text:
    A97A2508.
    HOVENDICK et al. v. PRESIDENTIAL FINANCIAL CORPORATION.
    (497 SE2d 269)
   Andrews, Chief Judge.

Danny Hovendick and Robert Spollen, officers of the now dissolved corporation of PlantSystems, Inc., appeal from the trial court’s order granting summary judgment to Presidential Financial Corporation (Presidential) on its claim for money due under a promissory note personally guaranteed by Hovendick and Spollen. For the reasons discussed below, we find no error and affirm the judgment of the trial court.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. . . ” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Accordingly, viewed in the light most favorable to Hovendick and Spollen (appellants), the record shows that on November 17, 1993, PlantSystems executed a promissory note (Note) in favor of Presidential which was personally guaranteed by appellants. The consideration for this Note was a loan to PlantSystems in the form of a revolving line of credit in an amount not to exceed $300,000.

On July 22, 1996, Presidential filed a complaint alleging Plant-Systems was in default on the Note in the amount of $183,544.78 plus interest. Presidential filed a motion for summary judgment, and appellants responded claiming, inter alia, that they were fraudulently induced to sign the Note and the guaranties. The trial court granted Presidential’s motion for summary judgment, and this appeal followed.

Appellants do not dispute the authenticity of the Note. They admit they signed the Note, received the money and defaulted. Therefore, Presidential had a prima facie right to recover the face value due on the Note. OCGA § 11-3-308 (b); Commonwealth Land Title Ins. Co. v. Miller, 195 Ga. App. 830, 833 (395 SE2d 243) (1990) (decided under former Code section 11-3-307). Having established this right, Presidential was entitled to judgment unless appellants established a valid defense.

In their defense, appellants claim their attorney told them he was a board member of Milton Bank and could get them a line of credit with Milton. Because of this assurance of a line of credit, appellants contend they incurred debts in reliance on representations that their line of credit would be approved. However, when the line of credit was approved, it was through Presidential Financial Corporation, not Milton Bank and the terms were not as favorable as the ones appellants claim were promised to them. Appellants said they signed the Note and guaranties anyway because of the outstanding debts they had incurred and because Milton promised it would, at some time in the future, take over 50 percent of the funding of the line of credit, thereby reducing the cost to PlantSystems. Appellants stated they were given written notification that, as of December 15, 1993, Milton Bank would participate in funding 50 percent of the loan. This written notification is not in the record, nor is there any evidence in the record that Milton ever actually began funding 50 percent of the Note. Appellants claim that in spite of this notification, there was no change or adjustment made in the fees or in the interest charged on the money advanced.

1. In their first enumeration of error, appellants claim Presidential breached its contract with them as follows: initially failed to honor requests for draws after execution of the agreements; added service charges to the principal instead of giving appellants the option of paying the charges when they accrued; failed to provide auditing and other agreed-upon services, and “cessation of funding after the parties reached an agreement in light of the IRS lien.”

The only contract in the record is the loan agreement signed by appellants, which provided that Presidential “in its sole discretion may loan the Borrower an amount not to exceed $300,000. . . .” Therefore, Presidential was permitted to refuse to honor requests for draws. As to the other claims for breach of contract, appellants present no argument, no citation of authority, and also do not cite to any portion of the record that would support this claimed error. Moreover, after reading the terms of the Note and the Guaranty signed by appellants, we find no support for any of these contentions. Further, to the extent that appellants raise arguments based on other alleged agreements between the parties, there are no other agreements in the record, and “[i]t is a well established rule that in the absence of fraud, accident or mistake, parol evidence cannot be considered to alter or vary the terms of a promissory note.” Marchman Oil & Chem. Co. v. Southern Petroleum Trading Co., 167 Ga. App. 691 (307 SE2d 509) (1983).

2. Appellants also claim they were fraudulently induced to sign the Note and the guaranty. Appellants contend “[t]his possible fraud occurred in connection with negotiations in which there was a commitment that a third party would participate in the loan, and in connection with representations that the third party had in fact participated in the loan.” Again, there is no evidence in the record to support this claim. Moreover, “a party to a contract who can read, must read or show a legal excuse for not doing so, and ordinarily if fraud is an excuse, it must be such fraud as would prevent the party from reading the contract. One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relationship or trust or confidence exists. Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud.” (Citations and punctuation omitted.) Conerly v. First Nat. Bank &c., 209 Ga. App. 601, 603 (2) (434 SE2d 143) (1993). “One not prevented from reading the contract, and having the capacity and opportunity to do so, cannot after signing it claim he was fraudulently induced to sign by promises which contradict the express terms of the contract.” Campbell v. C & S Nat. Bank, 202 Ga. App. 639, 640 (415 SE2d 193) (1992). This enumeration of error is without merit.

3. Next, appellants contend there was a jury issue on their defense of duress. They argue they were forced to sign the Note while under economic distress. This does not, however, constitute legal duress. See Tidwell v. Critz, 248 Ga. 201, 203 (1) (282 SE2d 104) (1981) (“Duress which will avoid a contract must consist of threats of bodily or other harm, or other means amounting to coercion, or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will”). There is no evidence of this type of duress in the record.

4. In enumerations 2 and 3, appellants contend Presidential did not establish the exact amount of principal owed. Appellants have not disputed specifically the amount Presidential claims is owed, nor have they submitted evidence as to what the correct amount should be.

Once Presidential introduced the Note and established a prima facie right to judgment on the Note, the burden shifted to Hovendick and Spollen to produce evidence showing a different amount owed and thereby creating a jury issue. Morey v. Brown Milling Co., 220 Ga. App. 256, 258 (469 SE2d 387) (1996); Jay Gleason Advertising Svc. v. Gleason, 193 Ga. App. 445 (388 SE2d 43) (1989) (decided under former Code section 11-3-307). Therefore, because appellants have introduced no evidence showing that the amount claimed by Presidential is incorrect and no evidence as to any other amount, there is no merit to these enumerations of error.

5. Next, appellants claim the interest charged on the Note was usurious. The argument in support of this enumeration appears to be based on appellants’ contention that Presidential was providing only 50 percent of the funding under the Note after a certain time, with Milton Bank providing the other 50 percent. However, the only evidence before us is the Note between Presidential and appellants. There is nothing in the record showing that Milton Bank began funding any portion of the Note. As previously discussed, contentions regarding statements or misrepresentations by Milton Bank cannot be used to vary the terms of the unambiguous promissory note and do not establish a valid defense to Presidential’s prima facie right to recover on the Note. Campbell, supra at 640; Marchman Oil, supra at 691.

6. Appellants next claim the trial court erred in denying them leave to assert a counterclaim. Pursuant to OCGA § 9-11-13 (f), “when a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up a counterclaim by amendment. Such a showing is mandatory.” (Punctuation and emphasis omitted.) Conerly, supra at 603 (3), citing Adderholt v. Adderholt, 240 Ga. 626, 628 (1) (242 SE2d 11) (1978).

Here, Presidential filed its Complaint on July 22, 1996, and appellants answered on August 28, 1996. Appellants did not move to file a compulsory counterclaim until February 10, 1997. Moreover, appellants did not make the required showing mandated in Conerly, but instead, merely claimed they were seeking leave to file a third-party complaint against Milton Bank and “the interests of justice counsel in favor of allowing [it].” Further, whether to allow such a filing even after the requisite showing is made is within the discretion of the trial court and will not be disturbed absent abuse. Conerly, supra at 604. We find no abuse.

7. In their last enumeration of error, appellants claim the trial court erred in denying them leave to file a third-party complaint against Milton Bank. OCGA § 9-11-14 provides that a third-party plaintiff need not obtain leave to file a third-party complaint if he does so within ten days after he serves the original answer. However, after the ten days have expired, he must obtain permission from the trial court in order to file a third-party complaint. OCGA § 9-11-14. “The decision whether to grant or deny a motion for leave to implead a third-party defendant is one committed to the sound discretion of the trial court, and the timeliness of the motion is a factor governing the exercise of such discretion. . . . (W)here the motion for inter-pleader is not promptly made and the movant offers no reasonable excuse for the delay, the motion may be properly denied.” Cherokee Nat. &c. Ins. Co. v. Coastal Bank of Ga., 239 Ga. 800, 802 (1) (238 SE2d 866) (1977); Jenkins v. Chambers, 127 Ga. App. 200, 202-203 (193 SE2d 222) (1972).

Here, appellants filed their answer on August 28, 1996. Presidential filed its motion for summary judgment on January 6, 1997. Appellants moved for leave to file a third-party complaint on February 10, 1997. Therefore, the motion was not promptly made, appellants having waited almost six months since they filed their answer and one month after Presidential filed its motion for summary judgment. Moreover, the motion failed to give a reasonable excuse for the delay. Accordingly, the trial court did not abuse its discretion in denying leave to file the third-party complaint.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

Decided February 10, 1998.

Charles R. Floyd, Jr., Deborah M. Floyd, for appellants.

Sutherland, Asbill & Brennan, Steven L. Polk, for appellee.

       No individual or officer is ever identified as having made these statements on behalf of the bank.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A98A0047.
    COOK v. THE STATE.
    (496 SE2d 785)
    Decided February 10, 1998.
    Craig Cook, pro se.

