text:
    A01A2330.
    BROOKS v. THE STATE.
    (556 SE2d 484)
   Johnson, Presiding Judge.

A jury found Gregory Bernard Brooks guilty of selling cocaine. He appeals, alleging the trial court erred in admitting two exhibits into evidence and alleging the evidence was insufficient to support his conviction. Because Brooks’ enumerations of error lack merit, we affirm his conviction.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Brooks sold cocaine to an undercover agent. After the agent received the cocaine from Brooks, she performed a field test on the substance, placed it in a small plastic bag, and marked the plastic bag with her initials, badge number, time, date, and street. She then placed the smaller plastic bag in an evidence bag and marked the evidence bag with her initials, badge number, date, time, case number, defendant number, and description. The undercover agent denied that anyone had tampered with the cocaine Brooks sold to her while it was in her possession. The evidence bag was then given to another agent.

The second agent placed the evidence bag, which she also initialed, in the locked trunk of her car. She testified that no one tampered with the evidence while it was in her possession. She then delivered the evidence to the state crime lab. The state crime lab witness testified that she received the cocaine in a sealed bag and that the substance presented to her for identification at trial was the same cocaine she tested because the bag contained her crime lab number and initials. The state crime lab witness further testified that any prior field testing would not have affected the substance she was given to test and would have had no import in her analysis.

The state also introduced into evidence a videotape from a camera hidden inside the undercover vehicle. The undercover agent testified that the videotape fairly and accurately depicted the events surrounding the sale of cocaine.

1. In a one-paragraph argument, Brooks contends the cocaine should not have been admitted into evidence because the undercover agent tampered with the evidence when she conducted the field test and because it was left in the second agent’s car trunk for four days. As to Brooks’ argument regarding tampering, the state crime lab witness testified that the field agent’s test did not in any way affect the substance she tested. There is no evidence of tampering in this regard.

In addition, the state traced the travels of the cocaine from Brooks’ hands to the state crime lab. At every point, the cocaine was clearly marked and well secured. Although it may have been left in the second agent’s locked trunk, there is no evidence that the substance admitted at trial underwent any chemical change or was tampered with in any way. The state has given reasonable assurance of the identity of the evidence, and the trial court did not err in admitting the cocaine.

2. In another one-paragraph argument, Brooks contends the videotape should not have been admitted into evidence because the state failed to lay a proper foundation for its admission. However, the undercover agent testified that she had previously viewed the videotape and that it accurately depicted the scene as it occurred during the sale of cocaine by Brooks. She then identified the videotape at trial and again testified that it fairly and accurately represented the transaction between herself and Brooks. The trial court did not abuse its discretion in admitting the videotape over Brooks’ objection.

3. In his final argument, Brooks contends the trial court erred in failing to grant his motion for directed verdict of acquittal and in failing to grant his motion for new trial based on insufficient evidence. On appeal, we apply the same standard in reviewing the denial of a motion for directed verdict of acquittal as we do in reviewing the sufficiency of the evidence, that is, whether, after considering the evidence in a light most favorable to support the jury’s verdict, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Here, there clearly was sufficient evidence to support the jury’s finding that Brooks was guilty beyond a reasonable doubt of selling cocaine. The undercover officer identified Brooks, the videotape depicted Brooks selling the cocaine to the undercover officer, and the state crime lab technician testified that the substance sold by Brooks tested positive for cocaine. The trial court did not err in denying Brooks’ motion for directed verdict of acquittal or motion for new trial on any of the grounds enumerated.

Decided November 9, 2001.

David E. Morgan III, for appellant.

Denise D. Fachini, District Attorney, Cheri L. Nichols, Assistant District Attorney, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       See Sanders v. State, 243 Ga. App. 216, 217-218 (1) (a) (534 SE2d 78) (2000).

       Id.

       See Dunn v. State, 218 Ga. App. 329, 330 (461 SE2d 294) (1995); Harper v. State, 213 Ga. App. 444, 447 (4) (445 SE2d 303) (1994).

       See Yawn v. State, 237 Ga. App. 206 (515 SE2d 182) (1999).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Sanders, supra at 218 (2), (3).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A01A2364.
    COLONIAL INSURANCE COMPANY OF CALIFORNIA v. PROGRESSIVE CASUALTY INSURANCE COMPANY.
    (556 SE2d 486)
   Johnson, Presiding Judge.

Progressive Casualty Insurance Company (“Progressive”) brought a declaratory judgment action seeking a determination that it was not required to provide coverage or a defense to its named insured, Vaneeka Benton, and her son, Gary Benton. The Bentons were sued for damages in connection with an automobile accident which occurred while Gary Benton, an unlicensed driver, was driving his mother’s car. The accident involved another automobile driven by Pamela Jordan. Colonial Insurance Company of California (“Colonial”), the uninsured motorist carrier for Jordan, appeals the trial court’s grant of Progressive’s motion for summary judgment and the denial of its motion for the same. Because we find no error, we affirm the trial court’s ruling.

The automobile accident between Gary Benton and Jordan occurred on December 28, 1996. It is undisputed that Gary Benton, an unlicensed driver, was driving his mother’s car, which was insured by Progressive. On January 23, 1997, a senior claims representative with Progressive informed Vaneeka Benton that the investigation of the accident was complete and that the accident was not covered under the Progressive policy because Gary Benton was an unlicensed driver at the time of the accident. On June 16, 1998, Jordan filed suit against the Bentons, seeking damages for personal injuries resulting from the collision. Progressive defended the Bentons under a reservation of rights and thereafter filed this declaratory judgment action and stay of the Jordan suit.

1. Colonial enumerates as error the denial of its motion for summary judgment, arguing that since Progressive expressly denied coverage of the claim, it was barred from pursuing the declaratory judgment action. It also argues that Progressive failed to comply with conditions precedent before filing the declaratory judgment action. We find no error.

Under Georgia law, a declaratory judgment is permitted to determine a controversy before obligations are repudiated or rights are violated. However, as the Supreme Court has pointed out, when an insurance company has already denied a claim, declaratory judgment is not available to it. Here, in a letter sent to Vaneeka Benton approximately one month after the automobile accident, Progressive wrote:

Please be advised we have completed our investigation into the above-captioned accident. Based on the information that we have available at this time, it appears an unlicensed operator, Gary Benton, was driving your vehicle at the time of this accident without your permission. Under your personal auto policy, liability coverage and duty to defend does not apply to bodily injury or property damage caused by any person using your insured car without your permission. Based upon the reasons stated above, we are denying coverage for the subject claim at this time. However, if you disagree with our position and/or can provide additional information that may have a bearing on this issue, please inform us immediately and we will reconsider our position. Please consider this to be a qualified denial letter.

Colonial contends that by denying coverage, Progressive is estopped from seeking a declaratory judgment because the denial served to fix the rights of the parties and, as such, there is no actual or justiciable controversy. Progressive, however, contends that the letter sent to Vaneeka Benton was a qualified refusal and subject to change. It further maintains that even if the letter was a strict denial letter, because Progressive undertook to defend the Bentons in the underlying lawsuit under a reservation of rights, it is not estopped from seeking declaratory judgment. We agree with Progressive.

While an insurance company’s denial of coverage before it seeks guidance under a declaratory judgment suggests no uncertainty as to future acts and thus no need of direction from the court, we cannot say that “having issued an original statement that it was not liable and would not defend, it was forever precluded from a change of course.” In the present case, Progressive initially issued a letter of denial indicating that it would reconsider its position if presented with additional information. When the damage action was subsequently filed, Progressive began defending the Bentons under a reservation of rights, filed a declaratory judgment action, and pursued a stay of the damage action. Had Progressive simply rested on its denial of coverage, it could not have sought a declaratory judgment. But because it did not do so, the letter denying the claim created no estoppel. Furthermore, Colonial “suffered no detriment of which it can complain as a result of [Progressive’s] reassessment of its legal position. The question of coverage is still in issue.” The trial court did not err in denying Colonial’s motion for summary judgment on this ground.

Colonial also contends that Progressive is barred from pursuing the declaratory judgment action because it failed to follow the conditions precedent for doing so as outlined in Richmond v. Ga. Farm &c. Ins. Co. However, Colonial did not make this argument below, and we cannot consider it for the first time on appeal. “We are limited to considering only those grounds raised and ruled on below by the trial court and may not consider a basis for appeal not presented at the trial level.” Accordingly, we find that the trial court properly denied Colonial’s motion for summary judgment.

2. Colonial contends that the trial court erred in granting Progressive’s motion for summary judgment. On appeal, Colonial argues that: (1) Progressive’s policy language required that the mother have actual knowledge that her son was an unlicensed driver, (2) the Bentons’ admissions could not be used against a co-defendant, and (3) the admissions create a genuine issue of material fact regarding Progressive’s denial of coverage. However, the only argument presented below in opposition to Progressive’s motion for summary judgment was the question of whether the Bentons’ admissions regarding permission created a genuine issue of material fact with respect to Progressive’s denial of coverage.

It is well settled that this Court cannot consider alleged errors not raised in the trial court. “This Court reviews enumerations to correct errors committed by trial courts. It lacks jurisdiction to consider arguments presented for the first time on appeal.” Accordingly, the only issue properly before this Court is whether the Bentons’ admissions regarding permission created a material issue of fact thus prohibiting the grant of summary judgment to Progressive.

In the instant case, Progressive’s insurance contract with Vaneeka Benton contained the following exclusions:

Liability coverage and duty to defend does not apply to: . . . 3. Bodily injury or property damage caused by any person using your insured car without your permission. ... 13. Bodily injury or property damage caused by your insured car when it is driven, operated or used with your permission by a person whom you know: a. Is under the minimum age to obtain a driver’s license; or b. Does not have a valid driver’s license; or c. Has a suspended driver’s license; or d. Has a revoked driver’s license.

