author: Judge Harold R. Banke.

text:
    A99A1349.
    KENT v. A. O. WHITE, JR., CONSULTING ENGINEER, P.C.
    (520 SE2d 481)
   Judge Harold R. Banke.

Attorney Kent refused to pay for services rendered at his behest by expert witness White, resulting in the latter’s professional corporation bringing an action for breach of contract, account stated, and fraud and deceit. White sought compensatory and punitive damages as well as attorney fees. The jury awarded $18,407.75 for breach of contract, $15,000 for fraud, $30,840.87 for attorney fees, $1,288.54 for interest on a commercial account, and $10,000 for punitive damages. Kent appeals, asserting 15 errors.

Construed in favor of the verdict, the evidence showed that Kent hired White to reconstruct an accident so he could testify for Kent’s two clients injured in the accident. Because Kent had twice before employed White at his regular hourly rates and paid the same, White did not send Kent his fee schedule. Over the next two and one-half years, White performed services for Kent and sent Kent monthly bills for those services at his hourly rate of $125 per hour. Each invoice clearly stated that the account was due in full upon rendition of the statement, and that unpaid balances would have a service charge of one and one-half percent added each month until paid in full.

Kent never objected to the invoices or the monthly service charges, nor did he express any dissatisfaction with White’s services; he simply refused to pay the bills. White pled with Kent to pay the mounting bill and pointed out in a cover letter that prompt payment was required to avoid the appearance that payment was contingent on the outcome of the trial. Kent asked White to wait until after the first client’s trial to receive payment, which White did. When, despite "White’s testimony, the trial resulted in a defense verdict, Kent hired a second expert witness, Brown, whom Kent told that "White had been fired.

Kent told White nothing of this firing, and instead had "White perform further services in an attempt to persuade the court to ordér a new trial, and also had "White perform services in preparation for the second client’s trial. Keeping White in the dark as to the timing of the second trial, Kent had Brown testify at that trial, which also resulted in a defense verdict. Kent then refused to pay any of the bills of either White or Brown, claiming that payment had been contingent on plaintiffs’ verdicts, an arrangement that would be patently unethical. See State Bar Rules & Regulations, Rule 4-102 (d), Standard 58. Held:

1. Kent’s first six enumerations of error all hinge on the contention that the evidence did not support an award for fraud and deceit.

(a) The elements of a fraud action are an intentional false representation by the defendant designed to induce the plaintiff to act or refrain from acting, upon which the plaintiff justifiably relies, resulting in damage to the plaintiff. City Dodge v. Gardner, 232 Ga. 766, 769-770, n. 1 (208 SE2d 794) (1974). Concealing a material fact also constitutes fraud where the defendant is obliged to communicate that fact based on the particular circumstances of the case. OCGA § 23-2-53; American Petroleum Products v. Mom & Pop Stores, 231 Ga. App. 1, 5 (1) (497 SE2d 616) (1998). Furthermore, making a promise without a present intent to perform is a misrepresentation of a material fact and will support a cause of action for fraud. Howard v. Hammond, 216 Ga. App. 703, 706 (1) (455 SE2d 390) (1995).

Here the evidence supported the findings necessary for fraud and deceit. Based on prior dealings with White, Kent impliedly promised to pay White’s invoices in the new case as they were rendered, which developed into an express agreement when he did not object to the numerous monthly invoices so stating. See Sanders v. Commercial Cas. Ins. Co., 226 Ga. App. 119, 122 (2) (a) (485 SE2d 264) (1997). Kent had no intent to perform this promise, for he testified he never intended to pay the invoices unless and until he received a plaintiff’s verdict. Moreover, Kent concealed from White that White had been terminated at the end of the first trial, and instead had White perform additional services, including some for the second trial, even though he never intended to pay White for any of these services. Kent’s refusal to pay Brown under similar circumstances reflected a clear intent not to perform and a pattern of concealment and deceit.

(b) Because the evidence supported a fraud action and supported a finding that Kent procured and transacted the contract in bad faith, attorney fees were recoverable under OCGA § 13-6-11. Kopp v. First Bank of Ga., 235 Ga. App. 520, 524 (3) (509 SE2d 384) (1998); Country Pride Homes v. DuBois, 201 Ga. App. 740, 741 (2) (412 SE2d 282) (1991). The showing of fraud also justified a punitive damages award. See OCGA § 51-12-5.1 (b).

