text:
    A96A0753. A96A0754.
    FREMICHAEL v. DOE. SENTRY INSURANCE COMPANY v. FREMICHAEL.
    (472 SE2d 440)
   Andrews, Judge.

Both of these appeals arise from an accident in which an unknown motorist struck Abraham Fremichael’s car, causing him to lose control and hit a utility pole. Fremichael filed a complaint against the unknown motorist and served a copy on Sentry Insurance Company, his uninsured motorist carrier. Sentry moved for summary judgment, contending Fremichael failed to submit a sworn proof of loss statement, a condition precedent to recovery under his policy. The trial court granted Sentry’s motion, but later vacated and re-entered the order because Fremichael’s attorney never received a copy of the order and, therefore, was unable to file a timely appeal.

Case No. A96A0754

In this case, Sentry appeals the trial court’s order vacating its March 28, 1995 order granting Sentry’s motion for summary judgment on Fremichael’s claim. The trial court vacated the order because, due to a clerical error, Fremichael’s attorney never received timely notice of the order as required by OCGA § 15-6-21 (c). Fremichael’s attorney had inadvertently listed his address on the complaint as “230” Peachtree Street instead of “225” Peachtree Street, and when the trial court granted Sentry’s motion for summary judgment, the copy of the order was sent to 230 Peachtree Street. This copy was returned to the court stamped “return to sender.”

On May 22, 1995, the attorney discovered the order had been entered on March 28. On June 9, 1995, Fremichael filed a motion to accept late filed notice of appeal, claiming he had not received the order and, therefore, was unable to file his appeal before the 30 days had expired. On August 9, 1995, the trial court entered an order denying Fremichael’s motion. But, in that same order, the trial court found that Fremichael had been prejudiced due to a clerical error, and vacated the March 28, 1995 order granting summary judgment to Sentry. That same day, the trial court entered another order granting Sentry’s motion for summary judgment, and it is from that order that Fremichael filed his appeal in Case No. A96A0753.

But, Sentry appeals the trial court’s order vacating its March 28, 1995 order, contending the order was a final judgment and was vacated after the expiration of the term of court in which it was entered. Nevertheless, it is undisputed that Fremichael did not receive timely notice of the order as required by OCGA § 15-6-21 (c). Therefore, the trial judge was within his authority to set aside the order and re-enter it in a subsequent term of court pursuant to OCGA § 9-11-60 (g). Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (269 SE2d 426) (1980); City of Monroe v. Jordan, 201 Ga. App. 332, 333 (411 SE2d 511) (1991). Accordingly, the trial court did not err in vacating and re-entering its March 28, 1995 order granting Sentry’s motion for summary judgment.

Case No. A96A0753

In this case, Fremichael appeals the trial court’s order granting Sentry’s motion for summary judgment. Sentry contended that Fremichael did not comply with a condition precedent to recovery under his insurance policy, namely, submitting a sworn proof of loss statement to Sentry within 30 days of reporting the accident. Fremichael argues he was never informed of this requirement and the issues of whether he substantially complied with the notice provision and whether he justifiably failed to submit the sworn proof of loss statement are questions of fact and should not have been decided on summary judgment. We agree and reverse the judgment of the trial court.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Citations and emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Accordingly, the facts, viewed in the light most favorable to Fremichael as non-movant, were that following the accident with the unknown motorist, Fremichael immediately notified Sentry of the accident. He spoke with a claims representative who took a recorded statement from him on the details of the accident. Fremichael also spoke several'times to John Ring, a Sentry claims adjuster, about estimates and repairing his car.

Sentry subsequently paid approximately $5,000 on Fremichael’s medical bills and $300 on a car rental. Sentry also issued Fremichael a check for $3,317.66 for car repairs, but Fremichael contended this was insufficient to cover the car repair costs.

1. Fremichael does not dispute that he did not follow up his report of the accident by submitting a sworn proof of loss. He contends that he was unaware of this requirement because he never received a copy of any policy containing this provision. The provision in question is as follows:

“If the car accident involves a hit-and-run driver,- it must be reported within 24 hours to the police or Commissioner of Motor Vehicles. A statement under oath must be filed with us within 30 days after the accident has been reported. If you were occupying a motor vehicle at the time of the accident, you must make it available for our inspection.” Although Sentry alleges this provision was part of Fremichael’s policy, it is not included in the original insurance policy Sentry issued to Fremichael. Further, defendant’s Exhibit 1 to Fremichael’s deposition, which contains the sworn statement requirement, consists of pages 2 and 3 of some unidentified document. There is no front page included, and we are unable to determine from the record before us the context of this provision. When shown defendant’s Exhibit 1 during his deposition, Fremichael stated he had never seen this provision before. Accordingly, Sentry has submitted no evidence that this provision was included in Fremichael’s policy or that he was ever informed of the requirement to submit a sworn statement.

In addition, the purpose of the notice provision in an insurance policy is to enable an insurer to investigate promptly the facts surrounding the occurrence while they are still fresh and the witnesses are still available, prepare for a defense if necessary, or decide whether to settle the claim. Kitt v. Shield Ins. Co., 240 Ga. 619, 621 (241 SE2d 824) (1978); State Farm &c. Ins. Co. v. Sloan, 150 Ga. App. 464, 466 (258 SE2d 146) (1979). Here, it is undisputed that timely and reasonable notice was given and Sentry had actual knowledge of the claim, thus fulfilling the underlying purpose of the notice requirement. See Hartford Accident &c. Co. v. Strain Poultry Farms, 166 Ga. App. 334, 336 (303 SE2d 781) (1983).

The determination of the issues of sufficiency of compliance with the notice provision, justification for non-compliance, and diligence are questions of fact which must be resolved by a jury. Titan Indem. Co. v. Hall County, 202 Ga. App. 38, 40 (413 SE2d 213) (1991); Standard Guaranty Ins. Co. v. Carswell, 192 Ga. App. 103, 104 (384 SE2d 213) (1989). Accordingly, whether Sentry received sufficient notice of the accident because Fremichael did not submit a sworn statement and whether there was justification for Fremichael’s failure to submit a sworn statement are issues for determination by a jury, and the trial court erred in granting Sentry’s motion for summary judgment. See Hamm v. Ledesma, 184 Ga. App. 237, 238 (361 SE2d 205) (1987) (physical precedent only). Compare Johnson v. Atlanta Cas. Co., 187 Ga. App. 306 (370 SE2d 157) (1988) (insurance company given no notice whatsoever until more than 60 days after the accident); Flamm v. Doe, 167 Ga. App. 587 (307 SE2d 105) (1983) (insurer received no notice of the accident until almost 90 days after its occurrence).

2. Fremichael also contends the trial court erred in granting Sentry’s motion for summary judgment because there are issues of fact as to whether Sentry’s actions after being informed of the accident constituted a waiver of the sworn statement requirement. We agree. “In general, the reception and retention by the insurer, without objection, of inadequate notice or proof of loss is a waiver of the right to set up as a defense that the insured failed in any particular to comply with the requirements of the policy.” (Emphasis supplied.) Clark v. State Farm &c. Ins. Co., 171 Ga. App. 554, 556 (320 SE2d 380) (1984) (Pope, J., concurring).

Further, the issue of whether an insurer has waived strict compliance with the notice provision is normally a question of fact for a jury. Id. at 555. Accordingly, the trial court erred in granting Sentry’s motion for summary judgment on this issue.

Judgment reversed in Case No. A96A0753 and affirmed in Case No. A96A0754.

Pope, P. J., and Smith, J., concur.

Decided May 14, 1996

Reconsideration dismissed June 13, 1996

Harold M. Harvey, Kimberly A. Staten-Hayes, for Fremichael.

Goodman, McGuffey, Aust & Lindsey, William P. Claxton, James B. McClung, for Sentry Insurance Company and Doe.

       While the trial court may grant an extension of time in which to file a notice of appeal, the motion requesting the extension must be filed before the 30 days in which to file the notice of appeal have expired. See OCGA §§ 5-6-38, 5-6-39; Morris v. State, 115 Ga. App. 715 (155 SE2d 735) (1967).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A96A0211.
    RUDO et al. v. STUBBS.
    (472 SE2d 515)
   Pope, Presiding Judge.

We accepted this interlocutory appeal to determine whether the trial court erred in denying the motions to dismiss of nonresident defendants/appellants J. M. Rudo and Michael O’Higgins d/b/a Gobrecht Numismatics. Concluding that the in-state acts of their resident co-conspirator were properly imputed to appellants for purposes of satisfying the Long Arm Statute under the circumstances of this case, we affirm. See OCGA § 9-10-91.

