text:
    A89A0273.
    MORGAN v. THE STATE.
    (381 SE2d 402)
   Deen, Presiding Judge.

The appellant, Mark Anthony Morgan, was convicted of armed robbery. On appeal, he contends that the evidence was insufficient to support the conviction. Held:

1. Following his arrest, Morgan confessed fully to having robbed a Wendy’s restaurant, in the process wearing a home-made mask and brandishing a starter pistol. The admissibility of this confession is not contested here. The confession, was corroborated when Morgan showed the investigating officers where he had disposed of the clothing he wore during the robbery and where he had hidden the starter pistol. The confession was also thoroughly corroborated by the proof of the armed robbery itself, established by the testimony of the victim employees at the Wendy’s restaurant. Morgan’s confession thus corroborated could legally support his conviction. Nation v. State, 180 Ga. App. 460 (1) (349 SE2d 479) (1986). The evidence certainly authorized a rational trier of fact to find him guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Morgan’s contention that the evidence did not support the conviction rests primarily upon the testimony of the Wendy’s manager, who was unable positively to identify the starter pistol because he did not get a good look at the weapon during the robbery. Morgan, however, conveniently omits any reference to the manager’s unequivocal testimony that he handed the money to Morgan at the latter’s instruction, which was emphasized by display of what the manager took to be a handgun.

2. We reject Morgan’s contention that the trial court should have directed a verdict of acquittal as to the charge of armed robbery, because a starter pistol is not an offensive weapon per se and because there was no evidence that the starter pistol was used offensively. OCGA § 16-8-41 (a) provides that “[a] person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” By all accounts, the starter pistol used by Morgan had the appearance of an actual handgun, which most assuredly is an offensive weapon. Morgan’s reliance upon Choate v. State, 158 Ga. App. 8 (279 SE2d 459) (1981), and Fann v. State, 153 Ga. App. 634 (266 SE2d 307) (1980), is misplaced, because since the decisions rendered in those cases, the statute defining armed robbery has been amended to include the prohibition against using “any replica, article, or device having the appearance of such weapon.” Adsitt v. State, 248 Ga. 237 (6) (282 SE2d 305) (1981).

Decided April 3, 1989.

Kenneth D. Feldman, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    A89A0289.
    SETHI v. KLM ROYAL DUTCH AIRLINES et al.
    (381 SE2d 403)
   Deen, Presiding Judge.

Appellant Sethi, a gentleman of Indian extraction, received word of the accidental death of his son-in-law in India; the funeral was to take place some two weeks thence. Sethi thereupon made reservations on KLM Royal Dutch Airlines (KLM) for passage from Atlanta to New Delhi via Amsterdam ten days thence. On the day of the flight he checked his baggage to New Delhi and flew to Amsterdam. There it was discovered by KLM personnel that his visa for India had expired, and he was refused permission to board the flight to New Delhi. After several days he returned to Atlanta and subsequently filed an action against KLM and its Atlanta manager, seeking reimbursement of expenses incurred as a result of the necessity of changing his plans in Amsterdam. He alleged that Atlanta KLM personnel were at fault for not ascertaining the status of his documents before allowing him to leave Atlanta.

KLM moved for summary judgment, citing the Federal tariffs which govern contracts of carriage and which expressly place on the passenger the duty of ascertaining and complying with all requirements of individual destination countries regarding travel documents. The trial court granted the motion, and Sethi appeals pro se, filing no formal enumeration of errors but alleging that genuine issues of material fact regarding negligence and breach of contract remain in the case, and that summary judgment was therefore improperly granted. Held:

Our review of the record reveals no error in the proceedings below. The cited tariffs clearly control the disposition of the case sub judice. See Section 403 (a) of the Federal Aviation Act, 49 USC § 1373 (a). See also KLM’s Rules Tariff No. PR-3, CAB No. 55, Rule 22, which states as follows: “The passenger shall comply with all laws, regulations, orders, demands or travel requirements of countries to be flown from, into or over, and with all rules, regulations and instructions of Carrier. Carrier shall not be liable for any aid or information given by any agent or employee of Carrier to any passenger in connection with obtaining necessary, documents or complying with such laws, regulations, orders, demands, requirements or instructions, whether given orally or in writing; or for the consequences to any passenger resulting from his failure to obtain such documents or to comply with such laws, regulations, orders, requirements, or instructions. The passenger must present all exit, entry and other documents required by laws, regulations, orders, demands or requirements or whose documents are not complete. Carrier is not liable to the passenger for loss or expense due to the passenger’s failure to comply with this provision.” See Khalessizadeh v. Scandinavian Airline System, 19 Avi. Cas. 18, 413 (C.D. Cal. 1986); see also e. g., Cammack v. Trans World Airlines, 482 FSupp. 914 (W.D. Mo. 1979), aff’d 632 F2d 1353 (8th Cir. 1980); North American Philips v. Emery Air Freight, 579 F2d 229 (2d Cir. 1978); Mao v. Eastern Air Lines, 310 FSupp. 844 (S.D. NY 1970).

Decided April 3, 1989.

K. S. Sethi, pro se.

Love & Willingham, Robert P. Monyak, Daryll, Love, for appellees.

The uncontroverted facts of record show that Sethi had a period of approximately ten days between booking his airline reservation and embarking on his flight — a period in which he could and should at least have checked on the status of his visa and initiated an effort to obtain a new one, if needed — and that he made no such inquiries or efforts. The judgment below must be affirmed.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0298.
    WHITE v. THE STATE.
    (382 SE2d 435)
   Deen, Presiding Judge.

The appellant, Maurice White, was convicted of two counts of armed robbery. The evidence showed that on October 20, 1987, two employees at a Turtle’s record store were robbed by two men, one of whom wore a dark-colored jogging suit and wielded a pistol. White was apprehended shortly thereafter, along with two other men. White was wearing a dark-blue jogging suit, and the watches and rings of the two victims were found in his pocket; a pistol was found under the seat of the car White was driving.

Decided April 3, 1989.

R. Lars Anderson, Carl J. Wilson, Jr., for appellant.

Willis B. Sparks III, District Attorney, Charles H. Weston, Thomas J. Matthews, Assistant District Attorneys, for appellee.

White’s appointed counsel, who also served as trial counsel, filed a motion to withdraw as counsel, pursuant to Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493) (1967) and Bethay v. State, 237 Ga. 625 (229 SE2d 406) (1976), as well as a brief raising points of law which might arguably support the appeal. Counsel’s motion to withdraw was denied pursuant to Fields v. State, 189 Ga. App. 532 (376 SE2d 912) (1988). Subsequently, the trial court appointed new counsel to pursue White’s appeal.

1. Contrary to White’s contention on appeal, the evidence presented at trial authorized a rational trier of fact to find White guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. White also contends that the life sentences imposed were excessive, cruel, and unusual. The sentences, however, were within the statutory limits, and thus this court will not review them. Stephens v. State, 185 Ga. App. 546 (365 SE2d 136) (1988).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Carley, Chief Judge.

text:
    A89A0302.
    TOWNS v. THE STATE.
    (381 SE2d 405)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of burglary. He appeals from the judgment of conviction and sentence that was entered by the trial court on the jury’s guilty verdict.

1. Appellant enumerates the general grounds. Appellant’s palm print was found beneath the window through which the burglar had gained entry. Appellant’s fingerprint was found inside a vending machine that had been vandalized. Appellant pawned a typewriter that had been stolen during the burglary. “To sustain a conviction which is based solely on fingerprint evidence, ‘the fingerprints corresponding to those of the accused must have been found in the place where the crime was committed, under such circumstances that they could only have been impressed at the time when the crime was committed.’ [Cits.] Where there is additional circumstantial evidence, however, a conviction is warranted if the proved facts are consistent with the hypothesis of [guilt] and exclude every other reasonable hypothesis save that of guilt. [Cits.]” Mercer v. State, 169 Ga. App. 723, 725 (1) (314 SE2d 729) (1984). The evidence regarding appellant’s fingerprints, coupled with the evidence of his recent possession of the stolen typewriter, would authorize a rational trior of fact to find appellant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Glover v. State, 175 Ga. App. 285 (333 SE2d 165) (1985).

Decided April 3, 1989.

Carl J. Wilson, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

2. In his closing argument, appellant’s counsel made the statement that appellant “would love to have a defense expert, I’m sure. And if he was a Nelson Rockefeller or Donald Trump, you can get people that are experts.” Counsel for the State objected and the trial court sustained the objection. Appellant enumerates this ruling as error.

“[C]ounsel should confine their argument to the facts, and such authorized inferences arising from the facts, as are properly before the court and the jury.” Brown v. State, 57 Ga. App. 864, 865 (1) (197 SE 82) (1938). Neither the lack of an expert witness for the defense nor the lack of funds to pay for such an expert were “facts” to be argued to the jury after the trial of the case. If appellant had desired to hire his own expert witness but lacked sufficient funds, the issue should have been presented to the court prior to trial. See Roseboro v. State, 258 Ga. 39 (2) (365 SE2d 115) (1988). “The determination of the trial judge in regards to the range of comment which is proper in a case is in the discretion of the trial judge, and unless it can be shown that such discretion has manifestly been abused and some positive injury done, we will not interfere. [Cits.]” Sanders v. State, 156 Ga. App. 44-45 (2) (274 SE2d 88) (1980). The trial court did not abuse its discretion in ruling the argument to be improper.