(c) With regard to its instructions on the measure of compensatory damages arising from fraud, however, the court erred. During its deliberations the jury sent out a question as to how it should determine damages for fraud. Noting it had failed to instruct the jury on this point, the court over objection instructed it that fraud damages were calculated by the enlightened conscience of the jury based on injury to the peace, happiness, or feelings of the plaintiff. This was taken from the language of OCGA § 51-12-6.

But the measure of damages in an action for fraud is the actual loss sustained as a result of the fraud. Wilson Welding Svc. v. Partee, 234 Ga. App. 619, 620 (507 SE2d 168) (1998). Moreover, at no point did White claim that the entire injury to him was to his peace, happiness, or feelings, which is when OCGA § 51-12-6 applies. Because the court improperly instructed the jury on this matter, we must reverse the $15,000 fraud portion of the judgment and remand the case for a new trial on the amount of damages for fraud. The liability finding for fraud is not disturbed. Since the punitive damages award is related to the fraud award, and since the attorney fees award may have also been related to the fraud award, these damage portions of the judgment must also be reversed and re-tried. The findings of liability for punitive damages and for attorney fees are not disturbed.

2. Kent contends the court erred in admitting evidence of his failure to pay Brown under similar circumstances. Although similar transactions are generally inadmissible (OCGA § 24-2-2), they are admissible if committed at or about the same time, when the same motive may reasonably be supposed to exist, so as to establish the intent of the defendant in the transaction being tried. Candler v. Davis & Upchurch, 204 Ga. App. 167, 169 (3) (419 SE2d 69) (1992). Frequently the defendant’s state of mind regarding one act is illustrated by other acts of a similar nature that indicate a general practice or course of conduct or display intent, motive, knowledge, or bad faith. Id.

Kent v. Brown, 238 Ga. App. 607 (518 SE2d 737) (1999), rejected this same contention of Kent’s when Kent claimed the court hearing Brown’s action to recover his expert fees erred in admitting evidence of the failure to pay White. Because of the similarity of the transactions involved and the issues of bad faith and fraud, the court did not abuse its discretion in admitting the converse evidence here. Id. The fact that the Brown transaction took place subsequent to the transaction being tried does not bar its use. Harris v. State, 255 Ga. 500, 502 (3) (340 SE2d 4) (1986); see Webster v. Boyett, 269 Ga. 191, 195 (1) (496 SE2d 459) (1998) (trial court has discretion to admit prior and subsequent acts).

3. Kent’s motion for a directed verdict on the express contract claim was properly denied. Although pricing was not explicitly discussed in their initial meeting on the new case, Kent’s prior conduct of paying White’s hourly charges and Kent’s receipt of the new bills showing hourly charges and reflecting an understanding that Kent would pay the hourly fees as they were incurred combined to supply this term to the contract, as Kent made no objection to those charges or invoices. See Sanders, 226 Ga. App. at 122 (2) (a); Kay Solar Systems v. Rome Printing Co., 160 Ga. App. 825, 826 (1) (287 SE2d 675) (1982).

4. Kent claims the court erred in instructing the jury on quantum meruit. Although not pled in White’s complaint, quantum meruit was tried by implied consent when Kent denied the existence of an express contract for the payment for White’s services. See OCGA § 9-2-7. This amended the pleadings to include the issue. OCGA § 9-11-15 (b); Lake Lanier Cottage Owners Assn. v. BMS Enterprises, 194 Ga. App. 858, 859 (392 SE2d 312) (1990).

5. Kent contends the court erred in allowing White, over objection, to argue that a verdict for Kent would cause Kent to laugh about it. Counsel has ample latitude to argue the conduct or attitude of a party with respect to the case and to make whatever inferences one can draw from such. Findlay v. Griffin, 225 Ga. App. 475, 477 (5) (484 SE2d 80) (1997). We discern no manifest abuse of the court’s broad and sound discretion in overruling this objection. Id.; cf. Ga. Power Co. v. Puckett, 181 Ga. 386, 395 (5) (182 SE 384) (1935).

