author: Carley, Judge. Sognier, Chief Judge, Beasley, Judge,

text:
    A90A1908.
    McCABE v. LUNDELL.
    (405 SE2d 693)
   Carley, Judge.

Appellee-plaintiff brought suit against appellant-defendant, alleging a tort claim for assault and battery. Appellant answered and filed a counterclaim against appellee. Subsequently, appellant moved to disqualify appellee’s attorney and to add him as a party-defendant to the counterclaim. The trial court denied appellant’s motion, but certified its order for immediate review. Appellant applied for an interlocutory appeal and the instant appeal results from the grant of his [application.

1. OCGA § 9-11-13 (h) provides as follows: “When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim L . ., the court shall order them to be brought in as defendants as provided in this chapter, if jurisdiction of them can be obtained.” [(Emphasis supplied.) The first issue for resolution is a determination if what is meant by obtaining “jurisdiction” over a potential defend-mt-in-counterclaim.

The phrase “as provided in this chapter” that is employed in )CGA § 9-11-13 (h) refers to OCGA § 9-11-19. Co-op Mtg. Investments Assoc. v. Pendley, 134 Ga. App. 236, 238 (1) (214 SE2d 572) 1975). OCGA § 9-11-19 (a) relates to the joinder of “[a] person who is subject to service of process” and further provides, in relevant part, that “[iff the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.” (Emphasis supplied.)

Reading this statutory language in pari materia, it is clear that venue is not a relevant inquiry in the initial determination of whether to add a defendant-in-counterclaim. Instead, the reference in OCGA 9-11-13 (h) to the existence of “jurisdiction of [potential defendants-in-counterclaim]” obviously contemplates only a determination as to whether jurisdiction over the person of potential defendants-in-counterclaim can be obtained. Thus, “[w]hen the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim . . ., the court shall order them to be brought in as defendants ... if jurisdiction of them can be obtained [through service of process].” If the motion to join is granted and the defendant-in-counterclaim is thereafter served, then the actually “joined [rather than potentially joinable] party” may contest venue by filing a motion to dismiss which is to be treated by the trial court as a motion to transfer pursuant to Uniform Superior Court Rule 19. If venue is shown to be proper elsewhere, it would then be incumbent upon the trial court to enter an appropriate order. Such an appropriate order might sever the counterclaim for separate trial pursuant to OCGA § 9-11-42 (b) and transfer only the severed counterclaim while retaining jurisdiction and venue over the main action. See McCormick v. Rissanen, 177 Ga. App. 623 (340 SE2d 268) (1986).

Since the instant case concerns the denial of an initial motion fori joinder pursuant to OCGA § 9-11-13 (h), resolution is not dependent upon a venue analysis. As noted, venue would be a relevant inquiry only in a case wherein a motion for joinder pursuant to OCGA § 9-11-13 (h) has been granted and the defendant-in-counterclaim has been served and has elected to contest venue. To hold otherwise would be to misconstrue the provisions of OCGA § 9-11-13 (h) and to under mine the concept of judicial economy implicit in Uniform Superioi Court Rule 19. If jurisdiction over the person of a proper potentia defendant-in-counterclaim can be obtained, any issue of imprope: venue as to him should be raised and resolved in the context of subsequent motion to transfer. Judicial resolution of the merits of th< claim as against him should not be delayed by urging improper venui as the basis for an order denying his joinder as the defendant-in counterclaim in an existing action.

2. There is no contention that appellee’s counsel is not subject t service of process and that jurisdiction over his person cannot, there fore, be obtained. Accordingly, the propriety of the trial court’s orde denying the motion to add appellee’s counsel as a defendant-in-cour terclaim is dependent solely upon whether his presence “is required for the granting of complete relief in the determination of [appellant’s] counterclaim. . . .” (Emphasis supplied.) OCGA § 9-11-13 (h). The addition of appellee’s counsel is sought only on the basis that he is a joint tortfeasor with appellee. It is clear, however, that the absence of an additional alleged joint tortfeasor is no impediment to “complete relief” otherwise being granted to appellant. “[I]t is well settled that it is not required that all joint tortfeasors be joined together in an action against one, their liability being joint and several. [Cit.]” Sheet Metal Workers Intl. Assn. v. Carter, 144 Ga. App. 48, 51 (4) (240 SE2d 569) (1977), rev’d on other grounds 241 Ga. 220 (244 SE2d 860) (1978). Compare Stein v. Burgamy, 150 Ga. App. 860 (3) (258 SE2d 684) (1979) (direct liability of employee and vicarious liability of employer); Co-op Mtg. Investments Assoc. v. Pendley, supra (partnership liability). It may be “desirable” that appellee’s counsel be added as a defendant-in-counterclaim. However, OCGA § 9-11-13 (h) does not authorize the addition of a defendant-in-counterclaim merely because it may be “desirable.” The statute mandates the addition of a defendant-in-counterclaim whose presence “is required for the granting of complete relief. . . .” (Emphasis supplied.) This court has no authority to ignore statutory language and, in effect, rewrite statutes based upon subjective judicial determinations of “desirability.” It follows, therefore, that the trial court did not err in denying appellant’s motion to add appellee’s counsel as a defendant-in-counterclaim because his presence is not required to afford appellant complete relief.

3. Insofar as the motion to disqualify is concerned, appellant has stated that he will call appellee’s counsel as a witness and, under the record before us, it appears that appellee’s counsel should be considered a material witness. Accordingly, the trial court erred in denying appellant’s motion for disqualification of appellee’s counsel. Cherry v. Coast House, Ltd., 257 Ga. 403, 405 (3) (359 SE2d 904) (1987).

Judgment affirmed in part and reversed in part.

Banke, P. J., [Pope, Cooper and Andrews, JJ., concur. Sognier, C. J., McMurray, IP. J., and Birdsong, P. J., concur specially. Beasley, J., concurs in ¡parí and dissents in part.

Sognier, Chief Judge,

concurring specially.

I I concur fully in Division 3 and concur in the result reached by the majority in Division 2. However, I cannot concur with the ration-lie advanced in Division 1 or with all that is said in Division 2 because I disagree with the majority’s interpretation of OCGA § 9-11-13 |h).

OCGA § 9-11-13 (h) provides that “the court shall order [the ad-itional parties] to be brought in as defendants as provided in this chapter, if jurisdiction of them can be obtained.” (Emphasis supplied.) I read that language to mean that jurisdiction is a threshold inquiry. As in any other action, jurisdiction over a party must be established before the court can enter any rulings binding the party. Contrary to the majority’s assertion, personal jurisdiction encompasses more than service of process. Venue is also a component of jurisdiction over the person, Williams v. Fuller, 244 Ga. 846, 849 (262 SE2d 135) (1979); Goodman v. Vilston, 197 Ga. App. 718, 721 (399 SE2d 241) (1990), and a court which does not have venue over a person lacks jurisdiction over that person. Williams, supra at 849-850 (3, 4).

Moreover, even assuming Co-op Mtg. Investments Assoc. v. Pendley, 134 Ga. App. 236, 238 (1) (214 SE2d 572) (1975), cited by the majority, was correct in concluding that the “in this chapter” language in OCGA § 9-11-13 (h) refers to OCGA § 9-11-19 (but see Ga. L. 1966, p. 626, § 13 (h), which shows that in the original enactment of OCGA § 9-11-13 (h), which has not been amended, the reference was to the entire Civil Practice “Act”), nothing in OCGA § 9-11-19 suggests that jurisdiction and venue should be inquired into only after the party is added. It does not modify the jurisdictional prerequisite in OCGA § 9-11-13 (h), but instead imposes additional requirements regarding the connection of the proposed additional party to the underlying action. Further, when in an ongoing action such as this one, the court knows before the additional defendant is added that it does not have venue, in the interest of judicial economy the trial court should inquire into its jurisdiction in advance. Accordingly, I conclude that venue is a threshold question that must be addressed by the courts when considering a motion to add a party pursuant to OCGA § 9-11-13 (h).

In the instant case, the record reveals that jurisdiction over ap-pellee’s counsel as a counterclaim defendant cannot be obtained because venue against him would not lie in Cobb County where the suit is pending. The attorney is a Georgia resident but does not reside in Cobb County, and appellee, the current counterclaim defendant, is a resident of Alabama. As a general rule, our Constitution provides that for in personam actions, venue lies in the county of the defendant’s place of residence. Ga. Const., Art. VI, Sec. II, Pars. I, VI (1983). Although the Constitution states that “[s]uits against . . . joint tort' feasors residing in different counties may be tried in either county,” (Art. VI, Sec. II, Par. IV), an individual defendant who lives outside the State does not “reside” in Georgia for purposes of this joint tortfeasor venue provision. Goodman, supra. While a nonresident such as appellee, who voluntarily institutes a lawsuit in a Georgie court is deemed to submit herself, for all purposes of that suit, to th( jurisdiction of the courts of the county in which the suit is pending Biddinger v. Fletcher, 224 Ga. 501, 504 (162 SE2d 414) (1968), such a plaintiff nevertheless remains a nonresident as defined in OCGA § 9-10-90 and does not become a “resident” of that county so as to submit a Georgia resident of another county to the jurisdiction of the courts of the forum county under the joint tortfeasor venue provision. Cf. Goodman, supra (Long-Arm Statute may permit jurisdiction over a non-Georgian but does not make that person a “resident” for joint venue). Thus, the joint tortfeasor provision cannot be used to obtain venue over a Georgia resident as a joint tortfeasor of another defendant who is not a resident of Georgia, and venue against the Georgia defendant lies only in the county of his residence. Id.; see Bergen v. Martindale-Hubbell, 245 Ga. 742, 743 (2) (267 SE2d 10) (1980). The transfer procedure proposed by the majority would not solve the venue problem in this action because appellee, the current counterclaim defendant, is not a Georgia resident and has not submitted to jurisdiction except in Cobb County, whereas venue over her counsel, the proposed additional counterclaim codefendant, can only be obtained elsewhere. Accordingly, I conclude that the trial court’s denial of appellant’s motion to add appellee’s counsel as a party defendant was correct because venue over appellee’s counsel cannot be obtained in Cobb County, the forum where the counterclaim is pending.

I am authorized to state that Presiding Judge McMurray and Presiding Judge Birdsong join in this special concurrence.

