text:
    A98A0270.
    CARTER v. TOKAI FINANCIAL SERVICES, INC.
    (500 SE2d 638)
   Blackburn, Judge.

Tokai Financial Services, Inc. brought suit against Randy P. Carter for monies owed under Carter’s guaranty of a telephone equipment lease agreement. The trial court granted summary judgment to Tokai, and Carter appeals. For the reasons set forth below, we reverse the trial court’s grant of summary judgment to Tokai.

“In reviewing [a] grant or denial of summary judgment, this Court conducts a de novo review of the evidence.” Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996). “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 non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” (Punctuation omitted.) Id.

On January 3,1996, Tokai’s predecessor in interest, Mitel Financial, entered into a “Master Equipment Lease Agreement” (Agreement) with Applied Radiological Control, Inc. (ARC) for the lease of certain telephone equipment valued at $42,000. Carter personally guaranteed ARC’s obligations under the Agreement. ARC made four rental payments and then defaulted on its obligations as of June 1, 1996. Thereafter, Tokai repossessed the telephone equipment and sold it for $5,900. Tokai did not notify Carter prior to such sale. Tokai then brought this suit against Carter, and the trial court awarded Tokai $56,765.74.

1. In his first enumeration of error, Carter contends the Agreement is a “finance agreement” rather than a true lease. More specifically, Carter contends that the Agreement was a disguised secured transaction subject to Article 9 of the Uniform Commercial Code (UCC), thereby requiring Tokai to notify Carter prior to the sale of the repossessed equipment and to conduct such sale in a reasonably commercial manner. We disagree.

As an initial matter, we note that Paragraph 13 of the Agreement states that each lease contemplated therein is a finance lease as defined by Article 2A of the UCC. “A ‘finance lease’ involves three parties — the lessee/business, the finance lessor, and the equipment supplier. The lessee/business selects the equipment and negotiates particularized modifications with the equipment supplier. Instead of purchasing the equipment from the supplier, the lessee/business has a finance lessor purchase the selected equipment, and then leases the equipment from the finance lessor.” Colonial Pacific Leasing Corp. v. McNatt, 268 Ga. 265, 268 (1) (486 SE2d 804) (1997).

Carter contends, nonetheless, that the true intent of the parties was to enter into a security agreement. “Whether a transaction creates a lease or security interest is determined by the facts of each case; however, a transaction creates a security interest if the consideration the lessee is to pay the lessor for the right to possession and use of the goods is an obligation for the term of the lease not subject to termination by the lessee, and (a) [t]he original term of the lease is equal to or greater than the remaining economic life of the goods, (b) [t]he lessee is bound to renew the lease for the remaining economic life of the goods or is bound to become the owner of the goods, (c) [t]he lessee has an option to renew the lease for the remaining economic life of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement, or (d) [t]he lessee has an option to become the owner of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement.” OCGA § 11-1-201 (37).

Here, the Agreement’s initial term was for five years, ARC was not required to renew the lease or purchase the telephone equipment at the end of the term, and ARC did not have the option to renew the lease or purchase the property at the end of the term for nominal consideration. Therefore, the Agreement does not fit within the definition of a secured transaction provided by OCGA § 11-1-201 (37).

Furthermore, “it is commonly held that the ‘best test’ for determining the intent of an agreement which provides for an option to buy[ ] is a comparison of the option price with the market value of the equipment at the time the option is to be exercised. Such a comparison shows whether the lessee is paying actual value acquiring the property at a substantially lower price. ... If, upon compliance with the terms of the ‘lease,’ the lessee has an option to become the owner of the property for no additional or for a nominal consideration, the lease is deemed to be intended for security. See OCGA § 11-1-201 (37).” (Punctuation omitted.) Third Century v. Morgan, 187 Ga. App. 718, 720 (2) (371 SE2d 262) (1988). ARC was given the option to purchase the telephone equipment in this case at the end of the lease term for its fair market value. “Additional consideration is not nominal if . . . when the option to become the owner of the goods is granted to the lessee the price is stated to be the fair market value of the goods determined at the time the option is to be performed.” OCGA § 11-1-201 (37) (x). Accordingly, the Agreement in this case must be considered to be a true lease, not a secured transaction. As a result, the procedural safeguards of Article 9 of the UCC are inapplicable to the matter at hand, and Carter’s claims under this enumeration must fail. See Mejia v. C & S Bank, 175 Ga. App. 80, 82 (332 SE2d 170) (1985); Tompkins v. Mayers, 209 Ga. App. 809, 811 (2) (434 SE2d 798) (1993).

2. In his second enumeration of error, Carter contends that, even if the Agreement were a true lease, Tokai was still required to conduct the sale of the repossessed equipment in a commercially reasonable manner, citing sections 527 and 528 of Article 2A of the UCC. OCGA §§ 11-2A-527 and 11-2A-528.

“In Georgia, all lease contracts for ‘goods,’ including finance leases, first made or first effective on or after July 1, 1993, are governed by Article 2A of the Uniform Commercial Code. OCGA § 11-2A-101 et seq.” McNatt, supra at 268 (2). The Agreement was entered into by the parties on January 3, 1996; therefore, it is subject to Article 2A of the UCC and §§ 527 and 528 thereof. The provisions of §§ 527 and 528 regarding damages available upon default are applicable “[ejxcept as otherwise provided with respect to damages liquidated in the lease agreement (Code Section 11-2A-504) or otherwise determined pursuant to agreement of the parties (Code Sections 11-1-102 (3) and 11-2A-503).” OCGA §§ 11-2A-527 (2) and 11-2A-528 (1). In this case, the Agreement “otherwise provides for damages liquidated in the lease agreement,” specifically setting forth a formula to calculate such damages. As a result, OCGA §§ 11-2A-527 and 11-2A-528 are not applicable to the matter at hand, and the more general directives of OCGA § 11-2A-504 are controlling.

According to OCGA § 11-2A-504, “[d]amages payable by either party for default, or any other act or omission,. . . may be liquidated in the lease agreement but only at an amount or by a formula that is reasonable in light of the then anticipated harm caused by the default or other act or omission.” OCGA § 11-2A-504 (1). Paragraph 12 of the Agreement provides that, upon default, Tokai’s remedies include: (1) cancel all leases; (2) recover any accrued and unpaid rental payments; (3) if no stipulated value of loss is stated in the lease, recover liquidated damages equal to (a) the present value of all future rent discounted at a rate equal to the current discount rate of the Federal Bank of San Francisco plus one percent plus (b) the present value of the equipment’s fair market value discounted at the same rate plus (c) the amount of any loss or reduction of tax benefits; and (4) sell the repossessed equipment without any duty to account to ARC for any proceeds with respect to the sale. Based on this provision, Tokai calculated its damages in the amount of $42,779.08.

“Determining whether such a clause constitutes an enforceable liquidated damages provision or an unenforceable penalty is a question of law for the court. To qualify as an enforceable liquidated damages provision three factors must be present: First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and, third, the sum stipulated must be a reasonable pre-estimate of the probable loss. . . . On summary judgment, [Tokai], as movant, has the burden of showing that as to the three prongs ... no genuine issue of material fact exists.” (Citations and punctuation omitted.) Peterson v. P. C. Towers, L.P., 206 Ga. App. 591, 592-593 (3) (426 SE2d 243) (1992). Tokai has not carried this tripartite burden.

In this case, the sum designated to be liquidated damages cannot be considered to be a reasonable pre-estimate of probable loss caused by ARC’s default. Under the provisions of the Agreement, Tokai is entitled to receive the present value of all future rent plus the present value of the equipment’s fair market value at the end of the lease term. In addition, Tokai is allowed to sell the repossessed equipment without any duty to account for the proceeds of such sale. In other words, Tokai is allowed to receive the rent it otherwise would have received for the property along with full use of the property subject to the lease prior to the end of the term.

This case is analogous to Peterson, supra, which regarded leased

real estate. In analyzing the damages clause there, we held, “[the lease] provisions give the landlord the benefit of both present possession of the premises, and the present value of all future rent. Reduction of the accelerated rent to present value is a factor tending to establish that the accelerated rent sum is a reasonable estimate of probable loss. See Adams v. D & D Leasing Co., 191 Ga. App. 121, 123-124 (381 SE2d 94) (1989). However, both possession of the premises and a present lump sum award of future rent without any calculation of damages based on the future rental value of the premises, and the likelihood of reletting, provides [the landlord] with payment potentially bearing no reasonable relation to actual damages.” Peterson, supra at 593-594 (3). The same general principle applies here. Tokai cannot have the benefit of both the property and the value of all future rent payments. In essence, this would place Tokai in a superior position following default to that which it was in before such default occurred. Therefore, the provision for damages under the contract is a penalty rather than liquidated damages. Accordingly, summary judgment on the issue of damages was improper in this case.

3. In his final enumeration of error, Carter contends that the trial court erroneously admitted the affidavit of Larry M. Blackman into evidence, in violation of hearsay rules relating to business records. We disagree.

“Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.” OCGA § 24-3-14 (b). “This Code section shall be liberally interpreted and applied.” OCGA § 24-3-14 (d). In his affidavit, Blackman stated that the information contained in his affidavit was made after a review of Tokai’s business records “maintained by [Tokai] which are in my care, custody and control, which are maintained in the course of [Tokai’s] business.” As such, the admission of Blackman’s affidavit and the accompanying attach-merits complied with the foundation requirements of OCGA § 24-3-14 (b).

Decided March 31, 1998.

Small, White & Marani, Gus H. Small, Jr., for appellant.

Victoria J. Hoffman, for appellee.

Tokai’s motion for assessment of penalties for á frivolous appeal against Carter is hereby denied.

Judgment reversed.

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

       Tokai did credit Carter with the $5,900 it received from the sale of the repossessed goods; however, under the terms of the Agreement, Tokai had no obligation to do so.