6. Kent contends the court erred in instructing the jury it could award interest on interest if the principal debt and the interest thereon amounted to a liquidated demand. Hardy v. G.A.C. Finance Corp., 131 Ga. App. 282, 284 (2) (205 SE2d 526), aff’d, 232 Ga. 632 (208 SE2d 453) (1974), held there is no prohibition against charging interest on interest which is past due, where the obligation to pay interest has become a liquidated demand. Statutorily, an owner of a commercial account may charge one and one-half percent monthly interest on that portion of the account that has been due and payable for 30 days or more. OCGA § 7-4-16. Each month White added a service charge of one and one-half percent of the aggregate amount past due from the previous month, which amount included previous service charges. Based on the language in the invoices that overdue balances would be subject to the service charge, the jury could find this aggregate amount was liquidated and that the one and one-half percent could be added to it. See Haughton v. Namano, Inc., 222 Ga. App. 644, 646-647 (2) (476 SE2d 31) (1996). Moreover, the jury could award pre-judgment interest to the final invoiced amount of $18,407.75 to account for the time between the final invoice and verdict. Ga. Color Farms v. K.K.L., L.P. 234 Ga. App. 849, 851-852 (2) (507 SE2d 817) (1998).

Decided June 30, 1999 — Cert. applied for.

Reinhardt, Whitley & Wilmot, Glenn Whitley, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, Gregory S. Ellington, for appellee.

7. As the verdict separated out principal and pre-judgment interest, Kent’s claim that the verdict form was improper under Morgan v. J. B. Colt Co., 34 Ga. App. 630, 632 (7) (130 SE 600) (1925), is without merit.

The judgment is affirmed in part as to the breach of contract and interest awards. It is also affirmed as to the findings of liability for fraud, punitive damages, and attorney fees. The judgment is reversed in part and the case remanded as to amount of the damages for fraud, attorney fees, and punitive damages.

Judgment affirmed in part and reversed in part and case remanded.

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


source: Caselaw Access Project

license: Public Domain

text:
    A99A1388.
    HERNANDEZ v. THE STATE.
    (520 SE2d 698)
   Judge Harold R. Banke.

Herminio Hernandez appeals his convictions of driving while under the influence of alcohol to the extent that it was less safe to drive, driving without a license, and driving without use of a safety belt.

DeKalb County police officer Yarbro was patrolling Buford Highway at approximately 4:00 a.m. on June 8, 1997, when he observed Hernandez operating a car. Hernandez was not wearing a seat belt, the car’s headlights were off, and the car was weaving in and out of its lane. After Yarbro initiated a traffic stop, he discovered that Hernandez’s native language is Spanish although he speaks “broken” English. Yarbro was able to communicate with Hernandez to an extent, as the officer speaks “broken” Spanish. Hernandez had no driver’s license, a strong odor of alcoholic beverage was on his breath, and he otherwise appeared intoxicated. As a result, Yarbro administered a series of field sobriety tests which Hernandez performed unsatisfactorily. Yarbro then arrested Hernandez for DUI, read him his implied consent warnings, and asked that he submit to a chemical test of his blood. Hernandez responded negatively by shaking his head from side to side and saying no. With the exception of the implied consent warnings, which were read to Hernandez entirely in English, the officer and Hernandez communicated in a mixture of rudimentary English and Spanish.

After Hernandez testified through an interpreter that he had not understood his implied consent warnings, the State was allowed over defendant’s objection and motion for mistrial to impeach Hernandez by questioning him concerning two prior DUI arrests during which chemical tests had been performed on his bodily substances. Hernandez admitted that his implied consent warnings had been read to him during one arrest, and as to the other, he testified that he could not remember. Held:

1. In Hernandez’s first enumeration of error, he contends that the court’s admission of evidence of his prior DUI arrests for impeachment purposes was error.

Evidence that Hernandez had submitted to State-administered chemical tests during two prior DUI arrests established that he had been given his implied consent warnings on these two prior occasions, because such tests may be administered only after the accused has been given the warnings. OCGA § 40-5-67.1 (b); Long v. State, 185 Ga. App. 277, 278 (1) (363 SE2d 807) (1987). The trial court was authorized to find that Hernandez opened the door to being questioned on this subject, that the fact that he had submitted to chemical tests after having been given the warnings twice before increased the likelihood that he understood the warnings on this occasion, and that the probative value of the elicited testimony outweighed its prejudicial effect. We find no abuse of discretion.

