author: Birdsong, Presiding Judge.

text:
    A97A1213.
    CRISP COUNTY SCHOOL SYSTEM et al. v. BROWN.
    (487 SE2d 512)
   Birdsong, Presiding Judge.

Appellants Crisp County School System et al. appeal from the order of the superior court denying their motion for summary judgment. This appeal arises from a suit for damages.

On September 16, 1994, appellant Wendell Herndon, a physical education teacher and an employee of appellant school system, instructed his class to complete an obstacle course which required them to traverse monkey bars. One of his students, Fredrica Brown, told Herndon that she did not think she could cross the bars. Herndon instructed her to try, and in doing so, the student fell from the bars breaking her arm. (Appellant school system has now and had then a liability insurance policy.) Fredrica’s mother, Jacqueline Brown, brought suit on behalf of her daughter averring negligent supervision on the part of Herndon and against the school system and board of education for failing to promulgate sufficient rules governing supervision of students with physical and mental limitations. Appellants moved for summary judgment contending they were immune from suit; the trial court denied the motion. Held-.

1. The sovereign immunity of the state and its departments and agencies can be waived only by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver. Art. I, Sec. II, Par. IX (e), Ga. Const. of 1983, as amended in 1991. The Crisp County School System is a political subdivision of the State of Georgia (Ga. L. 1957, pp. 2066, 2068, 2078-2079), and is vested with sovereign immunity, unless such immunity is specifically waived as provided by Art. I, Sec. II, Par. IX (e). See generally Holloway v. Dougherty County School System, 157 Ga. App. 251 (277 SE2d 251); compare Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294-295 (454 SE2d 149). In fact, the General Assembly expressly reserved the Crisp County School System’s right of sovereign immunity from suits in tort when it enacted legislation creating the school system and provided: “The Crisp County School Systemf’s] . . . object is declared to be governmental and shall not be liable to suit in actions arising ex delicto, except where specifically authorized by law,” Ga. L. 1957, p. 2075; see Holloway, supra at 252. “Under the authority of the 1991 constitutional amendment, the General Assembly subsequently enacted ‘The Georgia Tort Claims Act’ (OCGA § 50-21-20 et seq.), applicable to causes of action accruing on or after January 1, 1991. The Georgia Tort Claims Act provides for a limited waiver of the state’s sovereign immunity for the torts of its officers and employees, but it expressly excludes school districts [and ‘other local authorities’] from the waiver. OCGA § 50-21-22 (5).” Coffee County, supra at 295. The Crisp County School System is excluded from the provisions of the Georgia Tort Claims Act under the language scope of OCGA § 50-21-22 (5). “Although the 1991 amendment [to Art. I, Sec. II, Par. IX] does not restrict the legislature’s authority to waive sovereign immunity to the Georgia Tort Claims Act, any such waiver must be by a ‘legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver.’ [Cit.]” Coffee County, supra at 295. We cannot find and appellants do not cite us to any promulgated legislative act which specifically provides that the sovereign immunity of school systems has been waived and the extent of such waiver. Moreover, the provisions of OCGA § 20-2-991, authorizing the purchase of liability insurance by the board of control or education of various school systems and related educational institutions, do not provide for a waiver of sovereign immunity as contemplated by the 1991 constitutional amendment. Id.; compare Rawls v. Bulloch County School Dist., 223 Ga. App. 234 (477 SE2d 383) (OCGA § 20-2-1090, which requires the purchase of certain insurance for children riding school buses, does not provide for a waiver of sovereign immunity by county school boards). There has been no waiver of official immunity by the mere existence of the school system’s liability policy. Davis v. Dublin City Bd. of Ed., 219 Ga. App. 121, 123 (3), (4) (464 SE2d 251).

Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) is distinguishable and not controlling as to the issue of waiver of sovereign immunity. The waiver of immunity provided by OCGA § 33-24-51 (a), as addressed in Gilbert, pertains only to liability insurance purchased by a municipal corporation, county or other political subdivision “to cover liability for damages . . . arising by reason of ownership, maintenance, operation, or use of any motor vehicle” by said political subdivisions. No such insurance is involved in this case. Although Gilbert, supra at 751 (5), contains dictum broadly stating, “[r]egardless of the label placed on a liability policy by a governmental entity,. . . liability insurance protection purchased or created by a governmental entity to insure against its own liability waives that entity’s sovereign immunity,” consistent with the provisions of Art. I, Sec. II, Par. IX (e), such language clearly was limited by the case facts to “the purchase of insurance as contemplated by § 33-24-51 (b).” Id. at 752 (5); Woodard v. Laurens County, 265 Ga. 404 (456 SE2d 581).

There being no waiver of sovereign immunity by the mere purchase of liability insurance (see generally id.; see also Blumsack v. Bartow County, 223 Ga. App. 392, 393 (1) (477 SE2d 642)), appellant school system is entitled to assert the sovereign immunity defense. Coffee County, supra at 295-296. Moreover, as clarified in Gilbert, supra at 750 (4), any cause of action averred against an officer or employee of the school system or county board of education (including appellant Herndon) in their official capacity is in reality a suit against the state and, therefore, involves sovereign immunity.

2. The 1991 constitutional amendment provides no official immunity defense for ministerial acts negligently performed or for discretionary acts performed with actual malice or an intent to injure. Woodard, supra at 406 (2); see generally Merrow v. Hawkins, 266 Ga. 390 (467 SE2d 336). However, the public officers and employees of the Crisp County Board of Education and appellant school system (including appellant Herndon) are entitled to official immunity, regarding any cause of action averred against them in their private (individual) capacity, when they are sued for discretionary acts taken within the scope of their employment and without actual malice or an actual intent to injure. See generally Art. I, Sec. II, Par. IX; Merrow, supra; Woodard, supra at 406 (2). “Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case.” Id. at 407 (2). The term “actual malice,” as it is used in the context of official immunity, “requires a deliberate intention to do wrong.” Merrow, supra at 391. Actual malice in this context is malice in fact, and it does not encompass the legal principle of implied malice. Thus, actual malice does not include “conduct exhibiting a ‘reckless disregard for human life,’ ” or “ ‘acts involving reckless disregard for the safety of others.’ ” (Citations omitted.) Id. at 392 (2). Thus, “the drafters intended the 1991 amendment to exclude any liability for injuries and damages if officers and employees act with implied malice in the performance of their official functions,” id., and henceforth we must avoid erroneously applying prior case law which utilized implied malice principles in the resolution of official immunity issues.

“Generally, the determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis.” Wright v. Ashe, 220 Ga. App. 91, 93 (469 SE2d 268). The specific acts of appellant Herndon, as averred in the complaint and revealed in supporting affidavits in the record before us, clearly constituted supervisory and monitoring acts of an educator. When directing Brown to traverse the monkey bars, notwithstanding her protestations that she did not know how to do so, appellant Herndon was engaged in the tutorial supervision of Brown, vis-a-vis their physical education teacher-student relationship. Appellant Herndon’s decision as to where to stand to best observe his students during their performance of their physical education assignments constituted an act of tutorial monitoring. “[T]he general task imposed on teachers to monitor, supervise, and control students has also been held to be a discretionary action which is protected by the doctrine of official immunity.” Id. at 94. The decisions and acts of appellant Herndon, regarding the degree of monitoring, supervision and control which he exercised over his student, Brown, in the case at bar were discretionary functions. See Coffee County, supra at 297 and cases cited therein.

Likewise discretionary were the decisions of the members of the county board of education whether to promulgate guidelines and rules governing the supervision of students with mental and physical limitations and, if so, the scope of such rules; e.g., “[t]he Georgia courts have consistently held that making decisions regarding the means used to supervise school children is a discretionary function of the school principal.” Wright, supra at 93-94. Moreover, decisions regarding such guideline promulgation call “ ‘for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.’ ” (Citation omitted.) Hemak v. Houston County School Dist., 220 Ga. App. 110, 112 (469 SE2d 679).

There exists no evidence whatsoever in this record that the decisions and omissions of the members of the county board of education, regarding the averred discretionary functions, were undertaken either with actual malice or an actual intent to injure within the meaning of Merrow, supra, and Woodard, supra. Accordingly, the members of the county board of education were entitled to assert the defense of official immunity and to obtain summary judgment regarding any claims averred against them in their private (individual) capacities.

While conceivably there might exist some slight evidence in the record giving rise to a genuine issue of material fact whether appellant Herndon, by his conduct, exhibited a reckless disregard for the safety of Brown, such a finding no longer will prevent an official immunity defense. See, e.g., Merrow, supra at 392. Conversely, there exists no evidence in the record which gives rise to any genuine issue of material fact that appellant Herndon’s conduct was undertaken either with actual malice or with an actual intent to injure. Accordingly, Herndon also was entitled to assert the defense of official immunity and to summary judgment regarding any claims averred against him in his private (individual) capacity.

Decided June 11, 1997.

Before Judge Forrester.

Martin, Snow, Grant & Napier, Robert R. Gunn II, Thomas P. Allen III, for appellants.

Natalie M. Haugabrook, for appellee.

Jacqueline Brown, pro se.

Further, appellant school system could not be held liable, under the doctrine of respondeat superior, for any negligence of appellant Herndon arising out of the scope of his employment. While the official immunity of a public officer or employee does not protect a governmental entity from liability under the doctrine of respondeat superior, a county school system or school district may be liable in its official capacity for its officer’s or employee’s negligence in performing an official function only to the extent the county school system or school district has waived sovereign immunity. See generally Gilbert, supra at 754, and cases cited therein. As no waiver of sovereign immunity occurred in this case (see Division 1 above), appellant school system cannot be held liable, under the doctrine of respondeat superior, for any alleged negligence of appellant Herndon.

Appellee’s contentions in support of the ruling of the trial court are without merit. In view of our holdings in Divisions 1 and 2 above, we find that the trial court erred in denying appellants’ motion for summary judgment.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A0296.
    SYKES v. COLONY REGENCY PARTNERS, LTD. et al.
    (487 SE2d 408)
   Johnson, Judge.