Judgment affirmed.

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


text:
    A89A0307.
    BERMAN v. THE STATE.
    (381 SE2d 316)
   Deen, Presiding Judge.

Appellant Berman was convicted of prostitution and received a one-year probated sentence and a $1,000 fine. On appeal she contends that the trial court erred in failing to grant her motion for a directed verdict and by not curing a law enforcement officer’s unresponsive inadmissible comment.

1. “A person commits the offense of prostitution when he performs or offers or consents to perform an act of sexual intercourse for money.” OCGA § 16-6-9. In determining whether the trial court’s denial of a motion for a directed verdict was proper, this court must view the evidence in the “light most favorable to the prosecution” and then determine whether “a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) (1984).

Viewing the evidence in this case in the light most favorable to the prosecution, we find that Bonner, an undercover officer for the Cobb County Sheriff’s Department, checked into the motel, called the European Escort Agency, and requested that a woman be sent to his motel room. He was informed that the agency fee was sixty dollars and that the woman was to receive a tip of one hundred and twenty dollars. Within five minutes, appellant called the officer, described herself, asked if he had good identification, whether he was a police officer, and whether he was paying by cash or credit card. After she arrived at the motel room, appellant again inquired as to whether Bonner was a police officer, demanded to see his identification, and remarked that he fit the profile of a police officer. She then asked him for two hundred and ten dollars. He gave her this amount in cash, and she put it in her purse. She told him to get comfortable and began to undress. They both removed all of their clothing except their underpants. Berman offered to give Bonner a massage. He agreed and lay on his stomach on the bed, facing the foot of the bed. She took some lotion and massaged his back and legs “for a minute or so” and then removed his underpants and massaged his buttocks briefly. She then told him that he needed to come up to the head of the bed. She slipped off her panties and leaned back against the headboard next to him. She commented that he was “acting too passive” and requested that he hug her. He complied, and she again inquired if he was a police officer because “usually, men can’t keep their hands off [me].” Bonner tried to allay her fears by saying that he was nervous because it was his first time to do this and he did not know what was expected. Appellant replied that he “needed to touch her in places that she hadn’t touched [him] and then she would make [him] happy.” At this point Bonner got up, identified himself as a police officer, and arrested her. Another officer testified that he was working with Bonner and had viewed Bonner and Berman through a crack in the draperies and verified Bonner’s testimony as to the sequence of the physical acts. Other evidence included certain articles contained in the appellant’s purse at the time of her arrest: a black Gencom digital beeper, six to eight condoms and a pink plastic holder containing three condoms.

Decided April 3, 1989.

Robert S. Devins, for appellant.

Patrick Head, Solicitor, Benjamin M. First, Melodie H. Clayton, Assistant Solicitors, for appellee.

The evidence as presented in this case could be construed by the jury as being replete with both verbal and non-verbal offers of sexual intercourse for money. The facts contained herein are very similar to those in Bailess v. State, 168 Ga. App. 56 (308 SE2d 61) (1983), wherein appellant received a hundred and fifty dollars at a motel room from an officer (services fee of one hundred dollars and agency fee of fifty dollars), and the court noted “that when a female disrobes and inclines herself on a bed together with a nude male, the reasonable expectation is that the ordinary and normal form of sexual intercourse is intended by the parties.” Id. at 57.

2. During cross-examination, the arresting officer was asked three questions as to his knowledge of arrest law. After the last question, he responded that based upon his knowledge of case law he could make an arrest as soon as they were in bed nude. Counsel then objected, and the judge reminded him that he opened the area of inquiry and “I’m going to allow him to respond to the question.” The court then instructed the jury that its exclusive source of applicable law would come from the court and not the attorneys or witnesses.

Bonner continued answering the question and cited the Bailess case. Counsel made a general objection (“I object”), and the court instructed the witness that he could give a brief reasonable explanation, but he could not give a narrative of what the law was in the case. There was no further objection. At no time did counsel make a motion for a mistrial, motion to strike the testimony, or motion for curative instruction. A motion for a mistrial, not timely raised, is deemed waived. Garner v. State, 180 Ga. App. 146, 147 (348 SE2d 690) (1986). A general objection is not sufficient to present an appealable issue to this court for review. Sultenfuss v. State, 185 Ga. App. 47, 49 (363 SE2d 337) (1987).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0317.
    FALLEN v. THE STATE.
    (381 SE2d 410)
    Decided April 3, 1989.

      Harry J. Bowden, A. Nevell Owens, for appellant.

      Lewis R. Slaton, District Attorney, Richard E. Hicks, A. Thomas Jones, Joseph J. Drolet, Assistant District Attorneys, for appellee.
   Deen, Presiding Judge.

Appellant Fallen was convicted of armed robbery and criminal attempt to commit armed robbery. At trial defense counsel elicited from his client the statement that he was never asked by law enforcement officers to make a written statement. On cross-examination the prosecutor, in an attempt to place the previous statement in context, elicited, through a series of questions, the statement that defendant/ appellant had not been asked to make a written statement because, on being given his Miranda warnings, he had elected to exercise his right to remain silent. Defense counsel moved for mistrial on the ground that this sequence of questions and answers constituted prejudicial reference to the exercise of the right to remain silent. The motion was denied, and appellant enumerates this denial as error. Held:

Our examination of the entire record of the instant case, together with the trial transcript, reveals that the prosecuting attorney was well within his rights in following up as he did on the prior statement, of appellant made on direct examination, and that none of appellant’s rights was infringed thereby. Williams v. State, 165 Ga. App. 72 (299 SE2d 405) (1983); Abbott v. State, 162 Ga. App. 396 (291 SE2d 447) (1982). The trial transcript further reveals that defendant/appellant was positively identified by both of his victims and that there was ample evidence to authorize the rational trier of fact to find appellant guilty as charged beyond a reasonable doubt even if, contrary to our conclusions after review of the proceedings, the prosecutor’s conduct had been improper. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We find appellant’s enumeration without merit.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0345.
    SNIPES v. MACK.
    (381 SE2d 318)
   Deen, Presiding Judge.

On March 13, 1987, appellee Frances Mack had a violent quarrel with her “boy friend,” appellant Snipes, during which the latter poured or spilled beer over her head and threatened “to do something to [her] worse than death.” On the morning of March 15 appellee’s neighbor telephoned her to say that a large sign, bearing the message in red letters that Frances Mack, of appellee’s address, had AIDS, had been placed at the intersection of the subdivision entrance and a heavily traveled Chatham County road. About a week later a similarly worded sign was placed in a similar location, and a few days after that a third sign, bearing a similar statement but identifying Ms. Mack as a teacher, appeared across the street from the school where she was a faculty member.

Decided April 3, 1989.

Bonzo C. Reddick, for appellant.

Roy L. Allen II, for appellee.

Ms. Mack filed a libel action against Snipes, seeking general and punitive damages. At trial it developed that, while no witness could testify that he had actually seen Snipes either make or place the signs, there was testimony that Snipes was seen in Ms. Mack’s driveway, carrying a piece of plywood approximately the size of the first sign, on the morning of March 15. There was also a sizable quantum of evidence that tended to impeach appellant’s disclaimers of having made or placed the signs, and otherwise to implicate him to such an extent as to permit a rational trier of fact to (as Shakespeare’s Polonius expressed it) “by indirections find directions out.” Snipes moved for a directed verdict, contending that Ms. Mack had not proven that she did not have AIDS; the motion was denied.

After deliberating for 59 minutes the jury found for plaintiff, awarding general damages of $100,000. Snipes appeals on the general grounds, enumerating as error the trial court’s denial of his motions for directed verdict and for new trial. Held:

Our examination of the trial transcript and the remainder of the record in this rather unusual case reveals no error in the proceedings below and no evidentiary insufficiency. The review of an appellate tribunal, of course, is confined to errors of law and the sufficiency, rather than the weight, of the evidence. Willis v. First Nat. Bank of Atlanta, 185 Ga. App. 648 (365 SE2d 458) (1988). We find no merit in appellant’s assignment of error.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Banke, Presiding Judge.

text:
    A89A0418.
    MALLORY v. DANIEL LUMBER COMPANY, INC.
    (381 SE2d 406)
   Banke, Presiding Judge.

The appellee contracted to build a commercial office building for the appellant for a base price of approximately $644,000. The contract specified that “[a]ll changes in price will become a part of the contract when both parties have signed their acceptance.” After the appellant had made progress payments totalling approximately $521,000, a dispute arose between the parties over how much remained to be paid for the work which had thus far been performed on the project. As a result of this dispute, the appellant refused to make additional progress payments, and the appellee ultimately discontinued work on the project.