Although the trial court held a hearing on the motion to dismiss, that hearing was not transcribed. Accordingly, we treat the motion as if it were decided on the basis of written submissions alone and resolve disputes of fact in favor of plaintiff. See McPherson v. McPherson, 238 Ga. 271 (232 SE2d 552) (1977); Scovill Fasteners v. Sure-Snap Corp., 207 Ga. App. 539 (428 SE2d 435) (1993).

Defendant Don Wilson contacted plaintiff Thomas Stubbs and suggested that he purchase a set of silver coins from Gobrecht Numismatics. Both Wilson and Stubbs are Georgia residents and this contact occurred in Georgia, but Gobrecht Numismatics is a Maryland sole proprietorship owned by defendant O’Higgins and managed by defendant Rudo. (For convenience we will collectively refer to defendants O’Higgins and Rudo as “Gobrecht.”) Although the coins were priced at only $8,519, Wilson told plaintiff they cost $15,000; and at Wilson’s request, Gobrecht told plaintiff over the phone that the price was $15,000 and sent him an invoice for that amount. After plaintiff paid Gobrecht the full $15,000, Gobrecht credited some of the extra money to Wilson for the purchase of other coins and eventually sent Wilson a check for the rest. Two months later the same routine was repeated: plaintiff paid Gobrecht $15,000 for a set of coins priced at $8,529, and Gobrecht sent Wilson a check for the difference. When plaintiff discovered he had been charged for more than the actual price of the coins, he sued Gobrecht as well as Wilson for conspiring to defraud him.

1. Georgia courts will exercise personal jurisdiction over a nonresident defendant only if (a) the exercise of jurisdiction comports with due process and (b) the non-resident defendant has committed, in person or through an agent, one of the acts set forth in OCGA § 9-10-91. See Gust v. Flint, 257 Ga. 129 (356 SE2d 513) (1987). The unrefuted affidavits of the non-resident defendants establish that they themselves have not committed any of the acts listed in OCGA § 9-10-91. See id.; cf. also Burt v. Energy Svc. Inv. Corp., 207 Ga. App. 210 (427 SE2d 576) (1993) (mere phone and mail contact is insufficient to satisfy Georgia Long Arm Statute). But the Long Arm Statute provides that the acts may be committed “through an agent,” and co-conspirators act as agents of each other when they commit acts in furtherance of the conspiracy. See American Thread Co. v. Rochester, 82 Ga. App. 873, 884-885 (62 SE2d 602) (1950). Accordingly, we agree with the many courts which have held that the in-state acts of a resident co-conspirator may be imputed to a non-resident co-conspirator to satisfy jurisdictional requirements under some circumstances; and we further conclude that those circumstances are present in this case.

(a) Independent Satisfaction of Due Process Requirements

This Court has rejected a “conspiracy theory” of jurisdiction where the plaintiff tried to rely on imputed acts to bypass the requirements of due process. See Coopers & Lybrand v. Cocklereece, 157 Ga. App. 240 (3) (276 SE2d 845) (1981). Due process requires, of course, that the non-resident defendant have taken action purposefully directed toward the forum state, such that he reasonably should have anticipated being haled into court there. See World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 297 (100 SC 559, 62 LE2d 490) (1980). In Cocklereese, the defendant accounting firm had allegedly performed a fraudulent audit as part of a general conspiracy to defraud potential investors. We rejected the exercise of jurisdiction based on the in-state actions of co-conspirators in that case, since there was no evidence that the non-resident defendants knew or should have known the audit would be used in Georgia; and without that knowledge, there was no purposefully sought activity with Georgia and no reasonable anticipation of being haled into court here. 157 Ga. App. at 246-247.

The situation is different, however, when the alleged conspiracy is targeted at one or more Georgia residents specifically. See National Egg Co. v. Bank Leumi le-Israel, B. M., 514 FSupp. 1125 (N. D. Ga. 1981). When the purpose of a conspiracy is to commit an intentional tort against a Georgian, all of the co-conspirators are purposefully directing their activities toward Georgia and should reasonably anticipate being haled into court here. Id. at 1127-1128. In this case, as in National Egg, the alleged conspiracy targeted a Georgia resident specifically. Thus, the non-resident conspirators purposefully directed their activities toward Georgia, and could reasonably expect to be haled into court here. Accordingly, the imputation to them of the in-state acts of their co-conspirator to satisfy the requirements of the Georgia Long Arm Statute is not precluded by due process concerns.

(b) More than Mere Conclusory Allegations of Conspiracy

We emphasize that plaintiff in this case has provided more than mere conclusory allegations of the nonresidents’ participation in a conspiracy with a resident. Cf. Cocklereece, 157 Ga. App. at 245-246 (suggesting that controverted allegations raising “specter of a conspiracy” may not be enough). The record includes copies of the invoices sent by Gobrecht to plaintiff; plaintiff’s testimony that Gobrecht told him the coins were priced at $15,000 for each set, even though they were actually priced at $8,519 for the first set and $8,529 for the second; and Rudo’s admission to plaintiff’s secretary that he did this at Wilson’s request. Although some courts have not required this kind of evidentiary showing, the majority have. See Istituto Bancario Italiano v. Hunter Engineering Co., 449 A2d 210, 223-225, for a summary of what various courts have required. We agree with those courts requiring more than mere allegations of a conspiracy (unless the allegations are unrefuted), lest a defendant over whom the exercise of jurisdiction would be unfair be forced to defend the conspiracy charge on the merits in order to belatedly establish the court’s lack of jurisdiction over him.

Decided June 14, 1996.

Kirwan, Parks, Chesin & Remar, Robert B. Remar, Georgia K. Lord, for appellants.

Brown & Brown, George T. Brown, Jr., for appellee.

2. Gobrecht further argues that even if we accept the possibility of personal jurisdiction based on a “conspiracy theory,” plaintiff here cannot show reasonable reliance — and thus cannot show a conspiracy to defraud — because plaintiff had the opportunity to have the coins evaluated and did not do so. This argument would be valid if the alleged fraud was simply that plaintiff paid more for the coins than they were worth. As a general matter, a buyer cannot reasonably rely on the seller’s representation regarding what the goods are worth. See Foremost Ins. Co. v. Southeast Recovery, 175 Ga. App. 794 (3) (334 SE2d 375) (1985). But that is not what happened here. Rather, the seller misrepresented the set price he had placed on the goods; and while it may not be reasonable to rely on the seller’s statement of value, a jury could certainly find it reasonable to rely on the seller’s invoice and statements regarding price in this context.

Judgment affirmed.

Andrews and Smith, JJ, concur.

       Defendant Wilson is not a party to this appeal.

       See, e.g., Textor v. Bd. of Regents &c., 711 F2d 1387, 1392-1393 (7th Cir. 1983); Allstate Life Ins. Co. v. Linter Group Ltd., 782 FSupp. 215, 220-221 (S. D. N. Y. 1992); Gudaitis v. Adomonis, 643 FSupp. 383, 385 (E. D. N. Y. 1986); Cawley v. Bloch, 544 FSupp. 133, 134-135 (D. Md. 1982); Vermont Castings v. Evans Prods. Co., 510 FSupp. 940, 943-945 (D. Vt. 1981); Gemini Enterprises v. WFMY Television Corp., 470 FSupp. 559, 564-565 (M. D. N. C. 1979); Mandelkorn v. Patrick, 359 FSupp. 692, 694-697 (D. D. C. 1973); Istituto Bancario Italiano v. Hunter Engineering Co., 449 A2d 210, 222-225 (Del. 1982); Wilcox v. Stout, 637 S2d 335, 337 (Fla. App. 1994); Murphree v. Baykowski, 615 SW2d 463, 466 (Mo. App. 1981).

       See also Allen v. Columbia Financial Mgmt., 377 SE2d 352, 357 (S. C. App. 1988).

       See also Istituto Bancario Italiano, 449 A2d at 225 (in order to rely on “conspiracy theory” of jurisdiction, plaintiff must show, among other things, that non-resident defendant knew or had reason to know that his acts or those of his co-conspirators would have effect in forum state).

        National Egg was decided pre-Gusf, at a time when Georgia courts were interpreting the Georgia Long Arm Statute to extend to the limits of due process. Thus, once the court in National Egg determined that the requirements of due process were met, it did not need to decide whether to impute the in-state acts of the co-conspirator to meet the requirements of the statute. See 514 FSupp. at 1128.

