text:
    A99A1219.
    GRAY et al. v. THE STATE.
    (523 SE2d 626)
   Barnes, Judge.

In a joint trial, Saleen Gray and Bobby Gray were convicted of armed robbery and multiple counts of false imprisonment. On appeal, the Grays contest the admission of the incriminating remarks they made to the trial court during an arraignment hearing and also the effectiveness of their counsel at trial. For the reasons that follow, we affirm.

When viewed in the light most favorable to the verdict, the evidence showed that just before 7:00 a.m., brothers Bobby and Saleen Gray robbed a Piccadilly Cafeteria. During the robbery, Bobby Gray pointed a gun at the manager’s head, cocked it, and threatened, “This is your last chance to open up the safe.” In the meantime, Saleen Gray herded the other employees together and forced them to lie on the floor. As soon as the manager saw the Grays flee on the surveillance monitor, he contacted the police. The cafeteria was located near the DeKalb County Police South Precinct in South DeKalb Mall, and the robbers’ departure coincided with a precinct shift change when numerous officers were in the area. Officer G. Peterson heard the lookout and spotted the Grays running. When the Grays split up, Peterson and several other officers successfully pursued Bobby Gray. One officer managed to grab a loaded handgun from him. In custody later, Bobby said, “I should have locked [them] up in the freezer.”

Meanwhile, other officers caught Saleen Gray in front of the mall. Gray’s backpack held the cafeteria’s blue bank bag, including deposit slips for the date of the robbery and about $11,000 in cash. After being handcuffed, Saleen Gray declared, “He made me do it.”

The victims identified the Grays’ clothing, which was also identifiable in still photographs and on a surveillance tape. The victims also recognized the gun, bank bag, money, and deposit slips found in Saleen Gray’s backpack.

1. The Grays assert that the trial court erred in admitting incriminating statements made during an arraignment hearing. Before the arraignment calendar call, the trial court explained to everyone that the purpose of the hearing was for the defendants to learn about the charges against them and enter a plea of guilty or not guilty. The court then said, “If you’re thinking about entering a plea of guilty, you should ask for a pre-trial hearing. If you enter a plea of guilty you must first understand the charge or charges against you. If you have any questions about them, ask whatever questions you have.” When the trial court called the case against the Grays, the State responded first, outlining its case and its intention to seek 15-year sentences. Defense counsel responded with information about their criminal records and then advised the court that the defendants’ mother wanted to address the court. After Mrs. Gray informed the trial court that she knew her sons had committed the crimes and explained that financial concerns for their family had motivated them to break the law, defense counsel conferred with his clients. Following this conference, both men admitted their participation in the crimes but denied that Bobby Gray pointed his gun at anyone during the robbery. The court then advised the defendants that it was inclined to accept the State’s sentencing recommendation, and the defendants entered a plea of not guilty after again conferring with their counsel.

At trial, the court denied the Grays’ motions to suppress these statements, finding that the statements were made voluntarily at defense counsel’s request, without hope of benefit induced by anyone else. The court then admitted into evidence a transcript of the Grays’ in-court statements, which the prosecuting attorney read to the jury.

We are troubled by the admission of these inculpatory statements at the Grays’ trial. OCGA § 24-3-50 provides that, to be admissible, a confession “must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” Therefore, confessions made during plea negotiations with the prosecutor are not admissible, because they are made in the hope that the defendant will get a better deal than he would otherwise. Corthran v. State, 268 Ga. 443 (491 SE2d 66) (1997). On the other hand, confessions made as a tactical decision are admissible when the hope or fear is a product of the defendant’s own mind rather than the result of inducement by others. Williams v. State, 250 Ga. 553, 559 (1) (300 SE2d 301) (1983).

Unlike the case before us, the defense counsel in Williams testified during a Jackson-Denno hearing that he told the defendant the prosecutor was offering no promises, inducements, “hopes of reward or benefit or anything else.” Id. We do not know from the record what the Grays’ trial counsel told them during the hearing when these statements were made, and post-trial counsel failed to raise this argument at the ineffective assistance hearing.

However, pretermitting whether the trial court erred in admitting these statements, their admission was harmless in light of the prosecution’s otherwise overwhelming evidence of the Grays’ guilt. Vaughn v. State, 248 Ga. 127, 131 (2) (281 SE2d 594) (1981). The Grays made spontaneous inculpatory remarks after they were caught with the cafeteria’s deposit slips and cash almost immediately after the robbery.

2. The Grays contend their trial lawyers had a conflict of interest and were ineffective per se because they were both affiliated with the same public defenders’ office. The Grays assert that a Supreme Court of Georgia formal advisory opinion supports their contention that their lawyers were per se ineffective. However, the opinion advises only that, if a lawyer must decline multiple representation due to a conflict, then no attorney listed as “of counsel” on the lawyer’s letterhead may accept or continue that employment. Formal Advisory Opinion No. 98-4. The opinion does not propose that having lawyers from the same office represent co-defendants constitutes ineffective assistance of counsel per se, and we decline to create such a rule here.

The true test of whether trial counsel was ineffective due to a conflict of interest is whether an actual conflict adversely affected his performance.

Until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Where the contention is only the possibility of conflict, this is insufficient to impugn a criminal conviction.

Decided October 19, 1999

Reconsideration denied November 8, 1999

Elliott A. Shoenthal, for appellants.

J. Tom Morgan, District Attorney, Robert M. Coker, Aileen R. Page, Assistant District Attorneys, for appellee.

(Citations and punctuation omitted.) Barnes v. State, 160 Ga. App. 232-233 (286 SE2d 519) (1981). Because they relied solely on their ineffective per se argument, the Grays have not argued or shown any actual conflict of interest, much less any resulting adverse effect. Without such a showing, we find no error in the trial court’s conclusion that the Grays’ lawyers were not ineffective.

3. Finally, the Grays assert that their trial lawyers were ineffective for allowing them to make incriminating statements during pretrial proceedings. As discussed earlier, however, they did not raise that argument at the hearing on their ineffective assistance claim. Because any such allegation not raised at the earliest practical moment is waived, we will not consider it here. Hayes v. State, 262 Ga. 881, 882 (2) (426 SE2d 886) (1993).

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A1843.
    WHITTEN et al. v. RICHARDS.
    (523 SE2d 906)
   Eldridge, Judge.

Plaintiffs E. L. Whitten and P. Y. Whitten, husband and wife, appeal from the trial court’s grant of summary judgment to defendant Edward L. Richards. In their sole enumeration of error, the Whit-tens allege that the trial court erred in finding that they failed to use due diligence in perfecting service on Richards and that their claims were barred by the statute of limitation.

This case arises from an automobile collision which occurred on November 26, 1994. On December 12, 1997, the Whittens filed this suit against Richards. Each of the plaintiffs requested damages for personal injuries he or she received as a result of the collision, attorney fees, and loss of consortium of the other spouse. Even though the complaint in this case was filed more than two years after the collision and after the statute of limitation had run on appellants’ personal injury actions, it was filed within six months of appellants’ dismissal of their previously filed suit, pursuant to OCGA § 9-2-61.

The Whittens attempted to serve Richards under the Nonresident Motorist Act, OCGA § 40-12-2, by serving the Secretary of State and delivering a copy of the summons and complaint by certified mail to the defendant’s daughter’s residence at 949 Elizabeth Street, Pittsburgh, Pennsylvania. On January 15, 1998, Richards filed a timely answer and raised the defenses of insufficiency of process and insufficiency of service of process.

On July 29,1998, Richards filed a motion for summary judgment alleging that, at the time of the collision, he was a Georgia resident; that service under OCGA § 40-12-2, the Nonresident Motorist Act, was not valid; and that the suit was barred by the statute of limitation. The WTiittens effected personal service on Richards at 949 Elizabeth Street, Pittsburgh, Pennsylvania, on September 1, 1998, which was more than eight months after this action was filed.

1. With regard to the Whittens’ personal injury claims, the applicable period of limitation is two years. OCGA § 9-3-33. However, this case was filed as a renewal action within six months after the dismissal of a previous action. OCGA § 9-2-61.

[A] renewal suit is an action de novo. As such, the procedural prerequisites of filing the renewed complaint and service of process must be met anew. . . . Defenses which are raised in the renewal action will be adjudicated only with respect to that which occurred subsequent to refiling.

(Citations, punctuation and emphasis omitted.) Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994).

(a) The first issue that must be decided by this Court is whether service under the Georgia Nonresident Motorist Act was valid. “The defendant’s residence at the time the cause of action arose governs [his] amenability to service of a suit under the Nonresident Motorist Act, OCGA § 40-12-1 et seq.” Brown v. Meyer, 222 Ga. App. 133 (473 SE2d 521) (1996). In support of his motion for summary judgment, Richards averred that from late 1992 until October 1994, while maintaining his permanent residence in Glynn County, Georgia, he temporarily lived with various relatives in both Erie and Pittsburgh, Pennsylvania, for the purpose of caring for his ailing wife who was hospitalized in the area. Richards further averred that, after his wife’s death, he returned to his Glynn County residence in October 1994, with the intention of permanently residing there and that at the time of the subject collision, November 26, 1994, he resided at 507/508 Marsh Villa Road on St. Simons Island, Georgia. In his affidavit, Richards went on to state that in the fall of 1995, approximately one year after the collision, his health deteriorated while visiting his children in Pennsylvania and that he was unable to return home.

