text:
    A97A0303.
    EASY OUT BONDING et al. v. STATE OF GEORGIA.
    (481 SE2d 834)
   Eldridge, Judge.

Appellant, Easy Out Bonding, signed $21,000 in surety bonds for Edwin Charles O’Malley, the defendant/principal, who had been arrested on various felony charges. After the defendant failed to appear for trial on February 5, 1996, the trial court issued a bench warrant and ordered a bond forfeiture on February 14, 1996. On the same day the forfeiture was signed, the trial court served appellant with notice of the order by certified mail. In June 1996, appellant filed a motion to vacate the bond forfeiture based on the asserted failure of the trial court to give appellant notice of the trial date, as required in OCGA § 17-6-70 (b). The trial court denied the motion on July 3, 1996; issued a judgment absolute on the forfeiture on August 2,1996; and issued a fieri facias on August 6,1996 against appellant, who timely appealed. Because this Court finds that the trial court acted within the statutory requirements for notice of appellant prior to forfeiture proceedings, we affirm the decision of the trial court.

1. In the first enumeration of error, appellant asserts that the trial court’s denial of appellant’s motion to vacate bond forfeiture was error because the trial court did not order the bond forfeiture or provide notice of the forfeiture within the statutory requirements of OCGA § 17-6-71 (a). According to appellant, the statute requires that the court forfeit the bond and order an execution hearing “at the end of the court day, upon the failure of the principal to appear.” OCGA § 17-6-71 (a). However, appellant apparently misinterprets the statute as requiring the trial court to conduct its business by the end of the day or to forego forfeiture proceedings altogether.

This interpretation is inconsistent with the rest of the subsection, which allows the court ten days following the failure to appear to notify the surety of the forfeiture and the pending execution hearing. OCGA § 17-6-71 (a). Little would be gained by requiring the court to quickly issue an order, which may then be ignored until service to the parties ten days later.

This harm is substantially greater than that asserted by appellant in the case sub judice, who claims that the nine-day period between the defendant’s failure to appear on February 5, 1996 and the court’s forfeiture order on February 14, 1996 prevented appellant from locating and presenting the defendant. However, under the plain language of the statute, appellant was not entitled to notice of the forfeiture order until ten days after the defendant’s failure to appear, regardless of when the order was actually issued. OCGA § 17-6-71 (a). Since appellant was notified of the forfeiture order within the ten-day statutory notice period, appellant suffered no harm by the trial court’s failure to sign the order on February 5, 1996.

Absent an express statutory provision to the contrary, we find that the legislature did not intend to require a trial court to sign a forfeiture order the same day as the defendant’s failure to appear as a condition precedent to issuing a judgment absolute. See Griffin v. State, 194 Ga. App. 624 (391 SE2d 675) (1990); AAA Bonding Co. v. State, 192 Ga. App. 684, 685 (386 SE2d 50) (1989). The “end of the court day” language at issue is “directory and not a limitation of [the trial court’s] authority,” particularly where appellant was not harmed. Jam Bonding Co. v. State of Ga., 184 Ga. App. 246, 247 (361 SE2d 238) (1987). Therefore, this Court declines to adopt appellant’s overly-restrictive interpretation of OCGA § 17-6-71 (a) and affirms the trial court’s denial of the motion to vacate the bond forfeiture.

2. In the second enumeration of error, appellant asserts that the trial court failed to give notice of the defendant’s request for a continuance and subsequent trial date, pursuant to OCGA § 17-6-70 (b), which conditions bond forfeiture upon written notice to the surety at least 72 hours before a required court appearance by the principal. Appellant claims that she did not receive notice prior to the defendant’s February trial date, so that the statute precludes the trial court from ordering the bond forfeiture. Appellant also claims that she was harmed when the trial court did not give notice of a continuance that was granted for the defendant in December 1995. According to appellant, if she had received notice of the request for a continuance, she would have been aware that the defendant had relocated to Brazil, outside the jurisdiction of the trial court. Armed with such knowledge, appellant asserts that she may have been able to get the defendant to his court appearance, thereby avoiding the bond forfeiture.

However, the record shows that appellant was notified of the defendant’s December 1995 motions hearing date, which was subsequently continued until February 1996 upon request by defendant’s counsel. In addition, an employee of the county clerk’s office testified that appellant received notice of the February 5, 1996 trial date. According to the employee, the notice was mailed on January 10, 1996 in an envelope which also contained trial date notices of other Easy Out Bonding Company clients. It is assumed that appellant received all of the notices, since she has not asserted a lack of notice regarding the trial dates of other clients.

Decided February 3, 1997

Reconsideration denied February 18, 1997

Brett D. Turner, for appellants.

Albert F. Taylor, Jr., District Attorney, Mary E. Moore, Assistant District Attorney, for appellee.

It is further assumed that appellant, who has taken a financial risk in ensuring the defendant’s presence at trial, would be motivated to keep track of the defendant’s case and to prevent the defendant’s flight or relocation until the surety is relieved of its bond obligation. Such risk of flight is inherent in the criminal justice system, without which there would be no need for bail bonds or bond sureties.

This Court notes that the trial court has no statutory duty to notify a bond surety regarding a pending motion for continuance, which is a matter of public record. We find that appellant received notice of the February 5, 1996 trial date in fulfillment of the statutory requirements of OCGA § 17-6-70 (b). Therefore,.appellant’s second enumeration of error is without merit.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.

       Appellant asserts that the ten day notice period should ran from the defendant’s failure to appear on February 2, 1996, the date assigned by the trial court for the defendant to enter a plea and avoid trial if the defendant chose to do so. Appellant’s argument is without merit. See Griffin v. State, 194 Ga. App. 624 (391 SE2d 675) (1990) (holding that notice procedures may be instituted “after any time of required appearance and failure [by the defendant] to appear thereat”).


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A96A2139.
    In the Interest of J. C. H., a child.
    (482 SE2d 707)
   Beasley, Judge.

Appellant Martha Hough is the natural mother of J. C. H., a child. Appellees Wayne and Sharon McNeil are the child’s temporary legal custodians and are unrelated to him. Tom and Elizabeth Bragg are his maternal grandparents. The appeal must be dismissed because of a jurisdictional flaw.

The record is scant. Appellant Hough has attached as exhibits to her brief documents relating to numerous juvenile court proceedings over a five-year period before the same judge, but these documents are not part of the record and cannot be considered on appeal. Paul v. Joseph, 212 Ga. App. 122, 125 (441 SE2d 762) (1994).

The record discloses that on December 22, 1995, the juvenile court heard a motion, filed by the guardian ad litem for J. C. H., for review and modification of a custody order. The new order provided that temporary legal custody of J. C. H. should be retained by the McNeils. On February 21, 1996, the Braggs filed a petition to adopt J. C. H. in superior court, accompanied by a voluntary surrender of parental rights executed by Hough and J. C. H.’s natural father on February 6. A hearing on the adoption was set for April 25 in superior court.