       See, e.g., McLaughlin v. McPhail, 707 F2d 800, 807 (4th Cir. 1983) (requiring threshold showing of facts tending to prove conspiracy existed and non-resident defendant participated in it); Gemini Enterprises, 470 FSupp. at 565 (where allegations of complaint are not refuted with evidence, mere allegations are sufficient, but once defendant presents evidence negating essential jurisdictional element, plaintiff must counter with evidence sufficient to create factual dispute); Istituto Bancario Italiano, 449 A2d at 225 (factual showing required).


text:
    A96A0234.
    UNIROYAL GOODRICH TIRE COMPANY et al. v. ADAMS et al.
    (472 SE2d 518)
   Pope, Presiding Judge.

Mary Adams filed suit against Uniroyal Goodrich Tire Company and others for the wrongful death of her 17-year-old daughter, Barbara Bell, after her daughter was killed in a car accident. Pursuant to OCGA § 9-11-17 (a), Uniroyal moved the trial court to dismiss Adams as a party plaintiff on the ground that she was not the proper party to maintain such a cause of action. We granted Uni royal’s application for interlocutory appeal after the trial court denied its motion to dismiss. Concluding that Adams is a proper party plaintiff, we affirm the trial court’s ruling.

1. “The prima facie right to recover for the wrongful death of a child who leaves neither spouse nor child undoubtedly belongs to both parents even where those parents are divorced.” (Citation and punctuation omitted.) Dove v. Carver, 197 Ga. App. 733, 734 (399 SE2d 216) (1990). “[Divorced parents] share the right of action, and one may proceed without the other. Where one parent undertakes to prosecute the cause, the other is nevertheless bound by such action and the law provides for equitably apportioning any proceeds [as set forth in OCGA § 19-7-1 (6)].” (Citation and punctuation omitted.) Belco Elec. v. Bush, 204 Ga. App. 811, 814 (420 SE2d 602) (1992). In the instant case, it is undisputed that Barbara was unmarried and childless when she died. Adams, who is divorced and prosecuting the case alone, is Barbara’s natural mother. Notwithstanding this fact, Uniroyal contends that she cannot maintain the action because she forfeited any parental power she had regarding Barbara by abandoning her. See OCGA § 19-7-1 (b) (3). We disagree.

“In order to find abandonment, there must be [clear and convincing] evidence of an actual desertion, accompanied by an intention to sever entirely . . . the parental relation. . . .” (Citation omitted; emphasis supplied.) Ramos v. Ramos, 173 Ga. App. 30, 33 (325 SE2d 415) (1984). See Dove, 197 Ga. App. at 735; Hays v. Jeng, 184 Ga. App. 157, 159 (360 SE2d 913) (1987). The record does not demonstrate such evidence. It shows that after Adams and Barbara’s father divorced, Adams had custody of Barbara. When Barbara was 11 years old, due to mental problems, Adams gave custody of Barbara to her father. The mere delivery of custody of a child to another, however, is not sufficient to constitute abandonment. Shaddrix v. Womack, 231 Ga. 628, 632 (4) (203 SE2d 225) (1974). Nor is Adams’ alleged failure to provide support for her daughter during the six years she remained with her father. “It is a well-settled principle of law that mere failure of a parent to provide support for a minor child who is in the possession or custody of another person, [when] no support of the child is requested or needed, is not . . . such abandonment as will amount to a relinquishment of [parental power].” (Citation and punctuation omitted.) Howell v. Gossett, 234 Ga. 145, 147 (214 SE2d 882) (1975). Shaddrix, 231 Ga. at 632 (4). In this case, there is no contention that Barbara’s father ever needed or requested support from Adams.

The record also does not contain clear and convincing evidence that Adams ever intended to permanently sever her parental relation with Barbara. Adams’ son’s opinion that when Adams gave custody to Barbara’s father she no longer wanted the responsibility of raising a child and that she wanted to be left alone constitutes no more than mere conjecture. And although there is evidence that Adams had little or no contact with her daughter after giving up custody, it is undisputed that approximately seven months prior to Barbara’s death, Adams agreed to give temporary guardianship of Barbara to Adams’ son, but in doing so, only agreed to temporarily relinquish her parental rights. At that time Adams also specifically reserved the right to reacquire guardianship by simply filing an application with the probate court in accordance with OCGA § 29-4-4.1 (c). Furthermore, no family member, including Barbara’s father or Adams’ son, has ever contested Adams’ right to bring the present action, and there is no evidence that anyone ever attempted to terminate Adams’ parental rights during Barbara’s lifetime. As the trial court noted, Barbara’s family apparently always has regarded Adams as Barbara’s legal mother. Under such circumstances, we hold that the trial court did not err in failing to dismiss Adams on the ground she had forfeited her right to maintain the instant suit by abandoning Barbara.

Decided June 14, 1996

2. We also reject Uniroyal’s contention that Adams forfeited her right to maintain the wrongful death action by contractually relinquishing her parental power. See OCGA § 19-7-1 (b) (1). In support of this contention, Uniroyal points to the document entitled “Relinquishment of Parental Rights (Temporary Guardianship),” which Adams and Barbara’s father executed approximately seven months before Barbara’s death. As the trial court recognized, the document clearly is temporary in nature. It specifically created only a temporary guardianship over Barbara in favor of Adams’ son, and further provided only for a temporary relinquishment of parental rights. As mentioned above, the temporary nature of the guardianship is further demonstrated by the fact that it could be dissolved merely upon application to the probate court. Parental rights are not permanently relinquished by a guardianship that is intended to be temporary and represented to be temporary in nature. Hays, 184 Ga. App. at 158-159. See Hill v. Loren, 187 Ga. App. 71, 72-73 (1) (369 SE2d 260) (1988). Absent an agreement evincing the permanent relinquishment of Adams’ parental rights, we conclude that at the most, her rights were suspended. The suspension of a parent’s rights does not amount to a termination of those rights. See DeLoach v. Floyd, 160 Ga. App. 728 (288 SE2d 65) (1981); Rodgers v. Dept. of Human Resources, 157 Ga. App. 235 (276 SE2d 902) (1981). It also does not become permanent for purposes of maintaining a wrongful death action merely because it is not lifted before the death of the parent’s child. Id. Accordingly, the trial court did not err in ruling that Adams had not contractually relinquished her right to maintain the action.

Judgment affirmed.

Andrews and Smith, JJ, concur.

Love & Willingham, Daryll Love, Allen S. Willingham, Geoffrey E. Pope, for appellants.

Novy, James & Vaughan, Eugene Novy, Deborah M. Vaughan, for appellees.


author: Andrews, Judge.

text:
    A96A1160.
    PRITCHETT v. HARTWELL ENTERTAINMENT GROUP, INC. et al.
    (472 SE2d 512)
   Andrews, Judge.

George Pritchett filed suit against Hartwell Entertainment Group (“Hartwell”) after he slipped and fell on the muddy track of Hartwell Raceway. Fifteen and one-half years old at the time of his fall, Pritchett went to the track with friends who were racing on the dirt oval that night. He purchased a “pit pass” which allowed him to go into the pit area inside the track. After walking from the grandstand, across the track, and into the pit, he again crossed the track to return to the parking lot and retrieve snuff from his friend’s truck. During his absence, trucks apparently wet the track to prepare it for racing. When Pritchett returned from the truck and tried to cross the track again, he fell in the mud and suffered injuries to his knee. The trial court granted summary judgment to Hartwell, and based upon the undisputed facts and the law outlined below we affirm its judgment.

Although Pritchett had not been to Hartwell Raceway before his fall, he had visited similar racetracks and was familiar with the fact that such dirt tracks must be kept damp to prevent the cars from kicking up too much dust. In his deposition, he testified that before the races, trucks spray water on the track and drivers take a few laps around the track to pack the mud. When Pritchett purchased his pit pass, he signed a statement stating he acknowledged the racing surface and pit areas were “restricted areas” and agreed to “continuously” inspect those areas to ensure his own safety. His companion who was racing that evening warned him to be careful when crossing the track. When he crossed the track the first two times, Pritchett noticed it was damp, hard, slick, and sloped. When he returned from the truck, he took five or six steps into what he described as a muddy, slippery track visibly covered with water, and he fell.