This evidence is uncontroverted by the Whittens. In response to the motion for summary judgment, the Whittens put up evidence that, at the time of the subject collision, Richards was driving with a Pennsylvania license; that his vehicle had a Pennsylvania tag; and that at his wife’s death on April 19, 1994, he listed a Pennsylvania address on her death certificate. Such evidence, at most, shows that Richards may have had more than one residence at the time of the subject collision, but does not show that he was a nonresident at the time of service. When an individual has more than one residence and “one residence is in Georgia, he is not a nonresident for purposes of the Nonresident [Motorist] Act.” (Citations and punctuation omitted.) Phillips v. Jackson, 233 Ga. App. 875, 877 (506 SE2d 158) (1998). Nor is a former Georgia resident who moves out of state after the action arose a nonresident under the Nonresident Motorist Act. See Bailey v. Hall, 199 Ga. App. 602 (405 SE2d 579) (1991). Therefore, service on Richards under the Nonresident Motorist Act was not valid.

(b) Since personal service was not perfected within the six-month renewal period, the Whittens had the burden of showing they acted in a reasonable and diligent manner in attempting to ensure that proper service was made on Richards between January 15, 1998, when Richards raised the defenses of insufficiency of process and insufficiency of service of process, and September 1,1998, when Richards was personally served.

Where service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible. A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be. The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.

Decided October 21, 1999

Reconsiderations denied November 2, 1999 and November 8, 1999

Walter D. Adams, for appellants.

Whelchel, Brown, Readdick & Bumgartner, Richard A. Brown, Jr., Bradley J. Watkins, for appellee.

(Citations and punctuation omitted.) Walker v. Ga. Farm &c. Ins. Co., 207 Ga. App. 874, 875 (429 SE2d 289) (1993).

It is uncontroverted that the Whittens were aware of Richards’ out-of-state address in December 1997, when they attempted service on Richards pursuant to the Nonresident Motorist Act. The Whit-tens’ counsel filed an affidavit in which he averred that on January 23, 1998, he wrote (not mailed) the Sheriff of Allegheny County, Pennsylvania, requesting personal service be made on Richards and that he made numerous telephone calls concerning the status of service. However, Richards’ submitted the affidavit of Sylvia Butler, a clerk at the Allegheny County Sheriff’s Department, in which Butler averred that the request for personal service by the Whittens’ counsel, which was dated January 23, 1998, was not received by the Sheriff’s office until August 19, 1998, and was postmarked August 15, 1998, which was more than eight months after this renewal action was filed. Accordingly, we find no abuse of the trial court’s discretion in finding that the Whittens failed to exercise due diligence in perfecting service on Richards as to their personal injury actions. There was no error in the trial court granting summary judgment to Richards on the Whittens’ claims for personal injury, because the statute of limitation attached prior to their perfecting service, so that laches prevented a relation back to the time of filing.

2. The statute of limitation on a loss of consortium claim is four years. OCGA § 9-3-33. The Whittens’ loss of consortium claims were filed and properly served within the four-year statute of limitation applicable to these claims. The running of limitation for a personal injury claim does not bar a derivative loss of consortium claim. Heis v. Young, 226 Ga. App. 739 (487 SE2d 403) (1997); Elwell v. Haney, 169 Ga. App. 481, 482 (313 SE2d 499) (1984). Therefore, the trial court erred in granting summary judgment to Richards on the Whit-tens’ loss of consortium claims.

Judgment affirmed in part and reversed in part.

Blackburn, P. J, and Barnes, J., concur.

       The loss of consortium claims were added in an amended complaint filed subsequent to Richards’ motion for summary judgment, but more than six months prior to the hearing and order issued on the motion. Although the original motion did not address the subsequent loss of consortium claims, the loss of consortium claims were raised by Richards in his reply brief in support of his motion for summary judgment five months prior to the hearing and order issued on the motion, and it is apparent that the trial court, in granting a total summary judgment in favor of Richards, considered such claims.


author: Miller, Judge.

text:
    A99A1243.
    JONES v. THE STATE.
    (524 SE2d 773)
   Miller, Judge.

A Hall County jury convicted Benny Lee Jones of armed robbery, aggravated assault, and robbery by force. On appeal Jones asserts three enumerations of error: (1) the trial court erred in denying his request to dismiss the jury panel; (2) the trial court erred in admitting the hearsay statements of a witness; and (3) the trial court erred in refusing to declare a mistrial. We affirm.

1. Jones argues that the jury panel should have been dismissed after they were greeted at the door to the jury room by the Sheriff of Hall County. The Sheriff of Hall County has appointed himself as the “unofficial greeter” of citizens as they arrive at the courthouse to serve jury duty. He shakes their hands, asks how they are doing, and speaks with them regarding other pleasantries. Jones objected to the Sheriff’s actions and moved to have the entire venire dismissed due to a constitutional violation of his right to a fair and impartial trial. Jones contends that the Sheriff’s actions tainted the jury by influencing them to look favorably on law enforcement persons.

The standard of appellate review for issues regarding jury panel dismissal is whether the trial court abused its discretion. House v. State held that a jury was not tainted by a greeting from the Hall County Sheriff, which amounts to “pure politicking.” Moreover, here the State examined the jurors with regards to the Sheriff’s greeting and asked the jurors whether the greeting affected their ability to be fair and impartial jurors in the case. The panel responded negatively. The trial court did not abuse its discretion by refusing to dismiss the panel.

2. Jones contends that the trial court erred in admitting the out-of-court statements of a witness, to a police investigator, under the “necessity” exception to the hearsay rule. Testimony which otherwise is inadmissible hearsay may be admitted out of necessity. To qualify as an exception to the hearsay rule, there must be a necessity for the exception and a guaranty of the testimony’s trustworthiness.

In order to satisfy the necessity prong, a party must show that the witness is unavailable to testify and that it made a good faith effort to locate the declarant and secure his presence at trial. Additionally, the proponent of the evidence must show that the statement is relevant to a material fact and that the statement is more probative on the material fact than other evidence that may be offered.

Here the State learned, prior to the trial, that Santacruz was unavailable as a witness because he had left the country. The State moved to allow Investigator Dalton to testify regarding Santacruz’s statements under the necessity exception to the hearsay rule. Dalton testified that Santacruz stated that a man exited a pickup truck and assaulted him by pushing, kicking, and hitting him. Afterwards the man took his wallet, watch, medallion, money, and identification card. Santacruz later identified Jones from a photo lineup and stated that the items police recovered from Jones were his possessions.

The State showed that investigators were unable to locate Santacruz after diligent and extensive efforts. Moreover, Santacruz’s family indicated that he had returned to Mexico. Thus, it is clear that Santacruz was unavailable to testify and that the State made a good faith effort to locate him. The State also established that Santacruz’s statements to Investigator Dalton were relevant to a material fact, the robbery by force. The most probative evidence available to the State was Santacruz’s statement to Investigator Dalton. Therefore, the trial court’s finding admitting the hearsay statements as necessary was not error.

The trustworthiness of Santacruz’s statements is demonstrated by the following: (a) Santacruz did not recant or change his statements to the investigator; (b) the statements were given in the course of an official investigation; and (c) the statements were corroborated by Jones himself and co-defendant Jimmy Barton. They testified that Jones hit Santacruz in the face and took his money and belongings. As such, Santacruz’s statements were trustworthy and the trial court’s admission of the statements under the necessity exception to the hearsay rule was not clearly erroneous.

3. Jones contends that the trial judge erred in failing to grant a mistrial as a result of a conversation between a bailiff and a juror. During a break in the trial, Jones noticed that a bailiff and a juror were engaged in conversation. Jones reported the conversation to the court, and the judge examined the bailiff regarding the conversation. The bailiff denied discussing the case with the juror and stated that she and the juror discussed only the juror’s herb shop. Jones moved for a mistrial based on the contact between the bailiff and the juror. The trial judge postponed ruling on the request and stated that if desired counsel could discuss it further at a later time.

Decided November 8, 1999.

Neil A. Smith, for appellant.

Lydia J. Sartain, District Attorney, Jason J. Deal, Assistant District Attorney, for appellee.

The record does not indicate that Jones renewed his motion for mistrial. In fact, the judge specifically asked if there was anything else the parties wished to discuss before the jury began deliberations, and Jones did not respond. Jones’ failure to call the court’s attention to the matter or to obtain a definite and final ruling on his motion for mistrial was a waiver of the motion and precludes review on appeal.

Judgment affirmed.

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

        Nelson v. State, 222 Ga. App. 443, 444 (2) (474 SE2d 304) (1996).

       237 Ga. App. 504, 506 (2) (a) (515 SE2d 652) (1999).

       OCGA § 24-3-1 (b).

        Higgs v. State, 256 Ga. 606, 607 (3) (351 SE2d 448) (1987).

        Holmes v. State, 271 Ga. 138, 139 (2) (516 SE2d 61) (1999); see Ohio v. Roberts, 448 U. S. 56, 74 (IV) (A) (100 SC 2531, 65 LE2d 597) (1980).

        Chapel v. State, 270 Ga. 151, 155 (4) (510 SE2d 802) (1998).

       OCGA § 24-3-1 (b).

        Sorrow v. State, 234 Ga. App. 357, 358 (1) (b) (505 SE2d 842) (1998).

        Chapel, supra, 270 Ga. at 155.

        Adams v. State, 191 Ga. App. 16, 18 (2) (381 SE2d 69) (1989) (unavailable witness statements can be used if not recanted, given in the course of an official investigation, and if corroborated).

       Id. at 18.

        Sorrow, supra, 234 Ga. App. at 358.

        Hamby v. State, 243 Ga. 339, 341 (4) (253 SE2d 759) (1979).


text:
    A99A1363.
    WOOTEN v. THE STATE.
    (524 SE2d 776)
   Miller, Judge.

Samuel Wooten was tried and convicted of robbery by sudden snatching (a felony) and giving a false name to a law enforcement officer as well as driving while his license was suspended (both misdemeanors). Following the denial of his motion for new trial, he brings this appeal asserting several enumerations of error.

