text:
    A01A0351.
    SOUTHWIRE COMPANY, NSA, LTD. et al. v. AMERICAN ARBITRATION ASSOCIATION et al.
    (545 SE2d 681)
   Phipps, Judge.

Southwire Company, NSA, Ltd. and ICG Kaiser Engineers, Inc. (referred to collectively as Southwire) filed a “motion and application” in the Superior Court of Carroll County. Southwire named Pamas & Company, Inc. (Pamas) and the American Arbitration Association (AAA) as respondents. Southwire sought to vacate an arbitration award in favor of Pamas and to disqualify the arbitration panel. The AAA filed no responsive pleadings, but Pamas answered and filed a cross-motion to confirm the award. Southwire appeals an order granting Pamas’s motion and denying Southwire’s. The question is whether the court erred in refusing to vacate the award under OCGA § 9-9-13 (b). We find no error and affirm.

Southwire awarded a $7,637,918 contract to Pamas. Pamas, whose principal place of business is in Georgia, became obligated to fabricate and deliver certain goods for a construction project in Kentucky. Upon final payment of monies due under the contract, Southwire withheld $508,204 as a set-off against sums allegedly owed it because of Pamas’s incomplete performance of the contract. As a result, Pamas initiated an arbitration proceeding against Southwire with the AAA, seeking a total of $623,414.80 in damages. Southwire counterclaimed for $646,156.68 in damages. After conducting a preliminary hearing, the arbitration panel awarded Pamas $253,809 in damages as “interim relief.”

1. Southwire contends that the superior court erred in determining that this arbitration dispute is governed by the Federal Arbitration Act (FAA) rather than the Georgia Arbitration Code (GAC).

Under Volt Information Sciences v. Bd. of Trustees &c., as interpreted in North Augusta Assoc. Ltd. Partnership v. 1815 Exchange, Southwire correctly argues that even though the transaction in this case involves interstate commerce, Georgia law applies by operation of a choice of law clause in the parties’ contract stating that the laws of the State of Georgia shall govern “the validity, interpretation, and enforcement of” the contract. This does not, however, mandate a reversal of the judgment. It simply means that we review the trial court’s confirmation of the arbitration award under the standards of the GAC as set forth in OCGA § 9-9-13 (b), rather than under the comparable standards of the FAA as found in 9 USC § 10 (a).

2. Under OCGA § 9-9-13 (b), an arbitration award shall be vacated on the application of a party if the court finds that the rights of that party were prejudiced by:

(1) Corruption, fraud, or misconduct in procuring the award; (2) Partiality of an arbitrator appointed as a neutral; (3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made; or (4) A failure to follow the procedure of this part, unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection.

OCGA § 9-9-13 (b) sets forth the exclusive grounds upon which an arbitration award may be vacated. “[T]he power of a court to vacate an arbitration award has been severely limited in order not to frustrate the legislative purpose of avoiding litigation by resort to arbitration. [Cit.]”

Insofar as OCGA § 9-9-13 (b) (3) is concerned, we have held in Sweatt v. Intl. Dev. Corp and prior cases that “ ‘overstepping’ means that the arbitrator addressed issues not properly before him. [Cit.]” But this court in Sweatt, supra, and the federal appellate court in Pacific Reinsurance Mgmt. Corp. v. Ohio Reinsurance Corp. also recognized that the arbitrator may not ignore the plain language of the parties’ contract. Nonetheless, “courts must not decide the rightness or wrongness of the arbitrators’ contract interpretation, only whether [their] decision ‘draws its essence’ from the contract.”

OCGA § 9-9-13 (b) (4) mandates a vacation of the arbitration award if the arbitrators failed to follow the procedures of the GAC absent a waiver by the complaining party. OCGA § 9-9-8 (a) requires the arbitrators to convene a hearing, and OCGA § 9-9-8 (b) states that “[t]he parties are entitled to be heard; to present pleadings, documents, testimony, and other matters; and to cross-examine witnesses.”

3. Southwire claims that the arbitrators failed to follow required procedure by granting interim relief without a proper evidentiary hearing and overstepped their authority by disregarding a clause in the parties’ contract.

The preliminary hearing conducted by the arbitrators before issuing the interim award was not transcribed. Although the notice of the hearing did state that its purpose was to hear arguments of the parties regarding their requests for interim relief, it also stated that the AAA would provide appropriate forms if either party needed subpoenas, and the record shows without dispute that documentary evidence was presented and considered at the hearing. Although Southwire complains of the arbitrators’ failure to hear testimony of witnesses at the hearing, Southwire has not shown that it sought to present such evidence or objected to any evidentiary limitations imposed by the arbitrators. Under the circumstances, Southwire has not established that the arbitrators failed to follow the procedure of the GAC in the absence of a waiver.

Southwire argues that the arbitrators’ grant of interim relief | contravened a clause in the parties’ contract stating that monies due from Southwire would be subject to deduction for set-off or counterclaim arising out of any contract between the parties. Pamas, on the other hand, maintains that Southwire could not enforce this clause because it refused to comply with another provision of the contract requiring it to set forth in writing its reasons for withholding the money. Because the contract provides arguable support for Pamas’s argument, no ground for vacation of the award appears here.

4. Southwire argues that the material allegations of its pleadings were admitted because of the AAA’s failure to file an answer and its resulting default.

For a number of reasons, the AAA’s default does not benefit Southwire here. To begin with, a default admits only the well-pleaded factual allegations of a complaint and not conclusions of law, such as assertions that an arbitration award should be set aside on the statutory grounds. Moreover, an admission predicated upon the AAA’s default would not be operative against Pamas. In addition, we held in McKown v. American Arbitration Assn. that the arbitrator is neither a necessary nor proper party in a proceeding to enjoin arbitration. As recognized in New England Cleaning Svcs. v. American Arbitration Assn., the arbitrator has immunity from suit unless there is a clear absence of jurisdiction. In this case, the arbitrators’ authority to hear the dispute is unquestioned.

5. Southwire contends that the arbitration award resulted from the partiality of the arbitrators.

Southwire bases this contention on the fact that prior to the preliminary hearing one or more of the arbitrators expressed a disinclination to enforce the set-off clause because of Pamas’s claim that it would go bankrupt without immediate receipt of the funds held by Southwire.

The award, however, on its face does not evince any partiality. I And in the absence of a transcript of the arbitration hearing, we cannot hold that the comments by the arbitrator or arbitrators demanded a finding that Southwire was prejudiced by partiality of the arbitrators. The trial court’s ruling on this issue must be | affirmed, as it is not clearly erroneous.

|

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided February 22, 2001.

Tisinger, Tisinger, Vance & Greer, J Thomas Vance, Smith, Gambrell & Russell, James H. Bratton, Jr., Dena Klopfenstein, Justin S. Scott, for appellants.

Budd, Lamer, Gross & Rosenbaum, Gilbert M. Malm, for appellees.

       9 USC § 1 et seq.

       OCGA § 9-9-1 et seq.

       489 U. S. 468 (109 SC 103 LE2d 488) (1989).

       220 Ga. App. 790, 791 (1) (469 SE2d 759) (1996).

       In order to vacate an arbitration award under 9 USC § 10 (a), the movant must prove that at least one of the following four conditions exists: (1) the award was procured by corruption, fraud, or undue means; (2) there was evident partiality or corruption in the arbitrators, or either of them; (3) that the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced; or (4) the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

        Akintobi v. Phoenix Fire Restoration Co., 236 Ga. App. 760, 761 (513 SE2d 507) (1999).

       (Emphasis in original.) Haddon v. Shaheen & Co., 231 Ga. App. 596, 597 (1) (499 SE2d 693) (1998).

       242 Ga. App. 753 (531 SE2d 192) (2000).

       Id. at 755 (1).

       935 F2d 1019,1024 (9th Cir. 1991).

       Id.

       See OCGA § 9-11-55 (a); Cohran v. Carlin, 254 Ga. 580, 585 (3) (331 SE2d 523) (1985).

        Hospitality Ventures &c. v. American Arbitration Assn., 755 S2d 159, 160 (Fla. App. 2000).

        Kubler v. Goerg, 197 Ga. App. 667, 671 (4) (399 SE2d 229) (1990).

       213 Ga. App. 197 (444 SE2d 114) (1994).

       199 F3d 542 (9th Cir. 1999).

       Id. at 545-546.

        Hilliard v. J. C. Bradford & Co., 229 Ga. App. 336, 341 (2) (494 SE2d 38) (1997).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A01A0429.
    ASKEW v. THE STATE.
    (546 SE2d 15)
   Phipps, Judge.

Michael Askew, an inmate at a state prison, was charged with knowingly and wilfully obstructing prison guards Taylor and Lee in the lawful discharge of their official duties. The jury found Askew guilty on both counts. He appeals.

1. He first challenges the sufficiency of the evidence to support the verdict on the ground that the testimony of the prison guards was not credible. The sufficiency of the evidence is not, however, subject to challenge on this ground.

On appeal from a criminal conviction, . . . the evidence is viewed in the light most favorable to the verdict. An appellate court determines only if a rational trier of fact could find all the essential elements of the crime charged beyond a reasonable doubt; the appellate court does not weigh the evidence or determine witness credibility. Conflicts in witness testimony are matters of credibility for the jury to resolve. And as long as there is some evidence, even though contradicted, to support each fact necessary for the state’s case, the verdict will be upheld.

It is undisputed that at the time of the incident in this case, Askew was being held in the medical unit of the prison awaiting transfer to another facility, that he objected to the transfer, and that Officers Taylor and Lee entered his cell to escort him out. Officers Taylor, Lee, and Evans testified that, without provocation, Askew pushed Officer Taylor and bit Officer Lee after they came into his cell. Lee and his treating nurse testified that as a result of the bite, ¡ he was given HIV and hepatitis tests. Although Askew testified that the officers assaulted him without provocation and that he did not push or bite anyone, the State’s evidence authorized the jury to find Askew guilty of the crimes charged beyond a reasonable doubt.

Decided February 22, 2001.

McGee & McGee, James B. McGee III, for appellant.

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.

2. Askew next claims that the trial court erred in not allowing him to speak for himself at sentencing. The sentencing transcript belies this assertion.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       OCGA § 16-10-24 (b).