Unlike slip and fall cases in which a proprietor has negligently allowed a foreign substance to accumulate on the floor and has negligently failed to clean it up, this case involves the intentional application of water to a mixture of dirt and clay — an application apparently necessary for proper racing. The parties do not address whether the muddy track itself constituted a “defect.” Hartwell might have argued it adequately warned Pritchett through its written notice, thereby fulfilling its duty by warning of the dangerous condition. See City of Winder v. Girone, 265 Ga. 723 (1) (462 SE2d 704) (1995). But Hartwell avoids any question of its own actions and contends that, even if it negligently maintained its raceway in a manner unsafe for Pritchett, Pritchett’s own knowledge of the track’s condition prevents his recovery. We agree.

Under the superior/equal knowledge rule,. “a knowledgeable plaintiff cannot recover damages if by ordinary care he could have avoided the consequences of defendant’s [alleged] negligence. [Cit.]” (Punctuation omitted.) Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305) (1992). In this case, “[w]e can state without equivocation that [Pritchett] was under a duty equal to that of [Hartwell] to use his sight to discover any defect or dangers. [Cit.]” First Pacific Mgmt. Corp. v. O’Brien, 184 Ga. App. 277, 280 (361 SE2d 261) (1987). “A plaintiff is held accountable for the failure to exercise due care for personal safety when doing an obviously dangerous act, and that failure is regarded as the sole proximate cause of the injury. [Cit.]” Girone, supra at 724 (2).

Before he fell, Pritchett knew this track was damp, sloped, and slick. He could see water glistening on its surface. His companions and Hartwell had informed him this track was dangerous. Furthermore, from his experiences at other tracks, Pritchett knew that, during his absence from the track area, trucks might water the track before the race. His presumed awareness is similar to that of the grocery shopper who enters a store on a rainy day and is deemed to know customers have tracked water into the store. See Key v. J. C. Penney Co., 165 Ga. App. 176, 177 (299 SE2d 895) (1983). The evidence of record shows his equal knowledge of the dangers inherent in crossing this track. Brownlow v. Six Flags Over Ga., 172 Ga. App. 242, 243-244 (322 SE2d 548) (1984).

Pritchett contends he was unaware of the extent of the muddy track’s slipperiness. “While, ordinarily, knowledge of a defect is not necessarily knowledge of danger inherent in the defect, we think that knowledge of the presence of mud is obviously knowledge of the probable danger of slipping when walking therein.” (Citations and punctuation omitted.) Soto v. Roswell Townhomes, 183 Ga. App. 286, 287 (358 SE2d 670) (1987). Or, as we said more bluntly in O’Brien, supra at 281,- “One cannot admit knowledge of the presence of a mine field but claim ignorance because he was not aware that a mine was placed at the point he decided to enter it.”

Pritchett was not required to enter the pit area. He could have remained outside the oval in the grandstands. See Shansab, supra at 451 (4); compare Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158, 159-160 (335 SE2d 408) (1985). Neither is Hartwell responsible for failing to place mats or build a handrail across the track, as Pritchett’s counsel suggests. Pritchett cannot allege the omission of these devices as negligence when he could plainly see these aids were not available. Key, supra at 177.

Decided June 14, 1996.

The Gordon Law Firm, Eleanor P. Cotton, Charles D. Strickland, Clifford E. Alexander, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Mark M. J. Webb, Lawrence, Ford & Ridgeway, Francis N. Ford, for appellees.

Finally, Pritchett alleges he was “distracted” by the “scene and activity in the pit area.” As evidence in support of his distraction theory, he references an affidavit not in the record and cites to a page of the record which is actually a page of argument in his brief to the court below. As he points to no evidence of record supporting this argument, we will not consider it. “A brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record.” (Citations and punctuation omitted.) Brown v. State, 214 Ga. App. 676, 678 (3) (448 SE2d 723) (1994).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Ruffin, Judge.

text:
    A96A0014.
    DUNCAN v. CITY OF MACON.
    (472 SE2d 455)
   Ruffin, Judge.

Debbie Duncan, individually and as next friend to her son, Mario Duncan, sued the City of Macon (“the City”) for personal injuries sustained by Mario. The trial court granted the City summary judgment, and Duncan appeals. For reasons which follow, we affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In this case, Duncan alleged that Mario was severely injured when a car struck him at a Macon intersection. She further alleged that the City and other entities negligently designed, constructed, and maintained the intersection’s crosswalks and traffic signals, and that these negligent acts proximately caused Mario’s injuries. The City moved for summary judgment, claiming it had sovereign immunity under OCGA § 36-33-1. The City also presented affidavits showing that the Georgia Department of Transportation (“DOT”) designed and constructed the intersection’s crosswalks.

In response to the motion, Duncan argued that the City was liable for the defective design and construction of the intersection under OCGA § 32-4-93 (b) and that sovereign immunity did not bar the action because the intersection constituted a nuisance, an exception to the doctrine. Duncan raises these same arguments on appeal.

1. Duncan appears to argue that because the City agreed to maintain the intersection, it was responsible for correcting design and construction deficiencies.

OCGA § 32-4-93 (b) provides that “[a] municipality is relieved of any and all liability resulting from or occasioned by defective construction of those portions of the state highway system . . . lying within its corporate limits or resulting from the failure of the department ... to maintain such roads as required by law unless the municipality constructed or agreed to perform the necessary maintenance of such road.”

It is undisputed that the intersection where the accident occurred is part of the state highway system. Duncan has also produced evidence which shows that the City agreed to maintain that portion of the state highway system located within the City limits. However, we disagree with Duncan that the City’s agreement to maintain the intersection includes the obligation to correct design and construction deficiencies.

OCGA § 32-1-3 (15) defines the term “[m]aintenance” as “the preservation of a public road, including repairs and resurfacing not amounting to construction as defined in this Code section.” The term “construction” is defined to include “planning, . . . designing, . . . striping, . . . [and] modifying for safety purposes, . . . together with all activities incident to any of the foregoing.” OCGA § 32-1-3 (6). It is clear from these definitions that even though the City agreed to maintain the highway, that agreement did not include any activities related to construction, design, or modifications of a crosswalk and traffic signal for safety purposes. Because the gravamen of Duncan’s claim is based on negligent design and construction of the crosswalk and traffic signal, and Duncan has not shown that the City was under any duty to perform these tasks, the trial court did not err in granting the City’s motion on this claim. See OCGA § 32-4-93 (b).

Decided May 24, 1996

Reconsideration denied June 17, 1996.

Edwards & Youmas, Lonzy F. Edwards, for apellant.

John P. Cole, Anderson, Walker & Reichert, Susan S. Cole, Joan W. Harris, for appellee.

2. We also disagree with Duncan’s assertion that under the facts of this case the City is liable for maintaining a nuisance.

Cities, like individuals and private corporations, may be liable for damages to third parties caused by the operation or maintenance of nuisances, without regard to whether they are performing a governmental function. City of Fairburn v. Cook, 188 Ga. App. 58 (6) (372 SE2d 245) (1988). To establish a nuisance, Duncan must show that: (1) the defect or degree of misfeasance rose to a level exceeding the concept of mere negligence; (2) the act was of some duration and the maintenance of the act or defect was continuous or regularly repetitious; and (3) that the municipality failed to act within a reasonable time after learning of the defect or dangerous condition. City of Bowman v. Gunnells, 243 Ga. 809, 811 (256 SE2d 782) (1979).

Duncan’s nuisance argument fails for two reasons. First, as we held in Division 1, the City was not responsible for any deficiencies in design or construction. Second, the City presented the affidavit of William Wilke, its traffic engineer, who attested that the City had received no prior reports of accidents involving pedestrians at the intersection and thus lacked knowledge of the alleged defect or dangerous condition. This uncontroverted evidence forecloses Duncan’s nuisance argument. Accordingly, we find that summary judgment was properly granted.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A96A0138.
    SPRINGMONT HOMEOWNERS ASSOCIATION, INC. v. BARBER et al.
    (472 SE2d 695)
   Judge Harold R. Banke.

