author: Johnson, Judge.

text:
    A96A0983.
    PRICE v. THE STATE.
    (477 SE2d 353)
   Johnson, Judge.

Charles Price appeals the judgment of conviction entered upon a jury’s verdict finding him guilty of three counts of aggravated child molestation and two counts of child molestation for acts committed upon his six-year-old niece and eight-year-old nephew. He also appeals from the denial of his motion for new trial.

1. Price contends that he was denied due process because no arraignment was held. However, the record shows that Price and his attorney signed a not guilty plea and specifically waived formal arraignment in February 1992. Price does not deny signing the waiver. He simply asserts on appeal that he did not sign the form until January 1993, just before closing arguments. Assuming that Price did sign the waiver and plea during rather than before trial, he has failed to show any harm resulting from the procedure. Moreover, Price voiced no objection at trial either to signing the waiver during trial or to the fact that no formal arraignment had been held. Therefore, his right to a formal arraignment was waived on that basis as well. See Frazier v. State, 204 Ga. App. 795 (420 SE2d 824) (1992).

2. Price complains that he was denied due process because some jurors slept during the trial. There is nothing in the trial transcript indicating that any jurors were sleeping during the proceedings. Even assuming that they were, however, it does not appear that such a matter was brought to the attention of the trial court. “The defendant must bring the misconduct of the jury to the knowledge of the court, if known; and if not brought when known, it will be held in contemplation of the law to have been waived.” (Citations and punctuation omitted.) Hand v. State, 205 Ga. App. 467, 468 (1) (422 SE2d 316) (1992).

3. Price’s complaint that his trial counsel was denied adequate time to investigate newly discovered evidence is without merit. At issue is a note written by a Department of Family & Children Services caseworker which the prosecutor showed defense counsel during the trial. This note said the female victim claimed to have an imaginary twin sister and that the sexual acts were committed upon this imaginary twin. Upon seeing the note, defense counsel requested a continuance in order to interview the caseworker who authored it. The court denied the request for a continuance, but ordered a recess so that counsel could interview the caseworker that afternoon. Allowing defense counsel an opportunity to interview the newly discovered witness is a procedure which is permitted as an alternative to a continuance. Lakes v. State, 244 Ga. 217 (259 SE2d 469) (1979). At the hearing on the motion for new trial; defense counsel testified that he did in fact interview the caseworker during the recess, but did not find the information obtained to be significant and therefore needed no additional time to investigate it. Thus, Price was not harmed by the denial of his motion for a continuance. We find no abuse of discretion. See id. at 218.

4. Price argues that the indictment was defective because it failed to state with sufficient certainty the date of the offenses. The indictment alleged that the offenses occurred between September 1, 1990 and June 12, 1991. This was sufficient because specific dates are alleged and, “in any event, the State was not limited to proving that the offense[s were] committed only on a specific date alleged. (Cits.)” Murphy v. State, 195 Ga. App. 878 (1) (395 SE2d 76) (1990). “[W]here the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations. An exception exists where the evidence of the state proving that the offense was committed at a time substantially different from that alleged in the indictment surprises and prejudices the defense in that it deprives the defendant of a defense of alibi or otherwise denies him his right to a fair trial.” (Citations and punctuation omitted.) Turner v. State, 202 Ga. App. 799, 800 (1) (415 SE2d 524) (1992). Here, the exact date was not stated as a material allegation in the indictment. Additionally, Price has not shown that the evidence proved that the offenses occurred on a substantially different date than alleged, thereby causing surprise or prejudice. Price was not denied the right to a fair trial on this ground, and we find no error.

5. The trial court did not err in denying Price’s motion to sever his trial from that of his brother. When two or more defendants are jointly indicted for a non-capital felony, the denial of a motion to sever is within the trial court’s discretion, and it will not be reversed absent an abuse of discretion. OCGA § 17-8-4; Mayfield v. State, 220 Ga. App. 19, 20 (2) (467 SE2d 352) (1996). In its charge to the jury, the trial court twice instructed the jury to consider each count and each defendant separately. The jury was also given a verdict form which listed each defendant and each count separately. The fact that the jury found Price not guilty as to Count 4, but found his co-defendant guilty on the same count “indicates that the jury was able to distinguish the evidence and apply the law intelligently as to each offense.” (Citations and punctuation omitted.) Carroll v. State, 199 Ga. App. 8, 10 (403 SE2d 875) (1991). “[Price] has complained, but has not shown by the record, that the joint trial has created confusion of the evidence and law applicable to each defendant.” (Citation and punctuation omitted.) Mitchell v. State, 220 Ga. App. 264, 266 (469 SE2d 707) (1996).

6. Price was not denied his Sixth Amendment right to confront witnesses because the defense table was positioned in such a manner that he was allegedly unable to see witnesses as they testified. There was no objection at trial to the positioning of defense table. In fact, Price never asked to be moved. Any error concerning the placement of the defense table has thus been waived. In any event, Price’s argument is without merit. “The primary object of the confrontation clause is a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” (Citations and punctuation omitted; emphasis in original.) Ortiz v. State, 188 Ga. App. 532, 533-534 (2) (374 SE2d 92) (1988). “The right of confrontation is provided not for the idle purpose of gazing upon the witness or of being gazed upon by him, but, rather to allow for cross-examination.” (Citations, punctuation and emphasis omitted.) Id. It is a right to ask questions and secure answers from witnesses who are present in court and in full view of the trier of fact. Id. at 535 (2). Defense counsel had the opportunity to and did thoroughly cross-examine the State’s witnesses. Price’s attorney was permitted to move freely around the courtroom so that he could see the witnesses more clearly. Price does not claim and the record does not show that the jurors had any difficulty seeing the witnesses as they testified. Indeed, the contrary is more likely, as defense counsel testified at the hearing on Price’s motion for new trial that he instructed Price to make eye contact with the jurors as he testified. In Boatright v. State, 192 Ga. App. 112, 115-116 (5) (385 SE2d 298) (1989), we found no error in the trial court’s allowing child victims to testify with their backs to the defendant when defense counsel’s ability to cross-examine the witnesses and the defendant’s ability to assist in his defense was not substantially impaired by an inability to see and hear the children adequately when they testified. As this Court opined in Ortiz, supra, the Supreme Court’s statement in Coy v. Iowa, 487 U. S. 1012 (108 SC 2798, 101 LE2d 857) (1988), that a defendant’s confrontation rights are violated where a one-way screen is used to enable the witness to avoid seeing the defendant, must be limited to situations in which it is impossible for the witness to see the defendant. Ortiz, supra at 534. Here, there is no evidence that it was impossible for the witnesses to see Price or for him to see the witnesses. At the hearing on the motion for new trial, defense counsel testified that it was “difficult” for the defense attorneys and defendants to see the witnesses “adequately” in any case tried in that particular courtroom. Price’s right to confront the witnesses testifying against him was not violated.

7. The trial court did not err in admitting audio and videotapes of interviews with the victims. Contrary to Price’s contention, the interviews were not depositions, and therefore OCGA § 24-10-131 did not require that the State notify him before the interviews were conducted. Also contrary to Price’s argument, the trial court did not err in its finding that the taped statements contained sufficient indicia of reliability to be admissible. In ruling on this issue, the trial court specifically considered such matters as the child’s age, demeanor, credibility and mental condition; the nature of the statements, their spontaneity and consistency and whether the child was coached. See generally White v. State, 211 Ga. App. 694, 695 (1) (440 SE2d 68) (1994). Both children testified at trial and were subject to cross-examination. The trial court did not abuse its discretion in admitting the tapes. See Penaranda v. State, 203 Ga. App. 740, 741 (2) (417 SE2d 683) (1992).

8. We find no error in the trial court limiting defense counsel’s cross-examination of a psychologist testifying for the State. Price claims that he was denied the right to a thorough and sifting cross-examination because he was not allowed to replay for the psychologist the children’s video and audiotaped statements and ask him whether the manner of questioning used was coercive and the responses reliable. “The Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Citations and punctuation omitted.) Eason v. State, 194 Ga. App. 678, 679 (1) (391 SE2d 427) (1990). It is clear from the trial transcript that defense counsel conducted a thorough and sifting cross-examination of the witness and did in fact ask numerous questions about the effectiveness of various interviewing techniques. “The scope of cross-examination is not unlimited and the extent thereof lies within the sound discretion of the court.” (Citations and punctuation omitted.) Meadows v. State, 190 Ga. App. 662, 663-664 (2) (380 SE2d 326) (1989). We find no abuse of discretion here.

9. Price claims that the trial court erred in allowing the face sheet of the redacted indictment to go out with the jury when it showed the total number of counts originally charged. He says this was erroneous and prejudicial since the trial court granted a directed verdict of acquittal as to some of the counts, some of the counts had been dismissed by the prosecutor, and others were duplicitous or applied only to his co-defendant. In a colloquy with the court concerning the absence of a signature on the redacted copy of the indictment, defense counsel stated to the court that “[the redacted copy] shows all the multiple counts at the top. It doesn’t matter to me.” (Emphasis supplied.) Defense counsel made no further objection on this issue. Therefore, the issue was waived. See generally Flowers v. State, 159 Ga. App. 516, 517 (284 SE2d 32) (1981).