1. Wooten claims that the evidence was insufficient to sustain the convictions. The standard of review is whether, in reviewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find Wooten guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The alleged accomplice, Christopher Chambers, pled guilty to robbery by sudden snatching and testified that he and Wooten agreed “to find a purse to snatch and run” and that Wooten was to drop him off and pick him up at the other end of a parking lot. Chambers further testified that after he snatched a woman’s purse, he was chased and caught by several citizens and held until police arrived.

A police officer identified Wooten as the man who approached him at the scene and complained of being struck by one of the citizens detaining Chambers. The officer then saw Wooten leave the scene in a red car. Three citizens on the scene testified that Chambers attempted to get into a red car as he was being chased and that a man on the scene demanded that Chambers be released, but none could identify Wooten.

The same officer testified that Wooten gave him a driver’s license bearing someone else’s name and the wrong date of birth. After obtaining a printout of Wooten’s driving history, police determined his correct date of birth and that his license was suspended.

The evidence sufficed to sustain the convictions. Jackson, supra.

2. Misdemeanor Convictions. Wooten claims there was insufficient evidence to show that the misdemeanors were charged in the indictment within two years of the alleged crimes. He also claims he was denied effective assistance of counsel.

(a) The alleged misdemeanors occurred on July 25, 1995. The accusation charging Wooten with the misdemeanors was filed within two years on July 10, 1997. An indictment, filed September 8, 1997, included the same misdemeanor charges and a felony charge. In light of the superseding indictment, the State then dismissed the accusation. Wooten argues that the statute of limitation had run on the misdemeanor charges since the indictment was filed more than two years after the commission of the crimes. See OCGA § 17-3-1.

The issue is whether a superseding indictment, filed during the pendency of a timely original accusation and after the statute of limitation has run, is barred. Although this issue is one of first impression in Georgia, we have found considerable guidance from two other jurisdictions. They have held that a superseding indictment brought after the statute of limitation has rim is valid as long as (i) the original indictment is still pending; (ii) the original indictment was timely; and (iii) the superseding indictment does not broaden or substantially amend the original charges. United States v. Italiano, 894 F2d 1280, 1282 (11th Cir. 1990); United States v. Phillips, 843 F2d 438, 442, n. 2 (11th Cir. 1988); United States v. Elliott, 849 F2d 554, 561 (10) (11th Cir. 1988); Benitez v. State, 904 P2d 1036, 1037 (Nev. 1995).

We find these cases persuasive and hold the rule should apply to accusations as well since Georgia law allows misdemeanor charges to be brought by either accusation or indictment. See OCGA § 17-7-71 (a). The original accusation was timely and still pending when the indictment was filed after the statute of limitation had expired. The indictment only duplicated the original misdemeanor charges and did not amend or broaden them. Although the indictment included a felony charge, such did not amend or broaden the misdemeanor charges. See United States v. Edwards, 777 F2d 644, 649 (11th Cir. 1985). The felony indictment was within the applicable statute of limitation period of four years. OCGA § 17-3-1 (c). Accordingly, we hold that the misdemeanor charges are not barred by the statute of limitation.

(b) Wooten asserts several grounds for ineffective assistance of counsel. He claims that trial counsel (1) failed to attack the indictment on the grounds of the statute of limitation, (2) failed to request a jury charge on the statute of limitation and to object to the court not giving the charge, and' (3) failed to move for a directed verdict of acquittal on the misdemeanor charges. But these grounds were not raised at the hearing on the motion for new trial. The failure of post-judgment counsel to raise a particular ground for ineffective assistance at the new trial hearing waives appellate review. Williams v. State, 239 Ga. App. 598, 599 (2) (521 SE2d 650) (1999); Mackey v. State, 235 Ga. App. 209 (1) (509 SE2d 68) (1998).

3. Felony Conviction.

(a) Wooten contends that the trial court testified and bolstered the credibility of Chambers before the jury in violation of OCGA § 17-8-57. The dialogue of the court, counsel, and witness was as follows:

Defense Counsel: I just want to make sure this is clear, the defense counsel has asked if you lied the day you pleaded. Do you remember the day you pled to the charges here?
Chambers: Yes, sir.
Defense Counsel: Did anybody ask you who was with you?
Chambers: No, sir.
Defense Counsel: Did anybody ask you if Samuel Lee Wooten was with you?
Chambers: No, sir.
Defense Counsel: They just asked you if you committed the crime you were charged with?
Chambers: Yes, sir.
Defense Counsel: Okay.
The Court: [Defense counsel,] that’s not part of the plea. He would not have been asked.

Contrary to Wooten’s claim, the court was simply admonishing defense counsel for questioning the witness about what he was asked in his plea. This does not rise to the level of an expression or intimation of opinion by the judge as to matters proved or guilt of the accused.

(b) Wooten claims that the trial court erred in failing to charge the jury that a means of impeachment is to show that the witness has been convicted of a felony. The court charged the jury that

[a] witness may be impeached by disproving the facts to which the witness testifies, proof of general bad character, proof that the witness has been convicted of a crime of moral turpitude, or proof of contradictory statements previously made by the witnesses.

Trial counsel did not submit any requests to charge, and where no request has been made, the failure to give a charge is not error. Willingham v. State, 235 Ga. App. 475, 476 (2) (509 SE2d 744) (1998). Moreover,

[wjhere 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. [Cits.]

(Citations and punctuation omitted.) Callaway v. State, 230 Ga. App. 369, 370 (2) (496 SE2d 349) (1998). Here the court fully charged the jury on impeachment of a witness.

(c) Wooten argues that the court erred in failing to charge the jury that an accomplice’s testimony alone without corroboration is insufficient to support a conviction. See OCGA § 24-4-8. “The corroboration must be independent of the accomplice’s testimony[,] and it must connect the defendant to the crime or lead to the inference that he is guilty.” House v. State, 237 Ga. App. 504-505 (1) (515 SE2d 652) (1999). Because trial counsel did not request this charge and because the State did not rely wholly on the accomplice’s testimony, the court was not required to give the charge. Harvey v. State, 205 Ga. App. 863, 864 (2) (424 SE2d 18) (1992); Broadnax v. State, 161 Ga. App. 42, 43 (1) (289 SE2d 7) (1982).

Nor was the jury charge warranted. “Slight evidence of a defendant’s identity and participation from an extraneous source is all that is needed to corroborate the accomplice’s testimony.” (Citations and punctuation omitted.) Telfair v. State, 234 Ga. App. 444, 445 (507 SE2d 195) (1998). The police officer’s testimony that it was Wooten who gave him the false name and birth date and the other witnesses’ testimony that a man (driving the same color car as described by the police officer) attempted to free Chambers are enough to satisfy this requirement. For the same reasons, Wooten’s ineffective assistance claim on this ground is also without merit.

(d) Wooten makes several claims of ineffective assistance of counsel relative to his felony conviction. Wooten must show (1) that counsel’s performance was deficient and (2) that this deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s result would have been different but for the deficiency. Strickland v. Washington, 466 U. S. 688 (104 SC 2052, 80 LE2d 674) (1984); Etheridge v. State, 228 Ga. App. 788, 789 (2) (492 SE2d 755) (1997). The trial court’s determination that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous. Upshaw v. State, 215 Ga. App. 529, 530 (3) (451 SE2d 125) (1994).

(i) Wooten raised as a ground for ineffective assistance that he was not advised by trial counsel of his right to testify. Trial counsel testified at the new trial hearing that he normally advises his clients of their right to testify. He further testified that Wooten was “hot headed” and not very articulate and that because of Wooten’s temperament, the prosecutor “would very likely trip him up.” He remembered advising Wooten not to testify because he felt Wooten “would blurt out something to open the door to his priors.” At a minimum, the advice inherently contained the message that Wooten had a right to testify. Counsel’s advice against putting Wooten on the stand was tactical and does not reach the level of deficient performance. Accord Quinn v. State, 222 Ga. App. 423, 424 (2) (a) (474 SE2d 297) (1996).

(ii) Wooten also contends he was denied effective assistance because trial counsel (1) opened the door for Chambers to testify that Wooten was involved in another purse snatching, (2) failed to enter a certified copy of Chambers’ conviction into evidence to show the light sentence he received, (3) failed to object to the trial court’s statement concerning Chambers’ plea, and (4) failed to seek an appropriate jury charge on the sole defense of the defendant.

These actions and inactions of trial counsel were either proper or attributable to trial tactics and strategy and, thus, do not support the contention that the conviction should be reversed. For example, trial counsel testified at the new trial hearing that he wanted to show that Chambers was not credible even though this questioning opened the door to Chambers implicating Wooten in another purse snatching. As shown above, the court did not improperly comment on the questioning of Chambers by defense counsel. And failure to request a jury charge on accomplice testimony is not error as there was other corroborating information as explained above. Moreover, Wooten has not satisfied the second prong of the Strickland test in that he has not shown how the outcome of the trial would have been different but for the performance of trial counsel. Wooten was “entitled to a fair trial but not a perfect one, for there are no perfect trials.” (Citations and punctuation omitted.) Clark v. State, 239 Ga. App. 245, 248 (520 SE2d 245) (1999). The trial court did not clearly err in finding Wooten received effective assistance of counsel.

Judgment affirmed.

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

Decided November 8, 1999

Paul S. Weiner, for appellant.

William T. McBroom, District Attorney, Marion T. Woodward, Assistant District Attorney, for appellee.


text:
    A99A1492.
    SANDERS v. MOORE.
    (524 SE2d 780)
   Miller, Judge.

Corey Sanders and Edward Moore were each traveling down onedane dirt county roads, when their vehicles collided at an intersection. In Sanders’ suit for damages arising from the collision, the jury returned a verdict in favor of Moore. Sanders appeals and enumerates as error the denial of his motion for a directed verdict on liability and three errors in the jury charge. We affirm.

1. The standard of appellate review of a trial court’s denial of a motion for a directed verdict is the “any evidence” standard. On appeal, we must construe the evidence most strongly to support the jury verdict; likewise in considering a ruling on a directed verdict, the evidence must be construed in favor of the party opposing the motion.