Springmont Homeowners Association, Inc. (“the Association”), which owns property in the Springmont Subdivision deeded for recreation or common areas, sued Norman S. Barber, Norman S. Barber and Ralph M. Collier d/b/a Barrington Enterprises, and Barber Homes, Inc. (collectively “Barber”), seeking a declaratory judgment and injunctive relief. After the trial court summarily granted Barber’s motion for summary judgment and denied the Association’s, this appeal ensued.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows that Dimension/Brooks Corporation (“the developer”), executed and delivered a security deed to Georgia Federal Bank (“the Bank”) conveying approximately 154 acres, including the property at issue, which ultimately became Springmont Subdivision. It is undisputed that this deed was properly recorded. Eighteen months later, the developer recorded a “Declaration of Covenants, Conditions, Restrictions, and Easements” for the entire acreage. The Declaration regulated such matters as signs, clotheslines, and air conditioners and required preapproval of all structures. The Bank’s corresponding and properly recorded “Acknowledgement and Consent” approving the Declaration for Springmont, also stated “the lien, encumbrance and effect of the Security Deed shall not be and is not hereby made subject and subordinate to the Declaration.”

Over three years later, the developer conveyed a portion of the property to the Association. The developer eventually sold some 302 lots, many of which were built upon and occupied.

In early 1994, the Bank foreclosed on the 28 remaining unpurchased lots. The Bank subsequently sold the lots to Norman S. Barber who conveyed his title to Norman S. Barber and Ralph M. Collier d/b/a Barrington Enterprises, which conveyed some of the property to Barber Homes, Inc. The cause of action arose after Barber commenced building on the property without first submitting its architectural plans for approval. Held:

Because the Bank took title before the restrictions expressed in the Declaration were imposed we reject the Association’s argument that the Bank’s interest was subject to the Declaration. See Jones v. Gaddy, 259 Ga. 356, 359 (2) (380 SE2d 706) (1989). The Bank’s Security Deed, which contained no preapproval requirement, had priority over the subsequently recorded Declaration. Pindar, Ga. Real Estate Law & Procedure, § 21-41 (4th ed. 1993). Although the Declaration bound those taking under the developer, it never became part of the chain of title between the developer and the Bank, a fact underscored by the Bank’s Acknowledgment and Consent which gave public notice that its Security Deed was not subject to the Declaration. See Pinetree Estates Homeowners Assn. v. First United Lutheran Church, 241 Ga. 228 (2) (244 SE2d 856) (1978); Murawski v. Roland Well Drilling, 188 Ga. App. 760, 764 (2) (374 SE2d 207) (1988); Pindar at §§ 19-195, 19-196. Because the deed the Bank conveyed to Barber was unencumbered by the Declaration and the Association failed to present any evidence showing that the Declaration applied despite its clear absence from the chain of title, summary judgment was appropriate. Hornsby v. Holt, 257 Ga. 341, 342 (1) (359 SE2d 646) (1987) (grantee takes no greater title than that held by grantor); see McKee v. Hubert, 211 Ga. 329 (85 SE2d 757) (1955). Moreover, the foreclosure would have invalidated the restrictions had they attached. Mutual Loan &c. Co. v. Haas, 100 Ga. 111, 115-116 (1) (27 SE 980) (1897); Pindar at §§ 19-196, 20-60.

Decided June 3, 1996

Reconsideration denied June 17, 1996

Charles W. Field, for appellant.

Varner, Stephens, Humphries & White, James T. White, Andersen, Davidson & Tate, Thomas T. Tate, for appellees.

This action was originally filed in the Supreme Court, which transferred the case to this Court without explanation, implicitly rejecting the contention that this was an equity case within its general appellate jurisdiction. The Association’s arguments relating to this action’s equitable features extend beyond the parameters of this Court’s jurisdiction. Imperial Body Works v. Nat. Claims Svc., 158 Ga. App. 241, 242 (1) (279 SE2d 534) (1981). Moreover, in light of the Supreme Court’s action, those arguments must be deemed meritless. Id.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

       First Union National Bank subsequently purchased Georgia Federal, a fact not germane to this analysis.


author: Johnson, Judge.

text:
    A96A0343.
    HARPER et al. v. DOOLEY et al.
    (472 SE2d 461)
   Johnson, Judge.

Clay Brunson was killed when the pickup truck he was driving struck logs extending from the back of a log truck. The log truck was parked in the turn lane of a public highway, at night, waiting for a paper mill to open early the next morning. After parking at the end of a line of other log trucks already waiting for the plant to open, Larry Mathis took down the red “pole light” hanging from the end of his logs, and went to sleep in the truck’s cab until he was awakened by the collision. Mathis had not activated any other warning markers or lights, though he was required to do so by Georgia Public Service Commission regulations. Brunson’s parents, Bernell Harper and P. B. Brunson, Jr., sued Mathis and the truck’s owner, J. W. Dooley, for wrongful death. A jury returned a defense verdict, from which Brunson’s parents appeal. We reverse.

1. Brunson’s parents first enumerate as error the trial court’s admission into evidence results of tests performed by the Georgia Bureau of Investigation Division of Forensic Sciences (“the crime lab”) on blood and urine samples allegedly drawn from Brunson’s body. Based on these test results, crime lab experts opined that Brunson had been under the influence of marijuana and alcohol at the time of the collision. Harper contends that the evidence of the samples’ chain of custody was insufficient.

Floyd County medical examiner Dr. Steve Covington remembered taking blood and urine samples from Brunson’s body on November 18,1992, though his written report and examination notes make no mention of it. Dr. Covington had no memory or record of what he had done with the samples. He customarily gave bodily fluid samples either to the police officer investigating the case, to his physician’s assistant for transfer to the police department, or to his hospital lab; he was certain he had not done any of these things with the Brunson samples.

On January 15, 1993, a crime lab employee found in the crime lab drop box blood and urine samples labeled “Clay Brunson,” in containers matching those customarily used by Dr. Covington. The crime lab employee designated these samples, respectively, Items 2A and 2B. Accompanying them was another blood sample, which he designated Item 1. There was also paperwork indicating that Item 1 had been placed in the box by the Floyd County Police Department. Item 1, drawn from Brunson’s body by assistant coroner Craig Burns, was never tested by the crime lab. Tests on Items 2A and 2B were the basis for the trial testimony.

No witness had a record or memory of the Floyd County Police Department ever being in possession of any samples other than Item 1. Nor could any witness or record specifically account for what Dr. Covington had done with his samples; for how the samples propounded at trial as Dr. Covington’s came to appear in the crime lab drop box with Item 1; or for where they were from November 18 to January 15. There was testimony that Dr. Covington worked with the coroner; that the coroner’s office sometimes placed samples in the police evidence refrigerator; and that the transporting police officer sometimes took samples for which there was no paperwork from the evidence refrigerator to the crime lab.

A party proffering evidence based on testing of a sample of fungible materials must establish a chain of custody adequate to preserve the sample’s identity. Absolute certainty is not required; rather, the circumstances must establish a “reasonable assurance” that the tested sample is the correct one. Staples v. State, 209 Ga. App. 802, 805 (5) (434 SE2d 757) (1993). A reasonable assurance may be provided by testimony of compliance with “established procedures.” Sims v. State, 213 Ga. App. 151, 152 (1) (444 SE2d 121) (1994). In the case now before us, however, Dr. Covington has admitted that he did not follow his established procedures; and Mathis seeks to fill the resulting gap with an established lack of procedures on the part of the Floyd County Police Department, which made a practice of storing and transporting evidence of which it kept no records. Although the totality of the circumstances suggests a possibility that the samples might have been from Brunson’s body, that is not enough. See Unigard Ins. Co. v. Elmore, 137 Ga. App. 665, 666 (2) (224 SE2d 762) (1976). Mathis did not establish a reasonable assurance of the tested samples’ identity. Admission of the test results was thus error.

In order to obtain a reversal, an appellant must show not just error, but harpa. See Stringer v. Harkleroad & Hermance, 218 Ga. App. 701, 704 (1) (463 SE2d 152) (1995). When evidence is erroneously admitted, it is considered harmful unless it can be said that it did not affect the verdict. See Liu’s Enterprises v. Li, 204 Ga. App. 397, 398 (1) (419 SE2d 511) (1992). Because the test results were the strongest evidence Brunson was intoxicated, the error almost certainly affected the verdict, and thus requires reversal.

2. Brunson’s parents also challenge the trial court’s refusal to charge the jury that it should hold Brunson to the same standard of care for his own safety to which it would hold a sober person. Brunson’s parents allege that this was a proper charge under Ridgeway v. Whisman, 210 Ga. App. 169, 170 (435 SE2d 624) (1993) and Shuman v. Mashburn, 137 Ga. App. 231, 233-234 (2) (223 SE2d 268) (1976). Brunson’s parents also allege that the failure to give the requested charge left Mathis free to argue that Brunson was legally required to exercise a higher standard of care than “ordinary care” because Brunson knew he was intoxicated. We have no transcript of the closing argument, and so are precluded from finding error in the closing itself. See West v. State, 120 Ga. App. 390, 392 (3) (170 SE2d 698) (1969).