In the interim, on March 21, the Braggs filed a petition to intervene and motion to vacate the December 22, 1995 order of the juvenile court. They allege that they had an interest in the child, that the December 22 order “was obtained by fraud or mistake, is irregular on its face, and is partially the result of an orchestrated, demonstrable, and egregious effort on the part of the temporary legal custodians thereof to isolate him from immediate and extended family members in order to adopt him themselves,” that the subsequent orders were entered without notice and hearing in violation of the federal constitution, and that the December 22 order violated OCGA §§ 15-11-34 and 15-11-90 because no attempt was made to effect suitable placement with the child’s relatives.

The juvenile court promptly held two hearings, the first of which addressed the petition to intervene and motion to vacate order. The Braggs asserted they had standing to intervene under OCGA § 15-11-42 (c) because of their interest in the child. Hough admitted she signed a voluntary surrender and that the ten-day statutory rescission period had passed without her revocation, but she contended she had “quasi standing” because the adoption in superior court was not final and the court had yet to terminate her parental rights.

The juvenile court denied the Braggs’ petition and motion, finding them premature since the Braggs had no standing until they became the adoptive parents, which could not occur before the hearing scheduled for April 25. The court determined further that Hough and the father of J. C. H. had surrendered their parental rights in connection with the adoption proceeding. It therefore dismissed them and the Braggs from the juvenile court proceeding. The transcript ends with the court’s finding and without an objection from any party.

The juvenile court continued with the second hearing, a motion to extend the court’s order of temporary legal custody filed by the McNeils, but the record contains no transcript of it. The juvenile court thereafter ordered that the deprivation previously found “continues due to the fact that the natural parents remain unable to provide proper parenting to [J. C. H.].”

1. The McNeils filed a motion to dismiss the mother’s appeal because she filed it directly and was required to first seek permission pursuant to OCGA § 5-6-35 (a) (2). Since this case involves deprivation of a child, which is neither a child custody nor domestic relations case within the purview of OCGA § 5-6-35 (a) (2), appellees’ motion is denied. In re J. P., 267 Ga. 492 (480 SE2d 8) (1997).

Decided February 18, 1997.

Arthur J. Shelfer, Jr., for appellant.

Daniel M. Mitchell, Jr., Gwendolyn A. Atkinson, James M. Bivins, for appellees.

2. We are unable to address the merits of the appeal because it must be dismissed on another procedural ground. Hough appealed from the order denying the petition to intervene and motion to vacate order filed by her parents, the Braggs, who did not appeal the order. Hough was not a party to the petition or the motion and had no standing to complain of their disposition. OCGA § 5-6-33 (a) (1); Watkins v. M & M Clays, 199 Ga. App. 54, 57 (2) (404 SE2d 141) (1991).

Appeal dismissed.

Birdsong, R J., and Blackburn, J., concur.


author: Eldridge, Judge.

text:
    A97A0655.
    CARDIN v. OUTDOOR EAST, A LIMITED PARTNERSHIP.
    (481 SE2d 872)
   Eldridge, Judge.

On March 1, 1991, Cathy M. Cardin, appellant, through a power of attorney exercised by C. Dewayne Cardin, her husband, executed an 18-year sign lease on a form lease with Outdoor East, appellee. The lease was witnessed by an official and an unofficial witness so that it could be recorded. The lease was a unilateral contract in which appellant as lessor made various promises in writing to appellee, but the appellee, lessee, made no mutual promise in return of any kind on the written form; the appellee did not execute the form, which had no designated area for such execution.

In short, no binding written promise to lease was made by appellee intentionally so that it could have the option to perform annually upon payment, while still binding appellant. The lease granted “a line of sight easement to and from said plot of land and said Highway # 1-75 and with both rights of ingress and egress to and upon said lot and line of sight easement therefrom over and across all lands of the undersigned to and from said location. . . .” Appellant could not give an easement for line of sight within land owned by the State Department of Transportation along 1-75, but did give such easement over her own land.

On March 31, 1991, appellee paid appellant $5,000, which was a prepayment for two years under the unilateral contract. Thereafter, appellee entered the premises and surveyed it for a sign. On January 24, 1994, prior to the third year payment date, Mike Howard, General Manager, Georgia Division, Outdoor East, wrote appellant and notified appellant that appellee would not continue to rent the property for the year 1994 or subsequently.

Appellant sued appellee for breach of the contract. Appellee answered and admitted that it entered into the signed lease agreement. However, appellee denied that it had leased the property for 18 years. Appellee moved for summary judgment, which was granted. Timely notice of appeal was filed by appellant.

Appellant’s sole enumeration of error is that the trial court erred in granting summary judgment. We do not agree.

The agreement is a unilateral contract in which appellant makes various promises in consideration of performance by appellee. Appellee, in the written form executed on behalf of appellant, never promised to do or not to do anything; the agreement lacked mutuality of obligation unless and until appellee performed annually. Appellee’s performance by payment created a year-to-year tenancy, although appellant had bound herself to the terms and conditions on an annual basis renewable annually for a total of 18 years. Appellee, at any time, could abandon its interest by failing to perform or by timely notice of termination, which would bring the unilateral contract to an end. Appellant freely, knowingly, and voluntarily executed this unilateral contract and received all that she was entitled to receive under its terms.

A unilateral contract is an offer in writing which makes promises in consideration for acts of performance which are not only the acceptance, but also the consideration flowing to the party making the offer in writing. See State of Ga. v. U S. Oil Co., 194 Ga. App. 1, 2 (389 SE2d 498) (1989); Classic Restorations v. Bean, 155 Ga. App. 694 (272 SE2d 557) (1980); Weikert v. Logue, 121 Ga. App. 171 (173 SE2d 268) (1970); Benefield v. Malone, 112 Ga. App. 408 (145 SE2d 732) (1965); Gettier-Montanye, Inc. v. Davidson Granite Co., 75 Ga. App. 377 (43 SE2d 716) (1947).

When there has been an agreement to pay rent, the relationship of landlord and tenant arises. Edwards v. Gulf Oil Corp., 71 Ga. App. 649 (31 SE2d 677) (1944). However, to create the relationship it is not necessary for the tenant to take possession. Hudson v. Stewart, 110 Ga. 37 (35 SE 178) (1900). Where only the lessee in possession has executed a lease but the lessor has not executed the lease, such factual situation creates only a tenancy at will. Lewis v. Floyd, 126 Ga. App. 520 (191 SE2d 291) (1972). An oral agreement to renew a written lease for a lease period longer than one year is ineffective; to provide a lease extension for more than one year, the renewal must be in writing. Brookhill Mgmt. Corp. v. Shah, 197 Ga. App. 305 (398 SE2d 290) (1990); Hooks v. Lease, 68 Ga. App. 850 (24 SE2d 601) (1943). However, a renewal of a lease for no more than one year can be done orally or by performance by prepayment of the lease for one year. King v. Pattillo, 19 Ga. App. 59 (90 SE 1033) (1916); see also Butler v. Godley, 51 Ga. App. 784 (181 SE 494) (1935).

Decided February 18, 1997.

Smith, Hannan & Parker, Bradley M. Hannan, for appellant.

Elliott & Blackburn, Walter G. Elliott II, for appellee.

Appellant had a landlord-tenant relationship with appellee on a year-to-year renewable option. Appellee gave timely notice that it was canceling the agreement, which notice terminated appellee’s liabilities to appellant, not only under the unilateral contract but also as imposed by statute as a tenant.