       We note that the fact that Tokai credited Carter, as ARC’S guarantor, with the proceeds received from the sale of the repossessed equipment, net of remarketing expenses, does not change the outcome. As explained above, the Agreement, as drafted, cannot properly be enforced. In addition, Tokai has admitted that it is doubtful that the $5,900 it reimbursed to Carter represents the full fair market value of the property. Therefore, even with the reimbursement made by Tokai, Tokai remains in a better position than it would have been had the lease been enforced, and the damages clause in this case functioned as a penalty.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A0271.
    LECKIE v. THE STATE.
    (500 SE2d 627)
   Judge Harold R. Banke.

Jerry B. Leckie was convicted of misdemeanor obstruction of an officer. In his sole enumeration of error, he challenges the sufficiency of the evidence necessary to establish the essential element of obstruction or hindrance.

This case arose after Leckie painted orange lines on the parking spaces in front of his business which was located in a strip mall. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). To prevent drivers from smearing the paint, he parked his pickup truck to block one of the two entrances to the parking lot. The owners of the other businesses in the mall called the police when Leckie refused to move the truck. After the arresting officer arrived, Leckie announced he “wasn’t moving the g-dd — n truck” and suggested the officer “get in his f- — ng police car and leave.” Leckie’s continued profane belligerence so concerned the officer that he called for backup.

After trying to reason with him for at least 20 minutes, the officers concluded that Leckie had “just gotten out of hand,” and advised him he was under arrest for disorderly conduct. Leckie turned away, folded his arms, and responded, ‘You’re not taking me to f- — ng jail.” When the arresting officer reached for Leckie’s arm to handcuff him, Leckie unsuccessfully attempted to jerk his arm away, then spun around, stepped on the officer’s foot, and went limp. Both men rolled to the ground, where the officer finally handcuffed Leckie. Leckie weighed approximately 400 pounds and required medical attention after the fall. Held:

The evidence, viewed in the light most favorable to the verdict, was sufficient to permit a rational trier of fact to find all the essential elements of misdemeanor obstruction of an officer. Jackson v. Vir ginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The elements of this offense are the knowing and wilful hindrance of any law enforcement officer lawfully discharging his or her duties. OCGA § 16-10-24 (a). In certain circumstances, proof of flight may be sufficient to establish hindrance. Walker v. State, 228 Ga. App. 509, 512 (4) (493 SE2d 193) (1997). Even verbal exchanges may satisfy that element. Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992). Thus, the testimony that Leckie, after being advised he was under arrest, announced he was not going to jail, purposefully turned away from the officer and attempted to avoid being handcuffed was sufficient to support the jury’s verdict. See Basu v. State, 228 Ga. App. 591, 593 (3) (492 SE2d 329) (1997); Veal v. State, 226 Ga. App. 897 (487 SE2d 696) (1997).

Decided March 31, 1998.

Renate W. Downs, for appellant.

Otis L. Scarbary, Solicitor, Russell B. Mabrey, Jr., Assistant Solicitor, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Johnson, Judge.

text:
    A98A0446.
    ABLEMAN v. TACO BELL CORPORATION.
    (501 SE2d 26)
   Johnson, Judge.

Brian Ableman sued Taco Bell Corporation, Edna Mintz and Jerry Mintz for injuries he sustained during an altercation with Jerry Mintz outside a Taco Bell restaurant. The trial court granted Taco Bell’s motion for summary judgment, finding Ableman’s injuries were the result of the unforeseeable, criminal act of a third party. Ableman appeals. We affirm.

On April 16, 1994, Ableman and two friends entered a Taco Bell restaurant and ordered food from Edna Mintz, the night manager. Edna Mintz’s husband, Jerry Mintz, and another unidentified individual were speaking with Edna Mintz at the counter when Ableman and his friends arrived. The three friends received their food and sat in the restaurant. Subsequently, more friends of Ableman entered Taco Bell with bags of food from other restaurants. Edna Mintz informed Ableman’s friends that it was against policy for them to have food from other restaurants in Taco Bell and that they would have to leave. One of Ableman’s friends swore at her. At that point, Jerry Mintz and the unidentified individual approached Ableman’s table. Theré is some evidence that they threatened Ableman in order to make him and his friends leave. However, there is no evidence that Edna Mintz asked Jerry Mintz or his companion for assistance in getting Ableman’s friends out of the restaurant.

Although they initially refused to leave the restaurant, Ableman and his friends exited Taco Bell. Edna Mintz remained in the restaurant. A brief oral confrontation occurred outside between Ableman’s friends, Jerry Mintz and the unidentified individual. One of Ableman’s friends said something “smart” to the unidentified individual, and Ableman said in a loud manner, “everybody f — ing chill out.” Within a second or two, Jerry Mintz came around the corner, grabbed Ableman and threw him against a wall. Edna Mintz did not have an opportunity to stop Jerry Mintz after he went after Ableman.

Jerry Mintz and his companion were not employees of Taco Bell. Jerry Mintz subsequently pled guilty to battery, and Edna Mintz pled nolo contendere to obstruction of a law enforcement officer for her failure to identify Jerry Mintz to the police after this incident.

1. Ableman alleged Taco Bell was liable because it failed to keep the premises safe for its invitees (OCGA § 51-3-1) and should have foreseen that Jerry Mintz would injure Ableman. Ableman argues that the trial court erred in granting summary judgment to Taco Bell because genuine issues of material fact remain regarding whether Edna Mintz, Taco Bell’s agent, knew of Jerry Mintz’s alleged violent propensities and failed to keep the premises safe or warn Ableman that Jerry Mintz posed a danger. We disagree.

The seminal issue is whether Taco Bell or Edna Mintz could have reasonably foreseen the consequences of failing to remove Jerry Mintz from the premises. See Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 161 (342 SE2d 468) (1986). The evidence in the case, viewed in the light most favorable to Ableman, demands a finding that Taco Bell and Mintz could not have reasonably foreseen the attack that occurred.

According to Edna Mintz, she had never seen Jerry Mintz physically attack anyone, and to the best of her knowledge, he had never been charged or convicted of any violent crime prior to this incident. The record is devoid of any evidence showing that Jerry Mintz ever committed a violent act upon anyone prior to the incident. Since the evidence is insufficient to put Edna Mintz on notice that Jerry Mintz would commit an act of violence against anyone at the restaurant, Taco Bell cannot be held liable for his violent conduct.

In support of his argument, Ableman asserts that Edna Mintz knew of Jerry Mintz’s alleged violent propensities because in May 1994 Edna Mintz reported to police that Jerry Mintz had made verbal threats to her. Ableman also relies on the fact that Edna Mintz did not initially identify Jerry Mintz as one of the men involved because, by her own admission, she was afraid of him. However, there is no indication that Edna Mintz was afraid of her husband until after his altercation with Ableman. While the evidence shows that Jerry Mintz may have verbally threatened Edna Mintz on one occasion in the past, there is no evidence disputing Edna Mintz’s affidavit testimony that Jerry Mintz had never actually been physically violent toward her or anyone else prior to this incident. In addition, the fact that Jerry Mintz allegedly made verbal threats to his wife does not constitute knowledge on her part that he would physically attack a third party. Ableman further offers as proof a restraining order which Edna Mintz filed against Jerry Mintz. However, like the written statement, this Petition for Relief Under the Family Violence Act was filed over one month after this incident and does not establish any knowledge by Edna Mintz of Jerry Mintz’s violent tendencies prior to or on the date of the incident. See generally Reynolds v. L&L Mgmt., 228 Ga. App. 611, 614 (2) (b) (492 SE2d 347) (1997). The trial court correctly granted summary judgment to Taco Bell.

Decided March 31, 1998.

McGarity & Moyer, Bridget G. Moyer, for appellant.

Hawkins .& Parnell, Stephen M. Brooks, Matthew F. Barr, for appellee.

2. Based on our ruling in Division 1, Ableman’s remaining enumerations of error need not be addressed.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A98A0513.
    MEYER et al. v. SUPER DISCOUNT MARKETS, INC. et al.
    (501 SE2d 2)
   Johnson, Judge.

Elizabeth Meyer, Janet Frank, and Karen Frank sued Super Discount Markets, Inc. (“Cub Foods”) and Greenwood Packing Plant (“Greenwood”) for food poisoning allegedly associated with a ham sold by Cub Foods and processed and packaged by Greenwood. The record shows that on February 17, 1994, the appellants and several other friends gathered for a family dinner at the home of Dot Aeree. The main course was a ham which Dot Aeree purchased uncooked earlier that day from Cub Foods.

In preparing the ham, Aeree removed the sealed plastic packaging, set the ham in a baking pan and placed it in the oven. The ham smelled and looked normal before and after baking. After the ham was cooked, the appellants each sampled a small piece from the top of the ham. Each appellant stated that the ham had no unusual taste or odor.

Janet Frank then prepared to serve the ham by inserting a carving fork into the center of the ham. As she did, a thick, white milky substance began to flow from the fork holes. The substance was accompanied by a foul, offensive odor which Frank stated was worse than anything she had ever smelled. Frank sliced the ham open to determine the source of the white substance and discovered a fist-sized pocket inside the ham. The thick substance in the ham pocket looked like clabbered milk with tartar sauce in it. None of the appellants actually consumed any of the white substance. The ham was returned that evening to the store where it was purchased.

Later that evening, Elizabeth Meyer became ill, suffering from a high fever, nausea, vomiting and diarrhea. Her treating physician, Dr. Stanley Arnold, diagnosed her as suffering from food poisoning and a staph infection. Meyer returned to her treating physician approximately three times because her symptoms persisted. She suffered from sporadic diarrhea for four to five months after she consumed the ham.