Progressive sent out requests for admissions to the Bentons to establish whether Gary Benton was an unlicensed driver using the car with his mother’s permission or if he was a nonpermissive user. The Bentons never responded to Progressive’s requests for admissions, never objected to the requests, never appeared at any of the scheduled depositions, and never moved to withdraw the admissions.

The Bentons’ admissions establish that Gary Benton did not have a valid driver’s license and that Vaneeka Benton knew that Gary Benton did not have a valid driver’s license on December 28, 1996. The Bentons also admitted that Vaneeka Benton “gave Gary Benton permission to drive the insured vehicle on December 28,1996 with knowledge that he did not have a valid driver’s license.” At the same time, they admitted that Vaneeka Benton “did not give Gary Benton permission to drive the insured vehicle on December 28,1996 as an unlicensed driver.”

Decided November 9, 2001.

Claxton & Claxton, William R Claxton, for appellant.

Shur, McDuffie, Williams & Morgan, Michael L. Morgan, for appellee.

Progressive contends that based on the admissions, the policy exclusions preclude coverage under two alternative theories: either (1) Gary Benton was an unlicensed driver with permission, or (2) he was a nonpermissive driver. Colonial argues that the admissions create conflicting and contradictory evidence on a material fact in that they establish that Gary Benton was both a permissive and nonpermissive driver. According to Colonial, this dispute creates a question for a jury to decide. We do not agree.

Although, by their failure to answer, the Bentons have admitted both that Gary Benton was a permissive unlicensed driver and that he was a nonpermissive unlicensed driver, either of which would preclude coverage, this does not represent a conflict in a material fact. Because it is undisputed that Gary Benton was an unlicensed driver at the time of the accident, whether he obtained his mother’s permission to drive the car is inconsequential. Progressive’s policy excluded coverage in either circumstance. A review of the entire record reveals that there are no genuine issues of material fact to be decided by a jury. Thus, the grant of summary judgment to Progressive was proper.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       Although Gary Benton is characterized as a minor, the record does not reveal if Gary Benton was unlicensed because he was underage at the time of the automobile accident or if he was unlicensed for some other reason.

       OCGA § 9-4-1 provides that the purpose of the provisions pertaining to declaratory judgments “is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” See Famble v. State Farm Ins. Co., 204 Ga. App. 332-333 (1) (419 SE2d 143) (1992).

        Chastain v. U. S. Fidelity &c. Co., 190 Ga. App. 215, 216 (1) (378 SE2d 397) (1989).

        See Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 18 (413 SE2d 450) (1992).

        Adams v. Atlanta Cas. Co., 225 Ga. App. 482, 484 (1) (484 SE2d 302) (1997).

        State Farm &c. Ins. Co. v. Allstate Ins. Co., 132 Ga. App. 332, 335 (208 SE2d 170) (1974).

       Compare Empire Fire &c. Ins. Co. v. Metro Courier Corp., 234 Ga. App. 670 (507 SE2d 525) (1998) (insurer faced no uncertainty as to its rights because it denied coverage, did not defend its insured, and judgment had already been entered in the damage action).

       See State Farm, supra.

       Id.

       140 Ga. App. 215 (231 SE2d 245) (1976).

        Cotton States Mut. Ins. Co. v. Stallings, 235 Ga. App. 212, 213 (a) (508 SE2d 688) (1998).

       (Citation and punctuation omitted.) Id.

       OCGA § 9-11-36 (b).

        Fisher v. Marvin Reese Cos., 231 Ga. App. 487 (1) (499 SE2d 411) (1998).

       (Citations omitted.) Jones v. Dykes, 231 Ga. App. 110, 111 (3) (497 SE2d 828) (1998).

       See OCGA § 9-11-56 (c) (summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”).

       See Chelena v. Ga. Fed. Sav. &c. Assn., 256 Ga. 336, 337 (349 SE2d 180) (1986) (as long as a genuine issue of fact is not a material fact, summary judgment is proper).


author: Miller, Judge.

text:
    A01A1482.
    MORTENSEN et al. v. FOWLER-FLEMISTER CONCRETE, INC. et al.
    (555 SE2d 492)
   Miller, Judge.

Davis and Anna Mortensen appeal from a jury verdict, which awarded damages to Davis Mortensen for injuries sustained following a car accident and denied damages to Anna Mortensen on her claim for loss of consortium. Appellants allege errors based on the jury charges given at trial, the trial court’s failure to admit certain evidence, and the alleged inadequacy of the jury’s damages award. We discern no reversible error and affirm.

Davis was injured when his pickup truck collided with a truck owned by Fowler-Flemister Concrete Company, Inc. (“FowlerFlemister”). Following the accident, Davis and his wife Anna sued Fowler-Flemister and the Fowler-Flemister employee who was driving the truck to recover damages for Davis’s injuries and Anna’s loss of consortium.

Before trial Fowler-Flemister’s counsel sent a letter to the court in an attempt to convince the court to submit the matter to mediation. In the letter Fowler-Flemister’s counsel stated that liability in the case was admitted and that the only issue to be resolved through mediation was damages. The case was not sent to mediation, however, and Fowler-Flemister later successfully moved to exclude this letter from the evidence at trial.

At trial Anna testified about her relationship with her husband prior to and following the accident. When asked about how the car accident had changed her relationship with her husband, she indicated that their relationship was good and that the accident may have brought her and her husband closer together.

Davis claimed that his medical expenses relating to the injuries that he suffered from the car accident were $48,994.36. The jury returned a verdict in Davis’s favor for $75,000, but returned a verdict against Anna on her claim for loss of consortium.

1. The Mortensens claim that, despite the jury verdict in favor of Davis, the trial court erred by giving a jury instruction on assumption of risk. Assumption of risk, however, is a doctrine that relates to liability and, if believed by a jury to be applicable, would have barred any recovery to Davis. “It has long been the rule that when a verdict has been returned in favor of the plaintiff, errors in the giving of the charge, in omissions from the charge or in the refusal of requests which go to the matter of liability only are harmless to the plaintiff and afford no ground for reversal at his instance.” Since the jury returned a verdict in favor of Davis, and since Anna’s claim was purely derivative, any alleged error in the giving of an instruction relating to assumption of risk would be harmless.

2. The Mortensens also claim that the trial court erred in the manner in which it charged the jury on defendants’ affirmative defenses. More specifically, they contend that the charges did not clearly indicate that defendants had the burden of proving their affirmative defenses as the defendants’ burden was not reiterated in every charge relating to the affirmative defenses. This enumeration fails for the same reason discussed in Division 1. Moreover, we disagree with the merits of the argument.

Even though a request to charge may be “apt, correct and pertinent, it is not necessarily error to fail to charge it.” We must look to the charge as a whole to determine “whether the court substantially covered the principles embodied therein or whether it was sufficiently or substantially covered by the general charge.” The trial court stated explicitly in the jury charges that defendants had the burden of proof with respect to each and every one of their affirmative defenses. Viewing the charge as a whole, there is no confusion as to who bore the burden of proving the affirmative defenses, and the Mortensens’ contention to the contrary is without merit.

3. The Mortensens further contend that the jury’s award of $75,000 in favor of Davis and its ¿ward of nothing for Anna were inadequate. We disagree.

A reviewing court will not interfere with a jury’s award of damages unless the amount is so small or so excessive that it justifies an inference of gross mistake or undue bias. We fail to see, nor have the Mortensens shown, any mistake or bias against them from a jury award in Davis’s favor that is 50 percent greater than Davis’s claimed medical expenses.

Further, even though Anna’s claim for loss of consortium is derivative of her husband’s claim, the Mortensens do not attack any alleged inconsistency in the jury’s verdict in their enumeration of error, but only the fact that no damages were awarded to Anna. “Damages for loss of consortium are not capable of exact pecuniary measure and must be left to the enlightened conscience of impartial jurors taking into consideration the nature of the services, society, companionship and all the circumstances of the case.” The Mortensens have made no showing of any bias against them, and under the evidence of this case described above, “[t]he jury could have determined that [Davis’s] injuries were such that [his wife] suffered no compensable damage for loss of consortium.”

4. The Mortensens also urge that the trial court erred by excluding from evidence the letter from Fowler-Flemister’s counsel admitting liability. However, “admissions or propositions made with a view to a compromise are not proper evidence.” The letter at issue, by its very terms, was written in an attempt to bring about mediation and compromise the claims in this case. The trial court did not err by excluding this evidence.

Decided October 12, 2001

Reconsideration denied November 13,2001

David G. Kopp, Jesse Copelan, Jr., for appellants.

Carr, Tabb, Pope & Freeman, W. Pitts Carr, Eric N. Van De Water, Swift, Currie, McGhee & Fliers, Bradley S. Wolff, for appellees.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       See, e.g., Clemmons v. Smith, 246 Ga. App. 643, 644-645 (1) (540 SE2d 623) (2000).

       (Citations and punctuation omitted.) Heath v. L. E. Schwartz & Son, Inc., 199 Ga. App. 452, 453 (405 SE2d 290) (1991).

       (Citations and punctuation omitted.) Quiktrip Corp. v. Childs, 220 Ga. App. 463, 464 (1) (469 SE2d 763) (1996).

       (Citations and punctuation omitted.) Id.

        Green v. Proffitt, 248 Ga. App. 477, 478 (1) (545 SE2d 623) (2001).

       See Gurly v. Hinson, 194 Ga. App. 673, 675 (8) (391 SE2d 483) (1990).

       See Johnson v. Bryant, 178 Ga. App. 327, 330 (7) (343 SE2d 397) (1986).

       (Citations and punctuation omitted.) Gurly, supra, 194 Ga. App. at 675 (9).

       Id.

       OCGA § 24-3-37.


author: Pope, Presiding Judge.

text:
    A01A1501.
    MEDLEY v. HOME DEPOT, INC.
    (555 SE2d 736)
   Pope, Presiding Judge.