The appellee brought the present action against the appellant seeking to recover the difference between the total contract price for the construction, including authorized changes and add-ons, and the total amount the appellant had paid on the contract, a difference calculated by the appellee to be $128,822. The appellee also sought to recover accrued interest on this alleged indebtedness in the amount of $21,000, plus attorney fees in the amount of $25,000 for bad faith and stubborn litigiousness. The appellant counterclaimed to recover the estimated cost of completing the work, plus attorney fees, in the total amount of $105,000. The case was tried before a jury, which awarded the appellee damages in the total amount of $174,862.92 (representing all of the actual damages, interest, and attorney fees which it had sought) and also found in favor of the appellee on the appellant’s counterclaim. This appeal followed. Held:

1. The appellant contends that the trial court erred in allowing the appellee to introduce evidence concerning an insurance settlement which he (the appellant) had received as compensation for water damage caused by a defective drinking fountain installed in the building during the later stages of the construction. The trial court allowed this evidence based on a determination that it was permitted under OCGA § 51-12-1 (b) (Ga. L. 1987, p. 915, § 3), which abrogated the collateral source rule in Georgia. Subsequent to trial, however, our Supreme Court, in Polito v. Holland, 258 Ga. 54 (365 SE2d 273) (1988), ruled that this statute is not to be applied retroactively to events predating its enactment. Accord A. H. Friedman, Inc. v. Augusta Burglar Alarm Co., 186 Ga. App. 769 (368 SE2d 534) (1988); Bryan v. King, 187 Ga. App. 7 (369 SE2d 278) (1988). Because the events which gave rise to the present action occurred prior to the effective date of the statute, the trial court’s decision to allow the evidence must, therefore, be considered erroneous. However, for the reasons which follow, we conclude that the error was harmless under the circumstances of this case.

A portion of the damages which the appellant sought in his counterclaim reflected the losses which he had allegedly sustained as a result of the appellee’s failure to have the building ready for occupancy by the completion date specified in the contract. At trial, the appellee sought to prove that this delay had resulted, at least in part, from the water damage caused by the defective fountain and that the appellant had already been compensated for these damages by the money which he had received from the insurance settlement. Because the jury ultimately found in favor of the appellee on the counterclaim, and because the evidence in question went solely to the issue of the damages sought in connection therewith, it follows that the admission of this evidence could not have affected the jury’s verdict and affords no ground for reversal. See generally Knight v. Atlanta Transit Systems, 137 Ga. App. 667, 669 (2) (224 SE2d 790) (1976); Malay v. Dixon, 127 Ga. App. 151, 156, fn. 2 (193 SE2d 19) (1972). We reject the appellant’s contention that reversal is warranted on the basis of the prejudicial effect this evidence may have had on his credibility when considered in the context of other evidence suggesting that he had sought to inflate the insurance claim so as to recover substantially more benefits from the insurance company than he was entitled to. If the appellant’s credibility was thus impugned, it was not the evidence concerning the amount of insurance benefits he actually received which was prejudicial to him but rather the evidence concerning his initial demands upon the insurance company, to which no objection was made.

2. The appellant contends that there was no evidence of bad faith or stubborn litigiousness on his part to support an award of attorney fees as expenses of litigation. See generally OCGA § 13-6-11. We agree. “The bad faith referred to in the Code is not bad faith in refusing to pay but bad faith in the transaction out of which the cause of action arises.” Jordan Bridge Co. v. I. S. Bailey, Jr., Inc., 164 Ga. App. 124, 125 (5) (296 SE2d 107) (1982). There is no evidence in this case which would suggest that the dispute which occurred between the parties was due to anything other than a good-faith belief on the part of the appellant that the appellee was asking him to pay more than he was contractually obligated to pay.

Similarly, there was no basis for an award of attorney fees based on stubborn litigiousness. “Recovery of attorney fees for stubborn litigiousness is not authorized where there is a bona fide controversy.” Bayliner Marine Corp. v. Prance, 159 Ga. App. 456, 461 (283 SE2d 676) (1981). A bona fide controversy existed in this case over such issues as (1) whether the costs set forth in the contract for certain supplies and fixtures constituted the agreed-upon cost to the appellant of those items or merely “allowances” (or estimates) for them; (2) whether the appellant, by this conduct, had waived or become es-topped to assert the requirement for change orders to be in writing; and (3) to what extent the work called for by the contract had been completed at the time the appellee discontinued work on the project. For these reasons, the recovery of attorney fees cannot stand; and the judgment of the trial court is accordingly affirmed only on condition that the appellee agree to write off the attorney fees, failing which, the judgment shall stand reversed.

Decided April 3, 1989.

Powell, Goldstein, Frazer & Murphy, R. Carl Cannon, V. Scott Greene, Tisinger, Tisinger, Vance & Greer, Robert H. Sullivan, for appellant.

Willis, McKenzie & Long, C. Jerry Willis, Edward L. Long, Jr., for appellee.

Judgment affirmed on condition.

Sognier and Pope, JJ., concur.


text:
    A89A0433.
    REED v. THE STATE.
    (381 SE2d 528)
   Deen, Presiding Judge.

Appellant Reed of Murray County was in the business of processing and reselling waste yarn which she purchased from dealers in textile by-products. After buying a large quantity of waste yarn from the Norman Paschall Company (Paschall), a Peachtree City firm, she was unable to pay for this yarn under the terms of the purchase agreement. Paschall therefore suggested an arrangement whereby she could gradually pay off the indebtedness by buying and selling yarn on Paschall’s behalf. Under this arrangement all proceeds were to be remitted to Paschall, which would then allocate one-third of the profit to Reed, one-third to Paschall, and one-third to retirement of the debt owed by Reed to Paschall.

Reed subsequently violated this agreement by selling a large quantity of yarn and retaining the proceeds herself rather than remitting them to Paschall. This transaction resulted in a loss to Paschall of $14,413.60, and when appellant did not undertake to reimburse Paschall, the latter preferred charges of theft by taking. Reed was found guilty and sentenced to ten years’ probation, a $1,000 fine, and 150 hours of community service. She moved for new trial on the general grounds and, after denial of the motion, appealed from the judgment on the ground of insufficiency of the evidence. Held:

Our examination of the record of the instant case indicates that there was sufficient competent evidence to authorize a rational trier of fact to find appellant guilty as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Although at trial appellant raised as defenses the assertions that she and Paschall had been in a partnership and that the money advanced by Paschall for purchase of the yarn was a “loan,” we find no competent evidence of record to substantiate these assertions. This enumeration is without merit.

Decided April 3, 1989.

Sheila Reed, pro se, S. Fenn Little, Jr., for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0443.
    BATCHELOR v. ISFA CORPORATION.
    (382 SE2d 434)
    Decided April 3, 1989.

      Lecora Bowen, for appellant.

      Gary S. Meinken, for appellee.
   Deen, Presiding Judge.

In this case, the appellant brought this direct appeal from summary judgment entered against her in the amount of $1,451.13 principal, plus $87.07 interest. Because the judgment was for $2,500 or less, the discretionary appeal procedures of OCGA § 5-6-35 were required, and this appeal must be dismissed. Perryman v. Ga. Power Co., 180 Ga. App. 259 (348 SE2d 762) (1986).

Appeal dismissed.

Birdsong and Benham, JJ., concur.


text:
    A89A0533.
    BRAMBLETT v. THE STATE.
    (381 SE2d 530)
   Deen, Presiding Judge.

The appellant, Danny Bramblett, was convicted of armed robbery, kidnapping, and criminal attempt to commit extortion. On appeal, he contends that the State failed to prove the element of taking, with regard to the armed robbery charge, and venue, with regard to the attempt to commit extortion charge.

The evidence showed that Bramblett approached the victim in a parking lot at a shopping mall in Whitfield County, displayed a pistol, and forced his way into her car. After Bramblett emptied the victim’s purse on the floorboard and found no money, he had the victim drive to an automatic bank teller machine and withdraw $300 for him. He then instructed her to drive to Murray County, where he had her stop at a convenience store and call her husband at his place of employment in Whitfield County to tell him to get $10,000 within 30 minutes and await another phone call. Bramblett then had the victim drive to another road and stop the car so he could exit and relieve himself. As he got out of the car, Bramblett slipped and dropped the gun, and the victim drove away. Held:

Decided April 3, 1989.

Ralph M. Hinman, for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

1. We reject Bramblett’s contention that because the victim escaped with the $300 still in her car, the State had failed to prove the requisite element of a “taking” for the offense of armed robbery. The victim was forced to give Bramblett the $300 withdrawn from the automatic teller machine; this was a sufficient showing of a “taking.” “It is not required that the property taken be permanently appropriated.” James v. State, 232 Ga. 834, 835 (209 SE2d 176) (1974).

2. The extortionate phone call was made in Murray County, but it was received in Whitfield County. In a prosecution for extortion, “the crime shall be considered as having been committed in the county in which the threat was made or received or in the county in which the property was unlawfully obtained.” OCGA § 16-8-16 (b). Accordingly, venue in Whitfield County was proper.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0552.
    HOWARD v. WILKES.
    (382 SE2d 434)
   Deen, Presiding Judge.

Appellant Howard, currently confined in the Rutledge Correctional Institution, filed a complaint pro se against Bibb County Sheriff Raymond Wilkes and a Bibb County Law Enforcement Center employee, Paul Grahl. He alleged that Grahl had refused to give him, or give him a receipt for, $10 of the money Howard had allegedly deposited in his account at the law enforcement center. After a Legal Aid worker contacted the agency concerning the matter, Howard received a copy of a response signed by Sheriff Wilkes and denying that the agency had in its possession any of Howard’s money.