Appellant entered into a one-sided contract that gave her no enforceable rights against appellee. Appellee never in the written contract promised anything to appellant; the contract was clear and unambiguous in all its terms. Appellee fully performed under the contract until it chose to terminate the contract by no longer performing. Appellee had the legal power to terminate the contract by not performing in the future, which terminated the contract, because appellee in the contract never gave a written promise to perform in the future, reserving in its power the ability to terminate the unilateral contract by non-performance. The trial court did not err in granting the motion for summary judgment.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: Judge Harold R. Banke.

text:
    A97A0672.
    ELDER v. CARE-MORE, INC.
    (481 SE2d 870)
   Judge Harold R. Banke.

Hazel O. Elder sued Care-More, Inc. (“Care-More”), the owner and operator of the Bolingreen Nursing Center to recover for injuries allegedly sustained from a slip and fall on ice near the nursing home entrance. Elder appeals the summary judgment awarded to Care-More.

Viewed in the light most favorable to Elder, the non-movant, the evidence was as follows. On March 13, 1993, a severe winter storm blanketed middle Georgia including the area surrounding Care-More’s nursing home. As the storm front thrust through the area it left behind heavy amounts of snow and ice, downed trees, and knocked out electrical power. Because of the inclement weather, Elder was unable to visit her husband at Care-More’s nursing home facility on the day of the storm. That evening, since her inside pipes had frozen and she had lost her electrical power due to downed lines, Elder had an acquaintance drive her to a relative’s house. On the next afternoon, Elder and several companions decided to call on her husband. Ice and snow remained on the roads, and the vehicle in which she traveled had to maneuver by keeping its tires in the “ruts” other vehicles created. Elder testified that she personally would not have dared to drive under those conditions. Elder described the winter storm as “one of the worst I’ve ever seen.” While Elder walked through the nursing home parking lot, she noticed snow on the pavement. When Elder neared the entrance, she had to traverse an area heavily shaded by the roof of a double carport that connected to the entrance. Despite her admitted awareness that she knew that ice and snow melt slower in shade, Elder proceeded into the shade without looking down. Just as she stepped into the shaded section, Elder allegedly slipped and fell on a patch of ice. Held:

Elder asserts that summary judgment was precluded by the existence of material issues of fact as to whether Care-More had superior knowledge of the presence of ice near its entranceway and failed to take reasonable steps to protect her. We disagree.

To establish liability for a slip and fall due to a foreign substance, a plaintiff must establish that: (1) the defendant had actual or constructive knowledge of the foreign substance, and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). In this case, Elder cannot satisfy prong two of Ligon. Elder indisputably was aware of the perilous outdoor wintry conditions. Further, she testified that she observed snow in the nursing home parking lot and admitted she knew that ice melts more slowly in the shade. Elder offered no evidence that Care-More prevented her from discovering the ice or distracted her.

Elder’s bare assertion that she did not see the ice before she fell is negated by her admission that she did not look down as she was walking. Elder was obligated to use all of her senses in a reasonable manner to learn of and discover the ice so that she could traverse it safely. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). See Moore v. Kroger Co., 221 Ga. App. 520, 522 (471 SE2d 916) (1996). It was incumbent upon her to keep a careful lookout, especially given the prevailing adverse conditions. See Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (2) (288 SE2d 846) (1982) (summary judgment foreclosed where plaintiff kept “vigilant lookout” for presence of ice in her path); accord Ingram v. Toccoa Triple Cinema, 222 Ga. App. 409 (474 SE2d 293) (1996). Elder’s failure to exercise ordinary care for her own safety as demanded by the inimical weather conditions then existing bars her recovery as a matter of law. City of Winder v. Girone, 265 Ga. 723, 724 (2) (462 SE2d 704) (1995) (plaintiff’s failure to exercise ordinary care for her own safety bars recovery even if defendant is negligent). To hold otherwise would make Care-More an insurer of Elder’s safety. See Pound v. Augusta Nat., 158 Ga. App. 166, 168 (279 SE2d 342) (1981). This we cannot do.

Decided February 18, 1997.

William A. Adams, Jr., for appellant.

Jones, Cork & Miller, Thomas C. Alexander, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A96A1895.
    BENNETT v. SOUTHEASTERN BANK.
    (481 SE2d 830)
   Ruffin, Judge.

James L. Bennett appeals from the trial court’s order granting Southeastern Bank (“Southeastern”) summary judgment. Although Bennett raises five enumerations of error, each enumeration relates to the summary judgment order. For reasons which follow, we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “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[,] rathert,] must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

The record reveals the following facts. In May 1994, Bennett executed a deed to secure debt on certain property he owned as security to Southeastern for a promissory note. Bennett instructed Southeastern to automatically withdraw the monthly mortgage payments on the note from his checking account at the bank.

In April 1995, Southeastern received a notice of levy against Bennett’s assets from the Internal Revenue Service (“IRS”). Southeastern informed Bennett of the levy and advised him that the bank had placed a “hold” on his account for 21 days. Southeastern further informed Bennett that at the end of this 21-day period, it would be “required to send the amount of the lien from your account(s) to the Internal Revenue Service.” Although Bennett demanded that Southeastern not make any payments to the IRS from his account, he was told that the bank had no choice but to comply with the levy. On April 28, 1995, Southeastern sent the IRS a check drawn from Bennett’s account for $448.60.

After a May 1, 1995 deposit of $458, Bennett made no further deposits to his checking account or payments on the promissory note. As a result, Southeastern sent Bennett a notice of default and subsequently foreclosed against the secured property. On August 25, 1995, Bennett sued Southeastern for “misappropriating” funds and “evicting” him from his property.

Bennett now argues that the trial court erred in granting summary judgment to Southeastern on his claims. We disagree.

1. Southeastern did not “misappropriate” funds by turning over to the IRS assets from Bennett’s checking account. The record clearly reveals that Southeastern received a notice of levy to collect money Bennett owed for unpaid taxes. Pursuant to the Internal Revenue Code, “any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary, surrender such property or rights (or discharge such obligation) to the Secretary. . . .” (Emphasis supplied.) 26 USC § 6332 (a). No liability arises from complying with this mandatory requirement. “Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary, surrenders such property or rights to property (or discharges such obligation) to the Secretary . . . shall be discharged from any obligation or liability to the delinquent taxpayer and any other person with respect to such property or rights to property arising from such surrender or payment.” (Emphasis supplied.) 26 USC § 6332 (e).

As required by the tax levy, Southeastern remitted funds from Bennett’s account to the IRS. Southeastern is not liable to Bennett for complying with the levy. Id.; see also Trumpet v. Brown, 215 Ga. App. 299, 300 (1) (450 SE2d 316) (1994). Accordingly, summary judgment on this claim was proper.

2. The trial court also correctly granted summary judgment to Southeastern on Bennett’s claim that the bank illegally “evicted” him from the property he provided as security for the promissory note. The record shows that after May 1, 1995, Bennett failed to make any payments on the note. Southeastern subsequently provided Bennett with notice of default for nonpayment, demanded payment, and eventually foreclosed on the property. The record reveals no contrary evidence indicating that Bennett either submitted payment or was not otherwise in default and subject to foreclosure. Bennett has pointed to no specific evidence giving rise to a triable issue. Lau’s Corp., supra. Thus, this enumeration also lacks merit.