Later that same evening, Karen Frank also developed nausea, vomiting, diarrhea, light-headedness and stomach pains. Her symptoms lasted for five or six days. She was diagnosed by her treating physician, Dr. Robert Lathan, as suffering from food poisoning. Frank returned to Dr. Lathan two weeks later because she was still unable to eat solid foods without suffering from nausea, vomiting and diarrhea.

Janet Frank also suffered from nausea, vomiting and diarrhea shortly after consuming the ham. She apparently did not seek medical assistance.

The appellees presented evidence that after the ham was returned to Cub Foods, it was sent for testing to Silliker Laboratories, which specializes in testing meat and other food products. The tests performed by Silliker Laboratories indicated that the ham could not have caused anyone to become ill with staph food poisoning.

The trial court granted summary judgment to Cub Foods and Greenwood. For the reasons set out below, we reverse.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

1. The appellants maintain that the trial court erred in granting summary judgment because material issues of fact remain as to whether the ham caused the appellants’ alleged injuries. We agree.

It is well established that an individual claiming damages after consuming allegedly unwholesome food must show a causal link between the food she alleges to be unwholesome and her resulting alleged illness. Stevenson v. Winn-Dixie Atlanta, 211 Ga. App. 572, 574 (1) (440 SE2d 465) (1993). Illness alone cannot establish proximate cause; a mere showing that a person became sick subsequent to eating food is insufficient. See Castleberry’s Food Co. v. Smith, 205 Ga. App. 859, 861-862 (2) (424 SE2d 33) (1992); Wilson v. Mars, Inc., 121 Ga. App. 790, 791 (2) (175 SE2d 924) (1970). In the absence of direct evidence of the unwholesomeness or adulteration of the food, recovery could be supported by circumstantial evidence “ ‘if every other reasonable hypothesis as to the cause of the plaintiff’s illness could be excluded.’ ” Edwards v. Campbell Taggart Baking Cos., 219 Ga. App. 806, 807 (1) (466 SE2d 911) (1996). As a general rule, causation is a jury issue and should not be determined by a trial court as a matter of law except in plain and undisputed cases. Flanagan v. Riverside Military Academy, 218 Ga. App. 123, 124-125 (460 SE2d 824) (1995); Castleberry’s Food, supra at 862 (2).

In the present case, the appellants produced medical testimony to support their allegations that the ham caused their illnesses. For example, Dr. Lathan stated that Karen Frank came into his office complaining of nausea, vomiting and diarrhea. She informed him that she had eaten an abscessed ham the previous week and that her cousin was also ill after eating the ham. After conducting a series of tests, Dr. Lathan diagnosed Frank as suffering from gastroenteritis caused by staph food poisoning. This diagnosis was based on Frank’s subjective history, as well as Dr. Lathan’s objective testing and his experience as a physician. While Dr. Lathan’s diagnosis was not confirmed by any laboratory data from testing performed on either Frank or the ham, his laboratory tests ruled out certain other possible causes. According to Dr. Lathan, Karen Frank presented with “almost a classical history for food poisoning” due to the onset of the symptoms shortly after the consumption of the ham and the visible condition of the bam.

In addition, Dr. Arnold, who treated Elizabeth Meyer, diagnosed her with “food poisoning,” rather than the more specific “staph food. poisoning.” Dr. Arnold performed a complete blood count, chemistry profile, amylase enzyme level and stool analysis to exclude other possible causes of her illness. The fact that the tests were negative is not inconsistent with Dr. Arnold’s diagnosis of food poisoning, and in fact, Dr. Arnold testified that one would expect most or all of the tests to be normal in a case of acute food poisoning.

Both doctors testified that Elizabeth Meyer and Karen Frank suffered from food poisoning, that there are substances in ham which can cause food poisoning other than the one agent tested for by Silliker Laboratories, and that their diagnoses of food poisoning would not be affected by Silliker’s test results. According to Dr. Lathan, the most likely cause of Karen Frank’s food poisoning was the ham. The fact that testing may have shown that the ham did not contain any enterotoxin would not have changed his opinion because there are other organisms and “a whole host of bacteria” other than staphylococcus which can cause food poisoning.

Contrary to the appellees’ contention, this is not a plain and undisputable case which mandates judgment in their favor as a matter of law. In none of the cases cited by the appellees was there any direct evidence that the food consumed was unwholesome, deleterious or unfit for human consumption. In the present case, however, there is direct evidence of the unwholesomeness of the ham. It is undisputed that the ham contained a putrid-smelling, white substance which looked like milk and tartar sauce. This direct evidence of the unwholesomeness of the ham, coupled with the fact that only those persons who consumed the ham became ill, all with the same general symptoms in the same general time frame, and the testimony of two doctors that at least two of the three individuals suffered from food poisoning, is sufficient to create a jury issue as to causation. See Burns v. Colonial Stores, 90 Ga. App. 492, 493 (1) (83 SE2d 259) (1954) (fact that the family, including dog and cat, became ill shortly after consuming meat was sufficient to create a jury issue regarding whether meat was contaminated); Great A & P Tea Co. v. Dupee, 71 Ga. App. 148, 150 (2) (30 SE2d 365) (1944) (fact that plaintiff and her family, all in good health, and within the same time after consuming the beef, became suddenly ill with the same symptoms of stomach pains, nausea and vomiting was sufficient to make a prima facie case against seller of meat).

While the appellees analogize this case with Edwards, where we held the plaintiff’s claim failed as a matter of law, the facts in this case are different. In Edwards, there was no direct evidence that the food was unwholesome. Id. at 807. Moreover, Edwards involved a single plaintiff who suffered from pre-existing digestive problems. Finally, Edwards’ own doctor testified that it was possible Edwards’ illness was caused by his perception of what he ate, as opposed to being actually caused by what he ate. In the present case, there is no evidence that the appellants’ illnesses were caused by their perception of the ham rather than their consumption of the ham. This fact is bolstered by the fact that the appellants did not immediately become sick after seeing the foul substance in the ham, but that their illnesses occurred several hours later. The trial court’s order granting appellees’ renewed motion for summary judgment is therefore reversed.

2. Because the issue is likely to arise during the trial of this case, we will address the appellants’ contention that the ham they consumed was not the same ham the appellees had tested.

The trial court denied Cub Foods’ and Greenwood’s original motion for summary judgment based on allegations that the ham the appellants consumed was not the same ham tested by Silliker Laboratories. Appellants’ key evidence on this point was Dorothy Meyer’s testimony that the day after the appellants became sick, she returned to Cub Foods to get the label from the ham. According to her affidavit, Dorothy Meyer was told by an employee of Cub Foods that the ham had been thrown away. The employee also allowed her to look in the storage refrigerator to confirm that the ham had been thrown away.

Through affidavits and exhibits, the appellees provided a chain of custody as to the whereabouts of the ham and filed a renewed motion for summary judgment. According to the evidence, the appellants returned the ham to the Cub Foods store on February 17, 1994. On February 18, 1994, the meat manager of the store learned that a ham had been returned and was in the meat cooler. He inspected the only ham in the cooler, noticed what appeared to be an abscess in the middle of the ham, and returned the ham to the cooler. The meat manager was present two or three days later when a representative of Greenwood came and picked up the ham, which the representative removed from the cooler where the meat manager had left it.

C. James Brabham, Vice-President of Greenwood, received the ham at his office, examined it and noticed what he believed to be an abscess in the center of the ham. He took pictures of the ham, rewrapped it and placed it in a storage freezer. Brabham later retrieved the ham from the storage freezer where he had left it, reexamined the ham to make certain it was the same ham and packaged the ham for shipping to Athens Laboratories. He obtained the shipping label from Greenwood’s administrative assistant and placed it on the box. He then placed the box in the outgoing mail receptacle.

Dr. John Carpenter of Athens Laboratories received the package from Greenwood. He received no other packages or hams which could have been confused with that received from Greenwood. Carpenter hand-delivered the package to Silliker Laboratories.

Appellants claim that, notwithstanding this evidence produced by the appellees, a material issue of fact is created by Dorothy Meyer’s affidavit stating that the store employee told her the ham had been thrown out. Appellants failed to provide competent evidence, either by affidavit or deposition, from the store employee or any other source regarding the alleged disposal of the ham.

Decided March 31, 1998.

Powell, Goldstein, Frazer & Murphy, Elmer A. Simpson, Jr., William B. Brockman, Mario O. Leach, for appellants.

Drew, Eckl & Farnham, George R. Moody, Darrell T. Farr, for appellees.

“Evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment. Hearsay is never admissible and has no probative value unless it comes wdthin a recognized exception to the rule.” (Citations and punctuation omitted.) Hagan v. Goody’s Family Clothing, 227 Ga. App. 585, 586 (490 SE2d 107) (1997). Once the party moving for summary judgment has made out a prima facie case, as was done by the appellees in this case, the burden of proof shifts to the opposing party to come forward with rebuttal evidence or suffer judgment against it. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. , 63, 65 (2) (a) (397 SE2d 576) (1990). The hearsay statement of the store employee is not admissible. Id. Moreover, while Meyer testified that she looked in the storage refrigerator and did not see the ham, there is no evidence that this storage refrigerator is the same as the meat cooler where the meat manager located the ham the day after it was returned. Based on these facts, the trial court correctly determined that no material issue of fact existed regarding whether the ham consumed by the appellants was the same ham tested by Silliker Laboratories.

3. Appellants further argue that the trial court should not have relied on the Silliker Laboratories testing results because the ham was destroyed or thrown away before they had an opportunity to independently test the ham. This spoliation of evidence argument was not addressed by the trial court. Because we do not have a ruling from the trial court regarding this issue, there is nothing for us to review. Gen. Accident Ins. Co. v. Wells, 179 Ga. App. 440 (1) (346 SE2d 886) (1986).

Judgment reversed.