Appellant Deedee Medley filed suit against Home Depot, Inc. for damages she claimed from a fall at a Home Depot store. Home Depot filed a motion for summary judgment, which the state court granted. Medley appeals, arguing that jury issues exist regarding the company’s liability. Because we agree that factual issues remain regarding Home Depot’s liability, we reverse.

The undisputed facts in the record show that Medley was shopping at Home Depot on June 9, 1997. She was looking for an extension cord and pushed her shopping cart halfway down an aisle, looking for the cord. She then left her cart and walked back up the aisle. At some point she asked Andrew Attaway, the department manager, for help in locating the product. When Medley still could not find it, she headed back to her shopping cart. She then slipped and fell in oil, which was on the floor. Medley testified that she did not see the oil or any liquid on the floor before she fell, but that a Home Depot employee told her at the scene that she had slipped in oil.

After her fall, Medley went to the hospital, where she was visited by the Home Depot loss prevention supervisor, Steven Hester, who indicated that some teenagers who had been in the store had poured the oil onto the floor. Although no oil was sold in the area in which Medley fell, an oil container was found on the floor near Medley’s fall. The bottle had been deliberately punctured open, as if with a screwdriver, and it appeared that the oil had been deliberately poured onto the floor. The bottle containing the rest of the oil had been thrown between some boxes on the side of the aisle.

Hester stated that before Medley fell, he was aware of three teenagers who were running through the store playing hide and seek. He stated that these young people were “just horseplaying a lit-tie bit.” Hester testified that he knew these teens were not shoppers; that they were also playing tag; and that they were just joking around with each other. He said that they looked like they were “killing time.” He recalled that the situation “hadn’t gotten to the point where I was going to throw them out of the store.” Hester said he had seen the teens once or twice about eight to ten minutes before Medley’s fall. Hester was “keeping an eye on them,” while doing other work. He recalled that he was “to the point where I was telling them to find their parents and leave or behave.” Hester said that he knew to make sure that “they didn’t get out of hand,” so he was monitoring the teens’ behavior.

The record contains evidence that another shopper both heard and saw the teenagers in the aisle in which Medley fell, right before her fall. This witness also heard something being thrown onto a shelf. There was also evidence that right before Medley’s fall, the teens were in the aisle where the store keeps oil similar to that in which Medley slipped.

Attaway, the department manager, testified at his deposition about the “non-shoppers” who were in the store the day of Medley’s fall. He stated that these teens regularly came to the store to play. He testified that they had previously messed things up and pulled things off shelves. Specifically, he stated: “[t]hey always come in and do that. It’s a regular occurrence on Friday afternoons.” He further stated that kids had previously spilled things in the store and that Home Depot knew that the teenagers might spill substances that could be a hazard to shoppers. Attaway stated that the Home Depot policy was to monitor these teens so that they did not spill oil or cause any kind of hazard to other shoppers. Furthermore, he stated that the Home Depot policy was to ascertain whether they were non-shoppers who were causing mischief and to ask them to leave. Attaway stated that if Hester saw the teens playing hide and seek, to comply with the Home Depot policy, Hester should have asked them to leave.

Attaway testified that Hester knew that the teenagers were in the store and that Hester had been following the teenagers around the store immediately before the incident. Attaway stated that Hester was searching for the teenagers “because they moved pretty quickly.” Attaway stated that pursuant to Home Depot’s policy, after recognizing the teens as nonshoppers, Hester should have asked them to leave. Attaway stated that if Hester saw the teens, knew that they were causing trouble, and did not ask them to leave, this would violate Home Depot policy.

Home Depot requires that the department supervisor patrol the aisles to make sure that the aisles are clear. Attaway testified that on the incident date, there were five aisles in the electrical department of the Home Depot store with four Home Depot employees working in that area. Attaway testified that he had inspected the area in which Medley fell within five minutes of her fall and had not seen any oil. In fact, there was evidence that he was only about 20 yards away from the spot where Medley fell when he received the call about the incident. Nevertheless, Attaway never saw or heard the teens in the aisle where Medley fell.

In determining whether a jury issue remains in this case, we first turn to Robinson v. Kroger Co., 268 Ga. 735, 739 (1) (493 SE2d 403) (1997), which stated:

[A]s a general proposition [,] issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication but should be resolved by trial in the ordinary manner. The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.

(Citations and punctuation omitted.) Id.

With respect to the particular duty of Home Depot as the owner/ occupier, the rule is that:

One who owns or occupies land and by express or implied invitation [ ] induces or leads others to come upon his premise for any lawful purpose [ ] is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. OCGA § 51-3-1. While not an insurer of the invitee’s safety, the owner/occupier is required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge. The owner/occupier owes persons invited to enter the premises a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk or to lead them into a dangerous trap. The owner/occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. This includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.

(Citations and punctuation omitted.) Robinson v. Kroger Co., 268 Ga. at 740 (1).

This court restated the basis of the proprietor’s liability in Denham v. Young Men’s Christian Assn. &c., 231 Ga. App. 197, 199 (499 SE2d 94) (1998):

The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. Thus, the basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.

(Citations and punctuation omitted.) Id.

In this case, construing the evidence most favorably for Medley, we conclude that jury issues remain regarding Home Depot’s liability. There was evidence that Home Depot employees knew that these teenaged nonshoppers regularly came into the store to play and that they had previously pulled items off the shelves and had spilled things. Thus, there was evidence that it was foreseeable that these teens would spill substances on the floor which would be hazardous to shoppers. A jury question remains regarding whether Home Depot was liable because of the foreseeability of Medley’s fall. See generally Walker v. Hammock, 246 Ga. App. 640, 642 (1) (541 SE2d 439) (2000) (an intervening criminal act of a third party, without which the injury would not have occurred, will not break the causal connection between the defendants’ negligence and the injury if it was a foreseeable consequence of the defendants’ conduct).

There was also evidence that Home Depot failed to follow its own policies when Hester did not ask the nonshopping teens to leave after he found them playing hide and seek in the store. Whether Hester’s failure to more closely monitor these nonshopping teens is negligence is a jury issue. Thus, given the evidence that Home Depot failed to follow its own store policies and that Home Depot knew that non-shoppers had previously spilled items which constituted hazards on the floor, we conclude that there is a jury issue as to whether Home Depot was negligent in this case. This close case “falls within the general rule: Such matters are generally not susceptible of summary adjudication, and . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.” (Citation and punctuation omitted.) Sadtler v. Winn-Dixie Stores, 230 Ga. App. 731, 733 (498 SE2d 101) (1998).

Decided September 18, 2001

Reconsideration denied November 13, 2001

Kenneth M. Sissel, for appellant.

Mozley, Finlay son & hoggins, Carroll G. Jester, Jr., Theo M. Sereebutra, for appellee.

Judgment reversed.

Blackburn, C. J, and Mikell, J., concur.

       Although we are aware that there are similarities between the analysis used in this case and in those cases involving intervening criminal acts of third parties, we are also mindful that there are analytical differences. It is necessary in both cases to present evidence that the risk of danger was foreseeable. See Post Properties v. Doe, 230 Ga. App. 34 (495 SE2d 573) (1997). In the context of the instant case, it is not necessary that the foreseeability element be predicated on evidence that another shopper had been injured after non-shopping teens created a hazard. The fact that there was evidence that nonshoppers had previously created the hazard combined with the evidence that Home Depot had failed to follow its own policies was sufficient in this case to create a jury issue.


text:
    A01A0846.
    HARRISON v. THURMOND et al.
    (556 SE2d 490)
   Pope, Presiding Judge.

Veronica Harrison appeals the superior court’s order affirming the Department of Labor’s denial of her unemployment compensation benefits. She contends that under the authority of Caldwell v. Hosp. Auth. of Charlton County, 248 Ga. 887 (287 SE2d 15) (1982), she is entitled to receive those benefits. We agree and reverse.

The undisputed facts are that, effective October 13, 1999, Harrison quit her employment with Intellisource, Inc. to take a better job with Fletcher Martin Associates. Three weeks later she was involuntarily terminated from her new position. The Department held that her separation from Intellisource was the pertinent one for purposes of determining eligibility for benefits, and neither party objected to that holding. But Harrison did appeal the Department’s further determination that she was not entitled to benefits with respect to that separation because her reason for quitting was “personal.”

In support of that determination, the court below relied — and the Department now relies — upon the Department’s Rule 300-2-9-.05. That rule states in pertinent part: “An employee who voluntarily quits is to be disqualified unless he/she can show that the employer had changed the terms and conditions of work in a manner that the employee, applying the judgment of a reasonable person, would not be expected to continue that employment.” Ga. Comp. R. & Regs. r. 300-2-9-.05. But Harrison contends that that rule conflicts with our Supreme Court’s decision in Caldwell, which was decided in 1982, years prior to promulgation of the rule.

In Caldwell, as here, the claimant quit her employment to take a better job, from which she was terminated after a brief period. In that instance, however, the Department determined that the claimant was eligible for benefits with respect to the original separation. The superior court reversed, holding that the finding of eligibility denied the original employer substantive due process because there was no fault on its part. Our Supreme Court, in turn, reversed the superior court, noting that “[c]ompulsory contributions for employment security . . . are payable without regard to fault.” 248 Ga. at 890 (2). It further noted that the determination in favor of eligibility, under the facts of the case, “bears a substantial relationship to the purpose of the Employment Security Law.” Id. The Court stated that the law was designed to provide benefits to involuntarily terminated employees even if their work history includes a position that the employee left voluntarily:

the purpose of the Employment Security Law is to spread and lighten the burden of unemployment by allowing involuntarily unemployed workers to collect benefits based on their work history, even though that work history may encompass a period of employment which the employee voluntarily terminated. . . . [D]isqualification . . . would have the significant disadvantage of discouraging employees from seeking better opportunities, as the employee apparently did here.