Connie Sykes appeals from the trial court’s grant of summary judgment to Colony Regency Partners Limited d/b/a Regency Park Apartments, and H.D.S. Contractors, Inc., in this action for damages stemming from Sykes’ fall on premises owned by Colony Regency and being repaired by H.D.S.

Sykes had lived at Regency Park Apartments for five years when on May 20, 1994, sometime between 8:00 p.m. and 8:30 p.m., she left her apartment en route to the parking lot. Sykes walked on the sidewalk and then took a short cut along a dirt path between two apartment buildings toward another sidewalk. A light fixture in the area was not working. As Sykes stepped from the dirt path, she did not notice that the section of sidewalk onto which she stepped was under repair and its surface had been removed. The parties estimate the excavation to have been approximately six to twelve inches deep, three to four feet wide, and eight feet long. No warning sign, tape or barricade had been placed near the excavation site. As soon as she stepped onto the sidewalk, Sykes fell and severely injured her ankle.

Sykes filed suit alleging Colony Regency and H.D.S., one of the companies repairing the sidewalk, were responsible for her injuries because they failed to warn pedestrians of the hazard and to provide adequate lighting in the area. Colony Regency and H.D.S. moved for summary judgment, claiming that the condition of the sidewalk was easily discernible and that Sykes simply failed to exercise ordinary care for her own safety.

In her deposition, Sykes testified that although it was not “pitch black” outside, it was dark. She was able to see the ground when walking on the dirt path and could see well enough to walk to her car and get in it. However, in response to a question, she acknowledged that she could hardly see anything. Sykes stated she would have been able to see the hole in the sidewalk if the sun had been out or if the light fixture had been working. When asked whether she was looking up or down when she stepped onto the defective sidewalk, Sykes responded that she was not sure but she “thought there was a sidewalk because there’s been a sidewaF there for years.” She had last used the sidewalk a week earlier, at which time it was in good condition.

In response to the appellees’ motions for summary judgment, Sykes submitted an affidavit in which she stated she was unaware that the sidewalk was being repaired and, while walking on the dirt path, “I looked in front of me and saw the outline of the sidewalk . . . [but] did not notice that a section of the sidewalk had been removed.” She averred that her vision was obscured by darkness and shadows created by the buildings and that, while she could not recall where she was looking at the exact moment she stepped onto the sidewalk, she believed the defect would have been difficult to detect because of the darkness, shadows and the fact that color similarities caused the intact and excavated sections of sidewalk to blend together.

“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1; Commerce Properties v. Linthicum, 209 Ga. App. 853, 854 (2) (434 SE2d 769) (1993). The basis for the owner’s liability is his superior knowledge of the danger or defect which caused the injury. If the invitee knows of the condition or hazard, the owner has no duty to warn the invitee and is not liable for the injury because the invitee has as much knowledge as the owner does. Huntley Jiffy Stores v. Grigsby, 208 Ga. App. 634, 635 (431 SE2d 435) (1993). “[0]ne is under a duty to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be; not performing this duty may amount to a failure to exercise ordinary care for one’s safety as would bar a recovery for resulting injuries.” (Citations and punctuation omitted.) Wallace v. Pointe Properties, 202 Ga. App. 537, 538-539 (414 SE2d 678) (1992).

Colony Regency and H.D.S. do not deny that they knew about the hazardous condition of the sidewalk. Therefore, this case turns on whether Sykes’ failure to observe the defect amounted to a lack of reasonable care and, if so, whether her negligence outweighed any possible negligence on the part of the appellees in failing to provide some type of warning and proper lighting in the area. See Pinkney v. VMS Realty, 189 Ga. App. 177, 179 (375 SE2d 90) (1988). The sidewalk was not in disrepair the last time Sykes used it. There was evidence that the excavation was not in plain view and was difficult to discern due to darkness, shadows and color similarities between the excavated and intact sections of sidewalk.

In general, “negligence issues are susceptible to summary adjudication only in plain, palpable and indisputable cases; the evidence must be construed most favorably to the party opposing the motion, and he must be given the benefit of all favorable inferences and reasonable doubts which may arise from the evidence. Summary judgment may be granted only where, construing all inferences against the movant, it yet appears without dispute that the case can have but one outcome and that outcome must be in the movant’s favor.” (Citation and emphasis omitted.) Greenforest Baptist Church v. Shropshire, 221 Ga. App. 465, 466 (471 SE2d 547) (1996). Whether an invitee maintained a reasonable lookout for her own safety depends on the facts and circumstances at the time and place of the fall. Bodenheimer v. Southern Bell Tel. &c. Co., 209 Ga. App. 248, 249 (433 SE2d 75) (1993). We cannot say that the facts presented here show, as a matter of law, that Sykes failed to exercise reasonable care for her own safety.

Although Colony Regency and H.D.S. argue Sykes made inconsistent statements in her deposition and in her affidavit which should be construed against her, see Prophecy Corp. v. Charles Rossi gnol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), we do not agree that the statements were necessarily inconsistent. Sykes consistently maintained that it was dark outside and that darkness interfered with her ability to see. The issues of whether Sykes failed to exercise ordinary care and, if so, whether her negligence outweighed any negligence on the part of Colony Regency and H.D.S. in failing to warn pedestrians or illuminate the area cannot be resolved as a matter of law. See generally Pinkney, supra. Accordingly, the trial court improperly granted summary judgment in this case. See Vizzini v. Blonder, 165 Ga. App. 840, 841 (303 SE2d 38) (1983).

Decided May 29, 1997

Reconsideration denied June 12, 1997

Before Judge Carnes.

Dudley, Norton & Singleton, Ainsworth G. Dudley, Jr., for appellant.

Jenkins & Nelson, Prank E. Jenkins III, Peter R. Olson, Sullivan, Hall, Booth & Smith, Roger S. Sumrall, Bach & Hulsey, John C. Bach, for appellees.

Judgment reversed.

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


author: Beasley, Judge.

text:
    A97A0431.
    WASHINGTON v. THE STATE.
    (487 SE2d 663)
   Beasley, Judge.

Washington pled guilty to possession of less than one ounce of marijuana. OCGA § 16-13-30 (j) (1). He filed a motion to withdraw his guilty plea and appealed from the denial of that motion. The appeal was dismissed as untimely, and the trial court subsequently granted his motion for an out-of-time appeal.

1. Washington contends his conviction is a nullity because the State Court of Clayton County did not have jurisdiction to try him on the charge of possession of marijuana. See Bass v. State, 169 Ga. App. 520 (313 SE2d 776) (1984).

This issue was decided in Kent v. State, 129 Ga. App. 71 (198 SE2d 712) (1973), and Williams v. State, 222 Ga. App. 698 (1) (475 SE2d 667) (1996). The conviction must be reversed. The State urges the court to overrule Kent and Williams, but they present the correct analysis. As stated in Williams, supra at 698 (1), “OCGA § 16-13-30 (j) outlines the general rule that possession of marijuana constitutes a felony. One limited exception to this general rule is found in OCGA § 16-13-2 (b). . . .” That exception makes a defendant who could be eligible for first offender treatment under OCGA § 16-13-2 (a) “guilty of a misdemeanor” and subject to punishment accordingly. Any subsequent conviction for possession of less than one ounce of marijuana merely “shall be punished as a misdemeanor” but remains a felony. (Emphasis and footnote omitted.) Williams, supra at 698 (1). The statute does not change the classification from felony to misdemeanor for subsequent offenses, as it does for the first offense. OCGA §§ 16-13-30 (j) and 16-13-2 (b) must be read in tandem.

Decided June 12, 1997.

Before Judge Carbo.

Colette B. Resnik, for appellant.

Keith C. Martin, Solicitor, Clara E. Bucci, Assistant Solicitor, for appellee.

Washington had previously been convicted of possession of marijuana and cocaine, and the court was made aware of that at sentencing. He was thus not a “person who has not previously been convicted of any [drug] offense” under OCGA § 16-13-2 (a), and therefore did not come within the exception of OCGA § 16-13-2 (b). The accusation did not, and could not, affirmatively show he was a first offender. See Williams, supra at 699. As made clear in Kent, in order “to charge an accused . . . with a misdemeanor, and thus confer jurisdiction in the state court, the indictment/accusation forming the basis for the [charge], must affirmatively show that the accused is charged with the possession of one ounce or less of marijuana . . . and that the accused is a first offender.” (Emphasis in original.) Kent, supra at 71. Possession of one ounce or less of marijuana was a felony, .and the state court did not have jurisdiction. Ga. Const. of 1983, Art. VI, Sec. IV, Par. I; OCGA § 15-7-4 (1); Williams, supra; Bass, supra.

Although the State contends that the true intent of the General Assembly is that possession of one ounce or less of marijuana is always a misdemeanor regardless of the defendant’s criminal history, we cannot ignore the plain language of OCGA § 16-13-30 (j) (2), specifying it as a felony unless the exception of OCGA § 16-13-2 applies. If the intent of the General Assembly is otherwise, it must be clearly articulated.

2. Washington’s other enumeration of error is moot.

Judgment reversed.

McMurray, P. J, and Smith, J., concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A97A0917.
    DAL-TILE CORPORATION v. CASH N’ GO, INC.
    (487 SE2d 529)
   McMurray, Presiding Judge.

Defendant Dal-Tile Corporation (“Dal-Tile”) appeals from a bench trial ruling and judgment finding it liable to plaintiff Cash N’ Go for the amount of a check Dal-Tile wrote to Georgia Southside Commercial (“GSC”). After Cash N’ Go cashed the $45,081.70 check, Dal-Tile stopped payment on it because GSC’s president, George Pearson, had obtained the check from Dal-Tile on false pretenses. The trial court found Cash N’ Go to be a holder in due course and rejected Dal-Tile’s illegality defense. Dal-Tile claims the trial court’s findings were erroneous as a matter of law. Held:

“In bench trials, the trial judge sits as the trier of fact and [her] findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) McMillan v. Motor Warehouse, 221 Ga. App. 550, 551 (472 SE2d 120) (1996). The court found that in 1994, GSC obtained a subcontract to perform ceramic tile work for a federal construction project on which Blake Construction Company (“Blake”) was the general contractor. To induce Dal-Tile to sell material to GSC, Blake agreed it would pay for the necessary tile by check payable jointly to GSC and Dal-Tile. Pearson or someone at his direction forged Dal-Tile invoices, sent them to Blake, and in return obtained a check made jointly to GSC and Dal-Tile in the amount of $97,199.75. On December 28, 1994, Pearson went to Dal-Tile and negotiated the Blake check to the supplier. In return, Dal-Tile drew a check in the amount of $45,081.70, payable to GSC, representing the difference between the amount owed Dal-Tile for materials and the amount of the Blake check.