       (Footnotes omitted.) Martin v. State, 246 Ga. App. 708, 709 (1) (541 SE2d 692) (2000).


author: Mikell, Judge.

text:
    A01A0471.
    TEMP-N-AROUND MEDICAL RESOURCES, INC. et al. v. AVONDALE JOINT VENTURE.
    (546 SE2d 23)
   Mikell, Judge.

Avondale Joint Venture filed separate dispossessory warrants against Angela White and her corporation, Temp-N-Around Medical Resources, Inc. (“Temp”). White was personally served, both in her individual capacity and as Temp’s chief executive officer. White filed a single answer on behalf of herself and the corporation. At trial, judgment was entered against White only. Avondale was granted a writ of possession as well as a money judgment for unpaid rent, late fees and attorney fees. Temp and White appeal. We affirm.

1. Appellants first assert that the trial court erred in allowing the trial to proceed against the corporation because it was not represented by counsel. Appellants argue that Eckles v. Atlanta Technology Group, 267 Ga. 801, 803-806 (2) (485 SE2d 22) (1997), requires the trial judge in a court of record to inform corporate officers that a corporation must be represented by an attorney licensed in Georgia. Eckles did not foist this responsibility upon the trial judge. Nor did it create a corporate right to counsel. It simply held that only a licensed attorney is authorized to represent a corporation in a court of record. Id. at 805 (2).

We note, however, that the problem the lack of notice of this requirement creates for small business owners was envisioned by Judge Beasley in M & M Mobile Homes &c. v. Haralson, 233 Ga. App. 749 (505 SE2d 249) (1998):

Decided February 22, 2001.

Kim L. Wallace, E. Duane Jones, for appellants.

Wiles & Wiles, Noel J. Cotney, Jr., Susann D. Estroff, for appellee.

This case points up a notification problem that may exist post-Eckles, if the summons form used when [the corporate officer] was served for [the corporation] is still in vogue. . . . It does not tell a corporate defendant that only a licensed attorney can file an answer on its behalf and represent it in the litigation. The myriad of small corporations out in the marketplace would not know that not even an officer could respond, and that it could not represent itself pro se in a court of law.

Id. at 751-752 (Beasley, J., concurring specially).

In any event, the judgment in this case was entered against White alone, so there is no evidence that the trial proceeded against the corporation. Finally, since Temp is a corporation and can be represented in a court of record only by an attorney, the answer filed by White, insofar as it purported to answer on behalf of the corporation, was defective. Peachtree Plastics v. Verhine, 242 Ga. App. 21, 22 (528 SE2d 837) (2000). Therefore, at the time of trial, Temp was in default, which cannot be opened in a dispossessory action. OCGA § 44-7-53 (a); Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816 (403 SE2d 97) (1991).

2. Appellants next argue that the judgment against White in her individual capacity cannot stand because White executed the lease in her capacity as corporate CEO. However, any factual issues surrounding the capacity in which White signed the lease should have been addressed to the trial court, and appellants have failed to show that they raised this contention in the trial court. Accordingly, this enumeration of error is waived. “A party alleging error carries the burden of showing it affirmatively by the record, and when that burden is not met, the judgment is assumed to be correct and will be affirmed.” Boles v. Lee, 270 Ga. 454, 455 (1) (511 SE2d 177) (1999).

Judgment affirmed.

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

       In addition, White was ordered to pay rent into the registry of the court pending the outcome of this appeal.


author: Eldridge, Judge.

text:
    A01A0528.
    HUFF v. THE STATE.
    (546 SE2d 24)
   Eldridge, Judge.

Defendant, Charles Huff, was convicted by a jury for the offense of first degree forgery. Huff appeals from the denial of his motion for new trial. In his sole enumeration of error, Huff alleges that the trial court erred in admitting similar transaction evidence.

Before evidence of an independent offense or act may be admitted into evidence, the State must make three affirmative showings. First, the State must demonstrate that the evidence is not brought forth to raise an improper reference to character but, rather, for an appropriate purpose deemed an exception to the general rule prohibiting this type of evidence; second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; and third, the State must demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) (“Williams”). At a hearing before the trial regarding the prior incident, the trial court found that the State had made the three affirmative showings required by Williams.

On appeal, Huff concedes that the second prong of Williams was met in that there was sufficient evidence that he committed the former offense. Huff, however, argues that the first and third prongs of Williams were not met by the State, mandating reversal of his conviction. We disagree and affirm.

The law does not require that a similar transaction crime be identical to the crime charged. There can be substantial variation of circumstances where there exists a logical connection between crimes which are essentially dissimilar. The issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. The State may only have the burden of showing a logical connection between crimes which are essentially dissimilar. When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity.

(Citation and punctuation omitted; emphasis in original.) Maxey v. State, 239 Ga. App. 638, 640-641 (521 SE2d 673) (1999).

In this case, the trial court allowed the evidence to show defendant’s bent of mind, his intent, and his course of conduct. This is a proper purpose and satisfies the first prong of Williams. See Jones v. State, 243 Ga. App. 374, 377 (533 SE2d 437) (2000).

Further, there was sufficient similarity between the present case and the prior independent offense to authorize the trial court to allow the prior offense into evidence as a similar transaction. In the present case, the evidence shows that Jennifer Wilson went to the Dollar General Store where her wallet was stolen. It contained one blank check. The next morning, when Wilson was in the bank closing out her checking account, Huff attempted to cash the stolen check which was made out to him in the amount of $2,700. The bottom of the check contained the notation “landscaping.” Both Wilson and the bank teller testified that Huff stated that he had received the check for landscaping work he had done a month or so ago and that he had been waiting a long time to be paid. Wilson testified that Huff stated that he had received the check from a man named “Sims.” When Wilson asked Huff why he took a check from Sims, when the check had the names “Scott and Jennifer Wilson” printed on it, Huff had no explanation other than Sims had paid him for the landscaping work he had previously done.

At trial, Huff testified that he was having his house remodeled and that the day before he presented the stolen check at the bank, Sims, who had been working on his house, and an unnamed woman gave him the check as a refund for uncompleted work. Huff was to cash the check, keep $1,000, and give Sims the remaining $1,700. Huff further testified that Sims promised to make additional payments to him for the uncompleted work for which Huff had already paid. The next day, Sims and the woman picked up Huff and drove him to the bank. Sims and the woman waited outside while Huff went into the bank. When the police arrived at the bank, Sims and the unnamed woman drove off. Huff further testified that he never stated to Wilson and the bank teller that he received the check for work he had completed and that he never noticed that the check had the word “landscaping” written on the bottom.

The similar transaction which was introduced by the State occurred in July 1994. Officer Dale Parrish, who worked in the property crime unit of the Clarke County Police Department during that time, testified that he was in charge of the investigation of a burglary of a business called “Christian Remodeling” which occurred “between the 11th and the 12th of July of 1994.” On July 12, 1994, Officer Parrish received a call from Christian Remodeling that one of their stolen checks had been cashed. The amount of $183 and the name “Charles Henry Huff” had been stamped by machine onto the stolen check. Initially, Officer Parrish questioned Huff on July 14, 1994, at the police station. Huff stated that, as he was walking to the Golden Pantry, he was stopped by two strangers and asked if he wanted to make some money by helping them straighten some mattresses that were in the back of a yellow truck. Huff further stated that he was paid $183 for about 30 minutes of work and that, when he received the check, it was already filled out with his name and the amount. Officer Parrish questioned Huff again on August 1, 1994. This time, Huff stated that Vertís Ballard had given him the check. Huff further stated that, when he received the check, the amount was already printed on the check and that his girlfriend wrote his name on it. Huff stated that Ballard told him he could have all but $50 of the money if he would cash the check, which he did. Huff pled guilty to the offense.

Decided February 22, 2001.

Elizabeth M. Grant, for appellant.

Harry N. Gordon, District Attorney, Michael E. Eberhardt, Assistant District Attorney, for appellee.

“On appeal, we focus on the similarities, rather than the differences between the similar transaction evidence and [the] present charges.” Quezada v. State, 236 Ga. App. 718, 721 (512 SE2d 401) (1999). The decision to admit prior similar transaction evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998). In both the present case and the similar transaction, Huff received a stolen check from an individual whose name was different from the name imprinted upon the check. In both incidents, Huff cashed or attempted to cash the check. In both incidents, Huff was to return a portion of the money to the person who had given him the check, and when confronted with the information that the check was stolen, Huff stated that he had received the check for work he had performed. Accordingly, as there was compliance with Williams, supra at 642, and Stephens v. State, 261 Ga. 467, 468-469 (405 SE2d 483) (1991), the trial court did not abuse its discretion in admitting the similar transaction evidence.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.


text:
    A01A0603.
    TAYLOR v. THE STATE.
    (546 SE2d 20)
   Phipps, Judge.

Based on allegations that he struck Joyce McClendon and Terry Roberson with a metal pipe, John Paul Taylor was indicted for two counts of aggravated assault. The jury found Taylor guilty of aggravated assault on McClendon but not on Roberson. His motion for new trial was denied, and he appeals. He charges the trial court with error and his trial counsel with ineffective assistance, based primarily on counsel’s failure to request and the court’s failure to give a jury instruction on the affirmative defense of accident. We find neither error by the court nor ineffective assistance by counsel. We, therefore, affirm.

The evidence showed that Taylor and McClendon were neighbors and that Roberson was a visitor at McClendon’s residence on the day in question. Jacqueline Peck, another neighbor, had come onto Taylor’s property without permission. McClendon’s son and Roberson proceeded onto the property after they observed Taylor approach Peck with a metal pipe and yell at her. State’s witnesses testified that when McClendon intervened in the ensuing affray by attempting to remove her son from the scene, Taylor hit her on the back with the pipe and, when she fell to the ground, he hit her again in the face. Various witnesses, including Taylor, testified that Roberson attacked him, following which he hit her hand with the pipe. McClendon’s son then hit Taylor with a brick.

On direct examination, Taylor sought to explain McClendon’s injuries by testifying that she came toward him with a tire tool as he was being assaulted by her son and Roberson, that he had used the pipe in an attempt to ward her off, and that he had not intended to hurt her. Contrary to testimony given by the State’s witnesses, Taylor denied swinging the pipe at McClendon. On cross-examination, he testified that she “just rammed her face into it.”

1. Taylor first claims that the court erred in failing to charge the jury sua sponte on the affirmative defense of accident and that counsel’s failure to request a charge on accident constituted ineffective assistance.