There is no merit in Hernandez’s complaint that certified copies of his DUI convictions should have been admitted. This amounts to a best evidence objection, which was not raised at trial and was therefore waived. Moret v. State, 246 Ga. 5, 6 (3) (268 SE2d 635) (1980). Moreover, the State was seeking to impeach Hernandez with evidence concerning the circumstances of his arrest, not his criminal conviction. Therefore, the State was not required to prove the conviction, by introducing a certified copy or otherwise. See Wadsworth v. State, 209 Ga. App. 333, 334 (5) (433 SE2d 419) (1993); compare Hood v. State, 179 Ga. App. 387, 389 (1) (346 SE2d 867) (1986).

2. In Hernandez’s second enumeration, he contends that the trial court erred in its charge to the jury. An understanding of the issues raised requires a brief review of certain aspects of Georgia’s implied consent laws.

OCGA § 40-5-55 (a) states that any person, who operates a motor vehicle in this State and is arrested for DUI or involved in a traffic accident resulting in serious injuries or fatalities, is deemed to have given consent, subject to OCGA § 40-6-392, to a chemical test or tests of his bodily substances to determine the presence of alcohol or drugs. OCGA § 40-5-67.1 (b) requires the arresting officer to inform the person who has been arrested that he has a right to independent tests after submitting to State testing, and that his refusal to submit to State testing may be offered into evidence against him at trial. OCGA § 40-5-67.1 thus allows the person to withdraw his implied consent by refusing to submit to testing. But OCGA § 40-5-55 (b) provides that any person who is “dead, unconscious, or otherwise in a condition rendering such person incapable of refusal” to submit to testing shall be deemed not to have withdrawn his implied consent, thereby allowing the test or tests to be administered.

In State v. Tosar, 180 Ga. App. 885 (350 SE2d 811) (1986), a non-English-speaking defendant submitted to a State-administered breath test after having been read his implied consent warnings. The trial court granted his motion to suppress the results on the ground that the State failed to meet its burden of informing him of his implied consent rights. We reversed. Although we concluded that a non-English-speaking individual is the same as unconscious, we did not base our decision on OCGA § 40-5-55 (b). Instead, we held that the inability of such an individual to communicate with the investigating officer results in the State-administered test being admissible under OCGA § 40-6-392 (a) (3), which provides that the justifiable failure or inability to obtain an additional test shall not preclude admission of the State-administered test. We also declined the defendant’s suggestion that we compel the State to print the implied consent rights in languages other than English. Here, the trial court charged the jury under the authority of Tosar that the implied consent warning does not have to be read in Spanish to a Spanish-speaking individual.

Hernandez contends that the court erred in refusing to instruct the jury that a Spanish-speaking individual is the same as unconscious and therefore incapable of withdrawing his consent by refusing to submit to a State-administered test. But the undisputed evidence shows that Hernandez spoke some English, did communicate with the officer, and effectively withdrew his consent. No tests were performed. Therefore a charge concerning an uncommunicative defendant was not adjusted to the evidence.

In view of evidence that he did not understand the warnings, Hernandez claims error in the trial court’s charge to the jury that his refusal to submit to testing could be considered as evidence creating an inference that the test would show the presence of alcohol or drugs. But the court also charged the jury that this inference is rebuttable, and Hernandez was allowed to attempt to rebut it with evidence that he did not understand the warnings. We find no error.

Decided June 30, 1999.

Norman H. Cuadra, for appellant.

Gwendolyn R. Keyes, Solicitor, Margaret A. Dunaway, Thomas E. Csider, Assistant Solicitors, for appellee.

Judgment affirmed.

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


text:
    A99A1436.
    CITY OF ATLANTA BOARD OF ZONING ADJUSTMENT et al. v. KELLY.
    (520 SE2d 269)
   Judge Harold R. Banke.

The City of Atlanta Board of Zoning Adjustment and its members (collectively “BZA”) appeal the entry of default judgment which reversed the BZA’s denial of a variance to homeowner Scott Kelly.