Beasley, Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 and 3. However, the presence of the attorney as a joint tortfeasor is required for the granting of “complete relief” to McCabe. Although, as the majority states, it is not required that all joint tortfeasors be joined in a single suit, they should be added under OCGA § 9-11-13 (h) when it is requested and they can be served, in order for there to be complete relief to a wronged party. As quoted in Stein v. Burgamy, 150 Ga. App. 860, 861 (3) (258 SE2d 684) (1979): “ ‘This provision “complete relief” embraces the desirability of avoiding repetitive lawsuits on essentially the same facts or subject matter, as well as the desirability of joining those in whose absence there might be a grant of hollow or partial relief to the parties before the court.’ [Cit.]”

In Stein, the bank officer was being added individually to the counterclaim against the bank because “ ‘directors or officers of a corporation are liable for their fraudulent acts and representations to persons who are injured thereby.’ ” In Co-op Mtg. Investments &c. v. Pendley, 134 Ga. App. 236 (1) (214 SE2d 572) (1975), the case quoted in Stein, joinder of the general partner with the limited partnership was necessary to give complete relief, i.e., to reach the assets of the general partner. Otherwise there is just a “judicial juggle,” said the court.

Decided January 10, 1991

Rehearings denied March 25, 1991 and May 3, 1991

Donald A. Weissman, Douglas H. Pike, for appellant.

Glen A. Garrett, Richard L. Moore, Rebecca S. Walton-McFalls, for appellee.

The same obtains here, where there is an alleged joint tortfeasor, and the “desirabilities” expressed in Co-op as the philosophy underlying the requirement have waxed stronger since 1979 instead of waning. Not only the increasing caseload in the courts and increasing costs of lawsuits to courts and litigants, but also the spirit of the intervening constitutional provision requiring court rules which provide for “the speedy, efficient, and inexpensive resolution of disputes” support this. 1983 Ga. Const., Art. VI, Sec. IX, Par. I.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A91A0190.
    WHIDDON v. DIXON.
    (405 SE2d 710)
   Beasley, Judge.

Appellee Dixon brought this suit against appellant Whiddon for money had and received. The final judgment in favor of Dixon on a jury verdict is affirmed.

Dixon entered into ah agreement with Whiddon and her ex-husband under which he cut and removed timber from a tract of land jointly owned by them. Whiddon’s ex-husband went onto the land and showed Dixon the boundaries of the property, but he mistakenly included property belonging to Neel and the Lurrys. These neighbors complained, and Whiddon’s ex-husband acknowledged his fault. He agreed that he would hire an attorney to represent Dixon if he were sued and that he would hold him harmless from any judgments Neel and the Lurrys might obtain against him. The neighbors did sue I Dixon, who had to hire an attorney to represent himself. Neel and the I Lurrys obtained judgments in the cumulative amount of $6,610.80, | which Dixon paid.

Whiddon contended that although she and her ex-husband heldl joint title to the property from which the timber was cut, Dixon’s! agreement was with her ex-husband, who was the sole payee of checksj issued by Dixon in payment of the timber.

Dixon countered that his agreement was with both Whiddon anc her ex-husband and that the checks were deposited into a joint check-J ing account, which was subsequently awarded to Whiddon in her di-l vorce suit. Dixon also contended that $5,000 in cash found in the trunk of Whiddon’s car might have been money received in payment of the timber. Whiddon denied all of this.

The verdict of $4,769 was the amount of money paid by Dixon to Whiddon and her ex-husband for the timber cut from the Neel and Lurry lands.

1. Whiddon challenges the sufficiency of the evidence, contending that through reasonable efforts, such as going to the courthouse and examining surveys of the property, Dixon could have ascertained the true boundary line. She argues that his negligence in failing to do this bars reliance on appellant’s ex-husband’s misrepresentations. As supporting authority, Whiddon cites such cases as Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989) and Miller v. Clabby, 178 Ga. App. 821 (344 SE2d 751) (1986). These inapposite cases hold that a purchaser of property cannot recover in an action against the seller for fraud and deceit based on misrepresentations by the seller as to the boundary of the property, if the means of ascertaining the boundary line were equally available to both parties. The challenge to sufficiency is without merit.

2. Whiddon enumerates as error the charge that if Dixon’s negotiations were with Whiddon’s ex-husband, who had and received money which in equity and good conscience he was not entitled to keep, the jury must determine whether or not he acted as his wife’s agent. This was a correct statement of law, see Schofield v. Jones, 85 Ga. 816, 820 (11 SE 1032) (1889), and it was adjusted to the evidence.

3. Another jury charge enumerated as error was that if the jury finds that Whiddon permitted her husband to manage and control her property or allowed him to deal with it to induce others to believe that he was acting as her authorized agent, such facts are sufficient to establish the agency in favor of persons who dealt with him in such belief, whether she knows that her husband is so managing and controlling her property and makes no objection thereto. This, too, was a correct statement of law, see Aronoff v. Woodward, 47 Ga. App. 725 (5) (171 SE 404) (1933), and adjusted to the evidence.

4. Whiddon enumerates as error the court’s charge to the jury of the contentions of the parties in their pleadings, as amplified in the pretrial order. She contends that the jury’s province was invaded by giving a detailed factual summary of Dixon’s contentions and only short shrift to hers, merely stating that she denied the material allegations of the complaint. The trial court responded to her exception on the ground that the charge was imbalanced and unfair, by stating accurately that Whiddon’s answer consisted of a denial of the com¡plainant’s allegations, that her only specific factual contention was ¡that she was without knowledge of the amounts recovered by Neel and the Lurrys or of Dixon’s demand for reimbursement, and that this is what the court charged. We find no error. Compare English v. Poole, 31 Ga. App. 581, 583 (5) (121 SE 589) (1924), relied upon by Whiddon.

Decided April 2, 1991

Rehearing denied May 3, 1991.

Loftiss, Van Heiningen & Ward, J. Patrick Ward, for appellant.

Porter, Lehman & Chason, J. Kevin Chason, for appellee.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    A91A0212, A91A0213.
    GRIFFIN v. THE STATE.
    (405 SE2d 877)
   Beasley, Judge.

Case No. A91A0212

Appellant Danny Eugene Griffin was tried for murder and convicted by a jury of voluntary manslaughter. OCGA § 16-5-2 (a). His appeal follows a denial of his motion for new trial.

1. Appellant’s first three enumerations of error invoke the general grounds. The evidence showed that after work one day appellant’s boss, Denver Ward, came to appellant’s trailer home. Brenda Whit-lock, the fiancee of appellant’s son, was also visiting the family, and the victim, Doyle (“Sonny”) Smith arrived later. After Ward cut appellant’s hair, the three men drank a beer each and then drove off to buy more beer. When they returned, the men and Ms. Whitlock moved to the front yard because appellant’s wife said their loud conversation was disturbing a sleeping grandchild.

Ms. Whitlock, who was drinking whiskey and cola, became upset when she thought appellant’s wife was mad at her, and suffered an epileptic seizure. After regaining consciousness she attempted to leave, packing her belongings and her baby in her car, but appellant stopped her. This led to an argument and appellant slapped her in the face. Upon witnessing this exchange, Smith threatened appellant with a brick or concrete block.

Trying to prevent a fight and separate the two men, Ward was struck hard several times, suffering the loss of several teeth and having some ribs broken and bruised. Appellant ordered Smith to leave but instead he dropped the brick and began to advance toward appellant, who was standing at the door of the trailer. Appellant retrieved a shotgun from just inside the door and, when Smith kept advancing, shot him in the chest and killed him.

“Viewing the evidence in favor of the jury’s findings, we find there was clearly sufficient evidence from which a rational trier of fact could find appellant guilty of voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [1979].” Latham v. State, 195 Ga. App. 355 (1) (393 SE2d 498) (1990).

2. In three enumerations appellant contends that his conviction should be reversed for ineffective assistance of counsel because (a) his attorney failed to allow him to testify, (b) failed to specifically request a charge on aggravated assault as a lesser included offense, and (c) failed to move for a directed verdict of acquittal of malice murder at the conclusion of the State’s evidence.

“Georgia has adopted the two part test for effectiveness set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [Cit.] Under the Strickland formula, defendants seeking to show that their counsel was ineffective must show: 1) their counsel’s performance was deficient and 2) that the deficient performance prejudiced the defense. [Id.] at 687.” Perkins v. State, 260 Ga. 292, 293-294 (392 SE2d 872) (1990).

(a) At the hearing on appellant’s motion for new trial he testified that he had not told his attorney he wished to testify, but that he would have been willing to do so. He was unable to relate any evidence of justification about which he would have testified that differed materially from what was offered by other witnesses. There was nothing to show that the decision not to call him as a witness prejudiced appellant’s defense in any way.

(b) There was no evidence requiring a charge on aggravated assault as a leeser included offense, although the judge did charge on aggravated assault as a felony with regard to felony murder. Since the victim was killed the crime was an unlawful homicide, and the evidence showed malice murder, felony murder or voluntary manslaughter, all of which were charged. See OCGA §§ 16-5-2; 16-5-3; Moore v. State, 55 Ga. App. 213 (2) (189 SE 731) (1937).

(c) Finally, appellant’s claim of ineffectiveness in failing to move for acquittal on the malice murder count is moot in light of his conviction of the lesser offense of voluntary manslaughter. The court did not err in refusing to find ineffectiveness of counsel ánd grant a new trial on this basis.

3. Appellant’s remaining enumerations concern the trial court’s failure to give his requested jury charges on involuntary manslaughter, forcible felony, the doctrine of reasonable beliefs and that if they ¡found he was justified in his acts it would be the jury’s duty to acquit him; he also asserts that certain instructions were impermissibly bur|den shifting. None of these enumerations is meritorious.

(a) Appellant recognizes the long line of Georgia cases holding that where a defendant uses a gun, and the shooting is deliberate but the defendant claims justification as a defense, he is not entitled to a charge on involuntary manslaughter as a lesser included offense. He argues, however, that the circumstances of this case are more like those in Mullins v. State, 157 Ga. App. 204 (1) (276 SE2d 877) (1981), where the failure to give the requested charge was held to be erroneous. In Mullins, there was evidence that the defendant raised a gun over her head and threatened to use it in self-defense. After the danger subsided, she began to lower the pistol and it fired accidentally, killing the victim.

It is undisputed that appellant intended to shoot the victim, although he claims he did not intend to kill him and the shooting was justified because it was in self-defense. Nevertheless, it is not error to refuse to give a requested charge on misdemeanor involuntary manslaughter where the defendant has caused the death of another by the use of a gun in self-defense. Moore v. State, 251 Ga. 499 (3) (307 SE2d 476) (1983).

