text:
    A91A1677.
    POLKE v. THE STATE.
    (417 SE2d 22)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of trafficking in cocaine and possession of marijuana with intent to distribute. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant enumerates as error the denial of his motion to suppress the cocaine.

The only evidence presented at the suppression hearing was the testimony of the arresting officer. Insofar as it is relevant to this appeal, that testimony was as follows: The officer responded to a telephone call from an anonymous tipster, who stated that drugs were then being sold in the Liberty Street area. Although the tipster indicated that “we know who it is,” no name was given to the officer. This anonymous tipster had called the police department frequently and the information conveyed in his prior calls had on more than one occasion proved to be true. After driving several blocks on Liberty Street without seeing anyone, the officer made two turns and saw appellant approaching on foot. The officer had been told by other “reliable informants” that appellant was a drug dealer who carried the drugs with him. Earlier that very evening, a person whose past information had never been corroborated had told the officer that he had seen appellant with drugs at some unspecified time and that appellant would have drugs on him that night. When appellant saw the officer, he abruptly turned and crossed some railroad tracks. When the officer later pulled beside appellant, he turned again. Appellant was stopped and frisked and large sums of money found. Although no contraband was discovered at that time, appellant was arrested for a controlled substances violation. He was then taken to the police station, where he was searched and the cocaine was found on his person.

“ ‘Whether [a] search is sought to be justified as incident to [an] arrest for possession of cocaine or whether it is sought to be justified by exigent circumstances, it cannot be upheld unless probable cause existed for a belief that the [suspect] was currently in unlawful possession of cocaine. . . .’ [Cit.]” Salter v. State, 198 Ga. App. 242, 243 (1) (401 SE2d 541) (1990). In stopping and searching appellant, the officer acted solely on information supplied by informants. “ ‘The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the “totality of the circumstances” surrounding (1) the basis of the informant’s knowledge and (2) the informantes] veracity or reliability. [Cit.] “(A) deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia' of reliability.” [Cit.]’ [Cit.]” Rucker v. State, 199 Ga. App. 854, 855 (406 SE2d 277) (1991). The case which originally set forth this test, Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), must “be considered as the outer limit of probable cause.” (Emphasis in original.) State v. Stephens, 252 Ga. 181, 184 (311 SE2d 823) (1984).

“Reliable informants” had told the officer that appellant was a drug dealer, but there was no showing as to how those informants had come to that conclusion. Another informant had told the officer that appellant would have drugs on him that evening, but that informant had no prior history of reliability. Yet another informant had told the officer that drugs were then being sold in a specified area, but that informant did not name appellant as the perpetrator. “Considering the totality of the circumstances in this case, we find that the information disclosed [to the officer] was . . . insufficient to establish reasonable cause for a belief . . . that the appellant was currently in possession of cocaine. In the first place, there was no disclosure of the source of the informant[s’] information. [Cit.]” Felker v. State, 172 Ga. App. 492, 495 (4) (323 SE2d 817) (1984). “[I]t is questionable . . . whether the deficiency in the basis of the informant^’] knowledge was adequately compensated by the informant^’] previous record[s] of reliability.” Rucker v. State, supra at 855. See Galgano v. State, 147 Ga. App. 284 (248 SE2d 548) (1978); Collins v. State, 188 Ga. App. 172 (372 SE2d 503) (1988). Indeed, the informant who had told the officer that appellant would have drugs on him that night had no prior history of reliability. “Even if the informant^] [were] reliable, where no evidence is presented at the suppression hearing to show ‘ “that the police officer knew how the informantfs] received the information or else had such detailed information that he knew it to be more than mere rumor or suspicion,’ ” then the information was insufficient to establish probable cause for a search. [Cits.]” Rucker v. State, supra at 855. “There is no suggestion in this case that the informant[s] revealed . . . the source of [their] information, nor was the information . . . sufficiently detailed to suggest that it was based on anything more substantial than mere rumor. [Cit.]” (Emphasis supplied.) Salter v. State, supra at 243 (1). Indeed, the informant whose call prompted the officer to ultimate action never even named appellant as one of the persons involved in the illegal drug activity on Liberty Street. Cf. Kelleher v. State, 185 Ga. App. 774, 777 (1) (365 SE2d 889) (1988).

This lack of detail or disclosure of the source of the informants’ information is extremely significant, given the lack of independent corroboration of the tip. See Felker v. State, supra at 495 (4). Moreover, the lack of corroboration assumes greater significance where, as here, the informant who precipitated the officer’s ultimate action was anonymous. See Stola v. State, 182 Ga. App. 502, 503 (1) (356 SE2d 222) (1987). Despite an immediate response by the officer to the tip regarding drug activity in the Liberty Street area, the only “corroboration” of the details thereof was the discovery of a lone, evasive person unnamed in the tip walking one block over from Liberty Street. This is no real corroboration at all. Accordingly, “[w]e cannot say here that ‘any deficiency in the basis of the informant[s’] knowledge was . . . adequately compensated by the totality of the attendant circumstances.’ [Cit.]” Rucker v. State, supra at 856. “While the tip, combined with [the discovery of appellant and prior information relating to him may have given] rise to an articulable suspicion of criminal wrongdoing sufficient to support an investigatory detention, [cit.], we do not believe the facts known to the officers after completing their [frisk] of the appellant^ including the discovery of large sums of cash on his person,] . . . were sufficient under the circumstances to establish probable cause for the appellant’s arrest for unlawful possession of drugs. Accordingly, we are constrained to hold that the [‘search incident’ to appellant’s arrest] was not authorized and that the trial court erred in denying the appellant’s motion to suppress. [Cits.]” Salter v. State, supra at 243-244 (1). Compare Illinois v. Gates, supra; State v. Stephens, supra.

The dissent ignores fundamental principles of Fourth Amendment jurisprudence.

There were several informants, but, even construing their reports, together, there was no reliable information that appellant was then in current possession of drugs so as to authorize an immediate warrant-less arrest for that crime. Under the “totality of the circumstances,” the most that can be said is that the officers were in possession of mere rumors, circulating in the underworld, that appellant was in violation of the drug laws. Mere rumors of criminal activity, from sources not otherwise shown to be reliable, will not authorize an immediate warrantless arrest. Salter v. State, supra at 243 (1). Compare Jones v. State, 195 Ga. App. 868, 869 (1) (395 SE2d 69) (1990) (wherein the specific and detailed tip was provided by a concerned citizen).

There was no independent corroboration of the rumors. The officers merely discovered appellant walking alone some distance from Liberty Street. This does not corroborate that drugs were being sold in the Liberty Street area because “sale” requires a seller and a buyer. Compare State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989) (wherein the officers personally observed a probable on-going drug deal between two individuals); State v. Grimes, 195 Ga. App. 773, 774 (1) (395 SE2d 42) (1990) (wherein the officer observed suspicious activity, not the mere presence of an individual). Corroboration of an individual’s mere presence at a designated public location is not corroboration of otherwise unreliable rumors of criminal activity so as to authorize an immediate warrantless arrest. Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990).

Appellants flight did give the officers an articulable suspicion to stop and frisk him. However, the frisk did not result in the discovery of drugs. The frisk resulted only in the discovery of large sums of money. Possession of large sums of money certainly may be suspicious, but it is not itself a crime and does not constitute probable cause for an immediate warrantless arrest for possession of contraband. Brown v. State, 191 Ga. App. 779 (383 SE2d 170) (1989).

The subsequent post-arrest search of appellant did produce drugs. However, the existence of probable cause cannot be determined on the basis of hindsight. Under the dissent’s analysis, any law-abiding citizen who is the target of anonymous rumors from otherwise unreliable sources would be subject to an immediate warrant-less arrest if he is merely found walking down a public street with a large sum of money in his possession. To protect law-abiding citizens from being subjected to such harassment, the Fourth Amendment serves to limit an officer’s authority to effectuate an arrest and the exclusionary rule mandates the grant of appellant’s motion to suppress. Salter v. State, supra at 243 (1).

2. Appellant enumerates the general grounds. In light of our holding in Division 1, appellant’s conviction for trafficking in cocaine must be reversed because the cocaine was inadmissible.

3. As to the other count, appellant contends that the State failed to prove that he lived in the house where the marijuana was found pursuant to a search warrant or that he had the requisite intent to distribute.

Over a two-month period, officers had undertaken a surveillance of the house in question. The only person seen entering or leaving the premises was appellant, who would enter without knocking and sometimes stay all night. Appellant’s vehicles were regularly parked there, and the water bill for the house was in his name. Appellant made no showing that anyone else had been to the house during the two-month surveillance. “The police surveillance of the [house], in addition to the other evidence adduced, amply supported, if not demanded, a finding by the jury that appellant resided in [the house in question].” Barkley v. State, 198 Ga. App. 477, 478 (402 SE2d 88) (1991).

The search of the house revealed a total of 2.2 ounces of marijuana rolled up in 47 plastic bags and a red tool box containing almost $8,000 cash in various large and small denominations. “Circumstantial evidence that the total quantity of marijuana possessed by [appellant] was packaged in numerous small [plastic bags, and that a large amount of cash was also found,] is sufficient for a rational trier of fact to find [appellant] guilty of possession with intent to distribute. [Cits.] We find the circumstantial evidence in this case sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Henderson v. State, 184 Ga. App. 834, 836 (2) (363 SE2d 52) (1987). See also Wiley v. State, 178 Ga. App. 136 (1) (342 SE2d 342) (1986); Hunter v. State, 190 Ga. App. 52, 54 (2) (378 SE2d 338) (1989).

4. The admission into evidence of a photograph of appellant is enumerated as error.

The photograph was found during the search of the house, lying in plain view on a coffee table in the living room. Thus, it was relevant to show that the house was appellant’s residence. “Photographs which are relevant to any issue in the case are admissible even though they may have an effect upon the jury. [Cit.]” Barfield v. State, 170 Ga. App. 796, 797 (2) (318 SE2d 219) (1984). See also Ramey v. State, 250 Ga. 455, 456 (1) (298 SE2d 503) (1983).

5. Appellant enumerates as error the instruction given the jury regarding the photograph, urging that it amounted to an impermissible comment on the evidence and the weight to be attached thereto.