      Spencer Lawton, Jr., District Attorney, Michael R. Dennard, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant Craig Cook was charged in an indictment with armed robbery (two counts), attempt to commit armed robbery, kidnapping, aggravated sexual battery, and obstruction of a law enforcement officer for acts committed in Savannah, Georgia, in April and June 1995. Pursuant to a negotiated guilty plea, defendant was sentenced to 20 years, 15 to serve, for armed robbery in a sentence order entered March 19, 1996. On June 10, 1997, defendant filed a “Petition to Withdraw Plea of Guilty.” He appeals pro se from the order of the trial court denying his motion to withdraw his guilty plea. Held:

The trial court correctly concluded it had no authority to grant defendant’s motion to withdraw his guilty plea in this case, since the motion was filed after the expiration of the term of court in which the judgment of conviction on that plea was entered. State v. Right, 175 Ga. App. 65 (1), 66 (332 SE2d 363); Moore v. State, 116 Ga. App. 774 (158 SE2d 926). “[T]he only prescribed means for the [defendant’s] filing the motion to withdraw his guilty plea, after the term of court at which the judgment of conviction was rendered, was through habeas corpus proceedings.” Conlogue v. State, 243 Ga. 141, 142 (6) (253 SE2d 168), overruled on other grounds, Smith v. State, 253 Ga. 169 (316 SE2d 757).

Judgment affirmed.

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


author: Beasley, Judge. Smith, Judge, Eldridge, Judge, Andrews, Chief Judge,

text:
    A97A1001.
    KELLEY v. PIGGLY WIGGLY SOUTHERN, INC. et al.
    (496 SE2d 732)
   Beasley, Judge.

Mary Kelley appeals from the grant of summary judgment to all defendants in her action against Piggly Wiggly Southern, Inc., Clean-Serve, Inc., and Donna Sendra d/b/a Universal Cleaning Service. She alleged she slipped and fell in a puddle of water or other clear liquid in Piggly Wiggly’s store and that Clean-Serve or Universal had applied the liquid to the floor.

The evidence favorable to Kelley shows she went to Piggly Wiggly’s store between 6:00 and 6:30 in the morning to purchase groceries. As she pushed her shopping cart towards the produce department, she slipped in a puddle of liquid and fell. Kelley described the liquid as invisible from a standing position even after she arose from her fall, although she could see the liquid when she was lying on the floor. After she fell, she noticed a floor cleaning machine two or three aisles away. Kelley acknowledged she did not know whether the liquid in which she fell came from the machine or how long the liquid had been on the floor.

Universal, which subcontracted for the cleaning from Clean-Serve, used a push machine to wash the floor each night. The process started between about 11:00 p.m. and midnight, and it took three or four hours. The worker has to sweep the store, mop it with the machine, then mop it by hand to get up any water the machine left, and finally, buff the floor. The machine, furnished by Piggly Wiggly, is generally left in a room at the back of the store, but on the morning of Kelley’s fall the machine was left out on an aisle and some dirty water had puddled under it.

In the cleaning process, the machine squirts out water to cover about a four- to five-foot area. It has a vacuum to retrieve the water but sometimes leaves up to a foot of water behind. Both water and cleaning agent are put into the machine at the top. The record does not show that the cleaning agent colors the water or materially alters its consistency.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the respondent, concludes that the evidence does not create a triable issue as to an essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). On a motion for summary judgment under OCGA § 9-11-56, the defendant, as the moving party, may only prevail either by piercing the plaintiff’s pleadings or by presenting evidence which establishes a prima facie affirmative defense. Id. A defendant who will not have the burden of proof at trial may pierce the plaintiff’s pleadings by either: (1) presenting evidence which negates an essential element of the plaintiff’s claims, or (2) showing “an absence of evidence to support the [plaintiffs] case” as to any essential element. Id. at 491; Caven v. Warehouse Home Furnishings Distrib., 209 Ga. App. 706 (434 SE2d 532) (1993).

“[T]he ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., 268 Ga. 735, 748 (493 SE2d 403) (1997).

1. The trial court erred in granting summary judgment to Clean-Serve and Sendra because Kelley presented circumstantial evidence of a connection between these appellees and the liquid in which she fell. She must of course show that a defendant’s negligence caused her injuries.

The duty imposed upon an owner or occupier of land by OCGA § 51-3-1 is inapplicable to Clean-Serve and Sendra because they are independent contractors, not owners or occupiers of the premises. Greene v. Piedmont Janitorial Svcs., 220 Ga. App. 743, 744-745 (2) (470 SE2d 270) (1996). But, the cleaners had the duty to use ordinary care in their floor cleaning and cleanup assignment. Bell & Son v. Kidd & Roberts, 5 Ga. App. 518, 520 (63 SE 607) (1909) (a contractor may be hable to third parties for negligent performance of the contract work); Guthrie v. Robbins Home Improvement Co., 95 Ga. App. 882, 884 (2) (b) (99 SE2d 319) (1957) (contractor owes duty to invitee on premises).

Since the machine starts out with liquid cleaner and water that is squirted out, the fact that Kelley saw the machine in dirty water left by its brushes does not destroy the inference that the machine was the source of the water she slipped on after the machine was used on the floor throughout the store. Neither does the testimony that a cleaning substance was added to the water. A jury could reasonably infer that this puddle remained during the cleaning process and was not mopped up afterwards. Considering the time of day and the description of the substance, a jury could reasonably infer that the substance was not one which a customer spilled but rather was left by the cleaning person.

2. With regard to Piggly Wiggly, “in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Robinson, supra at 748-749. Here, the inquiry under the first prong is limited to whether Piggly Wiggly had constructive knowledge of the liquid on the floor, because there was no evidence Piggly Wiggly had actual knowledge of it.

Constructive knowledge can be established in one of two ways: by evidence that employees were in the immediate vicinity and easily could have noticed and removed the hazard, or by evidence that the substance had been on the floor for such a time that it would have been discovered had the proprietor exercised reasonable care in inspecting its premises. Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980), modified on other grounds, Robinson, supra. The first basis for constructive knowledge is foreclosed by Kelley’s testimony that she did not see any employees in the vicinity of her fall. Although Kelley’s later affidavit stated there were employees “a reasonable distance” from the site of her fall, this contradicts her deposition testimony that she arose after her fall and looked for employees in the area but saw none. The unexplained discrepancy is construed against her under the rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).

To support the second basis for constructive knowledge, that the owner failed to exercise reasonable care in inspecting the premises, “the plaintiff must show that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant. [Cit.] ‘The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case (the nature of the business, size of the store, the number of customers, the nature of the dangerous condition and the store’s location).’ [Cit.]” (Punctuation omitted.) Alterman Foods, 246 Ga. at 623.

No one from the store inspected after the cleaning on this particular morning to assure that the cleaner had completed the job properly and left no water behind. In fact, the machine was left out, in the way of customers, with dirty water seeping onto the floor. There is no evidence of any inspection at all that night or early morning before Kelley’s fall for water or anything else which might be a hazard to patrons. Although Kelley did not see the liquid before she fell, a person inspecting the floor after the cleaner completed the job would have been looking for just such a substance. It cannot be assumed that if the patron did not see it before falling, neither would an inspector.

“The owner/occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. (Cit.) This includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.” Robinson, supra at 740.

The proprietor has not pierced the pleading by showing it fulfilled the duty imposed by OCGA § 51-3-1. Nor has it rebutted the inference that the water came from the cleaning process that was supposed to end about three hours earlier. Piggly Wiggly has not rebutted this evidence by showing a reasonable inspection and cleaning procedure.

This case differs from Blake v. Kroger Co., 224 Ga. App. 140 (480 SE2d 199) (1996), because it is reasonably inferable that the water came from the cleaning machine, that it was not mopped up by the person who used the machine, and that the proprietor did not inspect for water left by the machine during the several hours between the time the cleaner left and plaintiff fell, despite knowledge that the process took large quantities of water and sometimes left some behind.

Judgment reversed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur. Smith and Eldridge, JJ., concur specially. Andrews, C. J., and Birdsong, P. J., dissent.

Smith, Judge,

concurring specially.

While I concur fully in the majority opinion, I write separately for two reasons: first, to describe some of the procedural history of this case on appeal, and second, to acknowledge the assistance given to this Court by the Supreme Court’s opinion in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997).

I wrote the first majority opinion in this case, in which Chief Judge Andrews, Presiding Judge Birdsong, and Senior Appellate Judge Banke concurred. Judge Ruffin concurred in the judgment only, and Judge Beasley and Judge Eldridge wrote strong dissenting opinions. After issuance of the original opinion, the Supreme Court of Georgia decided Robinson. In light of this decision and its significant alteration of summary judgment practice in slip-and-fall cases, I felt constrained to withdraw the original majority and join Judge Beasley’s dissent. She has now recast that dissent as the new majority, adding appropriate analysis based upon Robinson.

As we apply the Robinson decision here, I believe it is also appropriate to note this case as a very early example of the assistance the Supreme Court’s opinion gives this Court. For years, this Court and trial courts throughout Georgia have struggled to apply properly — and with justice for both plaintiffs and defendants — the principles set out by the Supreme Court in Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980), and Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In Robinson, the Supreme Court has given much-needed direction through the unequivocal statement that the decision’s purpose is to “lighten the load placed on plaintiffs by more recent judicial opinions.”

Without Robinson and its modification of the Alterman Foods standard, this case might well have been another in the large number of slip-fall cases that have caused disagreement among members of this Court. But with the aid of Robinson and the clear-cut policy choice made by the Supreme Court to take a new direction in these cases, the appropriate disposition becomes clear. That will also be true in the future with the vast majority of slip-fall appeals and applications for interlocutory review.

As the appellate court judge who was reversed by the Supreme Court in Robinson, I welcome it. The Supreme Court, in its role as lawgiver, has resolved a long-standing controversy which this Court, as a court for the correction of errors, was unable to address. This gives me hope that this Court will soon no longer be largely defined by this single type of case and will no longer be identified first and foremost by lawyers and trial judges as the court that cannot, give clear, consistent direction in slip-fall cases. These are important cases and deserve careful consideration, but I look forward to the opportunities Robinson affords us. The Supreme Court’s decision may make it possible for us to reduce substantially the disproportionate amount of time and effort expended on these cases in the past, and to end the increasing polarization of this Court they have produced.

Eldridge, Judge,

concurring specially.

While I concur entirely with Judge Beasley’s majority, I write specifically to address additional issues that I feel are important in this case.