Viewed in this light, the evidence was unclear whether Sanders had the right of way at the intersection. But even assuming he did, a party having the right of way and the alleged right to assume the absence of negligence by others cannot drive blindly or recklessly across an intersection without regard for the conditions or consequences. “It is his own duty to exercise ordinary care in being alert to observe vehicles approaching the crossing, and to exercise ordinary care in the control, speed, and movements of his car to avoid a collision. . . .” The view of the intersection was obscured by trees and shrubs such that an approaching driver would have difficulty in seeing another vehicle. Sanders testified that as he approached the intersection, he was unable to stop when Moore pulled out in front of him.

From this evidence a jury could infer that Sanders was equally if not more negligent. First, because trees and shrubs obscured the intersection, a jury might have decided that Sanders should have decreased his speed as he approached the intersection. Second, Sanders admitted that he was unable to stop as he approached Moore’s vehicle. Even if Sanders had the right of way entering the intersection, the jury may have found that he failed to exercise ordinary care for his own safety. Because Sanders approached an obscured intersection at a speed that did not allow him to stop, a jury could have inferred that Sanders was equally negligent. This could have resulted in a defendant’s verdict.

But Sanders contends that because Moore pled guilty to the criminal charge of failing to yield right of way, the evidence demanded a verdict in his favor on the issue of liability. Although a guilty plea is an admission against interest and prima facie evidence of the facts admitted, it is not conclusive that Moore was negligent and is only a circumstance to be considered with other evidence in a civil action for damages. Moreover, evidence showed that Sanders’ injuries may have arisen from a later accident, that no medical professional could discern any injuries to Sanders on the date of the collision, and that even a month later a physician could not find a basis for Sanders’ subjective complaints. This evidence could support a finding of no proximate cause and also sustain a defendant’s verdict.

The denial of Sanders’ motion for a directed verdict was not error.

2. Sanders also argues that the court erred by charging the jury on comparative negligence, avoidance of consequences, and sudden emergency. Sanders objected to the charges at trial on the ground that no evidence supported the charges.

Where there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to that issue. To justify a charge on a given subject, it is not necessary that there be direct evidence on the point; it is enough if there is something from which a jury could infer a conclusion regarding the subject.

Because there was evidence from which the jury could have inferred that Sanders was equally negligent, the charges on comparative negligence and avoidance of consequences were justified. There was also evidence that Sanders was confronted with a sudden emergency, and therefore, the trial court did not err in giving that charge.

Decided November 8, 1999.

Gilbert J. Murrah, for appellant.

Bowles & Bowles, Jesse G. Bowles III, for appellee.

Judgment affirmed.

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

       The responding state trooper cited Moore for failing to yield.

        F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987).

        United Svcs. Auto Assn. v. Carroll, 226 Ga. App. 144, 147 (1) (486 SE2d 613) (1997).

        Roberts v. Dove, 234 Ga. App. 853, 854 (1) (508 SE2d 213) (1998); Smith v. Hiawassee Hardware Co., 167 Ga. App. 70, 74 (9) (305 SE2d 805) (1983).

       (Citation and punctuation omitted.) Laseter v. Clark, 54 Ga. App. 669, 672 (3) (189 SE 265) (1936).

       See Union Camp Corp. v. Helmy, 258 Ga. 263, 267 (367 SE2d 796) (1988).

       See Peacock v. Strickland, 198 Ga. App. 406 (1) (401 SE2d 601) (1991).

       See Levine v. Choi, 240 Ga. App. 384 (1) (522 SE2d 673) (1999).

        Johnson v. Loggins, 211 Ga. App. 265, 266 (3) (438 SE2d 711) (1993).

        Flournoy v. Brown, 226 Ga. App. 857, 859 (1) (487 SE2d 683) (1997).


author: Johnson, Chief Judge.

text:
    A99A1515.
    MALONE v. THE STATE.
    (524 SE2d 770)
   Johnson, Chief Judge.

After a jury trial, Helen Malone was convicted of two counts of Medicaid fraud. She appeals, contending the trial court committed reversible error by refusing to remove a juror from the impaneled jury when it became apparent that the juror was biased against her. We find no abuse of discretion and affirm.

Malone, who was an accountant, opened a mental health clinic with her business partner, psychiatrist Theodore Smith. Several years later, Malone and Smith were charged with requesting and receiving payments from the Georgia Department of Medical Assistance for psychotherapy services which had not been rendered. See OCGA § 49-4-146.1 (b) (1), (2).

At trial, shortly after the state began examining its first witness, one of the jurors, who is a chiropractor, gave a note to the trial judge. The trial court read the note into the record. It stated:

I am on the board of directors of Guardian Care Alliance, a Preferred Provider Organization, P.P.O., in the State of Georgia. Guardian Care Alliance does have contracts in Georgia wherein chiropractors do have access to Medicaid funds. At our most recent board meeting in mid-August, I and other board members chose to expel a chiropractor for suspected Medicaid fraud. We also, due to the severity of this case, have turned him in to the Board of Examiners for their evaluation and discipline. I did specifically review the doctor’s records and specifically addressed the issue with the remainder of the Guardian Care Board. Again, this resulted in the expulsion of the provider from our P.P.O. network. I personally am a very ethical provider, have a very good reputation within my profession, which certainly contributed to my acquiring a board position with Guardian Care Alliance. I do not tolerate fraudulent [medical] conduct. Considering the above, do I still qualify as a member of the jury? I am willing to serve.

Both the prosecutor and defense attorney were then allowed to question the juror. The defense attorney asked the juror: “[D]o you believe that your mind is still impartial between the State and the defendant based on your recollection of your policy about what you had encountered doing with a Medicaid fraud situation in the chiropractic service?” The juror replied:

Unlike the judicial system, I have to make people guilty — supposedly make them guilty and suspend them until they’re proven innocent, as protection toward society. And I tend to — I would have to say that I tend to make someone guilty before they have proven themselves as such.

Defense counsel then asked:

Do you believe that the opinions that you hold because of your background in this Medicaid fraud in the chiropractic community that you would be unable at this time to remain impartial and hear the evidence and make a decision based solely on the evidence that comes from the witness stand and the law as given to you by the Court?

The juror remarked: “I’ll tell you about where I’m at. I have an anger that’s stirred up about it. I feel impartial at this particular time. I do not know whether that would be alleviated as we’ve gone along.” Defense counsel asked the juror if, at this time, he had “an open and impartial mind between the State and that defendant.” The juror stated: “At this point, I don’t feel partial.”

The prosecutor asked the juror about his background in Medicaid fraud. The juror stated that:

It closely parallels what I’m hearing right now, and as I started listening to that, I thought I’d give y’all some background here on where I’m coming from. It involves the falsification of records, involves a case where it was my detection on this particular one, as you have done, that came up with this thing where this guy could not have possibly treated this many people, based on the time and the codes.

The following colloquy then ensued:

[Prosecutor]: Do you think you could listen to the facts and the evidence and follow the Court’s charge, regardless of whether your background comes into it?
[Juror]: I’m going to say that I would probably be listening very closely and consider all of that. But I come in here with the strong judgment already. Whether that would be all persuaded or not, I don’t know.

The prosecutor asked the juror if he could apply the court’s charge to the facts presented, even with his background. The juror said he “would make every effort to do that.”

Defense counsel asked the juror no other questions but moved to exclude him, claiming the juror was disqualified because he worked on a similar case, equivocated on his impartiality, and was now in an adversarial position with defense counsel. The trial court refused to excuse the juror. Malone’s motion for mistrial based on the juror’s alleged disqualification was denied.

Before a juror is excused for cause, it must be shown that he holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge on the evidence. Davis v. State, 229 Ga. App. 787, 788 (1) (a) (494 SE2d 702) (1997). The question of whether to strike a juror for cause lies within the sound discretion of the trial court. Brady v. State, 270 Ga. 574, 575 (2) (513 SE2d 199) (1999). The trial court’s conclusion as to bias is based on findings of demeanor and credibility which are peculiarly within the trial court’s province, and those findings are to be given deference. Id.

The record in this case supports the trial court’s finding that the juror was impartial. The juror repeatedly stated that he was not partial. He also said he would probably listen very closely and make every effort to consider the law and evidence. And although the juror said that in his work he tends to treat fraud suspects as guilty until proven innocent, he stated that that was “[u]nlike the judicial system.” The implication is that he knows that the judicial system uses a presumption other than the one he normally employs. The juror’s remarks are not indicative of someone whose opinion of guilt or innocence was so fixed and definite that he could not reach a decision based on the evidence and charge.

Even if the juror was not sure about his impartiality, he was not necessarily disqualified. See Gibbins v. State, 229 Ga. App. 896, 898-899 (3) (495 SE2d 46) (1997); Parker v. State, 229 Ga. App. 217-218 (1) (493 SE2d 558) (1997). Excusal is not required when a juror expresses doubt as to his ability to put aside personal experiences. Holmes v. State, 269 Ga. 124, 126 (2) (498 SE2d 732) (1998).

Decided November 8, 1999.

Jerome C. McKee, for appellant.

J. Tom Morgan, District Attorney, Thurbert E. Baker, Attorney

Nor was the juror disqualified by his statement that he “do [es] not tolerate fraudulent . . . conduct.” A juror can abhor a specific crime and still be qualified to serve on the jury. Lord v. State, 194 Ga. App. 749, 750 (1) (392 SE2d 17) (1990); Harris v. State, 178 Ga. App. 735, 737 (344 SE2d 528) (1986). The abhorrence and doubt expressed by the juror in this case go to the particular offense, not the particular offender. See Lord, supra. The juror expressed no bias or prejudice against Malone or any fixed opinion about her guilt. His statement that he came in with “the strong judgment already” does not indicate any bias against Malone personally, since he apparently did not know her before trial; instead, viewed in context, it seems to indicate his “strong judgment” is about unethical medical conduct predicated upon his background in investigating cases of Medicaid fraud. Similarly, the juror’s professed anger “about it” seems to be directed at Medicaid fraud in the chiropractic community, rather than at Malone personally. Under the circumstances presented here, the trial court did not abuse its discretion in refusing to excuse this juror for cause. See Scott v. State, 193 Ga. App. 577, 579 (2) (388 SE2d 416) (1989); see Holmes, supra.