In order for refusal of a charge request to be error, the request must be “entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” (Citations and punctuation omitted.) Kammin v. O’Neal, 206 Ga. App. 855, 856 (1) (426 SE2d 633) (1992), rev’d on other grounds, 263 Ga. 218 (430 SE2d 586) (1993). It is not necessary that the general charge use the exact language proposed by the appellant, if the points of law are sufficiently covered. Moore v. State, 176 Ga. App. 490, 491 (3) (336 SE2d 365) (1985). In the case now before us, there was no error because the trial court instructed the jury that Brunson was required to exercise “ordinary care or due care” for his own safety, and defined ordinary care as “that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.” The general charge thus adequately covered the applicable standard of care.

3. Brunson’s parents contend the trial court erred in charging the jury that Brunson was required to have “regard for . . . actual and potential hazards,” and to drive “at a reasonable and prudent speed when special hazards exist with respect to other traffic.” Brunson’s parents contend this charge, a paraphrase of OCGA § 40-6-180, conflicts with Rogers v. Johnson, 94 Ga. App. 666, 678 (5) (96 SE2d 285) (1956), which holds that a driver is not required to anticipate the presence of objects illegally or negligently placed in the road.

The challenged portion of the charge is a correct statement of the law; and in view of the trial court’s charge on ordinary care (discussed in Division 2 above), we cannot say the charge as a whole was error. See Powell v. Estate of Austin, 218 Ga. App. 446, 449-450 (2) (462 SE2d 378) (1995). While the Rogers v. Johnson principle is also a correct statement of law applicable to this case, Brunson’s parents did not request the court to charge it, and do not now allege that omitting to charge it was error. Nor do we find that its omission was such a substantial error that it was harmful as a matter of law, which would require reversal even in the absence of objection. See OCGA § 5-5-24 (c). We therefore find no ground for reversal in connection with the challenged portion of the charge. If upon retrial Brunson’s parents request that the Rogers v. Johnson principle be charged, however, the trial court would be authorized to grant the request.

4. Brunson’s parents’ remaining enumerations of error challenge the trial court’s refusal to charge the jury that Mathis was negligent per se because he admittedly did not comply with various federal regulations requiring parked trucks engaging in interstate commerce to use certain warning markers and lights. We have no transcript of the charge conference. The trial court apparently found the regulations inapplicable because Mathis’ truck was used only in Georgia.

Decided May 29, 1996

Reconsideration denied June 17, 1996

John W. Moulton, for appellants.

Forrester & Brim, Weymon H. Forrester, Richard C. Bellows, for appellees.

Since the trial, Brunson’s parents’ counsel has discovered that Georgia Public Service Commission regulations governing intrastate trucking incorporate the federal standards. We presume that upon retrial Brunson’s parents will thus request a negligence per se instruction based on violations of the PSC regulations. The question of whether the federal regulations themselves applied to Mathis’ truck is therefore moot.

Judgment reversed.

McMurray, P. J, and Ruffin, J., concur.


author: Birdsong, Presiding Judge.

text:
    A96A0148.
    MILLER v. THE STATE.
    (472 SE2d 697)
   Birdsong, Presiding Judge.

Ernest Miller appeals from the order denying his motion for new trial and from his conviction of burglary and possession of a knife during the commission of a crime. Held:

1. Appellant contends the trial court erred in its recharge to the jury as to the offense of burglary, as the recharge went beyond the definition of burglary and directed the jury as to theories of guilt. We find this enumeration to be without merit.

Following the initial charge to the jury after closing argument, the trial court inquired whether there were any exceptions to the charges; appellant’s counsel expressly stated there were no exceptions to these charges and did not reserve any objections on motion for new trial or on appeal. Thus, any error contained within the original charge was waived. Campbell v. State, 207 Ga. App. 902, 904 (3) (429 SE2d 538). Subsequently, after commencing deliberation, the jury requested additional instructions as to the Code section about burglary, as to the description of how the law is supposed “to be applied” to that charge, as to what distinguishes a burglary and a criminal trespass, as to what distinguishes the carrying of a knife during the commission of a crime and carrying a concealed weapon, and as to the definition of reasonable doubt. In response, the trial court recharged, inter alia, on the presumption of innocence, the burden of proof, reasonable doubt, and the duty of the jury to acquit if the State failed to prove defendant’s guilt beyond a reasonable doubt. These recharges were all favorable to appellant. In addition, the trial court recharged on the elements of burglary, that it was not necessary to show that either a break-in or an actual theft had occurred, that intent to commit theft is an essential element of burglary and must be proved by the State beyond a reasonable doubt, the circumstances under which a jury may in its discretion infer the existence of an intent to steal, the definition of an “entry” into a building, the elements of criminal trespass, the elements of possession of a knife during the commission of a crime, the elements of carrying a concealed weapon, and that carrying a concealed weapon is a lesser included offense of possession of a knife during the commission of a felony. Thereafter, the court instructed the jury that “you need to take the charge of the court as a whole, and these sections are no more or less important than all the other Code sections and law that I charged you on yesterday evening. I don’t want you to unduly emphasize these charges over the other charges just because you heard them twice, or just because you heard them more recently than you did the other charges. You need to take this law as a whole and deal with it in that way.” Appellant contends on appeal that the trial court went beyond the definition of burglary and directed the jury as to theories of guilt; it was also contended at trial that due to the breadth of the trial court’s recharge, it also should have instructed on certain other charges that were “necessary offshoots,” such as, that the defendant will not be presumed to have acted with criminal intent, and instructions as to “mere presence” and “grave suspicion.”

As a general rule, “[t]he need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.” Peebles v. State, 260 Ga. 165, 167 (5) (a) (391 SE2d 639). “When the jury requests a charge or recharge on a particular point, the trial court has discretion to also give or not give additional instructions.” Patterson v. State, 264 Ga. 593, 594 (449 SE2d 97). After a jury commences to deliberate, the trial court has the inherent authority to call the jury back into the courtroom to give further instructions which may have been omitted for any reason during the initial charging of the jury, and on receiving a request for further instructions from the jury, “ ‘ “to give such reply as the facts may warrant.” ’ ” Miller v. State, 195 Ga. App. 89, 91 (3) (392 SE2d 334). “In determining whether the recharge contained error, it is fundamental that we must look at not only the recharge but the original charge as well, as jury instructions must be read and considered as a whole in determining whether the charges contain error.” Taylor v. State, 195 Ga. App. 314, 315 (1) (393 SE2d 690). “ ‘ “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.” ’ ” Id. The initial charge contained all the defense instructions which appellant requested be recharged; the record contains no indication that the jury was in need of any further clarification regarding the legal principles which appellant sought to have recharged. Further, the record fails to support any contention that the recharges, as given, would tend to mislead the jury during the course of their deliberation as to appellant’s guilt or innocence.

Grimes v. State, 199 Ga. App. 152 (2) (404 SE2d 324) is distinguishable from this case, particularly in that the recharge requested in Grimes was for the “ ‘definition of the possible verdicts’ ” (id. at 154), and the trial court failed to recharge regarding the verdict of not guilty. Also distinguishable is Brannon v. State, 163 Ga. App. 340 (2) (295 SE2d 110), where this Court was unable to review the merits of appellant’s enumeration because no portion of the charge was provided for appellate review. Moreover there exists no indication in Grimes, supra, and Brannon, supra, as in this case, that the trial court initially charged the jury in such a manner that no exceptions to the initial charge were taken and no right to except thereto was reserved until motion for new trial or on appeal. Further, in Grimes, supra, and Brannon, supra, there is no indication that on recharge the trial court expressly instructed the jury, as was done in this case, that the charge of the court must be taken as a whole and to consider as equally important the initial charges previously given.

Examining the charge and recharge in their entirety, we find that the trial court did not err as enumerated.

2. Appellant asserts the trial court erred in sentencing him to pay restitution for his court-appointed attorney fees without conducting a hearing pursuant to OCGA § 17-14-10 to determine his ability to pay. We disagree; the reimbursement of attorney fees is governed by OCGA § 17-12-10, not OCGA § 17-14-10.