On October 12, 1988, the Bibb County Superior Court entered an order stating that there was no basis for a claim against Wilkes but allowing the filing against Grahl of a complaint for money had and received in the amount of $10. A return of service bearing the same date indicates that Grahl was deceased and therefore was not served.

Decided April 3, 1989.

Ernest Howard, Sr., pro se.

Raymond L. Wilkes, pro se.

Our examination of the record of the instant case reveals that the Notice of Appeal, although dated November 9, 1988, was not filed with the Clerk of the Bibb County Superior Court until November 21; the appeal is therefore untimely. OCGA § 5-6-38 (a). Nevertheless, out of an abundance of caution and concern for the rights of prisoners, we have scrutinized the entire record. We find no final order disposing of this case and must therefore dismiss the appeal for want of jurisdiction. OCGA § 5-6-34.

Appeal dismissed.

Birdsong and Benham, JJ., concur.


text:
    A89A0614.
    ROBERSON v. THE STATE.
    (381 SE2d 408)
   Deen, Presiding Judge.

On September 6, 1987, after leaving the Carousel Lounge, as he was attempting to enter his car the victim was knocked out by the appellant and placed in the car’s trunk. The appellant drove the car to a secluded area, struck the victim again, and tied his hands and legs before deserting him in the woods and taking his car. The victim eventually freed himself and contacted the police. The appellant was apprehended a few days later after using the victim’s credit card.

At trial the appellant testified that he and the victim were engaged in illegal drug transactions together. He also explained that he “was able to capture the minds of people when [he] performed and [he] had a lot of people that admired [him] because of [his] dancing talents” and his ability to carouse around, and that the victim was one of his many admirers. On the night of the incident, the appellant and the victim smoked marijuana together, drove around, and went to the Say Hey Club, where the appellant dazzled the crowd with his moves. Later on he and the victim engaged in oral sodomy, and the victim tried to entice him to perform anal sodomy. The appellant admitted to striking the victim following this proposition, leaving him stranded in the country, and taking his car.

The notice of appeal filed in this case indicates that “[t]he offense for which defendant was convicted is armed robbery (one count), kidnapping (one count), and possession of a firearm during the commission of a crime (one count).” The appellant’s brief correctly notes that while the appellant was charged with the above offenses, he was convicted only of robbery by intimidation. This briefs sole enumeration of error concerns a photographic identification of the appellant, but the argument, which is unsupported by any citation of authority, addresses only the sufficiency of the evidence.

Linnie L. Darden III, for appellant.

Spencer Lawton, Jr., District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.

1. By failing to argue and cite any authority concerning the issue raised in the enumeration of error, the appellant has abandoned that enumeration. Harris v. State, 186 Ga. App. 756 (368 SE2d 527) (1988). Nevertheless, we have reviewed the evidence and find it sufficient to authorize a rational trier of fact to find the appellant guilty of robbery by intimidation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The State’s motion to dismiss the appeal, because of the appellant’s failure to file a brief and enumeration of error timely, is denied.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0626.
    RODRIGUEZ v. THE STATE.
    (381 SE2d 529)
   Banke, Presiding Judge.

The appellant was convicted of possessing more than 28 ounces of cocaine and also of four separate counts of selling cocaine. On appeal, he contends that the trial court erred in denying his motion to suppress the contraband on which the possession conviction was based.

The contraband in question, consisting of one kilogram of 85-per-cent pure cocaine, was seized from an open barbeque pit located on the premises of the appellant’s home. The cocaine was enclosed in some sort of fiberglass wrapping, which was, in turn, seated inside a plastic shopping bag, the contents of which were exposed to view on one end.

The seizure occurred on April 28, 1987. One week previously, on April 21, 1987, a GBI undercover agent had met with the appellant and another individual, identified as Pedro Grisanti, to arrange for the purchase of a kilogram of cocaine. The undercover agent testified that he had purchased smaller quantities of cocaine from the appellant on three separate occasions during June of 1986 and that he had also witnessed the appellant sell cocaine to a confidential informant during that time period. Shortly thereafter, he had begun discussing with the appellant the possibility of purchasing a kilogram of cocaine; however, arrangements for the purchase were not finalized until his April 21,1987, meeting with the appellant and Grisanti, at which time he was advised that the transaction would be consummated at the appellant’s residence.

On April 28, 1987, the agent met with Grisanti at a shopping center and proceeded with him to the appellant’s residence to take delivery of the cocaine. There, the men were met by other law enforcement officers, who secured the premises while the undercover agent left to obtain a warrant for the search of the premises. The agent had prepared the affidavit for the warrant ahead of time; and although it reflected the agent’s prior dealings with the appellant, including the discussions which had taken place the previous week, it did not reflect the events which had transpired earlier that same day, nor was the magistrate apprised of these events orally. A search warrant was issued on the basis of the affidavit alone; and when the undercover agent arrived with it back at the appellant’s residence, the package containing the kilogram of cocaine, which had already been observed sitting in the open barbeque pit, was seized. The officer who effected the seizure testified that, based on his training and “the numerous kilos we had seized in the past,” he recognized the inner fiberglass wrapping, which was open to view inside the plastic shopping bag, to be “consistent with what kilos are packaged in.” Held:

1. The appellant contends that the search warrant was invalid because the information contained in the affidavit was insufficient to establish probable cause for a belief that cocaine was currently being stored at his residence. However, In United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984), the United States Supreme Court held that evidence which is seized in good-faith reliance upon a search warrant issued by a neutral and detached magistrate will generally not be subject to suppression on Fourth Amendment grounds, regardless of whether the allegations upon which the magistrate based the issuance of the warrant were sufficient to establish the probable cause for the search. The Court reasoned as follows: “It is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient. ‘(O)nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.’ (Cit.) Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” Id. 486 U. S. at 921. The Court concluded that “[i]n the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” Id. 486 U. S. at 926.

Decided April 3, 1989.

Whitmer & Law, James H. Whitmer, Herman A. Watson, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

In the case before us, the evidence demonstrates without dispute that the officer who seized the cocaine did so in good-faith reliance both on the validity of the warrant and on the existence of probable cause; and the impartiality and integrity of the issuing magistrate have not been challenged. Therefore, even assuming for the purpose of argument that the undercover agent’s unsupplemented affidavit failed to establish probable cause for a belief that cocaine would be found on the appellant’s premises, the trial court nevertheless acted properly in denying the motion to suppress.

2. Having held that the seizure of the cocaine was authorized pursuant to the good-faith exception to the exclusionary rule announced in United States v. Leon, supra, we do not reach the issue of whether, even without a warrant, the seizure would have been authorized under the “plain view” doctrine.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0757.
    TROUTMAN v. THE STATE.
    (381 SE2d 409)
   Deen, Presiding Judge.

The appellant, Dennis Troutman, was convicted of kidnapping and rape. On appeal, he attacks the sufficiency of the evidence and the admission of the victim’s identification of the appellant as her assailant.

The record shows that in the early morning hours of April 25, 1987, the victim, who was a convenience store clerk, was dragged out of the store and raped. Her assailant also bit her ear and beat her, breaking her jaw and several ribs. The victim was subsequently hospitalized for 20 days. During the hospitalization, the victim immediately identified Troutman as her assailant from a photo line-up. In court, the victim also without hesitation positively identified Troutman as the assailant. Held:

1. Troutman does not attack the photo line-up procedure as impermissibly suggestive. Rather, the basis of his attack on the victim’s identification testimony concerns the adequacy of the identification. Troutman contends that the inadequacy of the identification was demonstrated by the fact that the victim remembered that her assailant had a moustache but did not remember if he had a beard; she was not sure of the assailant’s skin tone; she had not paid much attention to the other photographs in the line-up because she had immediately recognized the first photograph as that of her assailant; she was under medication at the time of the photo identification; and she remembered the photographs as being full-length, whereas the photo line-up produced at trial had views from the waist up. In short, Troutman’s contention actually addresses the credibility of the victim-witness, which is solely a matter to be resolved by the jury. Tillman v. State, 184 Ga. App. 210 (361 SE2d 66) (1987).

Decided April 3, 1989.

Tina G. Stanford, for appellant.

William J. Smith, District Attorney, Bradford R. Pierce, Douglas C. Pullen, Assistant District Attorneys, for appellee.

2. The evidence certainly authorized a rational trier of fact to find Troutman guilty beyond a reasonable doubt of kidnapping and rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0589.
    JACKSON v. THE STATE.
    (381 SE2d 392)
   Deen, Presiding Judge.

The appellant, Kenneth Jackson, was convicted of burglary and rape.

The evidence at trial showed that during the early morning hours of July 25, 1987, Jackson forcibly entered the victim’s bedroom window. After holding the victim down and raping her, Jackson went outside briefly to replace the window screen. During his absence, the victim noticed a wallet on her bed, looked through it, and found check stubs and an identification card bearing Jackson’s name. She pushed the wallet under the bed mattress as Jackson started to come through the window again, and then she ran out of the trailer. As Jackson was re-entering the trailer, the victim recognized him as a casual acquaintance. Police officers subsequently took the victim to a hospital for a physical examination, which revealed that the victim had recently had sexual intercourse.

Decided March 17, 1989

Rehearings denied March 28, 1989 and April 4, 1989.