(Emphasis supplied.) Id.

Thus, Rule 300-2-9-.05 as applied in this case conflicts with the holding in Caldwell. And this Court has previously held that a state department or agency is without authority to promulgate a rule that conflicts with a prior judicial interpretation of state law. In Pizza Hut Delivery v. Blackwell, 204 Ga. App. 112 (418 SE2d 639) (1992), a workers’ compensation case, the employer’s position on appeal, relying on a State Board of Workers’ Compensation rule, was that tips should not have been included in determining the employee’s average weekly wage. But this Court stated that the rule was irrelevant where the definition of “average weekly wage” had been judicially interpreted to include tips:

Decided November 13, 2001.

Elliott Schwalb, Anne B. Carder, Deborah A. Johnson, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Susan L. Rutherford, Senior Assistant Attorney General, Kimberly B. Lewis, Assistant Attorney General, for appellees.

[T]he wording of Rule 260 (a) is essentially irrelevant. “Average weekly wages” under OCGA § 34-9-260 has been judicially interpreted to include an employee’s tips and no rule promulgated by the Board can change that interpretation or qualify it by imposing a limitation that tips must be listed on an employee’s W-2 form in order to be includable as a component of “average weekly wages.”

(Citation omitted; emphasis supplied.) Id. See also Groover v. Johnson Controls World Svc., 241 Ga. App. 791, 793 (527 SE2d 639) (2000) (“[T]he Board cannot establish rules . . . that contradict judicial decisions interpreting the statutory language.”).

In Caldwell, under facts substantially identical to those here, our Supreme Court interpreted the Employment Security Law of this state as allowing an employee who left one job to seek a better job opportunity to collect unemployment benefits when the second job terminated through no fault of the employee. 248 Ga. at 890. Therefore, Harrison cannot be denied her benefits simply because she left her job at Intellisource to seek a better position. Accordingly, we find that the Department’s Rule 300-2-9-.05 is invalid to the extent that it conflicts with Caldwell. Compare Young v. State, 212 Ga. App. 572 (442 SE2d 768) (1994) (rule applied to disqualify employee from getting benefits where she gave conflicting reasons for quitting her job).

Judgment reversed.

Blackburn, C. J, and Mikell, J., concur.

       Hereinafter “Department.” Michael L. Thurmond, as Commissioner of Labor of Georgia, is one of the appellees here, the other being the original employer. “Department” will refer to both appellees collectively.


text:
    A01A1240.
    THE STATE v. JONES.
    (556 SE2d 495)
   Pope, Presiding Judge.

Defendant Keith Jones was charged with possession of cocaine with intent to distribute and distributing controlled substances near a park or housing project. The trial court granted Jones’ motion to suppress evidence, and the state appeals pursuant to OCGA § 5-7-1 (a) (4).

The applicable standard of review of an order on a motion to suppress was recently reiterated as follows:

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to the questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Footnote omitted.) Stanford v. State, 251 Ga. App. 87, 88-89 (1) (553 SE2d 622) (2001).

Viewed in this light, the transcript of the motion to suppress hearing shows that at 10:00 p.m. on November 15, 1998, a Gwinnett County police officer on patrol in an area known for its drug dealing observed a car backed into the driveway of a residence belonging to a known drug offender who was incarcerated. The officer testified that he was “suspicious of the fact there was a car parked there when ordinarily nobody was there,” especially as it was backed into the driveway at night. He also testified that he had never seen that car there before. The officer testified that he parked up the street to observe traffic and a few minutes later saw the same car leave the mobile home park and drive past him. He noticed that the paper “drive-out” tag on the car appeared to have been “on there for a considerable amount of time” — i.e., in excess of the 30 days allowed by OCGA § 40-2-20 (c) as then in effect — and pulled the car over and informed the driver, appellee Jones, that he had “stopped him for the drive-out tag.” Jones produced a bill of sale showing a date less than, though nearly, 30 days in the past, and the officer went back to his cruiser to verify whether Jones’ license was valid and to ascertain whether there were any warrants outstanding against him. After verifying Jones’ license and discovering that there were no warrants for Jones, the officer returned to Jones’ car and, while still holding Jones’ license and other papers, began to question Jones about what he was doing in the area. Jones told the officer he was at the home of his cousin, who was in jail. The officer then requested permission to search Jones’ car for drugs based on Jones being “in a known drug area [parked] in a known drug dealer’s front yard,” and Jones consented. The officer returned Jones’ license, insurance papers, and bill of sale and searched his car. The officer discovered a bag of what appeared to be crack cocaine when he pulled down the front seat armrest.

1. The trial court found that the officer’s belief that the tag was expired justified the initial stop. But the trial court also found that “at the point the officer concluded that [Jones] was not in violation of any traffic offense, absent a reasonable suspicion of some other criminal activity, he had a duty to return [Jones’] license and insurance and terminate the stop, allowing [Jones] to go on his way.” (Emphasis in original.) And as to whether there was a reasonable suspicion of some other criminal activity, the court had earlier concluded in its order that “there are simply no facts to justify a reásonable suspicion of criminal activity [;] all the officer did have or could have had based on the facts in evidence was a generalized hunch.” Thus, the trial court granted Jones’ motion to suppress the evidence of contraband.

The trial court’s statement of the applicable law is in accord with our twelve-judge decision issued approximately two months later in State v. Gibbons, 248 Ga. App. 859 (547 SE2d 679) (2001). In that case, the officer stopped the defendants after he observed they were not wearing seat belts and then obtained the driver’s permission to search his person during a continued detention and questioning which were unrelated to the initial reason for the stop. Id. at 860-863. We agreed with the trial court that this continued detention was unauthorized, noting that “the trooper admitted that he held [the] driver’s license while asking questions that were not related to the seat belt violation,” id. at 864, and that “[t]here is no evidence that the trooper asked these questions while performing a license or vehicle registration check.” Id. at 864, n. 1. Thus, we concluded that the driver’s consent to search his person was the product of an illegal detention and thus invalid and affirmed the suppression of the evidence as a result of that search. Id.

Here, as in Gibbons, the officer continued to detain Jones and question him about matters unrelated to the reason for the initial stop after he had completed the routine license and vehicle registration check. Additionally, as in Gibbons, the officer did not return Jones’ driver’s license or other papers during the continued detention and questioning. Consequently, Jones was not free to leave dining this continued detention and was not free to leave at the time the officer requested his consent to search. “It is this continued detention that makes the questioning and request to search without reasonable suspicion of criminal activity impermissible.” Gibbons, 248 Ga. App. at 864 (Pope, P. J., concurring specially). Cf. Henderson v. State, 250 Ga. App. 278 (551 SE2d 400) (2001) (in which the drug questioning occurred while the initially valid stop was still in progress).

To reiterate, “[s]o long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” [Cit.] Here, . . . the trial court found that the defendant was detained without justification when the officer began to question the defendant about drugs and request consent to search. Therefore, the continued encounter was not consensual.

Gibbons, 248 Ga. App. at 866 (Pope, P. J., concurring specially).

2. Further, we agree with the trial court that the continued detention was not authorized by a reasonable suspicion of other criminal activity. Here, the officer testified that his suspicions were aroused because Jones’ car was unfamiliar and it was backed into a driveway of a residence belonging to a person the officer knew was in jail on drug charges. But the officer never explained why he thought criminal activity would be emanating from the residence if the drug dealer who lived there was incarcerated, and the officer pointed to no other behavior during his observation of Jones to incite suspicion. Cf. Bell v. State, 248 Ga. App. 254, 257 (546 SE2d 34) (2001) (defendant’s behavior after the stop raised a reasonable suspicion of criminal conduct). We find this situation similar to that presented in the cases of Smith v. State, 245 Ga. App. 613, 614 (538 SE2d 517) (2000) (officer observed car which had been parked differently than other cars in apartment complex make a “ ‘quick exit of the complex’ ”); State v. Winnie, 242 Ga. App. 228 (529 SE2d 215) (2000) (officer observed truck turn into and then start to exit the parking lot of a closed business at 4:00 a.m.); In the Interest of M. J. H., 239 Ga. App. 894 (522 SE2d 491) (1999); and Attaway v. State, 236 Ga. App. 307 (511 SE2d 635) (1999) (police received a call that a car was circling around a subdivision several times late at night), where we also rejected the contention that there was a particularized and objective basis for suspecting the defendants were engaged in criminal activity. Thus, we agree with the trial court that the officer lacked a reasonable and articulable suspicion to detain Jones and affirm the grant of Jones’ motion to suppress.

Decided November 13, 2001.

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellant.

Stepp & Randazzo, Joseph L. Randazzo, Jr., for appellee.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

       The search of the driver revealed evidence of contraband, and the officer placed both the driver and the passenger under arrest. The ensuing inventory search of the car uncovered a package of cocaine in the trunk. Gibbons, 248 Ga. App. at 863.


text:
    A01A1377.
    SCOTT v. RAKESTRAW.
    (556 SE2d 492)
   Pope, Presiding Judge.

On September 30, 1998, an automobile driven by J. D. Scott was in a collision with a tow truck driven by Kevin Mahaffey, a wrecker driver working for Hudson Rakestraw d/b/a M & R Wrecker Service. Scott’s mother, Margaret Scott, was a passenger in Scott’s automobile at the time of the collision. Scott filed suit against Rakestraw in the Magistrate Court of Paulding County seeking damages for bodily injuries he allegedly sustained in the collision. Rakestraw filed an answer and a counterclaim seeking to recover for damages to his vehicle. The magistrate court subsequently entered judgment in favor of Scott and against Rakestraw on his counterclaim.

On the same day that Scott filed the magistrate court action, Margaret Scott filed a personal injury action against Rakestraw in the Superior Court of Paulding County. Along with his answer to Margaret Scott’s complaint, Rakestraw filed a third-party complaint against J. D. Scott, asserting a claim for contribution, indemnification, and subrogation. Both J. D. Scott and Rakestraw filed motions for summary judgment. The superior court granted Rakestraw’s motion and denied J. D. Scott’s motion. J. D. Scott appeals. We affirm.