10. The verdict was supported by sufficient evidence and was not contrary to law. Price was convicted of having committed aggravated sodomy by placing his penis in C. C.’s mouth, being a party to placement of his co-defendant’s penis in C. C.’s mouth and by causing, advising, and encouraging C. C.’s stepbrother M. P. to place his penis in C. C.’s mouth and child molestation upon C. C. as a party to causing, advising, and encouraging M. P. to place his hands and fingers on C. C.’s vagina and rectum and upon M. P. as a party to causing, advising and encouraging him to place his hands and fingers on C. C.’s vagina and rectum.

At trial, C. C. testified that her stepfather, the co-defendant, made her commit oral sodomy upon him and upon M. R, and that Price also made her sodomize Price. Similarly, in a videotaped interview, C. C. stated that she was forced to “suck [M. P.’s, Price’s and the co-defendant’s] privates.” She added that Price, the co-defendant and M. P. were all together when this happened. C. C. also stated in a taped interview that Price, the co-defendant and M. P. made her commit oral sodomy upon them. M. P. testified that he witnessed both the co-defendant and Price force C. C. to perform oral sex upon them. M. P. added that the co-defendant made C. C. commit oral sex upon M. P. while Price was in the room, and that the co-defendant made him touch C. C.’s vagina and buttocks while Price was in the room. A psychologist testified that C. .C. and M. P. exhibited characteristics consistent with abuse. Price testified on his own behalf and denied all of the allegations.

As Price points out, some of the State’s evidence was contradicted at trial. However, his argument raises the issue of witness credibility and “the credibility of witnesses and the resolution of evidentiary conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to that verdict.” (Citation and punctuation omitted.) Ramsey v. State, 214 Ga. App. 743, 744 (1) (448 SE2d 790) (1994). Viewing the evidence in such a light, a rational trier of fact could have found Price guilty beyond a reasonable doubt of having committed the offenses charged in Counts 1, 2, 3, 8, and 9 of the original indictment. See Allen v. State, 263 Ga. 60 (1) (428 SE2d 73) (1993).

As to Price’s argument that several of the counts involved only acts of his co-defendant, we point out that “every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime. ... If the defendant had knowledge of the intended crime and shared in the criminal intent of the principal [actor], he is an aider and abettor. Hence, if the defendant was at the scene and did not disapprove'or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting the commission of the crime.” (Citations and punctuation omitted.) Hildebrand v. State, 209 Ga. App. 507, 511 (4) (433 SE2d 443) (1993). The evidence supports the jury’s conclusion that Price was a party to the crimes at issue beyond a reasonable doubt. Id.

11. There is no merit to Price’s argument that the trial court erred during the sentencing phase by admitting his prior criminal record in aggravation of punishment when he was not represented by counsel in two of the cases, namely a 1960 burglary conviction and a 1981 DUI conviction. We note that the burglary conviction was not listed on the record and was not offered in aggravation of punishment. In any event, defense counsel did not object to the introduction of any of the 15 listed convictions at the sentencing hearing. In fact, counsel specifically referred to Price’s prior record and “problem with alcohol” when requesting lenient sentencing. Failure to object to the court’s consideration of the conviction amounted to a waiver. Golden v. State, 177 Ga. App. 747 (341 SE2d 480) (1986).

12. Price alleges that he was denied effective assistance of counsel. “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. . . . Pretermitting whether the [performance] of appellant’s [counsel was] deficient, within the meaning of [Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)], is whether such [performance] prejudiced appellant’s defense by creating a reasonable probability that, but for counsel[’s] unprofessional errors, the result of the proceedings would have been different.” (Citations and punctuation omitted.) Pardo v. State, 215 Ga. App. 317, 319 (6) (450 SE2d 440) (1994). Even assuming, without deciding, that trial counsel made errors as alleged, Price has failed to show that but for these errors, there is a reasonable probability that the result of the trial would have been different. The trial court’s ruling that a motion for new trial was not warranted on this ground was not clearly erroneous and will be upheld. See Cofield v. State, 216 Ga. App. 623, 627 (5) (455 SE2d 342) (1995).

Judgment affirmed.

McMurray, P. J, and Senior Appellate Judge Harold R. Banke concur.

Decided October 15, 1996.

William W Woody, for appellant.

Charles Price, pro se.

Albert F. Taylor, Jr., District Attorney, Mary E. Moore, Darrell E. Wilson, Assistant District Attorneys, for appellee.

       Price has filed a total of three motions for new trial since his 1993 conviction; all- three were denied. He also filed a notice of appeal in 1993, but this Court dismissed the appeal when counsel failed to timely file a brief and enumeration of errors. This appeal results from the grant of an out-of-time appeal by the trial court. Price was tried along with his brother, whose separate appeal has been remanded on an issue unrelated to this appeal.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A96A1038.
    ALDALASSI v. DRUMMOND et al.
    (477 SE2d 372)
   McMurray, Presiding Judge.

This is an action for damages arising from a motor vehicle collision which also includes a claim pursuant to 42 USC § 1983 against the police officer who investigated the collision. Following a jury verdict in favor of defendants, plaintiff Aldalassi appeals raising 17 enumerations of error. Held:

1. Unfortunately, the form of plaintiff’s pro se brief does not entirely comply with the rules of this Court. Most troublesome is the fact that all 17 enumerations of error are collectively argued in a sequence which deviates from the order of the enumerations of error and with the arguments often intermingled. Also, the enumerations of error are only sporadically supported by specific reference to the record or transcript. See Court of Appeals Rule 27 (c).

Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court. While our goal is to directly address the specific issues raised on appeal, where, as in the case sub judice, the contentions presented are argued generally, we must necessarily answer these issues in a similar fashion. Ga. Ports Auth. v. Southeast Atlantic Cargo Operators, 202 Ga. App. 318, 320 (1), 321, n. 3 (414 SE2d 232). Furthermore, a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form. Arnold v. State, 210 Ga. App. 843, 844 (437 SE2d 844).

2. Plaintiff contends the trial court erred in refusing to order the joinder, as necessary parties to the action, of Stacy Bell (the owner of the vehicle operated by one of the original defendants), State Farm Mutual Insurance Company along with a number of its employees, and the City of Atlanta Police Department. “There are two essential tests for an indispensable party under OCGA § 9-11-19 (a): (1) can relief be afforded the plaintiff without the presence of the other party, and (2) can the case be decided on its merits without prejudicing the rights of the other party? Pickett v. Paine, 230 Ga. 786, 796 (199 SE2d 223) (1973). If there are no compelling reasons for joining third parties, then they are not indispensable, and it is not necessary to join them for a just adjudication of the action between the original parties. Peoples Bank &c. v. N. C. Nat. Bank, 230 Ga. 389, 392 (197 SE2d 352).” Halta v. Bailey, 219 Ga. App. 178 (1), 179 (464 SE2d 614). Here, there has been no showing that any of the parties plaintiff sought to join is necessary for the just adjudication of the merits of this action. Therefore, we find no error in the trial court’s denial of plaintiff’s motion for joinder. Solid Rock Baptist Church v. Freight Terminals, 184 Ga. App. 111 (1), 112-113 (361 SE2d 200).

Decided October 15, 1996.

Abraham Aldalassi, pro se.

Sharon W. Ware & Associates, Randy Howard, Kathryn A. Thur man, Mercedes Murrell, for appellees.

3. Plaintiff also contends that the judgment must be overturned because he did not receive notice of the pretrial conference. See OCGA § 9-11-16; Uniform State Court Rule 7.1; TMS Ins. Agency v. Galloway, 205 Ga. App. 896, 897 (424 SE2d 71). However, plaintiff made no attempt to elicit any action from the trial court on this basis, the issue is raised for the first time on appeal and the record does not contain any evidence which illuminates the question of whether or not plaintiff actually received proper notice. In any event the transcript is clear that plaintiff was well aware of the existence and provisions of the pretrial order entered subsequent to the conference and failed to raise any objection. Under these circumstances plaintiff must be deemed to have waived any issues arising from any lack of notice. Adams v. Trust Co. Bank, 215 Ga. App. 269 (450 SE2d 305).

4. During the course of discovery plaintiff filed two motions to compel discovery. Prior to the beginning of trial, the trial court addressed these issues. After a colloquy with plaintiff and opposing counsel the trial court directed that certain additional evidence be provided to plaintiff. While plaintiff now complains that the trial court left his motions to compel pending, the record and transcript fail to disclose any attempt by plaintiff to elicit any further ruling or otherwise obtain relief concerning the motions to compel. Under these circumstances plaintiff has waived his right to appeal this issue. Gusky v. Candler Gen. Hosp., 202 Ga. App. 837 (2) (415 SE2d 541).

5. Plaintiff’s remaining enumerations of error being unsupported by argument or citation of authority are deemed abandoned. Turner v. State of Ga., 213 Ga. App. 309, 311 (5) (444 SE2d 372).

Judgment affirmed.

Ruffin, J, and Senior Appellate Judge Harold R. Banke concur.


author: Smith, Judge.

text:
    A96A1052.
    AMERICAN STATES INSURANCE COMPANY v. WALKER et al.
    (477 SE2d 360)
   Smith, Judge.

This case arises out of an automobile collision between a car owned by Robert Smith and driven by Terry Walker and a vehicle driven by James Waddell. In a previous action, Smith brought suit against Walker to recover property damage to his car. In his complaint, Smith alleged that Walker was operating the car without permission. Walker filed no answer, and a default judgment was entered in that suit.