On the evening of December 28, Pearson negotiated this Dal-Tile check to Cash N’ Go, which recognized Pearson as the authorized representative of GSC and which had previously cashed, without incident, Dal-Tile checks made to GSC and endorsed by Pearson. The next day, Dal-Tile learned of the forged invoices and stopped payment on the check. Based on these facts, the trial court ruled Cash N’ Go had acted in good faith without notice of any defect in the title to the check. The trial court noted, however, that earlier in 1994 Pearson had cashed without authorization checks made to GSC and another company. The court found the other company had eventually released its claims against Cash N’ Go stemming from Pearson’s actions.

The record fully supports these factual findings. The questions before this Court are whether these findings support the court’s legal conclusions, by which it found Cash N’ Go was a holder in due course of the Dal-Tile check and rejected Dal-Tile’s defense of illegality.

1. A holder of a check is a holder in due course if he takes the check for value, in good faith, and without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person. OCGA § 11-3-302 (1) (1994 version). The UCC definition of “good faith” applicable here is “honesty in fact in the conduct or transaction concerned.” OCGA § 11-1-201 (19). Based on the evidence before it, the trial court was authorized to conclude that Cash N’ Go acted honestly and without notice of dishonor, defenses, or claims against the instrument. See OCGA § 11-3-304 (1994 version) (defining conditions creating notice); Dempsey v. Etowah Bank, 204 Ga. App. 49 (418 SE2d 418) (1992).

Dal-Tile cites to inapplicable authority in support of its argument that Cash N’ Go failed to act in good faith. The “reasonable commercial standards of fair dealing” definition of good faith applies to merchants engaged in the sale of goods and is not applicable here. See OCGA § 11-2-103 (1) (b) (1994 version). Dal-Tile’s citation to Tifton Bank &c. Co. v. Knight’s Furniture Co., 215 Ga. App. 471 (1), 472 (452 SE2d 219) (1994), is equally inapplicable, as that case references a statutory defense that a bank may use when charged with conversion of a check with a forged signature or endorsement. See OCGA § 11-3-419 (1) (c) (1994 version). Finally, the cases requiring that a party inquire into the history of the check and the person presenting it, such as Atlantic Nat. Bank v. Edmund, 108 Ga. App. 63 (132 SE2d 103) (1963), were based on pre-UCC law and were superseded by the enactment of the UCC in 1962. Tifton Bank &c. Co. v. Knight’s Furniture Co., supra.

2. Dal-Tile further contends that even if Cash N’ Go was a holder in due course, the trial court erred in rejecting its defense of illegality. Pursuant to OCGA § 11-3-305 (2) (b) (1994 version), a holder in due course of a check is subject to the defense that the underlying transaction was illegal to the point of rendering the obligation of the maker a nullity.

Dal-Tile argues the case sub judice is similar to Middle Ga. Livestock Sales v. Commercial Bank &c. Co., 123 Ga. App. 733, 735 (182 SE2d 533) (1971), in which this Court held a sale of stolen cattle to be so illegal that a check made in payment of the stolen property could not be enforced by a holder in due course. However, we find the case sub judice controlled by the more recent decision of Citizens Nat. Bank &c. v. Brazil, 141 Ga. App. 388 (233 SE2d 482) (1977). In Brazil, as here, an innocent party gave a check to a contractor based on a fraudulent misrepresentation. Although the fraud amounted to the crime of theft by deception, this Court did not find the transaction tainted by illegality to the point that the transaction was null and void from the beginning. In the case sub judice, likewise, the DalTile check was issued as a result of Pearson’s fraudulent acts which induced Blake to issue Dal-Tile and GSC a check in excess of the amount owed Dal-Tile, and which induced Dal-Tile to issue GSC a check to which it was not entitled. The trial court found this fraudulent inducement did not rise to the level of fraud necessary to void the contract. The trial court’s finding was not erroneous, and its decision comports with the policy of the Uniform Commercial Code to encourage the free circulation of commercial paper. See McDonnell, 17 Ga. L. Rev. 569, 576-577 (1983), Freedom From Claims and Defenses: A Study in Judicial Activism Under the Uniform Commercial Code.

3. In its final enumeration, Dal-Tile claims Cash N’ Go was not entitled to prejudgment interest pursuant to OCGA § 7-4-15 because the amount of its claim was unliquidated. Although Cash N’ Go apparently received a fee for cashing the check, the amount of its claim against Dal-Tile was fixed and ascertained by the amount of the check, a negotiable item which contained “an unconditional promise or order to pay a sum certain in money.” See OCGA § 11-3-104 (1) (b) (1994 version). This enumeration is, therefore, without merit.

Judgment affirmed.

Beasley, J., concurs specially. Smith, J., concurs in the judgment only.

Beasley, Judge,

concurring specially.

The pivotal issue is whether the transaction whereby Pearson obtained the Dal-Tile check in consideration for the two-party Blake check, which was issued on the basis of forged Dal-Tile invoices, constituted an illegal transaction. If it did, then Dal-Tile had a defense against Cash N’ Go, Inc. as a holder in due course which cashed the Dal-Tile check. Former OCGA § 11-3-305 (2) (b) (1994 version) provides such a defense in that it recognizes that such a transaction “renders the obligation of the party a nullity.” Dal-Tile was the maker of the check but urges that, under those facts which were either undisputed or were found to be fact by the judge as factfinder, the transaction between it and GSC/Pearson was void ab initio. This is so, it reasons, because the Blake check, given in consideration for the Dal-Tile check which is the subject of the dispute between Dal-Tile and Cash N’ Go, represented stolen money in that it was issued in exchange for fraudulent invoices.

This basis for the transaction did not render it illegal, that is void and not merely voidable. The common law distinctions apply to this OCGA § 11-3-305 (2) (b) (1994 version) defense, as recognized in Milligan v. Gilmore Meyer, Inc., 775 FSupp. 400, 408 (S.D. Ga. 1991): “Black’s Law Dictionary defines ‘void’ as ‘Null; ineffectual; nugatory; having no legal force or binding effect; unable to support the purpose for which it was intended.’ Black’s Law Dictionary 1411 (5th ed. 1979). The term ‘voidable’ is defined as ‘That which may be avoided, or declared void; not absolutely void, or void in itself. That which operates to accomplish the thing sought to be accomplished, until the fatal vice in the transaction has been judicially ascertained and declared.’ Id.” Dal-Tile does not show that the transaction in which it issued its check in return for the larger Blake check which incorporated payment for tile supplied by Dal-Tile for the Butner job was illegal and void. Cf. Unified School Dist. No. 207 v. Northland Nat. Bank, 887 P2d 1138, 1146 (Kan. App. 1994), and our recent case of Union Planters Nat. Bank v. Crook, 225 Ga. App. 578 (1) (484 SE2d 327) (1997) (sufficient evidence of illegality in the transaction to go to jury on this defense against holder in due course).

Decided June 12, 1997

Before Judge Lane.

Austin & Sparks, John T. Sparks, for appellant.

Carl H. Hodges, for appellee.

I note that Dal-Tile did not claim fraud in factum, a defense under OCGA § 11-3-305 (2) (c) (1994 version), and on appeal expressly states that it “asserted the defense of illegality, not fraud.” It did not prove illegality as a matter of law, and we are bound by the findings of fact made by the trial court and supported by evidence.

       Because these transactions took place prior to the 1996 revision of the Uniform Commercial Code (“UCC”), citations herein are to the prior version of the law.


author: McMurray, Presiding Judge.

text:
    A97A1047, A97A1048.
    HOLT v. SCOTT; and vice versa.
    (487 SE2d 657)
   McMurray, Presiding Judge.

Plaintiff Zelma Lee Holt brought this tort action against defendant Michael David Scott in the Superior Court of Webster County, Georgia, alleging that while she “was a passenger in a car traveling north on McGarrah Street[, in Americus, Georgia, defendant was also] driving .• . . north on McGarrah Street, [and] did not see the taillights of Plaintiff’s car and ran into the rear of said vehicle[, whereupon, plaintiff] was thrown to the front of the car and back again with great force, injuring her and inflicting great pain and nervous shock upon her.” The complaint alleged that defendant was negligent and negligent per se in failing to keep his vehicle under proper control; failing to keep a proper lookout; failing to exercise ordinary care; and in failing to apply the brakes properly.

Defendant admitted he was driving north on McGarrah Street at the time but denied the material allegations, defending in part on the grounds that plaintiff’s injuries were proximately caused by the negligence of third parties beyond defendant’s control or else “were the result of a pure accident.” Defendant’s motion for a change of venue was granted, and the case was tried before a jury in Sumter County, Georgia. In a general verdict, the jury found for defendant. Plaintiff’s motion for new trial was denied, and in Case No. A97A1047, she appeals. In Case No. A97A1048, defendant cross-appeals. Held:

Case No. A97A1047

1. Plaintiff first contends the trial court erred in granting defendant’s motion for a change in venue.

This motion was predicated on the following circumstances: Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm Bureau”) undertook the defense of the case, and of the 120 Webster County traverse jurors summoned, 68 were policyholders of Georgia Farm Bureau, not counting jurors who were related to policyholders within the prohibited degree. This motion was originally denied, subject to the proviso that, if the parties “[could not] get a jury, then [the court would] consider the change of venue again.” Subsequently, after qualifying 120 Webster County venirepersons as to the parties, as to Georgia Farm Bureau policyholders, and those related to policyholders within the prohibited degree, the resulting panel was only “12 jurors that [were] eligible statutorily to serve on this jury.” The trial court concluded “it would be cost prohibitive to subpoena or bring in, [an estimated] 200 jurors, for the purposes of selecting a jury on this case.” Consequently, the trial court granted defendant’s motion for change of venue. Plaintiff urges there is no authority for the trial court to change venue “simply because more jurors than usual would have to be brought in so an impartial jury could be selected[, since that is] routinely done in death penalty cases.”