On the law and facts, this case is on all fours with Bruno’s Food Stores v. Taylor, 228 Ga. App. 439 (491 SE2d 881) (1997), in which this Court recently affirmed the trial court’s denial of summary judgment to the defendant grocery store, where: (1) the cleaning contractor was using the same kind of floor cleaning machine that was owned and maintained by the owner/occupier and that also left streaks of water that had to be mopped up, and (2) the knowledge of the water was imputed to the owner/occupier, because it had not surrendered control of the premises to the independent contractor. In this case, the evidence shows that the floor cleaning machine did not vacuum up all the fluid it dispensed on the floor, but left approximately a foot of liquid behind, which required either the cleaning company or Piggly Wiggly to mop up the excess water. Piggly Wiggly was aware of the manner in which the machine operated, or failed to operate, and that the excess water had to be mopped up by an individual. Further, the plaintiff did not observe any cones or warning signs that would alert patrons to the danger presented by the wet floor. The record is silent as to what the cleaning company’s and the store’s policies were regarding the placement of cones or signs to warn patrons of a wet floor, and whether the excess water left on the floor was mopped up only after the cleaning company was through cleaning all the areas of the store with the floor cleaning machine or after each aisle or section.

Imputed or constructive knowledge of the condition of the floor is attributed to the cleaning company since it performed the cleaning services which caused the water to be on the floor, and therefore, it is presumed to have knowledge of the condition in which it left the floor. See Bruno’s Food Stores v. Taylor, supra; Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980); see Little v. Liberty Savings Bank, 191 Ga. App. 732 (382 SE2d 734) (1989). “Because the owner or occupier’s duties to keep the premises and approaches safe are statutory (OCGA § 51-3-1), those duties are non-delegable even though the owner has a contract for another party to provide [cleaning services]. OCGA § 51-2-5 (4); Confetti Atlanta v. Gray, 202 Ga. App. 241, 244 (4) (414 SE2d 265) (1991). An employer is liable for the negligence of a contractor ... if the wrongful act is the violation of a duty imposed by statute.’ OCGA § 51-2-5 (4).” Griffin v. AAA Auto Club South, 221 Ga. App. 1, 2 (1) (470 SE2d 474) (1996); accord Parking Co. of America v. Sucan, 195 Ga. App. 616, 617 (1) (394 SE2d 411) (1990); Towles v. Cox, 181 Ga. App. 194, 196 (351 SE2d 718) (1986); Gerald v. Ameron Auto. Centers, 145 Ga. App. 200, 202 (2) (243 SE2d 565) (1978). Questions of fact exist for jury determination as to whether the cleaning company exercised due diligence in removing the excess liquid from the floor after going over the floor with the floor cleaning machine and in warning patrons of the danger of the wet floor by placing cones or warning signs in the appropriate areas until the excess water could be mopped up.

Piggly Wiggly, as an owner of the premises, cannot insulate itself from liability simply by hiring an independent contractor to clean its floors. If full possession and complete control of the floor is not delivered to the independent contractor, the acts of the independent contractor will be imputed to the owner of the premises. See Bruno’s Food Stores v. Taylor, supra at 442. In this case, full possession and control of the floor had not been delivered to the cleaning company by Piggly Wiggly. Piggly Wiggly was open to customers during the time that its floor was being cleaned, and the portion of the store in which the floor was being cleaned was not closed to customers. Both situations benefited Piggly Wiggly, as customers could shop in the entire store. Piggly Wiggly had directed the cleaning company to perform its services at times when there were fewer customers in the store, and Piggly Wiggly had actual knowledge that the floor of its store was being cleaned by an employee of the cleaning company at the time of Kelley’s fall. Therefore, knowledge of the puddles of the clear liquid on the floor would be imputed to Piggly Wiggly.

Further, separate from any imputed negligence, the evidence raises independent claims of negligent acts or omissions on the part of Piggly Wiggly. As shown by the testimony of Piggly Wiggly employee Curtis Holmes, Piggly Wiggly knew its floor cleaning machine regularly left water on the floor, which had to be mopped up. A jury could reasonably infer from Holmes’ testimony describing how the floor cleaning machine operated that Piggly Wiggly’s floor cleaning machine was not in proper repair. Further, there was a duty on the part of Piggly Wiggly to make a reasonable inspection of the floor and either to personally put out warning cones or signs, or to ensure the cleaning company put them out in areas where the floor was wet. This duty was particularly applicable because: (1) Piggly Wiggly knew that customers would be in the store during the time its floor was being cleaned; (2) Piggly Wiggly provided shopping carts for their customers’ use and it was reasonably foreseeable that the shopping carts, which may well be filled with a customer’s selections, could block the customer’s view of the floor directly in front of the buggy; (3) Piggly Wiggly knew its floor cleaning machine left liquid on the floor; and (4) Piggly Wiggly knew that standing water on the floor during cleaning created a danger.

Under the evidence, the defendants either (1) failed to pierce the allegations set forth by the plaintiff and show that no jury issue exists as to an essential element of the plaintiff’s claims; or (2) the plaintiff came forward with evidence in rebuttal. See Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). Slight evidence is sufficient to satisfy the plaintiff’s burden of coming forward with evidence in rebuttal. Further, such evidence may include favorable inferences drawn by the court from the evidence presented. See Stuckey Diamonds v. Jones, 195 Ga. App. 351 (393 SE2d 706) (1990); Mealer v. Gen. Cinema Beverages of Ga., 190 Ga. App. 419 (379 SE2d 192) (1989).

While the defendants raised the affirmative defense of contributory negligence, they had the burden of proof on summary judgment, just as they would at trial, to make out prima facie each essential ele-

ment. Garrett v. NationsBank, 228 Ga. App. 114, 116 (491 SE2d 158) (1997); see also Robinson v. Kroger Co., supra. Kelley’s testimony that she was looking where she was going but was unable to see the puddle of clear liquid in which she slipped and fell from a standing position, and that the puddle blended with the light-colored tile floor, raised material issues of fact for jury determination. Kelley’s testimony that she was careful to look for puddles as she continued through the store after her fall but still almost stepped in another puddle in the meat department demonstrates how difficult it was, in the exercise of ordinary care, to discover the presence of such clear liquid on the floor. See Bruno’s Food Stores v. Taylor, supra at 445.

Andrews, Chief Judge,

dissenting.

1. The trial court properly granted summary judgment in favor of Clean-Serve, Inc. and Donna Sendra d/b/a Universal Cleaning Service because Kelley failed to show any evidence of a connection between these defendants and the liquid in which she fell.

Clean-Serve and Sendra, as independent cleaning contractors, are not subject to the duty imposed in OCGA § 51-3-1 upon Piggly Wiggly as the owner or occupier of the premises. Greene v. Piedmont Janitorial Svcs., 220 Ga. App. 743, 744-745 (2) (470 SE2d 270) (1996). Accordingly, to support her claim that Clean-Serve and Sendra negligently caused her injuries, Kelley was required to come forward with some evidence showing that they were responsible for the puddle of clear liquid in which she slipped and fell.

Kelley acknowledged in deposition testimony that she slipped and fell in a puddle of liquid on the floor which was clear and invisible from a standing position. She testified that she did not know where the unidentified liquid came from and that it could have been spilled by a customer. She contended in opposition to summary judgment that a floor cleaning machine used by Clean-Serve and Sendra located two or three aisles away from the site of the puddle was evidence that the puddle was negligently left on the floor by the operators of the machine. There was testimony that, although the machine emitted and then vacuumed up water as it was operated, the water used by the machine contained a “soapy like substance.” Kelley testified that after she fell, she saw “dirty water” under the machine that was visible from a distance because it was “muddy” and much darker in color than the “clear” and invisible liquid in which she fell.

It is sheer speculation that the puddle of clear liquid in which Kelley slipped and fell had some connection with muddy, dirty and plainly visible water under a cleaning machine several aisles away or with soapy water that might have been emitted by the machine at some earlier time and somehow not recovered. Moreover, the only testimony presented was that the machine vacuumed up the water as part of its normal operation.

In a negligence case, a plaintiff must show that a defendant’s negligence caused the injury. “On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Citations and punctuation omitted.) Nelson v. Polk County Historical Society, 216 Ga. App. 756, 757 (2) (456 SE2d 93) (1995). It was not Clean-Serve’s and Sendra’s burden on summary judgment to refute the machine as the source of the water. To the contrary, the defendants, who do not have the burden of proof on this issue at trial, need only point to the absence of evidence in the record sufficient to support this claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). To hold otherwise would amount to making not only the proprietor, but his independent contractors as well, insurers of his customer’s safety. Wilkes v. Kroger Co., 221 Ga. App. 113 (470 SE2d 506) (1996). Because the evidence created only the mere possibility that Clean-Serve and Sendra caused Kelley’s injury, there was an absence of evidence sufficient to withstand a motion for a directed verdict at trial or to create a disputed issue of material fact on summary judgment. OCGA §§ 9-11-50 (a); 9-11-56 (c); Lau’s Corp., supra. Accordingly, the trial court did not err in granting summary judgment with respect to Clean-Serve and Sendra.

2. As to the claim against the proprietor based on the duty imposed under OCGA § 51-3-1, the trial court properly granted summary judgment in favor of Piggly Wiggly Southern, Inc. because there was an absence of evidence showing that Piggly Wiggly had actual or constructive knowledge of the puddle.

To recover, Kelley was required to show that Piggly Wiggly had actual or constructive,knowledge of the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980), modified by Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). Although Robinson modified the second prong of the Alterman Foods analysis dealing with proof of the plaintiff’s knowledge of the hazard, it left intact the first prong of Alterman Foods concerning the defendant’s knowledge. Since there is no evidence that Piggly Wiggly had actual knowledge of the liquid on the floor, this case hinges on whether Piggly Wiggly had constructive knowledge of the puddle.