(b) Appellant complains that the trial court erred in refusing to give his written request to charge the jury the definition of the term “forcible felony” as contained in OCGA § 16-1-3 (6), so as to let them completely evaluate his defense of justification. Since this statutory definition (“any felony which involves the use or threat of physical force or violence against any person”) was adequately covered by the court’s jury instructions on the principles of the defense of justification, the failure to quote the specific language requested does not amount to reversible error. “ ‘ “Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.” ’ [Cit.]” Taylor v. State, 195 Ga. App. 314, 315 (1) (393 SE2d 690) (1990).

(c) In regard to failing to give appellant’s requested charge on the doctrine of reasonable belief, the trial court’s charge on the defense of justification likewise fully covered all the essential elements. The jury was instructed that “[a] person is justified in threatening or using force against another when and to the extent he reasonably believes that such threat or force is necessary to defend himself or a third person against the other’s imminent use of unlawful force.” This charge did not, as contended, result in manifest injustice. Taylor, supra.

(d) Appellant insists that, despite the current law, the trial court should have instructed the jury that if they found his actions were justified, it was their duty to acquit him. This court is without authority to overrule Lavender v. State, 234 Ga. 608 (2) (216 SE2d 855) (1973). Thus the trial court did not err in charging the jury that if it found justification for the appellant’s actions, it would be permitted to acquit him.

Decided April 2, 1991

Rehearing denied May 3, 1991

Ray C. Smith, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

(e) Appellant protests the trial court’s charge to the jury that “if you believe the defendant did not commit the act under the instructions that I’ve given you for the reasons that have been stated, then you would be authorized to find the defendant guilty of one of the three offenses that the court has mentioned.” He asserts that this portion of the charge impermissibly shifted the burden of proof on the defendant and led the jury to believe that even if it found the defendant did not commit the acts it must find him guilty of one of the three offenses on which the court charged.

Taken in conjunction with the court’s instructions preceding the language objected to, we do not find the charge as a whole to be burden shifting. “ ‘It is a'fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.]’ [Cit.] Our review of the transcript shows that the charge, when taken as a whole, properly informed the jury as to the law concerning [the burden of proof].” Jackson v. State, 193 Ga. App. 844, 845 (2) (389 SE2d 521) (1989).

Case No. A91A0213

4. A hearing was conducted on appellant’s motion for a post conviction supersedeas bond and an order issued in accordance with Birge v. State, 238 Ga. 88 (230 SE2d 895) (1976), in which the trial court found that there was no real basis for the appeal from the jury verdict and sentence and denied bond; and that it was frivolous' and taken for the purpose of delay only. Appellant contends that because the matters enumerated in error in the main appeal were substantial and extremely prejudicial, the trial court’s denial should be reversed and a bond granted during the pendency of the appeal process. However, “ ‘the issue is moot because we affirm the conviction.’ Lawson v. State, 242 Ga. 744, 745 (24) (251 SE2d 304) (1978).” Harris v. State, 196 Ga. App. 304, 307 (6) (396 SE2d 288) (1990).

Judgments affirmed.

Banke, P. J., and Carley, J., concur.


text:
    A91A0502.
    EMMETT v. THE STATE.
    (405 SE2d 707)
   Beasley, Judge.

Emmett and Hill were jointly indicted, tried, and convicted of multiple charges. Hill’s convictions were affirmed in his direct appeal. Hill v. State, 193 Ga. App. 401 (387 SE2d 910) (1989). Emmett’s conviction is likewise affirmed.

The two men concocted a scheme for hijacking a UPS truck and using it for the robbery of a certain store. They set out in Hill’s gray Lincoln Continental and followed a UPS truck driven by Terry Swindle. Emmett had disguised himself with dark-skinned make-up on his face, a wig, and sunglasses. At a delivery stop, Emmett entered the truck, pointed a .32 caliber revolver at Swindle’s head, and told him to drive to a parking lot. There he instructed Swindle to get into the back of the truck and bound him with tape and an eye covering.

Emmett then drove the truck to the store, with Hill following in the car. Emmett went into the store and inquired about the purchase of a Cabbage Patch doll. He lost his nerve and left, stating he would return and make the purchase. Several hours later, he went back in the truck, and Hill followed in his Lincoln. Emmett entered the store and brandished the revolver. The store owner ran out the front door and yelled for help. Emmett fled and jumped into the Lincoln as Hill drove away.

They were apprehended by the police, who had been given a description of the car. Make-up, make-up remover, wig, sunglasses, and revolver were found in the car.

The two men were jointly indicted for the armed robbery of the UPS truck, the kidnapping of Swindle, false imprisonment of Swindle, aggravated assault upon Swindle, aggravated assault upon the store owner, and theft by taking the truck. Emmett was also charged with attempted armed robbery of the store, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon.

He was convicted of or pled guilty to all charges. After merging some of the offenses, the court entered final judgments for armed robbery of the UPS truck (OCGA § 16-8-41) (a)), the kidnapping of j Swindle (OCGA § 16-5-40 (a)), the attempted armed robbery of the f store (OCGA § 16-4-1), and possession of a firearm by a convicted) felon (OCGA § 16-11-131) (b)).

1. Emmett enumerates as error the failure to direct a verdict for j him on armed robbery, because he never intended to steal the UPS! truck or any of its contents; he only used the truck during the store! robbery and then abandoned it, with Swindle having been in the back! of the truck at all times; he never intended to permanently deprive! Swindle of the truck’s possession.

“A person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . OCGA § 16-8-41 (a).

The argument is that there was no evidence of intent to commit theft and none of taking. The law is otherwise applicable to the evidence adduced. “The word ‘theft’ is not, like ‘larceny,’ a technical word of art with narrowly defined meaning, but a word of general and broad connotation, covering any criminal appropriation of another’s property to the taker’s use. Edwards v. Bromberg, 232 F2d 107 (2) (5th Cir. 1956).” Henson v. State, 136 Ga. App. 868, 869 (1) (222 SE2d 685) (1975). “ ‘It is not required that the property taken be permanently appropriated.’ James v. State, 232 Ga. 834, 835 (209 SE2d 176) (1974).” Bramblett v. State, 191 Ga. App. 238, 239 (1) (381 SE2d 530) (1989). “ ‘The slightest change of location whereby the complete dominion of the property is transferred from the true owner to the trespasser is sufficient asportation.’ Johnson v. State, 9 Ga. App. 409 (2) (71 SE 507); Rivers v. State, 46 Ga. App. 778 (169 SE 260).” James, supra at 835. “[R]egardless of whether appellant intended to take the [truck] and withhold it permanently, his intent to take it for his own temporary use without the owner’s authorization evinces an intent to commit a theft.” Smith v. State, 172 Ga. App. 356, 357 (2) (323 SE2d 257) (1984). Cf. Miller v. State, 174 Ga. App. 42, 44 (5) (329 SE2d 252) (1985).

2. Appellant contends that it was error to fail to charge the jury on robbery by intimidation and theft by taking as lesser included offenses of armed robbery, even though he did not request such. Omitting a charge on lesser included offenses is not error in the absence of a written request. State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976).

In addition, the court gave appellant an opportunity to make objections to the jury instructions after they were given. He neither raised this objection nor reserved his right to do so on motion for new trial or appeal, thereby waiving it. Wadley v. State, 257 Ga. 280, 281 (2) (357 SE2d 588) (1987).

3. Appellant contends that his conviction of armed robbery is a lesser included offense of kidnapping, requiring a merger of the former into the latter. OCGA § 16-1-7.

Armed robbery and kidnapping are clearly not included offenses as a matter of law. Chambley v. State, 163 Ga. App. 502, 504 (2) (295 SE2d 166) (1982).

Nor are they included offenses as a matter of fact in this case. The indictment alleged that appellant committed kidnapping by abducting Swindle and that he committed armed robbery by taking the truck from Swindle. Kidnapping was complete upon appellant’s pointing the gun at Swindle’s head and forcing him to drive the truck away; armed robbery occurred upon appellant’s tying Swindle up and assuming control of the truck, using the gun to acquire and maintain superiority. Under the indictment and evidence, these two offenses were based on separate acts. See Gaither v. Cannida, 258 Ga. 557, 558 (1) (372 SE2d 429) (1988); Chambley v. State, supra; accord Bailey v. State, 146 Ga. App. 774 (2) (247 SE2d 588) (1978); compare Hambrick v. State, 256 Ga. 148 (4) (344 SE2d 639) (1986).

4. Appellant complains of the trial court’s allowing co-defendant Hill to attempt to impeach appellant, who implicated Hill, through proof pf: (1) prior criminal convictions of burglary, and (2) pending drug charges, the latter having been offered to show that Emmett expected leniency or hoped for reward in exchange for his incriminating testimony. Denial of appellant’s motion for trial severance when the evidence was admitted is also enumerated as error.

When two or more defendants are jointly indicted for a non-capital felony, such defendants may be tried jointly or severally, in the discretion of the trial court. OCGA § 17-8-4. “[T]he burden is on the defendant requesting a severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. [Cit.] He must make a clear showing of prejudice and a consequent denial of due process. [Cits.]” Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975).

Appellant placed his character in issue through testimony given by him on direct examination and thus opened the door to being impeached by proof of prior criminal convictions. OCGA §§ 24-2-2; 24-9-20; Williams v. State, 257 Ga. 761, 762 (3) (363 SE2d 535) (1988). Proof of crimes involving moral turpitude is admissible to impeach a witness. Coleman v. State, 94 Ga. 85, 86 (1) (21 SE 124) (1894).

Although evidence of the pending drug charges would not be admissible to impeach appellant as a witness, it was admissible to show his interest in cooperating with the State and testifying against Hill in this joint trial. See Strickland v. State, 257 Ga. 230, 232 (4) (357 SE2d 85) (1987).

A severance, however, was not required at this point because the evidence of the pending charges was merely in exploration of the subject which he had testified to at some length, i.e., his addiction to cocaine and how it had led to his criminal conduct in this case.

The trial court did not abuse its discretion in denying appellant’s motion for severance. See Kesler v. State, 249 Ga. 462, 468-469 (4) (291 SE2d 497) (1982); Terry v. State, 190 Ga. App. 570, 571 (1) (379 SE2d 604) (1989); see also Davis v. State, 129 Ga. App. 796 (201 SE2d 345) (1973).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

Decided April 1, 1991

Rehearing denied May 3, 1991

H. Bradford Morris, Jr., for appellant.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A91A0603, A91A0604.
    JACKSON v. ROACH; and vice versa.
    (405 SE2d 712)
   McMurray, Presiding Judge.