Defendant was sentenced to 15 years, to serve 12, with the balance to be served on probation. One of the conditions of probation is that he pay “no more than” $1,000 for court-appointed attorney’s services at $50 per month beginning 60 days after his release from custody. He must also pay a monthly probation supervision fee of $20, but that is not contested.

OCGA § 17-14-10 governs the court’s authority to require a convicted defendant to make “restitution” to the “victim,” as defined in OCGA § 17-14-2 (7) and (9). “Restitution” can be in the form of money, property, or services. A “victim” is one who has suffered “damages caused by an offender’s unlawful act.” Although the taxpayers who must shoulder the cost of providing counsel to indigent defendants, or counsel who serves pro bono (see Sacandy v. Walther, 262 Ga. 11 (413 SE2d 727)) are victims of the crime in a broad sense, ordinary word usage would not include attorney fees as damages caused by the crime. In addition to the definition of “restitution” given in OCGA § 17-14-2 (7), the Supreme Court has held that it is “punishment when ordered as part of a criminal sentence.” Harris v. State, 261 Ga. 859, 860 (1) (413 SE2d 439).

OCGA § 17-12-10 is a specific statute relating to attorney fees, and where that appears in the law, the focused provision rather than a general provision governs. Stovall v. State, 216 Ga. App. 138, 141 (7) (453 SE2d 110). Although in this case, and in other reported instances, it is ordered as a condition of probation, it is not required as part of the punishment philosophy but rather to restore to government coffers some of the expense incurred for the one whose behavior is responsible for it. Compare the purposes of restitution, as explained by the Supreme Court in Harris, supra at 860. The same philosophy of defrayment of necessary expenses is true of the probation fee, which defendant does not challenge. See OCGA § 17-12-2 (5). Payment or reimbursement for legal assistance can also be recovered by civil suit as a debt. OCGA § 17-12-11.

OCGA § 17-12-10 (c), which provides for payment either directly to the attorney or by reimbursement to the governing authority, does not expressly require a hearing but gives the trial court the discretion to order payment or reimbursement “[t]o the extent that [an indigent] person ... is able to provide for the employment of an attorney.” To determine ability, it is obvious that the court would have to inquire and determine such facts as the amount of defendant’s income, assets, expenses, and outstanding obligations so as to have some basis for finding ability to pay or reimburse. Fowler v. State, 184 Ga. App. 177 (360 SE2d 918); Owens v. State, 187 Ga. App. 262, 263 (1) (369 SE2d 919).

But Owens did not rule that a “hearing” would be necessary in order for the trial court to have a basis upon which to determine ability to pay. Holmes v. State, 205 Ga. App. 168, 170 (421 SE2d 311), cited Owens when it vacated the reimbursement portion of Holmes’ sentence for ordering it “without first conducting a hearing.” By the time of sentencing of an indigent defendant who has had to supply financial data in order to qualify for appointment of counsel and who may have been subject to a presentence investigation, the court may already have enough information to serve as an adequate basis for ordering reimbursement. The court can put this basis into the record. As stated in the special concurrence in Fonseca v. State, 212 Ga. App. 463 (441 SE2d 912) (physical precedent only), in a case involving restitution under OCGA § 17-14-10, a hearing is not always necessary for the trial court to have sufficient information upon which to make even the statutorily-required findings for the purpose of ordering restitution.

In Earl v. State, 214 Ga. App. 891, 893 (3) (449 SE2d 361) and Thompson v. State, 214 Ga. App. 889, 890 (3) (449 SE2d 364), this court erroneously applied OCGA §§ 17-14-8 through 17-14-10 to the requirement that defendant make reimbursement for his attorney fee. The two cases cited in both opinions are restitution cases, not attorney fee reimbursement cases. Moreover, Fonseca, supra, is not precedential on the point of whether a hearing is necessary. Appellant Miller misguidedly relied on Thompson at the hearing on his motion for new trial. To the extent that Thompson, supra, and Earl, supra, hold that the provisions of OCGA §§ 17-14-8 through 17-14-10 apply to reimbursement for attorney fees, such precedent will no longer be followed.

In this case, prior to sentencing Miller, the court permitted both parties to present evidence and argument, the State in aggravation of punishment and defendant in mitigation. Counsel and defendant both spoke. Counsel then responded to the court’s question regarding what the maximum of his fee voucher to the county would be. He stated: “Given it was a jury trial, I’m sure I’ve exceeded the maximum. I believe the maximum is either a thousand or fifteen hundred.” Included in the sentence, and based on counsel’s statement and the court’s knowledge by observation of the extent of counsel’s services, was the attorney’s fee or at least a portion of it. The court explained: “During the probated portion of the sentence I want you to repay the county for the cost of your appointed attorney. I want you to pay back no more than one thousand dollars. If [his] voucher is a thousand dollars that’s what [you’ll] pay back. If [his] voucher is more than that, I’m not going to charge [you] more than that. If it’s less than that, then [you’ll] pay the amount that’s less than whatever amount [he’s] tendered in [his] voucher ... at fifty dollars a month beginning sixty days after [your] release.” The sentence document was signed immediately after the court pronounced it.

Thus, the amount to be paid was aired, defendant did not question it, and there is a reasoned basis for it. As to Miller’s ability to pay, he has no obligation to pay until beginning 60 days after he is released from custody after serving a 12-year term. Then he must pay at the rate of $50 per month for 20 months of his 36-month probationary period.

At the hearing on the motion for new trial, where the issue of the proper determination of reimbursement was argued, the court stated some of the factors it took into account in determining that Miller was able to pay. In the order denying the motion for new trial, the court recited these and other factors which formed the basis for its finding of ability to pay. These included facts drawn from the trial itself and from Miller’s application for appointment of counsel and certificate of indigency. The court took into account that when Miller was arrested, he was employed (as an auto detailer and as a motel housekeeper and laundry worker) and had enough money for entertainment and alcohol and carried $100. He claimed no dependents, was only $80 in debt, was in good health, and was a high school graduate. The court found no reason to believe his earning capacity would be any less upon release from prison. None of this is challenged as being untrue. This formed a sufficient basis to conclude that defendant was able to pay the costs of his court-appointed attorney, at least to the degree ordered by the court.

Decided June 17, 1996.

Mitchell D. Durham, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Joan V. Bloom, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Like the defendant in Penaherrera v. State, 211 Ga. App. 162, 164 (2) (438 SE2d 661), Miller is not imprisoned for failure to pay and does not in the future, under the terms of the sentence and basis for the requirement, face imprisonment if he is unable to repay the county for the portion of the cost ordered. If he is unable to pay at the time years from now that he is required to do so, he can petition the court for a change in the probated sentence. OCGA § 42-8-34 (g). See Penaherrera, supra at 165; Dean v. Whalen, 234 Ga. 182 (215 SE2d 7).

Defendant is presumably now in the custody of the State Department of Corrections, not in the jail in the county where convicted. To now hold a hearing with defendant present, on ability to pay $50 per month years from now, not only is not required by law but also would be expensive in time and services and would yield no answer. The court did not err in finding that at the time of sentencing, Miller was presently able to make the reasonably-scheduled future payment. There is a statutory remedy if, when the time comes, he has lost that ability.

Although the order of the trial court denying appellant’s motion for new trial and amended motion for new trial reveals that the trial court incorrectly concluded that it was bound by the provisions of OCGA § 17-14-10, and attempted to record certain findings of fact pursuant to the requirements of that statute, we will not reverse the correct ruling of a trial court regardless of the reason, if any, given therefor. See Krebsbach v. State, 209 Ga. App. 474 (1) (433 SE2d 649).

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Pope, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ, concur.


author:
Blackburn, Judge.
      Beasley, Chief Judge,

text:
    A96A0461.
    CHATTAHOOCHEE CHASE CONDOMINIUM ASSOCIATION, INC. v. RUBEN.
    (472 SE2d 520)
   Blackburn, Judge.

Chattahoochee Chase Condominium Association, Inc. (the “Association”) appeals the trial court’s order granting summary judgment on the issue of James Ruben, Jr.’s, liability for unpaid association assessments.

On September 16, 1987, Ruben sold at least 99 percent of his interest in the condominium at issue to Francine Sparacino. At the time of the sale, Sparacino had not yet obtained financing to purchase the property. Therefore, Rubin agreed to accommodate Sparacino by allowing her to assume his mortgage until she was able to obtain financing. Because a due on sale clause would have been triggered if Ruben conveyed his entire interest in the property, Ruben delivered two deeds to Sparacino: the first, for ninety-nine percent, was immediately recorded; the second, for the remaining one percent, was to be recorded when Sparacino obtained her own financing. Sparacino never obtained financing, and the deed conveying the remaining one percent interest was never recorded. Thus, Rubin retained a one percent record title interest in the property.