1. Scott argues that Rakestraw’s claim for contribution was barred by res judicata and OCGA § 9-2-5 (a). We disagree.

The filing of the magistrate court property loss counterclaim and the superior court third-party complaint asserting contribution did not violate OCGA § 9-2-5 (a). Although there may be common issues in the two cases, they are not identical. See Intl. Telecommunications Exchange Corp. v. MCI Telecommunications Corp., 214 Ga. App. 416 (448 SE2d 71) (1994). “In fact, [Rakestraw’s] claim against [Scott] for [contribution] did not accrue and could not have been asserted until [Margaret Scott] filed the [superior court action].” Id. at 417.

Relying on Fowler v. Vineyard, 261 Ga. 454 (405 SE2d 678) (1991), Scott also argues that Rakestraw’s contribution claim is barred by res judicata. In Fowler, one of the defendants, Vineyard, filed a contribution cross-claim against co-defendants Fowler and Georgia Hi-Lift during the original litigation. Vineyard subsequently dismissed with prejudice his cross-claims against his co-defendants, but later filed a personal injury action against those same parties. Our Supreme Court held that under these circumstances, Vineyard’s personal injury claim was precluded by res judicata because he failed to assert it when he sought affirmative relief, i.e., asserted his contribution cross-claims, in the original action. And the Court specifically rejected Vineyard’s argument that applying res judicata to bar his personal injury claim had the improper effect of making it a compulsory cross-claim and noted that it had previously held that res judicata bars a party who forgoes an opportunity to file a permissive cross-claim from bringing the claim in a subsequent action. Id. at 459 (5). Scott argues that pursuant to the holding in Fowler, Rakestraw’s failure to assert his contribution claim in the magistrate court action where he sought affirmative relief for the damage to his vehicle resulted in the contribution claim being barred by res judicata.

We reject the contention that Fowler v. Vineyard is controlling here. Both this court and our Supreme Court have made clear that contribution claims are separate and distinct from the claims asserted in the underlying litigation, and that they are not extinguished by release, dismissal, or judgment in the underlying litigation and are not barred by failure to assert them in the underlying litigation. For example, in Marchman & Sons, Inc. v. Nelson, 251 Ga. 475 (306 SE2d 290) (1983), the plaintiff negotiated a settlement with seven of ten named defendants and dismissed the suit with prejudice. Two of the defendants who participated in the settlement then brought suit against two of the defendants who did not. Our Supreme Court considered and rejected the contention that the dismissal with prejudice of the underlying litigation barred the subsequent action for contribution between the joint tortfeasors. The Court concluded:

Our statute recognizes the continuing existence of the right of contribution against a joint tortfeasor who has been released. It recognizes the existence of the right of contribution where there is no judgment at all in the underlying suit, and even where there is no underlying suit filed. Thus, the right of contribution arises out of, but exists separately from, the rights present in the underlying suit. We hold that the dismissal with prejudice of the underlying suit is not a bar to an action for contribution by one joint tortfeasor [with] another joint tortfeasor.

(Footnote omitted.) Id. at 477-478.

Moreover, this court has previously addressed the precise issue of whether a claim for contribution is precluded by res judicata if not asserted by way of counterclaim or cross-claim in the underlying litigation. In Tenneco Oil Co. v. Templin, 201 Ga. App. 30 (410 SE2d 154) (1991), plaintiffs Douglas Bullman and his passenger, who subsequently became his wife, brought suit against defendants Tenneco Oil, Templin, and several others for injuries they allegedly received in an automobile collision. Templin filed a counterclaim for contribution against Bullman, but Tenneco did not. Judgment was entered for the plaintiffs, but no damages were awarded to Bullman. After judgment was rendered, Tenneco filed a claim for contribution against Bullman and Templin. This court rejected Bullman’s and Templin’s claim that Tenneco was barred by res judicata from maintaining its separate action for contribution and held that a claim for contribution does not have to be brought as either a counterclaim or a cross-claim to the original action, but instead may be brought by filing a separate action after judgment has been entered in the original tort action. Moreover, not only did we reject the argument that asserting the contribution claim was compulsory, we questioned whether a claim for contribution was even permitted until after judgment was rendered in the main action. However, after considering prior Georgia and federal case law, we held that:

A party may choose to pursue a claim for contribution in the underlying tort action but may not be limited to bringing it in that manner because the permission to have contribution is absolutely unrestricted. We cannot say that a party who chooses not to assert his or her claim for contribution as a counterclaim [or cross-claim] is barred from bringing a separate suit for contribution after a judgment has been entered in the original tort action.

(Citation and punctuation omitted.) Id. at 34 (1). See also State Farm Fire &c. Co. v. American Hardware Mut. Ins. Co., 224 Ga. App. 789, 794 (4) (a) (482 SE2d 714) (1997) (“[t]he fact that none of the defendants in the underlying tort suit filed cross-claims against each other for indemnity also does not operate to preclude the filing of such claims after dismissal of the tort action”); Johnson &c. Constr. Co. v. Bing, 220 Ga. App. 179, 180 (1) (469 SE2d 697) (1996) (“[i}t is therefore not requisite to a joint tortfeasor’s right of contribution that he file cross-claims against another joint tortfeasor in an underlying suit”).

Decided November 13, 2001.

Downey & Cleveland, George L. Welborn, for appellant.

Michael L. Wetzel, for appellee.

Although he does not cite Tenneco in his brief on appeal, Scott would obviously have us modify that holding to compel the assertion of contribution claims in any litigation where other claims are asserted between alleged joint tortfeasors. We decline to adopt that position. Assertion of other claims does not alter a joint tortfeasor’s separate, distinct, and unrestricted right to contribution and does not compel him to assert his contribution claim with those other claims. It follows, therefore, that the trial court properly rejected Scott’s contention that Rakestraw’s contribution claim was barred by res judicata.

2. We also reject Scott’s argument that the superior court was required to find against Rakestraw on his contribution claim because he was the losing party on both his property loss claim and Scott’s personal injury claim in magistrate court. In Tenneco, judgment had been entered in favor of one of the parties who was subsequently sued as a joint tortfeasor in the contribution action. Moreover, although the magistrate court found “in fact, the defendant [Rakestraw] was negligent,” it also found that “the plaintiff [Scott] was also negligent to a certain extent.” The superior court was thus authorized to conclude that Scott and Rakestraw were in fact joint tortfeasors and that Rakestraw was entitled to judgment on his contribution claim against Scott.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

       OCGA § 9-2-5 (a) prohibits the prosecution of two actions at the same time for the same cause of action and against the same party.


author: Smith, Presiding Judge.

text:
    A01A1529.
    NICHOLAS v. VAN et al.
    (556 SE2d 497)
   Smith, Presiding Judge.

Anthony Nicholas brought this action against the City of Griffin and David and Vicki Van. The city was granted summary judgment on the ground that Nicholas failed to give proper ante litem notice of his claim within the six-month period prescribed by OCGA § 36-33-5 (b). We agree that the claim was barred for failure to provide timely notice. But because the proper vehicle for disposing of the claim against the city was dismissal, we vacate the trial court’s judgment and remand this case to the trial court with direction that the court dismiss the claim against the city.

The facts are largely undisputed. In September 1996, Nicholas sold a tract of commercial property, which was contiguous to his own remaining property, to David and Vicki Van. The Vans were also granted an easement of ingress and egress, and both parties reserved certain rights to develop their respective properties. On July 30, 1997, the Vans submitted a development plan to the city, which was approved October 27, 1997. Nicholas first saw the plan on February 17, 1998. On August 13, 1998, ante litem notice was delivered to the city on Nicholas’s behalf. The letter recited that the city relied on the Vans’ “misinterpretation” of the easement, which caused access and parking problems related to Nicholas’s property. The letter went on to notify the city of Nicholas’s claim that the city was negligent in approving the Vans’ development plan and stated the monetary damages suffered by Nicholas at that time. In January 1999, Nicholas filed this action against the Vans and the city, alleging among other things that the city’s approval of the development plan without consultation with Nicholas had deprived him of the use and enjoyment of his property and constituted a taking without just and adequate compensation. He further alleged that the city’s actions “had the effect of nullifying the agreement between” Nicholas and the Vans.

On motion for summary judgment filed by the city, the trial court concluded that Nicholas presented his claim against the city outside the six-month notice requirement of OCGA § 36-33-5 (b) and that the claim was therefore barred. We agree.

Under OCGA § 36-33-5 (b), any person having a claim for money damages against a city arising out of injuries to person or property is required to present a claim, in writing, stating the time, place, extent of injury, and the negligence that caused the injury. The claim must be made within six months of the occurrence of the event giving rise to it. Id. This time requirement is a statute of limitation, Schaefer v. Mayor &c. of Athens, 120 Ga. App. 301-302 (1) (170 SE2d 339) (1969), and the giving of notice “in the manner and within the time required by the statute is a condition precedent to the maintenance of a suit on the claim. [Cit.]” Gillingwater v. City of Valdosta, 177 Ga. App. 241 (1) (339 SE2d 287) (1985). The time period within which notice must be given begins to run on the day the city’s breach of duty allegedly occurred. Schaefer, supra at 302 (2).

It is undisputed that the city approved the Vans’ development plan on October 27, 1997, and it was this act that constituted the basis of Nicholas’s action against the city. The statutory six-month time period within which he was required to provide notice to the city therefore began on that date and expired April 27, 1998. Although Nicholas saw the development plan in February 1998, well within the six-month period, the required notice was not delivered to the city until August 13, 1998. Consequently, the trial court correctly concluded that his action against the city is barred.