The general rule as to venue is that “civil cases . . . shall be tried in the county where the defendant resides.” 1983 Ga. Const., Art. VI, Sec. II, Par. VI. Nevertheless, “The power to change the venue in civil and criminal cases shall be vested in the superior courts to be exercised in such manner as has been, or shall be, provided by law.” 1983 Ga. Const., Art. VI, Sec. II, Par. VIII. As provided by law, “[w]henever, by an examination voir dire of the persons whose names are on the jury list and who are compellable to serve on the jury, the presiding judge is satisfied that an impartial jury cannot be obtained in the county where any civil case is pending, the civil case may be transferred to any county that may be agreed upon by the parties or their counsel.” OCGA § 9-10-50 (a). If the parties cannot agree, “the judge may select the county in which the same shall be tried and have the case transferred accordingly.” OCGA § 9-10-50 (b).

“It is well established in Georgia that the matter of whether a change of venue is appropriate lies within the sound discretion of the trial court and [the exercise of] this discretion will not be disturbed unless an abuse of this discretion is shown. [Cits.]” Claxton Poultry Co. v. City of Claxton, 155 Ga. App. 308, 309 (1), 311 (1) (C) (271 SE2d 227). “If a juror were disqualified by reason of relationship or for other cause, it would be unnecessary to proceed further by putting to [the juror] the voir dire questions.” Alley v. Gormley, 181 Ga. 650, 652 (1) (183 SE 787). “[I]t is proper to qualify the jurors as to whether any of them are policyholders [of a mutual insurance company such as Georgia Farm Bureau,] or related within the prohibited degree to policyholders.” Weatherbee v. Hutcheson, 114 Ga. App. 761, 764 (1) (a), 765 (152 SE2d 715). In the case sub judice, the trial court satisfied itself that an impartial jury could not be guaranteed in the county where this civil case was originally pending, after personally examining an estimated 80 or 90 venirepersons as to any relationship to Georgia Farm Bureau and qualifying only 12 jurors for the panel. We find no abuse of discretion in the trial court’s reconsideration of the earlier denial of defendant’s motion to change venue and its subsequent decision to grant the motion after its futile examination voir dire. Compare Thompson v. Sawnee Elec. Membership Corp., 157 Ga. App. 561, 563 (3) (278 SE2d 143). In Thompson, where the trial court in that case had yet to exercise its discretion regarding a proposed change of venue, this Court would not decide as a matter of law “whether a qualified jury can or cannot be chosen from among the 15 percent of the population of Forsyth County who [were] neither members of the appellee[-defendant electric membership corporation] nor closely related to its members.” Id.

2. In her third enumeration, plaintiff contends the trial court erred in giving defendant’s request to charge on “sudden emergency,” arguing there was no evidence to support this jury instruction.

Peggy Lawson, the driver of the vehicle with which defendant collided, testified that, as she was preparing to turn left onto Patton Drive from U. S. 19 North, she came to a “regular stop,” and affirmed she “did have [her] left turn signal on.” But she came “to a stop at that point in the road . . . [because a] car must have been coming [towards her] [hjeading south on U. S. 19.”

Defendant also “was heading up U. S. 19. . . . It was pretty heavy traffic. It was a little after three. . . . School buses were just hitting the roads and it was pretty heavy.” Defendant was “about three or four car lengths . . .” behind Peggy Lawson’s vehicle, traveling “[s]omewhere in between forty — maybe forty-two and forty-eight or forty-nine miles per hour.” Compared to other vehicles, “[they] were all going about the same speed, because it was pretty heavy traffic and it was only a two-lane highway, so nobody could really go faster than the other.” Defendant and his then-girlfriend, his wife now, “were just carrying on a normal conversation. [Defendant] was behind the Plaintiff’s car. ... As [he] was talking to [his] girlfriend, [he] noticed the car put on brakes. [Defendant] never noticed her slowing down or speeding up. When [he] saw her brake lights come on, [he] started slowing down. By the time — by the time — about a second after she put on her brakes, she was at a complete stop, so at that time [defendant] slammed on brakes.” According to defendant, the vehicle in front of him “gave no signal. . .” when it began its left turn. Defendant affirmed that when he first saw the brake lights, he “started to slow down, and then . . . saw the car coming up on [him], then . . . slammed [his] brakes down.”

“ ‘The doctrine of sudden emergency refers only to those acts which occur immediately following the apprehension of the danger or crisis and before there is time for careful reflection. (Cit.) The rule of sudden emergency is that one who in a sudden emergency acts according to his best judgment or, because of want of time in which to form a judgment, acts in the most judicious manner, is not chargeable with negligence. (Cits.)’ [Cit.] ‘An emergency is a “sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.” (Cit.)’ . . . [Cit.]” Luke v. Spicer, 194 Ga. App. 183, 184 (3) (390 SE2d 267).

“ Whether an emergency existed or not, that issue, like all questions of diligence, negligence, contributory negligence and proximate cause except in plain and indisputable cases, was a question for determination by the jury. Under the evidence presented at trial, we conclude that this issue was properly submitted to the jury.’ . . . [Cit.] . . . ‘[I]t is a well established rule that an instruction is not inapplicable where there is any evidence, however slight, on which to predicate it. (Cit.) It is not even necessary there should be direct evidence going to that point, it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it. (Cit.)’ [Cit.]” Franklin v. Hennrich, 196 Ga. App. 372, 374 (2) (a), 375 (395 SE2d 859).

This trial court did not commit error in giving the instruction on the doctrine of sudden emergency.

3. Plaintiff is an African-American female. The qualified venire consisted of nine African-Americans and fifteen whites, or 37.5 percent African-American. Defendant, who is a white male, used all six peremptory challenges to remove African-American venirepersons. The petit jury contained three African-American females and no African-American males, that is twenty-five percent African-American. Upon this prima facie showing of discriminatory intent in the use of peremptory challenges, plaintiff objected to four of defendant’s six strikes. Defendant then explained his use of peremptory challenges.

Specifically, juror 12, an African-American female, was struck primarily because she had had back problems. Juror 16, an African-American male, was struck “because he was an employee of the Sumter County Sheriff’s Department, and in this case [there was] a former law enforcement officer . . . that [was] a primary liability or negligence witness[; plus all things being equal, the defense] decided to go with older jurors as opposed to younger jurors, and [this juror] fit into the younger category.” Juror 21 also “was in the young category.” Where this juror is employed, “[tjhey’re unionized and tend to be more Plaintiff-oriented for that reason, and there are good many claims out there, Workers’] Comp claims. . . .” This juror indicated he had injured his back. Juror 33, an African-American female, “stood up twice and said she thought she remembered [plaintiff] being a co-worker.”

In each instance, the trial court determined that the proffered reasons were neutral as to race, gender, and age, and the jury as originally struck was seated over plaintiff’s objection. This ruling is enumerated as error.

“[U]nder Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986)[, the] opponent of a [peremptory challenge] has the burden to make out a prima facie case of purposeful discrimination by demonstrating that the totality of the relevant facts gave rise to an inference of discriminatory purpose. Once a prima facie case is established, the proponent of the strike must articulate a race-[or gender-] neutral explanation for striking the [prospective] jurors at issue. The explanation need not be persuasive or even plausible, but only one that does not deny equal protection. However, the ultimate burden of persuasion about the racial motivation rests with and néver leaves the opponent of the strike. [Cits.]” Berry v. State, 267 Ga. 605, 608 (5) (481 SE2d 203). A trial court’s determination of a Batson challenge “rests largely upon assessment of the attorney’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Citations and punctuation omitted.) Norfolk Southern R. Co. v. Perkins, 224 Ga. App. 552 (1) (481 SE2d 545). “A legitimate reason is not a reason that makes sense, but [is only] a reason that does not deny equal protection.” (Citation and punctuation omitted.) Id. at 553.

Here, the defense stated reasons that were all facially race- and gender-neutral. The question then became whether plaintiff carried her burden of proof to show, under the totality of the circumstances, that, despite facially neutral reasons, defendant’s peremptory challenges were employed in a manner offensive to equal protection. “Where, as here, multiple racially-neutral reasons are given for the

peremptory strike[s], a Batson violation does not exist simply because one or more of those racially-neutral reasons was hot used by the attorney to strike . . . potential jurors [of another race or gender].” (Citations and punctuation omitted.) Norfolk Southern R. Co. v. Perkins, 224 Ga. App. 552 (1), 554 (1) (b), supra. We hold the trial court in the case sub judice was authorized to conclude plaintiff failed to meet her burden, and further hold plaintiff failed to show on appeal that such determination is clearly erroneous.

Case No. A97A1048

4. In his answer, defendant’s first defense “move[d] to strike summons issued in said case, the same having been issued by a Deputy Clerk of the Superior Court of Muscogee County, Georgia, and for that reason is defective, void, amounts to illegal summons, and this Defendant has therefore not been served with any proper or legal summons, and said proceeding should be dismissed.” After a hearing, the trial court struck defendant’s First Defense and Second Defense from the pleadings. In Case No. A97A1048, defendant/cross-appellant enumerates this ruling as error.

The trial court determined that the complaint was correctly denominated as being brought in the Superior Court of Webster County, as was the sheriff’s entry of service, and the civil action initiation form, whereas the summons was “incorrectly denominated ‘Muscogee’ County.” Although Lorene W. Tindol gave her affidavit that she “was the Deputy Clerk for Webster County, Georgia, on October 14,1992, and it is [her] signature which appears on the summons,” that summons directed defendant to file his answer “with the Clerk of said court,” namely the Superior Court of Muscogee County. The trial court characterized this “a scrivener’s error,” which resulted in no prejudice to defendant because the answer was timely filed in the appropriate court. Also, the trial court accepted an amended summons, issued two years later and served by mail on defense counsel.