Birdsong, P. J, and Smith, J., concur.


text:
    A98A0564.
    MURCHISON v. THE STATE.
    (500 SE2d 651)
   Johnson, Judge.

A jury found Charles Daniel Murchison guilty of committing child molestation and aggravated child molestation upon his friend’s seven-year-old granddaughter. Murchison appeals from his conviction and the denial of his motion for new trial.

Murchison contends that by allowing the victim to sit in her mother’s lap while the child testified, the trial court erroneously expressed an opinion about the case. We disagree.

OCGA § 17-8-57 provides: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” The transcript shows that when the state asked the seven-year-old victim questions on direct examination, she often gave non-verbal responses, one-word responses, or no response at all. At the conclusion of the state’s direct examination, the trial judge asked the child if she wanted her mother to sit with her. The child responded: “Huh.” Murchison objected to the trial court’s suggestion. The trial judge stated that he would let the mother sit with the child so that the child would feel more comfortable, adding that the child could sit on her mother’s lap if she wanted to. The trial court instructed the mother not to answer the questions for the child. At trial, Murchison objected only on the basis that the family had been having difficulties and the mother may silently influence the child’s testimony. Murchison did not complain about any alleged expression or intimation of opinion by the trial court.

It is well settled that this Court will not consider grounds for objections not raised and passed upon in the trial court. See Morgan v. State, 212 Ga. App. 394, 395 (1) (442 SE2d 257) (1994). Because Murchison did not raise at trial the ground for objection asserted here, the issue has been waived.

We note, however, that even had the issue been preserved, we would find no abuse of discretion. “The conduct of the trial of any case is necessarily controlled by the trial judge, who is vested with a wide discretion and in the exercise of which an appellate court should never interfere unless it is made to appear that wrong or oppression has resulted from its abuse.” (Citations and punctuation omitted.) Rogers v. State, 163 Ga. App. 641, 645 (5) (295 SE2d 140) (1982); see generally Pratt v. State, 228 Ga. App. 567, 569 (492 SE2d 310) (1997).

Our courts have allowed a great deal of latitude in the examination of young or timid witnesses. See Davis v. State, 204 Ga. App. 657, 658-659 (5) (420 SE2d 349) (1992); Boatright v. State, 192 Ga. App. 112, 115 (5) (385 SE2d 298) (1989). A trial court may render aid to a witness if, because of age, timidity or frailty, the witness requires aid in order to testify. Davis, supra. That the trial court allowed the young child to sit on her mother’s lap after the child had difficulty testifying about the molestation on her own did not constitute an abuse of discretion. Nor did the procedure amount to an intimation of the trial court’s opinion as to what had been proven or the accused’s guilt.

Decided March 31, 1998.

Jack E. Carney, Jr., for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

We find preposterous Murchison’s argument that the trial court showed its alleged bias in favor of the state by not permitting a 12-year-old defense witness to sit on her mother’s lap while testifying. Not only was no such request made, but the record reveals that the older witness had no apparent difficulty testifying.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


author: Eldridge, Judge.

text:
    A98A0612, A98A0613.
    In the Interest of A. W, a child (two cases).
    (501 SE2d 22)
   Eldridge, Judge.

On November 16,1995, A. W, a baby, was adjudicated as deprived and committed to the custody of the Whitfield County Department of Family & Children Services (“DFACS”).

This is an appeal by the mother and father of the termination of their parental rights by the Juvenile Court of Whitfield County on August 25,1997; the termination of parental rights resulted from the parents’ failure under the reunification plans developed by DFACS after the initial deprivation and removal procedure. The case was tried on August 21, 1997.

A. W. was born on October 5, 1995, and tested positive at birth for cocaine and was determined to be at risk of neglect and abuse from her parents by the juvenile court upon petition by DFACS. As a result, she trembled frequently, had difficulty sleeping, was hyperactive and restless, and had reflux problems. She shows signs similar to Attention Deficit Hyperactivity Disorder.

Both parents acknowledged that they had drug and alcohol problems, and the mother had cocaine metabolite in her blood when she gave birth; the mother was arrested and pled guilty to cocaine possession as a consequence of the presence in her blood. At the time of delivery, both parents smelled of alcohol. DFACS was granted custody two days after A. W.’s birth. After delivery of A. W, the mother underwent a 28-day in-patient treatment program for drug and alcohol abuse. She was prosecuted and pled guilty on March 6, 1996, to the possession of cocaine, i.e., having it in her blood stream so that, at birth, A. W. was positive for cocaine metabolite.

Reunification with the parents was attempted for 13 days on the condition that the mother remain alcohol-free, but the attempt failed when she again began consuming alcohol and was unable to cope with the baby. The baby has stayed in foster care for the remainder of her life. DFACS failed to have the parents undergo periodic drug and alcohol screens over the 22 months that A. W. was in custody, because neither parent had custody. However, the mother submitted two negative drug screens made on March 14, 1996, and June 10, 1996.

DFACS has had prior involvement with the mother regarding neglect complaints involving an older sister, J., one in 1993 and two in 1994; the daughter ultimately was placed in her father’s custody. DFACS also had prior involvement with A. W.’s father in regard to his son, B., one in 1993 and two in 1995. These neglect complaints involved drug and alcohol abuse by the father, resulting in lack of supervision of the son. In 1997, DFACS received custody of B. because of the neglect.

DFACS and the parents of A. W. entered into a reunification plan which had a number of goals. The first goal was that the parents remain drug- and alcohol-free. The second goal was that the parents maintain a drug- and alcohol-free home. The third goal required the parents to obtain their own source of income; however, the parents failed to provide DFACS with proof of employment, were not able to establish employment since the birth of A. W, and remained unemployed. The fourth goal was that the parents maintain regular and consistent contact with the child. While the parents were required to cooperate with DFACS as the fifth goal and expressed the desire to do so, neither parent was able to maintain progress on the goals, which was partially due to repeated incarcerations.

The mother was arrested for shoplifting in April 1996; it was her second such arrest and caused her probation from the cocaine possession sentence to be revoked. When not incarcerated, the mother visited the child consistently between December 1996 and May 1997.

When not incarcerated, the father visited consistently until some time in December 1996; after that period, his incarcerations prevented visitation. Since then, however, the father has served ten days in jail, then ninety days in a “boot camp,” and has been incarcerated in prison since May 16,1997. In October 1996, DFACS informed the father that, since he had taken no steps to legitimate A. W, then he would not be allowed to visit. The action to terminate the putative father’s parental rights was filed March 27, 1997. The father legitimated the child on June 26, 1997, after DFACS commenced this action. The mother was incarcerated in December 1996, and this caused the father to cease visiting A. W., when the mother was unable to accompany him. From February 1997 until April 1997, the father had no contact with DFACS, either.

The father visited the child only once in 1997, because DFACS had informed him that he could not visit A. W., since he had not legitimated the child. The parents provided Christmas and birthday presents for A. W. and came to her birthday party. The parents never had anything other than supervised visitation with A. W.

The plan required that the parents acquire and demonstrate age-appropriate parenting skills as the sixth goal, which neither achieved. In June 1996, the mother completed a parenting course; she completed another in May 1997 while incarcerated. The mother was required by the April 1997 Citizens Review Panel to complete a refresher class on nurturing, because it had been too long since the initial course; however, she never completed a nurturing course. The father never completed any parenting course.

The parents were ordered to support A. W. as the seventh goal, but the father never paid anything toward support of A. W., and the mother paid only $590.

The father had an outstanding indictment containing 16 counts for burglary, theft by taking, criminal damage to property, and theft by receiving; further, he was held in custody for a probation violation. He had a prior conviction for violation of the Georgia Controlled Substances Act and aggravated assault, and served time until 1992. He was convicted of driving under the influence (“DUI”) in 1993, 1994, and 1995, when he was declared a habitual violator.

In January 1997, the mother was convicted of misdemeanor shoplifting, and her probation was revoked. In March 1997, she again was convicted of misdemeanor theft by shoplifting and criminal trespass.

A. W. has lived her entire life with foster parents and has bonded with them as her parents. The foster parents wish to adopt the child that they have had in their custody since her second day of life.

A. W. has not bonded to her biological parents and will not stay alone in the room with them. Both parents are continually in and out of jail, remain unemployed, and do not maintain their own residence. Until June 1997, the father did not legitimate A. W. The parents have produced another child besides A. W., while losing custody of an older child. The father has failed to support A. W., while the mother has paid less than one-half of the court mandated support.

The enumeration of error of the parents is that the juvenile court had insufficient evidence by a clear and convincing standard to terminate their parental rights. We do not agree.

While the mother partially met the parenting training goal, the communication goal, and the support goal, she failed to complete such goals or make successful progress toward their completion. She failed to achieve the goals of being drug- and alcohol-free, obtaining employment, maintaining a drug- and alcohol-free home, and maintaining a stable residence. The father only partially met the contact goal, but completely failed to meet the other goals.

Parental unfitness, caused either intentionally or unintentionally, which results in abuse or neglect of the child or which is tantamount to physical or mental incapacity to care for the child, will justify the termination of parental rights. In the Interest of T. R. L., 162 Ga. App. 659, 660 (292 SE2d 518) (1982). The juvenile court properly went through the two-step process for termination of parental rights. OCGA § 15-11-81 (a); In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996); In the Interest of A. T., 187 Ga. App. 299, 301 (370 SE2d 48) (1988).