Nicholas argues that the development plan was approved only after the Vans acquired another parcel, apparently along the north side of their property, to accommodate extra parking spaces and that pedestrian access to the Vans’ property from these spaces was across his property. He complains that he was not notified of the Vans’ application for development and that the city did not consult with him regarding the development plan before its approval. Based on these facts, Nicholas argues that the six-month notice period was tolled until he became aware of the plan on February 17, 1998.

Nicholas relies heavily on OCGA § 9-3-96 in support of this argument. That section provides that if a defendant is guilty of a fraud that deters a plaintiff from bringing suit, the relevant limitation period shall run from the time of the discovery of the fraud. Nowhere does Nicholas contend that the city was guilty of fraud, and in fact, he acknowledges that “there is no evidence . . . that the city intentionally concealed the approval of the plan.” He maintains, however, that a confidential relationship between him and the city existed, “which imposed upon the city a duty to disclose to him the submission of the plan and its subsequent approval.” He cites little authority other than OCGA § 9-3-96 for this proposition, and we have found no authority imposing such a duty. Also, in addition to showing that a defendant committed actual fraud that concealed the cause of action, a plaintiff must show under this section that he or she exercised “reasonable diligence in discovering his cause of action despite his failure to do so within the time of the applicable statute of limitations. [Cits.]” Jim Walter Corp. v. Ward, 245 Ga. 355, 357 (265 SE2d 7) (1980). Here, Nicholas discovered the city’s alleged wrongdoing within the applicable limitation period and has not shown why he failed to notify the city of his claim within the two months remaining between the time he saw the development plan and the expiration of the limitation period. And he has offered no evidence that he was laboring under any disability that prevented him from discovering the city’s alleged negligence, in which case the limitation period would have been tolled until the disability was removed. See, e.g., City of Barnesville v. Powell, 124 Ga. App. 132, 133 (183 SE2d 55) (1971).

Nicholas compares this case to a real estate transaction in which a seller fails to disclose latent defects to a buyer, defects that were undiscoverable upon a reasonable examination. See Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 76 (441 SE2d 421) (1994). He further notes that his theory concerning the tolling of the limitation period is similar to that recognized by the legislature when it enacted OCGA § 9-3-72 concerning foreign objects left in the body. That section allows for actions to be brought within one year after discovery of the negligent or wrongful act or omission. We find no merit in Nicholas’s arguments. Nothing in the record suggests that any public record was concealed from Nicholas or that any alleged negligence was undiscoverable upon a reasonable inquiry. Finally, we find no merit in Nicholas’s contention that this court should, at the very least, “apply the equitable bar of OCGA § 9-3-3 to prevent manifest injustice and allow Nicholas to proceed with his claim against the city.” That section allows courts of equity to “interpose an equitable bar whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights.” (Emphasis supplied.) OCGA § 9-3-3. Nicholas obviously is the complainant in this case and cannot take advantage of this provision. See Steele v. City of Waycross, 190 Ga. 816, 822-823 (3) (10 SE2d 867) (1940). Even if the provision were applicable, Nicholas has not shown why he was not guilty of laches in failing to notify the city of his claim within the six-month limitation period even though he was aware of the claim within that period. The trial court correctly concluded that Nicholas could not maintain his action against the city under the clear language of OCGA § 36-33-5 (b).

Decided November 13, 2001

Jack L. Park, Jr., for appellant.

Richard L. Collier, Laurel E. Henderson, for appellees.

We note that the appropriate vehicle for disposing of the claim is dismissal of the complaint against the city. “In cases where the merits [cannot be] reached because of the failure of the plaintiff to satisfy a precondition, the appropriate action is dismissal of the case on motion.” Jones v. City of Austell, 166 Ga. App. 808, 810 (305 SE2d 653) (1983). We therefore vacate the judgment of the trial court and remand this case for entry of an order dismissing the city.

Judgment vacated and case remanded with direction.

Barnes and Phipps, JJ, concur.

       It appears that Nicholas’s chiropractic clinic was situated on his property, while the tract sold to the Vans was to be used to accommodate the expansion of their medical facility.

       It also appears that approximately one month before delivery of the ante litem notice to the city, a letter was sent to the city building inspector on behalf of Nicholas, which discussed issues related to parking spaces on the Vans’ property.


author: Eldridge, Judge.

text:
    A02A0203.
    THE STATE v. MADDOX.
    (556 SE2d 501)
   Eldridge, Judge.

The State Court of Gwinnett County granted Gregory Scott Maddox’s motion to suppress the results of a DUI investigation, finding that the stop of Maddox’s vehicle was not based on articulable suspicion. Because the substance of the 911 call communicated to the officers in dispatching them to the scene provided reasonable articulable suspicion to perform an investigative stop of Maddox’s vehicle, we reverse the judgment of the court below.

Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to the undisputed facts is subject to de novo review. Viewed in this light, the record reveals that at approximately 11:13 p.m., Gwinnett County Police Officers C. S. Boekel and M. D. Grap were dispatched to the Three Dollar Café pursuant to a call made by the manager, Kevin Egan, complaining that a man named “Stacey Phillips” was making trouble in the restaurant. Officer Boekel’s police report showed that Egan “told all communications” that Phillips “was causing problems, had been drinking, was possibly carrying a knife, and had a history of mental problems. Egan wanted the subject to leave and receive a criminal trespass warning.”

Backup Officer Grap arrived on the scene first; he was in uniform and driving a fully marked police car. The manager of the Three Dollar Café was in the parking lot, waiting. Upon Grap’s arrival, the manager pointed to a green truck. He informed the officer that Phillips had gotten into the truck. Simultaneously, Officer Boekel arrived and witnessed Officer Grap’s attempts to flag down the truck. Boekel testified that “he [Grap] tried to stop the truck and it drove around him. As it was leaving the parking lot, I pulled up and got the truck stopped.” Grap joined Boekel across the street where the truck was stopped. Grap approached the passenger window and spoke to Phillips. Officer Boekel approached the driver’s side and spoke to appellant Maddox. Subsequent investigation led to the arrest of Maddox for DUI, driving with a suspended license, and violation of the open container law.

Maddox filed a motion to suppress. Following the evidentiary hearing thereon, the trial court found:

I don’t know why we have police officers in the business of giving criminal trespass notices to folks that are cutting up in a restaurant. It seems like to me that’s a little bit outside of police duties. ... I think we have to have a reason to pull a vehicle over other than we just want to notify the passenger not to come back to the Three Dollar Café.

The trial court granted Maddox’s motion to suppress. Held:

In reviewing a trial court’s decision on a motion to suppress which in effect precludes the prosecution of a criminal defendant, our responsibility is to ensure that there was a substantial basis for the decision. In so doing, “‘we may consider all relevant evidence of record, wherever located.’ ”

Decided November 13, 2001.

Gerald N. Blaney, Jr., Solicitor-General, Emilien O. Loiselle, Jr., Jeffrey P. Kwiatkowski, Assistant Solicitors-General, for appellant.

Jeffrey R. Sliz, for appellee.

Here, the facts are not in dispute. Based on the record, which includes the contents of Officer Boekel’s police report and the information given to the officers via police radio, there is no question that the officers were dispatched to the Three Dollar Café to do more than give Phillips a criminal trespass warning; the initial dispatch included the possibility that the drunk, problem-causing Phillips would have to be forcibly removed. Further, based on radio dispatch information, Phillips had been doing more than “cutting up in a restaurant,” which phraseology creates an image of youthful hijinks, instead of the multiple drunken episodes reported by the restaurant manager, which were exacerbated highly by the fact that Phillips was mentally unstable and may have been carrying a knife.

Police officers are authorized to use information received by radio dispatch as part of their basis for articulable suspicion to conduct a stop. To allow Phillips to simply drive away from the scene without further investigation of the 911 call would have been irresponsible, even if such investigation included the officers’ stated desire to give Phillips criminal trespass warnings. “In Burgeson v. State, information provided by other officers as communicated in a [911] dispatch provided the basis for reasonable and articulable suspicion to justify a stop. The same concept applies in the present case.”

Based on the record, we find as clearly erroneous the conclusion that the stop of Maddox’s car was without reasonable articulable suspicion. The motion to suppress on such grounds should not have been granted.

Judgment reversed.

Smith, P. J., and Ellington, J., concur.

        State v. Becker, 240 Ga. App. 267-268 (523 SE2d 98) (1999).

        Jackson v. State, 230 Ga. App. 292, 296 (6) (496 SE2d 315) (1998); Gray v. State, 207 Ga. App. 648, 650 (428 SE2d 663) (1993).

        Cunningham v. State, 231 Ga. App. 420, 421-422 (498 SE2d 590) (1998).

       267 Ga. 102,105 (3) (a) (475 SE2d 580) (1996).

        State v. Pennyman, 248 Ga. App. 446, 447 (545 SE2d 365) (2001).


author: Mikell, Judge.

text:
    A01A1853.
    FOXX v. THE STATE.
    (556 SE2d 512)
   Mikell, Judge.

A jury convicted Leon Foxx of five counts of burglary. On appeal, he claims that (1) the evidence was insufficient to support his convictions, (2) he received ineffective assistance of counsel, and (3) the trial court erred in making certain comments to the jury. For reasons which follow, we affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. The evidence shows that John Robinson committed numerous burglaries to support his crack cocaine habit. Robinson testified that Foxx participated in burglaries of homes on Peacock Avenue, Ashwood Drive, North Quarry Drive, and Warm Springs Road and at an apartment on River Road, all in the Columbus area.

1. Foxx claims that the evidence was insufficient to support the verdict. We disagree. The standard of review is whether, after viewing the evidence in the light most favorable to the jury’s verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(a) With respect to the burglary on Peacock Avenue, Foxx argues that the state failed to prove the burglary as alleged in the indictment because the evidence of the location of the burglary was unclear and because witness McCoy testified that his house was not burglarized. This argument is somewhat disingenuous because McCoy was an eyewitness to Foxx’s burglary of a neighbor’s residence. Robinson also testified that Foxx participated in a burglary on Peacock Avenue.