Under Alterman Foods, the proprietor’s constructive knowledge may be established by evidence that an employee of the proprietor was in the immediate vicinity of the hazard and could easily have seen and removed it, or by evidence that the hazard had been on the floor for a period of time sufficient to have been discovered by a reasonable inspection of the premises. Id. at 622-623. As the majority states, there is no basis for concluding that an employee of Piggly Wiggly was near the puddle and could have easily seen and removed it. Accordingly, the issue in this case is whether there was evidence sufficient to show that Piggly Wiggly had constructive knowledge on the basis that the puddle had been on the floor prior to the slip and fall long enough that Piggly Wiggly would have discovered it by a reasonable inspection of the premises.

Kelley testified that she had no knowledge of how long the liquid had been on the floor. She saw no footprints or buggy tracks through the puddle, no drying of the edges, or any other indications as to how long the puddle had been on the floor. As set forth in Division 1, supra, there is no reasonable basis for concluding that the puddle was left on the floor for an extended length of time as a result of a prior floor cleaning operation.

Accordingly, Piggly Wiggly was entitled to summary judgment by “pointing] out the absence of any evidence in the record showing that the foreign substance had been on the premises for a period of time sufficient to have been discovered by a reasonable inspection of the premises.” Johnson v. Autozone, 219 Ga. App. 390, 394 (465 SE2d 463) (1995). “[Liability based on constructive knowledge requires proof of the length of time the dangerous condition was allowed to exist. Since the record affirmatively establishes that plaintiff cannot show that the spot was on the floor long enough for reasonable cleaning procedures to have eliminated it, [she] must suffer summary judgment in defendant’s favor.” (Citations and punctuation omitted.) Blake v. Kroger Co., 224 Ga. App. 140, 147 (480 SE2d 199) (1996) (Beasley, J., concurring specially); Banks v. Colonial Stores, 117 Ga. App. 581, 585 (161 SE2d 366) (1968).

Piggly Wiggly had no burden on summary judgment to pierce the pleadings by first showing that it complied with the duty imposed under OCGA § 51-3-1. To the contrary, under Lau’s Corp., Piggly Wiggly had no initial burden to produce evidence to negate Kelley’s constructive knowledge claim but could discharge its burden on summary judgment by showing there was no evidence in the record to support that claim. For Kelley to establish a triable issue, she had the burden of showing that the puddle was on the floor for a length of time sufficient for knowledge of it to be imputed to Piggly Wiggly before Piggly Wiggly had any obligation to show adherence to reasonable inspection procedures. Hartley v. Macon Bacon Tune, 227 Ga. App. 679, 685 (490 SE2d 403) (1997). In the absence of evidence showing how long the puddle had been on the floor, the trial court properly granted summary judgment in favor of Piggly Wiggly.

Decided December 19, 1997

Reconsideration denied February 11, 1998

Beauchamp & Associates, William Eckhardt, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Robert C. Semler, Albert M. Yates III, James R. Doyle II, Cannon, Meyer Von Bremen & Meier, Michael S. Meyer Von Bremen, Hodges, Erwin, Hedrick & Coleman, David W. Orlowski, for appellees.

I am authorized to state that Presiding Judge Birdsong joins in this dissent.

       Kelley contends for the first time on appeal that Piggly Wiggly had actual knowledge of the liquid. We will not consider arguments belatedly raised. Clark v. Chick-Fil-A, 214 Ga. App. 758, 759 (1) (449 SE2d 313) (1994). Moreover, there is no evidence of actual knowledge on the part of Piggly Wiggly, and Kelley’s citation to the record does not support this contention.


author: Andrews, Chief Judge.

text:
    A97A1901.
    MAREK INTERIOR SYSTEMS, INC. v. WHITE et al.
    (496 SE2d 749)
   Andrews, Chief Judge.

Marek Interior Systems, Inc. (Marek) sued Summit Commercial Contractors, Inc. (Summit) and its principals, Roger White and Tom Wiedeman, to recover on a promissory note to which the parties agreed in January 1993. As Summit was defunct, it appears Marek’s chief claim was that White and Wiedeman were personally liable for the amounts due because they had signed the note in their individual capacities. White and Wiedeman claimed they signed the note on behalf of Summit alone, and the jury returned a verdict for the defendants. In this appeal, Marek contends it was entitled to a directed verdict as to White’s and Wiedeman’s individual liability on the note. We find the ambiguous nature of the note created a jury question on this issue. However, we agree with Marek that White and Wiedeman had the burden of proving they signed in a representative capacity. Because the trial court failed to instruct the jury on this burden, we reverse and remand this case for a new trial.

In the body of the promissory note, “ROGER WHITE JR. and TOM WIEDEMAN, hereinafter called ‘Maker,’ promise[d] to pay” Marek approximately $69,000. The signature areas below the promissory language, however, read as follows:

At trial, White and Wiedeman testified they signed the contract believing they were doing so as representatives of the corporation, Summit, and told Marek officials they would not personally guarantee the debt. Marek’s witnesses testified they intended for White and Wiedeman to be personally liable on the note and expressed that intent to the defendants.

1. We first address an issue Marek raises in both its enumerations: whether the 1996 version of OCGA § 11-3-402, effective when this case was tried to a jury, applies instead of the prior version of OCGA § 11-3-403, which was in effect at the time the parties entered this agreement. Both statutes prescribe the conditions under which an authorized representative’s signature on a note may make the representative personally liable for the obligation.

Former OCGA § 11-3-403 (3) defined a “signature made in a representative capacity” as one bearing “the name of an organization preceded or followed by the name and office of an authorized individual. . . .” Former OCGA § 11-3-403 (2) (b) provided: “Except as otherwise established between the immediate parties, [the representative] is personally obligated if the instrument names the person represented but does not show that' the representative signed in a representative capacity. . . .”

The new statute, OCGA § 11-3-402 (b) (1996), provides that “if the form of the signature does not show unambiguously that the signature is made in a representative capacity . . ., the representative is liable on the instrument to a holder in due course that took the instrument without notice that the representative was not intended to be liable on the instrument. With respect to any other person, the representative is liable on the instrument unless the representative proves that the original parties did not intend the representative to be liable on the instrument.” (Emphasis supplied.) OCGA § 11-3-402 (b) (2) (1996).

Although Marek contends the trial court should have charged the emphasized language of the 1996 statute and argues the defendants had to prove the elements of that statute to avoid individual liability, we find the new statute inapplicable to this note entered in January 1993. A newly enacted law cannot impair the obligations of an existing contract. OCGA § 1-3-5. Thus, “[i]t has been held by the Supreme Court and this court that a statute is not to be construed retroactively in operation unless the language of the statute imperatively requires it.” (Citations and punctuation omitted; emphasis in original.) Johnson v. Hodge, 223 Ga. App. 227, 228 (1) (477 SE2d 385) (1996). Although nothing in the new statute indicates it is to be applied retroactively, Marek claims the new law applies because the legislature merely changed the procedure to be used when determining a signer’s individual liability, and that procedure was in effect at the time of trial. See Polito v. Holland, 258 Ga. 54, 55 (3) (365 SE2d 273) (1988). As the Supreme Court noted in Polito, however, “[sjubstantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations.” Id. We find the 1996 amendments created a substantive change in the law. When White and Wiedeman signed this note in 1993, former OCGA § 11-3-403 fixed liability for their signatures, and they are presumed to have contracted with reference to that statute. See Bentley v. Tsai, 198 Ga. App. 297, 298-299 (401 SE2d 316) (1991). The subsequent amendment does not affect that liability. See Carelli v. Hall, 926 P2d 756, 762 (Mont. 1996) and Serna v. Milanese, Inc., 643 S2d 36, 38 (Fla. App. 1994), finding the enactment of the new version of UCC § 3-402 created a substantive change in the law from the prior version of UCC § 3-403.

2. Applying former OCGA § 11-3-403 (2), a jury was properly allowed to determine whether White and Wiedeman were personally liable on this note. In Hartkopf v. Heinrich Ad. Berkemann, 200 Ga. App. 355, 356 (1) (408 SE2d 450) (1991), we held that “if either of the circumstances described in OCGA § 11-3-403 (2) (b) is present, there is an ambiguity on the face of the instrument and parol evidence is admissible on the issue of representative capacity.” Here, as in Hartkopf, a jury question arose as to representative capacity because the note is vague as to its “maker” and is signed “Summit Commercial Contractors, Inc., by” White and Wiedeman, without specifying their corporate capacity. Under the conflicting parol evidence, the jury was entitled to find the defendants signed in a representative capacity and were not personally obligated for the debt. See Yeomans v. Coleman &c. Drug Co., 167 Ga. App. 646, 648 (307 SE2d 121) (1983). As each party apparently communicated its contrary intent to the other, the principle contained in OCGA § 13-2-4 did not demand a verdict for Marek.

Decided January 30, 1998

Reconsideration denied February 11, 1998.

Millkey & Associates, John M. Millkey, for appellant.

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

3. We find a new trial required, however, because the court incorrectly charged the jury on the parties’ burden of proof. The key issue in this case was whether the defendants signed the note individually or on behalf of their corporation, Summit. Under former OCGA § 11-3-403 (2) (b), White and Wiedeman had the burden of proving they signed in a representative capacity. See Cooley v. Dickerson & Swift Entertainment, 177 Ga. App. 855, 856 (341 SE2d 504) (1986); Yeomans, supra. The trial court, however, charged the jury only that Marek had the burden of proving its case by a preponderance of the evidence. Marek’s revised request to charge on this issue was correctly refused because it also contained the inappropriate language of the 1996 version of OCGA § 11-3-402 (b); however, Marek did also except to the trial court’s failure to charge the defendant’s burden under the prior law. We need not decide whether Marek properly preserved this error, because charging the improper burden of proof is a “substantial error” which is “harmful as a matter of law” under OCGA § 5-5-24 (c). The trial court’s charge improperly shifted the burden of proof to Marek, resulting in “a gross injustice, such as to raise a question as to whether [Marek] has been deprived of a fair trial. [Cit.]” Hamrick v. Wood, 175 Ga. App. 67, 68 (1) (332 SE2d 367) (1985). “The erroneous charge went to the heart of [Marek’s] case and the verdict against [it] cannot stand.” Bloom v. Doe, 214 Ga. App. 90, 92 (1) (447 SE2d 72) (1994); see also Sorrells v. Miller, 218 Ga. App. 641, 642 (462 SE2d 793) (1995).