Waddell and his wife then brought an action against Smith and Walker for personal injuries and loss of consortium. The Waddells served their uninsured motorist insurance carriers, Regal Insurance Company and Southern General Insurance Company, and the insurers answered in their own names. Southern General also filed a cross-claim against Walker. Walker did not file an answer, and the action went into default as to him. The parties stipulated their consent to opening the default as to Walker, and the trial court permitted the default to be opened.

Attorneys for the UM carriers, acting in Walker’s behalf, then filed an answer in Walker’s name. They also filed, in Walker’s name, a third-party complaint against Smith’s liability insurance carrier, American States Insurance Company, seeking a declaration of coverage and a defense in the personal injury suit brought by the Wad-dells. In the third-party action, Walker claimed he was entitled to coverage under Smith’s policy because he was a permissive driver. American States answered and moved for summary judgment on the ground that the issue raised in the third-party complaint had been decided adversely to Walker in the prior property damage suit, and Walker was therefore estopped to relitigate it.

The trial court severed the third-party action from the underlying personal injury proceeding, and the third-party complaint proceeded to trial before a jury. American States moved for a directed verdict at the close of the third-party plaintiff’s case and again at the close of evidence. The jury returned a special verdict, finding in its answer to a special interrogatory that Terry Walker had a reasonable belief that he was entitled to use Robert Smith’s car. Final judgment was entered thereon, and American States’ motion for judgment notwithstanding the verdict or for a new trial was denied. This appeal ensued.

1. American States raises four enumerations of error, but the central issue in this appeal is whether collateral estoppel applies to preclude litigating in the third-party declaratory judgment action the issue of whether Walker believed he had permission from Smith to use the car. We hold that it does, and we reverse the judgment.

(a) Collateral estoppel precludes the relitigation of issues “already adjudicated between the parties or their privies in a prior action.” (Citations and punctuation omitted.) Block v. Woodbury, 211 Ga. App. 184, 185 (1) (438 SE2d 413) (1993). No question exists that the issue of whether Walker had permission was “adjudicated” in the prior action. “A judgment by default properly entered against parties sui juris operates as an admission by the defendant of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations of the declaration. Conclusions of law, and facts not well pleaded and forced inferences are not admitted by a default judgment.” (Citations and punctuation omitted.) Stroud v. Elias, 247 Ga. 191, 193 (1) (275 SE2d 46) (1981). Smith’s complaint in the prior case expressly alleged that Walker did not have permission to drive the car.

(b) We agree with American States that this suit also involves the same parties or their privies because American States, as Smith’s insurer, stands in his shoes in this action. Southern Gen. Ins. Co. v. Nat. Union Fire Ins. Co. &c., 218 Ga. App. 400 (461 SE2d 574) (1995). Even were that not true, however, the modern trend in applying the doctrine of collateral estoppel is to restrict the privity requirement to the party against whom the plea is asserted. Green v. Thompson, 208 Ga. App. 609, 610 (431 SE2d 390) (1993). In this case, it is being asserted against Walker, who is bound by the judgment in the prior action.

(c) Walker correctly asserts that in order to preclude relitigation, this issue must also have been essential to the prior judgment. Kent v. Kent, 265 Ga. 211 (1), n. 2, 212 (452 SE2d 764) (1995). Viewing only the bare pleadings in the prior action, it would seem, as urged by Walker, that lack of permission was not essential to the judgment in the prior action. From the face of the pleadings, it appears that the only essential allegations in that action between Smith and Walker were those of negligence, proximate cause, and the amount of property damage.

The record in this case reveals, however, that the prior action was not simply an action on a claim for property damage between Smith and Walker. As acknowledged by Walker’s own attorney, that action was in fact a subrogation action against Walker prosecuted by Smith’s insurer, American States. The allegation that Smith did not give Walker permission to drive his car was .essential to protect American States’ subrogation rights against Walker, and it was purposefully included in the allegations of the complaint for that reason.

Moreover, when the prior judgment is a default judgment it will almost always be difficult, if not impossible, to determine in retrospect which allegations of the unanswered complaint were “essential.” Notice pleading does not require that the plaintiff elaborate on the reasons for, the essential nature of, or the necessity for the particular allegations included in the complaint. We are deprived of any trial testimony to flesh out the “bones” of the allegations in the complaint and permit us to determine which of those allegations were “essential.” As a result, it could be argued reasonably that the requirement that issues be “essential” to the judgment in order to preclude relitigation may not have application to prior judgments by default. But we need not decide so broad a question here. Under the circumstances in this case, given that the prior judgment was by default and that the issue of permission was necessary to preserve the insurer’s subrogation rights, we hold that the allegation that Walker lacked permission was essential to the prior judgment. It may not be relitigated in this action.

(d) Contrary to Walker’s assertion, no material facts have changed, thereby precluding the application of the doctrine of collateral estoppel. A prior judgment binds only as to facts in issue and events existing at the time of the prior judgment, and it does not prevent relitigating an issue if in the interim material facts have changed, altering the relations or rights of the litigants. King v. Plummer, 196 Ga. App. 711, 712 (1) (397 SE2d 5) (1990). The material facts in this case occurred on the date of the collision. The Wad-dells’ filing of an action seeking damages for personal injury is not a new event that alters the relations of these litigants; it depends upon the same operative facts. See generally Caswell v. Caswell, 162 Ga. App. 72 (290 SE2d 171) (1982).

(e) In its order denying American States’ motion for summary judgment, the trial court ruled that the default judgment in the prior action “established [only] a prima facie case that [Walker] did not have permission to drive the vehicle. Walker could have come forward with evidence to rebut this fact, which he has not done.” Walker seizes upon this language, and upon similar general language in Southern Gen. Ins. Co. v. Davis, 205 Ga. App. 274 (421 SE2d 780) (1992), relied upon by the trial court, to argue that the prior action established only a prima facie case that Walker did not have permission to drive Smith’s car. He argues that in this third-party action, therefore, Walker could and did properly rebut that prima facie showing by testifying at trial that he had permission from Smith to drive the car.

Decided October 15, 1996

Chambless, Higdon & Carson, Joseph H. Chambless, Jon C. Wolfe, for appellant. r

Reynolds & McArthur, Oliver W. Horne III, for appellees.

Assuming that Walker correctly interprets the trial court’s order, we are unable to agree with the trial court’s interpretation of Davis. Such an interpretation would mean that a party could fail to answer any suit, have a judgment entered against him, and then relitigate with impunity any fact issue alleged ih the complaint. This cannot be true. Moreover, that is not what was held in Davis. In Davis, the phrase “prima facie” is used in reference to statements in a party’s, brief that are not controverted by the other party, not to facts established in a prior action. Under the rules of this Court, statements in a party’s brief that are not controverted are “ ‘accepted ... as being prima facie true.’” (Citations omitted.) Id. at 276. Davis does not serve as authority for Walker’s contention that he may relitigate a fact established in the prior judgment.

(f) Walker’s argument that American States’ assertion of collateral estoppel violates OCGA §§ 51-1-32 and 51-1-33 is equally without merit. Those statutes create separate cau'ses of action for property damage and personal injury to the same person. The statutes provide that if the two causes of action belonging to that person are tried separately, res judicata and collateral estoppel do not apply. Childers v. F.A.F. Motor Cars, 171 Ga. App. 232 (319 SE2d 90) (1984). This action is not a personal injury action by Smith against Walker, which would have triggered the rule in Childers derived from OCGA §§ 51-1-32 and 51-1-33. The trial court severed the third-party action; this action is therefore simply a declaratory judgment action involving coverage issues. Moreover, the prior action did not involve the Waddells. OCGA §§ 51-1-32 and 51-1-33 do not apply here.

Because the issue of whether Walker had permission to use Smith’s car was decided in the prior case and could not be relitigated here, the trial court erred in denying American States’ motions for directed verdict and j.n.o.v.

2. Our holding in Division 1 renders moot American States’ remaining enumerations of error.

Judgment reversed.

Pope, P. J., and Andrews, J., concur.

       Smith did not answer initially either, and the trial court permitted the default to be opened as to him as well. Smith’s subsequent motion for summary judgment was granted by the court, however, on the Waddells’ only claim against him — for negligent entrustment. That judgment was not appealed, and Smith is no longer a party to this action.

       Southern General later amended its pleadings to strike its cross-claim against Walker.


author: Ruffin, Judge. McMURRAY, Presiding Judge,

text:
    A96A1097.
    HORNBUCKLE WHOLESALE FLORIST OF MACON, INC. v. CASTELLAW.
    (477 SE2d 348)
   Ruffin, Judge.

This is a foreign substance slip and fall case. Eleanor Castellaw was shopping in a retail store operated by Hornbuckle Wholesale Florist of Macon, Inc. (“Hornbuckle”) when she slipped and fell on what she claimed was a box top. Hornbuckle appeals the trial court’s order denying its motion for summary judgment. We reverse.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows the following: Castellaw went to Hornbuckle, a florist store, to purchase some brass containers. As a regular customer, she knew where the brass containers were displayed and proceeded directly to that aisle. On this occasion, she noticed that cardboard boxes were stacked in a row on the left side of the aisle. The floor was made of concrete, and Castellaw did not notice any hazard on the floor as she walked down the aisle to the brass containers.