“ ‘ “Where, in charging the jury, the court correctly states the law governing the case, but exception is taken to an illustration used by the court explanatory of a legal principle, this court will not narrowly scrutinize the illustration if satisfied that, whether right or wrong, it was not calculated to mislead, and did not in fact mislead the jury.” ’ [Cit.]” Ridgeway v. State, 174 Ga. App. 663, 667 (7) (330 SE2d 916) (1985). Here, the trial court correctly stated the law regarding the admission of the photograph and, although an explanatory illustration of the legal principle was employed, the trial court subsequently told the jury that it did not mean to give too strong an illustration, but that it was merely trying to help them understand the principle. Accordingly, there was no error.

6. The trial court’s failure to sustain an objection to an officer’s testimony regarding conclusions which were or could be drawn from the photograph is enumerated as error. “However, this enumeration is not supported by argument or citation of authority and so is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). [Cit.]” (Emphasis supplied.) Saunders v. State, 195 Ga. App. 810, 811 (2) (395 SE2d 53) (1990).

7. The failure of the trial court to instruct the jury to disregard certain “improper and hearsay” testimony is enumerated as error. However, the record shows that appellant’s objection was sustained prior to any actual hearsay testimony being given. On appeal, appellant urges that certain other testimony was inadmissible as constituting an opinion on an ultimate issue. However, the record shows that no objection was raised at the time this testimony was given.

8. The trial court’s giving of a charge on the subject of searches and probable cause is enumerated as error.

Appellant objected below only on the ground that the charge is “not a correct statement of law, the whole thing taken as a whole.” On appeal, appellant nevertheless contends that the instruction relates to an issue not within the province of the jury and is an impermissible comment on the evidence. As to the objection raised below, the charge appears to be an accurate statement of the law. The trial court informed the jury that the issues of lawfulness of any search and existence of probable cause are not issues for the jury. The objections on appeal may be valid, but those objections were waived when appellant did not raise them below “and did not reserve the right to make further objections. [Cit.]” Garrett v. State, 184 Ga. App. 715, 716 (4) (362 SE2d 423) (1987).

9. Appellant’s remaining enumeration of error relates to the jury charge. However, the objection raised on appeal was not raised below and appellant did not reserve the right to make further objections. Accordingly, the right to assert this enumeration of error was waived.

10. Appellant’s conviction and sentence for possession of marijuana with intent to distribute are affirmed. His conviction and sentence for trafficking in cocaine are reversed.

Judgment affirmed in part and reversed in part.

Sognier, C. J., Pope and Cooper, JJ., and Judge Arnold Shulman concur. McMurray, P. J., Birdsong, P. J., Beasley and Andrews, JJ., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I fully concur in Divisions 3 through 9 but not in Divisions 1, 2, and consequently 10, for in my opinion the search which yielded the cocaine met the requirements of the Fourth Amendment.

1. In determining the validity of a search which is deemed valid after a suppression hearing, the trial evidence is also considered. O’Donnell v. State, 200 Ga. App. 829, 830 (1) (409 SE2d 579) (1991). In addition, we are governed by the rule that “the trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. Lego v. Twomey, 404 U. S. 477 [(92 SC 619, 30 LE2d 618)] (1972); [Cits.]” Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975).

Appellant complains not only that the court erred in denying the motion to suppress but also, for the same reason, in admitting such evidence at trial and denying the amended motion for new trial.

The composite of the evidence shows that “ ‘probable cause existed for a belief [by the police] that [Polke] was currently in unlawful possession of cocaine. . . .’ [Cit.]” Salter v. State, 198 Ga. App. 242, 243 (1) (401 SE2d 541) (1990). This is sufficient to authorize a warrantless search when there are exigent circumstances, which here were created when the tips are taken in concert, and to them are added the police knowledge of the drug-proneness of the geographical area to which they were directed, together with the corroboration of the tips by Polke’s presence where the information said he would be, plus his deliberate evasion of the police in that very locale and at that time, clearly indicating a desire to avoid even talking to them.

As repeated in Salter, supra: “Under the standard set forth by the United States Supreme Court in Illinois v. Gates, [462] U. S. [213] (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant’s tip only if, under the ‘totality of the circumstances,’ including the ‘veracity’ and ‘basis of knowledge’ of the informant, there is a ‘fair probability’ that contraband or evidence of a crime will be found in a particular place. Id. at 4716.” Felker v. State, 172 Ga. App. 492, 494 (4) (323 SE2d 817) (1984).

There was not one informant here, but several, and their various pieces of information added up and all pointed in one direction, i.e., that Polke then had cocaine in his possession. The police were not directed to an unidentified individual. They knew they were looking for Polke, and the testifying officer knew him, having talked to him out on the street several times. Another officer also knew him and had arrested him previously, and a third officer who remained at the station had known him for two years. The chief of police had talked to him a number of times. His residence was even then under surveillance for drug activity, as it had been for two months.

According to the officer who testified at the motion hearing, the person who had provided them with reliable drug crime information in the past called, “saying that there was (sic) drugs being sold in the Liberty Street area and we (the police) know who it is.” This was between 10:00 and 11:00 p.m. This officer, an investigator who had twelve years’ police experience, immediately went with two others to the Liberty Street area looking for Polke. They had made numerous drug arrests in that area and had had “hundreds of complaints” about people “standing on the corner flagging people down selling drugs.” These complaints came “at least every day several times a day.”

The other person from whom the officer received information earlier that evening had been arrested for cocaine but was no longer under arrest. He was being interviewed by the officer and told him that Polke had drugs on him that night, specifically two snuff boxes inside his shorts, and a lot of money in his boots. He had seen these stashes several times. These particular details were consistent with other information the police had received about Polke. This person had given information in the past which the officer believed was true, although he had not tried to corroborate it.

Polke was spotted in the vicinity of where it had been reported he would be. He was not in any of the vehicles he drove and he was not on his motorcycle; he was on foot. When he saw the police, he made an abrupt turn and deliberately changed his course, twice. Ordinarily when he would see the chief of police, he would run up and talk, but this time he moved away instead, raising the chiefs suspicion that something was awry. During the first detour across the railroad track, through the weeds, he walked more hurriedly than he usually did. He flagged a car and talked with the occupants for a few minutes. When the police car approached, he started to run, but the officer jumped out and stopped him.

“Flight at the approach of law officers is a strong indicium of mens rea. [Cit.] Indeed, flight coupled with other circumstances has been held to establish probable cause for an immediate arrest. Scott v. State, 193 Ga. App. 74 (387 SE2d 31) (1989); State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989).” State v. Grimes, 195 Ga. App. 773, 774 (1) (395 SE2d 42) (1990). In Billoups, the court analyzed the circumstances and concluded “that in the context of the time of day and the location, the [suspect’s] flight from the officer provided probable cause for a belief that he was in possession of unlawful contraband, with the result that the search was authorized as a search incident to a valid arrest.” 191 Ga. App. at 835.

In Polke’s case, the circumstances were much stronger and the police had a more knowledgeable underlying base. As in Grimes, so here: “However, even assuming that the other circumstances which were present in the instant case were not such as to establish probable cause for [Polke’s] immediate arrest, his flight ‘was nevertheless clearly a sufficiently suspicious . . . response to the (approach of law officers) so as to give (them) at least a reasonable suspicion of [Polke’s] criminal activity and to warrant further investigation.’ [Cit.]” 195 Ga. App. at 774.

When the officers finally stopped Polke and the testifying officer frisked him, he tried to stop the frisk by repeatedly pushing his hand away and loudly telling him to stop the frisk as the officer told him he wanted to talk to him about some drugs. His girl friend came running up and tried to interfere. The officer felt a large bulge in his front pocket and thought it could be a weapon. He put his hand in the pocket and pulled out a large sum of money, which appeared to be the proceeds of drug sales because of its amount. Polke also had a plastic bag full of money in his cowboy boot. The total was over $9,000 in denominations of 10, 20, 50, and 100.

Decided February 20, 1992

Reconsideration denied March 11, 1992.

Stubbs & Associates, M. Francis Stubbs, for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assis tant District Attorney, for appellee.

The frisk was justified under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). The officers had reasonable articulable grounds under the totality of the circumstances, not arising simply at the moment but including what led up to it, to suspect that defendant was armed and engaged in criminal activity; a frisk was necessary for the protection of the officers out on the street in a high crime area at night; the frisk was limited to a search for weapons in Polke’s pocket and boot, both of which contained bulk which suspicioned the presence of a weapon. See Jackson v. State, 191 Ga. App. 439, 440 (1) (382 SE2d 177) (1989).

The protective measures taken by the officers were reasonable under the circumstances, which is the key question. Edwards v. State, 165 Ga. App. 527, 528 (301 SE2d 693) (1983). The fruit of the frisk, when considered under all the circumstances (Illinois v. Gates, supra), brought the officers to a point at which there was probable cause to arrest and subsequently search defendant without warrant rather than releasing him from the brief investigatory stop. The facts in this case surpassed the quality and quantity of those which authorized the search in Jones v. State, 195 Ga. App. 868, 869 (2) (395 SE2d 69) (1990), wherein these principles were applied.

Polke was arrested and transported to the jail, where a further search of his person, incident to the arrest, revealed the cocaine in two snuff boxes which were concealed between two pairs of underpants which Polke was wearing and for which cocaine (306 pieces in one box and 70 pieces in the other) he was convicted of the offense of trafficking. OCGA § 16-13-31 (a) (1).

Thus, the motion to suppress was authorized as there, was no Fourth Amendment violation, and the law did not require the exclusion of the evidence. Nor was a new trial demanded by these grounds.

2. The evidence as to the cocaine charge was sufficient to meet the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

I am authorized to state that Presiding Judge McMurray, Presiding Judge Birdsong and Judge Andrews concur in this opinion.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A91A1935.
    DAVIS et al. v. THE STATE.
    (416 SE2d 789)
   Pope, Judge.

Defendants were convicted by a jury of trafficking in cocaine. They appeal their convictions and the denial of their motion for new trial.