Because Taylor apprised counsel that he inflicted the injuries on the alleged victims in self-defense, counsel filed a request that the court instruct the jury on the affirmative defense of justification. At the hearing on Taylor’s motion for new trial, counsel related that he had advised Taylor not to take the stand, that he was shocked when Taylor testified that McClendon accidentally ran into the pipe, and that up to that point he thought they had a good chance of winning the case due to confusion by the witnesses as to what actually had occurred. Counsel realized that he could request jury instructions on both justification and accident, but decided not to do so because juries tend to disbelieve either defense when both are asserted together and because of the strength of the evidence inconsistent with an accident defense. Under the circumstances, counsel’s decision was not unreasonable and does not equate with ineffective assistance.

Because a trial court does not err in failing to charge on an affirmative defense in the absence of a request unless it is the defendant’s sole defense, and because the evidence supported a defense of justification as to both aggravated assault charges, the trial court did not err in failing to charge the jury on accident.

2. Taylor also charges his trial counsel with ineffective assistance in failing to challenge the legality of the arrest warrants and the indictment, in failing to object to testimony by McClendon and the investigating officer, and in failing to obtain certain medical records.

Because the legality of Taylor’s arrest does not appear to have any relevance to the issues tried, counsel committed no error in failing to challenge the legality of the warrants.

Taylor complains that counsel should have challenged the legality of the indictment because the witness testifying before the grand jury did not have personal knowledge of the facts. But “once the grand jury returns an indictment, the state is not required to make a further showing of probable cause, and the evidence reviewed by the grand jury in finding a true bill is not subject to inquiry.”

Although Taylor charges his trial attorney with error in not objecting to testimony by the investigating officer that he appeared intoxicated at the time of his arrest, a review of the transcript shows the officer gave no such testimony.

Taylor argues that his attorney should have objected to testimony concerning letters he wrote to Peck, on the ground that the police obtained one of the letters because McClendon took it from Peck’s mailbox. Because Taylor has not shown that this provided grounds for excluding Peck’s testimony concerning the letter, no error by counsel appears.

Taylor claims his attorney should have impeached the investigating officer’s testimony with a conflicting affidavit previously given by the officer and that counsel should have introduced medical records which would have shown that the victims were injured by a brick rather than a pipe. However, neither the affidavit nor the medical records appear in the record. Thus, we cannot review these claims.

In sum, the trial court’s finding that Taylor did not carry his burden of showing that trial counsel’s performance was deficient and prejudicial to the defense is not clearly erroneous.

Decided February 22, 2001.

Orin L. Alexis, for appellant.

Spencer Lawton, Jr., District Attorney, Christine S. Barker, Assistant District Attorney, for appellee.

3. Finally, Taylor complains of the trial court’s failure to charge the jury on the lesser included offense of simple battery.

Because a trial court does not err in failing to give an instruction on a lesser included offense in the absence of a written request, and because Taylor personally informed the court at the beginning of the trial that he did not want a jury charge on lesser included offenses, we find no error by the court.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       See generally Adkinson v. State, 245 Ga. App. 178,179-180 (3) (537 SE2d 474) (2000).

        Carlton v. State, 224 Ga. App. 315, 318-319 (3) (480 SE2d 336) (1997).

       Cf. Turner v. State, 262 Ga. 359, 360 (2) (b) (418 SE2d 52) (1992); compare Metts v. State, 210 Ga. App. 197, 198 (2) (435 SE2d 525) (1993).

       Compare Pitts v. State, 209 Ga. App. 47, 49 (2) (432 SE2d 643) (1993).

        Fitzgerald v. State, 166 Ga. App. 307, 308 (2) (304 SE2d 114) (1983).

       See generally Young v. State, 245 Ga. App. 684, 685 (2) (538 SE2d 760) (2000).

        Godson v. State, 264 Ga. 280, 281 (2) (444 SE2d 305) (1994).


text:
    A01A0685.
    COUCH v. THE STATE.
    (545 SE2d 685)
   Phipps, Judge.

Grady Michael Couch was convicted of two counts of molesting his stepdaughter’s friend. He appeals, claiming that the trial court abused its discretion in admitting similar crimes evidence, that the evidence was not sufficient to support his conviction, and that the court imposed an excessive sentence. We find no merit in Couch’s claims and affirm.

The 13-year-old victim, A. L., testified that the morning after she had spent the night with Couch’s stepdaughter, J. M. (also 13 years old), Couch appeared in the bathroom where she was taking a shower, opened the shower curtain, fondled her breasts, and penetrated her vagina with his finger. She made an immediate outcry of the event to J. M.

The trial court admitted the following similar transaction evidence. A police officer testified that when J. M. was approximately six years old, she gave a taped interview to him and a Department of Family & Children Services representative in which she recounted instances when Couch had improperly touched her vaginal area. A psychologist who interviewed J. M. when she was thirteen years old testified that she had accused Couch of molesting her when she was approximately six years old and that she said he continued to make inappropriate, sexually suggestive comments. Couch’s former daughter-in-law testified that she had observed Couch improperly touch J. M.’s breasts when J. M. was approximately 12 years old and that J. M. had confided to her that the situation had improved after DFACS was alerted to the incidents.

1. Couch challenges the sufficiency of the evidence based on his testimony that he touched A. L.’s breasts and vagina under the mistaken belief that she was his wife. According to Couch, the bathroom was dark, he thought his wife was in the shower, and he stopped immediately when he realized otherwise. A. L., however, testified that she and Couch were clearly visible to one another while he was touching her, that he continued touching her after she told him to stop, and that she did not look or sound like his wife.

These conflicts in the witnesses’ testimony were for the jury to resolve. Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find Couch guilty beyond a reasonable doubt of child molestation.

2. Couch challenges the trial court’s admission of the similar transaction evidence because J. M., who was removed from her mother and stepfather’s home and is now living with her grandmother, testified that she did not remember whether he had molested her and did not recall that she had accused him of molesting her. He also claims that there was insufficient similarity between the independent acts and the crimes charged to warrant admission of the extrinsic evidence.

Before similar transaction evidence may be admitted, the State must show, among other things, that there is sufficient evidence to establish that the accused committed the independent offense or act and that there is a sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter.

Notwithstanding J. M.’s testimony, the trial court was authorized to find that the testimony of other State’s witnesses provided sufficient evidence that Couch had committed the acts of molestation upon her. “ ‘The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible.’ [Cits.]”

3. Couch’s sentence did not constitute cruel and unusual punishment.

A person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years. Upon such first conviction of the offense of child molestation, the judge may probate the sentence; and such probation may be upon the special condition that the defendant undergo a mandatory period of counseling administered by a licensed psychiatrist or a licensed psychologist.

Couch was sentenced concurrently on the two counts, to ten years in prison followed by five years on probation, with the probation being conditioned on Couch undergoing psychological counseling.

A presumption arises when a defendant is sentenced within the statutory limits set by the legislature that such sentence does not violate the Eighth Amendment’s guarantee against cruel and unusual punishment. Such presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience. [Cit.]

The sentence in this case was within statutory limits and in no way shocks the conscience.

4. Couch’s remaining claims of error have been abandoned as they are not supported by reference to the record or transcript. Nonetheless, we have reviewed them based on the State’s record citations and find no merit in them. First, the court was authorized to find that the jury venire was not tainted by an improper comment of | a prospective juror. Second, after Couch complained of the psychologist’s failure to comply with his notice to produce, the court ordered the requested material to be provided to the defense before the wit- j ness testified, and it in no way appears from the record that a contin-1 uance was demanded.

Judgment affirmed.

Smith, P. J, and Barnes, J., concur.

Decided February 22, 2001.

George H. Weldon, for appellant.

William T. McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.

        Bales v. State, 232 Ga. App. 761, 763 (1) (503 SE2d 607) (1998).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

        Willett v. State, 223 Ga. App. 866, 872 (3) (a) (479 SE2d 132) (1996).

       OCGA § 16-6-4 (b).

        Burgos v. State, 233 Ga. App. 897, 902, n. 2 (505 SE2d 543) (1998).

       See Court of Appeals Rule 27 (c) (3) (i).


text:
    A01A0745.
    In the Interest of A. M., a child.
    (545 SE2d 688)
   Phipps, Judge.

A delinquency petition charged 12-year-old A. M. with committing aggravated battery and aggravated assault by repeatedly stabbing a classmate. A. M. also was charged with carrying a weapon on school property in violation of OCGA § 16-11-127.1. The juvenile court adjudicated A. M. delinquent for carrying a weapon on school property and committing aggravated battery and sentenced her to restrictive custody under OCGA § 15-11-63. A. M. contends that the court erred in denying her motion for directed verdict as to both offenses, because the evidence established that she was acting in self-defense and was insufficient to show that she possessed a “weapon” as defined in OCGA § 16-11-127.1 (a) (2). A. M. also charges the court with error in imposing a sentence of restrictive custody. We find no merit in any of these claims of error and affirm.

1. As to A. M.’s claim of self-defense,

a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.
“Where a juvenile is charged with an offense which for an adult would be a crime, the standard of proof in the lower court is "beyond a reasonable doubt.’ [Cits.] On appeal we thus apply the rule of Jackson v. Virginia, which is whether a rational trier of fact could reasonably have found from the evidence presented proof that the juvenile committed the offense beyond a reasonable doubt. [Cit.] . . .”

Testimony given by the victim and by eyewitnesses, together with A. M.’s own statement to police, showed that A. M. and the victim decided to fight one afternoon after school. The victim thought it was going to be a fistfight. A. M., however, told friends that she had a knife and was going to use it to kill the victim. The fight began when the victim approached A. M. from behind and struck her on the side of her face. A. M. then took off her jacket and attacked the victim with a knife. She cut the victim on her face, shoulder, head, neck, and back more than 15 times. After an adult intervened and broke up the fight, A. M. continued to attempt to attack the victim and threatened to kill her. The victim’s wounds required 59 stitches and numerous plastic surgeries to repair disfiguring injuries. Injuries inflicted upon A. M. consisted of one cut to her hand.

This evidence authorized a rational trier of fact to conclude beyond a reasonable doubt that in stabbing the victim, A. M. exceeded the bounds of self-defense and had committed aggravated battery.