James E. Roach filed a paternity action against Maryella Jackson, seeking to establish the paternity of defendant’s unborn child. Defendant answered and alleged that “she . . . delivered a child, a son, born December 5, 1987, and [that] the Plaintiff is the natural father of this child.” In an amended answer, defendant requested child support, medical expenses, court costs and attorney fees.

The case was tried before a jury. Plaintiff was found to be the father of the minor child and defendant was awarded support for the minor child. Defendant appealed in Case No. A91A0603 after the denials of her motion for new trial and her motion for judgment notwithstanding the verdict. Plaintiff cross-appealed in Case No. A91A0604 after the trial court entered an order awarding defendant child support from the date of the minor child’s birth. Held:

OCGA § 5-6-35 (a) (2) requires all “[a]ppeals from judgments or orders in divorce, alimony, child custody, and other domestic relations cases . . .” be by application. Defendant’s direct appeal and plaintiff’s cross-appeal are from orders awarding defendant support for a minor child. Such appeals are domestic relations cases which require compliance with the discretionary appeal procedure of OCGA § 5-6-35. See Weaver v. Chester, 195 Ga. App. 471 (393 SE2d 715). Since neither defendant nor plaintiff followed the mandatory appeal procedures of OCGA § 5-6-35, the appeal in Case No. A91A0603 and the cross-appeal in Case No. A91A0604 must be dismissed. Compare Department of Human Resources v. Johnson, 175 Ga. App. 610 (333 SE2d 845), where this Court allowed a direct appeal after judgment in a suit for recovery of public assistance benefits paid on behalf of that appellee’s child, classifying the action as one for the collection of a ¡debt and not a domestic relations case.

Appeal in Case No. A91A0603 and cross-appeal in Case No. |A91A0604 dismissed.

Sognier, C. J., and Andrews, J., concur.

Decided April 8, 1991

Rehearing denied May 3, 1991

Glenville Haldi, for appellant.

Custer, Hill & Clark, Lawrence B. Custer, Douglas A. Hill, for appellee.


author: Andrews, Judge.

text:
    A91A0613.
    HIRSCHFIELD et al. v. CONTINENTAL CASUALTY COMPANY et al.
    (405 SE2d 737)
   Andrews, Judge.

Hirschfield and Radov (plaintiffs) incurred water damage to the basement of their home, and brought this action against Continental Casualty Company and CNA Insurance Company (defendants), claiming coverage under the homeowners’ policy issued by the defendants. The trial court granted summary judgment to the defendants, who denied coverage, and plaintiffs appeal.

A grate-covered opening to an underground storm drain is located adjacent to the plaintiffs’ home. After a rainstorm, rainwater flowed or rose from the area of the grate, across the surface, and eventually entered a vent leading into the plaintiffs’ basement. The plaintiffs presented evidence that a blockage in the underground drain caused rainwater, which had previously entered the drain at an upstream location, to be diverted upward through the grate and eventually across the surface area into the basement. The defendants presented evidence that the storm drain had become clogged with debris, and was unable to take rainwater away, so that the water level around the grate rose to a point where the rainwater flowed across the surface into the basement.

The plaintiffs’ policy contains the following coverage:

“ADDITIONAL PROPERTY COVERAGE — Back Up of Sewers or Drains. We cover loss to your real property and tangible personal property caused by water which backs up through sewers or drains except for losses in the section called ‘Property Losses We Do Not Cover.’ ”

The policy also contains the following exclusion:

“PROPERTY LOSSES WE DO NOT COVER — Water damage meaning: Flood, surface water, waves, tidal water, overflow of a body of water or spray from any of these, whether or not driven by wind;”

Plaintiffs contend the trial court erred in granting summary judgment to defendants on the coverage issued because (1) when read as a whole, the policy provisions are ambiguous, and (2) a factual question exists as to whether the water which entered the basement was “drain water” or “surface water” within the policy provisions.

The construction of an insurance contract is a question of law for the court. Transamerica Ins. Co. v. Thrift Mart, Inc., 159 Ga. App. 874, 880-881 (285 SE2d 566) (1981); OCGA § 13-2-1. Where the policy is unambiguous, the court must declare and enforce the contract as made between the parties. U. S. Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 79 (355 SE2d 428) (1987). Even if the court determines an ambiguity exists, no jury question arises unless the ambiguity remains after the court has applied the statutory rules of construction in attempting to resolve the ambiguity. Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986).

The water which entered the plaintiffs’ basement was “surface water” under the widely accepted definition. See Aetna Ins. Co. v. Walker, 98 Ga. App. 456, 459-460 (105 SE2d 917) (1958). “ ‘ “Surface water” is water which is derived from falling rain or melting snow, or which rises to the surface in springs, and is diffused over the surface of the ground, while it remains in such diffused state, and which follows no defined course or channel, which does not gather into or fprm a natural body of water, and which is lost by evaporation, percolation, or natural drainage.’ [Cit.]” Id. Whether in the present case the rainwater was diverted from the storm drain to the surface by an underground blockage, or it accumulated near the grate because the drain was otherwise obstructed, it is undisputed that the rainwater then flowed from the adjacent grate, across a surface area, and into the basement. Under these facts, the water entering the basement fits squarely within the “surface water” exclusion in the policy.

When read together, the relevant insuring and exclusion provisions of the policy plainly cover damage caused by water which backs up through sewers or drains, except flood and surface waters. Even if the insuring provision for “water which backs up through sewers and drains” might arguably apply to rainwater backing up to the surface through the storm drain, the “surface water” exclusion clearly and explicitly excludes coverage under the present circumstances. “ ‘Exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.’ ” Alley v. Great American Ins. Co., 160 Ga. App. 597, 600 (287 SE2d 613) (1981). Any ambiguity created by the general language used in the insuring provision of the policy is resolved by construing the policy as a whole, including the specific exclusion, in light of undisputed facts establishing the “surface water” nature of the damage. See Hearn v. Old Dominion Freight Lines, 172 Ga. App. 658, 659 (324 SE2d 517) (1984); OCGA § 13-2-2 (4).

The policy provided no coverage for the plaintiffs’ claim, and the trial court correctly granted summary judgment in favor of the defendants.

Decided May 3, 1991.

Powell, Goldstein, Frazer & Murphy, Richard C. Mitchell, William M. Ragland, Jr., for appellants.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Robert A. Burnett, for appellees.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A0561.
    CALLAWAY et al. v. LANDMARK AMERICAN INSURANCE COMPANY.
    (405 SE2d 721)
   Birdsong, Presiding Judge.

This is the appeal of a declaratory summary judgment granted to the defendant Landmark American Insurance Company, who is insurer for defendant Elbert County, and of the denial of summary judgment to the plaintiffs. The plaintiffs filed separate damage suits against Elbert County and others on account of two incidents resulting in the death of John David Kitchen in May 1988, and the injury of G. Neal Callaway, Jr., in August 1988, when their respective vehicles drove off the end of County Road 77 where a bridge had been removed. The bridge, which had been an overpass of the railroad track of CSX Transportation, Inc., was dismantled about 1979, and barricades were erected. According to the plaintiffs in the damage suits, these “barricades” consisted of piles of dirt which obscured the vision of the oncoming driver; according to defendants, the barricades were of rock and dirt and “dead end” signs were placed at the ends of the road and on the barricades. The plaintiffs were joined in this action for the purpose of Landmark’s motion for declaratory summary judgment, which sought a declaration that its insurance policy excluded these claims from coverage. Held:

Appellants contend the policy exclusion either does not apply, or¡ is ambiguous and uncertain and must be construed in favor of coverage. See United States Fire Ins. Co. v. Capital Ford Truck Sales, 257 Ga. 77 (355 SE2d 428); Alley v. Great American Ins. Co., 160 Ga. App. 597 (287 SE2d 613).

The exclusion appears on two endorsements. Form Numbeij UND543 provides “the classification ‘governmental subdivisions —j not state or federal’ embraces all premises and operations exposure® of the insured except the following which are subject to separate clas| sification and rating. Coverage is excluded unless so classified ani rated: . . . (k) Streets, roads, highways or bridges — existence hazard only (including signs, meters, signals, etc.).” (Emphasis supplied.)

The following endorsement was added: “It is hereby agreed and understood that Form Number UND543, Item K is amended to read as follows. It is further agreed that no coverage exists . . . for . . . claims arising out of: streets, roads, highways or bridges you own, maintain, construct or control. This insurance does not apply to ‘bodily injury’ or ‘property damage’ arising out of: 1. The existence of streets, roads, highways, bridges . . . and signs, [etc.] ... 2. The maintenance of the items listed in 1. above, including operations such as . . . erecting or removing . . . road markers, signs or guard rails . . . street or road maintenance. . . .” (Emphasis supplied.)

Appellants contend these exclusions refer expressly to existing roads and bridges, whereas their damage claims arise from the nonexistence of the demolished bridge. Appellants alternatively contend that Form UND543 and the amending provision are too ambiguous to be enforced against them.

We tend to agree that the language of these two provisions is too uncertain to be enforced as an exclusion. The language of the amended exclusion, Form UND543, is fairly unintelligible, but at best it seems to exclude coverage of claims “arising out of” roads and bridges “unless” such roads or bridges are classified as “existence hazard only,” whatever that means; the amending provision seemingly contradicts Form UND543 altogether, by excluding coverage of claims if they arise out of “the existence of” roads and bridges.

According to cases cited by the insurer, the phrases “arising out of the existence of” and, particularly, “existence hazard only” seem to be related terms used amorphously by insurers, providing a point which can be litigated tirelessly until a court strains all sense to decipher them. See, e.g., Northland Ins. Cos. v. City of Montgomery, Ala., 418 S2d 881, 883; Dora Township v. Ind. Ins. Co., 400 NE2d 921; compare American Employers Ins. Co. v. Bd. of County Comm. &c., 547 F2d 511 (10th Cir. 1976).

The term “arising out of the existence of” is plainly uncertain and ambiguous, and if the meaning of it controlled this case, we would construe it against the insurer and in favor of coverage. United States Fire Ins. Co., supra.

We find, however, that the debate about the meaning of “existence” does not control this case. According to the arguments made on appeal, the plaintiffs’ suits are not based upon the “nonexistence” of the bridge, but upon the failure of defendants to provide or maintain adequate barrier or adequate warning that the bridge was out. ¡Even if the “nonexistence” of this bridge were considered to be a hazard for which defendants could be liable in principle, the plaintiffs jstill must show they exercised reasonable diligence for their own safety, and the question settles upon the plaintiffs’ actions with relation to the adequacy of the barriers. In any case, both the questions of the “nonexistence” of the bridge and adequacy of the barriers and warnings have to do with the maintenance of the bridge and of the barriers and warnings.