Ella Crawford, the store, employee who assisted Castellaw with her selections, retrieved some brass containers from a storage area and placed them on top of some of the stacked boxes for Castellaw to inspect. As she considered the various containers, Castellaw removed her jacket, walked about ten feet down the aisle past the stacked boxes and placed her jacket on top of a box. She admits nothing prevented her from noticing objects on the floor. As she started to return to the containers, Castellaw slipped and fell on what she claimed was a box top. She had not noticed the box top on the floor and stated by affidavit that the top was not noticeable because it was small and camouflaged by the color and surrounding boxes and flooring. However, Castellaw admitted in her deposition that she could tell the difference between the texture of the floor and the texture of the cardboard boxes and that if she had looked down, she certainly could tell the difference between the concrete floor and the. cardboard boxes. Castellaw suggests that the box top apparently protruded a few inches from a gap between the row of boxes. Castellaw was unaware of Crawford’s whereabouts when she fell, but claimed that Crawford assisted her and retrieved the box top.

Crawford testified she never saw a box top on the floor in the area where Castellaw fell. She further testified that she was responsible for sweeping the floor and maintaining a lookout for foreign substances on the floor. According to Crawford, she had inspected the aisle where Castellaw fell only five to ten minutes before Castellaw entered the store, and no box top or other foreign object was on the floor at that time.

It is axiomatic that the liability for a slip and fall depends upon the superior knowledge of the defendant. To state a cause of action, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff had no knowledge of it or was prevented from discovering it for some reason attributable to the defendant. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). "[I]f [Castellaw] is unable to prove either element of the Alterman test, a failure of proof results. [Cit.]” Winn Dixie Stores v. Carroll, 212 Ga. App. 234 (441 SE2d 432) (1994). Castellaw has presented no evidence contradicting Hornbuckle’s evidence that it had no actual knowledge of the existence of the box top on its floor. Thus, the issue presented in this case is whether Hornbuckle had constructive knowledge of the allegedly hazardous condition.

Constructive knowledge can be established with evidence that either Hornbuckle failed to exercise reasonable care in inspecting its premises or an employee was in the immediate vicinity of the hazardous condition and could easily have noticed and corrected it. Drake v. Kroger Co., 213 Ga. App. 72, 73 (1) (443 SE2d 698) (1994). In this case, Castellaw cannot establish that Hornbuckle failed to exercise reasonable care in inspecting the area because the evidence showed that Hornbuckle inspected the floor approximately five to ten minutes prior to Castellaw entering the store. Id. See also Butler v. Lanier Park Regional Hosp., 220 Ga. App. 386 (469 SE2d 475) (1996). In addition, Castellaw failed to show constructive knowledge based on a negligent inspection of the premises because there was no evidence regarding the length of time the foreign object, if any, was permitted to remain on the floor. See Ballard v. Southern Regional Med. Center, 216 Ga. App. 96 (1) (453 SE2d 123) (1995). "To sustain [a] cause of action under this first kind of case it is necessary that [Castellaw] prove a period of time the dangerous condition ha[d] been allowed to exist. Without such proof it would not be possible to determine whether [Hornbuckle] had been afforded a reasonable time within which to inspect and remove the hazard.” (Citation and punctuation omitted.) Drake, supra at 73.

Nor does the evidence support the theory that a Hornbuckle employee was in the immediate vicinity of the fall and could easily have noticed the box top and removed it. Castellaw has presented no evidence to show that a Hornbuckle employee was in a position to see or remove the box top from the floor. According to Crawford, she swept the area of the fall approximately five to ten minutes before Castellaw entered the store, and she did not see any box top before the fall. Moreover, accepting Castellaw’s testimony that the box top was not noticeable because of its size, location and color, it must logically follow that a Hornbuckle employee could not have easily discovered the “hazard” and removed it. Butler, supra; Drake, supra. There is no evidence in the record that a Hornbuckle employee could have easily noticed the box top and removed it since Castellaw testified it was hidden from sight.

Contrary to Castellaw’s argument, the distraction theory does not preclude summary judgment in this case. The distraction theory applies to the second prong of the Alterman test to prevent summary judgment to a defendant when a plaintiff could have easily seen the hazard yet failed to exercise ordinary care for her own safety. Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994). It does not apply to the first prong of the Alterman test, where the issue is the proprietor’s knowledge of the existence of the allegedly hazardous condition. Likewise, any discrepancies between the testimony of Crawford and Castellaw do not preclude summary judgment in this case since these alleged discrepancies do not create “material” issues of fact. OCGA § 9-11-56. Whether the box top was on the floor after the fall and whether Castellaw actually purchased brass containers after the fall do not alter the fact that Hornbuckle had no actual or constructive knowledge of the box top before Castellaw’s fall. .

Since Castellaw failed to present evidence of the first prong of the Alterman test, showing Hornbuckle had actual or constructive knowledge of the allegedly hazardous condition, the trial court erred in failing to grant summary judgment to Hornbuckle.

Judgment reversed.

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

McMURRAY, Presiding Judge,

dissenting.

I respectfully dissent from the judgment of reversal, effectively granting summary judgment to the defendant-proprietor Hornbuckle Wholesale Florist of Macon, Inc. in plaintiff-invitee Eleanor Castellaw’s “trip-and-fall” tort action to recover for personal injuries sustained allegedly as a result of defendant’s failure to exercise ordinary care to keep its premises safe as required by OCGA § 51-3-1. In my view, the trial court correctly determined that a jury should decide whether plaintiff failed to exercise ordinary care for her own safety by failing to observe a silk flowers’ box lid on the floor while she was looking at the brass items defendant’s employee presented for plaintiff’s inspection and, if so, whether the plaintiff’s contributory negligence completely bars or merely diminishes any recovery under the Georgia law of comparative negligence, OCGA § 51-11-7.

Viewed in the light most favorable to plaintiff as the nonmovant, her affidavit testimony authorizes a jury finding that boxes of varying sizes were stacked at varying heights in front of the shelves in the aisle where plaintiff fell. She was “paying attention to where [she] was walking, [. . . and] did not notice any foreign material on the floor before [her], . . .” Plaintiffs “attention was directed towards the brass articles which [defendant’s sales employee] Ms. Crawford had stacked on top of the boxes [for plaintiff’s inspection]. [Plaintiff] had taken no more than a couple of steps when [her] right foot stepped on a piece of cardboard which had been left on the floor and was protruding slightly from the edge of the box stacked there on the floor. [Her] feet went out from under [her], . . . Ms. Crawford helped [her] to [her] feet, and then picked up the cardboard box lid on which [plaintiff] had slipped.” This cardboard box lid “was not noticeable because it was small and camouflaged by the color and surrounding boxes and flooring. It was dimly lit in this area, as is the entire store, and the floor did not look clean. . . . Although the store floor is concrete, it is very dirty and is therefore brown in color. [I]f asked to look at the concrete and the box lid side-by-side, [plaintiff] would be able to tell the difference between them. However, through casual observation the lid was not readily visible.” At her deposition, plaintiff testified that on the day of her fall, she was wearing shoes “[s]imilar to a nurse’s shoe, a thick soled rubber with a non-skid bottom.” She walked to the area of defendant’s store where brass was displayed. “Ella [Crawford] came up and stopped at the brass. ‘Cause [plaintiff] told [Ms. Crawford] what she would like.” Plaintiff affirmed that there was “nothing to prevent [her] from looking down at the floor to see if it’s clear and if there’s any debris or foreign object on it[.]” As plaintiff approached the area where she fell, she “was looking at the brass [items that defendant’s employee had displayed for plaintiff] on top of the boxes [in the aisle].” Ms. Crawford “had brass sitting on top of the boxes like a counter and [plaintiff] put [her] bag down and . . . [her] jacket, and started [walking] this way. And [that] is when [she] fell.” “After [plaintiff] fell and Ella [Crawford] picked [plaintiff] up, [plaintiff] saw [Ms. Crawford] pick up a box lid and put it on top of the boxes that were stacked.” This lid was “like you would get [with] silk flowers . . . silk flowers in boxes . . . maybe 36 inches long [. . . and about] three inches . . .” deep. “And the box lid that [Ms. Crawford] picked up was beside these boxes, just apparently sticking out just a little bit right there, same color of the floor, same color of the boxes. And that’s what [plaintiff] slipped on. [Plaintiff] did not know that . . . until [Ms. Crawford] picked it up and laid it on top of the boxes.” As plaintiff stepped on the box lid, she “didn’t have any traction. . . .” When asked if anything prevented her from seeing the box lid, had she looked, plaintiff replied: “I was looking at the brass that Ella [Crawford] had put up on top of the boxes as I was walking from [where I] left my pocketbook, . . . towards there.” The question was repeated, and plaintiff explained: “It.was the same color of the boxes and the . . . floor, basically.” Plaintiff did concede that “if I’d seen it, I’d have known ... it was not part of the concrete floor, but it was apparently sticking right out just from the edges of the other one, just enough for me to catch it and fall. . . .” Plaintiff had been in the store 15 or 20 minutes before she fell, during which time, Ella Crawford “had been up to the storage or went to the warehouse twice[, ... to] bring back some different kinds of brass containers for [plaintiff] to see and look at. . . .’’Plaintiff further affirmed defense counsel’s assertion that “It must have been there at that time . . . [b]ut [she] did not see it.”