2. As to A. M.’s contention that she did not possess a weapon within the meaning of OCGA § 16-11-127.1 (a) (2), this statute defines “weapon” to include any “straight-edge razor” or “razor blade.”

Testimony given by State’s witnesses authorized the court to find that the instrument A. M. wielded against the victim was a retractable razor blade encased in the handle of a box cutter. The court was authorized to find that this weapon met the definition set forth in OCGA § 16-11-127.1 (a) (2).

3. A. M. was properly sentenced to restrictive custody.
OCGA § 15-11-63 mandates imposition of a sentence of restrictive custody if the offense which the juvenile has committed is a “designated felony act” as defined in subsection (a) and if certain elements set forth in subsection (c) or (d) necessitate such sentence.

Under OCGA § 15-11-63 (a) (2) (B) (iv), the carrying or possession of a weapon in violation of OCGA § 16-11-127.1 (b) is a designated felony act if done by any child. The evidence established that A. M. committed the designated felony act of carrying a weapon on school property.

Decided February 22, 2001.

Thomas F. Jones, John A. Pickens, for appellant.

Robert E. Keller, District Attorney, R. Christopher Montgomery, Jr., Mira H. Emmett, Assistant District Attorneys, for appellee.

In determining whether restrictive custody is required, OCGA § 15-11-63 (c) states that the court shall consider:

(1) The needs and best interests of the child; (2) The record and background of the child; (3) The nature and circumstances of the offense, including whether any injury involved was inflicted by the child or another participant; (4) The need for protection of the community; and (5) The age and physical condition of the victim.

Here, the juvenile court determined in its order of disposition that although A. M. does not have a prior record, the community is in need of protection from her behavior and that she requires restrictive custody due to the nature and severity of the offense, along with the fact that she appeared to feel justified in what she had done and showed no remorse for her actions. The court did not abuse its discretion in concluding that A. M. should be placed in restrictive custody.

Judgment affirmed.

Smith, P. J, and Barnes, J., concur.

       OCGA § 16-3-21 (a).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        In the Interest of M. J. F., 191 Ga. App. 792 (1) (383 SE2d 173) (1989).

       See generally Hall v. State, 235 Ga. App. 44-45 (1) (508 SE2d 703) (1998).

       See In the Interest of L. N. M., 222 Ga. App. 589 (474 SE2d 762) (1996); compare In the | Interest of R. B. W., 269 Ga. 452 (500 SE2d 573) (1998).

        In the Interest of A. T., 246 Ga. App. 30, 31 (539 SE2d 540) (2000).

       Compare OCGA § 15-11-63 (a) (2) (B) (ii), which makes an aggravated battery a desig-| nated felony act “if done by a child 13 or more years of age.”

       See In the Interest of A. Q. H., 239 Ga. App. 865 (522 SE2d 264) (1999).


text:
    A01A0762.
    HUBERT v. FALCONER et al.
    (545 SE2d 680)
   Phipps, Judge.

Dorothy Hubert sought medical treatment from Dr. Walter Falconer. Based on his review of diagnostic studies performed by other health care providers, Dr. Falconer removed her left kidney. After the pathology report showed removal of the kidney to have been unnecessary, Hubert sued Dr. Falconer and his group practice for medical malpractice. Hubert also asserted a battery claim, alleging that Dr. Falconer obtained her consent through ambivalent disclosures in the informed consent form. Hubert appeals the judgment entered on a jury verdict in Dr. Falconer’s favor, as well as the order denying her motion for new trial. We find no error and affirm.

1. Hubert first complains of the court’s refusal to give a corrective jury instruction.

Decided February 22, 2001.

Kirschner & Venker, Andrew R. Kirschner, Thomas J. Venker, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Earl W. Gunn, for appellees.

Relying on Harris v. Tatum, Hubert asked the trial court to charge the jury that “as there generally exists an inequality of bargaining position as between a medical patient and ... [a] physician, any ambiguity in the consent document should be construed as against [the physician].” The court instructed the jury to resolve any ambiguity in the consent document against the doctor “if” there existed an inequality of bargaining position.

Because an inequality of bargaining position between patient and doctor does not invariably exist, the charge as given substantially covered the principles in the request. The court did not err in refusing to give a corrective charge.

2. Hubert’s next complaint arises primarily from the admission of hearsay testimony relating to the diagnosis of her condition by health care providers other than Dr. Falconer.

This testimony was admitted to explain Hubert’s conduct in seeking treatment from Dr. Falconer. In response to a motion in limine brought by Hubert, the court prohibited the defense from using the hearsay statements to prove the truth of the matters asserted. Hubert contends that the court erred in allowing defense counsel to violate its ruling during closing argument. A review of the transcript shows that defense counsel was challenging the accuracy of comments by Hubert’s attorney concerning the substance of these statements and arguing that, if the out-of-court declarants had made the statements attributed to them by opposing counsel, Hubert would have called them to testify. We find no violation of the court’s ruling on the motion in limine.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       216 Ga. App. 607 (455 SE2d 124) (1995).

       Id. at 609 (1) (b).

       See Wadkins v. Smallwood, 243 Ga. App. 134, 140 (5) (a) (530 SE2d 498) (2000).


author: Miller, Judge.

text:
    A00A2057.
    HAMILTON v. KENTUCKY FRIED CHICKEN OF VALDOSTA, INC.
    (545 SE2d 375)
   Miller, Judge.

Walking in the pitch dark of a restaurant’s unlit parking lot and distracted by cars using the drive-through lane that she was crossing, Nyla Hamilton tripped and fell on a raised curb that she had earlier traversed in the daylight. The restaurant’s approaches were configured so that patrons parking on the drive-through side of the restaurant would walk across the drive-through lane. She sued the restaurant owner (Kentucky Fried Chicken of Valdosta, Inc.) for personal injury damages. The owner successfully moved for summary judgment on the ground that Hamilton, having an hour earlier traversed the curb, failed to exercise ordinary care in tripping over the curb on her return. We reverse, holding that the owner’s actions in failing to turn on the parking lot lights and the distractions created by the vehicles in the drive-through lane create material issues of fact as to whether Hamilton exercised ordinary care for her own safety.

Owners of land are liable to invitees for injuries caused by the owners’ failure to exercise ordinary care in keeping the premises and approaches safe. Robinson v. Kroger Co. set forth the order of proof for such a cause of action:

[I]n order to recover for injuries sustained in a [trip]-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.

The hazard here was an unlit parking lot containing a raised curb along the path that certain patrons were to use to access their cars. Hamilton presented evidence that the owner intentionally did not turn on certain parking lot lights and actually knew of this hazard. She further presented evidence that her concern of being hit by one of the vehicles in the drive-through lane distracted her from seeing the curb in the dark.

For purposes of summary judgment, the owner does not dispute its knowledge of the allegedly hazardous condition created by the insufficient lighting but focuses on Hamilton’s purported failure to exercise due care. The owner argues that having traversed this same curb about an hour earlier, Hamilton intentionally exposed herself to this hazard when she returned the same way. The owner contends that this court should rule as a matter of law that Hamilton failed to exercise ordinary care.

1. The owner’s argument fails for two reasons. First, Robinson reminded all courts that the plaintiff’s lack of ordinary care for personal safety is generally not susceptible of summary adjudication and that only when the evidence is plain, palpable, and undisputed is summary judgment authorized. Here, Hamilton showed that although she successfully traversed the curb once in the daylight, it was “pitch dark” when she was returning to her car and that the parking lot lights, installed for the very purpose of illuminating a patron’s way, had not been turned on. The factors creating the hazardous condition were not static — when Hamilton entered the restaurant it was still daylight, and when she left it was dark. The fact that Hamilton had earlier managed, on a single occasion, to avoid tripping over the curb during daylight hours does not mean as a matter of law that she had knowledge of or had successfully negotiated the dangerous condition which caused her to fall that night.

The cases cited by the owner to challenge this conclusion are all distinguishable. The owner cites two cases that (1) are physical precedent only, (2) are pre-Robinson, and (3) do not reference changed lighting conditions as an element creating the hazard. The owner then cites Joyner v. Sandefur Mgmt. Co., which also predates Robinson. In light of Robinson’s significantly lightening the plaintiff’s load in proving a trip and fall case, and its reminder that most routine issues in such cases are not subject to summary adjudication, pre Robinson cases affirming summary judgment must be carefully scrutinized. In this regard, we note that Joyner recognized that dim lighting that prevents the plaintiff from discerning the hazard may result in liability against the landowner. Finally, the owner cites Ethridge v. Davis, which is distinguishable in that it involved an ongoing hazard that the plaintiff had repeatedly encountered for a year prior to the injury.

2. Second, Hamilton presented evidence that the vehicles in the drive-through lane distracted her from seeing the curb, particularly since they were close together and she had to walk between them. Robinson reiterated that a plaintiff is not bound to the same degree of care in apprehending danger in moments of stress or when her attention has been necessarily diverted. Citing Magee v. Federated Dept. Stores and Shackelford v. DeKalb Farmer’s Market, Robinson explained that a pedestrian’s possible confrontation with vehicular traffic could constitute a distraction. Both Magee and Shackelford held that the “distraction theory may apply even when the injured party has prior actual knowledge of the existence of a defective condition.” Hamilton’s testimony about having to walk through vehicular traffic in the drive-through lane, as she traversed the path the owner intended for her to access her vehicle, presented a possible distraction as reason for failing to see the raised curb in the darkness.

The evidence being disputed whether Hamilton exercised due care, the trial court erred in granting summary judgment to the owner.

Decided February 5, 2001

Reconsideration denied February 23, 2001.

John H. Beauchamp, Mark G. Pitts, for appellant.

Alexander & Vann, William C. Sanders, for appellee.

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

       Because this is an appeal of summary judgment, we construe the evidence in favor of the plaintiff nonmovant. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       OCGA § 51-11-7.

       OCGA § 51-3-1.

       268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

       Id. at 748 (2) (b).

       See Evans v. Mathis Funeral Home, 996 F2d 266, 270 (II) (B) (2) (11th Cir. 1993).