Decided April 17, 1991

Rehearing denied May 6, 1991

Gerard & Matthews, William T. Gerard, for appellants.

Alston & Bird, Jack H. Senterfitt, Heard, Leverett & Phelps, Robert M. Heard, Cynthia G. Weaver, Webb, Carlock, Copeland, Semler & Stair, Frederick M. Valz III, for appellee.

As to this question of “maintenance,” we find the policy language is not ambiguous. It provides in the second provision: “This insurance does not apply to ‘bodily injury’ or ‘property damage’ arising out of: ... 2. The maintenance of the items listed in 1. above, including operations such as . . . erecting or removing . . . road markers, signs or guard rails; maintaining guard rails. ...” (Emphasis supplied.) The “items listed in 1. above” are “roads, highways, bridges . . . traffic lights and signs.”

We therefore find that the policy is not ambiguous as to the exclusion of claims arising out of the maintenance of the road and of the bridge (which would include its demolition), as well as the signs and road markers warning of the condition of “nonexistence” of the bridge.

The trial court did not err in declaring the claims of the plaintiffs in these combined cases to be excluded from coverage of the liability policy owned by the county. We therefore find it unnecessary to address the remaining arguments of the plaintiffs, which we find without merit in any case.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Cooper, Judge.

text:
    A91A0317.
    WILLIS v. THE STATE.
    (405 SE2d 739)
   Cooper, Judge.

Defendant was convicted by a jury of possession of cocaine witl intent to distribute and appeals the denial of his motion for new trial!

The evidence shows that Officer Diane Oliver had received sev-[ eral complaints about persons loitering and selling drugs in the park-1 ing lot of a local cafe. While patrolling one evening in a marked carl she parked in front of the cafe and got out of her car, at which tima she observed appellant come running from the back of the cafe witlf what looked like a wad of brown paper in his hand. As appellant ran toward the front door of the cafe, he stumbled, and Officer Oliver caught him by the pants. Officer Oliver observed appellant throw the brown paper on the floor of the cafe, and when she retrieved the brown paper from the cafe, she found eight pieces of what appeared to be crack cocaine inside the paper. At trial the substance was positively identified as cocaine.

1. Appellant first contends that the. trial court erred in denying his motion in limine to exclude the State’s similar transaction evidence of a prior conviction on a guilty plea to possession of marijuana with the intent to distribute. Appellant argues that there was not sufficient similarity between the offense charged and the prior conviction. We disagree. Both charges involved possession of a controlled substance with the intent to distribute that substance to other persons. “Further, assuming arguendo that some degree of prejudice to appellant would flow from the mere admission of this evidence, such prejudice was outweighed by probative value or its relevancy to the issues on trial, specifically to appellant’s motive, bent of mind, plan, scheme and course of conduct.” Roney v. State, 192 Ga. App. 760 (2) (386 SE2d 412) (1989). The evidence was admitted for the limited purpose of illustrating appellant’s state of mind, and the trial court gave appropriate limiting instructions. Accordingly, we find no error. Daniel v. State, 194 Ga. App. 495 (1) (391 SE2d 128) (1990).

2. In his second enumeration of error, appellant contends that the trial court erred in allowing a State’s witness to testify that appellant admitted in his custodial statement that he used cocaine every few days. One of the investigating officers testified that after advising appellant of his rights, he signed a waiver of rights form and stated to her that he ran when he saw the police because he was on parole and knew that he was in an area where he did not need to be; that he used the powder form of cocaine; and that the cocaine found by Officer Oliver was not his. Appellant argues that the statement impermissibly placed his character in issue. With this contention, we agree, but nevertheless affirm the trial court because we conclude that the error was harmless. Appellant’s statement that he used the powder form of co- ¡ caine had nothing to do with his arrest for possession of cocaine with the intent to distribute. See Robinson v. State, 192 Ga. App. 32, 34 (383 SE2d 593) (1989). ‘“[T]he statement cannot be construed as anything other than a denial of the [offense] for which he was on trial. Thus, the only possible evidentiary function which the confession concerning prior cocaine use could have served as far as the state [was concerned was an impermissible one, i.e., to impugn the appellant’s character before the jury by showing that he was generally irone to criminal conduct.’ [Cit.]” Robinson v. State, supra. However, nlike Robinson, we find that the error was harmless in light of the State’s evidence, appellant’s testimony on direct that he had attended a drug rehabilitation program and his testimony on cross-examination that he failed a urinalysis test when he tested positive for cocaine. Accordingly, we find no abuse of the trial court’s discretion in admitting the evidence. See Freese v. State, 196 Ga. App. 761 (1) (396 SE2d 922) (1990).

Decided May 6, 1991.

W. Earl McCall, for appellant.

Britt R. Priddy, District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0043, A91A0738.
    WOMACK INDUSTRIES, INC. v. B & A EQUIPMENT COMPANY.
    (405 SE2d 880)
   Birdsong, Presiding Judge.

These are appeals from a judgment and amended judgment entered upon a jury’s finding that the lien filed by B & A Equipment Company is valid for having been filed “within three months after the completion of the work” pursuant to OCGA § 44-14-361.1 (a) (2), as amended. Held:

1. We reverse the lien judgments. The evidence shows that B & A Equipment, a subcontractor for installation of a water system, storm drains and sewers on appellant Womack Industries’ project, declared the work “substantially complete” on December 15, 1987, a day after the work had been approved; and that B & A’s employees last worked on the project (according to B & A) on February 27, 1988, or (according to Womack Industries) on January 11, 1988, the date B & A executed a “warranty.”

B & A’s lien was filed July 19, 1988. B & A’s evidence showed that on April 21, B & A decided it could not determine whether its employees had turned on the fire hydrant valves before leaving the job on February 27. B & A does not suggest on appeal that Womackj Industries raised any problem with the fire hydrant valves, or asked B & A to check on them, or suggested the valves had not been turned| on; but according to B & A’s witness, “there were some people tha wasn’t working with us at that time that we couldn’t question, w< didn’t know if they did.” Two B & A employees went to the job site and checked the fire hydrant valves. They discovered the valves were indeed turned on. They also removed some trash by hand from drain grate.

B & A contends its acts on April 21 constituted work under th< contract, so that “completion of the work” did not take place before that date and the lien filed within three months of that date was valid. See OCGA § 44-14-361.1 (a) (2).

Construing the evidence most favorably to appellee and the verdict, in accordance with the rules governing directed verdicts (see OCGA § 9-11-50), we find that the evidence and all reasonable inferences therefrom demand a conclusion that B & A substantially completed its contract work on December 14, 1987, when the work was approved as substantially complete; or on January 11, 1988, when B & A gave its warranty; or in all events no later than February 27, the day B & A says its employees were last on the job.

B & A does not suggest that after its employees left the job in February, it had any reason to believe it had left undone any contract work, including turning on the fire hydrant valves. It simply contends the act of checking the valves was contract work because under its contract it was supposed to turn on the fire hydrant valves. But at best, B & A acts amount merely to going back to the job site some two or three months after the contract work was in fact completed, to see if there was any more work they could do “under the contract”; and there was none. In point of fact, the work had been completed. The fact that B & A removed some debris by hand from a storm drain does not amount to work towards completion of the contract, and B & A does not contend it was required to do such belated cleanup work under its contract. For all that appears the debris collected after the work was completed.

The scenario offered by B & A is that its contract did not end when it completed the work and turned on the valves, but could be extended indefinitely by its returning to the job site to “check” to see if it had turned on the valves and completed its work, even though it ¡had declared that it had completed the contract and had executed a warranty. The fact that B & A did not charge appellant for this gratuitous inspection is not indicative that the contract work had not been completed. According to B & A’s position, no contract would be ¡“complete” until the contractor ran out of items to wonder about and [check.

I The intent of OCGA § 44-14-361.1 as to timely filing of liens is to ¡establish a time certain beyond which liens cannot be filed, for the protection of the contracting parties and innocent third parties. The statute is in derogation of common law and is to be strictly construed iigainst the materialman (Pacific Southern Mtg. Trust v. Melton, 151 Ga. App. 593, 594 (260 SE2d 910)), and strict compliance is required. King v. Rutledge, 208 Ga. 172 (65 SE2d 801). The statement in Cumberland Bridge Assoc. v. Bldrs. Steel Supply, 169 Ga. App. 945, 946 315 SE2d 484) that “[n] either the beginning nor the ending of construction controls the time when the claim of lien . . . must be filed,” quoted from Levy v. G. E. C. Corp., 117 Ga. App. 673, 677 (161 SE2d 339), refers in Levy to an architect who supplied plans no later than December 1966, but did not file his lien until after construction on that project began in June 1967. The statement that the beginning or ending “of construction” does not control time for filing liens, in context, therefore refers to general construction of the project under the general construction contract, as opposed to the time the architect supplied labor or materials under his contract. See Cumberland, special concurrence at 947. The principal holding of Cumberland, approved also in Spicewood, Inc. v. Ferro Pipeline Co., 181 Ga. App. 277, 278 (351 SE2d 711), is that “[a]s to liens for either labor or materials furnished, the claim of lien must be filed within three months from the date on which the last service was furnished or materials supplied.” This principle controls this case. The evidence in this case demands a conclusion that the work was completed and the water was in fact turned on by February 27, well before B & A’s employees went back to the site on April 21 to see if they had turned on the water. The trial court erred in failing to direct a verdict for Wo-mack Industries.

2. The disposition of Case No. A91A0043, reversing the lien judgments, renders it unnecessary to consider Case No. A91A0738.

Judgment in Case No. A91A0043 reversed; Case No. A91A0738 dismissed.

Pope and Cooper, JJ., concur.

On Motion for Rehearing.