(b) Foxx points out that the victim of the burglary on Ashwood Drive does not know who burglarized his home and that Robinson testified he could not remember if the Ashwood Drive burglary resulted in the theft of jewelry or a compressor. However, the victim makes it clear what items were taken, which included jewelry, and Robinson testified that Foxx participated in the theft.

(c) With regard to the burglary at North Quarry Drive, Foxx argues that there is no evidence that a building was entered in order to steal the compressor. However, Robinson testified that before they took the compressor, “I got out of the car and was looking around under the patio, the garage area, and I stayed under there for about five minutes.” The testimony that he “stayed under” the garage area indicates that Robinson did enter a building during the course of the theft of the compressor.

(d) Foxx argues that there was no evidence to tie him to the crime on Warm Springs Road. The prosecutor never specifically-asked Robinson about the burglary on Warm Springs Road, although he did elicit general testimony that Foxx was with him during the five burglaries for which Foxx was charged. The state established through victim testimony that the burglary occurred. Detective Carter testified that Robinson said that he became angry at Foxx during the burglary at the Warm Springs Road residence for trying to steal soap, as opposed to a more valuable item.

Robinson’s statement to Detective Carter establishes Foxx’s participation in the Warm Springs Road burglary. We note that Robinson testified at trial and was available for cross-examination by Foxx regarding his out-of-court statement to Detective Carter. Therefore, Foxx’s conviction on the Warm Springs Road burglary is not based on the statement of a nontestifying accomplice.

(e) Finally, Foxx questions the sufficiency of the evidence with respect to the burglary at the River Road apartments. The prosecutor asked Robinson about his participation in a burglary with Foxx of Unit 1, while the victim testified that his apartment, Unit 101, was burglarized, although he was out of town at the time and did not know the exact date of the crime or who was involved. By considering the testimony of the victim and Robinson together, the jury was authorized to conclude that Foxx participated in a burglary at Unit 101 of the River Road apartments.

2. During Foxx’s cross-examination, the following exchange occurred:

Q: Now, you also say that Johnny Robinson has a reason to lie.
A: Yes, he do.
Q: Because he would come over to your house with his girlfriend and get paranoid?
A: No. I said because he lied because he said he ain’t got nothing to live for, he ain’t got that long to live, he’s going to take as many people down with him as he can. . . .
The Court: Mr. [Prosecutor], I’ve just about heard all of this that I want to hear. Finish up.

Foxx contends the trial court’s comment was an improper expression of opinion by the trial court as to matters proved or the guilt of the accused. We disagree. The trial court’s comment is directed at the prosecutor and urges him to conclude cross-examination. The trial court is allowed to prescribe the manner in which the business of the court is conducted. The comment complained of by Foxx, which, at most, indicated displeasure with the prosecutor, did not constitute an improper expression of opinion by the trial court.

Decided November 14, 2001.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

3. Foxx also contends that he received ineffective assistance of counsel because his trial counsel failed to object to what Foxx contends was the trial court’s improper comment disparaging Foxx’s credibility. However, as we have established above, the trial court did not make an improper comment, and it follows that defense counsel could not have rendered ineffective assistance by failing to object.

Judgment affirmed.

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

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       See Livingston v. State, 268 Ga. 205, 209 (486 SE2d 845) (1997).

       See OCGA § 17-8-57.

       See Butler v. State, 172 Ga. App. 405, 406 (1) (323 SE2d 628) (1984).


text:
    A01A2063.
    HORTON v. THE STATE.
    (556 SE2d 503)
   Mikell, Judge.

The state filed an accusation against Gregory L. Horton in the . State Court of Cobb County charging him with obstructing a law enforcement officer, making harassing phone calls, and disorderly conduct. The charges arose out of a dispute between Horton and his neighbor, Samuel Merriweather, over the quality of a paint job that Merriweather performed on Horton’s home. After a jury trial, Horton was convicted of disorderly conduct, acquitted of the remaining charges, and sentenced to 12 months on probation. On appeal, Horton argues that the trial court committed three reversible errors by: (1) granting the state’s motion to allow a juror who had been struck by Horton to be seated on the jury; (2) holding an evidentiary hearing outside of Horton’s presence; and (3) charging the jury improperly on the crime of disorderly conduct. Having found that the trial court erred by allowing the juror that Horton struck to serve on the jury, we reverse.

1. Although voir dire was not recorded in this case, the trial transcript shows that Horton, who is white, used three out of four of his peremptory strikes to remove three of the six black panel members. After the state challenged the strikes, the trial court found that Horton’s reasons for striking two of the potential jurors were race-neutral. However, as to Horton’s third strike, the trial court held that Horton’s reason, that the juror was a new employee at the same company that employed Merriweather, who is black, was not a race-neutral reason. Horton contends that the trial court’s holding was erroneous. We agree.

In Russell v. State, we held that a strike based on a person’s employment status is race-neutral. Nevertheless, as the state points out, we affirmed the trial court’s finding of discrimination in Russell. We did so, however, because there, the state met its burden of proving that the defendant’s race-neutral reason was pretextual. Here, the state did not meet that burden.

[Our Supreme] Court held that Purkett v. Elem requires the trial court to establish, on the record, that it has applied a three-part test to a party’s claim of discrimination in the use of peremptory strikes. First, the party challenging a strike has the burden of making a prima facie showing of discrimination. The proponent of the strike must then produce an explanation for the strike which is race-neutral and nondiseriminatory on its face, but is not required to enunciate an explanation that is persuasive, or even plausible. Jackson [v. State], quoting Purkett.

The burden of proving that the proffered explanation is merely pretext for discrimination then shifts back to the challenging party.

In this case, the record does not establish that the trial court completed the three-step analysis in that it did not shift the burden back to the state to show that Horton’s explanation was merely pretextual. Instead, the court inquired as to whether either party needed to discuss Merriweather’s place of employment during the trial, ordered that they not do so when they both responded negatively, and instructed the juror not to share this information with the other members of the jury. The court then stated, “[t]he question then comes as to whether or not it was a race [-] neutral strike. The Court has heard the argument of the defendant. He had an opportunity to put that argument again on the record, and he is going to do that in a moment.” After hearing argument from defendant’s counsel, the court announced its ruling. It concluded that Horton’s reason was not race-neutral and ordered that the juror serve on the jury. The court did not require the state, i.e., the opponent of the strike, to argue that Horton’s reason was pretextual prior to the court’s making its ruling.

Decided November 14, 2001.

Cook & Pugh, Joel C. Pugh, John C. Barrett, for appellant.

Barry E. Morgan, Solicitor-General, Jessica K. Moss, Sidney O. Smith III, Assistant Solicitors-General, for appellee.

As discussed above, we noted in Russell that a strike based on a juror’s employment is facially race-neutral. The trial court in the case at bar should have required some showing from the state, or at least argument, on which to base the court’s implied finding that the strike based on place of employment was pretextual. For example, in Russell, the state met its burden of showing that the strike was pretextual by showing that the defendant had failed to strike a similarly situated juror of a different race. Here the court failed to accomplish step three of the required three-step process. Instead it ruled based only on the prima facie case of step one and on a race-neutral explanation offered by the proponent of the strike in step two.

By failing to shift the burden back to the state, the trial court impermissibly placed the ultimate burden of persuasion upon the proponent of the strike. This, it cannot do. “The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Though the trial court’s findings on whether the opponent of the strike has met his burden of persuasion is ordinarily entitled to great deference and affirmed on appeal unless clearly erroneous, where, as here, the trial court did not require the opponent of the strike to meet its burden, the trial court’s finding was clearly erroneous, and Horton must be given a new trial.

2. In light of our holding in Division 1, we need not address Horton’s remaining enumerations.

Judgment reversed.

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

       230 Ga. App. 546 (497 SE2d 36) (1998).

       Id.

       Id. at 548 (2).

       514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995).

       265 Ga. 897, 898 (2) (463 SE2d 699) (1995).

       (Punctuation omitted.) O’Neal v. State, 226 Ga. App. 224-225 (1) (482 SE2d 478) (1997).

       Id., citing Jackson, supra at 899.

       Supra.

       Id. at 548.

        Jackson, supra at 899 (2).

       (Citation and punctuation omitted.) Hinson v. State, 237 Ga. App. 366, 368 (3) (515 SE2d 203) (1999).

        Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674) (1998).


author: Ruffin, Judge.

text:
    A01A1191.
    SEC, INC. v. PUCKETT.
    (555 SE2d 198)
   Ruffin, Judge.

Rodney Puckett sued SEC, Inc. for failure to pay overtime wages and conversion of personal property. Following trial, the jury returned a verdict in favor of Puckett on both counts. SEC appeals, asserting that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict. For reasons that follow, we affirm in part and reverse in part.

1. Before addressing the merits of SEC’s appeal, we note that, in violation of Court of Appeals Rule 27 (c) (3), the appellant failed to support most of its enumerated errors with any citations to the record or transcript. Indeed, SEC’s brief includes only a single citation to the record. But for Puckett’s citations and the limited size of the record, we would not consider SEC’s assertions. Similarly, in violation of Court of Appeals Rule 27 (a) (1), SEC has failed to include any “statement of the method by which each enumeration of error was preserved for consideration.” Such statement is essential to show the Court that the arguments raised on appeal were, in fact, properly preserved for appellate review. Appellants should not expect the Court to cull the record to ensure that this has been done. By failing to cite to the portion of the record showing where it purportedly preserved the enumerated errors, SEC risked the Court deeming all its arguments abandoned.

2. A trial court may grant a directed verdict or j.n.o.v. only if there is no conflict in the evidence, and “the evidence presented, with all reasonable inferences therefrom, demands a particular verdict.” On appeal, we view the evidence presented at trial in a light most favorable to the jury’s verdict and determine whether there is any evidence to support that verdict.