The underlying case arose after Kelly commenced work on a construction project involving a new carport and breezeway, which encroached beyond the required rear and side yard setbacks. Although the applicable zoning ordinance mandated a seven-foot side yard setback and a ten-foot rear yard setback, Kelly planned to reduce the side yard setback from seven to two feet and the rear yard setback from ten to seven feet. Kelly obtained a building permit but failed to obtain a variance. When Kelly applied for a variance, his application encountered opposition from the Neighborhood Planning Unit and the adjacent neighbor most impacted by the changes. While construction was underway without the needed variance, on October 31, 1997, a City official instructed Kelly’s contractor to cease work.

After Kelly sought a variance, the City’s Bureau of Planning determined that his request for the side yard variance failed to satisfy any of the four criteria for granting a variance under City Code § 16-26.003. Specifically, the planning staff found that Kelly failed to show exceptional conditions based on size, shape or topography, or any unnecessary hardship or any peculiar conditions. It also decided that the requested variance to reduce the side yard setback was “inconsistent with the intent of the Zoning Ordinance.” The staff determined that the dimensions and topography of the property could adequately accommodate a carport with storage without necessitating a variance.

After conducting a hearing on Kelly’s request for a variance, the BZA determined that his request should be granted as to the rear yard setback, which was unopposed by the Bureau of Planning, but denied as to the side yard setback which was opposed by the Bureau’s staff because of the drastic impact it had on the adjacent neighbor’s property.

Within 30 days of that decision, Kelly filed a petition for relief in superior court. But due to an administrative oversight, the Bureau of Planning did not deliver a copy of Kelly’s appeal to the BZA’s counsel until nearly two months later. When the BZA did not file a response within the time allotted by the Civil Practice Act, Kelly moved for judgment by default. About three weeks later, the BZA filed a response to Kelly’s petition and to his motion for default. After a hearing, the trial court entered default judgment in favor of Kelly and reversed the BZA decision. In specifically permitting the side yard variance to only a two-foot setback, the court noted that it “would have granted Mr. Kelly’s requested relief based on the merits of his Petition and the record in this case.” BZA appeals. Held:

1. The BZA contends that the trial court erred in concluding that default judgment could be entered because it did not file a timely response to Kelly’s appeal. The BZA further claims that the City’s ordinance which sets up the procedure for appeals does not require that an answer be filed and that the time constraints imposed by the Civil Practice Act did not apply.

When granting a variance, a board of zoning appeals must consider whether the facts in the particular situation warrant relief from the general zoning ordinance under the standards set out by the delegating authority. Bentley v. Chastain, 242 Ga. 348, 349, n. 4 (249 SE2d 38) (1978); see Jackson v. Spalding County, 265 Ga. 792, 794 (2) (462 SE2d 361) (1995). Here, the BZA conducted a hearing, examined the evidence, and found that part of Kelly’s application did not satisfy the criteria for granting a variance. Kelly then filed a petition for review by the superior court. The appellate process required the BZA to provide a certified copy of the transcript, evidence, and the decision for review by the superior court. See Southern States Landfill v. City of Atlanta Bd. of Zoning Adjustment, 261 Ga. 759, 760 (2) (410 SE2d 721) (1991) (which involved City Code § 16-26.007 (1)). This was done by the BZA. Nothing in the ordinance required the BZA to file a response to Kelly’s appeal. At this point, review by the superior court was limited to whether the BZA (1) acted beyond the scope of its discretionary powers; (2) abused its discretion; (3) or acted in an arbitrary or capricious manner. Jackson, 265 Ga. at 794 (3). Thus, the sole function of the reviewing court was to determine (1) whether there was any evidence to support the findings of the BZA and (2) whether the BZA had abused its discretion. Hewes v. Cooler, 169 Ga. App. 762 (315 SE2d 276) (1984).

Decided June 30, 1999.

David D. Blum, Lemuel H. Ward, Michael H. Hilliard, for appellants.

Powell, Goldstein, Frazer & Murphy, Tracy M. Culver, Carl E. Westmoreland, Jr., Kirwan, Parks, Chesin & Miller, Larry Chesin, for appellee.