Malone argues that the juror’s failure to reveal during voir dire his involvement in Medicaid fraud cases deprived her of her right to exercise knowledgeable peremptory strikes and constituted manifest prejudice. See generally Davis, supra at 789 (1) (b). Malone says she would have used a peremptory strike against the juror had she known of his involvement in Medicaid fraud investigations. However, no one asked the juror if he was involved in Medicaid fraud cases. There is no evidence that the juror intentionally failed to answer or falsely answered questions propounded during voir dire. Where a juror answers questions in good faith and with no deliberate intent to mislead, the trial court may well find that no prejudice resulted, even though the lack of disclosure might have impaired the defendant’s right to exercise a knowledgeable peremptory strike. Id. The record before us discloses no basis on which to conclude that the trial court’s failure to excuse this juror prejudiced the defendant. See Grant v. State, 160 Ga. App. 837, 841-842 (4) (287 SE2d 681) (1982). The trial court did not abuse its discretion in refusing to remove the juror.

Judgment affirmed.

Smith and Eldridge, JJ, concur.

General, Nancy B. Bordeaux, Assistant Attorney General, for appellee.

       This was Malone’s second trial. In the first trial, Malone and Smith were convicted. We reversed the convictions based on a Batson issue. See Malone v. State, 225 Ga. App. 315 (484 SE2d 6) (1997). Smith later pled guilty and then testified against Malone at the second trial.


text:
    A99A1887.
    FIVE STAR STEEL CONSTRUCTION, INC. v. KLOCKNER NAMASCO CORPORATION.
    (524 SE2d 783)
   Eldridge, Judge.

Klockner Namasco Corporation d/b/a Namasco (“Namasco”) sued Five Star Steel Construction, Inc. (“Five Star”), Abb Flexible Automation, a German corporation (“Abb I”), and Abb Oberflachentechenanlagen GmbH, a German corporation (“Abb II”), for breach of contract, open account, and unjust enrichment for steel delivered and invoiced to Five Star. Five Star was properly served.

Five Star answered and set forth as defenses assignment of the monies held by General Motors and Chrysler Corporation due it from Abb I and II on the two contracts for which the steel was delivered, accord and satisfaction by the assignment and payment schedule in settlement of the debt, and payments made under the agreement. Five Star, by verified answer and affidavit, disputed the open account on the following bases: the account shown was inaccurate in that the account showed steel shipped on other accounts; there was a settlement; the account did not properly reflect credits for the assignments and for payments made under the settlement; and payments made on these accounts were improperly credited.

On November 19, 1997, Namasco filed its motion for summary judgment. Filed in support of the motion was the affidavit of Chris Johnson with a copy of the open account attached to the suit. The affidavit stated that: the account was kept in the ordinary course of business; the statement was shown by the records; such amounts were invoiced to Five Star for steel delivered to it; demand for payment was made but refused; interest accrued at one and one-half percent per month; and all proper credits had been applied to the account. On March 4,1998, Namasco moved to supplement Johnson’s affidavit by attaching the entire account history without explaining the entries. The accounts receivable record in the supplemental affidavit materially differs from the original open account filed with the suit and the first affidavit. The only explanation for the difference is that the accounts receivable record is the complete history for the accounts between the parties for the years 1994, 1995, 1996, and 1997.

Five Star filed affidavits with exhibits that directly and with specific facts disputed the accuracy of the original open account, as well as the supplemental account records.

The trial court found

that while the original affidavit and supplemental affidavit submitted by the Plaintiff are different in form, such affidavits are not contradictory in substance and thus no unfavorable inference should be derived from the fact that different account statements were provided to the Court.

The trial court granted summary judgment on the open account, finding that

[office the Plaintiff established a prima facie right to judgment on the open account, the burden shifted to the Defendant to produce evidence showing a different amount owed and thereby creating] a jury issue. The Court finds that the Defendant has failed to carry that burden. Therefore, the Court finds that, after viewing the evidence produced in the light most favorable to the nonmoving party, there are no disputes as to genuine issues of material fact and that summary judgment in favor of the Plaintiff is proper and is GRANTED.

1. Five Star contends that the trial court erred in granting summary judgment for a number of reasons. We agree.

(a) OCGA § 9-11-56 (e) states in part as follows:
[wffien a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial.

The moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, when given the most favorable inference for the respondent, warrant judgment as a matter of law. The movant may do this by showing 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 either the plaintiff’s case or all defenses asserted in the answer of the defendant. Such burden of proof of the movant may be discharged by pointing out by reference to evidence of record that there is an absence of any evidence to support the non-moving party’s case. If the moving party discharges this burden of proof, then the burden of proof does not shift, but the respondent must come forward with some specific rebuttal evidence giving rise to a triable issue of fact. OCGA § 9-11-56 (c); Hambrick v. B. G. Swing Games Mgmt., 267 Ga. 597, 599 (481 SE2d 816) (1997); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Congress Re-Ins. Corp. v. Archer-Western Contractors, 226 Ga. App. 829, 832 (4) (487 SE2d 679) (1997); Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996).

In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to [an] essential element of the [defense],

Lau’s Corp. v. Haskins, supra at 495. The respondent does not have to present conclusive proof to rebut movant’s evidence; if the respondent produces or points to any specific evidence, even slight, in the record giving rise to a triable issue of material fact, then summary judgment must be denied by the trial court. Pafford v. Biomet, 264 Ga. 540, 544 (2) (448 SE2d 347) (1994); Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47) (1991); Garrett v. NationsBank, 228 Ga. App. 114, 115-116 (491 SE2d 158) (1997). If the nonmoving party on summary judgment motion successfully produces rebuttal evidence, the burden of persuasion shifts back to the movant to establish the nonexistence of a genuine issue of fact, because the burden of proof is always on the movant, even though the movant may not have such burden of proof at trial. Gentile v. Bower, supra; Fugate v. Gayfers Mercantile Dept. Stores, 201 Ga. App. 867, 869 (412 SE2d 617) (1991); S. S. Kresge Co. v. Blount, 162 Ga. App. 404, 405 (291 SE2d 728) (1982). In this case, the trial court failed to follow such rules where Five Star presented some evidence to create material issues of fact, both as to the amount owed and as to its defenses.

(b) A verified answer to a claim for open account that sets out the defenses of payment, set-off, and accord and satisfaction creates a factual issue. The sworn answer creates a proper jury question to a suit on an open account on motion for summary judgment when the verified answer sets forth a scintilla of rebuttal evidence on such issues by pleading specific facts, because the verified answer meets the standard for affidavits as to specific facts. OCGA §§ 9-10-112; 9-11-56 (e); Foskey v. Smith, 159 Ga. App. 163, 164-165 (283 SE2d 33) (1981) ; see generally Love v. Love, 259 Ga. 423 (383 SE2d 329) (1989); Keene v. Herstam, 225 Ga. App. 115 (483 SE2d 335) (1997); Riverdale Beverage Corp. v. Brick & Whalen, 162 Ga. App. 516 (292 SE2d 98) (1982) ; Wilkes v. Arkansas Fuel Oil Co., 60 Ga. App. 775, 778-779 (1), (2) (5 SE2d 269) (1939).

(c) A suit on open account is available as a simplified procedure to the provider of goods and services where the price of such goods or services has been agreed upon and “where it appears that the plaintiff has fully performed [its] part of the agreement and nothing remains to be done except for the other party to make payment.” Haas v. Jaffe, 45 Ga. App. 11, 12 (2) (163 SE 226) (1931); accord Lipsey Motors v. Karp Motors, 194 Ga. App. 15, 19 (3) (389 SE2d 537) (1989). However, when there is a dispute that goes to either assent to the services, terms of the contract, what work was performed, the quality of the performance, or cost, then suit on account is not the proper procedure for suit, because there is a factual issue other than nonpayment on the account. See Lawson v. O’Kelley, 81 Ga. App. 883, 885 (1) (60 SE2d 380) (1950); Craig v. Augusta Roofing &c., 78 Ga. App. 514, 515 (1) (51 SE2d 565) (1949).

An open account procedure is not appropriate when there is a special agreement about the payment for the goods and services, because the money is not due and payable as under an open account. See Schluter v. Perrie, Buker, Stagg & Jones, 230 Ga. App. 776 (1) (498 SE2d 543) (1998) (physical precedent only); Watson v. Sierra Contracting Corp., 226 Ga. App. 21, 27 (b) (485 SE2d 563) (1997) (physical precedent only). Where, as here, the parties have entered into a modification of the original contract on account as to time and manner of payment, and the plaintiff has accepted an assignment of accounts receivable and a schedule of partial payments with payments, open account is not the proper procedure. The claim must proceed as a breach of contract action. See Schluter v. Perrie, Buker, Stagg & Jones, supra at 777.

Further, where, as here, there is a dispute regarding the amount, credits for assignments and payments, set-offs, and accounting by evidence as to specific facts in the record, such defenses create a factual issue for jury trial. Edge v. Stephens, 172 Ga. App. 759 (324 SE2d 579) (1984); Foskey v. Smith, supra at 164-165.