There was clear and convincing evidence of deprivation of A. W. and that the deprivation would continue in the future. A. W.’s testing positive for cocaine at birth brought her within OCGA § 15-11-2; such positive test showed that the mother was the cause of such deprivation status. Further, the mother’s failure to remain alcohol-free during the attempted reunification demonstrated that deprivation was likely to recur in the future and would not be remedied by the mother, which would cause future physical, mental, emotional, and moral harm for A. W. See OCGA § 15-11-81 (b) (4) (A) (i)-(iv), (B) (ii); In the Interest of D. T., 221 Ga. App. 328, 329 (471 SE2d 281) (1996); In the Interest of G. K. J., 187 Ga. App. 443 (370 SE2d 490) (1988). Such factors, which showed the existence of parental misconduct or the inability to remedy the cause of deprivation, also supported the trial judge’s finding that the termination of parental rights was in the best interest of the child, because such factors are good predictors that the parents’ conduct would continue into the future and that the failures of both parents to meet the reunification goals were in whole or part caused by alcohol. See OCGA § 15-11-81 (a).

Neither parent has established a stable home for themselves, let alone for A. W. The father totally failed to support A. W, and the mother only partially supported the child. Neither obtained or maintained employment. Their contact has been prevented repeatedly by their incarceration.

Further, “[t]he past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue.” (Citations and punctuation omitted.) In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991); In the Interest of J. L. Y., 184 Ga. App. 254, 257 (361 SE2d 246) (1987); see In the Interest of A. M. V., supra at 531; In the Interest of B. P., 222 Ga. App. 621, 622 (475 SE2d 673) (1996); In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995). In this case, both parents had a history of prior reports of neglect or of finding neglect as to older siblings, which ultimately led to the loss of custody of such siblings. In regard to the father, the finding of neglect arose out of alcohol abuse. The father had three convictions of DUI, which indicates a chronic alcohol problem. While there was no evidence produced of alcohol or drug abuse by the mother after July 1996, the mother was found to have used alcohol more than nine months after she had lost custody, which indicates a pattern of continuing misconduct. Each parent had an extensive arrest record and repeatedly was incarcerated, so that they were unable to care for the child; such past conduct was indicative of future conduct. Thus, the juvenile court could find that this conduct was likely to continue in the future. OCGA § 15-11-81 (b) (4) (A) (iii); In the Interest of P. N. L., 228 Ga. App. 187 (491 SE2d 434) (1997); In the Interest of J. M. C., supra at 174.

Decided March 31, 1998.

Jerry W. Moncus, for appellant (case no. A98A0612).

Michael R. McCarthy, for appellant (case no. A98A0613).

Thurbert E. Baker, Attorney General, William C. Joy, Dennis R. Dunn, Senior Assistant Attorneys General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, Jeffrey J. Dean, for appellee.

The trial court must base its decisions on more than positive promises as to future conduct that the past has proven will not be carried out. See In the Interest of R. N., 224 Ga. App. 202, 205 (480 SE2d 243) (1997); In the Interest of D. I. W., 215 Ga. App. 644, 646 (451 SE2d 804) (1994). Rather than keep A. W. in foster care until she is beyond the readily adoptable age, with repeated failed reunification plans, the juvenile court properly determined that termination of the parental rights of both parents was in the best interest of A. W. OCGA § 15-11-81 (a); In re G. M. N. & D. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987); In the Interest of T. R. G., 162 Ga. App. 177 (290 SE2d 523) (1982).

Judgments affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A98A0709.
    KING v. THE STATE.
    (501 SE2d 19)
   Blackburn, Judge.

Etheridge King, Jr. was convicted of aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. King, who represented himself at trial, appeals, contending that he did not knowingly and voluntarily waive his right to counsel. For the reasons discussed below, we affirm.

“In determining whether or not an accused has adequately waived his right to counsel and elected to exercise his constitutional right to represent himself, the courts will apply the standard set forth in Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461) (1937). .. .‘A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ Johnson v. Zerbst, supra at 464. It is also clear from Johnson v. Zerbst that the trial judge has the responsibility of determining whether the accused has intelligently waived his right to counsel. ‘The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose fife or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.’ Johnson, at 465.” Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981).

In arguing that his waiver of the right to counsel should be considered invalid, King relies on the statement in Clarke, supra, that “in future cases, the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” Id. at 197. Specifically, King argues that he was not adequately informed of the dangers of proceeding pro se.

Decided March 31, 1998.

Lewis J. Patterson, for appellant.

Fredric D. Bright, District Attorney, Shelley S. Tice, Assistant District Attorney, for appellee.

“There is no magic language that must be used by a trial judge in determining that a defendant has made a valid waiver of his right to counsel. Rather, such determination must depend upon the particular facts and circumstances of each case.” Reviere v. State, 231 Ga. App. 329, 330 (498 SE2d 332) (1998). In addition to the trial court’s discussion with King on his self-representation, King had personal experience in this area, as he had previously represented himself in a trial in which he was convicted of aggravated assault against the same victim. King knowingly chose to proceed pro se and was well acquainted with the deficiencies of selected counsel and his inexperience with the process. Under the facts of this case the trial court did not err in allowing King to represent himself, and King cannot complain of his own poor choices. It is unlikely that the result would have been any different had King been represented by Solon himself. A defendant is entitled only to a fair trial, not a miracle.

Even had the trial court erred, in allowing King to represent himself, any such error was harmless beyond a reasonable doubt. Both the State’s case and King’s defenses were straightforward, and King was able to draw on his prior trial experience. The evidence against King was not only substantial but overwhelming. It consisted of eyewitness testimony from several witnesses who were eyewitnesses to the crimes for which King was tried. King has failed to demonstrate how his representation of himself affected the jury’s verdict. In light of the overwhelming evidence of King’s guilt, the error, if any, in allowing him to represent himself was harmless. See, e.g., Rutledge v. State, 224 Ga. App. 666, 670-671 (482 SE2d 403) (1997).

Judgment affirmed.

McMurray, R J., and Eldridge, J., concur.

       We note that the trial court required an attorney to sit at King’s table during trial for consultation if King so desired; however, this attorney was not appointed to and did not represent King during the trial.


text:
    A98A0718.
    DRAKE v. THE STATE.
    (501 SE2d 14)
   Eldridge, Judge.

The defendant, Ricky Earl Drake, was tried as a recidivist and convicted by a Crisp County jury for the offenses of arson, possession of a firearm by a convicted felon, aggravated assault, fleeing and attempting to elude a police officer, driving under the influence of alcohol, and driving under the influence of diazepam. On November 13, 1995, the defendant filed a timely motion for new trial. It is from the denial of this motion that the defendant appeals.

1. The defendant contends that the evidence was not sufficient to support the conviction. “On appeal the evidence must be viewed in a light most favorable to the verdict, and [the defendant] no longer enjoys a presumption of innocence; moreover, on appeal this [C]ourt determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

Viewed in this light, the evidence shows the following. The defendant and his wife, Lisa Drake, had been separated since August 29, 1994. On the evening of November 17, 1994, Mrs. Drake began to move some of her belongings into a brick, double-wide trailer she had leased on Evergreen Street. Mrs. Drake did not spend that night at her new home on Evergreen Street, but stayed with a male friend. During the early morning hours of November 18, 1994, Mrs. Drake received several phone calls from the defendant, stating that he was at her new home on Evergreen Street. To prove he was at her home, the defendant described the interior of the trailer to Mrs. Drake and stated that her new fireplace “did burn well.” Mrs. Drake verified that he was, in fact, in her home by calling him there on the telephone.

Ronnie Albritton testified at trial that on November 18, 1994, between 8:00 and 8:30 a.m. he was on his way to work and stopped by Mrs. Drake’s new home on Evergreen Street. When he arrived, the defendant was in the yard with a beer in his hand. Albritton talked with the defendant for ten to fifteen minutes. When he left, the defendant was still at Mrs. Drake’s trailer.

A neighbor noticed a black pickup truck with a flat bed leave Mrs. Drake’s trailer sometime before noon on November 18, 1994. A few minutes later, the neighbor noticed smoke coming from the vicinity of the trailer. As the smoke became heavier, he could tell it was coming from one of the roof vents and called 911.

The fire department received the call around 11:31 a.m. When the fire department arrived, flames were coming out of the windows on the north front and the west end of the trailer. After an investigation, the fire department determined that the fire had been intentionally set and had been started in several large bags of clothes in the living room-dining room and in a pile of coats and papers in the southeast corner bedroom. The fireplace was not near either location, and the electricity had not been turned on in the trailer. Further, there was no physical evidence that the fire was electrical in nature.

Deputy Lee Brian Hobbs with the Crisp County Sheriff’s Department testified that at approximately 11:30 a.m. on November 18, 1994, he was on patrol when he witnessed a black Ford pickup truck, driven by the defendant, run a stop sign at the intersection of Spring Street and Evergreen Street. Deputy Hobbs pursued the pickup truck with his siren and blue lights on. During the chase, the defendant ran several more stop signs; drove at speeds in excess of the speed limits; drove in an erratic manner, crossing the centerline; and threw a beer bottle at the deputy. Twice the defendant pointed a sawed-off shotgun out the driver’s window towards the deputy and, the second time, fired the weapon. When the shotgun discharged, the defendant dropped the shotgun, which was retrieved by the deputy. Sheriff Haralson and other law enforcement officials joined in the pursuit of the defendant. Sheriff Haralson attempted to stop the defendant by shooting out the tires of his truck, but was unsuccessful. Finally, Sheriff Haralson wrecked his patrol car into defendant’s truck to stop him.

After the collision, the defendant did not appear to be injured, but was extremely agitated and refused to be removed from his truck. When deputies attempted to remove him, he kept trying to reach for something inside his truck. There were papers and other items in the truck that kept the deputies from having a clear view of the interior of the truck. However, the deputies could see both a razor or boxcutter and a knife in a black sheath on the floor board of the truck. The deputies handcuffed the defendant’s right hand to the truck’s mirror and used a “haul strap” to hold his left hand out of the window. After spraying the defendant several times with pepper spray, the deputies were finally able to subdue the defendant and take him into custody. The defendant was transported to the hospital where he tested positive for alcohol in his blood at 0.19 grams per deciliter and for diazepam in his blood at 13 micrograms per deciliter.