Judgment reversed.

Johnson and Blackburn, JJ, concur.


text:
    A97A2214.
    ROBERTS et al. v. BROWN et al.
    (496 SE2d 494)
    Decided January 30, 1998
    Reconsideration denied February 11, 1998.

      Franklin H. Thornton, for appellants.

      Nall, Miller, Owens, Hocutt & Howard, Michael D. Hostetter, for appellees.
   Andrews, Chief Judge.

Roberts and Core appeal from the dismissal of their 42 USC § 1983 claim against the city of West Point and three of its police officers, including Brown, resulting from a search claimed to be illegal.

The complaint was dismissed, based on the statute of limitation, pursuant to the defendants’ motion. For two reasons, we affirm.

1. First, plaintiffs filed no response to the motion below, and we do not consider arguments made here for the first time. Cornelius v. Wood, 223 Ga. App. 339, 341 (1) (477 SE2d 595) (1996).

2. Second, even if we were to consider the argument made, the issue has been determined adversely to plaintiffs. Doe #102 v. Dept. of Corrections, 268 Ga. 582, 583 (2) (492 SE2d 516) (1997); Day v. Brown, 207 Ga. App. 134, 135 (1) (427 SE2d 104) (1993).

3. Because there is no reasonable basis upon which appellants could conclude this appeal had merit, a penalty of $500 will be imposed by the trial court upon receipt of the remittitur, pursuant to Court of Appeals Rule 15 (b).

Judgment affirmed with direction.

Johnson and Blackburn, JJ, concur.


text:
    A97A2363.
    SCOTT v. THE STATE.
    (496 SE2d 527)
   Andrews, Chief Judge.

Danny Albert Scott was indicted for first degree (felony) vehicular homicide based on DUI (OCGA § 40-6-393 (a)) and for felony hit- and-run (OCGA § 40-6-270 (a) and (b)). The jury convicted him of hit- and-run but acquitted him of felony vehicular homicide and instead found him guilty of the lesser included offense of second degree (misdemeanor) vehicular homicide (OCGA § 40-6-393 (b)). Scott’s appeal challenges the sufficiency of the evidence supporting his convictions. We affirm.

We apply the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979), to determine whether a reasonable jury could have found Scott guilty beyond a reasonable doubt of these offenses. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; an appellate court determines evidence sufficiency and does not weigh the evidence or determine credibility. [Cit.] To support the verdict, circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. [Cit.]” Dworkin v. State, 210 Ga. App. 461, 463 (436 SE2d 665) (1993).

Properly construed, the evidence shows that Scott, a veteran FBI agent, went to a bar just after 6:00 p.m. and left just before midnight. While there he consumed at least portions of two beers served in thirty-two-ounce cups; one ten-ounce beer; one brandy liqueur; and one “shooter” containing alcohol. He left in his government-issued car. As he drove toward his home along an area of road which witnesses described as “flat and level” and “fairly straight,” he struck and killed the victim. The impact cracked his windshield. According to Scott, at that point he did not know whether he had hit someone or whether someone had thrown something at his window.

Instead of stopping or immediately calling for help on the radio or cellular phone in his car, Scott drove a mile to his home, called 911 twice between 12:06 and 12:11 a.m., and told the dispatcher to send someone to the area of the incident to check for an injured person. During the course of those calls, he said: “I was driving and I don’t know if I hit somebody or what. All of a sudden, my windshield was broken, and there was somebody along the side of the road. My God, I’m really scared about what happened. . . . I’m afraid I hurt somebody. . . . Please, send somebody over there so I know I didn’t do it.” When the dispatcher asked if he had been drinking, Scott denied it.

A police officer who arrived at the incident scene at 12:16 a.m. found the victim, mangled and barely alive, ten feet from the road. In the roadway he found the antenna from Scott’s car and the victim’s pocketknife; strewn across the high grass from the roadway to the victim’s body were the victim’s other personal effects. Upon examining Scott’s vehicle, investigators found the right front bumper, hood and right windshield frame damaged and the antenna broken, and discovered grass seeds caught in his right front bumper, spoiler and hubcap. At trial, Scott denied he veered from the roadway. An accident reconstruction expert, however, testified that based on his examination of the scene, he believed Scott’s vehicle had partially veered off the roadway and had struck the victim as he walked along the shoulder of the road. A medical examiner testified the victim’s injuries were caused by an impact to his skull consistent with being struck by an automobile.

An officer met Scott in front of his house shortly after midnight and found the defendant unsteady on his feet, smelling of alcohol, with slurred speech and bloodshot eyes. Scott got into a struggle with this officer, who testified based on his experience that Scott was intoxicated to the point it was less safe for him to drive. Scott told a different officer, who found him smelling “like a brewery,” that he had consumed no alcohol; however, after receiving the implied consent warnings, Scott refused to be tested.

1. The evidence supports Scott’s conviction for the lesser included offense of misdemeanor vehicular homicide. First, Scott requested the charge on this lesser included offense. Therefore, the rule applies that “if the evidence supports a verdict of guilty in the more serious offense, and if there is slight evidence of the lesser included offense, a defendant who requests a charge on and is convicted of the lesser offense may not successfully urge the general grounds on appeal.” State v. Clay, 249 Ga. 250, 251 (290 SE2d 84) (1982); accord Watson v. State, 206 Ga. App. 95, 96 (1) (424 SE2d 360) (1992). Here the evidence would have supported a finding that Scott committed the greater offense when he, “without malice aforethought, caus[ed] the death of another person through the violation of” the DUI laws. OCGA § 40-6-393 (a). Either while driving in the roadway or while veering off the roadway into the grass, Scott struck and killed the victim. At trial he admitted that he consumed alcohol before the collision, and officers shortly thereafter found him staggering, smelling strongly of alcohol, with bloodshot eyes and slurred speech. Moreover, he refused the breath test. See OCGA § 40-6-392 (d). These facts, along with the officer’s opinion, would have allowed the jury to find him guilty of driving while under the influence of alcohol to the extent he was less safe to drive. See OCGA § 40-6-391 (a) (1); Shults v. State, 195 Ga. App. 525, 528 (4) (394 SE2d 573) (1990). The circumstances further allowed the jury to determine that Scott’s intoxication caused him to leave the road and strike the victim or caused his failure to notice and avoid the victim in the roadway. See Dobson v. State, 222 Ga. App. 331, 332 (474 SE2d 630) (1996).

Moreover, the evidence on the lesser included offense was more than “slight” and was itself sufficient for the jury to find Scott guilty beyond a reasonable doubt. A conviction for misdemeanor vehicular homicide required a showing that Scott “caus[ed] the death of another person, without an intention to do so, by violating [certain traffic laws].” OCGA § 40-6-393 (b). One such predicate violation was charged to the jury: OCGA § 40-6-93, which states that “every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway. . . .” That statute “establishes that motorists on the highways must exercise ordinary care to discover and avoid persons in the roadway. . . .” Fountain v. Thompson, 252 Ga. 256, 257 (312 SE2d 788) (1984). Even if the victim was walking in the roadway when Scott struck him, as Scott argues, conflicting evidence regarding the weather, visibility and other conditions entitled the jury to determine Scott failed to exercise ordinary care to avoid the victim. See id.; Dworkin, supra at 463 (criminal negligence may be proved by circumstantial evidence).

Decided January 26, 1998

Reconsideration denied February 11, 1998.

Dupree, Johnson & Poole, Hylton B. Dupree, Jr., A. Gregory Poole, for appellant.

Thomas J. Charron, District Attorney, Charles M. Norman, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

2. The evidence was also sufficient to support the jury’s finding that after this accident, “the proximate cause of [the victim’s] death,” Scott “knowingly fail[ed]” to “immediately stop [his] vehicle at the scene of the accident or . . . stop as close thereto as possible and forthwith return to the scene of the accident and . . . Mender to [the victim] reasonable assistance. . . .” OCGA § 40-6-270 (a) and (b). Although Scott argues that he was unsure whether he had hit someone and that he acted within the spirit of the law by immediately driving to his home and calling 911 for assistance, his knowledge and his intent in leaving the scene were questions for the jury. See Dworkin, supra; Norwood v. State, 136 Ga. App. 756, 759 (4) (222 SE2d 83) (1975).

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A97A1700.
    CHEESMAN v. THE STATE.
    (497 SE2d 40)
   Ruffin, Judge.

A Rockdale County jury found Jerry Cheesman guilty of possession of more than one ounce of marijuana and possession of marijuana with the intent to distribute. Cheesman filed this pro se appeal, asserting, inter alia, insufficiency of the evidence, ineffective assistance of counsel, improper commentary by the State during closing argument and errors by the trial court in the jury charges and throughout the trial. We affirm.

Viewed in a light most favorable to support the verdict, the evidence shows that in April 1995 Agent Chris Cannon of the Walton County Sheriff’s Department’s East Metro Drug Enforcement Team was advised by a confidential informant that a man traveling from Ohio was interested in purchasing 100 pounds of marijuana. On April 11, 1995, the informant notified Cannon that the individual, Cheesman, was in Conyers, Georgia. The informant set up a meeting between Cannon and Cheesman for April 12, 1995. The officer had the meeting with Cheesman recorded. During the meeting, Cheesman took Cannon to Cheesman’s car to show Cannon the money he had to make the purchase. Cheesman agreed to purchase 15 pounds of marijuana and arranged to complete the transaction later that afternoon outside a video store. Cannon thereafter obtained the marijuana from the Georgia Bureau of Investigation, which was packaged in four one-pound bags and one eleven-pound bag. Cannon placed the marijuana in a duffel bag and put the duffel bag in the back compartment of his undercover vehicle, a Ford Bronco.