On May 1, 1990, law enforcement officers executed a search warrant on the residence of defendants Harold J. Davis and his wife Willie B. Davis. Neither defendant was present during the search. Approximately 36 grams of cocaine were found in various locations in the master bedroom of defendants’ home along with $3,100 in U. S. currency. The predicate for the search warrant was an affidavit from an assistant district attorney alleging that a high school student possessing crack cocaine had told law enforcement authorities he had obtained the cocaine from defendants’ son. The affidavit further stated that defendants’ son told the student that his father had a substantial quantity of cocaine at their home. On appeal defendants are represented by different defense counsel.

1. Defendants first argue the evidence was insufficient to support their convictions because their son had equal access and opportunity to commit the crime. However, the equal access rule does not apply when “ ‘contraband is not in an open, notorious and equally accessible area.’ [Cit.]” Brown v. State, 190 Ga. App. 324, 327 (4) (378 SE2d 908) (1989). In the present case, cocaine was found in the pocket of a man’s shirt in a closet off the master bedroom, on a shelf in the same closet, in pockets of shirts in a chiffarobe in the master bedroom, in a bag underneath a chest of drawers in the master bedroom and in a prescription bottle bearing Willie Davis’ name discovered in a drawer. Thus, none of the contraband was in an open, notorious and equally accessible area.

Moreover, defendants failed to present affirmative evidence at trial showing their son had equal access to the areas where the contraband was found. Instead, defendants alleged that law enforcement officials executing the search warrant planted the cocaine in their bedroom. Thus, we must reject defendants’ argument that the evidence was insufficient to support their convictions. Nelson v. State, 199 Ga. App. 487 (1) (405 SE2d 310) (1991). We conclude that ample evidence was presented to enable a rational trier of fact to find defendants guilty of the offense of trafficking in cocaine beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendants next contend the trial court erred in dismissing their motion to suppress evidence obtained through an improper and illegal search. Defendants timely filed their motion on June 25, 1990, during their arraignment. On September 24, 1990, during the hearing on the motion to suppress, the State orally moved to dismiss defendants’ motion on the ground that it failed to state reasons or facts showing the search was illegal, as required by OCGA § 17-5-30. After noting that the motion to suppress failed even to mention that the allegedly unlawful search was conducted pursuant to a search warrant, the trial court dismissed defendants’ motion to suppress.

“[A] 11 motions to suppress, whether based on statutory or non-statutory grounds must state facts and not merely conclusions. [Cit.] ” (Punctuation omitted.) Boatright v. State, 192 Ga. App. 112, 118 (8) (385 SE2d 298) (1989). Because defendants’ motion to suppress failed to state any facts alleging why the search and seizure were illegal, the trial court did not err in dismissing the motion. Taylor v. State, 197 Ga. App. 678 (1) (399 SE2d 213) (1990).

3. Immediately after the trial court dismissed defendants’ motion to suppress, defense counsel asked the court to allow defendants the right to amend the motion because defendants were only able to get witnesses to talk to them during the week preceding the hearing. Based upon these interviews, defendants now had specific grounds for attacking the search warrant. The trial court rejected defendants’ argument because defense counsel admitted during the hearing that the interviews with the witnesses had taken place almost one week earlier and defense counsel had not taken any steps to amend the motion until after it was dismissed at the hearing. Additionally, the evidence before the trial court indicated the search warrant and affidavit had been on file since May 3, 1990, and defendants had access to all the information contained therein during the months preceding the hearing. Defendants now raise as error the trial court’s refusal to allow the motion to suppress to be amended.

Relying on Cadle v. State, 136 Ga. App. 232 (1) (221 SE2d 59) (1975), defendants contend they have an absolute right to amend a motion to suppress at any time prior to trial. However, defendants’ reliance on Cadle is misplaced because Cadle was decided prior to the enactment of Uniform Superior Court Rule 31.1 providing that criminal pretrial motions must be made and filed at or before time of arraignment, unless a written extension of time is given by the trial court before trial. Mills v. State, 187 Ga. App. 79 (2) (369 SE2d 283) (1988). In the present case, defendants’ motion to suppress was timely filed at defendants’ arraignment but was subsequently dismissed because it was legally defective. Whether defendants were to be afforded an opportunity to file a second, untimely motion to suppress was at the discretion of the trial court. State v. Grandison, 192 Ga. App. 473, 474 (385 SE2d 139) (1989). This discretion will not be disturbed on appeal absent abuse. Hall v. State, 181 Ga. App. 92 (1b) (351 SE2d 236) (1986). In our view, defendants have failed to show an abuse of the trial court’s discretion in denying the request for leave to file the untimely motion to suppress. Accordingly, this enumeration of error is without merit.

4. Despite the trial court’s refusal to allow defendants the right to amend their motion to suppress, defendants filed a second motion to suppress on October 15, 1990, setting forth in detail the portions of the district attorney’s affidavit which they alleged to be false. On October 22, 1990, at the hearing on the second motion to suppress, the State made an oral motion to dismiss defendants’ motion on the ground that it was untimely filed under Uniform Superior Court Rule 31.1. The trial court granted the motion to dismiss,- and defendants filed a motion for reconsideration of their motion to suppress which was denied by the trial court on January 3, 1991. Defendants now enumerate as error the trial court’s dismissal of the second motion to suppress.

As discussed in Division 3 of this opinion, Uniform Superior Court Rule 31.1 requires a motion to suppress to be filed at or before arraignment unless a written extension has been granted by the trial court. Because the trial court granted no such extension in this case, the trial court did not err in dismissing defendants’ second motion to suppress. Grandison v. State, 200 Ga. App. 309 (4) (408 SE2d 135) (1991); Lazarz v. State, 187 Ga. App. 107 (369 SE2d 355) (1988).

5. Defendants also argue that the trial court’s consideration of the State’s oral motions to dismiss the first and second motions to suppress violated their right to due process under the Fourteenth Amendment. Defendants acknowledge that OCGA § 17-5-30, which requires a motion to suppress to be in writing, contains no similar provision which would require a motion to dismiss by the State also to be in writing. Defendants have found no other authority which would require a State’s motion to dismiss to be in writing, nor has our research disclosed any such rule. This court has previously recognized that motions in limine made by the State need not be in writing. See Brown v. State, 192 Ga. App. 864 (2) (386 SE2d 734) (1989). We see no reason why motions to dismiss made by the State should not be treated similarly.

We reject defendants’ argument that the trial court’s consideration of the oral motions to dismiss violated their Fourteenth Amendment right to notice and due process. Defendants’ first motion to suppress was, on its face, legally deficient. Defense counsel knew or should have known that an objection by the State to the boilerplate form was imminent. Moreover, defendants filed their second motion to suppress after the trial court specifically ruled it was not going to allow defendants to amend their first motion to suppress. Defendants knew or should have known that the State would again voice an objection to the untimely motion. We therefore conclude that defendants’ Fourteenth Amendment rights to due process were not violated in this case.

Decided February 26, 1992

Reconsideration denied March 11, 1992

Calhoun & Associates, John R. Calhoun, Gregory N. Crawford, for appellants.

James L. Wiggins, District Attorney, Timothy G. Vaughn, Assistant District Attorney, for appellee.

6. Defendants lastly enumerate as error the trial court’s refusal to compel Sheriff Higgs, a witness for the State, to provide the name of the juvenile whose statements allegedly formed a part of the basis of the State’s case. Defendants allege that this refusal was a violation of their confrontation rights under the Sixth Amendment.

Our review of the transcript reveals that during defendants’ cross-examination of Sheriff Higgs, the sheriff mentioned that another juvenile at the high school had been found in possession of cocaine on the day preceding the issuance of the search warrant. The sheriff refused to provide the name of the juvenile unless he was directed to do so by the trial court. Defense counsel moved the trial court to direct Sheriff Higgs to provide the name of the juvenile, and after defense counsel argued why they believed the juvenile’s name was critical to the cross-examination of the sheriff, the trial court stated: “I’m going to deny your request at this time. You may make your motion at a later time if you decide to renew it, but right now I’m not going to grant it.” Our review of the transcript reveals that defense counsel failed to renew the motion although the cross-examination of the sheriff continued for a considerable time thereafter. It is a well settled rule that a litigant cannot submit to the ruling of a trial court or otherwise acquiesce in the holding or response and then complain of the same on appeal. See Wilburn v. State, 199 Ga. App. 667 (2) (405 SE2d 889) (1991). Because defendants failed to renew their motion, we need not consider this enumeration of error on appeal. We also note that any error on the part of the trial court would be harmless error because it appears that defense counsel already knew the name of the juvenile referred to by the sheriff, and the juvenile was present in court as a witness.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A1946.
    TURNER et al. v. BINSWANGER.
    (417 SE2d 221)
    Decided February 26, 1992
    Reconsideration denied March 11, 1992

      Christopher A. Townley, for appellants.

      Renzo S. Wiggins, Arnall, Golden & Gregory, James A. Gober, for appellee.
   Birdsong, Presiding Judge.

Appellants/defendants, David Eugene Turner and Melody Turner, by notice of appeal filed July 3, 1991, appeal solely from the trial court’s “Order Denying Defendants’ Motion for New Trial and Amending Judgment” filed June 4, 1991; they file four enumerations of error in support thereof.

The record reflects that following entry of a “Final Order,” filed August 14, 1990, appellants did not file a notice of appeal thereto, but filed an untimely motion for new trial on September 14, 1990. On February 27, 1991, appellants filed a “Request to Have Out-Of-Time Motion for New Trial Considered,” and prayed they be allowed to proceed with an extraordinary motion for new trial. The trial court granted permission for filing the extraordinary motion, but denied it.

An appeal from the denial of an extraordinary motion for new trial, when as in the case sub judice is separate from any original appeal, must be made by application. OCGA § 5-6-35 (7). As appellants have failed to make application for discretionary appeal of the denial of their extraordinary motion for new trial, this appeal must be dismissed for want of jurisdiction. Franklyn Gesner &c. v. Ketcham, 186 Ga. App. 853 (368 SE2d 774); Martin v. State, 185 Ga. App. 145, 146 (1) (363 SE2d 765).

Appeal dismissed.