Decided January 30, 1997

Reconsideration dismissed February 19, 1997.

James L. Bennett, pro se.

Marvin L. Pipkin, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A96A2223.
    JOINT VENTURE, INC. v. McDANIEL.
    (481 SE2d 836)
   McMurray, Presiding Judge.

Steven McDaniel brought an action against Joint Venture, Inc. (defendant) to recover wages and commissions he allegedly earned while employed as defendant’s limousine driver. Defendant denied the material allegations of the complaint and asserted a counterclaim, alleging slander and tortious interference with business relations. After a bench trial, the trial court entered an order awarding McDaniel $2,600, plus court costs in the amount of $95. The trial court denied defendant relief on its counterclaim. Defendant filed this appeal, pro se, after the trial court denied defendant’s motion for new trial. Held:

1. Defendant’s seven enumerations of error are only supported in the argument portion of defendant’s brief by general contentions regarding the evidence adduced at the bench trial and the following statement: “Appellant requests reversal of the [trial court’s orders denying defendant’s motion for new trial, awarding McDaniel $2,600, plus court costs in the amount of $95, and denying defendant relief on its counterclaim] on the grounds that [McDaniel] is guilty of fraud and perjury.”

“Argument is defined as a reason given in proof or rebuttal, or a coherent series of reasons offered. Webster’s New Collegiate Dictionary (1976). The central element is reason. The function of argument in a brief is to supply the reason why the court should support the contentions of that party.” Hartford Acc. &c. Co. v. Taylor, 144 Ga. App. 64, 65 (240 SE2d 575). The argument portion of defendant’s brief in the case sub judice contains neither reference to defendant’s enumerations of error nor reasoned argument in support thereof. As a result, there is nothing for this Court to consider and defendant’s enumerations of error are deemed abandoned. See Haskins v. Jones, 142 Ga. App. 153 (1) (235 SE2d 630). Moreover, defendant’s enumerations of error indicates that defendant could only establish by the trial transcript that the verdict and judgment were not supported by admissible evidence or that other reversible error had occurred during trial. Since defendant elected not to file a trial transcript with this appeal, we must assume the trial court’s judgment was correct and affirm. Hosseini v. Donino, 222 Ga. App. 697 (1) (475 SE2d 665).

Decided February 3, 1997

Reconsideration denied February 19, 1997

Susan Weems, pro se.

Lambros & Lambros, Michael G. Lambros, for appellee.

2. In the argument portion of defendant’s brief, defendant asserts the following: “Appellant requests that the Court award Appellant all legal and court fees plus other related costs to defend this litigation (currently estimated at $4,500.00); plus $10,000.00 in damages for tortuous [sic] interference and pain and suffering; plus any additional punitive damages and penalties that the Court deems necessary and/or appropriate under the circumstances.”

To the extent that the Georgia Court of Appeals is authorized to award damages, defendant’s request for this Court to award it damages is hereby denied. See OCGA § 5-6-6 and Court of Appeals Rule 15 (b).

3. Defendant has filed a document entitled, “MOTION TO SUPPLEMENT APPELLANTS BRIEF” This document, however, requests no relief which the Georgia Court of Appeals has jurisdiction to consider. Accordingly, defendant’s “MOTION TO SUPPLEMENT APPELLANTS BRIEF” is hereby dismissed.

Judgment affirmed; motion to award damages and penalties denied.

Johnson and Ruffin, JJ, concur.


text:
    A96A2411.
    SOUTHERN WATER TECHNOLOGIES, INC. v. KILE.
    (481 SE2d 826)
   Judge Harold R. Banke.

A jury awarded Richard Van Kile unpaid sales commissions owed by Southern Water Technologies, Inc. (“SWT”) interest, and attorney fees. SWT enumerates five errors, primarily challenging the use of two special verdict forms and the denial of its motions for directed verdict.

Kile, a professional engineer, began working in 1989 for SWT, a sales company representing manufacturers of equipment for waste-water and water treatment plants. Kile’s written employment contract dated April 5, 1989, his starting day, provided that in addition to a monthly base salary, Kile would be “entitled to a commission amounting to 50% of future commissions received by the Company on account of that calendar year for commissions in excess of $65,000 paid to Company as a result of your efforts. Commissions will be payable quarterly on monies received in the previous quarter.” SWT’s president John S. “Chip” Allen III admitted at trial that this same salary/commission agreement had been reconfirmed each year that Kile worked for SWT.

Kile worked for SWT in 1992 and booked 1992 sales orders. After Kile sought commissions from SWT for jobs he sold in 1992 in excess of the $65,000 base amount, a dispute ensued. SWT adopted several stances: denying Kile’s entitlement to any commissions, acknowledging Kile’s entitlement to some commissions, and contending that the salary/commission agreement had been superseded by a June 10, 1992 memorandum which informed employees about SWT’s new policies on commissions. According to Paragraph 10 of that memorandum, “[i]n the event of termination of employment with the Company, for whatever reason, employee’s compensation shall cease, effective the termination date. Commissioned employees will receive a percentage of the commissions booked by the employee, upon receipt of these funds by the Company. Percentage will be based on project completion percentages as determined by the manufacturer involved.”

Kile testified that in April 1993, management informed him verbally and in writing that he was not owed any commission for his 1992 sales and that he would not be paid. That same month, Kile claimed that he overheard Allen, SWT president, and Larry Sears, SWT vice-president, discussing whether he would be likely to sue the company if he was not paid. According to Kile, at a meeting with Allen and Sears on June 1, 1993, both Allen and Sears declared that no contract existed and Sears informed him that SWT did not owe him commissions. Kile testified that they told him that he would not be paid 1992 commissions, and if he wanted 1992 commissions he would have to sue SWT. Kile was then given the choice of retracting his May 6 letter, in which he specified the commissions SWT owed, being fired, or resigning. Following that meeting, Kile submitted his written resignation, and about one month later sued SWT to recover the 1992 sales commissions. After Kile filed suit, SWT made two partial payments to him totaling $10,428.37.

At trial, Allen admitted that SWT had taken the position in early 1993 that there was no binding contract between SWT and Kile governing the 1992 commissions. However, Allen acknowledged that the $65,000 trigger formula was operative for 1992 and that the same salary/commission formula had been reconfirmed every year Kile worked for SWT. Allen conceded that SWT owed Kale at least $27,880 in earned commissions at the time of the June 1 meeting. By two special interrogatories the jury found that: (1) Paragraph 10 of the June 10,1992 memorandum did not become a part of the contract of employment between Kile and SWT, and (2) SWT had repudiated the contract of employment on June 1, 1993. Held:

1. SWT asserts that the trial court erred by submitting two special interrogatories to the jury. Submission of a special verdict form is a matter within the sound discretion of the trial court and absent an abuse of discretion, the court’s choice will not be overturned. Christiansen v. Robertson, 139 Ga. App. 423, 426 (5) (228 SE2d 350) (1976) (reversed on other grounds). Here, the trial court properly submitted to the jury the threshold disputed factual issue of whether Paragraph 10 became a part of the parties’ employment agreement. OCGA § 9-11-49 (a).