John J. Pilcher II, for appellant.

Richard A. Malone, District Attorney, for appellee.

Jackson denied committing the offenses, and claimed that he had been out most of the night drinking with friends until he went home. Following his arrest, he had his grandmother, with whom he lived, to produce his wallet, which contained check stubs and an identification card. Held:

1. Contrary to Jackson’s contention, the evidence authorized a rational trier of fact to find him guilty beyond a reasonable doubt of burglary and rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Jackson contends that thé trial court erred in allowing the victim to make an in-court identification of him, when there were no other blacks in the courtroom, other than jurors, for the victim to identify as her assailant. This court has already decided this issue adversely to Jackson’s contention. Fambrough v. State, 146 Ga. App. 328 (246 SE2d 384) (1978).

3. Jackson’s subsequent motion for new trial because of newly discovered evidence was based on an affidavit of a person who claimed that before the trial the victim had stated that she did not know who her assailant was. This “newly discovered evidence” merely served to impeach the victim’s testimony, and thus did not warrant granting a new trial. Timberlake v. State, 246 Ga. 488 (271 SE2d 792) (1980).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Sognier, Judge.

text:
    76111.
    MATHIS v. WATSON.
    (382 SE2d 436)
    Decided April 4, 1989.
   Sognier, Judge.

In Mathis v. Watson, 259 Ga. 13 (376 SE2d 660) (1989), the Supreme Court reversed the judgment of this court in Mathis v. Watson, 187 Ga. App. 100 (369 SE2d 291) (1988). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Carley, C. J., and Deen, P. J., concur.

Albert J. DeCusati, M. David Merritt, for appellant.

Howard P. Wallace, for appellee.


author: Pope, Judge.

text:
    A89A0027.
    RICKS v. HANOVER INSURANCE COMPANY.
    (381 SE2d 411)
   Pope, Judge.

Appellant Edgar Ricks appeals from the trial court’s grant of partial summary judgment in favor of appellee the Hanover Insurance Company on appellant’s claim for penalties, attorney fees and punitive damages pursuant to OCGA § 33-34-6. Held:

1. Appellee’s motion to dismiss the appeal on the ground that appellant has failed to adhere to the rules of this court by omitting specific references to the record in support of the statement of facts contained in his brief is denied. See, e.g., Gerdes v. Dziewinski, 182 Ga. App. 764 (1) (357 SE2d 110) (1987).

2. OCGA § 33-34-6 provides, in pertinent part, as follows: “(b) Benefits required to be paid without regard to fault shall be payable monthly as loss accrues. The benefits are overdue if not paid within 30 days after the insurer receives reasonable proof of the fact and the amount of loss sustained. If reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof is overdue if not paid within 30 days after proof is received by the insurer. Any part or all of the remainder of the claim that is later supported by reasonable proof is overdue if not paid within 30 days after proof is received by the insurer. ... In the event the insurer fails to pay each benefit when due, the person entitled to the benefits may bring an action to recover them and the insurer must show that its failure or refusal to pay was in good faith, otherwise the insurer shall be liable for a penalty not exceeding 25 percent of the amount due and reasonable attorney’s fees.” Subsection (c) also provides: “In addition to all other penalties provided for in this Code section, in the event that an insurer fails or refuses to pay a person the benefits which the person is entitled to under this chapter within 60 days after proper proof of loss has been filed, the person may bring an action to recover the benefits; and, if the insurer fails to prove that its failure or refusal to pay the benefits was in good faith, the insurer shall be subject to punitive damages.”

The record shows that appellant was injured on July 31, 1984, when he was involved in an automobile accident while driving a vehicle owned by his employer. Appellant began collecting personal injury protection (PIP) benefits under a motor vehicle policy covering the vehicle issued by appellee. On October 30, 1984, at the request of appellee, appellant submitted to a physical examination performed by Dr. Warner Wood. Dr. Wood’s report indicated that he found no abnormality or permanent physical impairment as a result of the accident and concluded that appellant could return to work. Dr. Wood further opined that appellant might need to be re-evaluated if his return to work caused a recurrence of his injuries.

Appellant, however, insisted that he remained unable to return to work and appellee continued the payment of benefits despite Dr. Wood’s report. On November 26, 1984, an employee of appellee spoke via telephone with an employee of Dr. Myerson, who had been treating appellant for his injuries since the time of the accident, and was informed that Dr. Myerson had released appellant to return to work on November 1, 1984. Appellee contacted appellant’s counsel who indicated that appellant would return to work on December 17, 1984. Appellee, however, was later advised that appellant did not resume his work duties on the anticipated date because of his continuing disability.

In January of 1985 Dr. Myerson referred appellant to Dr. Mogelnicke who administered nerve block injections into the afflicted areas in hopes of alleviating appellant’s symptoms. According to the deposition of Dr. Myerson, Dr. Mogelnicke advised appellant not to return to work while he was receiving these injections, which Dr. Mogelnicke continued to administer until March 1985. On February 20, 1985, again at appellee’s request, appellant was examined by Dr. Perry White. Although Dr. White was advised by appellant that he was receiving injections, Dr. White opined that his findings regarding appellant’s physical condition did not support the appellant’s subjective complaints and concluded that appellant was physically capable of resuming, without restriction, his usual employment duties. Based on these findings, as well as the earlier report of Dr. Wood, appellee made a final PIP payment to appellant on February 26, 1985, and then terminated coverage. Appellant was released to return to work by Dr. Myerson on May 20, 1985.

“Ordinarily, the question of good or bad faith is reserved for the jury, but where there is no evidence of a frivolous or unfounded refusal to pay, or if the issue of liability is a close one, the court should [as a matter of law] disallow imposition of bad faith penalties. Georgia Farm Bureau Mut. Ins. Co. v. Matthews, 149 Ga. App. 350 (254 SE2d 413) (1979); Pearl Assur. Co. v. Nichols, 73 Ga. App. 452, 455 (37 SE2d 227) (1946).” Government Employees Ins. Co. v. Presley, 174 Ga. App. 562, 566 (330 SE2d 779) (1985). Applying this rule to the case at bar, and pretermitting the issue concerning the correctness of appellee’s decision to terminate benefits, which is to be resolved by a jury, we agree with the trial court “that. . . the decision to terminate PIP benefits was not unreasonable, unfounded, or frivolous” and that the record discloses no basis which would warrant the imposition of bad faith penalties, attorney fees and punitive damages pursuant to OCGA § 33-34-6. Consequently, the trial court’s grant of partial summary judgment to appellee is affirmed. See also Strickland v. American Home Assur. Co., 186 Ga. App. 425, 427 (367 SE2d 241) (1988); Georgia Farm Bureau &c. Ins. Co. v. Pendley, 155 Ga. App. 674 (2) (272 SE2d 540) (1980); Allen v. Nat. Liberty Life Ins. Co., 153 Ga. App. 579 (266 SE2d 269) (1980).

Decided April 4, 1989.

Raymond V. Giudice, for appellant.

Pierce, Goldner, Sommers & Scrudder, Alfred A. Quillian, Jr., Stephen L. Goldner, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0038.
    TENCH v. U. S. TSUBAKI, INC.
    (381 SE2d 319)
   Pope, Judge.

Plaintiff U. S. Tsubaki, Inc., filed suit against defendant Tim Tench as guarantor for the debt of Mechanical Supply Company. The complaint alleged an amount due on the account of Mechanical Supply Company plus interest at the rate of 1 1/2 percent per month from the date the debt became due as authorized by OCGA § 7-4-16. The jury returned a verdict in favor of plaintiff for $8,279.40 principal and $3,195.85 interest. Defendant appeals.

Both enumerations of error are based on the argument that plaintiff may not recover interest pursuant to OCGA § 7-4-16 in this case because plaintiff did not attempt to collect interest on the overdue account prior to filing suit. Essentially, defendant argues that the case of Prince v. Lee Roofing Co., 161 Ga. App. 181 (288 SE2d 135) (1982), stands for the proposition that a creditor must bill its debtor for interest on the account before it may recover interest pursuant to OCGA § 7-4-16 at trial. Defendant’s interpretation of Prince is erroneous. First, the plaintiff in Prince did not indicate an intention to collect interest at any time prior to trial. Here, the plaintiff alleged in its complaint, at the commencement of the action, that it was entitled to interest. Thus, plaintiff here complied with the requirement to make a pre-trial invocation of the applicability of OCGA § 7-4-6. See Gold Kist Peanuts v. Alberson, 178 Ga. App. 253 (2) (342 SE2d 694) (1986). Secondly, the award of interest in Prince was found to be erroneous because of erroneous instructions to the jury. “[T]he court did not instruct the jury that the creditor would be permitted to charge [interest] . . . but rather instructed them that the jury may increase the damages by adding interest [at the jury’s discretion].” Prince at 183. By contrast, the jury here was properly instructed: “The owner of a commercial account may charge interest on that portion of a commercial account which has been due and payable for 30 days or more at a rate not in excess of 1 1/2 [percent] per month calculated on the amount owed from the date upon which it became due and payable until paid.” We find no error in permitting evidence concerning the accrual of interest on the indebtedness or in charging the provisions of OCGA § 7-4-16 in this case.

Decided April 4, 1989.