Pope and Cooper, JJ., concur.


author: Carley, Presiding Judge.

text:
    A91A1972.
    STAPP et al. v. GRAND UNION COMPANY.
    (416 SE2d 535)
   Carley, Presiding Judge.

Appellant-plaintiff Mrs. Violet Stapp is a food brokerage sales representative. While standing in the warehouse area of appellee-defendant’s store, she was injured when a 12-foot wooden ladder, weighing some 55 to 60 pounds, fell and struck her. Appellant did not see the falling ladder and, according to the testimony of the sole eyewitness, the ladder had been leaning vertically against the wall approximately ten feet behind appellant when it suddenly fell. The ladder, which was for use by appellee’s employees to change light bulbs, had been stored in the same position for at least the three preceding days.

As the result of her injuries, appellant and her husband filed suit against appellee. The case was brought to trial before a jury, but, at the close of appellants’ evidence, the trial court granted a directed verdict in favor of appellee. Appellants appeal from the judgment entered by the trial court on its grant of appellee’s motion for a directed verdict.

The record shows that appellants “presented no evidence at trial of any specific instances of negligence on the part of [appellee] in keeping the premises safe for its [business invitees]. Instead, [they] simply showed that the [ladder] had [fallen on appellant Mrs. Stapp], relying on the doctrine of res ipsa loquitur to reach the jury. ‘The expression “res ipsa loquitur” means that the transaction speaks for itself. It is a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another where it is shown that “the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage,” and “the accident was of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.” [Cit.] The rule is one of necessity in cases where there is no evidence of consequence showing negligence on the part of the defendant.’ [Cit.]” Gresham v. Stouffer Corp., 144 Ga. App. 553-554 (241 SE2d 451) (1978). Accordingly, the issue for resolution is whether the trial court correctly held that appellants had failed to adduce evidence which was sufficient to authorize a recovery under the theory of res ipsa loquitur.

The trial court held that appellants had failed to establish that appellee was in control of the ladder. However, it is clear from the record that appellee owned and operated the store. It is also clear that the ladder was to be used only for appellee’s business purposes. See Gresham v. Stouffer Corp., supra at 554. It is true that there was also evidence that, other than appellee’s employees, vendors, such as appellant Mrs. Stapp, did have authorized access to the warehouse area and would pass through the double doors near the area where the ladder had been positioned. However, the ladder was for use by appellee’s employees, not for the use of the vendors, and “[t]he record in the present case does not disclose that any [vendor] touched the [ladder] or that any [vendor] had an opportunity to do so.” Winn-Dixie Stores v. Fredericks, 106 Ga. App. 732, 735 (2) (128 SE2d 542) (1962). Thus, “[although it would appear that the [ladder] was accessible to [such vendors] and thus not [strictly] within [appellee’s] exclusive physical control, . . . the doctrine of res ipsa loquitur [may nevertheless be] applicable.” Cox v. K-Mart Enterprises of Ga., 136 Ga. App. 453, 454 (221 SE2d 661) (1975). Considering the limited access to the warehouse and the limited use to which the ladder was intended to be put, “a jury would be authorized to conclude that the [ladder] was in the full control of [appellee] and that [appellee] was responsible for its maintenance.” Gresham v. Stouffer Corp., supra at 554. “The facts as to how and when and by whom the ladder was brought into the store, and as to by whom it was raised ... to [its] position [on the wall], and who had charge of it, are not specifically shown, but we think the evidence ... is sufficient to support a finding that [appellee] had possession of the store and of the ladder and that they were exercising dominion over such property.” Raber v. Tumin, 226 P2d 574, 576 (4) (Cal. 1951). Thus, the trial court erred in holding that evidence that appellee owned, operated, and maintained, or controlled and was responsible for the management and maintenance of the ladder was not sufficient. See Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 525-526 (3b) (317 SE2d 853) (1984); Sams v. Gay, 161 Ga. App. 31, 33 (2) (288 SE2d 822) (1982); Smith v. Telecable of Columbus, 142 Ga. App. 535, 536 (236 SE2d 523) (1977). Compare Walter v. Orkin Exterminating Co., 192 Ga. App. 621, 624 (2) (385 SE2d 725) (1989).

Decided February 24, 1992

Reconsideration denied March 11, 1992

Michael R. Sheppard, William E. Cetti, for appellants.

Sullivan, Hall, Booth & Smith, Alexander H. Booth, Jeffrey T. Wise, for appellee.

Appellee also moved for directed verdict on the ground that the occurrence was not of a kind which does not ordinarily happen without negligence. However, “ ‘[f]rom the fact that the [ladder] fell of its own weight, without any [proof of] external violence, a fair presumption would be that the fall occurred through adequate causes, one of the most natural of which would be the negligent and faulty [placement] of the [ladder] itself.’ ” Chenall v. Palmer Brick Co., 117 Ga. 106, 110 (43 SE 443) (1903) (the first Georgia case directly applying the principle of res ipsa loquitur). A person standing in a grocery store warehouse area “is not ordinarily, in the absence of someone’s negligence, struck . . . by a falling . . . ladder. . . .” Raber v. Tumin, supra at 577.

It follows that the trial court erred in granting appellee’s motion for directed verdict.

Judgment reversed.

Beasley, J., and Judge Arnold Shulman concur.


text:
    A91A0490.
    HARRIS v. THE STATE.
    (417 SE2d 223)
    Decided March 11, 1992.

      John O. Ellis, Jr., for appellant.

      Robert E. Wilson, District Attorney, Thomas S. Clegg, Michael D. Thorpe, Assistant District Attorneys, for appellee.
   Pope, Judge.

Our judgment in this case at 200 Ga. App. 841 (410 SE2d 123) (1991) has been reversed by the Georgia Supreme Court on certiorari. Harris v. State, 261 Ga. 859 (413 SE2d 439) (1992). Accordingly, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this court. The judgment of the trial court is reversed.

Judgment reversed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Carley, P. J., Beasley, Cooper, Andrews and Johnson, JJ., concur.


text:
    A91A1922.
    COLLIER v. MARSH et al.
    (416 SE2d 849)
   Carley, Presiding Judge.

Appellant-plaintiff James Collier was injured in an automobile collision on March 4, 1987. On March 2, 1989, he filed suit against “John Doe” and, in their capacities as uninsured motorist carriers, appellee-defendants State Farm Mutual Automobile Insurance Company and American Casualty Company (Insurers) were timely served pursuant to OCGA § 33-7-11 (d). On November 7, 1989, the complaint was voluntarily dismissed and, on February 27, 1990, it was refiled pursuant to the renewal provisions of OCGA § 9-2-61 (a). The refiled “John Doe” complaint was served on the Insurers on March 22, 1990. Through subsequent amendments to the refiled complaint, appellee-defendant Sandra Marsh was substituted for “John Doe.” Thereafter, the Insurers moved to dismiss and the instant appeal is taken from the order of the trial court granting those motions.

1. The trial court found that suit had not been brought against appellee Marsh within the applicable statute of limitation. However, the suit was timely renewed as against “John Doe” and, based on the allegations of the subsequent amendments to the renewal complaint whereby appellee Marsh was substituted for “John Doe,” those amendments related back pursuant to OCGA § 9-11-15 (c). Compare Bailey v. Kemper Group, 182 Ga. App. 604, 607 (356 SE2d 695) (1987). The Insurers did not move for summary judgment and support such motion with evidence to pierce the allegations of the amendments to the renewal complaint. Instead, the Insurers merely moved for dismissal of the renewal complaint. Because the renewal complaint, as amended and as unpierced, shows on its face that the statute of limitations has not run as against appellee Marsh, the trial court erred in granting the motions to dismiss on this ground. Compare Cooper v. Commercial Union Ins. Co., 192 Ga. App. 815 (386 SE2d 551) (1989).

Decided March 11, 1992.

Leonard M. Grinstead, Rene D. Kemp, for appellant.

Zorn & Caldwell, William A. Zorn, Fendig, McLemore, Taylor & Whitworth, Philip R. Taylor, Charles G. Spalding, for appellees.

2. The trial court also granted the motions to dismiss on the ground that the renewal complaint had not been timely served on the Insurers.

The renewal complaint was not served on the Insurers within five days of its filing, but it was served well within the six-month renewal period authorized by OCGA § 9-2-61. Compare Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 349 (1) (408 SE2d 111) (1991); Jones v. Cropps, 197 Ga. App. 313, 314 (2) (398 SE2d 295) (1990). It is only “ ‘ “[wjhere an action is filed within the applicable limitation period but is not served upon the defendant within five days thereafter or within the limitation period [that] the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to insure that proper service was effected as quickly as possible. . . .” [Cit.]’ [Cit.]” (Emphasis supplied.) Bennett v. Matt Gay Chevrolet Oldsmobile, supra at 349 (1).

Accordingly, the trial court erred in granting the motions to dismiss on this ground. “Because an action under [OCGA § 9-2-61] is de novo, the ‘procedural prerequisites such as filing of a new complaint and perfection of service must be met anew.’ [Cits.] In such circumstances, as in the normal statute of limitation [s] situation, where the suit is filed before but service is beyond the expiration period then service is sustainable only if plaintiff acted in a reasonable and diligent manner in attempting to insure that proper service was made as quickly as possible. [Cit.]” Jones v. Cropps, supra at 314 (2). Conversely, as in the normal statute of limitations situation, where the renewal action is filed and service is perfected within the six-month renewal period, then service is valid without regard to whether it was effected as quickly as possible.

Judgment reversed.

Beasley and Johnson, JJ., concur.

Sandra Marsh, pro se.


text:
    A91A2014.
    SPENCER v. LITTLE BROWNIE PROPERTIES, INC.
    (416 SE2d 851)
   Carley, Presiding Judge.

Appellant-plaintiff fell down a flight of stairs on property owned by appellee-defendant. Seeking to recover for injuries sustained in this fall, appellant filed suit against appellee. Appellant appeals from the trial court’s grant of appellee’s motion for summary judgment.

Construed most favorably for appellant and most strongly against appellee the evidence shows the following: As appellant began to lose her balance at the head of the flight of stairs, she reached for the handrail. However, the handrail “leaned over. It gave way. ... It seemed to come loose. . . When the loose handrail gave way, nothing prevented her “from going down all those steps. . . .”