“At any time in its discretion and upon such terms as it deems just, the trial court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.” OCGA § 9-11-4 (h). In our view, the irregularity whereby the summons, issued by the Webster County Deputy Clerk, erroneously directed defendant to file his answer in the Superior Court of Muscogee County amounted to an amendable defect. See, e.g., Pearson v. Jones, 18 Ga. App. 448 (1) (a) (89 SE 536). In the absence of prejudice resulting from reasonable detrimental reliance on such irregularity, we cannot say the trial court abused its discretion in striking defendant’s First and Second Defenses.

Decided June 12, 1997

Before Judge Smith.

Douglas L. Breault, for appellant.

Bowles & Bowles, Jesse G. Bowles, for appellee.

Judgments affirmed.

Beasley and Smith, JJ., concur.


text:
    A97A1660.
    GREENBERG v. GRIFFITH et al.
    (487 SE2d 411)
   McMurray, Presiding Judge.

Don L. Griffith, the Superintendent of the City Schools of Decatur, Georgia, determined that Alan Greenberg’s children did not reside within the City of Decatur (“the City”) and that he should be charged tuition for his children to continue in the City’s school system. Greenberg appealed to the Decatur Board of Education (“the Board”), which orally upheld the determination. Before a written decision was issued, however, Greenberg commenced a declaratory judgment action in the superior court, seeking to enjoin application of the residency requirement to his children’s situation. The superior court dismissed the action for failure to exhaust the available administrative remedies. Greenberg then filed this direct appeal. Held:

Under OCGA § 5-6-35 (a) (1), the discretionary appeal procedures are required to appeal the decision of a superior court reviewing the decision of an administrative agency. Where a declaratory judgment action essentially is an attempted appeal of an administrative decision, then the discretionary appeal procedures are required. Miller v. Dept. of Public Safety, 265 Ga. 62, 64-65 (453 SE2d 725). “[T]he underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal.” Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192).

The declaratory judgment action Greenberg filed in the superior court, the case sub judice, challenges the Board’s decision to apply its residency requirements to his two children. This action was therefore an attempt at reviewing the Board’s administrative decision. It thus follows that the discretionary appeal procedures prescribed in OCGA § 5-6-35 (b) were required to appeal the superior court’s decision. See Rebich v. Miles, 264 Ga. 467, supra. Since Greenberg did not employ these procedures in the case sub judice, this direct appeal must be dismissed for lack of jurisdiction.

Appeal dismissed.

Beasley and Smith, JJ., concur.

Decided May 29, 1997

Reconsideration denied June 13, 1997

Before Judge Hancock.

Judith A. Lomas, for appellant.

Glass, McCullough, Sherrill & Harrold, Robert E. Wilson, Bryan A. Downs, for appellees.


author: Andrews, Chief Judge.

text:
    A97A0085.
    SHEPARD v. WAL-MART STORES, INC.
    (487 SE2d 664)
   Andrews, Chief Judge.

Mark E. Shepard, Sr. appeals from the trial court’s grant of summary judgment to Wal-Mart Stores, Inc. (Wal-Mart) on his negligence claim arising from his fall while shopping at Wal-Mart.

“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). A defendant may do this 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. [Cit.]” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996).

The only evidence presented on summáry judgment was Shepard’s deposition. Viewing that deposition in his favor, the undisputed facts were that he and his wife went to the Wal-Mart between 10:00 and 11:00 a.m. on August 23, 1994. He was going to get a quart of transmission fluid and to check the electrical section for boat trailer pigtail electrical hookups for his brother’s Tempo. Upon arriving, the Shepards split up, and he went to get the transmission fluid. Shepard then walked several aisles over to the electrical area, and the pigtail hookups displayed on pegboard caught his eye. The pegboard ran approximately eight feet along the aisle and was five feet deep, with the bottom edge about three and one-half feet off the floor. Not finding the hookup he needed for a Tempo, Shepard then scanned the pegboard in search of a substitute, but did not find one. He spent from two to five minutes in front of the pegboard and pulled several hookups off the pegboard to see if they were acceptable.

Then, because his wife had to go to work that afternoon and he was “in a hurry,” he gave up and went to find his wife. As he stated, “I turned to go on and not get my mind on nothing else, just get on out of there. ... I made the decision to leave and that’s what I meant to do. I just turned to go.” He immediately fell and, after falling, realized he had tripped over a trailer hitch carton located on a lower shelf farther down the aisle from the pegboard, as noted by Shepard on a diagram. The carton extended into the aisle about eight inches beyond the other cartons with which it was stacked, and the lid of the carton had been torn open. Asked how many steps he had taken from the time he was looking at the pegboard until he fell, Shepard replied: “It was immediate. It was immediate as much as I can remember. Like I said, it all happened so fast and, . . . , but I know I immediately turned. I reckon I was making the first step whenever it caught my foot. ... It was immediate.”

Having worked in a grocery store, Shepard was also aware of the policy of commercial establishments, including Wal-Mart, to have “safety zone” checks. As he explained, employees are given the responsibility of going around and doing inspections periodically through the day “to make sure things like this is not there.” He had previously been in Wal-Mart and heard the direction come over the intercom for “all department heads you now should be in a safety zone defense,” which meant they were to check over their assigned areas.

Shepard acknowledged that “[i]f I had turned and looked down, I probably would have seen it, yes. ... I ain’t saying I wouldn’t have seen it if I would have looked. If I would have looked I would have probably seen it, but I took for granted that there was not supposed to be nothing there and I guess I took that for granted.” Shepard also acknowledged that there was no Wal-Mart employee in the aisle during the time he was examining the hookups or when he fell.

In the pre-trial order Shepard contends that Wal-Mart “was negligent in failing to maintain the premises in a proper manner” and that he “did not see the box prior to his fall because his attention was focused on the pegboard.”

In order to prevail on a claim where the plaintiff invitee makes such an allegation, the plaintiff must demonstrate that the defendant had superior knowledge of the foreign substance, i.e., (1) the defendant had actual or constructive knowledge of the foreign substance, and (2) the plaintiff was without knowledge of the foreign object or for some reason attributable to the defendant was prevented from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980); Columbus Doctors Hosp. v. Thompson, 224 Ga. App. 682, 683 (482 SE2d 705) (1997); Fisher v. HBS Mgmt., 220 Ga. App. 752, 753 (469 SE2d 885) (1996).

Here, there is no evidence that a Wal-Mart employee had placed the carton in such a position, nor is there evidence that any employee had actual knowledge of the box extending into the aisle. It is also not disputed, as stated by Shepard, that Wal-Mart had in place a “safety zone” defense program.

Therefore, in the particular context of this case, Shepard has failed to come forth with evidence of any breach of duty by Wal-Mart. Coffey, supra at 827; Jenkins v. Bi-Lo, Inc., 223 Ga. App. 735, 736 (479 SE2d 14) (1996); compare Faulkner v. Home Depot, 222 Ga. App. 449 (474 SE2d 311) (1996) (sawhorse protruding beneath stacks of landscape timbers placed by Home Depot, summary judgment denied). Shepard’s reliance on Jones v. Braswell Elec., 219 Ga. App. 218 (464 SE2d 628) (1995), is of no avail. There, there was no question that defendant Braswell, installing electrical conduit on Jones’ work premises, had placed a coiled hose behind Jones’ chair. The issue there was, even with a breach of duty by Braswell, whether Jones had exercised ordinary care for her own safety. Because of material disputes of fact, that case was not found appropriate for summary judgment.

Even assuming, without deciding, that Shepard had come forth with enough to create a question of fact regarding Wal-Mart’s breach of duty, summary judgment in favor of Wal-Mart was still appropriate.

Shepard acknowledges that he could have seen the box had he only looked, but he was distracted from doing that by the merchandise displayed by Wal-Mart on the pegboard. Compare Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994) (getting cashier’s attention to check out may be a “distraction”). Pretermitting the fact that Shepard’s own statement is that he had quit looking at the pegboard and decided to go and find his wife, looking at merchandise displayed by a commercial establishment “has been held time and again to be a self-induced distraction which does not abrogate a plaintiff’s obligation to exercise ordinary care for [his] own safety. [Cits.]” Moore v. Kroger Co., 221 Ga. App. 520, 522 (471 SE2d 916) (1996). Harper v. Kroger Co., 212 Ga. App. 570, 571 (443 SE2d 7) (1994).

Therefore, summary judgment was properly granted to WalMart.

Decided June 13, 1997.

Before Judge Wilkes.

Newton, Smith, Durden, Kaufold & Rice, William R. Rice, for appellant.

McLain & Merritt, Anthony A. Rowell, for appellee.

Judgment affirmed.

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

       The Supreme Court is currently considering Robinson v. Kroger Co., 222 Ga. App. 711 (476 SE2d 29) (1996), cert. granted, 223 Ga. App. 910. Until the resolution of that appeal, however, we apply the Alterman standard. Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 827 (482 SE2d 720) (1997).


author: McMURRAY, Presiding Judge.

text:
    A97A0357.
    WHITE v. THE STATE.
    (488 SE2d 83)
   McMURRAY, Presiding Judge.