Troy R. Millikan, for appellant.

Neil A. Moskowitz, for appellee.

Although we find defendant misinterpreted the rationale of Prince, supra, we find no reason to assume the argument was not made in good faith. Because we are not “fully satisfied that the case was brought up for delay only” (Diamond v. Williams, 75 Ga. App. 111, 112 (42 SE2d 382) (1947)), defendant’s motion for sanctions pursuant to OCGA § 5-6-6 is denied.

Judgment affirmed; motion for sanctions denied.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0065.
    QUEEN v. KROGER COMPANY.
    (381 SE2d 413)
   Pope, Judge.

Plaintiff Deborah Beach Queen slipped and fell on grapes which had fallen to the floor in the produce department of defendant Kroger Company’s store. Two employees were standing nearby where the plaintiff fell but both employees had their backs to the place where she fell and were engaged in bagging and weighing produce. Both employees testified on deposition that they had not seen the grapes on the floor prior to plaintiff’s fall. One of the employees testified it was his duty to keep the produce department clean and to check every fifteen to twenty minutes to see if the area needed to be swept. He testified he had last swept the floor approximately ten to twenty minutes before plaintiff fell. Summary judgment was granted to defendant and plaintiff appeals.

1. “There are two different classes of [premises liability] cases which may be based on constructive knowledge. The first is that type where liability of the defendant is based on the fact that an employee of the defendant was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard. [Cits.] . . . The second type of case is that based on the duty of the defendant to exercise reasonable care in inspecting and keeping the premises in safe condition. [Cit.] To sustain plaintiff’s cause of action in the latter case it is necessary that he prove ‘a period of time the dangerous condition has been allowed to exist. Without such (proof) it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.’ [Cit.]” Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 345 (226 SE2d 142) (1976). Defendant in this case successfully pierced plaintiff’s complaint as to each of these two theories by which constructive knowledge may be shown. Although two employees were nearby, the undisputed evidence showed they were not facing the area where the grapes had fallen to the floor. No evidence was presented by which it could be determined that the condition had existed for a sufficient period of time to afford defendant a reasonable opportunity to discover and remove the hazard. The fact that two of the grapes were “smashed” provides no indication of the length of time they had been on the floor. They could have been stepped on or run over with a grocery cart by the plaintiff, herself, or by another person immediately before plaintiff fell. Under the circumstances, the mere proximity of the two employees to the spot where plaintiff fell presents no issue of constructive knowledge. See Rush v. Food Giant, 183 Ga. App. 388 (1) (358 SE2d 919) (1987).

2. One of defendant’s employees testified it was his practice to inspect and sweep the produce department floor every fifteen to twenty minutes. He also admitted he frequently found grapes which had fallen to the floor. Plaintiff argues that an issue remains as to whether defendant was negligent in failing to inspect the area more frequently given defendant’s knowledge that grapes fell to the floor. However, plaintiff’s argument assumes that the grapes on which she fell were on the floor for the full ten to twenty minutes since the employee had last swept the area. In fact, no evidence was presented to establish the period of time the hazard had existed. Even though grapes frequently fell to the floor, no evidence suggests that the grapes on which plaintiff fell had been on the floor for a sufficient period to afford defendant the opportunity to discover and remove the hazard. Moreover, the area where plaintiff fell was not immediately adjacent to the grape display case but was on a different aisle. The employee testified he did not usually find grapes on aisles other than the one where the grapes were displayed. “It is well settled that a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous.” Mazur v. Food Giant, 183 Ga. App. 453 (359 SE2d 178) (1987). The facts of this case are distinguishable from those of Geiger v. Brooks Super Market, 119 Ga. App. 57 (166 SE2d 580) (1969), cited by plaintiff, wherein the evidence showed a constant and continuous hazard from falling produce on the particular day of plaintiff’s injury. The facts of this case do not establish an issue of negligent failure to inspect.

Decided April 4, 1989.

Edwin M. Saginar, Andrew N. Gross, for appellant.

Douglas A. Wilde, Kent T. Stair, for appellee.

3. Plaintiff also argues an issue remains as to whether the manner in which defendant displayed the grapes was unnecessarily dangerous. No evidence was presented which would support this notion. The grapes on which plaintiff fell were not immediately adjacent to the grape display, so it is obvious they did not fall from the display counter. It is common knowledge that most produce in a grocery store is offered loose and unpackaged for customer selection. The fact that defendant displayed the grapes in loose bunches, without more, does not create an issue of negligence.

4. Finally, the lower court did not err in basing its grant of summary judgment on the cases of Mazur v. Food Giant, supra, and Mitchell v. Food Giant, 176 Ga. App. 705 (337 SE2d 353) (1985). In both the cited cases, as in the case at hand, no evidence was presented to establish that the food which had fallen to the floor had been present for a sufficient period of time for knowledge of its existence to be imputed to the defendant. In Mitchell, as in the case at hand, no evidence was presented to show that the defendant’s employee^), even though located nearby, actually had a view of the affected area. The court did not err in granting summary judgment to defendant.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0204.
    WILLIS v. THE STATE.
    (381 SE2d 416)
   Sognier, Judge.

John Robert Willis appeals from his conviction for selling 13.5 grams of cocaine to a GBI undercover agent in violation of the Georgia Controlled Substances Act.

The evidence adduced at trial revealed that a confidential informant telephoned appellant and, while GBI agent Stephen Burroughs listened on an extension, arranged to purchase one-half ounce of cocaine from appellant at a designated time and place. Agent Burroughs testified that he watched from behind a door as appellant appeared at the meeting place at the appointed time, surveyed the bar, and then stepped outside with the informant, and that the informant returned and said that appellant had left because he did not feel comfortable with the putative buyer, another GBI undercover agent, and had said he would send his wife to complete the sale. Appellant’s common law wife testified that appellant met her outside the bar, told her he was scared, and asked her to take the cocaine, which she said they had obtained from Tony Burrellis, to the buyer. She did so and gave the money to appellant and Burrellis. Appellant testified that he arranged the sale with the informant and went to the bar to complete the transaction, but that he then left and told his wife she could make the sale.

1. Appellant contends the trial court erred by admitting evidence that he was currently serving a probated sentence for possession of cocaine.

(a) Appellant first argues that the trial court abused its discretion by allowing this evidence of prior acts because the State filed its notice of intent to admit the evidence eight days before trial instead of ten days as required by Uniform Superior Court Rule 31.1, and that as a result appellant’s counsel, who had taken over the case after his colleague in the public defender’s office became ill, did not have adequate time to subpoena witnesses. We do not agree. Rule 31.1 authorizes the trial judge to shorten the time required for giving such notice, and we find no abuse of discretion here in the shortening of the filing period by two days. See Roman v. State, 185 Ga. App. 32-33 (1) (363 SE2d 329) (1987).

(b) Appellant also contends that admission of this evidence improperly placed his character into evidence. Evidence of independent crimes is admissible only when the State shows that the defendant was the perpetrator of the prior crime, and the independent crime and the charged offense are sufficiently similar that proof of the former tends to prove the latter. Durham v. State, 181 Ga. App. 155, 157 (2) (351 SE2d 683) (1986). “ ‘If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.’ [Cit.]” Lanzo v. State, 187 Ga. App. 616-617 (1) (371 SE2d 119) (1988). While proof that appellant was convicted of possessing cocaine does not necessarily prove his bent of mind to sell cocaine, as possession and sale of controlled substances are separate and distinct crimes, Sullivan v. State, 178 Ga. App. 769, 771 (344 SE2d 737) (1986), we find any error in admitting evidence of the prior offense to be harmless here because the evidence of guilt as set forth above was overwhelming, and thus we find it highly probable that the evidence did not contribute to the verdict. See Scott v. State, 162 Ga. App. 541-542 (1) (292 SE2d 125) (1982).

Decided April 4, 1989.

Neil A. Smith, for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Assistant District Attorney, for appellee.

2. Appellant also enumerates as error the trial court’s failure to give his requested charge on OCGA § 16-4-5, which sets forth the affirmative defense of abandonment of effort to commit a crime. However, OCGA § 16-4-5 (a) provides that this defense applies only to criminal attempt, and when the evidence adduced at trial shows completion of the crime charged, there is no error in failure to charge on abandonment of criminal attempt. Baker v. State, 157 Ga. App. 746, 747 (2) (278 SE2d 462) (1981). Here, the evidence showed appellant completed the crime of sale of cocaine by handing it to his wife and telling her to complete the sale, as one who aids or abets in the sale or procures another to make the sale is a party to the crime of selling cocaine and may be convicted thereof, see OCGA § 16-2-20; see generally Hernandez v. State, 182 Ga. App. 797, 799-800 (1) (357 SE2d 131) (1987), and thus we find no error in the trial court’s failure to charge the jury on OCGA § 16-4-5. See Baker, id. at 747 (2).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0368.
    HILLIARD v. THE STATE.
    (381 SE2d 320)
   Sognier, Judge.

William F. Hilliard was convicted of the offense of possession of cocaine in violation of the Georgia Controlled Substances Act, and he appeals.