Ella Crawford testified at her deposition that it was her responsibility to “[t]ake the pricing gun and open the box [of bunched silk flowers] up and price them, put them back in and put the top back on.” Ella Crawford and Betty Heath “always price them, all the boxes first, and then we put them out.” They had finished pricing “[t]he day before [plaintiff fell].” Ella Crawford also swept the concrete floor “[e]very day[, . . .] first thing in the morning[, . . . and does not] sweep it again after that[.]” She affirmed that “either [she] sweep[s] it, or it doesn’t get swept[.]” Ella Crawford further affirmed that plaintiff “was looking at me,” when she entered defendant’s store. Ella Crawford “moved the first box, and [she] slid it down this aisle . right here.. At that time, [plaintiff] came around [Ella Crawford], around this way, and she fell right there in that little hole.” Plaintiff had taken only two steps.

This evidence clearly authorizes two crucial inferences favorable to plaintiff, establishing defendant’s constructive knowledge: First, either Ella Crawford or Betty Heath negligently placed or dropped the box lid on the floor while pricing on the evening before plaintiff fell. Their knowledge and their negligence is attributable to their employer, defendant Hornbuckle Wholesale Florist of Macon, Inc. The second favorable inference is that Ella Crawford did not sweep in that particular aisle the next morning where she would have had to move a series of heavy boxes, or, that if she did so, she failed to observe or remove the box lid from the floor. Thus, the offending silk flowers’ box lid, having spent the night and the entire morning on the floor hidden behind large boxes, was not readily discernible even to Ella Crawford, if in fact she diligently performed her sweeping on the morning that plaintiff fell. Added to this is plaintiff’s own testimony that the box lid blended in color with the dirty concrete floor, creating an optical illusion. Also present is the natural response of a patron who is implicitly invited to step into the aisle by the actions of the employee in clearing the way for plaintiff to inspect the brass she came to purchase. “Where a proprietor owes a duty to its invitees to keep the premises in a safe condition for their passage, the setting up of a distraction, by a sign or conduct, which will so divert the customer’s attention as to be the proximate cause of his injury in colliding with what might otherwise be a patent and even safe appurtenance, may constitute actionable negligence on the part of the defendant.” (Citations and punctuation omitted; emphasis in original.) J. H. Harvey Co. v. Edwards, 219 Ga. App. 697, 698 (466 SE2d 246) (whole court).

Nor can we say, as a matter of law applied to undisputed fact, that plaintiff failed to exercise ordinary care for her own safety to avoid the consequences of a known peril created by defendant’s negligence, Compare Altermans Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327); Lindsey v. J. H. Harvey Co., 213 Ga. App. 659 (445 SE2d 810); OCGA § 51-11-7. In my view, the evidentiary posture of the case sub judice brings it within the ambit of the recent ruling of the Supreme Court of Georgia in Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485). There, as here, the plaintiff offered a specific reason for not looking at the floor or watching her feet as she approached the spot where she fell. In fact, in the case sub judice, plaintiff has three specific reasons: The lid was partially hidden, it blended in color with the dirty floor, and she was concentrating on the brass that defendant’s employee had just displayed to plaintiff. “ ‘This testimony is some évidence that [plaintiff] exercised reasonable care for [her] own safety in approaching the [brass items displayed for her by defendant’s employee, Ella Crawford].’ [Cit.] In the subject case, the store employee spoke to [plaintiff and placed two brass items on the row of boxes for plaintiff to inspect], while in Barentine, there was no communication [or distraction] generated by the store employee, [who] was simply the focus of Barentine’s attention. If the facts of Barentine establish ‘some evidence’ that [plaintiff] exercised reasonable care for [her] own safety, then clearly [the circumstances in the case sub judice constitute] a much stronger case of such evidence.” Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291 (450 SE2d 319). Accord J. H. Harvey Co. v. Edwards, 219 Ga. App. 697, 698, supra; Axom v. Wendy’s Intl., 219 Ga. App. 623, 625 (466 SE2d 613) (whole court). This is especially so since, in Barentine, the Supreme Court of Georgia recognized that application of the contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) bound plaintiff Barentine to his unfavorable deposition testimony that he could have seen the clear liquid if he had been looking down towards it as he walked to the check-out counter. Barentine v. Kroger Co., 264 Ga. 224, 225, supra.

Pursuant to Art. VI, Sec. VI, Par. VI, Ga. Const. (1983), “The decisions of the Supreme Court shall bind all other courts as precedents.” My colleagues in the majority may not agree with the analysis of the Supreme Court of Georgia in the Barentine decision but they are duty bound to follow it where it applies. Since, in my view, the trial court correctly denied defendant’s motion for summary judgment, I respectfully dissent from this Court’s reversal of that correct decision.

Decided October 15, 1996

Jones, Cork & Miller, Rufus D. Sams III, Wendell K. Howell, for appellant.

Sell & Melton, Russell M. Boston, Berlon & Timmel, James T. Perry, for appellee.


text:
    A96A1629.
    REID v. UNITED STATES FIDELITY & GUARANTY COMPANY. REID v. PARKER et al.
    A96A1630.
    (477 SE2d 369)
   Johnson, Judge.

In February 1993, Karen Reid filed suit against Spencer Lee .Parker and Bobby Parker seeking damages for injuries she alleged she sustained in an automobile accident in December 1991. At the time of the collision and when suit was filed, the Parkers were insured by State Casualty Insurance Company. At the time suit was filed, Reid did not serve her uninsured motorist carrier, United States Fidelity & Guaranty Company (USF&G), apparently because there was no reason to conclude the Parkers were uninsured. However, on January 6, 1994, during the pendency of the lawsuit and more than two years after the date of the collision, State Casualty was declared insolvent. In March 1995, the Parkers’ insurance coverage having evaporated, new counsel for Reid served USF&G. Before USF&G’s answer was due, Reid voluntarily dismissed the suit and refiled the present action within the six-month period contemplated by the renewal statute, OCGA § 9-2-61. In the renewed action, USF&G moved for summary judgment, arguing that the original suit against it was void because the applicable two-year statute of limitation had expired before it was served and that the renewal action was therefore improper. The trial court agreed and entered judgment in favor of USF&G. Reid appeals that judgment in Case No. A96A1629.

The Parkers filed a motion for partial summary judgment contending that, pursuant to OCGA § 33-36-14 (a), a provision of the Georgia Insurers Insolvency Pool Act, funds from Reid’s uninsured motorist coverage are primary over their own tort liability. The trial court granted the motion in part, concluding that Reid cannot recover from the Parkers any amount of any judgment up to the $40,000 combined single limit in liability coverage and $1,000 limit in medical payments coverage contained in her uninsured motorist policy with USF&G. Reid appeals from this grant of partial summary judgment in favor of the Parkers in Case No. A96A1630.

Case No. A96A1629

1. Reid asserts the trial court erred in concluding that summary judgment for USF&G was proper because the underlying action was void as to USF&G and therefore not subject to renewál. “ ‘The “privilege” of dismissal and renewal does not apply to cases decided on their merits or to void cases, but does allow renewal if the previous action was merely voidable.’ [Cit.]” Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994). In Hobbs, the Supreme Court reiterated the long-standing principle that OCGA § 9-2-61 (a), the renewal statute, is remedial in nature and is therefore construed liberally to allow renewal where a suit is disposed of on any ground not affecting its merits. A suit is void if service was never perfected or if there has been an adjudication that dismissal is authorized. However, “unless and until the trial court enters an order dismissing a valid action, it is merely voidable and not void.” Id. “A suit is unquestionably a valid ‘pending action’ if service has been perfected before the running of the applicable statute of limitations. [Cit.]” Ga. Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836, 837 (462 SE2d 713) (1995). The previous action in this case was served on the Parkers and USF&G prior to its dismissal.

In Bohannon v. J. C. Penney &c. Ins. Co., 259 Ga. 162, 163 (377 SE2d 853) (1989), our Supreme Court held that an “uninsured motorist carrier must be served within the time allowed for valid service on the defendant in the tort action. [Cit.]” This Court noted in Shepard v. Allstate Ins. Co., 198 Ga. App. 144, 145 (1) (400 SE2d 682) (1990) that “[although Bohannon raised the possibility of creating an exception for cases like the present one, where insurance coverage unexpectedly evaporates after the statute of limitation has run, the court deferred to the legislature for any such action.” See also Clark v. Safeway Ins. Co., 198 Ga. App. 282 (1) (401 SE2d 72) (1991). Although USF&G undoubtedly would have raised a statute of limitation defense in the underlying suit based on Bohannon, supra, the case was voluntarily dismissed before it had an opportunity to do so. Until such time as. the trial court ruled on an asserted affirmative defense, however, the action was merely voidable as to USF&G, not void. See Fine v. Higgins Foundry &c., 201 Ga. App. 275, 276 (1) (410 SE2d 821) (1991). The trial court’s conclusion that the underlying action was void as a basis for granting USF&G’s motion for summary judgment in the renewal action was erroneous and must be reversed.