On this evidence, it is immaterial that appellant does not know what caused her to lose her footing at the head of the flight of stairs. She does not allege that appellee’s negligence caused her initially to slip. She seeks to recover on the basis that appellee’s alleged negligent maintenance of the handrail was the proximate cause of her failure to regain her footing after she slipped and that, as the consequence of that negligently maintained handrail, she fell down the steps.

Whether the failure to provide a handrail constitutes a negligent omission is “to be determined upon the circumstances of each case. In making this determination the location, height and width of the steps or walkway would have to be considered.” Fitzpatrick v. Jim Clay Ford, 126 Ga. App. 58, 59 (1) (189 SE2d 876) (1972). In the instant case, however, it is not the failure to provide a handrail that is alleged as negligence. Appellee did provide a handrail and the alleged negligent omission is appellee’s failure to maintain that handrail so that it would serve its intended purpose of providing users of the stairs with a secure means of keeping their balance as they ascended or descended the stairs. Having undertaken to provide a handrail, appellee was obligated to maintain it non-negligently. Atlanta Center, Ltd. v. Cox, 178 Ga. App. 184, 185 (341 SE2d 15) (1986). “[A] business invitee may reasonably assume that the furnishings upon business premises, when they present no obvious hazard, are safe for the use for which they apparently were intended; and ordinary care requires a business proprietor, who has the opportunity to discover the condition of furnishings he places on the premises, to ascertain that they are safe for use under the conditions contemplated.” Peaster v. William Sikes &c. VFW, 113 Ga. App. 211, 212 (147 SE2d 686) (1966). Accordingly, if appellee, in the exercise of ordinary care, knew or should have known that its handrail was loose and if, but for the loose handrail, appellant would have regained her footing rather than fallen down the flight of stairs, appellee may be found liable for appellant’s injuries. “[T]he rule ... is that if the defendant, by the exercise of ordinary care, could have discovered the defect causing the injury, he will be liable for a failure to warn invitees coming upon the premises of such defect even though he did not actually know of its existence, where such defect proximately contributes to the injury.” Atlanta Paper Co. v. Sigmon, 82 Ga. App. 730, 733-734 (1) (62 SE2d 363) (1950).

Decided March 11, 1992.

Nicholas & Weeks, Stephen W. Nicholas, for appellant.

Peter L. Lublin, Sam F. Lowe III, for appellee.

Appellee’s motion for summary judgment was based upon the erroneous premise that appellant’s lack of knowledge as to the cause of her initial loss of footing precluded her recovery. Appellee’s evidence does not negate its alleged negligent maintenance of the handrail as the proximate cause of appellant’s failure to regain her footing and of her consequent fall down the stairway. Accordingly, genuine issues of material fact remain and the trial court erred in granting summary judgment in favor of appellee. See generally Fitzpatrick v. Jim Clay Ford, supra at 58 (1). If, as the result of the initial loss of her footing, appellant would nevertheless have fallen down the stairs notwithstanding appellee’s loose handrail, there can be no recovery. However, issues of appellee’s negligence, appellant’s contributory negligence, and the proximate cause of the fall down the stairs are, on the record before us, for the jury to resolve.

Judgment reversed.

Beasley and Johnson, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A92A0747.
    A92A0748.
    McDUFFIE et al. v. HOOBLER et al. McDUFFIE v. GATINS.
    (416 SE2d 853)
   McMurray, Presiding Judge.

The relevant facts underlying this breach of contract action begin with the purchase of all of the stock of defendant Type Concepts, Inc., by defendants McDuffie and Gatins. The sellers of the stock included two plaintiffs, Eve W. Hoobler and Rosalyn H. White, and three non-parties, Ann Stallard, Maxine Robinson, and Judy Ginn. Plaintiff ERA Associates was the lessor of the premises from which the corporate defendant conducted its business.

Count 1 of the complaint alleges that defendants Gatins and MeDuffie have breached their contractual commitments to plaintiffs, including failure to pay the agreed consideration. Count 2 incorporates the allegations of Count 1 and alleges that the lease from plaintiff ERA Associates to defendant Type Concepts, Inc. was breached in material ways, including failure to pay rent and damage to the premises.

Defendants McDuffie and Type Concepts, Inc. answered, denying that they had breached the contracts at issue and raising various affirmative defenses, and counterclaimed alleging that under the terms of the stock purchase agreement plaintiffs White and Hoobler were liable for the damages arising from certain breaches of non-competition agreements by Stallard and Ginn. Substantially similar issues were raised in the answer and counterclaim of defendant Gatins, who also filed a cross-claim against defendants McDuffie and Type Concepts, Inc. The cross-claim alleged that McDuffie had purchased Ga-tins’ shares of stock in Type Concepts, Inc. and that under the terms of the purchase agreement McDuffie and Type Concepts, Inc. had assumed Gatins’ payment obligations and agreed to indemnify and hold Gatins harmless from any liability for non-payment of certain contractual obligations upon which plaintiffs’ action was predicated.

The eight documents executed in connection with the first purchase and sale of stock include a stock purchase agreement, a closing memorandum, a promissory note, and five non-competition agreements. Defendants contend that the eight documents constitute one contract between the parties under which a violation of the non-competition provisions by any one of the sellers would give rise to a right of indemnification against any or all of the sellers.- Plaintiffs disagree as to the construction of the contract or contracts, and contend that there was no breach of any contract by the individual plaintiffs or by the non-party sellers.

Plaintiffs moved for summary judgment against defendants. The motion sought $43,802.86 for plaintiff Hoobler representing two annual installments under this seller’s non-competition with defendants. The motion also sought for plaintiff White, $29,793.18 for breach of her covenant not to compete and $44,118.96 for failure to pay the promissory note issued to her. In connection with the business premises leased by Type Concepts, Inc., the plaintiffs sought $9,940 in unpaid rent and $2,435.36 for repairs and utilities. Additionally, plaintiffs sought post-judgment interest and attorney fees. Defendant Gatins moved for summary judgment against cross-claim defendants McDuffie and Type Concepts, Inc. for all sums for which he may be found liable to plaintiffs.

The state court granted plaintiffs’ motion for summary judgment against defendants awarding all of the relief sought, except that the judgment for unpaid rent, repairs, and utilities was awarded only to plaintiff BRA Associates and against only defendant Type Concepts, Inc. Subsequently, defendant Gatins’ motion for summary judgment against the cross-claim defendant McDuffie was granted in the principal amount of $117,715.

Defendants McDuffie and Type Concepts, Inc. appeal from the grant of summary judgment in favor of plaintiffs and against defendants in Case No. A92A0747. In Case No. A92A0748, defendant Mc-Duffie appeals the summary judgment against him and in favor of Gatins, but raises only the same issues concerning the grant of summary judgment in favor of plaintiffs which are raised in Case No. A92A0747. Held:

1. Following the filing of the notice of appeal in Case No. A92A0747, a suggestion of bankruptcy was filed in the state court showing that Type Concepts, Inc. had filed a voluntary petition for bankruptcy protection under 11 USC § 1100 et seq. Based upon this notice on the record, the appellants’ brief incorrectly asserts that Type Concepts, Inc. is no longer a party in this appeal. We are not aware of any authority supporting this assertion. Nor, since this appeal was brought by the appellant debtor, is this court barred from proceeding to a final resolution of Case No. A92A0747. Accredited Assoc. v. Shottenfeld, 162 Ga. App. 575, 578 (2) (292 SE2d 417). Therefore, in reviewing the enumerations of error in Case No. A92A0747, these issues will be viewed as having been raised on behalf of both Type Concepts, Inc. and McDuffie.

2. There is no evidence in the record that Judy Ginn or Ann Stallard violated the covenants of their non-competition agreements. Thus, without reaching the issues argued in regard to whether plaintiffs are liable for any breach of the stock purchase agreement by Ginn and Stallard, it may be concluded that there is no merit in the pleaded defense of failure of consideration or in the related counterclaims. The state court did not err in granting summary judgment in favor of plaintiffs.

McDuffie contends that evidence showing that Ginn and Stallard serviced former customers of Type Concepts, Inc. suggests violation of the non-competition agreements. Ginn continued to work for Type Concepts, Inc. after the purchase of the company by McDuffie and Gatins until she was fired. Afterwards, Ginn became a shareholder and employee of a new company which competed with Type Concepts, Inc. This was not prohibited by the non-competition agreement. Ginn was prohibited from soliciting certain types of business from customers of Type Concepts, Inc., however, she was not barred from accepting unsolicited business from such customers. The uncontroverted evidence was that Ginn did not solicit the business she received from Type Concepts, Inc.’s customers.

Stallard was a shareholder and employee of Graphic Communications Corporation which had an established practice in conjunction with Type Concepts, Inc. of cooperatively producing certain projects for customers. Stallard’s non-competition agreement is different than that of the other former shareholders of Type Concepts, Inc. in that it contains additional language addressed to the continuance of the relationship between the two corporations. When Stallard, as an employee of Graphic Communications Corporation received a request for services provided by Type Concepts, Inc., her non-competition agreement required that she give Type Concepts, Inc. the first opportunity to bid on the project and was required to contract with Type Concepts, Inc. so long as Type Concepts, Inc.’s bid was competitive in price and so long as Type Concepts, Inc. was otherwise able to satisfy the customer’s needs or requirements “in house” in terms of quality, delivery dates, due dates for bids and technical expertise. Where these specific provisions as to business submitted through Graphic Communications Corporation are applicable, they must be deemed to prevail over any conflicting general language in Stallard’s non-competition agreement. Hearn v. Old Dominion Freight Lines, 172 Ga. App. 658 (1), 659 (324 SE2d 517).

Decided March 11, 1992.

Weiner, Yancey & Dempsey, J. Matthew Dwyer, Jr., William W. White, for appellants.

Carr, Tabb & Pope, W. Pitts Carr, J. Renee Kastanakis, Bynum & Lewis, Joe H. Bynum, Jr., for appellees.