Construing it to support the verdict, the evidence adduced at trial showed that on July 8, 1988, DeKalb County police obtained and executed a no-knock warrant to search apartment 204 at the Terrace Club Apartments in Doraville. The entrance door was forced open, and officers entered the premises and found two women and an infant in the apartment. When they then attempted to close and secure the front door, they discovered appellant behind the open front door. After securing the apartment, a search was conducted which yielded items seized from various locations throughout the apartment, including scales of a type commonly used for weighing narcotics, two loaded pistols, a ceramic or glass plate on which were two razor blades and a residue later identified as cocaine, a glass pipe commonly used for “freebasing” cocaine, and a small butane torch. Also found was a Georgia Power bill dated May 1987 and addressed to appellant at the apartment address. In addition, Detective Bryan Stancil of the DeKalb Police Department testified that when he discovered appellant behind the front door, appellant was holding a plastic bag containing powder, which appellant then dropped to the floor. The powder in the bag was later tested and found to be 10.9 grams of cocaine.

Appellant admitted that he had lived at the apartment at one time, but denied living there at the time of the search, saying he had sublet the apartment and had not lived there for 6 months.

1. Appellant contends the evidence is insufficient to support his conviction because he did not live at the apartment and at least three other people had equal access to the apartment where the drugs were found. However, appellant admitted on cross-examination that he had given the address of the apartment as his home address both when he was booked into jail and when he made bond. Further, two separate quantities of cocaine were found in the search, and although the defense of equal access would apply to the cocaine residue on the plate, which was found on the floor of the bedroom, and the trial court properly charged the jury as to equal access, it would not apply to the bag containing cocaine that appellant dropped when discovered. “A police officer testified that he saw the bag containing the drugs in [appellant’s] hand, and [appellant] denied this in his testimony. ‘(T)he “equal access” rule is inapplicable here, where the state’s evidence is not that appellant constructively possessed contraband, but that he actually and physically possessed it. . . [.] (Cits.)’ [Cit.]” Marshall v. State, 153 Ga. App. 198, 200 (5) (264 SE2d 718) (1980). Thus, there was ample evidence to enable a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant also enumerates as error the trial judge’s admission into evidence over objection certain State exhibits which contained contraband seized in the search and which the police officers had marked with appellant’s name. Appellant argues that marking the evidence with appellant’s name implied that appellant owned the contraband, a mere conclusion on the part of the police to which they could not have testified under Anderson v. State, 233 Ga. 433-434 (3) (211 SE2d 728) (1975), and which left an improper impression in the jurors’ minds. However, the record indicates that prior to the court’s charge appellant’s counsel informed the court that the State had agreed to remove appellant’s name from the evidence, that he had inspected the evidence, and the State had in fact done so, which took care of his objection. Accordingly, as the markings on the evidence were never seen by the jury, this enumeration is without merit.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.

Decided April 4, 1989.

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Robert M. Coker, Patricia G. Higginbotham, Assistant District Attorneys, for appellee.


author: Birdsong, Judge.

text:
    76620.
    GIDDENS CONSTRUCTION COMPANY, INC. v. FICKLING & WALKER COMPANY.
    (382 SE2d 436)
    Decided April 5, 1989.

      E. Thomas Shaffer, for appellant.

      J. Ellsworth Hall III, for appellee.
   Birdsong, Judge.

The Supreme Court, in the case of Fickling & Walker Co. v. Giddens Constr. Co., 258 Ga. 891 (376 SE2d 655), reversed the judgment of this court rendered in the case of Giddens Constr. Co. v. Fickling & Walker Co., 188 Ga. App. 558 (373 SE2d 792).

Accordingly, the judgment of this court in Giddens, supra, is vacated and the judgment of the trial court is affirmed.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    A89A0022.
    KUSUMA v. METAMETRIX, INC. et al.
    (381 SE2d 322)
   Birdsong, Judge.

Appellant landlord appeals the state court’s order granting summary judgment to appellee tenant.

Appellees entered into a lease for a term of five years with Carleo Properties, Inc. Carleo subsequently sold the leased property to appellant, and assigned its rights under the lease to appellant as part of its sales transaction. The lease expressly provided that “[t]ime is of the essence of this agreement.” It thereafter included a certain pertinent special stipulation, as follows: “In so far as the following stipulations conflict with any of the foregoing provisions, the following shall control: ... 4. In the event Dr. Neil Summerman [sic] should vacate suite 6 of 3700 building, Holcomb Bridge Road — Metametrix may elect to cancel this lease.” (Emphasis supplied.)

On July 1, 1986, Dr. Sommerman vacated the premises; however, before Dr. Sommerman’s departure, a Dr. Bernard Mlaver also began to practice medicine at suite 6. On or about November 30, 1987, appellees gave appellant written notice of intent to terminate or rescind the lease. On January 1, 1988, appellees vacated the premises. Appellant brought suit to collect past due rents and damages for breach of the lease.

Appellant’s sole enumeration of error is that the trial court erred in granting summary judgment to appellee. Held:

1. “In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” (Emphasis supplied.) Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 422 (373 SE2d 515).

2. Appellant asserts that special stipulation 4 relied upon by appellees is ambiguous, particularly as to the meaning of the term “vacate.”

The existence or non-existence of an ambiguity is itself a question of law for the court. Capital Ford Truck Sales v. U. S. Fire Ins. Co., 180 Ga. App. 413, 417-418 (349 SE2d 201); accord McClintock v. Wellington Trade, 187 Ga. App. 898, 902 (371 SE2d 893). A jury question arises only when there appears to be an ambiguity in the contract which cannot be negated by the court’s application of the statutory rules of construction set forth in OCGA § 13-2-2 (id.), and this rule applies even though the contract is “difficult to construe.” Webster v. Star Distrib. Co., 241 Ga. 270 (b) (244 SE2d 826). Words in a contract generally bear their usual and common signification with certain exceptions not here applicable. OCGA § 13-2-2. “A word or phrase is ambiguous ‘when it is of uncertain meaning and may be fairly understood in more ways than one.’ [Cit.] Language which is unambiguous will not be construed as ambiguous based on extrinsic circumstances.” Walton v. Datry, 185 Ga. App. 88, 94 (5) (a) (363 SE2d 295). Ambiguity cannot be created merely by ingenuity of counsel. Special stipulation 4 when construed in its entirety clearly provides on its face that if Dr. Sommerman gave up suite 6, or left, moved out or similarly ceased to occupy the premises, that appellees would have the right subsequently to terminate the contract. Special stipulation 4 is not ambiguous. We find this assertion to be without merit.

3. Appellant asserts that a genuine issue of fact exists regarding whether appellees waived special stipulation 4 by conduct or delay. The stipulation clearly operates to the exclusive benefit and protection of the appellees. Moreover, as stipulation 4 was not in conflict with, it was therefor subject to, the unrestricted time of the essence clause of the lease agreement. See Giddens Constr. Co. v. Fickling &c. Co., 188 Ga. App. 558 (373 SE2d 792), reversed on other grounds, 258 Ga. 891 (376 SE2d 655).

The record establishes that the appellees/movants did not terminate the lease, pursuant to the authority of special stipulation 4, until approximately 18 months following Dr. Sommerman’s quitting of the premises. As appellees remained in lawful possession of the premises during that time, the reasonable inference to be drawn is that tender of rent was timely made and accepted at least until appellees tendered notice of termination to appellant.

As a general rule, “a party to a contract may not waive stipulations in favor of the other party, or rights to which the other party is entitled. . . .” 17A CJS, Contracts, § 491a. However, such provisions may be waived by the conduct of both parties intended to result in the “mutual disregard” of, or “mutual departure” from the contract terms. See generally OCGA § 13-4-4; Southern Feed Stores v. Sanders, 193 Ga. 884 (3) (20 SE2d 413); Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 (4) (58 SE 200); Prudential Ins. Co. v. Nessmith, 174 Ga. App. 39 (329 SE2d 249); Crawford v. First Nat. Bank &c., 137 Ga. App. 294, 295 (223 SE2d 488). The question whether the parties’ mutual conduct caused a waiver and effected a quasi-new agreement ordinarily is a question for the jury. Southern Feed Stores, supra at 887; Crawford, supra at 295. It is equally well-recognized that a party to a contract “may waive contractual provisions for his benefit.” 17A CJS, supra; see Storey v. Austin, 221 Ga. 692 (1) (146 SE2d 728); C.P.D. Chem. Co. v. Nat. Car Rental &c., 148 Ga. App. 756 (1) (252 SE2d 665).

“A waiver may be express, or may be inferred from actions, conduct, or a course of dealing. . . . Waiver of a contract right may result from a party’s conduct showing his election between two inconsistent rights. . . . Acting on the theory that the contract is still in force, as by continuing performance, demanding or urging further performance, or permitting the other party to perform and accepting or retaining benefits under the contract, may constitute waiver of a breach. However, all the attendant facts, taken together, must amount to an intentional relinquishment of a known right, in order that a waiver may exist. . . .” 17A CJS, supra at § 492 (1), see also § 443.

Although the issue of a waiver of a contract provision is not always a jury question, “it is a question for the trior of fact when the evidence in that regard is conflicting.” Oxford Motors Co. v. Niblack, 183 Ga. App. 771, 772 (360 SE2d 23).