On motion for rehearing, appellee B & A Equipment Company contends that Cumberland &c. Ltd. v. Builders Steel Supply, 169 Ga. App. 945 (315 SE2d 484) is controlling precedent for this case. However, Cumberland is physical precedent only, according to Court of¡ Appeals Rule 35 (b). In point of fact, the special concurrence in Cum-\ berland raised the same concern about the language quoted from Levy v. G. E. C. Corp., 117 Ga. App. 673, 677 (161 SE2d 339), which we clarify in our opinion in this case. I

In the Cumberland case, the entire panel agreed that the evi-l dence provided a sufficient basis upon which the jury could conclude that the last services and materials pursuant to the contract were fur-I nished within three months of lien filing. The full evidence is not rel cited in Cumberland, and it cannot be said that evidence was identil cal to the evidence in this case. In this case the evidence demands a finding that the last services and materials were in fact furnished) pursuant to the contract not later than February 27, 1988; on thai basis appellant was entitled to directed verdict under the law and thll matter should not have been submitted to a jury. OCGA § 9-11-50.11

Moreover, because the evidence demands a finding that the coni tract was in fact completed and performed no later than February 27, 1981, and because it is self-evident that a contractor cannot go back indefinitely and “check” to see if it had completed its work, or do some “repair” or other activity sua sponte, and thus extend the time for lien filing, we did not say much about the substantial foreign and scholarly legal authority on the subject, but there are powerful policy reasons for our conclusion upon this evidence. The position of appel-lee completely disembowels the lien laws; suffice it to say that the sanctity of the lien laws, not the supposed sanctity of an unauthorized jury verdict, demands the result obtained upon the evidence in this case on appeal.

Decided April 17, 1991

Rehearing denied May 7, 1991

Thompson & McClure, Douglas R. Thompson, John L. Adair, for appellant.

Stewart, Melvin & House, William H. Blalock, Jr., for appellee.

Motion for rehearing denied.


text:
    A91A0508.
    BRINKLEY v. BOSCH OLDS-BUICK-GMC, INC.
    (405 SE2d 883)
   Birdsong, Presiding Judge.

Appellee Bosch Olds-Buick-GMC, Inc., brought suit against Ruby Brinkley for having contracted to buy and having received a vehicle from Bosch, and having failed to make the agreed down payment of $8,253.78; and alternatively, for having bought the vehicle and causing a third person to write a check on insufficient funds.

Ruby Brinkley, on appeal of the summary judgment awarded against her, asserts that the evidence in her deposition and in other pleadings shows that she was the victim of a “con game” by one Rufus Goodman, who had once been a prisoner in jail when she was a deputy sheriff in 1982. Goodman appeared in 1988 at Ms. Brinkley’s night club establishment, having been vouched for by her accountant as having reformed and become an attorney. They discussed going ¡into business together, and as part of the arrangement Goodman offered to help Ms. Brinkley buy a vehicle. They went to appellee’s [dealership, where Ms. Brinkley signed the sales contract obligating lierself to pay the purchase price and down payment. She contends that Goodman negotiated the purchase and made all of the representations to the salesman and manager at Bosch, and that the salesman |md manager accepted Goodman’s check for the down payment, hich he planned to make good the next day. She maintains that at all times Bosch knew that although the vehicle was to be titled in the name of Ms. Brinkley, Goodman himself was going to make the down payment.

Decided April 17, 1991

Rehearing denied May 7, 1991

0. Wayne Ellerbee, for appellant.

Ms. Brinkley took possession of the vehicle. The next day she arrived at Goodman’s motel room to have him go with her to the Bosch dealership to deliver the money and retrieve his check. Goodman announced he would drive his own car to the dealership; Ms. Brinkley drove to the dealership and waited for him, but he did not arrive there.

Appellant raises no valid defense to her liability on this contract. Appellee did not, by agreeing to accept payment from a third party, waive the terms of the contract, nor is it estopped to bind appellant to obligation. If Bosch’s agreement to accept payment from Goodman led Ms. Brinkley to believe it would relinquish the right of payment j from her (see Wilson v. Milam, 156 Ga. App. 328 (274 SE2d 720); Firemen’s Ins. Co. v. Blount, 52 Ga. App. 223 (183 SE 111)), the fact I at best is that Bosch agreed to accept actual payment from a third || party, and that payment was never made. By gratuitously accepting a 11 check that was not good but which it relied upon to be made' good, II Bosch did not relinquish its right to hold her to her contractual obli-19 gation if payment by the third party was not made. Appellant does IB not contend she was incompetent when she obligated herself to make 11 the payment. She took possession of the vehicle and used it. It is noil longer “new,” and she would be unjustly enriched if she were excused l|| from fulfilling the obligation to pay for it. Since it was she who put it II in the power of Goodman to inflict the injury to both herself and toll Bosch, it is she who must bear the loss. See OCGA § 23-1-14. Shell provides no legal authority allowing her to rescind the contract in theljjj circumstances in this case, and no reason the contract should not belli enforced. “[T]he appellate process affords us no latitude to make ad-|w justments for the ill-earned good fortune of the lucky or the heart-la rending misfortune of the unlucky.” Autry v. State, 150 Ga. App. 584, 587 (258 SE2d 268). We are duty bound to do justice to all partiealffl concerned before we do generosity (Subsequent Injury Trust Fund v. Harbin Homes, 182 Ga. App. 316, 318 (355 SE2d 702)). The tria|jj court therefore did not err in granting summary judgment in favor olffl Bosch, and thereby enforcing appellant’s contract. |jfl

Judgment affirmed.

Pope and Cooper, JJ., concur.

Young, Young & Clyatt, Daniel C. Hoffman, for appellee.


author: Sognier, Chief Judge.

text:
    A91A0042.
    ROTH v. WU.
    (405 SE2d 741)
   Sognier, Chief Judge.

Aaron Roth brought suit by his next friend, his mother, against Dr. James C. Wu and Debbie Sanders to recover damages for injuries suffered when he was struck by an automobile driven by Sanders in a driveway located on the premises of the apartment complex owned by Wu in which the Roths resided. The trial court granted Wu’s motion for summary judgment, and Roth appeals.

The record reveals that appellant, who was seven years old at the time of the accident, left the family apartment to go to the vending machine in the laundry room across the driveway, and was crossing the drive when he was struck. He was thrown into the air by the impact and his leg was fractured. The complaint alleged that appellee was negligent in failing to erect speed limit signs or warnings that children often played in the driveway; improperly and insufficiently placing speed breakers on the driveway; failing to mark crosswalks; and maintaining confusing painted directional arrows on the driveway.

1. Appellant contends the rule of law set forth in Golf Club Co. v. Rothstein, 97 Ga. App. 128 (102 SE2d 654) (1958) was tacitly overruled in Flagler Co. v. Savage, 258 Ga. 335 (368 SE2d 504) (1988) and Thompson v. Crownover, 259 Ga. 126 (377 SE2d 660) (1989), and consequently the trial court erred by relying on Golf Club Co. as authority for its decision that appellee could not be held liable. In Golf Club Co., the parents of a two year old child brought suit against the landlord of their apartment building for injuries their child incurred when foe fell into a ravine at the edge of the back yard while playing. This [court held in that case that “[i]f lack of fencing, or lack of a guard to [direct the children’s play, should constitute a defect in the premises, It was one which must have been apparent at the time the rental agreement was entered into. The [child’s] father had equal means Ivith the [landlord] of looking at the back yard and ascertaining that lio fence, guardrails or supervised play area existed, and, having accepted the premises and entered thereon, could not thereafter claim lhat the [landlord] was negligent in failing to provide him with these Ihings.” Id. at 131.

I We note initially that Flagler Co., supra, involved a hidden Rather than a patent defect, and thus has no application here. R'hompson, supra, involved injuries caused by a dangerously defective ace heater, about which the tenant had complained repeatedly, which the landlord had promised to repair, and which had been inspected and cited as being in violation of the applicable housing code. The Supreme Court held that in those circumstances, despite the tenant’s knowledge of the danger posed by the defective heater, the landlord was liable for her injuries. Relying on the public policy of this state, as expressed in our statutes, as well as the Restatement of Law 2d, Property, § 17.6, the Supreme Court reaffirmed the long established principle that a landlord has a duty to keep premises in repair. See, e.g., OCGA §§ 44-7-13; -14; see also OCGA § 44-7-2 (b) (1), (2). Implicit in the Supreme Court’s holding is the principle that where defects render premises unsafe or uninhabitable, a landlord may not avoid duties created by those statutes or by housing codes even though the defect is patent. See Thompson, supra at 130 (Hunt, J., concurring specially).

The general rule, however, is “that a landowner is not liable for I injuries to an invitee arising from a patent defect on the premises I preexisting the arrival of the invitee and of which the invitee knew or I had the means of knowing equal to the landowner. . . . The true | ground of liability is the landowner’s superior knowledge of the peril- | ous condition and the danger therefrom to persons coming upon the | property. It is when the perilous condition is known to the owner and | not known to the person injured that a recovery is permitted. [Cit.]” First Pacific Mgt. Corp. v. O’Brien, 184 Ga. App. 277, 280 (361 SE2d 261) (1987). While landlords may not hide behind this general princi- fji pie to avoid duties mandated by statutes or housing codes, see ill Thompson, supra, neither may tenants seize upon this principle tolli hold landlords liable for all that occurs on their property. “[N]othing|j in Thompson imposed an absolute liability upon landlords, nor do we fjfl believe the Supreme Court intended to do so.” Hall v. Thompson, 193 Ga. App. 574, 575 (1) (388 SE2d 381) (1989).

In the case sub judice, as distinguished from the situation in III Thompson, there is no evidence that the premises were uninhabit-IH able; that they were in violation of any housing code; or that reauestslw had been made to “repair” the alleged defects. The “defects” allegedlffl here are far more analogous to those alleged in Golf Club Co., sunraJM They did not constitute a breach by the landlord of any duty imposed}^ by law, and were such that they could have been avoided by the tejffl nants with ordinary care. Accordingly, the trial court did not err b3i|9 ruling that summary judgment in favor of appellee under the authority of Golf Club Co. was proper.

2. Appellant has failed to support his second enumeration of er|M ror with argument or citation of authority, and it is consea uentlijM deemed abandoned under Rule 15 (c) (2) of this court. IH

3. In his affidavit in support of the motion for summary judgjfBj ment, appellee deposed that all the conditions of the exterior premiffl ises at the complex alleged by appellant to be defective “have been open and obvious to all tenants and visitors at the [subject apartment complex] at all times since [the inception of appellant’s tenancy], as well as before that date.” This statement was not disputed. In fact, appellant’s mother admitted in her deposition that she knew about the conditions she felt were dangerous, and had “felt for a long time that someone was going to get hit by a car.” Accordingly, we find no merit in appellant’s contention that the trial court erred by finding that the defects alleged were patent.

Decided May 7, 1991.

Donna M. Hardaman, Michael P. Katz, for appellant.

Swift, Currie, McGhee & Hiers, Lloyd B. Hedrick, Jr., Eric D. Miller, Harper, Waldon & Craig, J. Blair Craig II, for appellee.