        Sacker v. Perry Realty Svcs., 217 Ga. App. 300, 302 (457 SE2d 208) (1995) (whole court) (fact that plaintiff avoided tripping over railroad ties in daylight does not import knowledge of dangerous condition caused at night); see Globe Oil Co., USA v. DeLong, 182 Ga. App. 395, 396 (1) (356 SE2d 47) (1987) (whole court) (walking across uneven pavement only once does not establish equal knowledge of hazard as matter of law); Hatcher v. City of Albany, 147 Ga. App. 843, 845 (2) (250 SE2d 537) (1978) (before fall, ascending steps three times and descending them twice do not establish plaintiff’s knowledge of hazard as a matter of law). Cf. Murray v. West Bldg. Materials &c., 243 Ga. App. 834, 835-836 (534 SE2d 204) (2000) (physical precedent only) (distinguishing cases where plaintiff had traversed hazard many times, court held that one ascension of defective steps does not establish knowledge of hazard as a matter of law).

        Dickman v. South City Mgmt., 229 Ga. App. 289 (494 SE2d 64) (1997) (physical precedent only); Echols v. Whisker’s Food & Spirits, 229 Ga. App. 240 (493 SE2d 722) (1997) (physical precedent only).

       168 Ga. App. 854, 856 (3) (310 SE2d 578) (1983).

        Robinson, supra, 268 Ga. at 748 (2) (b); Jackson v. K-Mart Corp., 242 Ga. App. 274, 276 (529 SE2d 404) (2000).

        Robinson, supra, 268 Ga. at 748 (2) (b).

       See, e.g., Murray, supra, 243 Ga. App. at 835-836.

        Joyner, supra, 168 Ga. App. at 857 (3) (d).

       243 Ga. App. 11 (530 SE2d 477) (2000).

        Robinson, supra, 268 Ga. at 744 (2) (a).

       187 Ga. App. 620 (371 SE2d 99) (1988) (physical precedent only).

       180 Ga. App. 348, 351 (349 SE2d 241) (1986).

        Robinson, supra, 268 Ga. at 745 (2) (a); see Globe Oil Co., supra, 182 Ga. App. at 396-397 (1).

       (Citations and punctuation omitted.) Magee, supra, 187 Ga. App. at 621; Shackelford, supra, 180 Ga. App. at 351 (2). Compare Yasinsac v. Colonial Oil Properties, 246 Ga. App. 484, 485-486 (2) (541 SE2d 109) (2000) (distraction doctrine does not apply where plaintiff was aware of hazard immediately before distraction occurred).

       See Globe Oil Co., supra, 182 Ga. App. at 397 (1).


author: Barnes, Judge.

text:
    A00A2394. A00A2395.
    NOLAN ROAD WEST, LTD. v. PNC REALTY HOLDING CORPORATION OF GEORGIA et al. BRANNEN/GODDARD COMPANY et al. v. BAKER.
    (544 SE2d 750)
   Barnes, Judge.

These appeals involve two separate complaints seeking real estate rental commission payments. In one complaint, Brannen/Goddard Company (B/G) and King Industrial Realty, Inc. (King), real estate brokers, sued PNC Realty Holding Corporation of Georgia (PNC) and Nolan Road West, Ltd. (Nolan), alleging that either PNC or Nolan owed them real estate commissions for procuring a tenant. The tenant leased commercial property owned first by Nolan, which then transferred the property to PNC.

After the property was leased, Nolan entered into a commission agreement with B/G and King that called for Nolan to pay commissions during the term of this lease, any extension or renewal of the lease, or during any new lease of the property by the same tenant. After Nolan transferred the property to PNC, however, the commission payments ceased. Nolan claims that PNC assumed the obligation to pay commissions due when PNC entered into a lease assignment agreement with Nolan after the property transfer.

PNC moved for summary judgment, claiming that it did not agree in its lease assignment to assume Nolan’s obligation to pay commissions to B/G and King. After the trial court granted the motion, this Court affirmed the grant of summary judgment to PNC in Brannen/Goddard Co. v. PNC Realty Holding Corp., 238 Ga. App. 387 (519 SE2d 35) (1999), because we found “no ambiguity in the lease assignment agreement with respect to whether PNC assumed Nolan’s obligations under the 1987 commission agreement, and we conclude that nothing therein can be construed as providing that PNC assumed those obligations.” Id. at 389.

The second complaint was filed while the original action was pending below after remand. B/G and Jack Rich, an agent of King, filed the complaint against Nolan’s former general partner, James M. Baker, seeking real estate commissions under the same lease agreement involved in the suit against Nolan and PNC. The trial court held a consolidated hearing on November 9, 1999, and issued several orders that have been appealed to this Court.

In Case No. A00A2394, Nolan appeals the trial court’s grant of summary judgment to PNC in Nolan’s cross-claim against PNC for commissions allegedly owed to B/G. Nolan further appeals the trial court’s denials of its motions to transfer venue, to dismiss for insufficiency of service, and for summary judgment against B/G and King in their action seeking commission payments from Nolan. In Case No. A00A2395, B/G and real estate agent Rich appeal the trial court’s grant of summary judgment to Baker, Nolan’s former general partner. For the reasons that follow, we affirm the trial court’s rulings in Case No. A00A2394, but reverse the grant of summary judgment to Baker in Case No. A00A2395.

Case No. A00A2394

1. Nolan appeals the trial court’s grant of summary judgment to PNC on Nolan’s cross-claim against PNC for any commissions that Nolan owes B/G. On appeal from the grant of summary judgment, this Court usually conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802-803 (500 SE2d 591) (1998). However, in this case, a de novo review is unnecessary because the issue of PNC’s liability for real estate commissions has been decided adversely to Nolan in Brannen/Goddard Co. v. PNC Realty Holding Corp., supra, 238 Ga. App. 387. There, we clearly held that the lease assignment agreement between Nolan and PNC was not ambiguous and that “nothing therein can be construed as providing that PNC assumed those obligations.” Id. at 389.

Although the law of the case rule has been statutorily abolished, “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” OCGA § 9-11-60 (h).

(a) While an exception to the rule may apply when the evidentiary posture of the case changes, Macon-Bibb County Hosp. Auth. v. Reece, 236 Ga. App. 669, 671 (1) (513 SE2d 243) (1999), we find no such change here. Although extrinsic evidence, such as the affidavits Nolan submitted to the trial court, can be considered to explain an ambiguity, because we found no ambiguity in the lease assignment agreement between PNC and Nolan, we do not consider the parol evidence Nolan submitted. Hartrampf v. C & S Realty Investors, 157 Ga. App. 879, 882 (3) (278 SE2d 750) (1981).

(b) Nolan further argues that our previous ruling that PNC was not liable does not apply because Nolan was not a party to that appeal, in which we affirmed the grant of summary judgment to PNC against B/G’s claim against it. However, the law of the case still applies, “because the same parties and issues are involved and the evidentiary posture of the case remains the same.” Bruce v. Garges, 259 Ga. 268, 270 (2) (379 SE2d 783) (1989). Despite the fact that Nolan was not a party to the previous appeal, it was a defendant in the underlying case before us and a party to the contract that the trial court construed. Nolan seeks to relitigate exactly the same issue we already decided: whether the lease assignment agreement between it and PNC was ambiguous and thus subject to interpretation. That issue was decided adversely to Nolan in Brannen/Goddard Co. v. PNC Realty Holding Corp., supra, 238 Ga. App. 387.

Accordingly, our previous ruling that PNC is not liable for Nolan’s obligations is binding here, and we affirm the trial court’s grant of summary judgment to PNC on Nolan’s cross-claim. Day v. State, 242 Ga. App. 899, 900 (1) (531 SE2d 781) (2000).

2. Nolan appeals the trial court’s denial of its motion to transfer venue from Fulton County to Clayton County following the grant of summary judgment to co-defendant PNC, a Fulton County corporation. Nolan argues that, without PNC, the residence of its limited partner in Fulton County is insufficient to confer venue against Nolan, which was formed and operates in Clayton County.

The Georgia Constitution provides that “suits against . . . copartners . . . residing in different counties may be tried in either county.” Art. VI, Sec. II, Par. TV, Ga. Const, of 1983. Further, “the constitutional and statutory provisions as to venue of suits against partners must apply to a limited partnership.” Farmers Hardware &c. v. L.A. Properties, 136 Ga. App. 180, 181 (220 SE2d 465) (1975). Therefore, because Nolan concedes that one of its limited partners resides in Fulton County, the trial court did not err in denying its motion to transfer venue from Fulton County to Clayton County.

3. Nolan asserts that the trial court erred in denying its motion to dismiss the complaint for insufficient process and insufficient service of process because B/G did not plead in its complaint for the issuance of a second original. Nolan further argues that the clerk of Fulton County Superior Court did not “issue process, accompanied by a second original, addressed to the Sheriff of the county where the non-resident defendant may be served. . . .”

Neither OCGA § 9-11-4 nor § 9-11-8 requires that a plaintiff plead specifically for issuance of a second original. Further,

[u]nder the Civil Practice Act (CPA), it is immaterial whether the Sheriff of [Fulton] County or the Sheriff of [Clayton] County personally served Appellant or whether that service was accomplished by delivery of the original or second original. OCGA § 9-11-4 (c), (f). When presented with this issue in Tuggle v. Tuggle, 251 Ga. 845, 846 (310 SE2d 224) (1984), the late Justice Weltner observed for a unanimous Court that “we have long ago departed that realm of law where runes and sigils supplant reason and substance.” [Cit.] ... It is undisputed that Appellant was served personally with the complaint and summons by an authorized person.

Elrod v. Elrod, 272 Ga. 188, 189 (1) (526 SE2d 339) (2000). Accordingly, the Superior Court of Fulton County properly held that it had personal jurisdiction over Nolan.

4. Finally, Nolan appeals the trial court’s denial of its motion for summary judgment, arguing that B/G “did not present any competent evidence, of present consideration to support the Commission Agreement.” Nolan contends that, because consideration is an essential element of a contract, the trial court erred in denying its motion for summary judgment.

However, a review of the record reveals sufficient evidence of consideration to present a genuine issue of material fact. For example, an associate broker with B/G and a broker with King submitted affidavits describing their efforts in securing a commercial tenant for Nolan’s property that resulted in the commission agreement at issue here. The trial court did not err in denying Nolan’s motion for summary judgment. Mathews v. Brown, 235 Ga. 454, 456 (219 SE2d 701) (1975); see Boot v. Beelen, 224 Ga. App. 384 (480 SE2d 267) (1997).