McKnight denied that Namasco had ever charged interest for an account over 30 days old. McKnight testified that the accounts were inaccurate and showed specific errors in invoice amount and the balance due. McKnight pointed out with specific facts the amounts of assignments and payments that Namasco failed to credit against the balance, what the balance was, what the balance should have been, and why the balance was in error. McKnight testified that Five Star assigned $38,300.59 to Namasco by agreement; that such sum was owed to it by Abb Sistemas, S. A. de C. V., a Mexican corporation; that Five Star agreed to pay a weekly sum of $500, beginning on March 26, 1995, and continuing until $55,500.13 was paid; and that it paid $15,000, which was not credited. He also testified that a payment of $10,000 made on May 24, 1994, was not credited against the outstanding balance. These are but a few of the specific factual chailenges to the accuracy of Namasco’s open account. As such, summary judgment should have been denied.

Decided November 8, 1999.

Guy E. Davis, Jr., for appellant.

William L. Kidd, for appellee.

2. Five Star’s remaining enumerations of error are controlled by the holding in Division 1.

Judgment reversed.

Blackburn, P. J, and Barnes, J., concur.


author: Blackburn, Presiding Judge.

text:
    A99A2050.
    DOWNS v. THE STATE.
    (524 SE2d 786)
   Blackburn, Presiding Judge.

Michael Downs appeals, following a jury trial, from his conviction of battery, contending that there was insufficient evidence to support the conviction and that the trial court erred by: (1) denying his motion for continuance; (2) denying his motion for mistrial after statements regarding a history of violence were placed in evidence; (3) admitting hearsay statements of the victim; (4) allowing Downs’ statements into evidence; and (5) improperly charging the jury with regard to its consideration of the lesser included offenses. For the reasons discussed below, we affirm.

1. We have held that

[o]n appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Eason v. State, 234 Ga. App. 595, 596 (1) (507 SE2d 175) (1998).

Construing the evidence most favorably to the verdict, on May 30, 1997, witnesses Mike and Brittany Kelly observed Downs’ car stopped on the side of U. S. Highway 90 in Savannah with the driver’s side door open. The Kellys saw Downs striking his wife, Lou Jean Downs, who fell to the ground. Ms. Downs was bleeding from cuts on her arm and leg and was bruised. When Mike Kelly asked whether everything was okay, Ms. Downs replied that things were not okay and asked the Kellys not to leave her. Downs indicated that they did not need any help. Ms. Downs asked the Kellys and witness Kathleen Jenkins what they thought of a man who would push his wife out of a car and indicated that Downs had hit her before. This evidence is . sufficient to authorize the jury to find Downs guilty of battery. See Jackson, supra.

2. Downs contends the trial court erred by denying his motion for a continuance, arguing that the State failed to comply with discovery by submitting a supplemental list of witnesses.

“Granting or refusing a continuance is a matter within the sound discretion of the trial court, and absent a clear showing of abuse, this court will not reverse for refusing to grant a continuance.” Livingston v. State, 266 Ga. 501, 503 (1) (467 SE2d 886) (1996); OCGA § 17-8-22.

The State filed discovery responses which included the supplemental witness list on May 12, 1998, and served the same on defense counsel via U. S. mail. However, on the day of trial, May 28, 1998, defense counsel asserted that he had not received the discovery responses and had learned of the supplemental list of six additional witnesses only the day before. It is undisputed that defense counsel had the list of witnesses, their phone numbers and a summary of their anticipated testimony the day before trial at the latest. Defense counsel requested a ten-day continuance for time to speak to the witnesses. The trial court denied the motion but gave counsel the opportunity to interview the witnesses prior to trial.

Allowing counsel to interview the newly identified witnesses is an acceptable alternative to a continuance. Lakes v. State, 244 Ga. 217 (259 SE2d 469) (1979). Downs did not argue to the trial court and has not shown on appeal that the interviews led to any other witnesses or evidence of which he was otherwise unaware. He has not argued any harm as a result of the denial of the continuance. We do not find an abuse of discretion by the trial court under these circumstances. See id.; Price v. State, 223 Ga. App. 185 (3) (477 SE2d 353) (1996).

3. Downs raises as error the trial court’s denial of his motion for mistrial after testimony regarding previous incidents of abuse was allowed into evidence. Kathleen Jenkins tended to Ms. Downs’ injuries by the roadside on the night of the battery. Jenkins testified that Ms. Downs, who was crying, explained that she and her husband had been fighting and generally discussed his previous abuse of her.

The trial court properly admitted this testimony as part of the res gestae. “Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” OCGA § 24-3-3. In this case, the statements of Ms. Downs at the scene were closely connected in time to the incident and appear spontaneous, voluntary, and free from deliberate design. See Sims v. State, 234 Ga. App. 678, 681 (2) (507 SE2d 845) (1998). The statements were admissible.

With regard to Downs’ argument that this testimony placed his character in evidence,

[s] urrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. No error is committed by admitting such evidence as part of the res gestae even though it may incidentally have placed appellant’s character in issue.

(Citation and punctuation omitted.) Samples v. State, 234 Ga. App. 8, 10 (1) (a) (505 SE2d 813) (1998). The trial court did not abuse its discretion by admitting the testimony, so the motion for mistrial was properly denied.

4. Downs argues that the trial court improperly admitted hearsay by allowing Debbie Crawford, Ms. Downs’ daughter, to testify regarding statements made by Ms. Downs about the incident. At trial, Ms. Downs asserted marital privilege and did not testify. However, Crawford testified that shortly after Downs’ preliminary hearing, Ms. Downs had told her that Downs had struck her that night by the car; that she was glad that someone had reported it; and that she was glad the charges were brought because she did not feel she could do so. Over defense counsel objection, the testimony was admitted under the necessity exception to the hearsay rule.

In order to admit hearsay statements under the necessity exception, two prerequisites must be satisfied: (1) there must be a necessity for admitting the out-of-court statement, and (2) there must be a guarantee of the trustworthiness of the statement which the law will consider a substitute for the oath and cross-examination.

Smith v. State, 266 Ga. 827, 830 (4) (470 SE2d 674) (1996).

(a) Our Supreme Court recently held that
[t] o satisfy the requirement that the hearsay be “necessary,” in addition to showing the hearsay declarant’s unavailability due to death, privilege, or other reason, the proponent of the hearsay must also show “that the statement is relevant to a material fact and that the statement is more probative on that material fact than other evidence that may be procured and offered.” Chapel v. State, [270 Ga. 151, 155 (4) (510 SE2d 802) (1998)].

Clark v. State, 271 Ga. 6, 10 (5) (515 SE2d 155) (1999).

The necessity prerequisite was satisfied by the State. Ms. Downs, the victim, was an essential witness to the incident and unavailable to testify due to her assertion of marital privilege. See Higgs v. State, 256 Ga. 606, 608 (4) (351 SE2d 448) (1987); Lane v. Tift County Hosp. Auth., 228 Ga. App. 554, 559 (2) (492 SE2d 317) (1997). Her statement that Downs had struck her was relevant to the charge of battery and was more probative on that fact than the statements of the Kellys.

(b) With regard to the second prerequisite, the declaration of an unavailable witness is admissible when it is “surrounded by particularized guarantees of trustworthiness, that is, whether there is something present which the law considers a substitute for the oath.” (Punctuation omitted.) Clark, supra. We look at the totality of the circumstances in which the statements were made. Id.

Crawford testified that her relationship with her mother was not always close but that it varied. Although Ms. Downs and Crawford had discussed previous incidents of abuse by Downs, Ms. Downs often denied any abuse. Ms. Downs did not discuss this incident with Crawford until the preliminary hearing. Yet, at the preliminary hearing, Ms. Downs contradicted that discussion and denied that Downs had struck her. Again, on the day of trial, Ms. Downs contradicted the statements to Crawford when she testified outside the presence of the jury that she did not want to testify against her husband and that he had not struck her. We find that the circumstances surrounding Ms. Downs’ statements to her daughter offer no guarantee of trustworthiness, and the trial court erred by admitting the hearsay testimony.

However, the admission of the hearsay testimony was harmless error because it was cumulative of other properly admitted evidence that Downs had struck Ms. Downs that evening by the roadside. Clark, supra; Tucker v. State, 228 Ga. App. 321, 322 (1) (a) (491 SE2d 420) (1997). See Divisions 1 and 3.

5. Downs contends that the trial court erred by denying his motion to suppress and admitting into evidence his oral statements made in the police cruiser. Prior to trial, Downs had requested the State’s records of statements by him pursuant to OCGA § 17-16-22. The State failed to provide any summary of the oral remarks made by Downs while in the police cruiser. See id. At trial, Officer Joseph Toth testified that Downs cursed at him throughout the trip to the Chatham County jail.

Pretermitting whether the admission of the statements was error, Downs has not shown harm as a result. The statements were relevant to disorderly conduct charges also brought against Downs, but the trial court granted a directed verdict to Downs on those charges. He has not shown how, if at all, the statement that he was cursing affected the conviction of battery. “We will not. . . reverse a case for error unless [the error] is shown to be harmful. Johnson v. State, 234 Ga. App. 58, 60 (2) (a) (506 SE2d 212) (1998). [Downs] has not shown harm.” Bowen v. State, 237 Ga. App. 597, 598 (2) (516 SE2d 311) (1999).

6. Downs next contends the trial court erred in its charge to the jury regarding the lesser included offenses of simple battery and simple assault. “ ‘[T]he charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.’ ” Redd v. State, 232 Ga. App. 666, 667 (2) (b) (502 SE2d 467) (1998).

The trial court charged the jury on all three offenses and further instructed the jury,

you basically are going to have to make a determination based on the three different crimes which I have read you the instructions on. Basically, it will be battery, simple battery, and simple assault, and you will have to make a determination regarding . . . whether or not the Defendant committed those crimes and it has been proven beyond a reasonable doubt, which is the burden and the standard that has to be applied. In that event you would fill in the word “guilty” and put in the charge that you find him guilty of. If you find him not guilty, all you have to do is write in the words “not guilty.”