In Kilgore, supra, the Supreme Court concluded that dismissal of an action is not required when there was a significant delay between the timely filing of a tort claim and service on an uninsured motorist carrier, even when service was not perfected until well after the running of the statute of limitation. The court cited its previous decision in Hobbs, supra, and noted that the plaintiff could have dismissed the original suit, filed a renewal action, and avoided the problem altogether. Further, any defenses raised in the subsequent action, such as failure to timely serve, will be adjudicated only with respect to the subsequent action. Hobbs, supra at 360. It appears that Hobbs and Kilgore have created the exception called for by Justice Weltner in his dissent in Bohannon, supra. While our courts generally disfavor doing indirectly what cannot be done directly, it appears that Kilgore’s application of Hobbs allows an uninsured motorist carrier to be brought into a voidable action after the statute of limitation has run as to it and, then, after dismissal and refiling, precludes raising defenses which could have been asserted only in the original action.

Any discussion of whether Hobbs and Kilgore intended to create a method for circumventing Bohannon, however, is beyond the scope of the enumerated error in this appeal. We note in passing that the case law applying the two-year personal injury statute of limitation to actions against uninsured motorist carriers rather than the six-year statute of limitation applicable to suits on written contracts apparently arises out of a policy concern that the carrier be able to avail itself of all defenses which are available to the uninsured defendant. Clearly that policy concern is not present in this case, inasmuch as the Parkers were served well within the statute of limitation period. Furthermore, it seems illogical to apply the two-year period from the date of the accident here because the Parkers did not become uninsured so as to implicate Reid’s uninsured motorist coverage until after the two-year period had expired. It would seem a terrible injustice to say that persons who had purchased uninsured motorist coverage in complete good faith could be denied the benefit of their contracts under such circumstances. Furthermore, this situation would have significant practical implications for lawyers representing plaintiffs in automobile accident cases. As was the situation with Reid’s lawyer here, they would have no reason to anticipate that the defendants would become uninsured after suit was filed. But if the two-year statute is to be strictly applied, these lawyers would be forced to serve their client’s uninsured motorist carrier in every case and try to hold them in the case against the slim possibility that the defendant would become uninsured before the case was concluded and any judgment collected. Should counsel serve the uninsured carrier under those circumstances, he or she would immediately be called upon to defend a motion for summary judgment or a declaratory judgment action, no doubt including an application for frivolous litigation expenses, based on a defense that the defendant was not uninsured. Fact situations such as this cry out for legislative action, and, should such pleas produce no result, rethinking by the Supreme Court of the policy reflected in the cases regarding the applicability of the two-year statute of limitation.

Decided October 15, 1996

Jones, Cork & Miller, Charles M. Cork III, for appellant.

Martin, Snow, Grant & Napier, William H. Larsen, for appellee (case no. A96A1629).

Miller & Towson, Wallace Miller III, for appellees (case no. A96A1630).

Case No. A96A1630

2. Reid also appeals from the trial court’s grant of partial summary judgment in favor of the Parkers which limited any recovery against them personally to any amount awarded in excess of the policy limits of Reid’s uninsured motorist coverage. Matters of the existence or non-existence of uninsured motorist coverage and compliance or non-compliance with OCGA § 33-36-14 (a) do not constitute defenses available to the Parkers and are unrelated to the only issues in this case, i.e., whether the Parkers are liable to Reid and, if so, in what amount. Any decision regarding who may be ultimately liable for satisfaction of any judgment which might be rendered against the Parkers is not an issue ripe for adjudication by the trial court. See Lee v. Fulton Concrete Co., 195 Ga. App. 348 (393 SE2d 449) (1990). Therefore, the trial court’s grant of partial summary judgment in favor of the Parkers is reversed.

Judgments reversed.

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


author: Judge Harold R. Banke.

text:
    A96A1794.
    JACKSON v. THE STATE.
    (477 SE2d 347)
   Judge Harold R. Banke.

James Arnell Jackson was convicted of selling cocaine and received a mandatory life sentence. On appeal, he enumerates three errors, contesting the admission of similar transaction evidence, alleging ineffective assistance of counsel, and challenging the sufficiency of the evidence.

The evidence, viewed in the light most favorable to the verdict, revealed that Jackson sold a $20 piece of crack cocaine to an undercover agent. Rigenstrup v. State, 197 Ga. App. 176, 181 (4) (398 SE2d 25) (1990). When the agent pulled into the parking lot, Jackson approached his car and called out to him. After the agent requested the cocaine, Jackson removed a rock from a clear tube and exchanged it for the cash. The agent videotaped the transaction using a camera hidden in his car. The rock subsequently tested positive for cocaine and weighed less than a gram. Held:

1. Jackson waived his argument that the similar transaction evidence was offered for an improper purpose and was too remote in time. In' cases where a similar transaction hearing is held pursuant to Uniform Superior Court Rule 31.3 (B), the failure to object to the introduction of the similar transaction evidence at trial waives the issue. Buckner v. State, 219 Ga. App. 71, 72 (2) (464 SE2d 11) (1995). The record reveals that Jackson’s trial counsel failed to assert an objection.

2. Jackson also waived his claim that his trial counsel was ineffective for failing to assert a chain of custody objection to the admission of the cocaine he sold to the agent. An ineffectiveness claim cannot be asserted in an out-of-time appeal without first pursuing the issue in a motion for'new trial in which the issue is raised and resolved by means of an evidentiary hearing. Peavy v. State, 213 Ga. App. 79 (443 SE2d 705) (1994). Because Jackson’s appellate counsel failed to raise the issue in a motion for new trial before presenting it to this Court, Jackson is barred from asserting his claim of ineffective assistance of counsel on appeal. Id.

3. Viewed in a light most favorable to the verdict, a rational trier of fact cpuld find all the essential elements of the crime of spiling cocaine, fa controlled substance. OCGA § 16-13-30 (b); Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The undercover agent testified that Jackson sold him cocaine and identified him in court! The transaction was videotaped. Even Jackson admitted that he resembled the individual on the videotape. This evidence was sufficient to support the verdict. In his brief, Jackson in effect seeks a reweighing of the evidence. This we cannot do. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

Judgment affirmed-

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

Decided October 15, 1996.

Stephen G. Scarlett, for appellant.

Glenn Thomas, Jr., District Attorney, George C. Turner, Jr., W. Franklin Aspinwall, Jr., Assistant District Attorneys, for appellee.

       We dismissed Jackson’s initial appeal for failure to file a brief and enumeration of errors. The trial court subsequently granted his motion for out-of-time appeal.

       We observe with disappointment that the State inexplicably neglected to address two of the three enumerations of error in violation of Court of Appeals Rule 27 (b) (2).


text:
    A96A1814.
    WILLIAMS v. THE STATE.
    (477 SE2d 367)
   Judge Harold R. Banke.

Morris Dean Williams was convicted of operating a motor vehicle under the influence of alcohol while having a probationary license (OCGA § 40-5-58), driving under the influence of alcohol (OCGA § 40-6-391), and failure to yield right of way (OCGA § 40-6-74). Williams enumerates three errors.

On appeal, the evidence must be viewed in the light most favorable to the verdict. Rigenstrup v. State, 197 Ga. App. 176, 181 (4) (398 SE2d 25) (1990). Viewed in that manner, the State’s evidence was as follows. Williams, an habitual violator, obtained a probationary license for business purposes pursuant to OCGA § 40-5-58 (e). On a Sunday afternoon, Williams pulled out at an intersection in front of Officer Gene Davis’s marked patrol car. Sandra Edwards, a police dispatcher riding with Davis, testified that Williams did not stop at the intersection and almost caused an accident. Davis followed Williams to a nearby car wash where Williams attempted to avoid him. Davis observed noticeable signs of intoxication and testified that Williams stumbled and had red eyes. Edwards also noticed that Williams staggered and appeared to have been drinking. Assistant Chief Daniel Morey conducted the Intoximeter 3000 test and obtained a .14 result. Williams admitted he had consumed one beer immediately before driving and claimed that his eyes were red because he had been applying Round-up to a customer’s yard. Held:

1. The evidence was sufficient for a rational trier of fact to find the essential elements for each of the crimes for which Williams was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Although Williams contends the State failed to prove that at the time of his arrest he was operating the vehicle for other than business purposes, a violation of probationary license under OCGA § 40-5-58 does not require that the State prove a non-business purpose at the time of the offense; proof of a violation of OCGA § 40-6-391, driving under the influence, is sufficient. OCGA § 40-5-58 (e) (6) (A) (ii).

2. The trial court did not abuse its discretion in admitting over objection, State’s Exhibits 7 through 10. State’s Exhibit 7 consisted of a photostatic copy of logbook entries checking the proper operation of the Intoximeter 3000 machine used to test Williams. Assistant Chief Morey identified the exhibit as a copy of the machine’s certification signed by an agent of the Georgia State Patrol. Notwithstanding Williams’ lack of foundation objection, the record shows sufficient evidentiary foundation for the document’s admission. See OCGA § 24-3-14.

Decided October 15, 1996.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, John A. Warr, Assistant District Attorney, for appellee.

Exhibits 8, 9, and 10 were copies of Georgia Department of Public Safety (“DPS”) standard forms. Although certified copies of records of DPS are admissible in judicial proceedings under OCGA § 24-3-17 (a), it is not clear that the copies tendered were certified copies. Moreover, no proper foundation had been made before admission of the exhibits over objection. Given the overwhelming evidence of Williams’ guilt, even assuming it was an abuse of discretion to admit the exhibits at issue, their admission was harmless error beyond a reasonable doubt. Palmer v. State, 186 Ga. App. 892, 897 (3) (369 SE2d 38) (1988); OCGA § 9-11-61.