Cheesman was waiting in his car at the video store when Cannon arrived at the designated time and pulled his car into an adjacent parking space next to Cheesman. After briefly speaking with one another, Cannon and Cheesman exited their cars. Cannon went to the back of his Bronco and lifted the hatch. Cheesman met him at the back of the Bronco with a bag containing the money he had earlier shown Cannon. After placing the money in the back of the Bronco, Cheesman removed and inspected each of the bags of marijuana. When Cheesman finished his inspection of the bags and began to place the bags back in the duffel bag, Cannon gave an arrest signal to backup officers who came forward and arrested Cheesman. Police seized from Cheesman $13,000 in cash along with a set of scales.

1. We find that there is sufficient evidence in the record for a rational trier of fact to find Cheesman guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “Possession of marijuana may be actual or constructive, and the evidence here would authorize a jury to find that [Cheesman], at the very least, was in constructive possession of the marijuana, since he exercised dominion or control over it. [Cit.]” Hadden v. State, 181 Ga. App. 628 (1) (353 SE2d 532) (1987). Furthermore, there was uncontroverted testimony that the quantity of drugs involved in this case is generally used for distribution and not for personal use.

2. Cheesman asserts that certain exculpatory evidence was withheld by the State. However, Cheesman has not cited any evidence of record showing exculpatory evidence was withheld from him or that he timely objected. As this is a court for the correction of errors, we will not consider any issues raised on appeal that were not raised and preserved in the trial court. See Bennett v. State, 187 Ga. App. 234, 235 (369 SE2d 552) (1988).

3. Additionally, Cheesman has waived other enumerated errors by failing to object at trial.

(a) Cheesman argues on appeal that the rule of sequestration was violated because Agent Cannon was allowed to remain in the courtroom throughout the trial. Cheesman has not shown that he objected at trial. Bennett, supra.

(b) Cheesman also maintains that it was error to admit the recording of his initial conversation with Agent Cannon as well as a videotape made of the drug transaction at the video store. Again, however, Cheesman has failed to show that he objected to the admission of this evidence. See Chesser v. State, 228 Ga. App. 164, 165 (1) (a) (491 SE2d 213) (1997).

(c) Cheesman asserts that the trial court should have questioned jurors regarding the effect a newspaper article regarding his case had on their objectivity. Cheesman has not shown that he requested such questioning or that he raised the issue at trial. See Bennett, supra.

(d) In reading the indictment to the jury, the trial judge mistakenly said that Cheesman was charged with possession of more than one ounce of marijuana on April 27, 1995, when the actual date was April 12, 1995. Although Cheesman asserts this as error, there is no evidence that he objected at trial. See Lawson v. State, 224 Ga. App. 645, 646 (2) (481 SE2d 856) (1997).

As none of the issues were raised below and timely preserved, there is nothing for us to review on appeal. Bennett, supra; Lawson, supra; Chesser, supra.

4. Cheesman asserts that his counsel should have been allowed to cross-examine Agent Cannon using hypothetical questions about Cheesman’s actions during the transaction and arrest as well as Agent Cannon’s understanding of the term “possession.”

During cross-examination, Cheesman’s counsel questioned Cannon regarding Cheesman’s actions immediately prior to the arrest. Cannon explained that he gave the arrest signal after Cheesman placed the bags of marijuana back into the larger bag because he did not want Cheesman to have the opportunity to take the contraband back to Cheesman’s car. Defense counsel then asked Cannon “[w]hat if at that point in time [prior to the arrest] Mr. Cheesman looked at you and said, no dice, I want no part of this?” The trial court disallowed the question as it was a hypothetical question not based on facts in evidence. We agree with the trial court, for “[a] hypothetical question to a nonexpert witness on cross examination must be based on facts in evidence. [Cits.]” Scarver v. State, 130 Ga. App. 297, 298 (3) (202 SE2d 850) (1973). Here, there was no evidence that Cheesman attempted to back out of the transaction, and thus the hypothetical question was improper.

Additionally, the trial court did not err in preventing Cheesman from questioning Cannon about Cannon’s own definition of “possession” since that was a question of law to be addressed by the court. “ ‘To allow testimony of this kind, would be to allow a witness to testify what the law is. Witnesses must testify to facts, and the court is responsible for the law.’ [Cit.]” Taylor v. State, 204 Ga. App. 489 (3) (419 SE2d 745) (1992).

5. Cheesman also maintains that the trial court should have granted his motion for mistrial because the State made allegedly improper comments during closing argument. The transcript shows that the State pointed out in closing argument that while Cheesman stated that he came-to Georgia from Ohio to sell cars, he was also in the business of purchasing and distributing drugs. Specifically, the State said Cheesman “could come down here, he could swap cars, he could pay cash, he could get his stash of marijuana and go back to Ohio to distribute it. You could tell from the tape that this is not the first time that he has done business like this.” Cheesman argued that these comments impermissibly placed his character into evidence and were an attempt to place in the minds of the jury the fact that Cheesman had a past history of buying, selling and distributing drugs when in fact he had only two prior misdemeanor drug offenses.

The comments in this case were not impermissible. “ ‘The prosecution is permitted to draw deductions from the evidence and these deductions may be illogical, unreasonable or even absurd so long as there is evidence from which such deductions can be made.’ [Cit.]” Clark v. State, 146 Ga. App. 697 (3) (247 SE2d 221) (1978); sée also Garcia v. State, 267 Ga. 257, 259 (8) (477 SE2d 112) (1996). Agent Cannon’s testimony, along with the video and audiotape, provided sufficient evidence of Cheesman’s demeanor, actions and conversation with Agent Cannon from which the State could conclude and argue that Cheesman was not inexperienced in such transactions.

6. Cheesman asserts that the trial court erred in failing to charge the jury on abandonment and entrapment. The record shows, however, that Cheesman did not submit a written charge on entrapment or even pursue this affirmative defense at trial. “This court has held that where there has been no written request to charge, failure to give the charge is not error. [Cits.]” Arnold v. State, 163 Ga. App. 94, 96 (4) (292 SE2d 891) (1982).

As for the charge on abandonment, there was no evidence presented to support the defense or the charge. “ ‘The responsibility of producing evidence of an affirmative defense and the burden of persuasion by proof beyond a reasonable doubt are two distinct and separate concepts. The first is placed squarely on the defendant unless the state’s evidence raised the issue.’ [Cits.]” Givens v. State, 211 Ga. App. 290 (1) (439 SE2d 22) (1993), overruled on other grounds, 264 Ga. 522 (448 SE2d 687) (1994). See also OCGA § 16-1-3 (1) (“ ‘[ajffirmative defense’ means . . . unless the state’s evidence raises the issue invoking the alleged defense, the defendant must present evidence thereon to raise the issue”). Cheesman has not shown that either he or the State raised the issue as to abandonment of the crimes.

7. Cheesman next asserts that his trial counsel was ineffective in failing to investigate and prepare for trial, as well as in failing to raise certain objections during the trial and to present defenses of abandonment and entrapment. We disagree.

“[T]he constitutional right to assistance of counsel insures not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. When inadequate representation is alleged, the critical factual inquiry ordinarily relates to whether the defendant had á defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; [and] whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. The decisions on which witnesses to call, whether and how to conduct cross examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation , with his client.” (Citations, punctuation and emphasis omitted.) Austin v. Carter, 248 Ga. 775, 779 (2) (c) (285 SE2d 542) (1982).

(a) As for preparation for trial, trial counsel testified at the motion for new trial hearing that he conversed frequently with Cheesman prior to trial regarding trial strategy, defenses and discovery issues.

(b) Regarding the defenses of abandonment and entrapment, the attorney stated that he thought it unwise to pursue the entrapment defense because Cheesman would then have to testify and it was possible his past criminal record would be presented to the jury. He further testified that Cheesman acquiesced in the decision to not pursue the entrapment defense. Defense counsel and Cheesman also agreed not to pursue the abandonment defense. Rather, they chose to pursue the defense that Cheesman never possessed the drugs.

(c) The attorney did not object to the admission of the video and audiotape because he had reviewed the tapes and in his opinion believed they were admissible.

Accordingly, in summary, we find that trial counsel’s actions amounted to trial strategy and trial tactics, not ineffective assistance of counsel. Austin, supra. See Smith v. State, 207 Ga. App. 290, 291 (2) (428 SE2d 95) (1993) (“ ‘(a)s to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel.’ ”); Allen v. State, 199 Ga. App. 365, 367 (6) (405 SE2d 94) (1991).

Decided February 11, 1998.

Jerry Cheesman, pro se.

Cheryl F. Custer, District Attorney, Nancy N. Bills, Assistant District Attorney, for appellee.

8. Finally, Cheesman claims that the trial court erred in failing to appoint him appellate counsel. However, the record shows that the trial court appointed Cheesman appellate counsel, but that Cheesman later moved, pro se, to dismiss the attorney. The trial court conducted a hearing during which Cheesman knowingly and voluntarily dismissed appellate counsel and chose to pursue his appeal pro se. “ ‘We are satisfied that the record shows that [Cheesman] was [made] aware of his right to counsel and of the dangers of proceeding without counsel. This satisfies the standard laid down in Clarke v. Zant, 247 Ga. 194, 196 ((275 SE2d 49) (1981)). [CitJ [Cits.]” Cook v. State, 227 Ga. App. 674, 676 (490 SE2d 181) (1997).

Judgment affirmed.

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


author: Smith, Judge.

text:
    A97A1827.
    McDILDA v. BOARD OF COMMISSIONERS OF BULLOCH COUNTY et al.
    (497 SE2d 25)
   Smith, Judge.