During deliberations, the jury asked whether it needed to consider the lesser included offenses of simple battery and simple assault if it found Downs guilty of the higher charge. The trial court responded, “No.” The jury returned a verdict of guilty of battery, writing on the verdict form that it had not considered the lesser included offenses.

The trial court found that the verdict was ambiguous. The trial court instructed the jury that it must consider all three charges, but that it could find Downs guilty of any one of the three or not guilty on all three charges. The trial court then prepared a clean verdict form for the jury. After additional deliberation, the jury returned a verdict of guilty of battery.

Decided November 8, 1999.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Samantha Glaudel, Assistant District Attorney, for appellee.

Looking at the charge as a whole, the original charge properly instructed the jury with regard to its obligations. After that, the jury may have been confused about how to treat the lesser included offenses, but the trial court clarified its instruction. Through its supplemental instruction and revision of the verdict form, the trial court made certain that the jury understood it was to consider all three offenses in its deliberation. “ ‘We do not believe that the charge as a whole would mislead a jury of average intelligence.’ ” Redd, supra.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


author: Smith, Judge.

text:
    A99A0839.
    JONES v. THE STATE.
    (525 SE2d 121)
   Smith, Judge.

Steven Jones was indicted and convicted on one count of violation of the Georgia Controlled Substances Act. He filed a motion for new trial, which was denied. Jones now appeals. Finding no reversible error, we affirm.

1. Jones contends the evidence was insufficient to convict him. Construed to uphold the jury’s verdict, evidence was presented that Agent Ballard with the Cherokee Multi-Agency Narcotics Squad (CMANS) drove to an area in Cherokee County, known as “The Cut,” to make an undercover purchase of crack cocaine. After Ballard, driving a white Corsica, arrived in the area around 4:40 p.m., a man he later identified as Jones motioned for him to drive “further up into ‘The Cut,’ ” approached his car, and asked what he wanted. Ballard described the man as wearing a jacket with “some type of ‘V’ shape on it.” Ballard testified he told the man he wanted to buy $20 worth of crack cocaine and that the man “produced an off-white rock substance that was identified as crack cocaine” and gave it to him in exchange for a $20 bill. Ballard stated that approximately ten other people were between fifteen and twenty feet from his vehicle at the time of the purchase. Through use of a video recording device inside his car, Ballard videotaped the transaction.

Although at the time of the purchase Ballard did not know the name of the man who sold him the cocaine, he went back to his office after the sale occurred and identified the man through a confidential informant. After learning his name, Ballard obtained a photograph of Jones, compared it to images on the videotape, and concluded that the individual depicted in the photograph was the same person shown making the transaction on the tape. Jones was arrested approximately one month later. At trial, Ballard positively identified Jones as the individual from whom he purchased the cocaine. We find this evidence, particularly Ballard’s positive identification of Jones at trial, sufficient to authorize a rational trier of fact to convict Jones under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Robinson v. State, 232 Ga. App. 280, 281 (4) (501 SE2d 536) (1998).

2. Jones also enumerates as error the trial court’s refusal to disclose the identity of the confidential informant who assisted Ballard in learning Jones’s identity.

The trial court conducted a pre-trial, in-camera hearing on the issue of whether the informant’s identity should be revealed to Jones. The informant testified during this hearing that he had been working for CMANS and was standing in “The Cut” when he saw a white Corsica drive into the area. He saw an individual leave a group of approximately ten people, walk about ten feet to the car, and engage in conversation with the car’s occupant. The informant stated that the individual left the car “and got some drugs from another person and then took them back to” the car’s occupant. He stated that he knew “who went to the car” and that he was contacted after the transaction and was asked the identity of the individual who was wearing a jacket with a “V” on it. The informant never expressly stated during the hearing that the individual who walked to the car and provided drugs to its occupant was Jones. But the informant did testify that he knew Jones and acknowledged that he knew the identity of the man from whom Jones obtained the drugs. When asked whether Jones knew everyone in the group in which he was standing before the transaction, the informant testified that Jones “would have known everybody that was up there.” The trial court refused to disclose the name of the informant.

We find no error in the trial court’s refusal to reveal the informant’s identity. As required by Thornton v. State, 238 Ga. 160, 165 (2) (231 SE2d 729) (1977), the trial court conducted a hearing concerning Jones’s motion to reveal the informant’s identity. During a hearing on such a motion, a trial court must determine, among other things, whether the testimony of the informant is the only testimony that will amplify or contradict that of the government’s witnesses. See, e.g., Harvey v. State, 232 Ga. App. 21, 23 (500 SE2d 916) (1998). Also, the court must decide whether the movant has satisfied the burden of showing that the informant’s testimony is material and whether the testimony for the State and that of the defendant will be in conflict. Id.

Here, the State’s evidence and that of Jones did not conflict, for Jones introduced no evidence. Also, the informant was not the only witness in a position to amplify or contradict the testimony of the State’s witness, Ballard. The informant’s testimony during the in-camera hearing shows instead that Jones knew everyone standing nearby and could have called these people as witnesses on his own behalf. Consequently, the trial court did not err in denying Jones’s motion to disclose the identity of the informant. See Ivory v. State, 234 Ga. App. 858, 860 (2) (508 SE2d 421) (1998).

But even assuming that the informant was the only witness who actually observed the transaction, disclosure was not automatically required, for Jones has not shown the materiality of the informant’s testimony. The testimony of the informant during the in-camera hearing basically corroborated Ballard’s trial testimony. Despite the fact that Ballard simply stated that Jones “produced” crack cocaine when Ballard expressed his desire to purchase the substance, while the informant indicated that Jones first obtained the drugs from another individual, both Ballard and the informant implicated Jones as the person who handed the drugs to Ballard. Under these circumstances, the informant’s testimony at trial would not have exculpated Jones, and Jones has therefore demonstrated no harm in the trial court’s refusal to disclose the informant’s identity. See Boatright v. State, 195 Ga. App. 440-441 (1) (393 SE2d 707) (1990).

3. Jones contends the trial court erroneously permitted the videotape made by Ballard to go out with the jury. The videotape briefly depicts a man outside a car making a hand-to-hand exchange with the occupant of the car. Over Jones’s objection, the court observed that the videotape did not have audio and concluded that the continuing witness objection would not apply. Because the videotape was not a document and contained no statements or testimony, the trial court permitted the videotape to be taken to the jury room.

While our law gives a trial court discretion in deciding whether to replay evidence under the controlled conditions of the courtroom, see Barnett v. State, 204 Ga. App. 588, 589 (1) (420 SE2d 96) (1992), the State has cited no case law giving the trial court the discretion to allow the jury to replay evidence in the jury room. But even if the trial court erred, reversal is not required in this case, for “when properly admitted evidence of guilt is so overwhelming as to negate the possibility that the tainted evidence contributed to the verdict, the error may be harmless.” (Citation and punctuation omitted.) Wheeler v. State, 203 Ga. App. 831, 833 (418 SE2d 112) (1992). Ballard positively identified Jones as the person from whom he purchased a substance identified at trial as cocaine. Given this overwhelming evidence of Jones’s guilt, we cannot say that any error by the trial judge in allowing the videotape to go with the jury to the jury room constituted reversible error.

Decided November 9, 1999.

Gregory A. Hicks, James K. Luttrell, for appellant.

Garry T. Moss, District Attorney, Scott T. Poole, Rachelle L. Strausner, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       A forensic chemist positively identified the substance as cocaine.

       The trial court, however, did not permit an audiotape, apparently made simultaneously with the videotape, to go out with the jury.


text:
    A99A0903.
    AUTO-OWNERS INSURANCE COMPANY v. CRAWFORD.
    (525 SE2d 118)
   Smith, Judge.

Claiming that Auto-Owners Insurance Company breached a binding oral contract to settle his claim for property damages, Hubert Crawford filed the underlying lawsuit. After a bench trial, the trial court awarded Crawford $13,440 plus interest and $1,500 in attorney fees. Contending that an enforceable contract was never created, Auto-Owners appeals. We agree and reverse.

The following evidence was introduced at trial. On October 25, 1996, Crawford was involved in an automobile collision with an insured of Auto-Owners. Before engaging an attorney, Crawford spoke with Barbara Levie, a claims adjuster for Auto-Owners. Levie extended a settlement offer in the amount of $11,165 for the property damage to Crawford’s vehicle. But Crawford rejected the offer of $11,165 after telling Levie “that was not enough.” Dissatisfied with Auto-Owners’ offer, Crawford retained counsel on the same day. A few days later, Crawford received a copy of a “speed-memo” sent from Levie and dated November 6, confirming that “we can offer $11,165.00.” After noting the continuing accrual of storage fees, the memo concludes: “If no agreement is reached, your vehicle will be returned to you.” Crawford, however, could not recall exactly when he told his lawyer about the contents of this memo.

Notwithstanding the telephone conversation and the speed-memo, in a November 18 letter purporting to memorialize Auto-Owners’ earlier offer, Levie mistakenly suggested that she had extended a settlement offer of $13,200. In this letter directed to Crawford’s counsel, Levie stated:

As to his property damage claim, please be advised that on November 6,1996 we made an offer of settlement to your client for a total loss on his vehicle. Our offer was $13,200.00 provided that he could furnish us with a clear title to the vehicle.

Levie concluded the letter by saying, “I look forward to hearing from you concerning this.”

About two weeks later, in a December 3, 1996 letter, Crawford’s counsel informed Auto-Owners, “[a]fter speaking with my client he has agreed to settle his claim for property damage in the amount of $13,200.00 plus $240.00 loss of use for a total of $13,440.00.” Ten days later, Levie responded:

This will acknowledge receipt of your letter of December 3, 1996 and your demand of $13,200.00 for your client’s vehicle and $240.00 for loss of use. Unfortunately, we do not value the vehicle at $13,200.00. The average of our dealer quotes was $11,050.00 and the NADA retail is $11,165.00. Additionally, there is the problem of the storage charges on the vehicle. As I have advised your client on 11/6/96, we would not pay any storage charges past that date. Additionally, we would have to have a clear title to the vehicle in order to take the salvage.