Case No. A00A2395

B/G and real estate agent Rich appeal the trial court’s grant of summary judgment to Baker, Nolan’s former general partner who signed the commission agreement in November 1987. As in the summary judgment order in Case No. A00A2394 discussed previously, the trial court did not set out any grounds for granting the motion. As neither party made argument here or at the trial court regarding the propriety of B/G filing a separate cause of action against Baker, rather than seeking to add him as a defendant to the existing suit against Nolan, we do not address that issue. But see North Augusta Assoc. v. 1815 Exchange, 220 Ga. App. 790, 793-794 (2) (469 SE2d 759) (1996).

5. Baker argues vociferously for more than ten pages of his brief that we cannot consider B/G’s arguments at all. Baker asserts that B/G failed to file a transcript of the November 9, 1999 hearing on his motion for summary judgment and other motions. However, two copies of the hearing transcript were filed in companion Case No. A00A2394. As the Supreme Court of Georgia has noted, “The strict adherence to [former] rules prohibiting judicial cognizance by a trial court of records in its own court and of this Court taking cognizance of records in other cases before this court frustrates the policy of judicial economy.” Petkas v. Grizzard, 252 Ga. 104, 107 (312 SE2d 107) (1984). This Court frequently takes judicial notice of records and transcripts in companion cases, see Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 213 (2) (367 SE2d 43) (1988), and will do so in this case.

6. Baker argued five grounds to the trial court in support of his motion for summary judgment: (1) the statute of limitation expired before B/G filed suit; (2) his withdrawal as general partner in 1991 relieved him of liability for partnership debts incurred after that time; (3) the commission agreement lacked consideration; (4) the commission agreement ended when the tenant terminated its second lease; and (5) PNC assumed Nolan’s liability under the commission agreement.

We earlier disposed of grounds three and five, concluding that some evidence exists that the commission agreement was supported by consideration and that PNC did not assume Nolan’s commission liability. We will address the remaining three arguments.

7. B/G sued for commissions on rental payments made from January 31, 1992, through March 31,1997, plus any rent paid under any renewal leases after that date. The real estate brokerage argues that the statute of limitation had not run on the commission payments that accrued less than six years before September 10, 1998, when it filed suit against Baker. Baker argues that the statute of limitation began running when he signed the commission agreement in 1987, thus precluding B/G’s suit against him.

We have previously considered the nature of such claims for real estate commissions against the original landowner who subsequently sold the property without assigning the commission agreement. The new buyer “was not bound by the commission agreement, as it was not a covenant running with the land.” Hunter v. Benamy Realty Co., 115 Ga. App. 829, 831 (156 SE2d 160) (1967). “But defendant [Baker] could not thus defeat plaintiff’s right to its commission. Defendant himself remains bound by the commission.” Id. We rejected the defendant’s contention that payment by the new lessee of rentals under the new lease was a condition precedent to plaintiff’s right to its commission, finding it “clear that plaintiff in this case had earned its commission when it obtained the . . . original lessor of the premises.” Id. at 832. We concluded that

the breach of contract disclosed by the petition is not defendant’s refusal to continue paying plaintiff’s commission on monthly rental installments after conveying the premises to [a new owner], for the defendant has paid the commission on all rental installments received by him. Instead, the breach of contract on which this action rests is defendant’s act of placing it outside his power to collect the rental installments out of which plaintiff had the right to be paid its commission.

Id. at 833.

Under the analysis in Hunter, the breach of contract at issue in this case occurred when Nolan conveyed its interest in the property to PNC without also assigning to PNC its obligations under the lease contract. Nolan conveyed the property to PNC on September 16, 1992, less than six years before B/G sued Baker on September 10, 1998. Therefore, Baker is not entitled to summary judgment on the ground that the statute of limitation had run.

8. Baker also argued that these lease commission obligations arose after his withdrawal as Nolan’s general partner in 1991, and therefore he could not be liable for any amounts due B/G under the commission agreement. “A general partner in a limited partnership has the same rights and liabilities of a partner in an ordinary partnership.” North Peachtree 1-285 Properties v. Hicks, 136 Ga. App. 426, 432 (4) (221 SE2d 607) (1975). Further, a general partner “may become individually liable for all of the debts of the partnership.” Coop Mtg. Investments Assoc. v. Pendley, 134 Ga. App. 236, 239 (1) (214 SE2d 572) (1975).

OCGA § 14-8-15 provides, with exception not relevant here, that “all partners are jointly and severally liable for all debts, obligations, and liabilities of the partnership.” Baker remains liable on contracts entered into while he served as general partner, see OCGA §§ 14-8-31 (a) (2); 14-8-36 (a); 14-8-41, and since he was the general partner when Nolan signed the commission agreement in 1987, he was not entitled to summary judgment on the ground that he withdrew as general partner of Nolan in 1991.

9. Finally, Baker’s argument that the commission agreement ended when the tenant terminated its second lease does not support the trial court’s grant of summary judgment. Despite the fact that this third lease was titled “Amended and Restated Lease,” the record contains sufficient evidence that the same tenant leased essentially the same space under the same terms to preclude a summary judgment to Baker on this ground. Cumberland Center Assoc. v. Southeast Mgmt. &c. Corp., 228 Ga. App. 571, 576-579 (492 SE2d 546) (1997), overruled on other grounds, Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604 (503 SE2d 278) (1998).

Decided January 29, 2001

Chamberlain, Hrdlicka, White, Williams & Martin, James L. Paul, Matthew J. McCoyd, for Nolan Road West, Ltd. and Baker.

Morris, Manning & Martin, Lewis E. Hassett, Jessica F. Pardi, Perry A. Phillips, for Brannen/Goddard Company et al.

Parker, Hudson, Rainer & Dobbs, J. Marbury Rainer, Charles W. Lyons, for PNC Realty Holding Corporation of Georgia.

Accordingly, the trial court erred in granting summary judgment to Baker.

Judgment affirmed in Case No. A00A2394. Judgment reversed in Case No. A00A2395.

Blackburn, C. J., and Eldridge, J, concur.

       OCGA § 14-8-31 (a) (2): “Dissolution is caused . . . [b]y the express will or withdrawal of any partner.” OCGA § 14-8-36 (a): “The dissolution of the partnership does not of itself discharge the existing liability of any partner.” OCGA § 14-8-41 describes the relationship of creditors following the withdrawal of an existing partner.


author: Johnson, Presiding Judge.

text:
    A00A1801.
    BELL v. THE STATE.
    (546 SE2d 34)
   Johnson, Presiding Judge.

After a bench trial, Antonio Bell was found guilty of possession of marijuana with intent to distribute and possession of a firearm by a convicted felon. He appeals from the convictions, contending the trial court erred in denying his motion to suppress evidence found following a traffic stop. Bell, who was stopped because he and his passenger were not wearing seat belts, argues that the investigative detention which followed the traffic stop exceeded the permissible scope of the stop. We disagree and affirm.

On review of a motion to suppress, we construe the evidence most favorably to uphold the trial court’s ruling. The trial court’s application of the law to undisputed facts is subject to de novo review.

The evidence shows that a DeKalb County police officer was on patrol when he saw Bell drive his car out of the parking lot of an ¡ apartment complex. The officer noticed that Bell and his front seat passenger were not wearing seat belts, so he activated his car’s blue lights. Bell pulled over and stopped.

The officer approached the car and asked Bell for his driver’s license and proof of insurance. Bell handed him a valid license and proof of insurance. Bell asked the officer why he stopped him. The officer replied that he stopped Bell because he and his passenger were not wearing seat belts. Bell apologized for not wearing a seat belt. The officer testified that Bell was “perfectly cooperative,” but that he was “a little bit nervous, his hand was shaking, [and] . . . instead of paying attention to me he was actually looking around the area.”

The officer noticed that Bell’s driver’s license indicated he was from Macon. He asked Bell if he still lived in Macon. Bell stated that he did and then gratuitously stated that he came to Atlanta to drive his sister to college and that he had been visiting a Mend in the apartment complex he had just left. The officer asked Bell for the name of the Mend he was visiting. Instead of answering the question, Bell looked away from the officer and started looking around the area, as he had been doing throughout the stop. The officer noticed that the passenger “also seemed a little bit nervous,” and that he was continuously rubbing his hands and looking around the area.

After the officer asked Bell for the name of the person he had visited, the passenger opened his door and started to get out. The officer told the passenger to stay in the car and close the door. The passenger remained in the car and pulled the door to a slightly open position, but never actually closed the door. The officer told him repeatedly to stay in the car.

The officer then noticed there were several garbage-type plastic bags in the backseat. Because of the “suspicious activity that was going on in the car,” the officer asked Bell what was in the bags. Bell looked around again, grabbed a small plastic bag from next to his seat, held it up, and remarked, “It’s candy.” The officer asked Bell what was in the other bags. “[A]t that moment, [Bell] became relatively verbally combative” and asked the officer why he wanted to know what was in the bags. Bell asked the officer again why he was being stopped. The officer then ordered Bell out of the car, because Bell was “becoming repetitious about certain things and because of his activity.” The officer added that he had Bell get out of the car “[b]ecause of his attitude,” because “the vehicle was still running,” and because the officer wanted “to control the situation . . . and get him away from the passenger” and from the driver’s seat.

Bell got out of the car, walked to the rear of it, got back into the car, and then acted as if he was going to drive away. The officer pulled his service revolver from its holster, pointed it at Bell’s tire, and told him he would shoot the tire if Bell tried to leave. Bell got out of the car and stood on the sidewalk as instructed while the officer waited for a backup police unit. The passenger remained in Bell’s car as directed by the police officer. The officer then retrieved a drug dog from his patrol car and told Bell that if he moved toward the officer, the dog would attack him. While they were waiting for other officers to arrive, Bell remarked “F — k this and the dog,” walked to his car, grabbed one of the plastic bags from the backseat, and fled. The officer and his dog gave chase, but Bell managed to get away. As Bell ran, a small bag fell out of the large bag he was carrying. Moments later, police caught Bell and recovered the dropped bag and the larger bag. Both bags contained marijuana. Police also found another bag of marijuana in Bell’s car and a handgun in the glove compartment of his car. Bell’s companion fled before the officer returned to Bell’s car. The entire stop, from the time the officer initially stopped Bell’s car until the time Bell fled, lasted no more than five minutes.