Defendant was tried before a jury and found not guilty of aggravated child molestation and guilty of child molestation. The victim (11 years of age at the time of trial) testified that her sleep was disturbed early one morning when she felt something contact her “b-t hole.” The victim testified that she turned and discovered defendant, her mother’s cousin, in her bed; that defendant’s sex organ was exposed and that defendant restrained her attempt to “get up” and scream. The victim’s 13-year-old brother testified that he heard the victim’s struggle; that he went to investigate and that he caught defendant in the victim’s bed with his pants down and “his hand over her mouth.” The victim’s brother testified that defendant “jumped up real fast” when he entered the room and “[plulled up his pants.” The victim’s mother testified that her children awakened her early one morning (when defendant was a guest at her home) and reported that defendant had sexually assaulted the victim. The victim’s mother testified that defendant left after she confronted him with these accusations. Officer Gary Stanfield of the City of Marietta Police Department testified that he apprehended defendant shortly after the reported assault; that he questioned defendant and that defendant made the following statement: “I was tired, so I laid down beside the girl, and we started kissing and making out, you know. [The victim] told me if I had some money I could get some. But I said f-k all that. Then she got mad and started saying I raped her. And I don’t need all that kind of trouble, so I just ran off.” Changing his story at trial, defendant testified that he wandered into the victim’s bedroom, partially impaired by alcohol, not knowing the victim’s bed was occupied and that he laid “spread eagle” on the bed, fell asleep and then “must have hit [the victim] or touched her or rolled over or something.” Defendant further testified that he had his chef’s uniform on while he was in the victim’s bed and that he never had “any sexual contact at all with” the victim.

Decided June 13, 1997.

Before Judge Staley.

Lauren L. Becker, for appellant.

This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant’s contention that the evidence is insufficient to sustain his conviction for child molestation is without merit. The victim’s testimony alone is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hardy v. State, 210 Ga. App. 811, 813 (4) (437 SE2d 790).

2. Contrary to defendant’s second enumeration of error, the State’s attorney was not out of line when he reasoned during his closing argument that defendant’s flight from the crime scene is evidence of defendant’s guilt. Renner v. State, 260 Ga. 515, 517 (3) (b), 518 (397 SE2d 683). Defendant, nonetheless, suggests “that it is now time for the trial courts [and apparently the Court of Appeals] to disregard [the Supreme Court’s holding in] Renner to the extent it permits the state to argue flight.” We, however, cannot disregard the Supreme Court of Georgia. “It is as elemental as ABC that the Court of Appeals is bound by decisions of the Supreme Court.” Hogan v. State, 118 Ga. App. 398, 400 (163 SE2d 889).

3. Defendant contends his testimony, that he “must have hit [the victim] or rolled over or something,” required the trial court to give his requested jury charge on the defense of accident. Although the trial court may have erred in failing to give defendant’s request to charge on the defense of accident, Metts v. State, 210 Ga. App. 197 (2), 198 (435 SE2d 525), we find it highly unlikely that this omission affected the jury’s verdict as the evidence of defendant’s guilt is overwhelming. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

4. Defendant asserts ineffective assistance of trial counsel, arguing he was denied a fair trial because of 15 alleged trial errors or omissions. Not one of these allegations, however, is supported in defendant’s brief by specific citation to the record or transcript. “In the absence of such reference, the Court will not search for or consider such enumeration.” Court of Appeals Rule 27 (c) (3) (i).

Judgment affirmed.

Beasley and Smith, JJ, concur in the judgment only.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Frank R. Cox, Assistant District Attorneys, for appellee.

       The parties stipulated that a physician’s medical examination of the victim shortly after the assault revealed no signs of physical or emotional trauma.


text:
    A97A0693.
    ROBERTS v. STATE OF GEORGIA.
    (487 SE2d 667)
   Andrews, Chief Judge.

Miller Roberts appeals the trial court’s order granting the State a judgment of forfeiture. Roberts contends the trial court erred in finding his claim to the seized property failed to satisfy the forfeiture statute’s strict pleading requirements. We disagree and affirm the judgment of the trial court.

This case arose when officers executing a search warrant seized two grams of cocaine, money, guns, ammunition, scales, razor blades, and a cellular phone from a bedroom in the house where Roberts lived. The State filed a Notice of Seizure pursuant to OCGA § 16-13-49 (n), and Roberts filed a claim to three items of seized property: $9,050 in currency, a Smith & Wesson .38 caliber handgun, and a cellular phone. The State filed a motion for judgment of forfeiture, asserting that Roberts’ claim failed to satisfy the strict pleading requirements of OCGA § 16-13-49 (n) (4).

The trial court found the claim was insufficient and granted the State’s motion for judgment of forfeiture. The court also found that an Amended Claim filed on July 5, 1996, was untimely. This appeal followed.

Under OCGA § 16-13-49 (n) (4) the claimant’s pleadings must satisfy seven requirements by setting forth the caption of the proceedings, the address at which the claimant will accept mail, the nature and extent of the claimant’s interest in the property, the date, identity of the transferor, and circumstances of the claimant’s interest in the property, the specific provision of the Code section relied on in asserting the property is not subject to forfeiture, all essential facts supporting each assertion, and the precise relief sought. OCGA § 16-13-49 (n) (4). Failure to comply with the strict pleading requirements prescribed in this Code section is equivalent to filing no answer at all. Tuggle v. State of Ga., 224 Ga. App. 353 (480 SE2d 353) (1997); Jarrett v. State of Ga., 220 Ga. App. 559, 560 (472 SE2d 315) (1996).

Roberts stated the nature and extent of his interest in the property and the date, identity of the transferor and circumstances of his acquisition of the property as follows: “(1) He is the lawful owner of the United States Currency, having earned it during a lifetime of legitimate employment; (2) He is the lawful owner of the Smith & Wesson Handgun, having purchased it in 1968, or thereabouts, and having registered it with the authorities; (3) One Air Touch Cellular Telephone,. . . purchased from South Mobility several years ago.” In the section purporting to state all essential facts supporting each assertion, Roberts wrote the following: “The officers who seized Claimant’s property did so feloniously and without any basis therefor. The seizure was in violation of the Supreme Court’s rationale in One Plymouth Sedan v. Pennsylvania, 380 U. S. 693 (1965).

“These cops are notorious for exceeding the permissible bounds of search warrants and for using a seemingly precise warrant as a passkey to enter a citizen’s home, after which they embark on a general search for anything and everything they can carry off.

“While these guys are not felons in the conventional sense, they are soldiers enlisted in what is euphemistically called ‘the war against drugs.’ ”

1. The trial court correctly granted the State’s motion for judgment of forfeiture. In Tuggle, a similar case, the claimant filed an answer in which he claimed the currency seized was money saved by the Claimant from numerous jobs that he had held. Tuggle, supra at 355. We found this answer to be insufficient because it failed to provide sufficient details about the alleged jobs, such as the names of his employers, the dates he worked, the nature of his duties, and other specific facts that would support the claim. Id.

Similarly, Roberts’ answer fails to give sufficient facts, not only as to how he got the money, but also as to his acquisition of the gun and phone. As set out above, Roberts’ claim does not even attempt to comply with OCGA § 16-13-49 (n) (4) (F) which requires a claimant to set forth “[a]ll essential facts supporting each assertion.” Because Roberts asserted no facts in support of his alleged innocent ownership, the trial court did not err in dismissing his claim. See Jackson v. State of Ga., 218 Ga. App. 437, 439 (461 SE2d 594) (1995).

2. Roberts filed an Amended Claim on July 5, 1996. The trial court dismissed the Amended Claim, finding it was untimely. The trial court relied on Jarrett v. State of Ga., supra, which held that an Amended Claim filed after the 30-day deadline did not relate back to the first answer so as to resurrect the claims. Id. at 561. Accordingly, the trial court dismissed the claim pursuant to OCGA § 16-13-49 (n) (6).

Decided June 13, 1997.

Before Judge Mallis.

Herbert Shafer, for appellant.

J. Tom Morgan, District Attorney, Carol M. Kayser, Stephen D. Sencer, Assistant District Attorneys, for appellee.

Although Roberts enumerates as error the trial court’s dismissal of his Amended Claim, he does not contend on appeal that the trial court misapplied Jarrett nor does he advance any other argument in support of this enumeration. In any event, the holding in Jarrett controls this issue. This enumeration of error is without merit.

3. Lastly, Roberts argues the trial court’s dismissal of his Claim and Amended Claim violates his due process rights. But, he makes no argument and cites to no authority on this issue. Accordingly, it is deemed abandoned. Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       Roberts does not dispute the court’s finding that the Amended Claim was untimely. OCGA § 16-13-49 (n) (6) provides that a claim must be filed within 30 days after the second publication of the notice of forfeiture. Here, the second date of publication was April 25, 1996.

       OCGA § 16-13-49 (n) (6) is substantially the same as OCGA § 16-13-49 (o) (4). Although Jarrett was a case decided under OCGA § 16-13-49 (o), this Court has held that the pleadings and procedure under OCGA § 16-13-49 (n) are analogous to the procedure in OCGA § 16-13-49 (o). See, e.g., Jackson v. State ofGa., supra at 438-439.


text:
    A97A0530.
    MILLAN et al. v. RESIDENCE INN BY MARRIOTT, INC. et al.
    (487 SE2d 431)
   Beasley, Judge.

Linda and Robert Millan, as next friends and natural guardians of their 14-year-old daughter Audrey, sought damages from Roy Dowty, Residence Inn by Marriott, Inc., and Marriott International, Inc. In this appeal from the trial court’s grant of the Marriott defendants’ motion for summary judgment, the evidence is viewed in favor of the non-movants. Eiberger v. West, 247 Ga. 767 (1) (281 SE2d 148) (1981).

Plaintiffs’ record evidence showed that, while Dowty and the Millan family (husband, wife, and four children) were guests of a residence inn owned and operated by the two Marriott defendants, Dowty committed a sexual battery on Audrey. She is retarded and has the mental capacity of a first grader. Plaintiffs claim that Marriott had knowledge of prior criminal acts by Dowty and breached its duty to protect hotel guests. The Marriott defendants moved for summary judgment, asserting that Dowty had committed no substantially similar crimes so as to put Marriott on notice that he might sexually assault a child.

Annette Winfree, another hotel guest, testified that on July 12, 1993, she observed Dowty, Audrey, and another man at the pool. According to Winfree, when the other man left, Dowty entered the pool with Audrey and rubbed his hands over her breasts, buttocks, and between her legs. Winfree immediately telephoned her husband, who telephoned the front desk of the hotel. Winfree’s husband described the incident by the pool but did not identify the parties involved. The employee at the front desk investigated, but no one was observed at the pool. The employee reported the telephone call to the hotel security officer on duty that evening. Audrey later told her father what had happened.