John McDilda appeals from two rulings entered in the Superior Court of Evans County in a case brought against him by the Boards of Commissioners of Evans County and Bulloch County to enjoin him from placing obstacles across a road that runs through his property. McDilda challenges the trial court’s ruling that the road is a public road and its ruling that the location of the road is as depicted on a survey presented by the counties. This appeal was filed in the Supreme Court and transferred to this Court upon the Supreme Court’s finding that the grant of equitable relief is ancillary to the two issues of law presented in the rulings. We find that the trial court correctly determined both issues, and we affirm.

1. McDilda contends the trial court erred in finding that neither Bulloch County nor Evans County had officially abandoned the road. He maintains that the portion of the road that crosses his land is private property for two reasons: First, neither county had maintained the road since 1981 and it had become practically impassable. Second, he asserts that in 1990, Bulloch County took official action pursuant to OCGA § 32-7-2 (b) (1) to abandon the road, and that Evans County did so in 1993. McDilda argues that as a result of these official actions, neither county was authorized to reopen the road to the public without using its power of eminent domain and paying him just compensation.

(a) Since the formation of Evans County in 1914, a portion of the road in issue has formed the boundary line between Evans and Bulloch Counties. McDilda bought his property in 1992. Since approximately 1990, when a prior landowner built a pond dam, water has backed up onto the road where it crosses McDilda’s property. Because of the water, the condition of the road had deteriorated and neither county had maintained it. The county would not be authorized to abandon the road because of disuse when that disuse was occasioned by the county’s failure to comply with its duty to maintain and repair it. Cherokee County v. McBride, 262 Ga. 460, 461 (421 SE2d 530) (1992).

At times, “road closed” signs and barricades were placed on this portion of the road at the direction of Bulloch County to protect the public. A Bulloch County official testified, however, that these signs were temporary and that it was not unusual for the county to place signs and barricades on roads that washed out. The signs and barricades were never in place for long and were left there only until the county decided how to address the problems on the road. Despite the placement of such signs and barricades, the road continued to be used, at least by farm equipment. Even McDilda acknowledged that the road continued to be traveled. It is therefore clear from the record that the road did not become private property because it was impassable and was abandoned by virtue of the two counties’ failure to maintain it.

(b) OCGA § 32-7-2 (b) (1) provides: “When it is determined that a section of the county road system has for any reason ceased to be used by the public to the extent that no substantial public purpose is served by it, the county, by certification recorded in its minutes, accompanied by a plat or sketch, and, after notice to property owners located thereon, after notice of such determination is published in the newspaper in which the sheriff’s advertisements for the county are published once a week for a period of two weeks, and after a public hearing on such issue, may declare that section of the county road system abandoned. Thereafter, that section of road shall no longer be part of the county road system and the rights of the public in and to the section of road as a public road shall cease.”

That portion of the statute requiring publication and a public hearing was added by amendment in 1994. Ga. L. 1994, p. 294, § 1. In 1990, when McDilda alleges Bulloch County took official action to abandon the road, and in 1993, when he alleges such action was taken by Evans County, those two requirements were not in effect. Nevertheless, before its 1994 amendment, the statute still required that certain formalities be complied with in order for a county to abandon a road officially: a plat or sketch must have been attached to the minutes and notification provided to all property owners. The record shows not only that no official action was taken to close the road in issue, but that these required formalities were not satisfied.

In addition, the Chairman of the Bulloch County Board of Commissioners testified that since he had become a commissioner in 1990, no official action had been taken to close the road. Indeed, the minutes of the Bulloch County Board of Commissioners reflect several discussions and motions concerning the road, but they also reflect that no official action was taken to abandon it. The Board received a request to close the road in November 1990, discussed closing the road, and approved a motion to begin the process subject to legal requirements, but that process was never completed. At the very next meeting any action was tabled pending contact with Evans County representatives.

No further action was taken until July 20,1993, when the Chairman. informed the Board that the Evans County Attorney had requested that the two counties take joint action to close the road. He advised that the same request was received three years earlier but no action had been taken. The Chairman informed the Board that he would prefer that Evans County take action first, and that if Evans County took action the matter would be on the next meeting agenda. In November 1993, the matter was again discussed without official action being taken. In December 1993, the matter was again brought up for consideration by the Board. After discussing a petition protesting closing the road, the commission voted to table any further action.

Several months later, McDilda appeared before the Board to request that the road either be closed or maintained. After some discussion, it was decided that the county engineer would survey the road and present an estimated cost for maintaining it. This was done, but no action resulted. In August 1994, the Bulloch County Engineer reported to the Board that Evans County had voted to keep the road open, and he planned to meet with Evans County officials to discuss its maintenance. In April 1995, the Board was informed that McDilda had dug a ditch and put up a fence to prevent the public from traveling around the pond, and the Board was informed that this legal action had. been filed. It is apparent from the minutes that the Board did not follow its usual practice, when officially closing a road, of presenting a “County Road Abandonment Certification”; it is likewise apparent that the Board took no official action to close or abandon the road.

The minutes of the Evans County Board of Commissioners reflect similarly that no official action was taken by the Board to close the road. In 1990, the Evans County Board of Commissioners discussed the desire of certain of its citizens to have the road closed, as well as the decision of Evans County and Bulloch County to advertise in the newspaper to see if any objections existed. The issue was discussed again in October 1993. After discussion, a motion was passed stating that the county attorney would do the “legal work” on the road and that the commissioners would make the policy decision.

It is true that notwithstanding the limited nature of the motion approved by the full Commission, on October 11, 1993, W. V. (Billy) Moore, Chairman of the Evans County Board of Commissioners, executed a resolution that the road be closed. But Moore exceeded his authority in doing so. The resolution, in fact, acknowledges that the Board had merely “discussed” closing the road.

Since the commission as a body has the authority to decide matters “establishing, altering, or abolishing of all roads ... in conformity to law,” OCGA § 36-5-22.1 (a) (3), and no local law had been enacted delegating this authority to the Commission Chairman acting alone, see OCGA § 36-5-22.1 (b), Moore was without authority to execute a resolution closing the road. “Powers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of an unconferred power.” OCGA § 45-6-5. Our courts have adhered to this principle “for over a century. [Cits.]” City of Atlanta v. Black, 265 Ga. 425, 426 (457 SE2d 551) (1995). The citizens of Evans County cannot be estopped, therefore, by the action of the Commission Chairman in executing an unauthorized resolution.

Because the road was not abandoned in practice and neither county took proper official action to abandon it, the trial court did not err in ruling that the road remained a public road.

2. In its. order finding that the road was a public road, the trial court ordered the counties to submit to the court a survey of the road in order for the court to determine its exact location. The order provided “[t]hat should [McDilda] disagree with the location of said roadway, that he shall thereafter file objections thereto which will create a question of fact for a later determination and/or compensation should the trier of fact so find that any portion of [McDilda’s] property has been so taken over and above the necessary width which shall require compensation.”

The counties submitted to the court the survey performed on October 12, 1995, by Timothy Eason, a registered Georgia surveyor. The court then ordered McDilda to submit his objections to the survey within 30 days, stating that in the absence of an objection, the Eason survey would be determined to be the correct location of that portion of the road. Within the time allotted, McDilda filed a document captioned “Objection to Submission of Survey Pursuant to Order of Court.” Several months later, the counties filed their motion for summary judgment on this issue. Attached to the motion was an affidavit from the surveyor outlining the work he did, the information he considered in performing the survey, and stating his opinion, based upon personal knowledge, that the survey accurately sets forth the actual use of the road. Also attached were affidavits from an Evans County Commissioner and the Evans County Road Department Foreman, in which they both stated they were familiar with the road, including its location and use, had reviewed with the surveyor information regarding the location and actual use of the road, had reviewed the survey and plat prepared by the surveyor, and had found the survey to be an accurate reflection of the road’s actual use and location.

McDilda’s response to the motion for summary judgment alleged various objections to the methods used by the surveyor, including his failure to rely on old surveys. McDilda attached his own affidavit and those of adjoining property owners and neighbors, in which each states that, in his opinion, the survey performed by Eason does not accurately reflect the old road that was traveled by the public, but that Eason merely made a plat of the graded roadbed by staking off nine feet from the centerline of the road.

The hearing originally set on the motion was continued to give McDilda time to properly respond to the motion. In a document captioned “Respondent’s Supplemental Response to Petitioner’s Motion for Summary Judgment,” McDilda recites that he had employed the services of a registered surveyor to research old surveys and records regarding the road, that the surveyor, Joe Davis, prepared a plat showing the old road, and that Davis’s affidavit and the plat of survey prepared by him were attached to his response. The record, however, fails to contain either Davis’s new survey or his affidavit. Instead, it contains only a drawing of the road made in 1986 by Davis. That drawing was not properly authenticated, and it contains the disclaimer that it is not a boundary survey.

It was McDilda’s burden, as the respondent on the motion for summary judgment, to come forward with evidence showing that the counties were not entitled to judgment as a matter of law regarding the location of the road. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). McDilda having presented no competent evidence showing a location of the road different from that survey prepared by Eason at the direction of the counties, the trial court did not err in granting the counties’ motion for summary judgment on this issue.

Decided February 11, 1998.

Dubberly & McGovern, Joseph D. McGovern, Holloway & Associates, Strickland Holloway, Jr., for appellant.

Franklin, Taulbee, Rushing, Bunce & Brogdon, James B. Franklin, Wilson, Brock & Irby, Kenneth D. Jones, Barbara J. Nelson, for appellees.

Judgment affirmed.