OCGA § 40-8-76.1 (b) requires that persons riding in the front seat of a car wear seat belts. A law enforcement officer has probable cause to believe this statute is being violated if he has a clear and unobstructed view of a person not restrained as required by OCGA § 40-8-76.1 (b).

Here, the officer testified that he had a clear and unobstructed view of the driver and the passenger and saw that they were not wearing seat belts. He therefore had probable cause to stop the car in order to investigate the seat belt violation. The question, then, is what type of investigation was authorized.

The seat belt statute specifically provides that noncompliance with the seat belt law does not constitute probable cause for violation of any other Code section. The legislature added the language concerning probable cause for violation of other Code sections to OCGA § 40-8-76.1 in order to prohibit a search of a person or a vehicle based solely on the failure of the front seat’s occupant to wear a seat belt.

The validity of an officer’s investigative conduct upon making a stop is determined by balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which he seeks to advance. In striking this balance, we have held that traffic stops must be limited in time and scope and that police officers must limit their questions to those reasonably related to the circumstances that justified the initiation of the stop. If the officer questions and detains the suspect for other reasons, he exceeds the scope of permissible investigation unless he has reasonable suspicion of other criminal activity. Whether a given set of facts rises to the level of reasonable, articulable suspicion of criminal activity is a legal question.

Decided February 23, 2001.

Daryl W. Queen, for appellant.

J. Tom Morgan, District Attorney, Ingrid Skidmore, Barbara B. Conroy, Assistant District Attorneys, for appellee.

In this case, the officer was authorized to ask Bell for his license to establish his identity and to ask questions reasonably related to the traffic violation. Bell’s license showed a Macon address, so the officer asked him if he still lived in Macon and then, based on Bell’s voluntary comments about what he was doing in Atlanta, the officer asked him a follow-up question about his friend. At that point, new articulable facts giving rise to a reasonable suspicion of criminal conduct came to light, e.g., Bell refused to answer the officer’s question and kept looking around, the passenger attempted to get out of the car and then refused to fully comply with the officer’s request to close the door, and the officer noticed large bags located on the car’s backseat. The conversation was in no way extensive or prolonged, and the officer’s inquiry was reasonably related to the circumstances that justified the initiation of the stop. Under the circumstances, it is clear that the officer was acting on something more than a mere hunch and that the limited, additional investigation was not arbitrary or harassing. Because the brief detention was supported by reasonable suspicion, the items of contraband found by the police as a result of the detention were legally obtained. The trial court did not err in denying Bell’s motion to suppress.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

         State v. Winnie, 242 Ga. App. 228, 229 (529 SE2d 215) (2000).

       Id.

       OCGA § 40-8-76.1 (f).

       See State v. Milsap, 243 Ga. App. 519, 520 (528 SE2d 865) (2000).

       OCGA § 40-8-76.1 (f).

        Davis v. State, 232 Ga. App. 320, 321-322 (1) (501 SE2d 836) (1998).

         State v. Blair, 239 Ga. App. 340, 341 (521 SE2d 380) (1999).

       Id.; Barraco v. State, 244 Ga. App. 849, 850 (1) (537 SE2d 114) (2000).

        Blair, supra; see Almond v. State, 242 Ga. App. 650, 652 (1) (530 SE2d 750) (2000).

        Migliore v. State of Ga., 240 Ga. App. 783, 785 (525 SE2d 166) (1999).

       See generally Smith v. State, 216 Ga. App. 453, 455 (2) (454 SE2d 635) (1995).

       See generally State v. Hall, 235 Ga. App. 412, 415 (509 SE2d 701) (1998).

       Id. at 416.

       See Smith, supra; Harris v. State, 239 Ga. App. 537, 539-540 (2) (a) (521 SE2d 462) (1999).


author: Smith, Presiding Judge.

text:
    A00A1828.
    DUNN v. RELIABLE TRACTOR, INC.
    (545 SE2d 695)
   Smith, Presiding Judge.

Reliable Tractor, Inc. sued Randy Dunn on a promissory note. The trial court granted Reliable’s motion for summary judgment on all claims and counterclaims, including principal and accrued interest on the promissory note, plus attorney fees. Because we conclude that an issue of material fact exists concerning the amount due on the note, we reverse.

On July 17, 1997, Berrien Gin Company, Inc. and Dunn, the president of Berrien Gin, executed a promissory note in the principal amount of $429,861.80 in favor of Reliable. It appears that the note was issued following a dispute between Reliable and Dunn concerning Dunn’s obligation to Reliable on a previous debt. Neither Berrien Gin nor Dunn made any payments under the note, and, on May 12, 1998, Reliable declared the note in default and demanded payment of all principal and accrued interest. Reliable then filed this action against Dunn. The trial court granted a motion for summary judgment filed by Reliable, and this appeal by Dunn ensued.

1. We first address a procedural issue. Dunn contends that the trial court should not have considered Reliable’s motion for summary judgment because of Reliable’s failure to submit a statement of uncontested material facts. See Uniform Superior Court and State Court Rule 6.5. Indeed, no such statement appears to have been attached to Reliable’s motion for summary judgment filed on September 10, 1999, and Dunn raised this failure in his response to the motion, which he filed October 12, 1999. Dunn also filed his own affidavit in support of his response. Also on October 12, 1999, Reliable filed its USCR 6.5 statement, and a hearing on the motion was conducted two days later.

Four days after the hearing, on October 18, 1999, despite his attorney’s statement at the conclusion of the hearing that he did not intend to present further argument by letter brief or in any other manner, Dunn filed his own short and concise statement of material facts in dispute, a supplemental brief, and a second affidavit in opposition to the motion for summary judgment. Dunn subsequently submitted a “bankruptcy court pleading to dispute” an affidavit submitted by Reliable in support of its motion. Reliable then filed a supplemental brief responding particularly to issues raised in this latest documentation filed by Dunn. Approximately one month later, the trial court granted Reliable’s motion.

Dunn contends that because Reliable’s USCR 6.5 statement was not timely filed, he was unable to dispute Reliable’s material facts until after the hearing occurred. But it is obvious from Dunn’s argument that he was afforded the opportunity to respond to Reliable’s USCR 6.5 statement. He submitted his own statement of material facts in dispute and filed other documents in response to the facts raised by Reliable, including evidence in the form of a second affidavit. We note that Reliable responded in turn to the contentions raised by Dunn after the hearing was concluded. Reliable therefore acquiesced to the trial court’s consideration of evidence filed after the hearing and waived any objection it might have had to the untimely filed affidavits. See generally Smith v. Steinemann Dev. Co., 230 Ga. App. 635, 636 (1) (497 SE2d 255) (1998) (although affidavit supporting motion must be served with motion, objection to timeliness of affidavit waived unless timely raised in trial court).

Under the circumstances of this case, in which both parties failed to comply fully with procedural rules concerning the filing of and responses to motions, we conclude that each party was afforded the opportunity to respond to the other’s arguments and evidence submitted to the trial court and that the trial court did not err in failing to deny Reliable’s motion on the procedural ground raised by Dunn.

2. We next address Dunn’s more substantive contention that the trial court erred in granting Reliable’s motion for summary judgment. In ruling on a motion for summary judgment, the opposing party must be given the benefit of all reasonable doubt, and the court must construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). We carefully scrutinize the evidence presented by the movant, while we treat the respondent’s papers “with considerable indulgence.” (Citation omitted.) Maddox v. Leaphart, 214 Ga. App. 340, 342 (3) (447 SE2d 694) (1994).

In a suit on a note, “when signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” (Citation, punctuation and footnote omitted.) Braswell v. Bank of Early, 229 Ga. App. 445, 447 (494 SE2d 277) (1997). See also OCGA § 11-3-308 (b). There appears to be no dispute that Dunn signed the note. Reliable has therefore established a prima facie right to a recovery, shifting the burden to Dunn to establish a valid defense. See Braswell, supra.

Bearing in mind the heavy burden placed on a party moving for summary judgment, and giving “considerable indulgence” to the evidence presented by Dunn, we conclude that Dunn has pointed to some evidence showing that issues of fact exist concerning the amount due on the note and therefore has created a jury issue. Compare Hovendick v. Presidential Financial Corp., 230 Ga. App. 502, 505 (4) (497 SE2d 269) (1998) (plaintiff entitled to summary judgment in suit on note where plaintiff established prima facie case and defendant failed to produce evidence showing different amount owed). In his second affidavit submitted to the trial court, Dunn stated that after the note was executed, Reliable repossessed several of the cotton pickers pledged as collateral on the note and sold them. The proceeds of disposition of collateral by a secured party, after satisfaction of expenses involved in retaking and selling the collateral and payment of reasonable attorney fees and expenses incurred by the secured party, are to be applied to “[t]he satisfaction of indebtedness secured by the security interest under which the disposition is made.” OCGA § 11-9-504 (1) (a), (b). Attached to Dunn’s affidavit is a list of 11 pickers the security agreement shows were pledged as collateral and a recitation of their sale dates and selling prices. Dunn further stated in his affidavit that Reliable did not credit the note for the proceeds of the sale of the collateral.

Reliable argues that the proceeds of the sales of the pickers should not have been credited to the note but instead were credited to a lien having a higher priority. While Reliable’s arguments may be plausible, the arguments are not evidence for summary judgment purposes. It is axiomatic that statements in briefs are not evidence. See, e.g., McEntyre v. McRae, 240 Ga. App. 148, 150 (522 SE2d 731) (1999). The only evidence speaking to the sale of collateral was supplied by Dunn in his affidavit. Rather than introducing evidence to show that all proceeds of collateral sales were applied against other indebtedness, Reliable questions the likelihood of the payment of that debt. Reliable’s arguments are insufficient, and unlike Hovendick, supra, a question of material fact remains. It follows that factual issues also exist concerning the amount of accrued interest and attorney fees.

3. We also note Dunn’s contention that the trial court erroneously granted summary judgment to Reliable on Dunn’s counterclaim. In the counterclaim, Dunn alleged that Reliable owed him “certain refunds, rebates, and credits for goods and services not provided by” Reliable to Dunn “or not accepted by” Dunn and that Reliable had fraudulently overcharged Dunn. On motion for summary judgment, Reliable submitted evidence that as part of the settlement of the previous dispute between Dunn and Reliable, Dunn agreed “to forsake any and all claims defendants had for set-offs or rebates.” We cannot conclude that this evidence satisfied Reliable’s burden as movant on motion for summary judgment of piercing the other party’s pleadings and showing the nonexistence of any material fact. It is not clear from the record, for example, whether the actions alleged in Dunn’s counterclaim occurred before the settlement was reached (and therefore may have been subject to the settlement) or after the parties reached settlement. Also, the evidence submitted by Reliable does not address the portion of Dunn’s counterclaim alleging fraud. Actual evidence in the record in this case is sparse. Again, while Reliable’s arguments may be logical, the arguments are not supported by evidence authorizing the grant of summary judgment. Given the state of the record before us, we must reverse.