Stallard, on behalf of Graphic Communications Corporation, placed business of established customers of Type Concepts, Inc. with other companies, including a significant portion which was placed with the new company in which Ginn was a shareholder and employee. Nonetheless, a violation of Stallard’s non-competition agreement was not shown since there was uncontroverted evidence that the changes occurred due to high bids and poor quality work from Type Concepts, Inc. following its loss of certain experienced personnel including Ginn.

Judgments affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0755.
    FOSTER v. THE STATE.
    (416 SE2d 855)
   McMurray, Presiding Judge.

Defendant Foster appeals his conviction of the offense of armed robbery. The only enumeration of error raises the sufficiency of the evidence to authorize defendant’s conviction. Held:

The victim went to a post office at approximately 10:30 or 11:00 p.m. to purchase stamps. As the victim was obtaining change from a machine, he was approached by defendant who threatened him with a small caliber revolver and demanded his wallet. The victim pleaded with defendant that he be permitted to retain possession of certain documents in his wallet, but defendant continued to demand possession of the wallet. The victim dropped the wallet on the floor and defendant picked it up, lowered the gun, and began to walk away. The victim followed defendant from the post office requesting the return of the documents from the wallet. After the victim followed the defendant from the post office, defendant turned and fired a shot at the victim but missed. The victim continued to follow defendant at a distance. As they entered a neighborhood known as Bethel Homes, the victim observed defendant speaking to individuals he passed. Shortly after entering the neighborhood, the victim armed himself with a baseball bat, but then lost sight of defendant. When the victim thought he saw defendant in the distance, he approached an individual who, although dressed similarly to defendant, upon turning towards the victim was obviously an older person than defendant. Thereafter, the victim came upon defendant as he was about to enter a car driven by another individual. The victim identified defendant as the perpetrator of an armed robbery to other individuals who were present. Defendant pulled out a gun and threatened the victim before entering the car. The victim told the driver of the car that he would be reported to the police if he drove away. Defendant then got out of the car and pulled out the gun again. The victim again pleaded for the return of the documents from his wallet to no avail. When the victim then saw police officers walking nearby, he started yelling at them. At this point, the crowd that had gathered began to disperse and the victim saw defendant give away something, which he could not identify, to one of the bystanders.

After the victim pointed out defendant to the police officers as a person who had recently robbed him, the police approached defendant, patted him down for weapons, and searched the area, including the car in which defendant had briefly been a passenger. The police failed to find a weapon or the victim’s wallet. Nonetheless, after investigation the police decided to arrest defendant and so informed him. Upon being informed that he was being placed under arrest, defendant fled and was apprehended at a later time.

Two weeks later, police submitted a photographic lineup to the victim who was able to eliminate four of six photographs, but was unable to deterniine which if either of the two remaining photographs showed the individual who had robbed him. However, the victim never identified anyone other than defendant as the perpetrator of the armed robbery. The victim identified defendant as the perpetrator at trial and stated that this identification was not influenced by the photographic lineup.

Decided March 11, 1992

Russell Gabriel, for appellant.

Harry N. Gordon, District Attorney, Jimmie E. Baggett, Assistant District Attorney, for appellee.

Defendant argues at length concerning the reliability of the victim’s identification testimony. The issues raised by the defendant in this regard include the lack of corroboration of the victim’s testimony, pre-existing stress on the victim due to serious injuries to a friend, the stress upon the victim of being threatened with a firearm during the armed robbery, the victim’s anger arising from ethnic slurs spoken to him during the robbery, the victim’s mistaken approach of a person dressed similarly to defendant, the fact that the victim lost sight of defendant for a period of time, the fact that police failed to find a gun or the victim’s wallet in defendant’s possession, and the victim’s failure to identify defendant from the photographic lineup. However, these issues relate entirely to matters within the exclusive province of a jury. “Determining the credibility of witnesses and resolving conflicts goes to the weight of the evidence and is for the jury’s consideration. Holcomb v. State, 198 Ga. App. 547 (402 SE2d 520) (1991). This court determines only the legal sufficiency of the evidence. Id.” Dobbs v. State, 199 Ga. App. 793, 795 (4) (406 SE2d 252). Viewing the evidence in a light most favorable to the verdict, the evidence was sufficient for a rational trier of fact to find the defendant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Stubbs v. State, 201 Ga. App. 546 (1), 547 (411 SE2d 525).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Judge Arnold Shulman.

text:
    A91A1523.
    GUNTER et al. v. TRUE.
    (416 SE2d 768)
   Judge Arnold Shulman.

On December 16, 1986, the appellee, David True, transferred 50 acres of land and $200,000 in cash to Atlanta Devlin, Inc., in return for that corporation’s promissory note in the amount of $450,000. Contemporaneously with the execution of this note, the appellants, Michael Gunter, Edwin A. Scott, Jr., and Theodore C. Whitson, each signed a document entitled, “Guarranty,” (sic) specifying as follows: “In consideration of one dollar and other valuable consideration, we . . . jointly and severally guarantee the full and faithful performance of all obligations required by the promissory note dated December 16, 1986 between Atlanta Devlin, Inc. and David W. True in the principal amount of $450,000.” In addition, each of the appellants’ signatures on this document was followed by the word, “Guarantor.”

The corporation subsequently defaulted on the note, and its board of directors, which included appellants Scott and Whitson, informed the appellee that the company was insolvent, having total assets of only $5.35 and debts in excess of $119,000. Also, the corporation’s attorney wrote the appellee’s attorney a letter informing him that the corporation could not pay the obligation because it was “without assets and totally insolvent.” The appellee then instituted the present action against the appellants seeking to enforce the guaranty. In their respective answers, the appellants notified the appellee “to proceed to collect the indebtedness from the principal.” The appellee did not do so, and after the passage of three months the appellants filed motions for summary judgment asserting that they had been discharged from their obligation as guarantors pursuant to OCGA § 10-7-24, which provides, in pertinent part, as follows: “Any surety, guarantor, or endorser, at any time after the debt on which he is liable becomes due, may give notice in writing to the creditor . . . to proceed to collect the debt from the principal. . .; and, if the creditor or holder refuses or fails to commence an action for the space of three months after such notice the . . . guarantor . . . shall be discharged.” The trial court denied the appellants’ motions for summary judgment, concluding that because the guaranty applied to a negotiable instrument, their obligation was governed by Article 3 of the Uniform Commercial Code rather than by OCGA § 10-7-24. The case is before us pursuant to our grant of the appellants’ application for interlocutory review of this ruling.

OCGA § 11-3-416 provides, in pertinent part, as follows: “(1) ‘Payment guaranteed’ or equivalent words added to a signature mean that the signer engages that if the instrument is not paid when due he will pay it according to its tenor without resort by the holder to any other party. ... (3) Words of guaranty which do not otherwise specify guarantee payment. ... (5) when words of guaranty are used presentment, notice of dishonor, and protest are not necessary to charge the user.”

There appears to be no question that the promissory note guaranteed by the appellants qualifies as a negotiable instrument under OCGA § 11-3-104. However, the appellants contend that the discharge provision contained in OCGA § 10-7-24 is nevertheless applicable for three reasons: (1) Because it does not conflict with OCGA § 11-3-416 (1); (2) because this court has previously held, in Pine Timber Co. v. Anthony, 191 Ga. App. 375, 376 (381 SE2d 591) (1989), that OCGA § 10-7-24 was not “superseded by statutes derived from the Uniform Commercial Code and codified in OCGA Title 11”; and (3) because the guaranty was written on a separate document from the note itself, thus rendering OCGA § 11-3-416 inapplicable. We reject each of these contentions.

1. As previously indicated, OCGA § 11-3-416 (1) specifies that “‘[p]ayment guaranteed’ or equivalent words added to a signature mean that the signer engages that if the instrument is not paid when due he will pay it according to its tenor without resort by the holder to any other party.” (Emphasis supplied.) It is well settled that the word “guarantor” following a signature on a negotiable instrument signifies a guarantee of payment under this Code section and therefore relieves the holder of any need to sue the maker before suing the guarantor. See Mitchell v. Ringson, 169 Ga. App. 88 (1) (311 SE2d 516) (1983); Sadler v. Kay, 120 Ga. App. 758 (172 SE2d 202) (1969). See also Rainer v. Security Bank &c. Co., 182 Ga. App. 171, 172 (2) (354 SE2d 882) (1987). It follows that to the extent OCGA § 10-7-24 provides for the discharge of a guarantor based on the failure of the creditor to commence an action against the principal, it is inconsistent with OCGA § 11-3-416 (1).

2. In Pine Timber Co. v. Anthony, supra, this court sustained an award of summary judgment to a defendant being sued upon a guaranty which he had executed “on a note,” holding that he was discharged under OCGA § 10-7-24 as the result of the plaintiff’s failure to proceed against the maker within three months after being notified in writing to do so. In rejecting the plaintiff’s contention that OCGA § 10-7-24 had been “superseded by statutes derived from the Uniform Commercial Code and codified in OCGA Title 11,” the court indicated that there was “nothing in the Official Code of Georgia Annotated . . . which would support [this] position.” Id., 191 Ga. App. at 376. However, OCGA § 10-7-27 specifically provides that “Code Sections 10-7-20 through 10-7-26 shall be superseded to the extent of any conflict by the provisions of Article 3 of Title 11, the ‘Uniform Commercial Code — Commercial Paper,’ relating to the discharge of any party to a negotiable instrument.” Moreover, any conflict between OCGA § 10-7-27 and the Uniform Commercial Code would, in any event, be controlled by the UCC “as the later expression of the legislature. ...” Mitchell v. Ringson, supra at 89. Accord Sewell v. Akins, 147 Ga. App. 454, 455 (3) (A) (249 SE2d 274) (1978). Thus, to the extent that Pine Timber Co. v. Anthony (or any other decision of this court) may be read as authority for the proposition that OCGA § 10-7-27 applies to guaranty agreements governed by the UCC, it is hereby overruled.