After his arrest, the defendant made a statement in which he admitted the following: On November 18, 1994, he went to his wife’s trailer with the intent to kill both her and her male friend. When he arrived at the trailer, no one was home, so he gathered up toilet paper and, using a small lighter, started a fire in the living room of the trailer. The defendant then left in his black pickup truck, which had a wooden flat bed. Within a block or two of Mrs. Drake’s trailer, the defendant ran a stop sign, and when he was pursued by the Crisp County deputy, he attempted to elude the officer because he thought there was an active warrant for his arrest. Once the defendant realized that he would not be able to outrun the deputy, he pointed a sawed-off shotgun out the driver’s window and fired the weapon at the deputy’s vehicle. The force of the shotgun discharging the shell caused him to drop the weapon. Mr. Drake further stated that he threw out of the truck’s window papers that had his correct identity on them in the hope that he could get far enough in front of the deputy to stop and abandon the vehicle.

Lisa Drake was called as a witness by the defendant. On cross-examination, she testified that the defendant admitted to her that he might have set papers on fire at her trailer and that he fired a shotgun while trying to get away from Deputy Hobbs.

The evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the offenses with which he was charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The defendant’s second enumeration of error alleges that the trial court erred in allowing the in-custody statements of the defendant into evidence during the trial because the statements were not made voluntarily. The defendant argues that he was under the influence of alcohol and diazepam at the time of the interview, that he cannot remember giving a statement, and that it took him two days to “return to normal.”

During the Jackson v. Denno hearing, the Georgia Bureau of Investigation agent who interviewed the defendant testified that the interview was conducted at approximately 5:20 p.m. on November 18, 1994, approximately six hours after the defendant was arrested and transported to the hospital. The agent testified that prior to the interview, the defendant was read his Miranda rights. The defendant also signed a waiver certificate which stated the date, the time, the location where the interview was being conducted, the interviewer’s identity, the defendant’s name, age, current address, and his highest completed school level, the defendant’s Miranda rights, and a brief summation of what was going to be discussed during the interview. The waiver concluded with a statement, which was signed by the defendant, that he understood his rights and, having those rights in mind, was willing to talk about the chase by the Crisp County deputies. The agent further testified that during the interview, the defendant was coherent, his answers were responsive to the questions, and he did not appear to be under the influence of drugs or alcohol. The agent went on to testify that the interview was conducted in a small room with little ventilation, and he did not smell alcohol on the defendant. The agent testified that the defendant’s eyes were bloodshot, and when he asked the defendant if he was intoxicated, the defendant responded in the negative and stated that he had been sprayed with pepper spray. The agent testified that at no time did the defendant state that he no longer wished to talk about the case or ask the agent to stop the questioning. Under the totality of these circumstances, the trial court was authorized to find that the defendant knowingly waived his rights, and despite his previous consumption of alcohol and drugs his statements were made voluntarily. Garcia v. State, 267 Ga. 257, 258 (477 SE2d 112) (1996); Philmore v. State, 263 Ga. 67, 68 (428 SE2d 329) (1993). The trial court’s finding must be upheld, since it is not clearly erroneous. Adams v. State, 264 Ga. 71 (440 SE2d 639) (1994).

3. The defendant contends the State improperly placed his character into issue, and the trial court erred by denying his motion for a mistrial.

Upon arrest, the defendant gave the arresting officers a false name. On direct examination, the prosecutor asked Colonel Hancock of the Crisp County Sheriff’s Department at what point he learned the true identity of the defendant. Colonel Hancock responded by stating “[s]ometime at the hospital, we got a call from another law enforcement agency that was able to tell us who was driving that truck and we had heard radio traffic concerning Richard Drake all the time that we were chasing the truck telling us if that was the subject, then he was a wanted person out of Macon County.” The defendant objected to such testimony and moved for a mistrial. The trial court denied the defendant’s motion for mistrial and gave curative instructions to the jury to disregard the testimony. After the curative instructions, the defendant renewed his motion for mistrial. “Given that the testimony was non-responsive to the prosecutor’s question, and the trial court gave proper curative instructions to the jury, we find no abuse of discretion in the trial court’s determination that a mistrial was not necessary to preserve [the defendant’s] right to a fair trial.” Johnson v. State, 223 Ga. App. 668, 671 (3) (478 SE2d 404) (1996); Beach v. State, 258 Ga. 700, 701 (373 SE2d 210) (1988); Stanley v. State, 250 Ga. 3 (295 SE2d 315) (1982).

4. In his final enumeration of error, the defendant contends that his Sixth Amendment right to an impartial trial and jury was violated because his trial was held at the Crisp County Law Enforcement Center.

On October 30, 1995, a jury was selected in this case in a courtroom at the Crisp County Courthouse. After the selection of the jury, but prior to the commencement of opening statements, the trial court announced the trial would be moved to the Crisp County Law Enforcement Center because the Crisp County Courthouse was presently under renovation and the noise level was unbearable. The defendant objected and argued that the courtroom at the Law Enforcement Center was too small, did not have a bar or jury box, and contained a metal door which led to the jail portion of the facility. The defendant further objected to the trial being conducted in a detention center which had razor wire fence around a portion of the premises. The trial judge stated that all jury trials had been held in the Law Enforcement Center courtroom prior to the present courthouse being built, and that courtroom was still frequently used for trial. The trial judge also went on to state that (1) the door in the courtroom which led to the jail portion of the center would not be in use during the trial; (2) a bench and bar, as well as a jury box, were present in that courtroom; and (3) the furnishings were similar to the furnishings in the courtrooms in the courthouse.

“OCGA § 15-6-18 (a) contemplates that cases tried at places other than at a courthouse shall be valid. A verdict returned in the superior court by a jury sitting in a building, located at the county site, which has been provided by the proper county authorities as the place for holding that term of such court, is not void.” (Citations and punctuation omitted.) Pittman v. State, 196 Ga. App. 864 (397 SE2d 302) (1990); see OCGA § 15-6-18 (a); Davis v. State, 240 Ga. 763, 765 (243 SE2d 12) (1978); Cook v. State, 119 Ga. 108 (3) (46 SE 64) (1903). There is nothing within the wording of OCGA § 15-6-18 (a) which requires that an alternative place for holding court other than the county courthouse be designated the place for holding the court “by some formal order or resolution and to give timely notice of the place provided by advertisement or in some other public and formal manner.” (Punctuation omitted.) Cook v. State, supra at 112. “The statute simply declares that it shall be lawful to hold the court ‘at such place or places as the proper county authorities . . . may from time to time provide for such purpose.’” (Emphasis in original.) Id. There has been no showing that the Crisp County Law Enforcement Center was not located in the county site of Crisp County or that such facility “had not been provided by the proper county authorities as a place for holding that term of the Superior Court of [Crisp] County.” Pittman v. State, supra at 864 (2). Further, there has been “no showing that the trial itself was conducted in a manner not befitting a judicial body.” Davis v. State, supra at 765 (2).

“Under the Sixth Amendment, in order for [a defendant] to establish the denial of his right to an impartial jury, he must show either (a) actual juror partiality or (b) circumstances inherently prejudicial to that right.” (Citations and punctuation omitted; emphasis in original.) Jones v. State, 157 Ga. App. 163, 164 (276 SE2d 674) (1981). No such showing has been made in this case. “[T]he [defendant has] not shown that the challenged practice was so inherently prejudicial as to pose an unacceptable threat to [the] defendant’s right to a fair trial.” (Citation and punctuation omitted.) Chancey v. State, 256 Ga. 415, 435 (349 SE2d 717) (1986). We find no error.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided March 31, 1998.

John W. Sherrer, Jr., for appellant.

John C. Pridgen, District Attorney, Denise D. Fachini, Assistant District Attorney, for appellee.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602,16 LE2d 694) (1966).


text:
    A98A0855.
    TREVINO v. FLANDERS.
    (501 SE2d 13)
   Johnson, Judge.

Frank B. Flanders, Jr. filed a dispossessory proceeding against Abel Trevino. On November 7, 1997, the DeKalb County Marshal served the dispossessory notice by posting a copy to Trevino’s door and mailing a copy of the notice to Trevino. Trevino failed to file an answer within seven days, as required by law. See OCGA § 44-7-51 (b). On November 20, 1997, Trevino filed a motion to stay writ of execution and a motion to set aside default based on fraud by third parties. The trial court granted Trevino’s motion to stay and set the matter for a hearing. After hearing and considering the evidence, pleadings and testimony, the trial court denied Trevino’s motion to set aside and ordered that a writ of possession be entered in favor of Flanders. Trevino appeals, and we affirm.

1. In his sole enumeration of error, Trevino contends the trial court erred in denying his motion to set aside default. However, Trevino has failed to provide this Court with a transcript of the hearing below on this issue. “It is well-settled law that without a transcript to review, this court must assume as a matter of law that the evidence at trial supported the court’s findings. It is the burden of the complaining party, including pro se appellants, to compile a complete record of what happened at the trial level, and when this is not done, there is nothing for the appellate court to review.” (Citations and punctuation omitted.) Kulkov v. Botvinik, 230 Ga. App. 204 (1) (495 SE2d 662) (1998); Spires v. Glencastle, Inc., 208 Ga. App. 901, 902 (432 SE2d 567) (1993).

The record in this case does not support Trevino’s contention that third persons removed the notice from his door and intercepted his notice from the mail. Many of the facts referred to by Trevino appear only in his brief and are unsupported by evidence in the record; thus they cannot be considered on appeal. Hallisy v. Snyder, 219 Ga. App. 128, 129 (2) (464 SE2d 219) (1995). Without such evidence in the record and without a transcript of the hearing on this issue, we must presume that the trial court’s judgment granting the landlord a writ of possession was correct and based on sufficient, competent evidence. Florence v. Green Acres Mobile Home Estates, 230 Ga. App. 91 (495 SE2d 346) (1998). Trevino’s failure to include a transcript or to construct an acceptable substituted transcript pursuant to OCGA § 5-6-41 (g) is fatal to his appeal.

