mayes and Kevin Wheeler. Wiley identified Hopkins, whom she knew, as one of the masked men. She testified that Hopkins pointed a gun at Mayes and then handed the gun to one of the other men, who pointed it at Wiley. One of the men demanded Wiley’s money, and she gave them her purse containing approximately $170. Mayes also testified that Hopkins had a gun during the robbery and put it to her head.

Hopkins took the stand and admitted his participation in the incident. However, he denied that they took any money from Wiley. He testified that Wiley was a drug dealer, and that he went to the house to take marijuana from her. He did not think it was wrong at the time to take the drugs from Wiley because she was engaging in illegal activity. He admitted that he took a bag from Wiley, but stated that there was nothing in it. He said he did not think his actions constituted robbery “because wasn’t nothing taken, but a bag, and it didn’t have nothing in it, and I left it and just threw it down.” Hopkins admitted that a gun was involved, and that at some point “[i]t wound up in my hand,” but denied that he pointed the gun at Mayes. He did not contradict testimony that the gun was pointed at Wiley and Mayes during the robbery, but merely claimed that he did not point the gun. He stated that he threw the gun away after the incident.

Under these circumstances, the court did not err in refusing to charge on the lesser included offenses of robbery and theft by taking, as the evidence established that, if Hopkins was guilty of any offense, he was guilty of armed robbery. See OCGA § 16-8-41 (a). Although the evidence is in conflict as to whether Hopkins personally pointed the gun at anyone, it is uncontroverted that a gun was used in the. robbery, that Hopkins at one point had possession of the gun, and that he disposed of the gun. No evidence was presented that the robbery was committed without the use of a gun. Under OCGA § 16-2-20 (a), “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” Accordingly, as a party to the crime, Hopkins was guilty of the offense of armed robbery regardless of whether he personally threatened anyone with the gun. As there was no evidence raising the lesser included offenses, the court did not err in failing to give the requested charges. Cf. Greene v. State, 263 Ga. 466, 467 (1) (435 SE2d 607) (1993); Thomas v. State, 226 Ga. App. 441 (487 SE2d 75) (1997).

Decided July 24, 1997.

2. Hopkins contends the trial court erred in failing to declare a mistrial following improper comments by the prosecutor during closing arguments. In response to Hopkins’ attorney’s statement during closing that the State was representing a drug dealer, the prosecutor stated to the jury that he was representing all citizens of the county. Referring to the children who were with Wiley when she was robbed, the prosecutor stated that “I’m representing them, because they are you.” Hopkins argues on appeal that this statement constituted an improper “golden rule” argument, in which “jurors are invited to place themselves in the victim’s place in regard to the crime.” Horne v. State, 192 Ga. App. 528, 529 (2) (385 SE2d 704) (1989).

However, Hopkins failed to object to the prosecutor’s statement or to move for a mistrial on such ground. “The time to object to improper closing argument is when the impropriety occurs at trial, when the trial judge may take remedial action to cure any possible error. . . . When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial.” Todd v. State, 261 Ga. 766, 767 (2) (a) (410 SE2d 725) (1991).

Pretermitting the question of whether the prosecutor’s statement was improper, in light of the overwhelming evidence of Hopkins’ guilt, it is not reasonably probable that such statement changed the result of the trial. Accordingly, the trial court did not err in failing to declare a mistrial.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Sean A. Black, for appellant.

Michael H. Crawford, District Attorney, Earnest J. McCollum, Assistant District Attorney, for appellee.


text:
    A97A1459.
    WALKER v. GRO ASSOCIATES, INC.
    (489 SE2d 366)
   Blackburn, Judge.

GRO Associates, Inc. (GRO) filed suit against Thomas H. Walker, Jr., seeking to recover unpaid brokerage commissions allegedly due as a result of the sale of Walker’s business. Following a trial, the jury returned a verdict in favor of GRO in the amount of $24,500. Walker appeals this verdict, contending that the court erred in allowing GRO to reopen the evidence after resting, in denying Walker’s motion for directed verdict, and in responding to a jury question.

1. After the parties rested, Walker moved for a directed verdict on the ground that GRO had not presented evidence that it was a licensed real estate broker as required by OCGA § 43-40-24. The court denied the motion and allowed GRO to present evidence that it was in fact so licensed. Walker contends it was error for the court to reopen the evidence and to deny the motion for directed verdict.

This contention is without merit. “[T]he directed verdict is not a vehicle to obtain a judgment on the technical grounds that a plaintiff has merely neglected to show some evidence material to his case. Particularly, since the trial court may in its discretion permit the plaintiff to reopen his case and offer some neglected evidence ([cit.]), in such a case a directed verdict is generally improvident. See Mallard v. Mallard, 221 Ga. 480, 481 (145 SE2d 533). The appellant in this case [essentially] asserts that if the plaintiff is thus allowed to ‘cure’ the defects in his case, then in effect no defendant will ever be entitled to a directed verdict at the close of a plaintiff’s case. That might be true if a plaintiff could never amend his case or show additional evidence, and if the directed verdict were a mere technical device to dispose of plaintiffs who fail to present an instantly perfect prima facie case; but this is not so. The directed verdict is a substantive procedure for removing the case from the jury when the plaintiff’s evidence viewed in the most favorable light is without conflict, and all the reasonable deductions therefrom demand a verdict for the defendant. It was held by the Supreme Court in Young v. Wiggins, 229 Ga. 392 (1) (191 SE2d 863) that sound reasoning dictates we not elevate procedure and form over substance by reversing the case on this basis, when the plaintiff’s case was in fact ultimately made out.” Able-Craft, Inc. v. Bradshaw, 167 Ga. App. 725, 726-727 (307 SE2d 671) (1983). Indeed, under the circumstances, the court might have abused its discretion had it refused to reopen the evidence at GRO’s request. See Morris v. Shah, 196 Ga. App. 886, 887-888 (397 SE2d 207) (1990). Accordingly, the trial court did not err in allowing GRO to reopen the evidence and in denying Walker’s motion for directed verdict.

Decided July 24, 1997

Sean A. Black, for appellant.

Verdery & Oliver, William R. Oliver, for appellee.

2. Walker contends the court erred in responding to a jury question. During deliberations, the jury sent the judge a note stating, “[w]e have a question about the statute of limitations on contractual agreements.” Over Walker’s objections, the judge responded by informing the jury that the claim was not barred by the statute of limitation. On appeal, Walker contends that the court should have responded by instructing the jury that the statute of limitation for contract actions was six years as set forth in OCGA § 9-3-24.

This contention is without merit, as the statute of limitation was not an issue in this case. Walker’s attorney did not submit a request to charge on the statute of limitation and expressly asked the court during the charge conference not to charge on the statute because he was not going to argue it. As Walker does not contend that the claim was barred by the statute of limitation, a charge on the statute would not have been adjusted to the evidence and would have had a tendency to confuse the jury. See Bakery Svcs. v. Thornton Chevrolet, 224 Ga. App. 31, 33 (3) (479 SE2d 363) (1996) (charge must be adjusted to pleadings and evidence and must not have tendency to confuse and mislead jury or to becloud issues in case).

Although his brief is not clear on this point, Walker also appears to contend that the court’s response constituted an improper comment on the evidence. However, as Walker does not contend that the claim was in fact barred by the statute of limitation, any error in the form of the court’s response was clearly harmless. See CSX Transp. v. Barnett, 199 Ga. App. 611, 612 (1) (405 SE2d 506) (1991) (“harm as well as error must be shown to warrant reversal”).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.