4. After carefully examining the record, we do not agree with appellant’s contention that material questions remain for jury consideration. As it is clear that appellant’s mother was aware of the alleged defects, here, as in Hall, supra, the case was “clearly subject to summary adjudication,” id., and was decided properly by the trial court.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge. Pope, Judge,

text:
    A91A0328.
    WILBURN v. THE STATE.
    (405 SE2d 889)
   Birdsong, Presiding Judge.

Appellant Herbert B. Wilburn appeals his judgment of conviction and sentence of aggravated assault. The indictment accused him of [shooting Bernard Warren with a dangerous weapon, to-wit, a pistol. ¡Held:

1. Appellant asserts the trial court erred in denying his motion for directed verdict of acquittal. We disagree. As a general rule a motion for directed verdict of acquittal should be granted only where [there is no conflict in the evidence and the evidence demands a ver-fcliet of acquittal as a matter of law. Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 311). However, the proper test when sufficiency of the evidence is challenged by a motion for directed verdict of acquittal is the “reasonable doubt” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436).

The victim’s identification of “Nard,” which is the nickname sed by appellant, as the man who shot him was admissible as part of be res gestae. The statement and the circumstances surrounding its tterance qualified the statement as a res gestae statement; it clearly was an excited utterance made shortly after the shooting (even prior to the arrival of medical personnel) and while the victim was laboring under the effects of his gunshot wound. Compare Robinson v. State, 197 Ga. App. 600, 601 (2) (399 SE2d 94); see generally Agnor, Ga. Evidence (2d ed.), §§ 11-32 through 11-34. Further, the prior pretrial statement of the victim wherein he identified appellant as his assailant was admissible as substantive evidence. Compare Gibbons v. State, 248 Ga. 858 (286 SE2d 717) with Cuzzort v. State, 254 Ga. 745 (334 SE2d 661). Once a declaration is made, both the State and the defense are accorded some measure of protection from the erratic or unpredictable witness in that his prior declaration can be considered substantively where, as here, the witness appears and is subject to cross-examination, notwithstanding variant testimony from the stand. Gibbons, supra at 864 (a).

Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense charged. Jackson v. Virginia, supra.

2. Appellant asserts the trial court erred in limiting cross-examination of a State’s witness. Appellant’s counsel attempted to examine the victim about a court order granting the victim “use and derivative j use immunity.” After the victim denied being granted immunity, de-, fense counsel asked the trial judge for the written order, but the trial judge denied having participated in the granting of such. Appellant | claims this response improperly limited his right of cross-examination, and that cross-examination if unimpaired would have tended to! impeach the victim and to attack his credibility by exposing his mo-| tives for testifying.

The trial record includes a copy of an order, signed by the trialj judge on the day of trial but filed three days later, containing a grant of use and derivative use immunity to the victim. Pretermitting whether the voluntary denial of the existence of the order by the tria| judge resulted in error is the question of whether the issue has beei adequately preserved for appellate review. We find it has not.

The trial record contains the following colloquy between defens( counsel and trial judge: “[DEFENSE COUNSEL]: Judge, do yoi have the order granting immunity in this? THE COURT: I hav<| none. This court has not participated in such a thing. [DEFENS1 COUNSEL]: Judge, if I’m mistaken about that, then I withdraw th| question.”

Thereafter, appellant abandoned his inquiry as to the existencj of a grant of immunity to the victim. Although appellant’s counsc obviously attempted to condition the withdrawal of the question upoj his being mistaken, in fact, as to the order’s existence, a condition/ withdrawal of a question is ineffective. A question either is withdraw! or it is not. The effect of appellant’s conduct was the withdrawal of his immunity question. Thus, appellant failed to stand his ground and to make a specific objection to the failure to produce the immunity document. At no point did the trial court rule appellant could not continue to explore the immunity issue on cross-examination. No matter how erroneous a ruling or voluntary response of a trial court might be, a litigant cannot submit to the ruling or otherwise acquiesce in the holding or response and then complain of the same on appeal; he must stand his ground. Smith v. State, 192 Ga. App. 768, 771 (2) (386 SE2d 530), and cases cited therein.

Additionally, counsel’s attempted conditional response, rather than stating the basis for belief that the immunity order existed, and perhaps thereby refreshing the trial court’s memory of the existence thereof, tended to lull the trial court into believing its recollection was correct as to the nonexistence of such grant. An appellant cannot complain of a result his own procedure or conduct aided in causing. Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251); compare Horan v. Pirkle, 197 Ga. App. 151, 152 (397 SE2d 734) (acquiescence by silence in the trial court’s evaluation of the evidence received).

3. Appellant asserts the trial court erred in admitting certain medical records, as these documents were scientific reports not provided within ten days prior to trial as required by OCGA § 17-7-211. The documents were not provided appellant until the day of trial. Examination of the medical records reveals that while most entries therein contained would not qualify as being entries pertaining to scientific reports within the meaning of OCGA § 17-7-211, see, e.g., Conyers v. State, 260 Ga. 506, 508 (4) (397 SE2d 423), certain of the entries contained within these records would appear to so qualify.

Appellant argues for the first time on appeal that descriptions in the medical records of the victim’s injuries and treatment were highly ¡inflammatory and prejudicial. “ ‘On appeal only issues properly raised before the trial court will be considered.’ ” Rigenstrup v. State, 197 Ga. App. 176, 179 (2) (398 SE2d 25). This issue has not been preserved for appeal.

I Appellant’s reliance on Wester v. State, 260 Ga. 228 (391 SE2d 765) is misplaced, as Wester involved the State’s failure to provide [defendant with a copy of the scientific report while this case involves la situation where a copy was provided albeit on the day of trial.

I Exclusionary rules are not favored in the law, as they detract Irom the search for truth. Only when the prosecutor fails altogether Ko furnish a written scientific report, under OCGA § 17-7-211, does the exclusionary rule apply; when a written scientific report is fur-liished late, the appropriate remedy “perhaps” is to grant a continuance or recess upon timely request by the defendant. This matter, as |vell as the length of time granted, rests with the trial judge in the exercise of his discretion. See Wade v. State, 258 Ga. 324, 326 (6) (368 SE2d 482). Contrary to appellant’s assertion, this case is distinguishable from Taylor v. State, 172 Ga. App. 408, 410 (2) (323 SE2d 212) where the facts involved were held to be tantamount to failing altogether to furnish a report. Here appellant never requested a continuance or a recess, yet the trial court sua sponte directed a 15-minute recess following appellant’s objection to the medical reports, which objection was based on the grounds the State failed to furnish timely the documents to the defense as requested. Following the recess, the State was given permission to reopen its case to present certain witness testimony; thereafter, appellant requested and was given permission to recall the victim for further cross-examination, but did not attempt to question the victim regarding any matter in the medical records in question. Further, at no time following the court-directed recess did appellánt request either a continuance or an additional recess. “ ‘ “A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” Joyner v. State, 208 Ga. 435, 438 (67 SE2d 221).’ Sprayberry v. State, 174 Ga. App. 574 (1), 575 (330 SE2d 731).” Hollis v. State, 191 Ga. App. 525, 528 (5) (382 SE2d 145). Under the attendant cir- j cumstances, we find the trial court did not abuse its discretion by failing, sua sponte, to allow appellant an additional time period inj which to examine the medical records.

Decided May 7, 1991.

Mark V. Cloud, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Joseph Drolet, George J. Robinson, Jr., Assistant District Attorneys, for ap-pellee.

Appellant’s other assertions also are without merit.

Judgment affirmed.

Cooper, J., concurs. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

I concur in the result and I concur fully in Divisions 1 and 3.| However, I cannot concur fully in all that is said in Division 2.1 thin! counsel did preserve his objection to the court’s erroneous restrictior of his cross-examination regarding the immunity issue. However, anj error was harmless. The record shows counsel for Wilburn and for the State clearly established the victim’s reluctance to testify against Wil-J burn, his friend. Whether the testimony resulted specifically from use immunity or not, the jury was given evidence indicating the victim’s bias in the matter. The error committed by the trial court in failing tq remember the grant of immunity and to permit questioning on it thuj did not contribute to the verdict.


text:
    A91A0277.
    SANDERS v. THE STATE.
    (405 SE2d 727)
   Andrews, Judge.

Sanders appeals his conviction for possession of cocaine and marijuana which arose out of his arrest at his friend Jerome Carter’s apartment incident to the execution of a search warrant for that residence.

Viewed in favor of the verdict, evidence at trial established that Sanders and Carter, who is confined to a wheelchair, were close friends. Sanders helped Carter with various household errands; in exchange Carter allowed Sanders (who lived with his grandmother) and his girl friend to conduct their love affair in his apartment.

At approximately 10:30 p.m. on the night of his arrest, Sanders went to Carter’s apartment and met his girl friend. Sanders and his girl friend went to the back bedroom and conducted their affair and the girl friend left.

When the police arrived at 1:15 a.m., they found Sanders lying naked on a bed in the bedroom with the television on and Carter lying on a bed in the living room. On the bedroom floor, the police found marijuana, partially smoked marijuana cigarette butts, and a “crack can” (for smoking crack cocaine). On the nightstand in the bedroom, they found crumbs of rock cocaine in a closed matchbox, a cocaine pipe, and cigarette rolling papers. According to an officer’s testimony, several of these items were within “arm’s reach” of Sanders. No drugs were found on Sanders and drugs were not being used | at the time of the arrest, although a police officer testified that a marijuana cigarette in the bedroom looked like it had been smoked recently.

Although Sanders did not live at Carter’s apartment, evidence ¡showed that he was a frequent visitor there. An officer testified that a ¡month before the instant arrest, a search warrant was issued on ¡Carter’s apartment and that Sanders had also been present at the apartment during the earlier search.

I 1. In his first enumeration of error, Sanders claims that he was lienied a fair trial because the State referred to co-defendant Carter as a “convicted drug dealer.” Sanders did not object to the question at trial and the issue will not be addressed for the first time here. Chambers v. Dept. of Transp., 172 Ga. App. 197 (322 SE2d 366) (1984); Management Comp. Group &c. v. United Security &c., 194 Ga. App. 99 (389 SE2d 525) (1989). The issue here is not a question of “fundamental fairness,” so as to obviate the need for an objection at trial, since the complained of question did not reference Carter’s conviction or plea in this case. See Boatwright v. State, 193 Ga. App. 141 (387 SE2d 386) (1989).