The approximately 18-month delay in the exercise of the termination option gives rise to a jury question per se regarding appellees’ intent in failing to timely assert their termination rights. See generally Bearden, supra at 702 (3); Royal Atlanta &c. v. M. D. Hodges &c., 141 Ga. App. 838 (1) (234 SE2d 676) (protracted silence raised fact issue as to whether appellee had waived the right to terminate by its inaction). Further, the reasonable inferences that during the 17-month period until notice was given, appellees continued to pay rent monthly and accept the benefit of the rental property, and that the appellant accepted such repeated rent payments likewise created a factual dispute as to whether waiver occurred. See Smith v. Gen. Fin. Corp., 243 Ga. 500, 501 (255 SE2d 14); see also Turner &c. Advertising v. Fidelity &c. Inc., 185 Ga. App. 815, 817 (366 SE2d 201).

Decided April 5, 1989.

William Edmund Burke, for appellant.

Emily Sherwinter, for appellees.

Judgment reversed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0058.
    HILL v. JAY PONTIAC, INC.
    (381 SE2d 417)
   Pope, Judge.

On April 13, 1986, pursuant to the terms of a retail sales contract, plaintiff purchased a new automobile from defendant Jay Pontiac, Inc. Within a few days, plaintiff began experiencing mechanical and other problems with the car and returned the car to the dealership for repairs. Over the next several months, subsequent problems arose and plaintiff returned the car to the dealership each time for repairs. In July 1986, plaintiff returned the car for repairs and indicated his intent to leave the car with defendant and rescind the retail sales contract. Plaintiff subsequently brought suit against the defendant, seeking to rescind the contract based on alleged fraudulent misrepresentations of the defendant in selling him the car and violations of the Georgia Fair Business Practices Act. The trial court granted summary judgment to the defendant and plaintiff appeals.

1. Although the contract of sale contained language specifically disclaiming all warranties, express and implied, plaintiff contends that inasmuch as the contract was procured by fraud, he was entitled to rescind the contract and sue in tort for fraud and deceit. In support of his argument that the contract was procured by fraud, plaintiff asserts that he bought the car based on defendant’s advertisements, plus representations of defendant’s salesperson that since the car was new, it was in excellent condition and free of defects.

Although it is true, as plaintiff asserts, that fraud renders a contract voidable at the election of the injured party, it is likewise true that “ ‘[representations under the general head of “dealer’s talk” are regarded as mere commendations, “puffing,” or expressions of opinion, and do not, though untrue, constitute false representations which will avoid a contract. (Cit.) The representations to support a claim must relate to an existing fact and not a future event, unless it be an event which the party making the representations knows will never occur. Mere broken promises, unfulfilled predictions, and erroneous conjectures do not meet this test. (Cits.)’ American Food Services v. Goldsmith, 121 Ga. App. 686, 687-688 (175 SE2d 57) (1970). ‘It is difficult to lay down an absolute test for determining what statements are representations which come within “dealer’s talk.” Where representations amount to mere expressions of opinion, they come within the scope of this rule, and do not, though untrue, constitute such false representations as will void the contract.’ Williams v. Fouche, 164 Ga. 311 (5a) (138 SE 580) (1927).” Marler v. Dancing Water Lakes, 167 Ga. App. 99, 100 (305 SE2d 876) (1983).

Applying this rule to the case at bar, we agree that the advertisements of defendant and the remarks of its salesperson, relied on by plaintiff to support his claim of fraud, were mere sales puffing. “The statement was that of an opinion not a statement of fact. . . [and as such] cannot constitute the basis for a claim of fraud.” Randall v. Smith, 136 Ga. App. 823, 825 (222 SE2d 664) (1975). Consequently, plaintiff presented no grounds that would warrant rescission of the contract, and the trial court properly granted summary judgment to the defendant on this issue. Accord Randall, supra; Cf. City Dodge v. Gardner, 130 Ga. App. 502 (203 SE2d 729) (1973), aff’d, 232 Ga. 766 (208 SE2d 794) (1974) (wherein evidence was presented that the salesperson’s representations to the buyer that the automobile had never been “wrecked” were untrue).

2. Relying, inter alia, on Attaway v. Tom’s Auto Sales, 144 Ga. App. 813 (242 SE2d 740) (1978) plaintiff also argues that regardless of his right to rescind the contract based on the alleged fraud of the defendant, the trial court erred in granting summary judgment as to his claims asserting alleged violations of the Georgia Fair Business Practices Act, OCGA § 10-1-390 et seq. Although it is true that the Act creates a separate and distinct cause of action, independent of other theories of recovery an injured party might have, in the case at bar plaintiff’s cause of action under the Act was predicated on the alleged fraudulent misrepresentations of the defendant concerning the condition of the car. Consequently, inasmuch as we have determined that these representations were not fraudulent, we agree the trial court properly granted summary judgment as to plaintiff’s claims based on the Act.

3. Lastly, we find no merit to plaintiff’s argument that an implied warranty of fitness arose by virtue of OCGA § 11-2-315 because he purchased the car for a “particular purpose,” as that term is used , in the Uniform Commercial Code. See Fiat Auto U.S.A. v. Hollums, 185 Ga. App. 113 (1) (363 SE2d 312) (1987).

Decided April 5, 1989.

Pedro Quezada, for appellant.

Paul T. Messing, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0228.
    PICKENS COUNTY BOARD OF TAX ASSESSORS et al. v. ATLANTA BAPTIST ASSOCIATION, INC.
    (381 SE2d 419)
   Banke, Presiding Judge.

The Pickens County Board of Tax Assessors assessed ad valorem property taxes on 640 acres of land in Pickens County owned by the Atlanta Baptist Association, Inc. The Association appealed to superior court, contending that the property is exempt from such taxation pursuant to OCGA § 48-5-41 (a) (2) because it is used as a “place of religious worship.” The trial court granted summary judgment to the Association, and the Board of Tax Assessors filed the present appeal to this court, contending that there was evidence that the property, particularly the undeveloped portion, is maintained and operated primarily as an income generating recreational facility.

The property is known as the Burnt Mountain Baptist Assembly. In support of its motion for summary judgment, the Association introduced the deposition of the director of the Assembly, who described the various improvements located on the property, including worship facilities, a dining hall, cabins, indoor and outdoor meeting spaces, a swimming pool and ball fields. He stated that approximately one-third of the total acreage is unimproved and is used for nature walks, outdoor Bible study and meditation. The improvements were constructed by the Association with contributions from its associate churches. While user fees are charged for the use of the facility, they are insufficient to cover all of the operating expenses, and the deficiency is made up by subsidies provided by the Association. The facility is used exclusively by adult and youth church groups of various denominations. The Association requires that each group conduct a religious program during its stay, and the director previews each program to ensure that the scheduled events include “worship and knowledge of God, Bible study and prayer.” He also monitors the activities of the visiting groups to ensure that the religious aspect of their programs is followed. There is no question, however, that secular activities, such as softball and swimming, normally are also incorporated into the programs. Held:

As a general rule, statutes exempting property from taxation are to be strictly construed in favor of taxation, “but this rule must not be pushed to unreasonableness.” Church of God &c. Assembly v. City of Dalton, 213 Ga. 76, 78 (97 SE2d 132) (1957). In Leggett v. Macon Baptist Assn., 232 Ga. 27, 30 (205 SE2d 197) (1974), our Supreme Court, in determining whether property qualified for an exemption under the predecessor to OCGA § 48-5-41 (a) (2), stated that “the words ‘religious worship’ import a concept of a congregation assembling in a place open to the public to honor the Deity through reverence and homage.” Subsequently, in Roberts v. Ravenwood Church of WICCA, 249 Ga. 348, 351 (292 SE2d 657) (1982), the Court held that a determination as to whether property qualifies for tax exemption as a place of religious worship is to be made on the basis of the primary use of the property.

In Roberts v. Atlanta Baptist Assn., 240 Ga. 503 (241 SE2d 224) (1978), the Court addressed the issue of whether property used as a facility for religious retreats qualified for an exemption under the statute. There, the taxing authority had not sought to tax the improved portion of the property but only the contiguous, undeveloped land. After examining the evidence concerning the purpose of the facility and the activities conducted on the premises, the Court concluded that all of the essential elements of “religious worship” had been shown to exist with reference to the undeveloped land as well as the developed land, stating: “[I]f the presence of the omnipotent and omnipresent God cannot be restricted to a mere man made edifice, surely it was not intended to limit the worship of such a God to a building.” Id. at 508.

In the case before us, as in Roberts, the evidence establishes without dispute that religious activities are an integral part of every aspect of the use of the property. Although the recreational facilities which are provided to visitors are secular in nature, their use was shown to be intimately connected and intertwined with the religious activities to which the property is primarily dedicated. The fact that visitors are charged fees which are applied towards the operating expenses of the facility does not alter its fundamentally religious character. Accord Roberts v. Ravenwood Church of WICCA, supra, 249 Ga at 353. In light of the foregoing authorities, and on the basis of the uncontroverted evidence in the present case, we hold that the trial court did not err in concluding as a matter of law that the property was exempt from taxation as a place of religious worship.

Judgment affirmed.

Sognier and Pope, JJ., concur.

Decided April 5, 1989.

Richard Thurman, Elliott R. Baker, Mary D. Baker, for appellants.

Perry 0. Lemmons, for appellee.