Viewed in this manner, the evidence shows that SEC manufactures chicken processing equipment. Prior to its incorporation in 1998, the company was a sole proprietorship owned by Lacy W. Simmons. Puckett began working for Simmons in the early 1990s as a sheet metal fabricator. According to Puckett, his job included “doing stuff for Mrs. Simmons.” The plant manager, Steve Clay, regularly told Puckett and other plant employees to go to the Simmonses’ home to perform such tasks as cutting grass and feeding horses. Puckett testified that doing work at the Simmonses’ home was “most definitely” part of his job, and Clay acknowledged that when the occasion arose, he would tell the employees, “ ‘we need you to go to Mrs. Simmons’ ” and that nobody ever refused to go.

Simmons, and later SEC, paid Puckett his regular hourly wage whether he was working at the plant or at the house. Puckett testified that his employer would give him two paychecks, “one for forty hours and then one for whatever it run over.” According to Puckett, in late July 1998, after SEC incorporated and acquired the company assets, SEC’s chief financial officer, Dale Garner, posted a “big bulletin board from the labor board” at the plant concerning overtime wages. When Puckett read the bulletin, he inquired of Garner and Clay why he was not being paid time-and-a-half for overtime work. According to Puckett, SEC refused to pay him the overtime wage, insisting that it “didn’t have to.” In response to Puckett’s continued complaints about his pay, SEC paid him “overtime for a couple of weeks,” but then resumed paying his regular wages.

Puckett eventually quit his job at SEC because of the pay dispute. The day after he left SEC, Puckett returned to the plant to retrieve some personal items, which included metal that he personally owned and had brought to the plant to fabricate. Clay, however, confronted Puckett and told Puckett to leave or he would call the police. Puckett subsequently filed the instant suit against SEC, alleging that SEC is liable for overtime wages under the Federal Fair Labor Standards Act of 1938 (“FLSA” or “Act”) and also liable for conversion of his metal.

(a) SEC asserts that the trial court erred in denying its motion for a directed verdict on Puckett’s claim for overtime wages because he failed to present any evidence that he was covered by the FLSA. We agree.

The FLSA requires that:

no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

The term “‘[c]ommerce’ means trade, commerce, transportation, transmission, or communication among the several States .or between any State and any place outside thereof.” In its definition of an “enterprise engaged in commerce or in the production of goods for commerce,” the FLSA includes an enterprise that

(i) has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and (ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500,000.

The foregoing sections provide two types of coverage: (1) individual employee coverage for employees engaged in commerce or in the production of goods for commerce, and (2) enterprise coverage for employees of enterprises engaged in commerce or in the production of goods for commerce. Under enterprise coverage, the employee/ claimant

does not himself need to be involved in an activity that affects interstate commerce. Rather, if an enterprise meets the gross dollar volume amount, all employees are covered under the Act if some employees are (1) engaged in commerce; (2) engaged in the production of goods for commerce; or (3) engaged in handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce.

A plaintiff claiming overtime wages under the FLSA has the burden of proving that he was covered under the Act and must therefore show that either he or his employer, through other employees, was sufficiently engaged in interstate commerce or the production of goods for commerce.

In this case, Puckett made no such showing. Puckett merely showed that SEC manufactured chicken processing equipment. Puckett failed to present any evidence indicating that his particular job, either as a metal fabricator or at the Simmonses’ home, involved interstate activity or that any of SEC’s other employees engaged in such conduct. Likewise, there is no evidence that, once manufactured, SEC’s product, whatever its nature, was placed in interstate commerce.

Puckett nevertheless argues that, at trial, SEC essentially admitted that it was subject to the FLSA. In support of this argument, Puckett cites to the evidence that SEC posted a bulletin regarding overtime wages at the plant and the testimony of its chief financial officer showing that he was “familiar” with the FLSA. Puckett also points to testimony showing that SEC had a policy of paying time-and-a-half if an employee worked more than forty hours “on the clock” and that, after he complained about his wages, SEC paid him time-and-a-half for two weeks. Puckett argues that SEC would not have taken these actions “unless [it] believed it was subject to the Act.” We disagree.

Frankly, we do not know why SEC posted the bulletin, what the bulletin said, or why SEC paid employees time-and-a-half on some occasions. This is because Puckett failed to present any evidence regarding these matters at trial. To now find that SEC took these actions because it was subject to the FLSA would require rank speculation. Likewise, we cannot discern how the chief financial officer’s familiarity with the FLSA constitutes an admission that the company was subject to the Act. There are numerous reasons why a company officer may be familiar with labor laws even if the company is not subject to those laws.

Perhaps recognizing the futility of these arguments, Puckett suggests that the trial court could have taken judicial notice “that Georgia is a national leader in the processing of chicken for interstate shipment, and that the equipment manufactured by SEC and used for chicken processing affected interstate commerce.” Under Georgia law, courts may take judicial notice of “matters of public knowledge . . . without the introduction of proof.” The rule permits courts to judicially notice “that which is within the knowledge of most men. The test is (1) whether the fact is one of common, everyday knowledge that all men of average intelligence are presumed to know, and (2) whether it is certain and indisputable.”

Although Georgia may have a substantial chicken industry, we are not prepared to rule, based solely on the ipse dixit of counsel, that it is undisputable and known to most of our citizens that we are a national leader in processing chicken for interstate commerce. Moreover, because the trial court was left uninformed as to the nature of the chicken processing equipment SEC manufactured or where that equipment was sold, it is impossible to conclude that SEC’s particular equipment was used in interstate commerce. Finally, even if this were a fact which was properly the subject of judicial notice, Puckett has not shown that he requested the trial court to take such notice, that the trial court entertained such a request, or that the parties had an opportunity to be heard on the matter. Under these circumstances, we find no merit in this argument.

Finally, Puckett argues that SEC waived the issue of whether he was covered by the FLSA because it did not raise it in the consolidated pretrial order. Again, we disagree.

The pretrial order reflects Puckett’s contention that SEC “violated the [FLSA] by failing to pay overtime to [him]” and that the jury needed to determine whether SEC “violated the FLSA by failing to pay overtime to [him].” It is clear from the pretrial order that Puckett’s claim for overtime wages was based solely on SEC’s alleged violation of the FLSA. As stated above, there is absolutely no indication that SEC admitted that Puckett was covered under the FLSA. Because it is clear that a plaintiff claiming overtime wages under the Act must prove coverage as part of his claim, we find no merit in Puckett’s contention that the issue was waived.

It is thus apparent that Puckett failed to present any evidence showing that he or SEC was engaged in commerce or in the production of goods for commerce and the trial court erred in failing to grant SEC a directed verdict on Puckett’s claim for overtime wages under the FLSA.

(b) We do not find, however, that the trial court erred in denying SEC’s motions for directed verdict and j.n.o.v. on Puckett’s conversion claim. Our review of the transcript does not disclose that SEC raised this issue when it moved for a directed verdict, and even if SEC did raise the matter, as stated above, it failed to show in its appellate brief where it preserved the question for appellate review. Under these circumstances, SEC has waived any alleged error.

Judgment affirmed in part and reversed in part.

Johnson, P. J., concurs. Ellington, J., concurs in the judgment only.

Decided October 11, 2001

Reconsideration denied November 15,2001

Donald R. Donovan, for appellant.

Mason B. Rountree, for appellee.

       Puckett also sued Juanita G. Simmons, as executrix of the estate of Lacy W. Simmons, Sr., but dismissed the complaint against Simmons prior to trial.

       See Court of Appeals Rule 27 (c) (3) (i); Diffley v. Marshall’s at East Lake, 227 Ga. App. 343, 345 (489 SE2d 123) (1997).

       See Court of Appeals Rule 27 (c) (2).

        Crump v. McDonald, 239 Ga. App. 647-648 (1) (520 SE2d 283) (1999).

       See id. at 648.

       29 USC § 201 et seq. (1998).

       29 USC § 207 (a) (1).

       29 USC § 203 (b).

       (Emphasis supplied.) 29 USC § 203 (s) (1) (A).

       See Reich v. Stewart, 121 F3d 400, 405 (8th Cir. 1997); see also 48A AmJur2d, Labor & Labor Relations, § 3849, pp. 752-753 (1994).

       (Citations omitted.) Boekemeier v. Fourth Universalist Society &c., 86 FSupp.2d 280, 285 (S.D. N.Y. 2000). Inasmuch as it is clear from the plain language of 29 USC § 203 (s) (1) (A) that the FLSA requires an enterprise to be engaged in interstate activity and meet the gross dollar volume requirement, we summarily reject Puckett’s argument that he was required to prove only that SEC met one of these prerequisites to be covered by the Act. See id.

       See Samson v. Apollo Resources, 242 F3d 629, 636 (5th Cir. 2001) (ruling that “plaintiff suing under the FLSA carries the burden of proving all elements of his or her claim”); Englert v. S. Birch & Sons Constr. Co., 163 F2d 34, 36-37 (9th Cir. 1947); Boekemeier, supra.

       OCGA § 24-1-4.

       (Punctuation omitted.) Cole v. Cates, 110 Ga. App. 820, 823 (1) (c) (140 SE2d 36) (1964). See also Graves v. State, 269 Ga. 772, 774 (2) (504 SE2d 679) (1998) (courts may judicially notice “matters [of] which the general public has common knowledge”), overruled in part on other grounds, Jones v. State, 272 Ga. 900, 903 (2) (537 SE2d 80) (2000).

       See Graves, supra at 775-776 (ruling that notice and opportunity to be heard are required before court may judicially notice adjudicative fact).

       See Boekemeier, supra.

       See College Park Cabs v. Justus, 227 Ga. App. 66, 70 (4) (488 SE2d 88) (1997); Diffley, supra.