Levie’s letter concluded: “If you would furnish documentation to support your demand of $13,200.00 as the value of the vehicle, I would be happy to review it. At this time, however, I can not increase my offer beyond the NADA retail value.”

Auto-Owners refused to agree to the valuation of $13,200 because, as Levie testified, she had made an error in the November 18 letter but did not discover her mistake until after being contacted by a secretary at the law firm. As Levie explained, “I thought he was coming back with another offer.” Due to Auto-Owners’ refusal to settle for the amount desired by Crawford, Crawford sought and obtained judgment in the amount of $13,440 plus attorney fees and expenses of litigation on the basis that Auto-Owners caused unnecessary trouble and expense.

1. Auto-Owners contends the trial court erred in concluding that the parties had entered an enforceable contract and settlement agreement and awarding damages thereon. We agree.

Whether a settlement is an enforceable agreement is a question of law for the trial court to decide. Southern Med. Corp. v. Liberty Mut. Ins. Co., 216 Ga. App. 289, 290 (1) (454 SE2d 180) (1995). An appellate court, however, owes no deference to the conclusions of a trial court in regard to legal questions. Gwinnett County v. Davis, 268 Ga. 653, 654 (492 SE2d 523) (1997); see Garcia v. State, 207 Ga. App. 653, 654 (1) (a) (428 SE2d 666) (1993). When a trial court’s judgment rests upon an erroneous legal theory, an appellate court cannot affirm. All Phase Elec. &c. Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 234 (2) (387 SE2d 429) (1989).

To constitute an enforceable contract, an oral settlement agreement must be definite, certain, unambiguous and satisfy the same requisites of formation and enforceability as any other contract. Tekin v. Whiddon, 233 Ga. App. 645, 648 (2) (504 SE2d 722) (1998). A meeting of the minds is the first requirement of law relative to contracts. Simmons v. McBride, 228 Ga. App. 752, 753 (492 SE2d 738) (1997). If there is any essential term upon which agreement is lacking, no meeting of the minds of the parties exists, and a valid and binding contract has not been formed. BellSouth Advertising &c. v. McCollum, 209 Ga. App. 441, 445 (2) (433 SE2d 437) (1993); see OCGA §§ 13-3-2; 13-3-1. “[Acceptance of an offer must be unconditional, unequivocal, and without variance of any sort; otherwise, there can be no meeting of the minds and mutual assent necessary to contract formation.” Lamb v. Decatur Fed. Sav. &c. Assn., 201 Ga. App. 583, 585 (1) (411 SE2d 527) (1991).

In this case, the minds of the parties did not meet “at the same time, upon the same subject matter, and in the same sense.” (Citations and punctuation omitted.) Wilkins v. Butler, 187 Ga. App. 84, 85 (369 SE2d 267) (1988). Without question, the evidence showed that on behalf of Auto-Owners, Levie offered $11,165, an amount Crawford flatly rejected as inadequate. In her November 18 letter to Crawford’s counsel, Levie misstated the amount she had offered to Crawford. But, in so doing, she plainly did not intend to make a new offer. In fact, the phrases appearing in this letter are couched solely in the past tense: “made an offer,” “our offer was,” and “we advised him.” Nowhere in this letter does a current offer appear. When Crawford attempted to accept $13,200 as the value of the property damage, an amount that Auto-Owners never intentionally offered, Auto-Owners refused to acquiesce. Nor did Auto-Owners and Crawford ever reach agreement at the same time as to the amount that Crawford would have to pay for the storage costs incurred after November 6 or the amount to be paid for the loss of use of his vehicle. Since no valid contract was ever formed, the trial court erred in enforcing the purported settlement agreement. Clark v. Schwartz, 210 Ga. App. 678, 679 (436 SE2d 759) (1993) (contract not enforceable until there is a meeting of minds as to all essential terms).

2. Auto-Owners contends the attorney fees were awarded in error because the record contains no evidence that it caused Crawford unnecessary trouble and expense.

Decided November 9, 1999.

John T. Croley, Jr., for appellant.

Kenneth E. Futch, Jr., for appellee.

When a bona fide, justiciable controversy exists, an award of attorney fees and expenses of litigation under OCGA § 13-6-11 is not authorized. Rivergate Corp. v. Atlanta Indoor Advertising &c., 210 Ga. App. 501, 504 (4) (436 SE2d 697) (1993). Since a bona fide dispute was shown, the award of attorney fees cannot stand. Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218, 222 (2) (308 SE2d 564) (1983).

Judgment reversed.

Pope, P. J., and Eldridge, J., concur.


author: Phipps, Judge.

text:
    A99A1183.
    DANIELS v. ATLANTA NATIONAL LEAGUE BASEBALL CLUB, INC.
    (524 SE2d 801)
   Phipps, Judge.

Geraldine Daniels, a slip and fall plaintiff, has the burden of proving negligence by showing initially that the defendant, the Atlanta National League Baseball Club, Inc. (the Atlanta Braves), had actual or constructive knowledge of the foreign substance that caused her to fall while exiting Atlanta-Fulton County Stadium at the end of a baseball game. The trial court granted the Atlanta Braves’ motion for summary judgment because Daniels did not come forward with evidence that the Atlanta Braves had actual or constructive knowledge of the hazard. Daniels appeals that order. Because we find that it would be unduly burdensome, if not impossible, for the Atlanta Braves to implement inspection procedures to address this particular situation, we affirm.

On July 8, 1994, Daniels attended an Atlanta Braves baseball game at Atlanta-Fulton County Stadium. She was an invitee of the Atlanta Braves. While exiting the stadium at the end of the game, Daniels slipped and fell on either a cup or liquid from the cup as she was walking down the stairs. Daniels contends the Atlanta Braves are liable for her injuries from the fall because they failed to exercise ordinary care in keeping the premises safe as required by OCGA § 51-3-1.

At deposition, Daniels testified she did not know who dropped the cup on the stairs or how long it was there before she fell. She also testified that, at the time she fell, there were no employees of the Atlanta Braves or of the stadium in the immediate area.

We review the trial court’s grant of summary judgment de novo to determine if the evidence demonstrates any genuine issue of material fact. To prevail, the moving party must demonstrate that there are no genuine issues of any material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, support 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 jury issue on at least one essential element of plaintiff’s case.”

To prove negligence in a slip and fall premises liability case, the plaintiff must show that (1) the defendant had actual or constructive knowledge of the foreign substance, and (2) the plaintiff lacked knowledge of the substance or for some reason attributable to the defendant was prevented from discovering it. Daniels does not claim the Atlanta Braves had actual knowledge of the hazard which caused her fall. To establish constructive knowledge, Daniels must show that (1) an employee of the Atlanta Braves was in the immediate area of the hazard and could have easily seen the substance, or (2) the foreign substance remained long enough that ordinary diligence by the Atlanta Braves should have discovered it.

Because no employees of the Atlanta Braves or of the stadium were in the immediate area when Daniels fell, she must use the second method of proving constructive knowledge.

Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.

Generally, on a motion for summary judgment, the owner must demonstrate its inspection procedures before the plaintiff must show how long the hazard has been present. But it would be unduly burdensome, if not impossible, for the Atlanta Braves to perform an inspection for trash on the stairs while tens of thousands of spectators are exiting the stadium.

While not an insurer of the invitee’s safety, the owner/occupier is required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/ occupier has superior knowledge. The owner/occupier owes persons invited to enter the premises a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk or to lead them into a dangerous trap.

The cup on the steps was not an unexpected hazard at the end of the game. Just as a fan expects and assumes the risk of wild pitches, foul balls, and unintentionally thrown bats, a fan should reasonably expect and assume that trash will be dropped on the premises by the thousands of other fans exiting the stadium at the end of a game. The risk of a cup sitting on the aisle steps is not an “unreasonable risk of harm” for one exiting a baseball stadium at the end of a game.

Furthermore, requiring the Atlanta Braves to remove every article left by its fans, especially in the circumstances here when thousands of fans are in the aisles and on the steps, would effectively make the Atlanta Braves the insurer of the safety of all fans. And, accomplishment of this task would place too great a burden on the proprietor and the fans. Thousands of fans would be detained in their seats, long after the game was over, waiting for the aisles to be inspected.

Because we have found that inspection procedures under the specific circumstances presented here would be unduly burdensome, if not impossible, the burden now shifts to Daniels to come forward with some evidence of how long the cup and liquid were on the steps before her fall. Daniels admits that she cannot meet this burden. As a result, we affirm the trial court’s grant of summary judgment in favor of the Atlanta Braves.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

Decided November 10, 1999.

G. Samuel Burnette, for appellant.

Swift, Currie, McGhee & Hiers, Bradley S. Wolff, Michael H. Friedman, for appellee.

       OCGA § 51-3-1 provides that an owner or occupier of land is liable to an invitee for injuries caused by his negligent failure to keep the premises safe.

        Howell v. Styles, 221 Ga. App. 781, 784 (4) (472 SE2d 548) (1996).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Emphasis omitted.) Id.

        Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403) (1997).

        Brown v. Piggly Wiggly Southern, 228 Ga. App. 629, 631 (3) (b) (493 SE2d 196) (1997).

        Avery v. Cleveland Avenue Motel, 239 Ga. App. 644, 645-646 (2) (521 SE2d 668) (1999); see Ingles Markets v. Martin, 236 Ga. App. 810, 811 (513 SE2d 536) (1999); Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998).

       Id.

       (Citations omitted.) Robinson, supra at 740.