SWT was not entitled to a directed verdict on the issue of Paragraph 10 because there was some evidence to support the jury’s verdict. OCGA § 9-11-50 (a); Carden v. Burckhalter, 214 Ga. App. 487, 488 (1) (b) (448 SE2d 251) (1994). Kile testified that in late 1991, Allen confirmed that the same commission arrangement would be in effect in 1992. Allen admitted that the same salary/commission formula (as initially set forth in the 1989 contract) had been reconfirmed each year. It is undisputed that Kile’s assent to the memorandum containing Paragraph 10 was neither requested nor given. In the absence of evidence of mutual agreement, it cannot be said that a new contract was created. M. W. Buttrill, Inc. v. Air Conditioning Contractors, 158 Ga. App. 122, 124 (3) (a) (279 SE2d 296) (1981).

Nor did the trial court err in permitting the jury to decide whether SWT repudiated the contract on June 1, 1993, the day that SWT told Kile that he could resign, be fired, or retract his letter specifying the 1992 commissions. Based on the record before us, we are not able to find an abuse of discretion. Christiansen, 139 Ga. App. at 426 (5).

2. The trial court properly rejected SWT’s contention that Kile’s failure to present percentage completion evidence mandated a directed verdict. Although Paragraph 10 used a percentage of completion formula for calculating commissions, the applicable contract did not. Because the jury determined that Paragraph 10 was not in effect, Kile was not obligated to present evidence of compliance with that paragraph.

3. The trial court did not err in refusing to direct a verdict for SWT on the issue of attorney fees. OCGA § 13-6-11 allows recovery of attorney fees if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. A. P. S. S., Inc. v. Clary & Assoc., 178 Ga. App. 131 (2) (342 SE2d 375) (1986). Kile’s testimony that SWT’s management denied his right to commissions and told him that he would have to sue to recover them authorized attorney fees based on SWT’s bad faith refusal to perform under the contract. Id.; Walther v. Multicraft Constr. Co., 205 Ga. App. 815, 816 (2) (423 SE2d 725) (1992) (steadfast refusal to pay); McDonald v. Winn, 194 Ga. App. 459, 460 (1) (390 SE2d 890) (1990).

4. SWT contends that the trial court erred in denying its motion for directed verdict on the issue of interest. Notwithstanding SWT’s argument to the contrary, Kile did not seek to recover interest on the 1992 commission amounts as each became due; instead, Kale pursued only the interest for commissions unpaid as of June 1, 1993, an amount admitted by SWT as being $27,880. However, the only evidence offered as to the interest amount was Kile’s testimony that the prejudgment interest total was $4,394.60. Plaintiff’s Exhibit 21, reflecting how Kile calculated the interest, was not admitted into evidence. Thus, the jury’s award of $1,235.50 in interest, is not supported by the record.

Moreover, the trial court erred in charging the jury that it could award the interest rate of 1.5 percent per month on a “commercial account” under OCGA § 13-6-13 because Kile’s recovery was limited to the legal interest rate of seven percent under OCGA § 7-4-2 (a) (1) (A). OCGA § 7-4-16 authorizes the “owner” of a “commercial account” to charge interest on past due accounts. Turner Constr. Co. v. Electrical Distrib., 202 Ga. App. 726, 727 (3) (415 SE2d 325) (1992). Kile’s action against SWT is not based on a commercial account but on Kile’s asserted rights under the employment contract. Prejudgment interest on Kile’s breach of contract claim accrued from June 1, 1993, the date the jury determined that SWT repudiated the employment agreement. OCGA § 7-4-2; Turner, 202 Ga. App. at 727 (3). Accordingly, we vacate only the prejudgment interest portion of the judgment and remand for the trial court to award interest to be calculated at the rate of seven percent on $16,951.20 from June 1, 1993.

5. SWT’s contention that the trial court erred by failing to submit the issue of anticipatory breach to the jury is not supported by the record. Notwithstanding SWT’s claim to the contrary, the transcript shows that the trial court properly charged the jury on the concept of anticipatory breach, and properly recharged the jury on the distinction between repudiation of a contract and anticipatory breach.

Decided January 29, 1997

Reconsideration denied February 19, 1997

Drew, Eckl & Farnham, James M. Poe, for appellant.

James B. Ritchie, for appellee.

Judgment affirmed in part, reversed in part and remanded with direction.

McMurray, P. J, and Ruffin, J., concur.

       1992 was Kile’s first complete year of employment due to his active duty deployment for Operation Desert Storm between August 1990 and May 1991.

       The jury apparently subtracted $10,428.37, the amount SWT paid Kile after he filed suit and subtracted $500, a travel advance, from $27,880 to arrive at $16,951.20.


text:
    A97A0928.
    COUCH v. UNITED PAPERWORKERS INTERNATIONAL UNION et al.
    (482 SE2d 704)
   McMurray, Presiding Judge.

Jerry James Couch, an inmate at Johnson Correctional Institute in Wrightsville, commenced this pro se action against the United Paperworkers International Union, and its Local 983, alleging employment discrimination against a disabled adult. On October 8, 1996, the trial court granted summary judgment for the defendants on the grounds of federal preemption and the running of the applicable statute of limitation. On November 8, 1996, Couch filed a notice of appeal but addressed it to the United States District Court for the Southern District of Georgia. He later attempted to amend the notice of appeal on November 25, 1996, redirecting the matter to the Court of Appeals of Georgia. But on December 3, 1996, the trial court dismissed the appeal as untimely. Couch has not appealed from that dismissal. Held:

“A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of.” OCGA § 5-6-38 (a). Pretermitting whether, under the particular facts and circumstances of the case before this Court, a trial court is authorized to dismiss a notice of appeal on the ground that the same is not timely filed, it is the duty of this Court on its own motion to inquire into its jurisdiction. Thibadeau v. Hendon, 221 Ga. App. 258 (471 SE2d 52). “The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” Jordan v. Caldwell, 229 Ga. 343, 344 (191 SE2d 530). In the case sub judice, plaintiff’s notice of appeal is not timely. “Accordingly, we are without jurisdiction to consider this case. It must be dismissed.” White v. White, 188 Ga. App. 556, 557 (373 SE2d 824).

Decided January 23, 1997

Reconsideration dismissed February 19, 1997.

Jerry J. Couch, pro se.

Stanford, Fagan & Giolito, Megan E. Gideon, for appellees.

Appeal dismissed.

Beasley and Smith, JJ., concur.


author: POPE, Presiding Judge.

text:
    A95A1021.
    THE STATE v. GERBERT.
    (481 SE2d 874)
    Decided February 19, 1997.

      The Chestney Law Firm, Michael M. Hawkins, for appellant.

      Mumford, Myers & Mooney, Albert A. Myers III, for appellee.
   POPE, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, State v. Gerbert, 267 Ga. 169 (475 SE2d 621) (1996), our decision in State v. Gerbert, 219 Ga. App. 720 (467 SE2d 177) (1995), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

Andrews, C. J., McMurray, P. J., Birdsong, P. J., Beasley, Johnson, Blackburn, Smith and Ruffin, JJ., concur.


text:
    A96A1822.
    ARWOOD v. TZEN et al.
    (483 SE2d 149)
   Ruffin, Judge.