2. Sanders argues that the evidence against him was insufficient to establish constructive possession since most of the cocaine was found on Carter, who owned the apartment and had at least equal access to it. In evaluating Sanders’ argument, the evidence must be viewed in a light most favorable to the verdict, and appellant is no longer shielded by a presumption of innocence. See Norman v. State, 197 Ga. App. 333 (398 SE2d 395) (1990).

At the outset, we note that Sanders was not convicted for possession of the cocaine which fell out of Carter’s underwear. The cocaine on which Sanders’ conviction was based was found in the closed matchbox on the nightstand in the bedroom.

Possession may be joint or exclusive, and actual or constructive. Dalton v. State, 249 Ga. 720, 721 (292 SE2d 834) (1982); Stevens v. State, 165 Ga. App. 814 (302 SE2d 724) (1983). “ ‘The difference between actual and constructive possession is one of degree and they “often so shade into one another that it is difficult to say where one ends and the other begins.” [Cits.] Where drugs are found in the “immediate presence” of the defendant, the jury is authorized to find they are “in the constructive possession” of the accused.’ ” Farmer v. State, 188 Ga. App. 375, 376 (373 SE2d 68) (1988); Garvey v. State, 176 Ga. App. 268, 274 (335 SE2d 640) (1985); Wisdom v. State, 2341 Ga. 650, 654 (217 SE2d 244) (1975).

Here, there was sufficient evidence for the jury to find that Sand-1 ers constructively possessed the drugs, since it was established that he I visited the apartment frequently, that he regularly used the bedroom I there and that the drugs were in his immediate presence. This conclu-| sion is not changed by the fact that the evidence would have author-1 ized a finding that others had equal access to the same drugs. Farmer supra at 376; Ramsay v. State, 175 Ga. App. 97, 100 (332 SE2d 390)1 (1985); Pamplin v. State, 164 Ga. App. 610, 611 (298 SE2d 622) (1982).

3. Sanders argues that it was error to admit evidence of a prior; marijuana conviction since his character was not in issue. Althougl we agree that Sanders did not put his character into issue within thd meaning of OCGA § 24-9-20 (b), it was proper to allow evidence of his prior drug possession charge to disprove his statement that he did noi use drugs.

The introduction of Sanders’ prior conviction here was permissible since the State was rebutting specific testimony. See Bland v. State, 198 Ga. App. 671 (402 SE2d 782) (1991). The conviction was not introduced to show that Sanders was a person of bad character, but rather to prove the apparent falsity of his statement. Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988). As such, the conviction constituted impeachment, not character, evidence and was properly admitted. Williams v. State, 257 Ga. 761 (363 SE2d 535) (1988).

The situation here is analogous to that in Mitchell v. State, 158 Ga. App. 628, 630 (281 SE2d 260) (1981), in that Sanders’ statement that he did not use drugs could have been construed as a denial that he had ever used marijuana or committed any offense involving the drug. Sanders’ argument that the case is controlled by Moses v. State, 190 Ga. App. 699 (379 SE2d 819) (1989), is without merit.

4. In his next enumeration of error, Sanders argues that the trial court erred in admitting evidence of his prior conviction when the State failed to provide notice of intent under Uniform Superior Court Rule 31.3. This argument was not raised in the trial court and will not be considered for the first time here. Kress v. State, 195 Ga. App. 519 (394 SE2d 139) (1990).

5. Finally, Sanders contends that the State violated discovery requests by failing to give him the result of a urine test which was negative for both cocaine and marijuana use. The alleged error arose out of Sanders’ Brady request which specifically sought the results of any scientific tests which were favorable to him. Although Sanders’ counsel contends that he did not know of the drug test until after the trial, the record indicates otherwise.

On February 20, 1990, the court below conducted an in camera examination of the State’s file, at which time the district attorney indicated twice that the laboratory results would be supplied to defense counsel upon receipt from the crime lab. On March 5, 1990, the [Court entered an Order which confirmed the State’s agreement to produce these documents. There is no indication from the record that defense counsel made any effort to obtain the test results in the intervening months between the order and the jury verdict. Sanders did [not raise the issue at trial.

At the hearing on his motion for new trial, Sanders raised the subject of the urine test results for the first time in six months, contended that he did not know of the lab test until post-trial and argued that the failure of the State to produce the test results was error. In support of his motion, Sanders called as a witness the supervisor of the drug laboratory who testified that Sanders’ urine test results were sent to the Superior Court on January 16, 1990. Sanders does not explain his failure to call this witness at trial nor does he explain his failure to obtain the test results independently from the court.

Decided April 25, 1991

Rehearing denied May 8, 1991.

Neal Weinberg, for appellant.

Britt R. Priddy, District Attorney, Henry O. Jones III, Ass¿s£<mí|¡ District Attorney, for appellee.

In the context of the discovery statute, OCGA § 17-7-211, this court has stated: “ ‘[w]here the defendant is told of the information or knows as much as the prosecution does and has an equal opportunity to obtain the document from a non-affiliated witness, it is not a violation of the statute for the state to fail to produce it in response to a demand for scientific reports.’ ” Worth v. State, 183 Ga. App. 68, 72 (358 SE2d 251) (1987); Paggett v. State, 188 Ga. App. 174 (372 SE2d 504) (1988). In applying that logic here, we find no indication from the record that Sanders was unable to obtain the test report himself. He cannot simply neglect to compel production of the report before trial and then complain after trial that its absence prejudiced him. See Campbell v. State, 191 Ga. App. 390 (381 SE2d 599) (1989).

Further, despite Sanders’ arguments to the contrary, he was, as a matter of law, aware of the existence of the urine test before trial. In Cunningham v. State, 248 Ga. 558 (284 SE2d 390) (1981), the Supreme Court ruled that there was no error where the State failed to produce the defendant’s own allegedly exculpatory statements because “ ‘Brady applies to’ the discovery, after trial, of information which had been known to the prosecution but unknown to the defense. [Cits.]” Cunningham, supra at 561; see also Pridgett v. State, 173 Ga. App. 409 (326 SE2d 581) (1985). Here, Sanders is deemed to have known of the test both because he was the subject of it, and because of the pretrial representations by the State. Accordingly, for ¡ both of these reasons, there was no error in the State’s failure to produce the results.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

       Jerome Carter, who pled guilty to drug possession charges, was a co-defendant in the |ase. During the strip search of him, a matchbox containing 3.8 grams of cocaine fell out of is underwear.

       Because in this case the evidence was properly admitted for purposes of impeachment, ye reach no conclusions as to whether such evidence was admissible for other purposes. See pCGA § 24-9-20; Story v. State, 196 Ga. App. 690 (396 SE2d 547) (1990); Jones, supra; Williams, supra.

       Because of the State’s representation that the test results would be produced, we do lot reach the issue of whether such report was available to the district attorney so as to (equire production. See Paggett v. State, 188 Ga. App. 174 (372 SE2d 504) (1988).


text:
    A91A0033.
    McCOY v. STATE FARM INSURANCE COMPANIES.
    (405 SE2d 743)
   Birdsong, Presiding Judge.

Albert McCoy appeals from the grant of summary judgment to State Farm Insurance Companies. McCoy contends the trial court erred by granting summary judgment without considering whether his mental condition at the time he executed the release created an issue of fact for jury determination.

The record shows that after an automobile accident with an uninsured motorist and his discharge from an overnight stay in the hospital, McCoy was visited by a State Farm insurance adjuster. During that visit, McCoy and his wife signed a document which for $3,000 released State Farm from further liability for their personal injury and property damage claims under McCoy’s uninsured motorist coverage with State Farm. Subsequently, McCoy filed this suit against State Farm claiming a breach of contract for State Farm’s failure to pay benefits under the uninsured motorist coverage and for fraud in the procurement of the release of claim. McCoy’s complaint contended he signed the release because he was misled by State Farm’s insurance adjuster that the release was only for his property damage and because he was under medication. Held:

McCoy relies on Mallard v. Jenkins, 179 Ga. App. 582, 583 (347 SE2d 339), for the proposition that a physical disability which deprived one of the “capacity to read and reason” in combination with the fraud of the other party can be sufficient to excuse one from reading what he signs. This general proposition, however, is not disposi-tive of this appeal because McCoy has never claimed that he suffered from “a disability which deprived him of the capacity to read or reason. . . .” (Emphasis deleted.) Id. at 583.

McCoy’s complaint alleged only that State Farm’s adjuster falsely represented to him that the release was for property damage only when the release was for property damage and bodily injury. The complaint did not allege that any medical condition prevented McCoy from reading and understanding the release. Additionally, when he was deposed, McCoy testified only that the adjuster tricked him into signing the release, and not that he could not read and understand the release for any reason. While he testified that he was in pain, he also testified that despite his signature and his wife’s signature appearing on the release, he did not see the release, and that if he had seen the release he could have read it.

Not until his affidavit, submitted in response to State Farm’s motion for summary judgment, did McCoy assert that he remembered that he was taking “Tylenol 3, muscle relaxers,” and perhaps “Motrin,” and that he was “tired and groggy” during the time State |Farm’s adjuster visited him. This allegation falls far short of asserting that McCoy was suffering from a disability that deprived him of his capacity to read and to reason. Moreover, even if it did, this assertion conflicts, without explanation, with McCoy’s deposition testimony that his complaint was that State Farm’s adjuster tricked him into signing the release by saying that the release was for property damage only, that he could and did read some of the forms, that he could have read the release had he seen it and also conflicts with McCoy’s deposition testimony which displayed a detailed recollection of his conversation with the adjuster to the extent that he could prepare a diagram of the chairs each occupied during their discussion. Therefore, the contradictory testimony rule applies to this case, and we must eliminate those unexplained contradictory portions of McCoy’s affidavit. Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). Further, Mrs. McCoy’s affidavit is unhelpful because it does not allege that her husband was under a disability which deprived him of his ability to read and reason. Moreover, she offers no explanation why she did not read and understand the release that she signed.

Decided May 8, 1991.

Fleming, Blanchard & Bonner, Danny L. Durham, for appellant.

Dye, Miller, Tucker & Everitt, Benjamin H. Brewton, Thomas | W. Tucker, for appellee.

Accordingly, McCoy has failed to assert facts which would entitle him to rely on the rule recognized in Mallard v. Jenkins, supra. Thus, the general rule applies in this case and, as McCoy could read and has asserted no valid reason for not doing so, he is bound by the release he signed. Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58, 59-60 (239 SE2d 381).

Accordingly, even affording McCoy all the benefits to which he is entitled under our summary judgment procedures (see OCGA § 9-11-56 (c); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843)), the trial court did not err by granting summary judgment to State Farm.

Judgment affirmed.

Pope and Cooper, JJ., concur.