Decided March 31, 1998.

Abel Trevino, pro se.

Minkin & Snyder, Michael J. King, G. Brian Raley, for appellee.

2. Flanders requests that this Court impose a penalty against Trevino for frivolously pursuing this appeal pursuant to Court of Appeals Rule 15 (b). We have repeatedly held that a penalty for a frivolous appeal may be assessed in cases where the appellant could have no reasonable basis for anticipating reversal of the trial court’s judgment. Kulkov, supra at 205 (3); Hosseini v. Donino, 222 Ga. App. 697 (2) (475 SE2d 665) (1996); Hallisy, supra at 129 (4).

Because Trevino intentionally failed to include the hearing transcript or statutorily authorized substitute in the record on appeal, he could have no reasonable basis for anticipating that this Court would reverse the judgment of the trial court. Hallisy, supra. Accordingly, Flanders’ motion for sanctions for frivolous appeal is granted, and a penalty of $500 is imposed against Trevino. The trial court is directed to enter judgment against Trevino in this amount upon return of the remittitur. See Hosseini, supra.

Judgment affirmed. Case remanded with direction.

Birdsong, P. J, and Smith, J., concur.


text:
    A98A0895.
    HASSAN v. THE STATE.
    (500 SE2d 644)
   Eldridge, Judge.

Mamun Hassan was convicted for the offense of armed robbery by a DeKalb County jury and sentenced to ten years to serve. This appeal follows the denial of Hassan’s motion for new trial.

The evidence showed that during the early morning hours of May 15, 1996, Hassan went into the Amoco Food Mart on East Ponce de Leon Avenue in DeKalb County and purchased a pack of cigarettes and a soda from employee Samson Wolde. Wolde was the only employee present at the time. Wolde knew Hassan because Hassan was a former employee. Wolde was unaware that Hassan’s employment had been terminated.

After smoking a cigarette, Hassan told Wolde that he was “going to fuck up this goddamned store” because he was not working there anymore. Then Hassan began printing money orders on the store’s money order machine. When Wolde questioned Hassan’s actions, Hassan pointed a gun at Wolde. Hassan demanded that Wolde fold the money orders. Hassan demanded that Wolde give him a bag and the telephone. Hassan pulled a key to the register at which he had formerly worked and took the money out of it. Hassan then left in a light green Mazda. Wolde pushed a button under the cash register to summon the police.

The manager of the Amoco Food Mart, Akbar Khwaja, was called to the scene by the police. Khwaja gave Detective Ice of the DeKalb County Police Department a sample money order, printed from the same machine as those taken by Hassan, and an accounting of the serial numbers on the money orders that Hassan had taken. Khwaja testified that 31 money orders were taken which were numbered 673 through 703. Khwaja further testified that Hassan had the code for the money order machine and knew how to work the machine. Wolde, on the other hand, had never learned how to use the money order machine, because money orders were not sold during his shift. Khwaja voided the money orders and notified the money order company about the robbery.

Shortly after 2:00 p.m. on May 15, 1996, Hassan deposited eight money orders, worth $4,000, into his account and took $2,000 in cash back. The money orders were made out to the appellant and purportedly signed by someone with the last name Uddin; the first name of the purported purchaser was illegible. Those eight money orders had the same serial numbers as some of those taken from the Amoco store.

Subsequently, Marietta Police Officer Tony Langley found Hassan hiding in a back bedroom closet of a Marietta apartment. A gun and ammunition were lying on the top shelf of the closet. Hassan admitted that the gun was his. The following day, Wolde positively identified Hassan from a photographic lineup. Wolde testified that the gun seized from Hassan looked like the one Hassan used in the armed robbery.

1. In his first enumeration, Hassan contends that his trial counsel was ineffective.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). “To establish a claim of ineffective assistance of counsel, [Hassan] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [Hassan] must establish both the performance and the prejudice components of the Strickland test.” Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996). “A conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Citations and punctuation omitted.) Cunningham v. State, 222 Ga. App. 740, 743-744 (2) (475 SE2d 924) (1996); Strickland v. Washington, supra at 669.

(a) Hassan contends that his trial counsel was ineffective because he injected Hassan’s character into evidence knowing that the State had evidence to impeach the appellant’s good character.

At trial, Wolde testified that Hassan said to him, “I’m going to fuck up this goddamned store.” When Hassan testified, his counsel asked him, “Did you say any curse words to Mr. Wolde while you were there?” Hassan answered, “I don’t curse.” Hassan then testified, in response to questions by his trial counsel, that he was a Muslim, that he had never been convicted of a felony, and that he had a good reputation in the community.

The prosecution called Officer Frank Figueroa of the DeKalb County Police Department in rebuttal. Officer Figueroa testified that he had answered a shots fired call at an apartment in DeKalb County on February 9, 1996, some three months before the armed robbery which was the subject of this prosecution. Hassan, who was the one firing the shots, was present when Officer Figueroa arrived at the scene. Officer Figueroa said Hassan was very belligerent and kept telling Officer Figueroa and his sergeant that they were “motherfuckers.” The trial court gave limiting instructions to the jury following Officer Figueroa’s testimony.

At the motion for new trial hearing, Hassan’s trial counsel testified that he asked the question for the purpose of rebutting Wolde’s testimony and to bolster Hassan’s credibility. Trial counsel testified that he expected Hassan to respond with “no” and did not expect him to expand his answer to “I don’t curse.” Trial counsel further testified that he had a copy of the police report involving Hassan’s arrest by Officer Figueroa and was unaware from the report that the arrest involved cursing. “Trial strategy and tactics do not equate with ineffective assistance of counsel.” (Citations and punctuation omitted.) Ney v. State, 227 Ga. App. 496, 499 (489 SE2d 509) (1997). Such tactical choice was not so clearly erroneous as to be ineffective.

(b) Hassan further contends that his trial counsel was ineffective because he failed to obtain records of how the Amoco store’s video recorder worked and who operated it and failed to obtain a copy of the preliminary hearing transcript, which, Hassan contends, would have shown that the machine was not inspected by the police to determine if, in fact, it was not working properly. It is Hassan’s contention that the video recorder was intentionally turned off the night of the alleged robbery, so that Wolde could stage an alleged robbery to cover the fact that Wolde actually took the money orders and gave them to Hassan in payment of a debt.

The matter of the video recorder not working was covered in the trial of this case. Khwaja testified that there were video cameras in the store on the night of the robbery, and the video recorder was in his locked office. Khwaja further testified that he was the only one with the key to his office; Wolde did not have a key to his office. Khwaja testified that he and Detective Ice checked the video recorder together, but the recorder was not working. The light on the recorder was flashing, and the word “error” appeared. Khwaja went on to testify that the video recorder had stopped recording before midnight. On cross-examination, Khwaja testified that the recorder had stopped working before when there was a power surge, and that he had put a new tape in the recorder the previous day that should have lasted for a full day.

Detective Ice testified that he asked Khwaja at the time of the robbery if there were any videotapes of the incident. He further testified that he had inspected the video recorder with Khwaja and personally observed that the recorder was not working.

Hassan argues that the preliminary hearing transcript would have shown that Detective Ice did not inspect the video recorder, contrary to the trial testimony of both Detective Ice and Khwaja. However, there is nothing in the record to support Hassan’s contention. “[Hassan] has made no showing that such a transcript exists, or that if it did exist, it was unavailable to defense counsel and therefore had to be requested. Moreover, [Hassan] has not shown by the record that such a transcript, if it exists, contains statements that could have been used for impeachment purposes sufficient to cast doubt on the jury’s verdict. Accordingly, [Hassan] has failed to carry his burden to show affirmatively by the record that counsel’s performance was deficient and that [Hassan] was prejudiced as a result thereof.” Dixon v. State, 267 Ga. 136, 138 (475 SE2d 633) (1996); Strickland v. Washington, supra.

2. Hassan challenges the sufficiency of the evidence.

When reviewing a conviction, this Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). While Hassan testified that the money orders were given to him by Wolde in repayment of a loan, “it is the function of the jury, and not this Court, to resolve conflicts in the evidence. This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citation and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997). Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find Hassan guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, supra.

Decided March 31, 1998.

Hartley & Puls, Alton G. Hartley, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Keith E. Adams, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A98A0926.
    CENTRAL OF GEORGIA RAILROAD COMPANY v. DEC ASSOCIATES, INC. DEC ASSOCIATES, INC. v. NORFOLK SOUTHERN CORPORATION.
    A98A0927.
    (501 SE2d 6)
   Eldridge, Judge.

Central of Georgia Railroad Company (“Central”), defendantappellee, was substituted by consent of the parties and by order of the trial court as the proper party for Norfolk Southern Corporation (“Norfolk”). On January 12, 1996, DEC Associates, Inc. (“DEC”), plaintiff-appellant, commenced an action in the Superior Court of Clarke County to enforce a 1971 alleged easement agreement and to enjoin Central from denying DEC access to the subject property.

On December 31, 1970, Lane Oil Company, Inc. (“Lane”) entered into a land purchase agreement with Evans & Mitchell Industries, Inc. (“EMI”) for the subject property, contingent upon an easement for an access road over Central’s railroad tracks to access the property.