Eugene Arwood sued Jeffrey and John Tzen for injuries sustained when he slipped and fell in a convenience store managed by Jeffrey Tzen and located in a building owned by John Tzen. The trial court granted summary judgment to the Tzens, and Arwood appealed. For reasons which follow, we reverse.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “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. [Cit.]” Id.

The record reveals the following. Arwood entered the convenience store on a rainy day to purchase ice. He walked to the cash register and paid for the ice, which was kept outside the store. Arwood turned to his left to leave the store, took a few steps, and then decided he also wanted to purchase orange juice. Looking for the juice, he moved back to his right and slipped. According to Arwood, Jeffrey Tzen mopped the area after he fell and stated that water, grease and oil were on the floor. At his deposition, Arwood admitted that he “would have been able to see water on the floor if [he] had been looking.”

1. In his first enumeration of error, Arwood argues that the trial court erred in not considering his affidavit filed in response to the Tzens’ motion for summary judgment.

The record does not support Arwood’s claim that the trial court disregarded this affidavit. On the contrary, the summary judgment order specifically states that, before ruling, the trial court reviewed “the pleadings, depositions, affidavits, briefs and arguments of the parties and all other matters of record. . . .” (Emphasis supplied.) Because the record indicates that the trial court considered Arwood’s affidavit, this enumeration has no merit.

2. In his second enumeration, Arwood argues that the trial court erred in granting summary judgment to the Tzens. We agree.

“[T]o establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the customer must show (1) that the defendant had actual or constructive knowledge of a foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).” Hudson v. Quisc, Inc., 205 Ga. App. 840 (424 SE2d 37) (1992). The Tzens present no argument regarding their knowledge of the foreign substance. Instead, they focus on the second requirement and contend that summary judgment was proper because Arwood knew or should have known about the substance and failed to exercise ordinary care for his own safety.

(a) In particular, the Tzens claim that Arwood’s knowledge of the substance was equal to or greater than their knowledge because Arwood “had just walked through or by the place where he allegedly fell.” We have held that “ ‘[w]hen a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. [Cits.]’ [Cit.]” Lea v. American Home Equities, 210 Ga. App. 214, 215 (1) (435 SE2d 734) (1993). In this case, however, the evidence is not clear that Arwood “negotiated [the] alleged dangerous condition” before he fell.

The record reveals that Arwood stepped to his left to leave the store, then decided to purchase orange juice, moved back to the right and slipped. Arwood indicated that he had not previously been standing in the area where he slipped. He also testified that when he turned to his right to find the orange juice, he was not heading directly back to where he had been standing at the cash register. Furthermore, when asked whether he “actually walked through the area that [he] slipped in[,]” Arwood replied “no.” In their brief, the Tzens similarly indicate that Arwood may have just walked “by” the place where he slipped. In light of this testimony, we find that a material issue of fact remains as to whether Arwood successfully negotiated the alleged hazard before he fell.

(b) The Tzens also argue that Arwood did not take ordinary care to protect himself against the fall, authorizing summary judgment. Again, we disagree.

To support their argument, the Tzens claim that Arwood should have known that rainwater would be tracked into the convenience store by customers. “[W]hen it rains, the ordinary person is aware that water is apt to he found in any area frequented by people coming in from the rain outside.” Roby v. Kroger Co., 219 Ga. App. 459, 460 (465 SE2d 496) (1995). In rainy day slip and fall cases, we have upheld summary judgment where the customer knows of the rainy condition, and thus is aware that rainwater may be on the floor, and the proprietor takes reasonable steps to keep the rainwater mopped. See id.; Hagin v. Winn-Dixie Stores, 180 Ga. App. 303 (348 SE2d 766) (1986).

Although it was raining on the day of this incident, a dispute exists as to whether Arwood slipped on rainwater or some mixture of water, grease and oil on the floor. Jeffrey Tzen testified during his deposition that after the incident, he mopped the area where Arwood fell and found only rainwater. Arwood testified, however, that he heard Tzen describe the substance mopped up as “water, grease and oil.” Given this dispute, we cannot find that, as a matter of law, Arwood should have been aware that the foreign substance on which he slipped was apt to be found on the convenience store floor.

Decided February 19, 1997

Thomas M. Strickland, for appellant.

Mozley, Finlayson & Loggins, William D. Harrison, Lawrence B. Domenico, for appellees.

To further support their argument, the Tzens also point out that Arwood testified he was not “looking down” while in the store and that he admittedly “would have been able to see water on the floor if [he] had been looking.” “Although the duty to exercise ordinary care for one’s own safety does not require continuous scanning of the floor for hazards under all circumstances, it does require the use of one’s eyesight to discover and avoid plainly visible hazards on the floor in one’s path. [Cits.]” Moore v. Kroger Co., 221 Ga. App. 145, 147 (470 SE2d 529) (1996). In this case, a question of fact remains as to whether the alleged hazard was “plainly visible.” Arwood admitted that he could have seen water on the floor had he looked. His testimony indicates, however, that grease and oil were also present in the area where he fell. The Tzens have pointed to no evidence establishing whether Arwood slipped on water alone, or oil or grease alone, or on any combination of the three substances. Furthermore, they have pointed to no evidence establishing that Arwood could or should have seen the actual substance on which he slipped. Compare Moore, supra; Foodmax v. Terry, 210 Ga. App. 511, 513 (2) (436 SE2d 725) (1993).

We find that questions of fact remain in this case as to whether Arwood had equal or greater knowledge of the alleged hazard and whether he exercised ordinary care for his own safety. Accordingly, summary judgment was improper. S eeLau’s Corp., supra.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.


text:
    A96A1867.
    RICE v. THE STATE.
    (481 SE2d 839)
   McMurray, Presiding Judge.

Defendant and co-defendant Harris were charged in an indictment with trafficking in methamphetamine. The evidence adduced at a jury trial reveals that an undercover law enforcement officer, Detective Robert Roddy of the Atlanta Police Department, observed defendant in the baggage claim area of the Atlanta airport give a briefcase to co-defendant Harris which contained over 40 grams of methamphetamine. The jury found defendant guilty of the crime charged. The jury found co-defendant Harris not guilty. This appeal followed the trial court’s denial of defendant’s motion for new trial. Held:

1. Challenging the trial court’s denial of his motion for new trial, defendant contends he was denied effective assistance of counsel at a motion to suppress hearing because the attorney who then represented him also represented defendant’s mother on other criminal charges. Urging the existence of an actual conflict of interest, defendant argues that his mother gave law enforcement officers a tip which led to his arrest “in return for a reduced sentence” and that his former attorney — wishing not to compromise defendant’s mother — “asked no questions [at the motion to suppress hearing] regarding the participation of [defendant’s mother] in the arrest of her son[,] despite the fact that the prosecution had [an] ‘open file’ policy which made [defendant’s former attorney] privy to the information within that file regarding [defendant’s mother’s] involvement and despite the fact that [defendant’s former attorney] represented [defendant’s mother] through her plea pursuant to which she cooperated with law enforcement regarding her son. . . .”