Gwen Scott, a middle-aged hotel employee, testified that for several months prior to the Millan incident Dowty had engaged in repeated inappropriate and non-consensual sexual behavior toward her. He would walk up behind her and touch various parts of her body including her breasts. He repeatedly asked her for dates, even though she told him she was married.

Geraldine Hall, another hotel employee, testified that a week before the Millan incident, she was cleaning a bathroom when Young, an intoxicated hotel guest, came in and apprised her that she had seen a man at the pool grabbing children in their crotch and breast areas. Hall deduced that these were probably the Millan children, because there were few other children at the hotel. Hall went to the pool but- everyone had left. Young did not specifically identify Dowty as the man involved in the incident concerning the other children until after the Millan incident. Hall testified that when Young reported the first incident, she referred to the man as “the weird guy”; that it was not difficult to determine who this was because Dowty had a foreign accent; that Hall discussed the incident with night security guard James Virden and that Virden began to watch Dowty. No further action was taken despite this alert. The night after the first incident, Virden encountered Dowty at the pool after it had closed. Dowty was intoxicated, and when Virden attempted to get him to leave, Dowty physically struck him.

The general manager testified that the role of employees in security matters is to be the “eyes and ears” of the hotel and to inform management of any inappropriate behavior by hotel guests. He acknowledged that Hall and Scott should have reported Dowty’s behavior to management. According to a security consultant, the employees had not been adequately trained to report such behavior.

To this evidence, the following law applies. “Notice to the agent of any matter connected with his agency shall be notice to the principal.” OCGA § 10-6-58. Actual notice to the agent constitutes actual, not merely constructive, notice to the principal. Copeland v. Leathers, 206 Ga. 280, 287 (2) (56 SE2d 530) (1949). “Although an innkeeper is not an insurer of the safety of the guests, it is bound to exercise ordinary care to protect its guests from unreasonable risks of which the innkeeper has superior knowledge, and if an innkeeper has reason to anticipate criminal acts, it has the duty to exercise ordinary care to guard against injury caused by dangerous characters. [Cit.]” Matt v. Days Inns of America, 212 Ga. App. 792, 794 (443 SE2d 290) (1994), aff’d Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507) (1995). “[T]he test is whether the prior criminal activity was sufficiently [and] substantially similar to demonstrate the landowner’s knowledge that conditions on his property subjected his invitees to unreasonable risk of criminal attack so that the landowner had reasonable grounds to apprehend that the present criminal act was foreseeable.” Matt, supra at 795. See also the expanded reiteration of the applicable principles in Taylor v. Atlanta Center, 208 Ga. App. 463, 465-466 (430 SE2d 841) (1993) (non-precedential).

Plaintiffs contend a jury must decide whether, as a matter of fact, Dowty’s sexual battery on Audrey was reasonably foreseeable by defendants, based on his altercation with James Virden, his apparent actions toward Gwen Scott, and his prior fondling of children at the hotel pool.

The physical altercation with Virden, the hotel security guard, was not sufficiently similar to put defendants on notice of an unreasonable risk of a sexual assault. However, the other events do not preclude a finding that Dowty was a troublesome guest with respect to assaulting females. A report of previous fondling of children at the hotel pool constituted the same crime committed in the same place and manner as that perpetrated against Audrey and thus meets the substantially similar test. Marriott argues that the prior fondling incident could not have put it on notice that Dowty might do the same to another child, because Dowty was not identified as the perpetrator until after the Millan incident. Although Hall testified that Young did not specifically identify Dowty at first, the evidence, construed most strongly against the Marriott defendants as movants for summary judgment, Piggly Wiggly Southern v. Bennett, 217 Ga. App. 496, 497 (458 SE2d 138) (1995), would authorize a jury to find that Hall was provided with enough information to believe that Dowty was the individual and that Hall actually reported this to Virden before the Millan incident. Compare J. C. Penney Co. v. Spivey, 215 Ga. App. 680 (452 SE2d 191) (1994) (physical precedent only; Beasley, P. J., concurring specially: lack of any evidence of superior knowledge by defendant).

The Scott incident also meets the substantially similar test. In grabbing Scott’s breasts and touching her body without her consent, Dowty committed the same sexual battery as that perpetrated against Audrey. Although the ages differed, the nature of the offenses on the same premises and in Dowty’s same capacity as a guest, was the same. See generally Piggly Wiggly Southern v. Snowden, 219 Ga. App. 148 (1) (464 SE2d 220) (1995).

There are four elements to any tort action: duty, breach, causation, and damages. Rampell v. Williams, 217 Ga. App. 292, 293 (2) (457 SE2d 224) (1995). In this case, questions are raised as to how, if at all, the hotel breached its duty toward guests and whether any such breach could have been the proximate cause of Audrey’s injury. Under the evidence, construed most favorably to plaintiffs, a jury could find that Dowty was the perpetrator of the offenses reported by Young to Hall, as well as those committed against Scott; that Hall’s and Scott’s notice of these acts constituted notice to the hotel; that the hotel was thereby obligated to at least question Dowty and Young concerning these incidents; and that this would or should have resulted in such action being taken against Dowty so as to have deprived him of the opportunity to commit his battery on Audrey at the hotel pool. Thus, whether the hotel breached its duty by negligently failing to protect guests from the dangerous guest on its premises and whether such breach was the proximate cause of the child’s injury are jury questions. See generally Bob v. Hardy, 222 Ga. App. 550, 555 (6) (474 SE2d 658) (1996) (questions of negligence and proximate cause are peculiarly questions for the jury except in clear, plain, palpable and undisputed cases).

Decided June 2, 1997

Reconsideration denied June 16, 1997

Before Judge Shoob.

James A. Goldstein, for appellants.

Kirwan, Parks, Chesin & Miller, P. Bruce Kirwan, Holland & Knight, Alfred B. Adams III, Cheryl B. Reid, for appellees.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A97A0616.
    CONGRESS RE-INSURANCE CORPORATION, INC. et al. v. ARCHER-WESTERN CONTRACTORS, LTD.
    (487 SE2d 679)
   Smith, Judge.

In this case, a subcontractor and its surety (the issuer of performance and payment bonds) appeal from judgments entered against them in a third-party action brought by the general contractor, which was sued by a materialman of the subcontractor. We conclude that the trial court correctly entered a default judgment against the subcontractor and granted summary judgment against the subcontractor’s surety, and we therefore affirm.

The record shows that Archer-Western Contractors, Ltd. entered into a contract with the Georgia Department of Transportation for the construction of a transportation management center in Atlanta. Archer subcontracted with Hawkins & Associates Construction Management Group for masonry work. Congress Re-Insurance Corporation, Inc. issued payment and performance bonds to Hawkins listing Archer as obligee.

Humphries Concrete Block Company supplied materials to Hawkins for use on the project. When Hawkins refused to pay for the materials, Humphries brought an action under Georgia’s “Little Miller Act” against Archer and Archer’s surety. OCGA §§ 36-82-101 through 36-82-104. Archer then filed this third-party action against Hawkins and Hawkins’s surety, Congress, alleging that the third-party defendants were liable to it for any amounts for which it might be liable to Humphries.

In the third-party action, Archer alleged that Congress was a foreign corporation not authorized to transact business in Georgia but engaged in the business of surety insurance in this state. Because Congress did not have a business office in Georgia, Archer served Morgan Insurance Group, Inc. on behalf of Congress, alleging that Morgan was Congress’s agent for service pursuant to OCGA § 33-5-54 because Morgan solicited, made, issued, and delivered surety insurance contracts in Georgia, received premiums and assessments therefor, and was an agent of Congress. Within ten days, Archer mailed a copy of the third-party complaint and summons to Congress. It then filed an affidavit of compliance pursuant to the statute. Id. Hawkins was personally served.

A response to the third-party complaint was filed by Congress’s president, Mohamed Zayed II, acting pro se, in which Congress raised defenses of venue, insufficiency of service of process, and prematurity of the action. In the answer, Congress appears to characterize Morgan as a “consultant” and Congress as a “non-insurance surety” and to deny that Morgan solicited “insurance” on behalf of Congress and that Congress was in the business of surety insurance in Georgia. Zayed alleged that Congress was not amenable to service under OCGA § 33-5-54. In response, Archer again served Congress, this time under the provisions of the Georgia Long Arm Statute, OCGA § 9-10-94.

Hawkins did not file a response to Archer’s third-party complaint, and Archer took a default judgment against Hawkins. Shortly thereafter, Archer moved for summary judgment against Congress. The motion was granted, and judgment was entered against Congress.

1. This appeal purports to be on behalf of both Congress and Hawkins. In fact, Hawkins contends in the first enumeration of error that the trial court erred in entering a default judgment against it when it had “answered” the third-party complaint. But it is clear for several reasons that the “answer” referred to was filed only on behalf of Congress.

First, the answer itself so states: “Now comes the third party defendant, Congress Re-Insurance Corporation, Inc., a non-insurance surety, by and through its president Mr. Mohamed Khairy Mohamed Zayed, II, pro se and pursuant to OCGA § 9-11-4 (c) and other pertinent rules of civil procedure answer [sic] the same.” (Emphasis supplied.) The answer ends by stating that it is “respectfully submitted” on behalf of Congress by its president, Zayed, acting pro se.

Second, regardless of the content or purpose of the document filed, Zayed was not legally permitted to file an answer on behalf of Hawkins. “Only a duly licensed attorney may answer a complaint for a person who does not appear pro se. OCGA § 15-19-51 (a).” Keith v. Alexander Underwriters &c., 219 Ga. App. 36, 38 (463 SE2d 732) (1995). After the date of publication in the advance sheets of the Supreme Court’s decision in Eckles v. Atlanta Technology Group, 267 Ga. 801 (485 SE2d 22) (1997), a non-lawyer may represent a corporation only in a court that is not a court of record. Before that date, representation of a corporation “pro se” by its “chairman” or other appropriate agent was permitted under the holdings of several cases. See, e.g., Universal Scientific v. Wolf, 165 Ga. App. 752 (1) (302 SE2d 616) (1983); Knickerbocker Tax Systems v. Texaco, 130 Ga. App. 383 (203 SE2d 290) (1973); Dixon v. Reliable Loans, 112 Ga. App. 618 (145 SE2d 771) (1965). But an individual non-lawyer totally unrelated to the corporation was never permitted to represent that corporation “pro se.”