But here, notwithstanding the fact that an appealable decision had been rendered by the BZA, the court imposed judgment by default and decided the merits. This procedure was unavailable and inappropriate. See Bentley, 242 Ga. at 351-352 (1) (courts are not empowered to readjudicate decision by zoning board of appeals). The merits of the action had already been determined at the hearing held by the BZA. LaFave v. City of Atlanta, 258 Ga. 631, 632 (4) (373 SE2d 212) (1988).

On remand, unless Kelly proves that the BZA exceeded its discretionary powers or acted arbitrarily and capriciously, the decision of the BZA must be affirmed. Jackson, 265 Ga. at 794 (2); City of Atlanta Bd. of Zoning Adjustment v. Midtown North, 257 Ga. 496, 499 (4) (360 SE2d 569) (1987).

2. In light of the above holding, the remaining enumeration is now moot.

Judgment reversed and case remanded with direction.

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

       The building permit provides in pertinent part, “THE APPROVAL OF PLANS SHALL NOT PREVENT THE BUILDING OFFICIAL FROM THEREAFTER . . . PREVENTING BUILDING OPERATIONS BEING CARRIED ON THEREUNDER WHEN IN VIOLATION OF THE BUILDING CODE ZONING ORDINANCE OR ANY OTHER ORDINANCE OF THE CITY OF ATLANTA.”

       At the BZA hearing, Kelly reduced his request to a five-foot setback and assured the members of the board, “[a]nd I won’t over step five feet.” Notwithstanding this reassurance, the BZA voted unanimously to reject the five-foot request because it did not meet the criteria for a variance.

        “Notice to Board: Upon such filing, the clerk of the superior court shall give immediate notice thereof to the secretary of the board. Within the time prescribed by law, the board shall cause to be filed with said clerk a duly certified copy of the proceedings had before the board, including a transcript of the evidence heard before it, if any, and the decision of the board.” City Code § 16-26.007 (2).


text:
    A99A1474.
    THE STATE v. BAKER.
    (521 SE2d 24)
   Judge Harold R. Banke.

Matthew Baker moved to exclude statements he made orally and in writing that he owned certain cocaine discovered by police. After hearing evidence, the trial court found that not only were Miranda warnings not timely given, but the confessions were involuntary. The State appeals the order excluding the confessions. See OCGA § 5-7-1 (a) (4).

Construed in favor of the court’s order (see Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994)), the evidence showed that after observing traffic violations, Officer Davis followed but did not stop a car driven by Mark Baker in which his brother Matthew was a passenger. After the car turned down an alley and stopped, he observed Matthew run to the front of a house, stay briefly, and begin walking to the back of the house. Mark had also walked to the house and stood on its back porch.

Officer Davis stopped to speak with both men. The owner of the house (a relative of the Bakers) and additional officers appeared. Officer Davis received consent from the owner for police to search around the house for drugs. Behind some boards nailed to the side of the house, they found a plastic bag of cocaine. Officer Davis immediately handcuffed Matthew, brought him to the front of the house, and told him that he knew the drugs belonged to him and he should own up to it; otherwise, Officer Davis would have the bag fingerprinted. Matthew said nothing.

Officer Davis then turned to the homeowner and announced he could be arrested for the drugs if Matthew did not confess. Matthew said nothing. Frustrated, Officer Davis then stated he would arrest Mark, Matthew, and the homeowner if Matthew did not confess. Matthew said nothing. The homeowner then joined in the fray, telling Matthew to confess if the drugs belonged to him. Another relative appeared and demanded to know why the police were pressuring Matthew to confess to owning drugs that no one knew about. While pointing a finger at the relative and demanding that he leave, a nearby officer unsnapped his revolver holster and began to pull the weapon out. Officer Davis reiterated his threat to take all three men to jail if Matthew did not confess that he owned the drugs. Not wanting his relatives to go to jail, Matthew finally admitted the drugs belonged to him. Officer Davis asked Matthew to write out a statement to that effect, and Matthew agreed.

Only at this point did Officer Davis read Matthew his Miranda rights. Matthew signed a document waiving those rights and reluctantly wrote out a short confession on the spot, in which he admitted to owning the drugs. Held:

1. When an accused objects to the admission of his confession,

the state must prove, by a preponderance of the evidence, that the confession was voluntary, and, if the confession is the product of a custodial interrogation by officers of the government, that the confession was preceded by the [accused’s] knowing and voluntary waiver of his Miranda rights.