Where there is new counsel appointed or retained, he must raise ineffectiveness of previous counsel at the first possible instance in the legal proceedings or waive the issue. White v. Kelso, 261 Ga. 32 (401 SE2d 733). In the case sub judice, defendant concedes in his brief that he retained another attorney a week before trial and the record and trial transcript reveal that defendant’s newly retained attorney did not raise the alleged ineffectiveness of defendant’s former attorney any time before or during trial. Further, the following dialogue between the trial court and defendant’s newly retained attorney indicates that both defendant and defendant’s newly retained attorney were aware before trial of the circumstances which form the basis of defendant’s ineffective assistance of counsel claim: “THE COURT: All right. Anything before we bring the jury in to be sworn? [DEFENSE COUNSEL]: Your Honor, I’m not sure if the Court Reporter was present yesterday when I gave the offer to file a motion to suppress and the Court advised that the motion would not be heard. THE COURT: I’ve already had a motion to suppress. [DEFENSE COUNSEL]: I understand, Your Honor. I just wanted to note that I made an effort. Since I came into this case late and just had an opportunity to read the transcript of those proceedings, I felt that there were matters that were not utilized that were in the file and to renew that motion might be appropriate. That being the case, I have discussed this matter with my client considering all of the facts and potential effects of not having a motion heard and the evidence that will be presented in the case. We had an opportunity to discuss it in great length out in the hallway and his desire to proceed forward in the case and he has made a decision to do that. With that, Your Honor, I believe we’d pronounce ready. THE COURT: Ready? All right. Bring the jury in.”

While we find no case involving waiver of ineffectiveness of counsel based on a conflict of interest under circumstances such as the case sub judice, “we recognize the rule that objection to counsel’s qualification to represent multiple criminal defendants must be raised prior to trial. Brown v. State, 247 Ga. 298 (275 SE2d 52) (1981).” Hudson v. State, 250 Ga. 479, 481 (299 SE2d 531). Of course, in order for this rule to apply in the case sub judice, it must affirmatively appear that defendant and his newly retained attorney were aware of the alleged conflict of interest which adversely affected defendant’s former attorney’s performance at the motion to suppress hearing. Since the record amply demonstrates that both defendant and his newly retained attorney knew of such an alleged conflict of interest before trial but failed to assert an ineffective assistance of counsel claim when the alleged conflict was known, defendant’s ineffective assistance of counsel claim “ ‘will be held in contemplation of the law to have been waived. This ground of [defendant’s] motion (for new trial) should have been brought at once to the attention of the [trial] court. [Defense counsel] cannot remain silent and take the chances of an acquittal for his client, and upon failure, make it a good ground for a new trial.’ Lyman v. State, 69 Ga. 404, 407 (4); accord Kirk v. State, 73 Ga. 620 (3); Salter v. Glenn, Duffield & Co., 42 Ga. 64, 82 (2) (judgment affirmed even though it was expressly observed that the misconduct in the case, although explained, was still uncertain as to its effect upon the finding); compare Roberson v. State, 15 Ga. App. 545, 551 (3) (83 SE 877) (observing that, absent a showing the prevailing party or some party directly interested was a party to the irregularity, waiver will apply not only where misconduct or irregularity was known to movant, but also where it did not affirmatively appear from the record that the misconduct or irregularity was unknown); see also Thacker v. State, 226 Ga. 170, 181 (173 SE2d 186), citing Lyman, supra.Hand v. State, 205 Ga. App. 467 (1), 468 (422 SE2d 316).

Defendant and defendant’s newly retained attorney, knowing before trial of the alleged conflict of interest which forms the basis of defendant’s ineffective assistance claim and, by trial tactics, electing not to report the matter promptly to the trial court, waived the issue. Accordingly, the trial court did not err in denying defendant’s motion for new trial based on defendant’s ineffective assistance of counsel claim.

2. Defendant contends the trial court improperly limited his cross-examination of Detective Roddy, the undercover law enforcement officer who observed defendant carrying a briefcase that contained over 40 grams of methamphetamine.

In response to defense counsel’s cross-examination, Detective Roddy pertinently explained that he first observed defendant and co-defendant Harris in the airport’s baggage claim area from a distance of “thirty or forty feet” and that he watched defendant hand the briefcase in question to co-defendant Harris just before defendant “reached down to carousel number eight and removed the Body Glove brand soft sided bag that had been checked that came in on Flight 1066.” The following then transpired: “[DEFENSE COUNSEL]: If you were forty feet, that’s probably where the door is. [RODDY]: You’re asking me to guess. I’m not real sure. How far is it to the door? [DEFENSE COUNSEL]: Well, do you have any idea how far it is? [RODDY]: I’m asking you. I’m not real sure exactly how far it is. [DEFENSE COUNSEL]: I ask the questions. Was it as far as that? [RODDY]: It could have been a little further. [DEFENSE COUNSEL]: It was further than that? [RODDY]: It could have been. I’m not sure. [DEFENSE COUNSEL]: I’m trying to figure out who you saw with this man. [RODDY]: I’ve testified to that. THE COURT: Counsel, you’ve asked enough. Go on to something else. We’ve done beat this horse to death. Ask more relevant questions. [DEFENSE COUNSEL]: Your Honor, I believe he’s testified as to where he was. THE COURT: Pass on. That question has been asked and answered. You’re doing nothing but harassing the witness. Now go on to something that’s relevant. [DEFENSE COUNSEL]: Was the airport full of people? [RODDY]: There were a number of people there. I don’t know how many. [DEFENSE COUNSEL]: Okay. Between [defendant] Rice and [co-defendant] Harris was your view obstructed by persons that were coming there to claim their bags when you first saw him? THE COURT: What’s the relevance now? [DEFENSE COUNSEL]: Your Honor, we believe that this man and this woman [defendant’s mother] that was right there with them and in addition to that, who had this briefcase is important. What he can see across his field of vision as to who had the briefcase as they walk along. All that is important. THE COURT: Go on to something that’s relevant. [DEFENSE COUNSEL]: Pardon me? THE COURT: He’s testified to what he saw. Go on to something else now. [DEFENSE COUNSEL]: Well, I’m asking about his field of vision. THE COURT: Go on to something else, Counsel. We’ve beat that horse enough.”

We find that the trial court did not abuse its discretion in curbing defense counsel’s cross-examination of Detective Roddy. See Hudson v. State, 137 Ga. App. 439 (1) (224 SE2d 48). Moreover, we find that even if the court erred in regulating defense counsel’s cross-examination, “the error was harmless in view of the fact the testimony sought to be elicited by [defense counsel] from this witness would have been cumulative of other testimony.” Gaither v. State, 259 Ga. 200, 201 (2) (378 SE2d 464). In this regard, defendant admitted while testifying in his own behalf at trial that he was in possession of the briefcase in question, explaining that he carried the briefcase through airport security devices before reaching the baggage claim area. Further, Detective Roddy testified that he had never observed defendant’s mother before trial, much less at the airport when he saw defendant in possession of a briefcase which contained over 40 grams of methamphetamine.