3. It is well settled that “Article 3 does not govern guaranties which are not ancillary to notes or other actionable negotiable instruments.” Fidelity Nat. Bank v. Reid, 180 Ga. App. 428, 430 (348 SE2d 913) (1986). Thus, we have held OCGA § 11-3-416 to be inapplicable to guaranty agreements pertaining to leases, Ford Motor Credit Co. v. Sullivan, 170 Ga. App. 718 (2) (318 SE2d 188) (1984), nonnegotiable notes, Yarbrough v. Magbee Bros. Lumber &c. Co., 189 Ga. App. 299 (2), 302 (375 SE2d 471) (1988), and open accounts, Cities Svc. Oil Co. v. Collins, 121 Ga. App. 38 (172 SE2d 653) (1970); Panasonic Indus. Co. v. Hall, 197 Ga. App. 860, 861, fn. 1 (399 SE2d 733) (1990).

It does not follow, however, that Article 3 does govern all guaranties which are “ancillary to notes or other actionable negotiable instruments.” In Smith v. Singleton, 124 Ga. App. 394 (2) (184 SE2d 26) (1971), this court stated that “[OCGA § 11-3-416] purporting to define the contract of a guarantor, is, by its express language, confined to situations where some writing appears on the instrument to disclose a contract of guaranty. ‘It states the commercial understanding as to the meaning and effect of words of guaranty added to a signature.’ (Emphasis supplied.) UCC, 1962 Official Text with Comments, The American Law Institute and National Conference of Commissioner on Uniform State Laws, p. 310.” Appellate courts in other jurisdictions have employed similar language in analyzing the scope of UCC § 3-416. For example, in Uniwest Mtg. Co. v. Dadecor Condominiums, 877 F2d 431, 434 (5th Cir. 1989), the United States Court of Appeals for the Fifth Circuit stated: “A separate guaranty agreement does not fall within the ambit of the Uniform Commercial Code. . . . ‘UCC § 3-416 is applicable only to guaranties written on commercial paper that come within the scope of Article 3.’ Anderson, Uniform Comm. Code § 3-416:4 p. 373 (3rd ed.). . . . The UCC Rule is apparently intended to promote the free negotiability of the promissory note. If the guaranty is included within the four corners of the negotiable instrument itself, then whoever receives the negotiable instrument in the stream of commerce immediately becomes aware of a guarantor’s existence.” (Indentation omitted.) See also Fewox v. Tallahassee Bank &c. Co., 249 S2d 55 (Fla. App. 1971); Simpson v. Milne, 677 P2d 365 (Colo. App. 1983); Univ. Bank &c. Co. v. Dunton, 655 F2d 23 (1981); Crown Life Ins. Co. v. LaBonte, 330 NW2d 201 (Wis. 1983).

Decided February 19, 1992

Reconsideration denied March 12, 1992

Kearns & Reeves, Charles F. Reeves, Schreeder, Wheeler & Flint, Timothy C. Batten, for appellants.

Lawrence K. Poole, for appellee.

Although such language provides general support for the proposition that UCC § 3-416 applies only to guaranties appearing on the face instrument itself, we are aware of no case from any jurisdiction in which a guaranty which (1) was executed contemporaneously with a negotiable instrument, (2) was affixed thereto, and (3) applied exclusively to the obligation evidenced thereby was held to fall outside the ambit of the UCC merely because it was written on a separate sheet of paper. Rather, in those cases where a guaranty pertaining to a negotiable instrument has been held to fall outside the ambit of Article 3 of the UCC, the agreement creating it has truly been separate from the instrument itself, often encompassing other obligations or future extensions of credit. See, e.g., Uniwest Mtg. Co. v. Dadecor Condominiums, supra; Fewox v. Tallahassee Bank &c. Co., supra; Simpson v. Milne, supra.

In the present case, appellants Gunter and Scott (the only surviving signatories to the guaranty agreement) both agreed during their depositions to the characterization of that document as “page four” of a four-page promissory note. Pretermitting whether a different result would obtain otherwise, we conclude that under these circumstances, at least, the guaranty must be considered part and parcel of the note itself. Accordingly, we hold that the agreement was governed by OCGA § 11-3-416 (1), with the result that the appellants were not discharged by the appellee’s failure to proceed against the insolvent maker.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Carley, P. J., Pope, Beasley, Cooper and Andrews, JJ., concur.

       Although Whitson will be referred to in this opinion as an appellant, he died during the course of the present litigation, and his executors were substitued for him as parties.

       That Code section provides, in pertinent part, as follows: “(1) Any writing to be a negotiable instrument within this article must: (a) Be signed by the maker or drawer; and (b) Contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation, or power given by the maker or drawer except as authorized by this article; and (c) Be payable on demand or at a .definite time; and (d) Be payable to order or to bearer.”

       Under OCGA § 11-3-416 (2), the words “ ‘[collection guaranteed’ or equivalent words added to a signature mean that the signer engages that if the instrument is not paid when due he will pay it according to its tenor, but only after the holder has reduced his claim against the maker or acceptor to judgment and execution has been returned unsatisified, or after the maker or acceptor has become insolvent or it is otherwise apparent that it is useless to proceed against him.” (Emphasis supplied.)
      Because it is apparent without dispute that Atlanta Devlin, Inc., is insolvent, the appellants would thus have been entitled to proceed directly against the appellants even had they guaranteed collection rather than payment.


text:
    A91A1938.
    ERMUTLU v. McCORKLE et al.
    (416 SE2d 792)
   Pope, Judge.

Plaintiffs/appellees brought a negligence action against defendant/appellant Ilhan Ermutlu, M.D., a psychiatrist employed by the North DeKalb Mental Health Center, seeking damages for the wrongful death of their daughter Lisa L. McCorkle. The trial court denied defendant’s motion for summary judgment, and this appeal follows our grant of the defendant’s application for interlocutory review of the trial court’s order.

Camille Watkins was a patient of Dr. Ermutlu who had been treated by the doctor on an outpatient basis since June of 1986. Prior to her becoming a patient of Dr. Ermutlu, Mrs. Watkins had a history of mental illness for which she had, for the most part, received continuous treatment since the illness’ onset in 1964. Occasionally she would have cyclical relapses which were either treated by an increase in the dosage of her medication or hospitalization. Her last hospitalization had been in 1984. In between inpatient hospitalizations, Mrs. Watkins was stabilized to the extent that she could function at home provided she complied with her medication schedule. Mrs. Watkins’ mental condition had never affected her coordination, mental acuity or ability to concentrate, nor had she ever been involved in an accident or received a traffic ticket. Mrs. Watkins was also taking medication for diabetes, and had available to her pain medication for discomfort caused by a herniated disc.

On June 29, 1988, around 3:00 in the morning, Mrs. Watkins went outside her home and began singing and lecturing her neighbors about her relationship with her husband. Later that day, her husband took her to see Dr. Ermutlu at the North DeKalb Mental Health Center who determined that Mrs. Watkins had experienced a manic episode. Based upon his past experience with Mrs. Watkins, Dr. Ermutlu prescribed an increase in the dosage of her medication. Because Mrs. Watkins did not express any suicidal or homicidal ideations, Dr. Ermutlu did not believe her to present a substantial risk of imminent harm to herself or others so he sent her home with her husband. The medical expert witnesses of record are in agreement that Mrs. Watkins’ mental status at the time of her appointment with Dr. Ermutlu did not meet the criteria for involuntary commitment set forth in OCGA § 37-3-1 (9.1).

On July 1, 1988, two days after her manic episode and her appointment with Dr. Ermutlu, Mrs. Watkins left her home in her automobile to run some errands. At approximately 12:45 p.m., while driving at an excessive speed in the turn lane of Roswell Road, Mrs. Watkins drove her vehicle into the rear of a vehicle being driven by 21-year-old Lisa McCorkle, killing Ms. McCorkle and Mrs. Watkins instantly. The evidence indicates that immediately preceding the fatal accident, Mrs. Watkins had been involved in a hit and run accident on Roswell Road. Neither of the medical expert witnesses nor Dr. Ermutlu could offer an opinion as to what caused Mrs. Watkins’ behavior or whether the fatal accident was caused by or even related to her mental illness.

1. To state a cause of action for negligence in Georgia, the following elements are essential: “(1) [a] legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty. [Cit.]” Lee Street Auto Sales v. Warren, 102 Ga. App. 345, 347 (1) (116 SE2d 243) (1960).

In regard to the first element, the plaintiffs seek to recover from Dr. Ermutlu pursuant to the theory of liability set forth in Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982), in which the Georgia Supreme Court affirmed the holding of this court in Bradley Center v. Wessner, 161 Ga. App. 576, 581 (287 SE2d 716) (1982) that while, as a general rule, there is no duty to control the conduct of third persons to prevent them from causing harm to others, “ ‘where the course of treatment of a mental patient involves an exercise of “control” over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient.’ ” Thus, under Bradley Center, a two-part test has been established for determining under what circumstances a physician may be liable to a third party: (1) the physician must have control over the mental patient; and (2) the physician must have known or reasonably should have known that the patient was likely to cause bodily harm to others. Bradley Center, 161 Ga. App. at p. 579.

In regard to the first part of the test, plaintiffs contend Dr. Ermutlu exercised sufficient control over Mrs. Watkins such that he could be liable for his failure to prevent the automobile accident and the death of Lisa McCorkle. We disagree. In Bradley Center, the patient was a voluntary inpatient in a mental hospital, who shot and killed his wife and her lover while on an unrestricted weekend pass from the private mental hospital. Prior to his release, the patient had made numerous statements to the hospital staff indicating his intention to harm his wife if afforded the opportunity. Although he had been admitted to the private hospital on a voluntary basis, he had, by the terms of the hospital’s voluntary admission program, agreed to certain restrictions on his activity and mobility and the hospital was authorized pursuant to these restrictions to detain him for 48 hours in the event he sought discharge against medical advice. Under these circumstances, this court determined the patient was under the control of the mental hospital.