3. Williams’ convictions for violation of a probationary license and driving under the influence merged. Although a defendant may be prosecuted for all crimes committed, he may not be convicted of more than one crime if the crimes charged are the same in law or fact. Gunter v. State, 155 Ga. App. 176 (2) (270 SE2d 224) (1980). Under the facts here, the offense of DUI was a lesser included offense in the violation of the probationary license offense and, in fact, elevated that violation to a felony. OCGA § 40-5-58 (e) (6) (A) (ii). Because the same evidence was used to establish both crimes, the offenses merged. Kennedy v. State, 199 Ga. App. 803, 804 (3) (406 SE2d 136) (1991); see Miller v. State, 174 Ga. App. 42, 45 (5) (329 SE2d 252) (1985); OCGA § 16-1-7 (a) (1). Double jeopardy precludes multiple punishments or convictions for crimes arising from the same criminal conduct. State v. Estevez, 232 Ga. 316, 317 (1) (206 SE2d 475) (1974). Accordingly, we reverse only the lesser included offense, Williams’ DUI conviction.

Judgment affirmed in part and reversed in part.

Andrews and Smith, JJ, concur.


text:
    A96A2278.
    HALL v. THE STATE.
    (477 SE2d 364)
   Johnson, Judge.

After his motion to suppress was denied, Fred Hall was found guilty of possession of cocaine with intent to distribute. He appeals the denial of his motion to suppress.

At the hearing on Hall’s motion to suppress, DEA special agent Michael Shedd testified that, on his way to work one morning, he noticed a car traveling more slowly than the other traffic and weaving within its lane on 1-75 near Macon. The car moved out of its lane, into the emergency lane, and back. Concerned about the condition of the driver, Shedd radioed for local police assistance. When he was pulled over, Fred Hall provided police with a copy of a rental agreement between a car rental agency and a third party. Hall was not shown as an authorized driver on the agreement. The agreement specified that ££[n]o persons [are] allowed to drive [the vehicle] other than [the] renter.” Hall told the police officer he did not have a driver’s license, and the officer confirmed that Hall’s license had been suspended. Hall was taken into police custody, and the car was impounded. While in an impound lot, a dog trained to detect narcotics identified the possible presence of narcotics in the car. When police removed the door panels of the car they found approximately ten grams of cocaine, $3,000 in cash, and several cellular telephones.

Although Hall testified at the motion to suppress hearing that he was not weaving or driving slowly, in this appeal he does not contest either the trial court’s conclusion that there was probable cause for the stop or the police impoundment of the car. Rather, Hall asserts the trial court erred in concluding in its order that he had “no possessory or property interest” in the car and therefore lacks standing to complain about the search of the vehicle after it was impounded. The trial court further, concluded that the search of the car, after it was impounded, was a valid search.

1. The issue before us is whether an unlicensed and unauthorized driver of a rental vehicle has a reasonable éxpectation of privacy in the vehicle after he has been placed under arrest and acquiesced in the impoundment of the vehicle. “A defendant may challenge the validity of a search and seizure and claim the benefits of the exclusionary rule only if his own Fourth Amendment rights have been violated. United States v. Salvucci, 448 U. S. 83, 85 (100 SC 2547, 65 LE2d 619) (1980). In Rakas v. Illinois, 439 U. S. 128 (99 SC 421, 58 LE2d 387) (1978), the Supreme Court held that passengers occupying an automobile could not invoke the protections of the Fourth Amendment with respect to a search of the vehicle where they ‘asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized.’ Id. 439 U. S. at 148.” Mecale v. State, 186 Ga. App. 276, 277-278 (367 SE2d 52) (1988). A protected privacy interest then, giving rise to standing to challenge a search of a vehicle, is a person’s possessory or property interest in the vehicle itself or some item found therein. This Court has acknowledged a broad range of circumstances giving rise to a person’s reasonable expectation of privacy in an automobile. Relevant to our inquiry in this case are those cases in which a car has been loaned, or is being driven by someone other than the owner. Clearly, a lessee of a rental car has a reasonable expectation of privacy during the term of the lease because the contractual relationship grants the lessee a property interest in the car for a finite term. See generally Reinhardt v. State, 197 Ga. App. 825, 827 (3) (399 SE2d 729) (1990). And a person who has been loaned a car, while not acquiring any property interest in the car, has a present possessory interest giving rise to a reasonable expectation of privacy. In State v. Combs, 191 Ga. App. 625, 626 (1) (382 SE2d 691) (1989), this Court held that the driver of a car which the passenger borrowed from a third party had standing tó contest the search of the vehicle because he had some possessory interest in the vehicle and, consequently, an expectation of privacy.

Hall argues that he had a reasonable expectation of privacy in the car because it was loaned to him. He contends that his expectation of privacy is not compromised by the existence of a contract between the car rental agency and his friend which did not authorize Hall to drive the vehicle. Even if we accept his argument, Bloodworth v. State, 233 Ga. 589, 590 (2) (212 SE2d 774) (1975), that we should ignore the contract because strict property concepts are not necessarily controlling for Fourth Amendment purposes, and find that Hall had a privacy interest in the vehicle by virtue of it having been loaned to him, that privacy interest extended only for the period of time that the car was in his possession. Hall’s use of the car created a bailment, and we hold that his standing to complain of a search extended only so long as he was in possession of the car.

Our research has not revealed a Georgia case which examines the scope of a bailee’s reasonable expectation of privacy in a vehicle, but other jurisdictions have: In People v. Washington, 413 NE2d 170 (Ill. 1980), an Illinois court held that rights as bailee or occupier of an automobile terminated when the driver left the car unattended and unlocked while he fled the scene of a crime; in State v. Albert, 426 A2d 1370 (Me. 1981), a defendant had no standing to object to a search of his girl friend’s car three weeks after he had returned it to her; in State v. Wisumierski, 317 NW2d 484 (Wis. 1982), an arrested driver agreed to turn the car over to a passenger and police searched it before the passenger could take possession of it, the passenger did not have standing of bailee because delivery had not yet been effected and he did not have requisite dominion and control of the vehicle.

Decided October 15, 1996

Daniel B. Kane, David R. Trainor, for appellant.

Charles H. Weston, District Attorney, Kirby H. Wincey, Jr., Thomas J. Matthews, Assistant District Attorneys, for appellee.

Ultimately, Bloodworth, supra, upon which Hall relies to have us disregard the rental agreement and find that he had a possessory interest in the car, held that a tenant, after abandoning property, has no reasonable expectation of privacy in it, even if a legal right to re-enter exists. In this case, Hall concedes that the police had probable cause to stop him and did not challenge the impoundment of the car at the scene. Cf. State v. Ludvicek, 147 Ga. App. 784 (250 SE2d 503) (1978). Therefore, when the car was impounded without objection, the bailment terminated and any expectation of privacy and, derivatively, standing to complain of a subsequent search were extinguished. Although the trial court did not reach this conclusion by exactly the same means, this Court will affirm a trial court’s denial of a motion to suppress evidence if it is right for any reason. See Hunt v. State, 212 Ga. App. 217, 219 (441 SE2d 514) (1994).

2. Having determined in Division 1 that Hall lacks standing to complain of the search of the vehicle, we need not address his assertions that the search conducted at the impound lot exceeded the scope of an inventory search, and that even if probable cause was established by the dogs “alerting” police of the possible presence of drugs in the vehicle, the subsequent search was illegal because the police did not obtain a warrant.

Judgment affirmed.

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


text:
    A96A0790.
    SIMMONS v. FANELLO.
    (477 SE2d 334)
   Judge Harold R. Banke.

Louis Fanello filed a petition for writ of immediate possession seeking restaurant equipment held by Pat Simmons, who failed to make payments on two notes secured by the property. Simmons counterclaimed, alleging, inter alia, breach of warranty of title and fraudulent representation that the equipment was not subject to outstanding federal, state, and local tax liens. The trial court granted Fanello’s motion for summary judgment on the counterclaims and Simmons appeals.

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 Fanello owned a Dairy Queen restaurant, leased the premises to V.L.L. Corporation (“VLL”) in 1987, and sold VLL the restaurant’s furniture, equipment, and inventory. Fanello accepted a note from VLL and retained a security interest in the furniture, equipment, and inventory. VLL floundered, incurring over $80,000 in tax liabilities which were recorded as liens. After VLL defaulted on the note, Fanello apparently did not foreclose but reclaimed the equipment and obtained a new franchise on the property from Dairy Queen.

Fanello then leased the property and sold the restaurant’s furniture, equipment, and inventory to Simmons. Fanello claimed he replaced all such personalty he had taken back from VLL. Fanello accepted two notes from Simmons and reserved a security interest in the personalty. In the bill of sale, Fanello warranted that the property sold was “free and clear of any and all liens, security agreements, encumbrances, claims, demands, taxes and charges of every kind and character whatsoever.” In conjunction with this transaction, Simmons signed an acknowledgment that although VLL had failed to pay personal property taxes, upon the closing of the restaurant, all the equipment and personal property had been removed. The parties dispute whether the personalty Simmons bought was new or the same that VLL purchased and Fanello reclaimed.