Decided February 7, 1997

Reconsideration denied February 20, 1997

Alexander J. Repasky, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

3. Defendant’s third enumeration of error provides as follows: “The trial court erred in its admission of a brief case into evidence over [his] objections when said brief case was unmarked as an exhibit and Defense counsel was not allowed to inspect it prior to its admission into evidence.” This contention is not supported by the record.

The briefcase defendant refers to in this enumeration of error is the briefcase containing the contraband that defendant was carrying at the Atlanta airport. The trial transcript reveals that this briefcase was marked as State’s Exhibit 2 and that the trial court gave defense counsel an opportunity to examine the briefcase and its contents before it was admitted into evidence at trial.

Defendant’s assertion that the State deliberately withheld exculpatory information from him by not allowing him to examine the contents of the briefcase in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215), goes beyo6nd the scope of this enumeration of error as presented to us for review. “On appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration. Nobles v. State, 191 Ga. App. 594, 599 (6) (382 SE2d 637).” Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522).

4. Contrary to defendant’s final enumeration of error, the evidence adduced at trial was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of trafficking in methamphetamine by actually possessing 28 grams or more of the contraband in violation of OCGA § 16-13-31 (e). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Query v. State, 217 Ga. App. 61, 63 (1) (456 SE2d 704).

Judgment affirmed.

Johnson and Ruffin, JJ, concur in the judgment only.


author: McMURRAY, Presiding Judge.

text:
    A96A2353.
    T.O.H. ASSOCIATES, LTD. et al. v. 2B ENTERPRISES, INC. et al.
    (482 SE2d 393)
   McMURRAY, Presiding Judge.

2B Enterprises, Inc., d/b/a RBI Baseball Emporium (“RBI”), and Bradford D. Lloyd filed an action against T.O.H. Associates, Ltd., a Georgia Limited Partnership, Edward L. Terry, Arthur Heyman and S. Kent Owing (defendants), alleging defendants duped Lloyd into executing a real estate lease on RBI’s behalf by misrepresenting that the “lease premises” was suitable for indoor recreational use. The evidence adduced at a jury trial supports these allegations, revealing that defendants knew the “lease premises” was not zoned for recreational use but, nonetheless, assured plaintiffs during lease negotiations that the “lease premises” could be used for indoor recreational purposes and warranted, in the lease agreement’s “PERMITTED USE” section, that the premises was appropriate for “General office/ warehouse use, baseball training facility and sales of baseball supplies.” It is undisputed, however, that Lloyd executed the lease and that RBI began preparing the “lease premises” for recreational use without ascertaining whether such use conformed with local zoning standards.

The jury returned a $34,887.32 verdict on RBI’s and Lloyd’s fraud claims and awarded RBI and Lloyd $81,266.46 for attorney fees and expenses of litigation pursuant to OCGA § 13-6-11. This appeal followed the trial court’s denial of defendants’ motion for judgment notwithstanding the verdict. Held:

“The tort of fraud has five elements: (1) a false representation by defendant; (2) scienter; (3) an intention to induce the plaintiff to act or refrain from action; (4) justifiable reliance by the plaintiff; and (5) damages. Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989).” Wiederhold v. Smith, 203 Ga. App. 877, 878 (1) (418 SE2d 141). In the case sub judice, defendants argue that Lloyd’s and RBI’s lack of diligence in investigating the zoning status of the “lease premises” eliminates the element of justifiable reliance. We are compelled to agree.

In Hill v. Century 21 &c., 187 Ga. App. 754 (371 SE2d 217), the Hills alleged that Kruezburg — a real estate sales agent — duped them into purchasing real property by deliberately misrepresenting that the property was commercially zoned and suitable for use as a used car lot. Just as Lloyd and RBI in the case sub judice, however, the Hills did not attempt to ascertain for themselves the zoning status of the subject real property prior to closing, and as a consequence, this Court affirmed the trial court’s order granting Kruezburg’s motion for summary judgment based on the following logic: “While questions of due diligence often must be resolved by the trier of fact, that is not always the case. One may fail to exercise due diligence as a matter of law. See Bowen & Bowen v. McCoy-Gibbons, 185 Ga. App. 298, 303 (1) (363 SE2d 827) (1987). This is such a situation. Because plaintiffs[, the Hills,] failed to exercise due diligence, they were not justified in relying upon any zoning representations made by Kruezburg[, the defendant]. ‘ “ ‘(W)hen the means of knowledge are at hand and equally available to both parties to a contract of sale, if the purchaser does not avail himself of these means, he will not be heard to say, in impeachment of the contract, that he was deceived by the representations of the seller.’ (Cit.)” (Cit.)’ Lorick [v. Na-Churs Plant Food Co., 150 Ga. App. 209 (2) (257 SE2d 332)].” Hill v. Century 21 &c., 187 Ga. App. 754, 755 (2), 756, supra.

RBI and Lloyd contend Hill is distinguishable because Hill involved a lack of diligence by purchasers seeking a freehold interest in commercial real property while the case sub judice involves a corporation, RBI, and a businessman, Bradford D. Lloyd, seeking a leasehold interest in commercial real property. RBI and Lloyd, however, give no significant reason Bradford D. Lloyd’s and RBI’s responsibilities — as capital investors seeking a place to do business — should be any less than the adjudicated responsibilities of the capital investors in Hill, who were also seeking a place to do business. In fact, the commercial lease transaction in the case sub judice appears to call for the same, if not more, responsibility and attention to detail than the commercial sales transaction in Hill. For instance, the transaction in Hill involved a husband and wife team representing their own interests in acquiring a place to operate a used car lot while the transaction in the case sub judice involves a corporation that employed a real estate sales professional to negotiate a lease, involving a 38-month rental expense obligation in excess of $134,000, to operate an indoor baseball training facility and sporting goods store. Under these circumstances, and in view of the fact that RBI and Lloyd were not seeking an unsophisticated leasehold interest and the fact that RBI and Lloyd had equal access to the public zoning records in the county where the “lease premises” is located, we see no basis for distinguishing the commercial lease transaction in the case sub judice from the commercial real estate sales transaction in Hill v. Century 21 &c., 187 Ga. App. 754, 755 (2), 756, supra. Because neither Lloyd nor any other RBI agent investigated the zoning status of the “lease premises” in question before Lloyd executed the lease agreement on RBI’s behalf, RBI and Lloyd were not justified — as a matter of law — in relying upon any land use representations made by defendants. Further, in the absence of such justifiable reliance, we find no evidence of defendants’ bad faith and stubborn litigiousness in the transaction. OCGA § 13-6-11. See Hill v. Century 21 &c., 187 Ga. App. 754, 755 (2), 756, supra. Consequently, the trial court erred in denying defendants’ motion for j.n.o.v.

Decided February 7, 1997

Reconsideration denied February 20, 1997

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

Roberts, Isaf & Summers, Lawrence E. Newlin, Jill D. Prussack, for appellees.

Judgment reversed.

Johnson and Ruffin, JJ, concur.

       Compare Wiederhold v. Smith, 203 Ga. App. 877, supra, where purchasers of a residential lot did not have equal knowledge of records — maintained in the files of the Department of Public Works of Fulton County — providing public notice of the subject lot’s latent physical defect. Id. at 879 (2).