Decided February 23, 2001.

Fallin & McIntosh, William G. Fallin, Michael E. Sumner, for appellant.

Sims, Fleming & Spurlin, John C. Spurlin, for appellee.

Judgment reversed.

Johnson, C. J., and Phipps, J., concur.

       In an affidavit submitted in support of its motion for summary judgment, Reliable submitted evidence that in 1996, Dunn had refinanced “various notes secured by cotton pickers with John Deere, Inc. and, in connection with the purchase of various cotton pickers from John Deere, Inc., Reliable . . . provided the down payment with [Dunn] executing a promissory note to Reliable for these amounts.”


author: Andrews, Presiding Judge.

text:
    A00A2200.
    MIX v. ALLIED READYMIX et al.
    (546 SE2d 41)
   Andrews, Presiding Judge.

We granted Darryl Mix’s application for discretionary appeal to determine whether the superior court erred in reversing a workers’ compensation award entered by the appellate division of the State Board. Because the findings of the Board were supported by some evidence, the trial court erred by finding otherwise. See OCGA § 34-9-105 (b).

Mix was injured on October 31, 1997, when the cement truck he was driving overturned. Mix sustained transverse process fractures at L2, L3, and L4. After substantially recovering from the compensable injury to his back, Mix was released to full duty. About five months after the rollover incident, Lawrence N. Reckles, M.D., evaluated Mix and issued a five percent permanent partial disability rating to the body as a whole. Two months prior to the evaluation by Dr. Reckles, Mix obtained an independent medical evaluation from Simon Portee, M.D., who issued a fifteen percent permanent partial disability rating. While examining Mix, Dr. Portee noted, “[p]ain to percussion over the lumbar-sacral spine. Pain elicited over interspinous ligaments when attempting to bend over.” Dr. Portee’s impression was “[l]umbar spine radiculopathy.” In assigning the disability rating, Dr. Portee used the American Medical Association Guide to the Evaluation of Permanent Impairment (4th ed.), Table 74, p. 111.

Dr. Reckles disagreed with the basis for Dr. Portee’s rating, stating in a letter directed to the employer’s counsel:

A review of Table 74 indicates that a 15% body as a whole rating is appropriate for patients with: (1) neurologic evidence of limb impairment, or (2) a 25-50% compression fracture or fractures of the posterior elements of a lumbar vertebrae disrupting the spinal canal. Mr. Mix, as you know, suffered transverse process fractures of L2, L3, and L4. These are fractures that do not disrupt the spinal canal and, hence, are more appropriately categorized as DRE Impairment Category II rather than Category III as Dr. Portee suggests.

Dr. Portee, however, assigned the higher rating because “[t]he patient exhibited and treatment notes documented clinical signs of radiculopathy and neurologic compromise.”

After considering the conflicting evidence and reviewing the medical records, the administrative law judge (ALJ) found that Mix had sustained a ten percent permanent partial disability. Upon determining that “a preponderance of competent and credible evidence in the record” supported that finding, the appellate division adopted the ALJ’s award as its own. The superior court, however, reversed the appellate division. The court decided that “no evidence in the record” warranted the award and that the facts found by the ALJ did not support it either.

1. Mix contends that the superior court committed reversible error by failing to properly apply the appropriate standard of review. We agree. On appeal of a workers’ compensation award, the superior court is authorized only to affirm, reverse, or, under certain circumstances, remand to the Board for further proceedings. Willis v. Holloway, 154 Ga. App. 3 (267 SE2d 795) (1980). Judicial review is restricted to the five statutory grounds delineated in OCGA § 34-9-105 (c). When a finding of fact made by the lull Board is supported by any evidence, it is conclusive and binding upon the superior court. Wesleyan College v. Mains, 207 Ga. App. 562 (428 SE2d 577) (1993).

Here, the sole issue was the percentage of permanent partial disability sustained by Mix. See OCGA § 34-9-263 (d). Mix offered evidence showing a fifteen percent disability while his employer and its self-insurer offered evidence suggesting a five percent disability. The employer contends that the impairment rating must be one or the other and cannot be averaged. The employer argues that the higher | disability rating was issued before Mix had achieved maximum medical improvement and should, therefore, be disregarded.

Opinions of medical experts are advisory only and may be I accepted or rejected by the Board. Caraway v. ESB, Inc., 172 Ga. App. 349, 350 (323 SE2d 197) (1984). As the factfinder, the Board was entitled to review the opinions of both physicians and to draw its own conclusions from that evidence and other evidence as to the proper permanent partial disability rating for Mix. See Blevins v. Atlantic Steel Co., 172 Ga. App. 557, 558 (323 SE2d 861) (1984). Moreover, when the ALJ and the appellate division weigh conflicting evidence of medical experts and credit one over the other, those findings must be affirmed. Metro Interiors v. Cox, 218 Ga. App. 396, 398 (461 SE2d 570) (1995). “While competent expert testimony is entitled to great weight, it is not so authoritative that either court, jury, or commission is bound to be governed by it, since it is advisory merely and intended to assist them in coming to a correct conclusion.” (Citation and punctuation omitted.) Turner v. Travelers Ins. Co., 114 Ga. App. 729, 730 (1) (152 SE2d 783) (1966). When, as here, the question at issue is the degree of disability, either to the claimant’s whole person or to a specific member, an award is not unsupported by evidence where the trier of fact arrives at a specific percentage of disability from all the evidence in the case. See id. Since in this case the percentage of disability found by the Board lies within the range of all the evidence, that finding cannot be said to lack evidentiary support. Davis v. Gen. Motors Corp., 166 Ga. App. 401, 402 (304 SE2d 402) (1983). Therefore, the superior court erred in substituting its own judgment for the findings of the Board. Ga.-Pacific Corp. v. Wilson, 240 Ga. App. 123, 126 (1) (522 SE2d 700) (1999). Because the superior court exceeded its mandate, the judgment must be reversed with direction that the court confine its ruling to the dictates of OCGA § 34-9-105 (b). Subsequent Injury Trust Fund v. Knight Ridder Newspapers &c., 203 Ga. App. 458, 460 (1) (416 SE2d 887) (1992).

Decided February 23, 2001.

Scott T. Bushnell, for appellant.

Swift, Currie, McGhee & Hiers, Timothy C. Lemke, Marie-Yolaine Bernard, for appellees.

2. In light of the above holding, we need not reach the other issues enumerated as error.

Judgment reversed with direction.

Ruffin and Ellington, JJ., concur.


text:
    A00A2561.
    HAWKINS v. WILBANKS et al.
    (546 SE2d 33)
   Andrews, Presiding Judge.

Cameron Alexander Hawkins appeals, pursuant to the grant of interlocutory appeal, the denial of his motion to dismiss the renewal suit filed against him by Elizabeth Wilbanks and other family members (the Wilbanks) as a result of an automobile wreck which occurred on July 1,1993, between a truck driven by Hawkins and the Wilbankses’ car.

The Wilbankses’ initial action was filed on June 28,1995, shortly before the running of the statute of limitation. On October 26, 1996, the court granted the Wilbankses’ motion for appointment of agent to serve Hawkins, but that effort was apparently unsuccessful. On April 3, 1998, the Wilbankses’ motion for service by publication filed that date was granted. In support of that motion, the Wilbankses submitted the affidavit of their attorney which states only that an attempt was made to serve Hawkins at his father’s home, that a special investigator had been unable to locate Hawkins, and that “[a]ffiant believes said Defendant is avoiding service of process.” The affidavit of the publisher was filed reflecting publication four times in April 1998. By order of September 29, 1998, the trial court found that service by publication was “declared perfected.” On March 1, 1999, the Wilbankses’ voluntary dismissal without prejudice was filed.

The renewal suit was filed on August 17,1999. Hawkins filed his motion to dismiss, contending that the statute of limitation had expired and that he was not served in the original action, precluding renewal pursuant to OCGA § 9-2-61. “The renewal statute applies only to actions that are valid prior to dismissal. Osborne v. Hughes, 200 Ga. App. 558, 559 (409 SE2d 58) (1991). To constitute a Valid action,’ the complaint must be served personally on the defendant. [Cits.]” Hudson v. Mehaffey, 239 Ga. App. 705, 706 (521 SE2d 838) (1999).

Although service was attempted by publication, it is our obligation to determine whether the movant exercised due diligence in pursuing reasonably available channels of information regarding the location of the defendant. Abba Gana v. Abba Gana, 251 Ga. 340, 343 (1) (304 SE2d 909) (1983).

Because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is i a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts. [Cits.]

Id. See also Pierce v. Pierce, 270 Ga. 416, 418 (511 SE2d 157) (1999).

Decided February 23, 2001.

Davis & Kreitzer, John W. Davis, Jr., Steven W. Kreitzer, for appellant.

Frank B. Perry, G. Martin Adcock, for appellees.

Service by publication is applicable only in those instances where such service is allowed by law. Georgia’s statutes regarding torts (OCGA Title 51) contain no provision for service by publication in any action for a personal judgment against any person, resident or nonresident. Barnes v. Continental Ins. Co., 231 Ga. 246, 247 (201 SE2d 150) (1973). While service by publication may be used pursuant to OCGA § 33-7-11 for purposes of complying with the condition precedent for pursuing one’s uninsured motorist insurance carrier, that service will not serve as a foundation for an in personam judgment against the tortfeasor. Bailey v. Lawrence, 235 Ga. App. 73, 76 (508 SE2d 450) (1998).

We conclude that no due diligence has been shown here, Pierce, supra, and, therefore, the initial suit was void and not subject to renewal. Clark v. Dennis, 240 Ga. App. 512 (1) (522 SE2d 737) (1999); Garcia v. Virden, 236 Ga. App. 539, 540 (512 SE2d 664) (1999).

Judgment reversed.

Ruffin and Ellington, JJ, concur.