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

       Nor can they be estopped by the unauthorized actions of the then-county attorney in soliciting and obtaining from McDilda a fee for the “legal work” involved in closing the road. The fee was unauthorized, and although the county attorney stated in his letter to McDilda that the road would be closed for the sole benefit of McDilda, such a closing of a public road for the benefit of a private individual is impermissible. McIntosh County v. Fisher, 242 Ga. 66, 67-68 (247 SE2d 863) (1978).


text:
    A97A2034.
    JOHNSON v. THE STATE.
    (496 SE2d 785)
   Smith, Judge.

Willie Gene Johnson was indicted on charges of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), and obstruction of or hindering a law enforcement officer, OCGA § 16-10-24. A jury found Johnson guilty on the cocaine charge but acquitted him on the charge of obstruction. This appeal follows the denial of his motion for a new trial.

The evidence of record shows that on March 11, 1996, Agent Jesse Hambrick, a narcotics investigator assigned to the Coweta Judicial Circuit Drug Task Force, received details of a confidential informant’s tip pertaining to Johnson that originally had been given to his fellow investigator, Sergeant Tony Johnson. Hambrick testified that he had arranged with the informant to call Sergeant Johnson should the informant be unable to reach Hambrick. According to Hambrick, the informant had told Sergeant Johnson that Willie Gene Johnson (known as Peek-A-Boo) was in possession of a quantity of crack cocaine stored in a small pill bottle; that Johnson was driving a bluish-green 1980 Dodge van with tag number TJK 346; and that Johnson was currently parked in “The Crack,” an area of Villa Rica known for its drug activity. Although the record is unclear as to how the informant received this information about Johnson, Ham-brick testified that this same informant had provided reliable information in the past that had led to arrests and/or seizures of drugs on at least three separate occasions during the past six months.

After receiving the details of the tip from Sergeant Johnson, Hambrick dispatched several police officers to the area described by the informant, but they were unable to locate the van. About three to four hours after learning the details of the tip, Hambrick himself then went to the area and saw a van fitting the description sitting in the middle of the street. He saw Johnson, whom he recognized from a previous drug investigation, as well as another passenger inside the van. After Johnson exited the van upon Hambrick’s request, the officer patted him down and found no contraband. When Johnson refused to consent to a search of the van, Hambrick told him he would be detained until he could get a search warrant or have a canine perform a free-air search. Johnson was told that although he was not under arrest, he still was not free to leave or approach his vehicle until the investigation was concluded.

A canine unit was called to the scene. While the officers were awaiting its arrival and after Johnson had been told he was being detained, Johnson ran toward his van, opened the passenger’s side door, reached in, and tried to grab a brown paper bag in which the cocaine was later found. These acts and a subsequent struggle with several officers led to Johnson’s arrest for obstruction of an investigation.

The canine unit arrived approximately fifteen minutes after Hambrick’s request. A dog performed an air search around the van and indicated on the driver’s side door that narcotics were inside the van. The officers then placed the dog inside the van, where in Ham-brick’s words, the dog began “indicating all over the inside of the vehicle.” The van was then searched, and eighty-five hits of crack cocaine were found packaged in three separate containers, including a small pill bottle, a plastic bag, and a plastic container. The hits of cocaine found in the container were individually packaged in tiny plastic ziplock bags.

1. In his first enumeration of error, Johnson argues the trial court erred by denying his motion to suppress evidence because the officers did not have reasonable suspicion to detain him or probable cause to conduct a warrantless search of his vehicle.

In determining the validity of a search that is deemed valid after a suppression hearing, the trial evidence is also considered. O’Donnell v. State, 200 Ga. App. 829, 830 (1) (409 SE2d 579) (1991). In addition, “ ‘[a] trial court’s order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.’ [Cit.]” Staley v. State, 224 Ga. App. 806 (1) (482 SE2d 459) (1997).

Our first step is to consider whether the officers were authorized to conduct the initial investigatory questioning of Johnson based upon the tip they received from the confidential informant earlier that day. The initial stop of Johnson can be described as a Terry-type stop (see Goodman v. State, 210 Ga. App. 369, 370 (436 SE2d 85) (1993)), and the standard for such an investigatory stop has been set forth repeatedly. “Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968)[.] Investigative stops of vehicles are analogous to Terry-stops and are invalid if based upon only unparticularized suspicion or ‘hunch[.]’ An investigatory stop must be justified by some objective manifestationihat the person stopped is, or is about to be, engaged in criminal activity. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination.” (Citations and punctuation omitted.) Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993). “ ‘[A] founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. (Cit.)’ [Cit.]” State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991).

The application of these legal principles to the facts of this case leads us to conclude that Hambrick had a reasonable suspicion sufficient to authorize the brief investigatory stop of Johnson. The Coweta Drug Task Force had received information from a reliable informant that Johnson was in possession of a quantity of cocaine stored in a small pill bottle. The Task Force also had been given the make, model and tag number of the vehicle Johnson was driving along with the location where the van could be found. Further, Ham-brick, who was familiar with Johnson from a previous drug investigation, personally observed Johnson just a few hours later inside a van meeting the description provided by the informant and in the location provided by the informant. Assuming without deciding that the information received from this informant was insufficient to establish probable cause to search Johnson’s vehicle, we find that the adequately corroborated report of the reliable informant would, at a minimum, provide an articulable suspicion, justifying an investigative stop and brief detention of Johnson. See Goodman v. State, supra at 370; Jones v. State, 195 Ga. App. 868, 869 (2) (395 SE2d 69) (1990); West v. State, 194 Ga. App. 620, 621 (391 SE2d 673) (1990).

Hambrick’s receipt of the informant’s tip through a police intermediary does not affect the outcome of this case. “Information obtained by police officers engaged in an investigation may be used by another officer common to that investigation as a reliable basis for the establishment of probable cause. In cases where an informant supplies the information to one officer who then relays it to a fellow officer, the question has revolved around the reliability of the informant. Where the informant is found to be reliable, probable cause for the non-receiving officer to search exists.” (Citations and punctuation omitted.) Beck v. State, 216 Ga. App. 532, 534 (455 SE2d 110) (1995). We also find the delay between the time when the tip was received by Sergeant Johnson and the time when Johnson’s van was located by Hambrick to be insignificant under the circumstances of this case. See generally Rider v. State, 222 Ga. App. 602, 603 (475 SE2d 655) (1996); Pittman v. State, 208 Ga. App. 211, 218 (7) (430 SE2d 141) (1993).

Having established that Hambrick had an articulable suspicion that Johnson was in possession of drugs in his vehicle, we also find that he was authorized to use a canine to perform a free-air search around the vehicle to see whether the dog detected evidence of narcotics. See State of Ga. v. Montford, 217 Ga. App. 339, 340-341 (1) (457 SE2d 229) (1995) (use of drug detection dog to sniff exterior of vehicle is not unreasonable search within meaning of U. S. or Georgia Constitution). “When the dog alerted for drugs, that factor, combined with the factors prompting the use of the drug dog in the first instance, established probable cause for [Hambrick] to believe [Johnson] was in possession of illegal drugs within his vehicle, authorizing the subsequent search of its interior.” (Citation omitted.) Id. at 341. Compare Simmons v. State, 223 Ga. App. 781, 782 (2) (479 SE2d 123) (1996) (no reasonable suspicion of drug activity to support narcotics detection dog’s “walk around” defendant’s vehicle when defendant initially stopped for speeding rather than suspicion of drug activity).

We reject Johnson’s argument that his detention for some fifteen minutes exceeded the period of time allowable for a Terry-type stop. See Goodman v. State, supra at 371 (detention of defendant in back seat of patrol car for ten to fifteen minutes held within duration of Terry seizure). See also State v. Corbett, 205 Ga. App. 554, 556 (423 SE2d 38) (1992).

We also note that Johnson’s refusal to stand back from his vehicle, his lunge toward his vehicle, and his subsequent arrest for obstruction of an officer provided additional grounds to justify a warrantless search of his vehicle. See, e.g., Anthony v. State, 197 Ga. App. 297, 298 (1) (398 SE2d 580) (1990). Accordingly, the trial court did not err in denying Johnson’s motion to suppress evidence.

2. In his second enumeration of error, Johnson challenges the sufficiency of the evidence to authorize a finding of intent to distribute. We disagree. “To support a conviction for possession of cocaine with intent to distribute, the State is required to prove more than mere possession.” (Citations and punctuation omitted.) Williams v. State, 199 Ga. App. 544 (405 SE2d 539) (1991). In this case, the evidence shows that eighty-five individual hits of crack cocaine were found in Johnson’s vehicle, many of which were packaged in tiny ziplock plastic bags. This evidence, along with Hambrick’s testimony that this manner of packaging was commonly associated with the sale or distribution of such contraband, was sufficient to authorize the jury’s finding, beyond a reasonable doubt, that Johnson committed the offense of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Williams v. State, supra at 545.

Decided February 11, 1998.

Word & Simmons, Gerald P. Word, for appellant.

Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A97A2038.
    MORETON ROLLESTON, JR. LIVING TRUST v. GLYNN COUNTY BOARD OF TAX ASSESSORS.
    (497 SE2d 274)
    Decided February 11, 1998.

      Moreton Rolleston, Jr., for appellant.

      Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Gregory T. Carter, W. Gary Moore, for appellee.
   Eldridge, Judge.

In Glynn County Bd. of Tax Assessors v. Morton Rolleston, Jr. Living Trust (Case No. S98C0078 (order), decided January 5, 1998), the Supreme Court affirmed the judgment of this Court’s opinion in Morton Rolleston, Jr. Living Trust v. Glynn County Bd. of Tax Assessors, 228 Ga. App. 371 (491 SE2d 812) (1997), with direction that Division 2 of our opinion be vacated since the trial court had not addressed those issues. Therefore, we vacate Division 2 of our earlier opinion, adopt the opinion of the Supreme Court as our own, reverse the trial court’s dismissal for lack of jurisdiction, and remand this case to the trial court for proceedings not inconsistent with Division 1 of this Court’s previous opinion in this case.

Judgment reversed and remanded for further determination.

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