Simmons suffered financial difficulties and sought a buyer whose attorney discovered the recorded tax liens against VLL. After the sale collapsed and Simmons defaulted on the notes, Fanello instituted this action. On the same day Fanello filed the writ, Simmons obtained a bond from the General Accident Insurance Company indemnifying him in the amount of $55,000 for damages if the writ of immediate possession was issued wrongfully. Simmons then filed the counterclaims at issue here. Fanello subsequently sold the equipment to the buyer Simmons found. Held:

1. To avoid summary judgment on the breach of warranty of title claim, Simmons had to show the alleged defect caused the damage claimed. Multivision Northwest v. Jerrold Elecs. Corp., 356 FSupp. 207, 215 (N.D. Ga. 1972); see Williams v. Dienes Apparatus, 200 Ga. App. 205, 207-208 (2) (407 SE2d 408) (1991). The only damage Simmons claimed for breach of warranty was his inability to sell to his buyer. It is undisputed that Simmons made no payments on the notes after October 1993 and was in default when he attempted to sell the personalty in April 1994. Both the note and the security agreement had acceleration clauses which provided that upon default Fanello could opt for payment of the entire obligation. In addition, the restaurant lease provided that Simmons could not sublet or assign without Fanello’s prior written consent. Further, Fanello had a statutory right on default to take possession of the personalty. OCGA § 11-9-503. Because these circumstances demonstrate that Simmons could not have completed the transaction without Fanello’s cooperation, it follows that the alleged breach of warranty of title, even if proven, caused him no damage. Proof of damage is also precluded by the fact that the note specifically required Fanello to indemnify Simmons for any damages resulting from breach of any warranties. In the absence of some proof of this essential element of Simmons’ claim, summary judgment was required. Multivision Northwest, 356 FSupp. at 215; Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991) (a judgment right for any reason must be affirmed). Simmons’ failure to show harm also dooms his appeal. Stringer v. Harkleroad & Hermance, 218 Ga. App. 701, 704 (1) (463 SE2d 152) (1995).

Decided October 2, 1996

Reconsideration denied October 16, 1996

Fortson, Bentley & Griffin, Roy E. Manoll III, Walter W. Hays, Jr., William S. Cowsert, Lawrence S. McLarty, for appellant.

Timmons, Haggard & Carney, John W. Timmons, Jr., W. Glover Housman, Jr., for appellee.

2. Fanello was entitled to summary judgment on Simmons’ fraud claim. To avoid summary judgment, Simmons had to present some evidence of: (1) false representation by Fanello; (2) scienter; (3) intent to induce Simmons to act or refrain from acting; (4) justifiable reliance by Simmons; and (5) damages. Hanlon v. Thornton, 218 Ga. App. 500, 501 (1) (462 SE2d 154) (1995). This cause of action will not lie when the party making the allegations had an equal and ample opportunity to prevent the fraud by exercising due diligence. Hartsfield v. Union City Chrysler-Plymouth, 218 Ga. App. 873, 876 (2) (463 SE2d 713) (1995). It is undisputed that Simmons signed the acknowledgment that the personalty was new without examining it. Such “blind reliance” on Fanello’s representation regarding a matter which could have been easily verified demonstrates a lack of due diligence fatal to the fraud claim. Id.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

       The following entities filed tax liens on the personalty: the Georgia Department of Labor recorded six, the United States recorded three, and the Georgia Department of Revenue recorded two. City, state, and county ad valorem taxes for 1992 and previous years were also recorded.


author: McMURRAY, Presiding Judge.

text:
    A96A0876.
    SCOTT v. HOUSING AUTHORITY OF THE CITY OF GLENNVILLE.
    (477 SE2d 325)
   McMURRAY, Presiding Judge.

Plaintiff Scott was injured by a gunshot just outside her residence in a public housing project operated by defendant Housing Authority of the City of Glennville. When the gun fight erupted between two young men, plaintiff exited the security of her home in order to secure the safety of one of her children and was hit by a stray bullet during the excursion.

Subsequently, plaintiff filed this action alleging that, because of previous incidents in the housing complex, defendant was on notice of the dangerous conditions which caused her injury and negligent in failing to take adequate steps to provide for the safety of the residents of the complex. Defendant’s motion for summary judgment was granted, and plaintiff appeals. Held:

It is well established that the landlord is not an insurer of the tenant’s safety, but “is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. [Cit.] If the proprietor has reason to anticipate a criminal act, he or she then has a ‘duty to exercise ordinary care to guard against injury from dangerous characters.’ [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474). But, “without foreseeability that a criminal act will occur, no duty on the part of the proprietor to exercise ordinary care to prevent that act arises.” Days Inns of America v. Matt, 265 Ga. 235, 236 (454 SE2d 507).

Plaintiff has attempted to establish defendant’s duty to act to protect her by showing the occurrence of prior substantially similar incidents on the premises. Savannah College &c. v. Roe, 261 Ga. 764 (1), 765 (409 SE2d 848); McCoy v. Gay, 165 Ga. App. 590 (302 SE2d 130). In her affidavits, plaintiff has related that a large number of incidents have occurred at the housing complex involving violence, frequently arising from drug trafficking. Specific information is provided for some of the incidents, such as the identity of persons involved, dates, and descriptions of the nature of the incident.

But, for a variety of reasons, much of plaintiff’s evidence concerning prior incidents lacks probative value or otherwise fails to support her claim. Many of plaintiff’s assertions are clearly based on hearsay and thus lack probative value. Citadel Corp. v. All-South Subcontractors, 217 Ga. App. 736, 737 (1), 738 (458 SE2d 711).

As to other incidents, plaintiff has not provided information sufficient to establish that the prior incident is substantially similar to that in which she was injured. Plaintiff’s evidence is that the gun fight which caused her injuries arose from a drug transaction. One prior incident upon which plaintiff relies involves tenant Eloise Wyman, who plaintiff asserts was evicted less than a year prior to plaintiffs injury because of a “shooting incident.” According to the affidavit of defendant’s executive director, there was no such shooting incident and Wyman was not evicted, but instead was transferred at her own request to another housing complex where she continued to reside. When subsequently deposed, plaintiff testified that the prior shooting occurred when Wyman and another woman had been drinking and Wyman had gotten “mad.” Plaintiff testified that she “was the one that called the police” and that she had reported the incident to defendant. While we are compelled on review of the grant of summary judgment to accept plaintiff’s version of the circumstances, we do not find this apparent domestic dispute to be substantially similar to the incident in which plaintiff was injured.

Some evidence of prior incidents was developed from police reports, and plaintiff’s second affidavit lists 13 such incidents. However, defendant has denied any knowledge of many of these incidents. While plaintiff’s affidavit contains a statement that defendant had knowledge of all of the specific incidents appearing in the police reports, this conclusion is expressly based on an assumption that defendant had such knowledge because the incidents were investigated by the police. But, in view of the decision in Sun Trust Banks v. Killebrew, 266 Ga. 109 (464 SE2d 207), such an inference as drawn by plaintiff is not authorized. Furthermore, when deposed as to these incidents, plaintiff acknowledged that she had not reported them to defendant herself. And, to the extent that plaintiff has provided hearsay testimony concerning notice to defendant from third parties, such lacks probative value. Of the incidents in the police reports, defendant had knowledge of three, a domestic dispute, a theft by taking, and a trespass. None of the incidents was substantially similar to the incident in which plaintiff was injured.

A number of the remaining issues surround Wilcox, one of the two men involved in the gun fight. One of the police incident reports related to this person’s arrest for discharging a firearm near a public highway and carrying a pistol without a license. Defendant was not aware of this incident. But defendant was aware of reports that Wilcox had been displaying a firearm at the housing complex. A letter was sent to Wilcox’s mother and a conference was had with her at which she was threatened with eviction if such conduct continued. Following the conference there were no further complaints concerning Wilcox possessing a gun. Plaintiff testified that she had reported Wilcox to the defendant for displaying the gun and threatening to shoot people, but again this testimony is clearly shown to be hearsay based on statements made to plaintiff by her son. Therefore, there is no probative evidence that any incident of displaying a weapon and threatening to shoot someone actually occurred apart from the incident in the police report of which defendant had no knowledge..

Decided October 1, 1996

Reconsideration denied October 16, 1996

Richard Phillips, for appellant.

Brennan & Wasden, Wiley A. Wasden III, James V. Painter, Emory B. Thompson, for appellee.

While questions as to whether prior incidents are substantially similar are not trivial, we do not hesitate to state that the incidents of which defendant may have had knowledge were not substantially similar to the gun battle which caused plaintiffs injury. In prior cases we have rejected the suggestions that the prior incident must be identical or that some type of “one free bite” analysis is applicable. The question is whether the prior incidents should have put an ordinarily prudent person on notice that the housing complex tenants were facing increased risk. Matt v. Days Inns of America, 212 Ga. App. 792, 795 (443 SE2d 290), aff’d, Days Inns of America v. Matt, 265 Ga. 235, supra. Since the uncontroverted evidence demands a negative conclusion, the superior court did not err in granting defendant’s motion for summary judgment.

Judgment affirmed.

Ruffin, J, and Senior Appellate Judge Harold R. Banke concur.