After extensive negotiations between Lane, Central, and Clarke County, an agreement was reached and executed on May 21, 1971. The agreement lacked an official witness and was not recorded as an easement in the deed records of the Clerk of the Superior Court of Clarke County. The agreement was in the form of a unilateral contract in which Lane promised to pay the costs of construction of the road and grade crossing if Central and Clarke County built the road and grade crossing; however, neither Central nor Clarke County promised to perform the work and only expressed the intent to do so without binding themselves to do so. Central was to construct the grade crossing over its tracks; upon completion, Lane was to repay Central the costs upon submission of the bill. The County was to construct a road up to and across the tracks at the expense of Lane. If the road and grade crossing was constructed and Lane paid for it, then Clarke County made certain promises to Central, which never occurred. Central agreed that it “hereby grants unto the County the right to construct and maintain upon and across, at grade, the right of way and main track of Railroad, the aforesaid grade crossing.”

After entering into the agreement and without performing the agreement, Lane sold the property to EMI. In 1975, prior to developing the property or construction of the crossing and road, EMI filed a Chapter 7 bankruptcy petition so that it could not pay for the construction, if performed. On June 12, 1975, the trustee in bankruptcy for EMI sold the property through quitclaim deed to Citizens & Southern Realty Investors (“C&S”). There was no evidence of assignment by the trustee of any other rights, interests, or unrecorded easements to C&S, which would cover the agreement. In May 1983, C&S’s successors in interest sold the property to DEC by limited warranty deed.

Neither Lane, EMI, nor any successor in interest constructed the grade crossing or paid for Central or Clarke County to construct the grade crossing. The agreement has not been performed by any party, Central, Clarke County, Lane, or their privies or assigns, for a period of 24 years. Until 1995, no one made a demand upon either Central or Clarke County to perform the agreement.

Central denied that the agreement created an easement and stated that DEC could not enforce the agreement.

After suit, both Central and DEC filed cross-motions for summary judgment, and oral argument was heard on January 2, 1997. DEC had the hearing taken down by the official court reporter. On April 1, 1997, the trial court granted Central’s motion for summary judgment. On May 1, 1997, DEC filed its notice of appeal.

In the notice of appeal, DEC stated that it would file a transcript of the hearing as part of the record. As of September 25, 1997, DEC had not ordered the transcript from the court reporter. The Clerk of the Superior Court delayed transmitting the record to the Court of Appeals because the transcript had not been filed. On September 25, 1997, Central filed a motion to dismiss the appeal for unreasonable delay in perfecting the appeal by not ordering and filing the transcript. On November 3, 1997, the trial court heard oral argument on the motion and denied the motion to dismiss the appeal of DEC from which Central appealed.

Case No. A98A0926

Central’s enumeration of error is that the lower court abused its discretion in denying Central’s motion to dismiss DEC’s appeal as stale. We do not agree.

Under OCGA § 5-6-48 (c), the trial court has the discretion to dismiss an appeal only when the trial court finds (1) unreasonable delay in filing of the transcript of the hearing for summary judgment, (2) such delay was inexcusable, and (3) caused by the appellant. Dept. of Human Resources v. Patillo, 196 Ga. App. 778 (397 SE2d 47) (1990). This case does not satisfy all of such elements necessary for the exercise of the discretion of the trial judge.

The question of unreasonable delay is a matter for the sound discretion of the trial court. ITT Indus. Credit Co. v. Burnham, 152 Ga. App. 641 (263 SE2d 482) (1979); Johnson v. Clements, 135 Ga. App. 495 (218 SE2d 109) (1975). In the exercise of its discretion, the trial court must determine if the delay was unreasonable by examining both the length of time involved and the effect of the delay. See Cook v. McNamee, 223 Ga. App. 460 (477 SE2d 884) (1996). Here, Central was in no way prejudiced, and the appeal is not, in fact, stale.

The trial court must also determine if the delay was excusable. Jackson v. Beech Aircraft Corp., 213 Ga. App. 172 (444 SE2d 359) (1994). The trial court found that DEC mistakenly stated in the notice of appeal that it would include a transcript.

The trial court’s finding -will not be reversed except upon a finding of abuse of discretion. Patterson v. Professional Resources, 242 Ga. 459 (249 SE2d 248) (1978); Teston v. Mills, 203 Ga. App. 20 (416 SE2d 133) (1992). The trial court did not abuse its discretion in denying the motion to dismiss the appeal. Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990); Corbin v. First Nat. Bank &c., 151 Ga. App. 33 (258 SE2d 697) (1979); Strother v. C & S Nat. Bank, 147 Ga. App. 140 (248 SE2d 204) (1978).

Case No. A98A0927

1. DEC’s first enumeration of error is that the trial court erred in not finding the 1971 agreement a valid grant of an easement across Central’s railroad tracks. We do not agree.

(a) First, it must be determined, arguendo, that if an easement had been granted, would it remain valid after 25 years without any use. OCGA § 44-9-6 reads: “An easement may be lost by abandonment or forfeited by nonuse if the abandonment or nonuse continues for a term sufficient to raise the presumption of release or abandonment.” See Kirkland v. Pitman, 122 Ga. 256 (50 SE 117) (1904).

If an easement was created by the agreement in this case, then it was abandoned by nonuse, because until 1995 neither Lane, EMI, C&S, nor DEC requested construction of the grade crossing or exercised any right to cross Central’s tracks. This is compelling evidence of abandonment; there was no evidence of use at any time. McElwaney v. MacDiarmid, 131 Ga. 97, 98 (2) (62 SE 20) (1908); Stewart County v. Holloway, 69 Ga. App. 344, 347 (25 SE2d 315) (1943); Seaboard Air-Line R. v. Sikes, 4 Ga. App. 7, 10 (60 SE 868) (1908). Certainly, there has never been use or exercise of any rights of use of the easement.

Any grant of a right to construct a grade crossing was given to Clarke County under the agreement and was not granted to the property owner. To create a public easement by grant, there must be an express offer to dedicate the land to a public easement; there must be an acceptance of the dedication by the public authorities; and there must be use, maintenance, or repair demonstrating an acceptance of the easement for public use. Jackson v. Chatham County, 225 Ga. 641, 643-644 (1) (170 SE2d 418) (1969). If the governmental authority never assumed control of the easement, then acceptance of the easement cannot be inferred. Hames v. City of Marietta, 212 Ga. 331 (4) (92 SE2d 534) (1956). A governmental authority can abandon an easement through nonuse. However, if there is a conflict in the evidence, such abandonment is a mixed question of law and fact. It is for the trial court to decide where, as in this case, there exists no factual dispute. Jackson v. Chatham County, supra at 644; Hames v. City of Marietta, supra at 332; see generally Stewart County v. Holloway, supra at 349; Seaboard Air-Line R. v. Sikes, supra at 10. If an easement right was given over certain land to construct a street or road, which was never constructed, then a forfeiture or abandonment by the governing authority will occur by nonuse when a term sufficient to raise a presumption of release or abandonment has passed. Mayor &c. of Savannah v. Bartow Investment Co., 137 Ga. 198, 204 (72 SE 1095) (1911). Where 15 to 20 years have elapsed since the dedication of the easement without the government exercising any control, the presumption of law arises that the donation of the easement was declined by the governmental entity. Still v. Mayor &c. of Griffin, 27 Ga. 502, 506 (1859); Hames v. City of Marietta, supra at 332.

If a prescriptive use adverse to the owner can ripen into a permanent easement after 20 years of use, then conversely 20 years of continuous nonuse of an easement and use by the owner adverse to any rights of the easement holder would give rise to a strong presumption of abandonment of the easement. Gilbert v. Reynolds, 233 Ga. 488, 493 (212 SE2d 332) (1975); Mathis v. Holcomb, 215 Ga. 488, 489 (1) (111 SE2d 50) (1959); Kelsoe v. Town of Oglethorpe, 120 Ga. 951, 956 (3) (48 SE 366) (1904); see generally OCGA § 44-9-1; Carlton v. Seaboard Air-Line R., 143 Ga. 516 (85 SE 863) (1915); Puryear v. Clements, 53 Ga. 232, 235 (1874).

(b) The agreement did not constitute a grant of an easement within OCGA § 44-9-1. “An express grant of an easement must contain language sufficient to designate with reasonable certainty the land over which it extends. It is generally sufficient to identify the whole tract of land owned by the grantor over which the easement passes.” (Citation and punctuation omitted.) Macon-Bibb County Indus. Auth. v. Central of Ga. R. Co., 266 Ga. 281, 283 (466 SE2d 855) (1996). First, the agreement was neither a deed nor in a form that could be recorded with the Clerk of the Superior Court on the deed records; second, it did not use language of the grant of an easement; third, it was conditional on the occurrence of certain acts that never occurred, either within a reasonable time or at any time; fourth, it had no legal description to identify the property or easement; and fifth, there was never the exercise of any use of right of ingress or egress across the tracks of Central. See id.; Jones v. Mauldin, 208 Ga. 14, 15 (64 SE2d 452) (1951); Rogers v. Pitchford, 181 Ga. 845 (184 SE 623) (1936).

Decided March 31, 1998.

Weissman, Nowack, Curry & Zaleon, William C. Thompson, Charles B. Waters, Jr., for Central of Georgia Railway Company and Norfolk Southern Corporation.

Scott, Quarterman & Wells, Russell T. Quarterman, for DEC Associates, Inc.

EMI went bankrupt in 1975; its bankruptcy terminated the offer to pay if the others performed by constructing the grade crossing. If there existed any executory contract granting a license, then the agreement had not been performed at the time of bankruptcy by any party or privy, so that the agreement could not change from a license to an easement by paying for the improvement of the easement. Therefore, no easement arose for the trustee in bankruptcy to convey by quitclaim deed or to run with the land. Mathis v. Holcomb, supra at 488-489. Therefore, C&S received no rights under the agreement, which license ceased as a result of the bankruptcy, causing the offer in the agreement to pay for the improvements to terminate. Id. at 488.

2. Division 1 has rendered enumerations of error 2 and 3 unnecessary for determination.

Judgments affirmed.

McMurray, P. J., and Blackburn, J., concur.