Unlike the patient in Bradley Center, Mrs. Watkins was a voluntary outpatient. Dr. Ermutlu had no control of Mrs. Watkins in the sense that he could claim legal authority to confine or restrain her against her will unless she met the criteria for involuntary commitment set forth in OCGA § 37-3-1 (9.1). Thus, if Mrs. Watkins had not acquiesced in the treatment plan prescribed by Dr. Ermutlu, he could not have unilaterally imposed the treatment plan upon her except in the most extraordinary circumstances. OCGA § 37-3-163. This court has previously held in order for this duty to control to arise, the physician must be able to “[exercise] control over the freedom of a mental patient.” (Peace v. Weisman, 186 Ga. App. 697, 700 (3) (368 SE2d 319) (1988)) or “claim the legal authority to confine or restrain [the patient] against his will.” Baldwin v. Hosp. Auth. of Fulton County, 191 Ga. App. 787, 789 (383 SE2d 154) (1989). Applying these standards to the present case, we conclude that Dr. Ermutlu neither had the right nor the ability to control Mrs. Watkins’ conduct. See also Hasenei v. United States, 541 FSupp. 999 (D. Md. 1982).

The evidence also fails to meet the second part of the Bradley Center test, requiring a showing that the physician knew or reasonably should have known that a patient was likely to cause bodily harm to herself or others. The evidence in this case indicates that Mrs. Watkins did not meet the criteria for involuntary commitment on June 29, 1988, in that she did not pose a substantial risk of imminent harm to herself or others, as manifested by either recent overt acts or recent expressed threats of violence which presented a probability of physical injury to herself or other persons; nor was she so unable to care for her own physical health and safety as to create an imminently life-endangering crisis. OCGA § 37-3-1 (9.1). Instead, the record indicates that following the one manic episode on June 29, 1988, Mrs. Watkins failed to exhibit further excessive, bizarre or inappropriate behavior. She exhibited no overt signs from which Dr. Ermutlu or her family should have reasonably known that Mrs. Watkins was likely to cause harm to others. “Thus, in contrast to the Bradley Center case, there is no basis upon which [Dr. Ermutlu] can reasonably be charged with the breach of a duty to foresee and prevent an injury to third persons.” Baldwin v. Hosp. Auth. of Fulton County, supra at 790.

2. Moreover, the evidence fails to establish another of the elements necessary in any action for negligence, “a legally attributable causal connection between the conduct and the resulting injury.” Lee Street Auto Sales v. Warren, supra at 347. The record is devoid of any evidence indicating the accident was caused by Mrs. Watkins’ mental condition. Even plaintiffs’ medical expert witness had to admit he could not state with any degree of medical certainty that Mrs. Watkins’ mental disorder caused the accident.

Decided February 28, 1992

Reconsideration denied March 12, 1992

Michael J. Bowers, Attorney General, Mary F. Russell, Assistant Attorney General, Hicks, Maloof & Campbell, Bruce M. Edenfield, for appellant.

Henning, Aitkens, Snellings & Kearns, Stanley T. Snellings, McLain & Merritt, Howard M. Lessinger, Johnson & Montgomery, Albert S. Johnson, for appellees.

Alston & Bird, Ruth H. Gershon, amicus curiae.

Moreover, even assuming the evidence had raised a question of fact as to the “cause in fact” of the accident, the causal connection between Dr. Ermutlu’s conduct and plaintiffs’ injury is too remote for the law to allow a recovery. Mrs. Watkins had been driving an automobile during the entire period of her mental illness (approximately 26 years) without being involved in a traffic accident, receiving a traffic ticket, or displaying behavior which would in any way indicate her mental condition impaired her driving skills. Under this set of circumstances, we must conclude as a matter of law that Dr. Ermutlu could not have foreseen that Mrs. Watkins’ mental illness would have caused the death of Lisa McCorkle. “Although under Georgia law questions of negligence and proximate cause are ordinarily for the jury, plain and indisputable cases may be decided by the court as a matter of law. (Cits.) In such plain cases (t)he inquiry is not whether the defendant’s conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery.” (Citation and punctuation omitted.) Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 67 (2d) (397 SE2d 576) (1990). “Negligence is predicated on what should have been anticipated rather than on what happened. And one is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable.” (Citation and punctuation omitted.) Id. at 68.

Accordingly, the trial court erred in denying defendant’s motion for summary judgment.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A2225.
    THOMPSON v. THE STATE.
    (416 SE2d 755)
   Pope, Judge.

Defendant John Thompson was tried and found guilty by a jury of aggravated sodomy, aggravated assault, false imprisonment and possession of a knife during the commission of a felony, and he appeals.

1. The offenses relate to defendant’s abduction and assault of his former girl friend on February 22,1990. The victim’s testimony established each and every element of the four offenses. Thus, her testimony, alone, was sufficient to support a finding of guilt beyond a reasonable doubt. See OCGA § 24-4-8. Moreover, additional evidence and testimony were presented to corroborate her testimony. Defendant also testified and denied the charges, claiming the victim met him on the day in question, voluntarily stayed with him and consented to sexual intercourse. He also presented the testimony of three co-workers who testified they saw the victim with defendant at defendant’s place of employment on the day in question and that she appeared to be exercising her free will. Each witness, however, said that the two appeared at work at a different time of day. Moreover, since each witness had seen the victim at defendant’s place of employment on other occasions, the jury could have concluded that the witnesses were confused as to the day in question. In any event, “[o]n appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cit.] The evidence was sufficient for a rational trier of fact to find [defendant] guilty beyond a reasonable doubt. . . .” Rigenstrup v. State, 197 Ga. App. 176, 181 (4) (398 SE2d 25) (1990).

2. Defendant also urges that the trial court erred in denying his motion for new trial on the ground of ineffective assistance of counsel. Defendant identifies several acts or omissions of trial counsel which, he argues, when considered together show he received ineffective assistance of counsel. For example, defendant points out that his trial counsel never filed pretrial motions to obtain evidence from the prosecutor. At the hearing on defendant’s motion for new trial, however, his trial counsel testified he informally obtained the cooperation of the prosecutor and was permitted to review and copy the prosecutor’s entire file on the case. Thus, the failure to file pretrial motions was harmless. Defendant argues his trial counsel improperly failed to object to the State’s evidence that defendant had behaved violently toward the victim on previous occasions. “[E]vidence of prior difficulties between an accused and the victim is admissible to illustrate the accused’s motive, intent, or bent of mind toward the victim. [Cits.]” Hales v. State, 250 Ga. 112, 113 (2) (296 SE2d 577) (1982). Accord Hamilton v. State, 260 Ga. 3 (2b) (389 SE2d 225) (1990). Thus, failure to object to this evidence was harmless. Defendant argues his trial counsel improperly failed to introduce a copy of the crime lab report because, defendant argues, the report showing no seminal fluid was discovered on swabs or on laboratory slides obtained pursuant to a physical examination of the victim is exculpatory of the charge of sodomy. In fact, the report does not indicate whether any of the samples were taken from the victim’s anus. It does indicate that samples were taken from the victim’s vagina, and thus the report contradicts the defendant’s testimony that he and the victim engaged in consensual sexual intercourse. Trial counsel’s failure to introduce the report was thus not harmful but helpful to defendant. Trial counsel’s decision not to call as witnesses defendant’s ex-wife and current girl friend to impeach the victim’s testimony that defendant was a batterer of women was supportable and not harmful because such testimony would have raised the issue of defendant’s character and permitted the State to introduce evidence of defendant’s previous felony conviction for forgery. We have examined all other allegations of insufficiency of counsel raised by defendant in light of trial counsel’s testimony at the hearing and conclude the trial court did not err in denying defendant’s motion for new trial. See, e.g., Bowley v. State, 261 Ga. 278 (4) (404 SE2d 97) (1991).

3. The trial court overruled defendant’s objection and permitted the State to present the testimony of a previously undisclosed expert witness for the “limited purpose” of describing the battered woman syndrome as a theory to explain the victim’s behavior. Defendant argues the trial court erred in permitting the witness to testify concerning matters which exceeded this limited scope because she made reference in her testimony to certain acts committed by the defendant. First, we note that defendant’s trial counsel raised no objection to the witness’ testimony. Even considering defendant’s argument that his trial counsel was ineffective, we conclude the scope of the witness’ testimony was not improper. The witness’ few references to specific behavior or acts of the defendant were necessary and reasonable to explain the witness’ conclusion that the victim in this case was a battered woman and that her behavior was as expected from one suffering from battered woman syndrome.

4. Finally, defendant argues the trial court committed reversible error in failing to charge the jury on simple battery, as set forth in OCGA § 16-5-23.1, as a lesser included offense of the charge of sodomy. Defendant denied he committed sodomy upon the victim but testified he engaged in consensual sexual activity with her, including the insertion of his finger into her anus. Even if this testimony were believed it would not support a charge on simple battery because defendant denied he intentionally injured the victim. Neither would it support a charge on sexual battery, pursuant to OCGA § 16-6-22.1, because defendant testified that the victim consented to this act. Because the evidence did not support a charge on a lesser offense, the trial court did not err in failing to give one. See Hill v. State, 259 Ga. 557 (6) (385 SE2d 404) (1989). Moreover, failure to give such a charge was not error because no request was made. See Grice v. State, 199 Ga. App. 829 (6) (406 SE2d 262) (1991).

Decided February 17, 1992

Reconsideration denied March 12, 1992

J. Phillip Hancock, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Nelly F. Withers, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Sognier, Chief Judge.

text:
    A90A2107.
    WAREHOUSE HOME FURNISHINGS DISTRIBUTORS, INC. v. DAVENPORT.
    (417 SE2d 740)
    Decided March 12, 1992.

      Arnall, Golden & Gregory, Jeffery M. Smith, J. Randolph Evans, for appellant.

      Westmoreland, Patterson & Moseley, Thomas W. Herman, for appellee.
   Sognier, Chief Judge.

In Warehouse Home Furnishings Distributors v. Davenport, 261 Ga. 853 (413 SE2d 195) (1992), the Supreme Court limited the scope of its prior decision in Blanton v. Blanton, 259 Ga. 622 (385 SE2d 672) (1989) and reversed our judgment in this case, 199 Ga. App. 33 (403 SE2d 850) (1991), which relied on the interpretation of OCGA § 9-11-45 set forth in Blanton. Accordingly, our judgment in this case is vacated and the Supreme Court’s judgment is made the judgment of this Court. The trial court’s judgment is reversed, and this case is remanded for further proceedings not inconsistent with this opinion and that of the Supreme Court.

Judgment reversed and case remanded.

McMurray, P. J., and Carley, P. J., concur.