Because Zayed could not and did not represent Hawkins when he filed an answer on behalf of Congress, Hawkins was in default when.the trial court entered a default judgment against it. This was not error.

Hawkins did not file a timely notice of appeal from the default judgment and did not seek to set aside the judgment in the trial court. It may not now appeal that judgment.

2. Because no timely appeal was taken from the default judgment, Congress’s claims with regard to that judgment are also without merit. Moreover, although Congress now complains it received no notice of the hearing on the motion for default judgment, the record reflects that it was served with notice of the motion almost two months prior to the hearing. The record does not show that Congress made any objection to the entry of default judgment below. This issue may not be raised for the first time on appeal.

3. Congress next asserts that the trial court lacked personal jurisdiction over it for a variety of reasons.

(a) Congress maintains it was not subject to service under OCGA § 33-5-54 because it is not an “insurance surety.” But Georgia law makes no distinction between “insurance” and “non-insurance” sureties. The issuance of payment and performance bonds is expressly defined as surety insurance pursuant to OCGA § 33-7-7 (2), which provides that surety insurance includes “[insurance guaranteeing the performance of contracts other than insurance policies. . . .” (Emphasis supplied.) It is true that a contract for reinsurance is not included in the definition of surety insurance because it is “[a] contract by which an insurer procures a third person to insure him against loss or liability by reason of original insurance.” Black’s Law Dictionary 1287-1288 (6th ed. 1990). But despite the implication created by Congress’s name, the record in this case shows that Congress did not issue a policy of reinsurance; it issued bonds guaranteeing performance and payment by Hawkins. As a surety insurer, Congress was subject to service under OCGA § 33-5-54.

(b) Because Congress was subject to service under OCGA § 33-5-54 and was served under that statute, we need not address Congress’s contentions with regard to service under the Georgia Long Arm Statute.

(c) Although Congress claimed in its answer that venue was improper and that proper venue was in federal court, other issues of personal jurisdiction were not raised below and may not be raised in this appeal. As to venue, the issue raised addresses subject-matter jurisdiction rather than personal jurisdiction. But the only venue issue raised by Congress in its appeal addresses an entirely different question: whether venue was improper in Gwinnett County for the third-party action because of the dismissal of the underlying action. A defense of improper venue is waived unless raised in the answer or by motion. OCGA § 9-11-12 (b) (3) and (h) (1) (B).

(d) The same is true of Congress’s remaining contentions regarding the insufficiency of service of process.

4. Congress contends that the evidence presented by Archer in support of its motion for summary judgment was simply conclusory and was an insufficient basis for the judgment. On motion for summary judgment, the movant has the initial burden of showing that no genuine issue of fact remains and that it is entitled to judgment as a matter of law. “Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence.” (Citation omitted.) Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 705 (2) (420 SE2d 756) (1992).

In support of its motion, Archer submitted the affidavit of Joseph Appleton, project manager for the project. The affidavit set forth facts sufficient to establish Congress’s liability. Congress did not respond to Archer’s motion for summary judgment. It cannot complain now that the unrebutted evidence submitted by Archer in support of its motion was incorrect.

Decided June 16, 1997.

Before Judge Oxendine.

Theresa K. Read, for appellants.

Mohamed K. M. Zayed, pro se.

Candice Hawkins, pro se.

Moye, O’Brien, O’Rourke, Hogan & Pickert, Nathan E. Minear, for appellee.

5. Finally, Congress disputes the amount of the judgment. Judgment was entered in the amount of $977;569.10. OCGA § 9-12-13 and Georgia case law interpreting the statute limit recovery against sureties to no more than the penalty on the bond. Westbrook v. Moore, 59 Ga. 204, 206 (1877). These bonds were written to guaranty payment of the penal amount of the bonds, i.e., $712,049. Archer concedes that although it may recover either the 25 percent penalty for bad faith or attorney fees and expenses of litigation, it may not recover both. Recovery of both was unauthorized.

Contrary to Congress’s contention, however, the proper remedy for this error is not reversal of the judgment. Because Archer may not recover the penalty amount and also recover costs and attorney fees, the correct remedy is to write off the unauthorized portion of the judgment. We therefore affirm the judgment with the direction that upon receipt of the remittitur, the superior court write off the unauthorized portion of the judgment — either the penalty or the award of attorney fees and expenses of litigation; otherwise the judgment is reversed. See Bearden v. City of Austell, 212 Ga. App. 398, 401 (4) (441 SE2d 782) (1994).

Judgment affirmed on condition.

McMurray, P. J., and Beasley, J., concur.

       Humphries’s action against Archer was dismissed with prejudice after the filing of the third-party complaint.

       These cases were overruled by Eckles.


text:
    A97A1230.
    MORROW v. THE STATE.
    (487 SE2d 669)
   Birdsong, Presiding Judge.

Appellant Delshawn Leneal Morrow appeals his conviction of two counts of kidnapping, nine counts of possession of a firearm during the commission of a crime, two counts of aggravated sodomy, two counts of rape, three counts of armed robbery, one count of hijacking a motor vehicle, and one count of carrying a concealed weapon. He enumerates two errors. Held:

1. Appellant contends the trial court erred in failing to sever for trial purposes the three separate and distinct series of events which constituted the subject matter of the charges against him. In denying appellant’s motion to sever, the trial court held: "Considering all of the evidence the court finds that all these counts and/or offenses involve the same type of conduct to some extent, the series of acts connected together or series of acts constituting part of a single scheme or plan.” The record reveals that the same pistol was in the possession of and was used by appellant, at some point in time, during the commission of one or more of the crimes against Carmela S., Margaret K., and Dan S. Although Carmela S. also was subjected to various sexual offenses, each of the victims was subjected to an armed robbery. The offenses against Carmela S. and Margaret K. occurred on the same day, Sunday. Appellant fled from the second robbery scene in a car he took from Carmela S. and thereafter left Margaret K.’s stolen purse in Carmela S.’s car. The following Sunday, Dan S. was subjected to armed robbery. Approximately three weeks later, Carmela S. observed appellant on the street and called the police. During the course of appellant’s arrest, he was observed throwing under a car a weapon which had been concealed on his person. All three victims identified this weapon as the pistol which appellant had used against them. Further, appellant made a pretrial statement in which he admitted, inter alia, that on the day he was caught he was going to commit another robbery and then go back to Florida.

“Two or more offenses may be tried together if they, '(a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.’ [Cits.]” Gober v. State, 247 Ga. 652, 653 (1) (278 SE2d 386). "Where two or more offenses are joined only because they are of the same or similar character, the trial court, upon motion of the defendant, must order separate trials for each of the offenses. [Cit.] But when they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, ‘. . . the court in the interest of justice may order that one or more of such charges be tried separately.’ [Cit.]” (Emphasis in original.) Id.; compare Matula v. State, 264 Ga. 673, 675 (4) (449 SE2d 850). Moreover, “ ‘[w]here . . . the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its. discretion in denying the motion for severance.’ [Cit.]” Dennis v. State, 263 Ga. 257, 260 (6) (430 SE2d 742).

We agree with the trial court’s findings in support of its denial of appellant’s severance motion. The offenses in this case were based on a series of acts connected together by the use of the pistol which appellant had concealed on his person just prior to his apprehension and, also, which arose out of a single scheme or plan to commit a series of crimes and then flee in safety to Florida. In regard to the former, evidence as to the type of weapon which appellant had concealed on his person during the course of his arrest would be admissible as to all other pending weapon possession charges, and the identification of the weapon by each of the three victims would be admissible during the proof of each of the weapon charges.' OCGA § 24-1-1 (4). (The Georgia rule of relevancy generally favors the admission of any relevant evidence, no matter how slight its probative value; evidence of doubtful relevancy should be admitted and its weight left for jury determination. Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395).) “ A court has wide discretion in severance motions.’ [Cit.]” Dennis, supra at 259-260 (6). The record fails to support appellant’s contention that the trial court abused its discretion in denying the severance motion. Compare id.; Cooper v. State, 253 Ga. 736, 737 (3) (325 SE2d 137); Davis v. State, 223 Ga. App. 346, 348 (2) (477 SE2d 639) and cases cited therein.

2. Appellant contends the trial court erred in failing to exclude appellant’s pretrial statement from jury consideration. The trial court found and the record establishes that appellant was properly advised of, fully understood, and waived his Miranda rights before freely and voluntarily making the statement at issue.

However, appellant contends that only an incomplete version of appellant’s oral statement was reduced to writing by the interrogating officer, and that the presentation of an incomplete version of the interrogation and responses, which is not a fair and accurate representation of what occurred during such interrogation, should be excluded from the jury’s consideration. Appellant has failed to show in what particular respect the statements attributed to appellant were not fair or were inaccurate or misleading, and what particular exculpatory information, if any, was excluded from the statements preserved in writing. As a general appellate rule, an appellant must show both error and harm to prevail on appeal. Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901). Further, “[i]n determining the voluntariness of a confession, an appellate court may look to all the evidence contained in the record. [Cit.] The findings of a trial court as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous. [Cit.] Moreover, the fact that the statement may not have been a complete rendition of everything the appellant said to the police would affect only the weight to be accorded the statement by the factfinder and not its admissibility.” Robinson v. State, 194 Ga. App. 432, 433 (2) (390 SE2d 652); see McGee v. State, 260 Ga. 178 (3) (a) (391 SE2d 400) (no showing that an unrecorded segment of a taped statement contained exculpatory material). Considering the totality of the circumstances, we find that the trial court’s determination was not clearly erroneous, and that there was no error in the admission of the statement.

Decided June 16, 1997.

Before Judge Cowart.

Walter E. Van Heiningen, for appellant.

J. David Miller, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.