During the period that Sparacino owned at least 99 percent of the property and enjoyed 100 percent of the benefits of ownership, the unit’s assessments went unpaid. The Association filed a complaint against both Sparacino and Ruben as record title holders. Although the Association obtained a final judgment against Sparacino, the Association has been unable to locate or collect from her. Thus, the Association is seeking to recover all outstanding assessments and related charges from Ruben.

Ruben filed a summary judgment motion on the issue of his liability. The motion set forth two theories: first, that Ruben, as a mortgagor, was not an “owner” of the property; second, that even if Ruben is a co-owner of the property, he is only liable for any unpaid assessments to the extent of his co-ownership (i.e., one percent). The trial court granted partial summary judgment in favor of Ruben stating that “[Ruben] is not liable for any sum in excess of 1% of the assessments.”

1. In its first enumeration of error, the Association alleges that the trial court erred in holding that, even if Ruben is a co-owner of the property, he is only liable to the extent of his co-ownership interest.

Article VII, Section 2, of the Association’s by-laws provides: “Each owner shall be liable for his or her portion of each assessment coming due while he or she is the owner of a unit.” The issue that must be resolved is whether this language should be interpreted such that co-owners are liable for a unit’s assessment only to the extent of their individual ownership interest, or whether it allows for joint and several liability between co-owners.

“There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction; if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity.” (Citations and punctuation omitted.) Gram Corp. v. Wilkinson, 210 Ga. App. 680, 681 (437 SE2d 341) (1993); see also Duffett v. E & W Properties, 208 Ga. App. 484, 486 (430 SE2d 858) (1993) (applying this rule to real estate covenants). We agree with the trial court that the language in the by-laws in isolation is ambiguous. Therefore, the rules of construction must be applied.

OCGA § 13-2-2 (4) provides that the whole contract should be looked to in arriving at the construction of any one part. This means that a contract must be examined in its entirety, and not merely by examining isolated clauses and provisions. Duffett, supra at 486. Moreover, parties are presumed to have acted with knowledge of the applicable law. Davenport v. Nance, 194 Ga. App. 313, 314 (390 SE2d 281) (1990). The applicable law in the instant case would include the Georgia Condominium Act found at OCGA § 44-3-70 et seq., which was expressly referenced in the Association’s Declaration and bylaws.

Paragraph 6 of the Association’s Declaration provides: “The Association shall have the power to impose assessments which shall be apportioned among the owners in accordance with the percentage interest in the common elements appurtenant to each unit.” In addition, the Association’s Declaration and by-laws define “owner” as “the record title holder of a unit within the condominium, but shall not mean a mortgage holder.” This definition does not distinguish between co-owners. Moreover, the Georgia Condominium Act defines a “unit owner” as “one or more persons . . . who own a condominium unit.” (Emphasis supplied.) OCGA § 44-3-71 (29). Thus, under the Georgia Condominium Act the term “unit owner” specifically includes all co-owners collectively, even when the term is used singularly. “[W]ords of art, or words used in a particular trade or business will be construed, generally, to be used in reference to this peculiar meaning.” OCGA § 13-2-2 (2).

After examining the Association’s Declaration and by-laws in their entirety in conjunction with the Georgia Condominium Act, we believe that the language “[e]ach owner shall be liable for his or her portion of each assessment coming due while he or she is the owner of a unit” is unambiguous. It means that the collective owners of a condominium unit are liable for the unit’s portion of the total assessment levied by the Association on all emits. It does not mean that co-owners are liable for a unit’s assessment only to the extent of their individual ownership. As a result, the by-laws do not preclude Ruben from being jointly and severally liable for all assessments and related charges levied on the unit while he was a co-owner.

This interpretation of the by-laws is consistent with public policy, the purpose of the Georgia Condominium Act, and any reasonable expectation that Ruben may have had when he bought the condominium unit in question. The Georgia Condominium Act explicitly provides “[n]o unit owner . . . shall be exempted from any liability for any assessment under this Code section or under any condominium instrument for any reason whatsoever. (Emphasis supplied.) OCGA § 44-3-80 (d). “The language [of the Act] is plain and susceptible of only one interpretation insofar as it relates to the defenses. There is no legal justification for a condominium owner to fail to pay valid condominium assessments. This reflects a clear choice by the legislature that the owner’s obligation to pay assessments be absolute. . . . The public policy expressed in the statute assures that fulfillment of obligations and the functioning of a condominium association as a whole not be jeopardized or compromised.” (Citation omitted.) Forest Villas Condo. Assn. v. Camerio, 205 Ga. App. 617, 618-619 (422 SE2d 884) (1992); see also Casey v. North Decatur Courtyards Condo. Assn., 213 Ga. App. 190, 191 (444 SE2d 361) (1994) (public policy requires that condominium associations have sufficient power to enforce the collection of assessments). This public policy would be thwarted if we failed to recognize that co-owners are jointly and severally liable for condominium association assessments absent any language to the contrary. Therefore, we hold that the trial court erred in limiting Ruben’s liability to one percent of the unpaid assessments. •

2. Our decision in Division 1 makes it unnecessary to consider the remaining enumeration of error.

Judgment reversed.

Birdsong, P. J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur because of the context in which the sentence quoted from Article VII of the by-laws appears. That article addresses the subject of assessments. The sentence the meaning of which is at issue is part of Section 2. It states: “Each owner of any unit by acceptance of a Deed therefor, whether or not it shall be so expressed in such Deed, is deemed to covenant and agree to pay to the Association: (1) annual assessments or charges, (2) special assessments, such assessments to be established and collected, as hereinafter provided, and (3) specific assessments against any particular unit which are established pursuant to the terms of these By-Laws. All such assessments, together with charges, interest, costs, and reasonable attorneys’ fees, in the maximum amount permitted by Section 41 of the Georgia Condominium Act, shall be a charge on the unit and shall be a continuing lien upon the unit against which each assessment is made. Such amounts shall also be the personal obligation of the person who was the owner of such unit at the time when the assessment fell due. Each owner shall be liable for his or her portion of each assessment coming due while he or she is the owner of a unit and his or her grantee shall be jointly and severally liable for such portion thereof as may be due and payable at the time of conveyance. Assessments shall be paid in such manner and on such dates as may be fixed by the Board of Directors; unless otherwise provided, the assessments shall be paid in monthly installments.”

This, and the next section regarding acceleration, make plain that it is contemplated that assessments will not always be due all at once, on one date, but that they will be spread out over a period of time so as not to be onerous. So whoever is the owner, or whoever are the owners, at the time the installment is due is (or are) obligated for it, and in this case there were two owners simultaneously, each owning a partial interest. “Portion” refers to installment, not to percentage of ownership. A grantee is liable jointly and severally with the grantor-owner if an installment is due at the time of conveyance.

An applicable rule of construction is that “ ‘[t]he language used by the parties is of primary consideration in ascertaining their intention.’ [Cits.]” F & F Copiers v. Kroger Co., 194 Ga. App. 737, 739 (1) (391 SE2d 711) (1990). There is no wording indicating that the Association must determine the percentage of ownership in each unit which multiple owners have and invoice them accordingly. On the other hand, Section 2 commences: “Each owner” covenants and agrees to pay the assessments. The Georgia Condominium Act addresses assessment and collection on a unit basis, not on an individual basis. OCGA §§ 44-3-80; 44-3-109.

Moreover, defendant Ruben presented no evidence that when he conveyed 99 percent of the title to Sparacino, or at any time during the period when the assessments were being made, he advised the Association that he was liable for only one percent. “The cardinal rule of construction is to ascertain the intention of the parties.” OCGA § 13-2-3. See F & F Copiers, supra. Thus he did not demonstrate an intention contrary to that espoused by the Association, either by a consideration of the entire contract or by his own actions.

Decided June 17, 1996.

Weissman, Nowack, Curry & Zaleon, Jamie A. Lyons, Leigh M. Wilco, for appellant.

The Wilson Law Firm, L. Matt Wilson, J. Phillip London, Jr., for appellee.

       Because the trial court did not definitively rule on the issue of whether Ruben was a co-owner of the property during the period in question under the terms of the Association’s by-laws due to his alleged mortgagor status, the merits of that issue will not be addressed.