(Citations omitted.) Brooks v. State, 244 Ga. 574, 581 (2) (261 SE2d 379) (1979); see Perry v. State, 255 Ga. 490, 492 (2) (339 SE2d 922) (1986); McLeod v. State, 170 Ga. App. 415 (1) (317 SE2d 253) (1984). Here the trial court found the State failed to prove either voluntariness or a valid Miranda waiver.

We address the findings on the Miranda waiver first. The standard of review is threefold: (a) if there is any evidence to support those findings, we will not disturb them; (b) the court’s decisions regarding questions of fact and credibility must be accepted unless clearly erroneous; and (c) we construe the evidence to uphold the trial court’s findings. Tate, 264 Ga. at 54 (1).

Baker’s oral and written confessions resulted from a custodial interrogation. Handcuffed and surrounded by several police officers, Matthew’s freedom of action was clearly curtailed so as to establish custody for Miranda purposes. United States v. Smith, 3 F3d 1088, 1097-1098 (V) (A) (7th Cir. 1993); see Thomason v. State, 268 Ga. 298, 302-303 (2) (c) (486 SE2d 861) (1997). While Matthew was in custody, Officer Davis interrogated him by express questions and also by words and actions designed to elicit an incriminating response. See Rhode Island v. Innis, 446 U. S. 291, 300-301 (100 SC 1682, 64 LE2d 297) (1980); Franks v. State, 268 Ga. 238, 240 (486 SE2d 594) (1997). Because Officer Davis failed to warn Matthew of his Miranda rights, his oral statements were inadmissible. Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966); Metheny v. State, 197 Ga. App. 882, 884-885 (1) (b) (400 SE2d 25) (1990).

2. The question then arises whether reading Matthew his Miranda rights prior to his writing out a confession on the spot removed the taint of improper coercion from the written statement. The Supreme Court held in Oregon v. Elstad, 470 U. S. 298, 314 (105 SC 1285, 84 LE2d 222) (1985), that an unwarned admission does not automatically bar a later confession preceded by proper warnings. However, if actual coercion attended the first statement, then the subsequent confession is normally rendered inadmissible under the “fruit of the poisonous tree” doctrine. Martin v. Wainwright, 770 F2d 918, 928 (11th Cir. 1985); cf. Elstad, 470 U. S. at 314.

Moreover, in determining whether Miranda rights were knowingly and voluntarily waived as to the second confession, the court must consider the effect of the first statement. As recognized by the Supreme Court in United States v. Bayer, 331 U. S. 532, 540 (67 SC 1394, 91 LE2d 1654) (1947), once the accused has made the oral confession, he has “let the cat out of the bag.” See United States v. Tyler, 164 F3d 150, 156-157 (2) (3rd Cir. 1998).

Thus, the first issue is whether the unwarned statement was voluntarily made. Livingston v. State, 264 Ga. 402, 407-408 (6) (444 SE2d 748) (1994); Moore v. State, 263 Ga. 11 (1) (427 SE2d 766) (1993). This inquiry focuses on whether police used coercive tactics to extract the admission. Metheny, 197 Ga. App. at 885-886 (1) (c). In light of the handcuffing of Matthew, the direct' threats to Matthew that they would jail his relatives if he did not confess, the spontaneous observation by a third party that the police were pressuring Matthew to confess, and the actions of the officer in beginning to pull a gun in the emotionally charged and volatile atmosphere where police were demanding that Matthew confess, evidence supported the court’s finding that under the totality of the circumstances police coercive activities resulted in an involuntary confession.

At this point a presumption arose that the coerced admission tainted the subsequent written confession. This presumption is overcome only if there was a break in the stream of events between the coerced statement and the subsequent confession such that the coercion surrounding the first statement sufficiently dissipated so as to make the second statement voluntary. Clewis v. Texas, 386 U. S. 707, 710 (87 SC 1338, 18 LE2d 423) (1967); United States v. Perdue, 8 F3d 1455, 1467-1468 (II) (10th Cir. 1993); United States v. Henry, 604 F2d 908, 921 (IV) (5th Cir. 1979). If the statements are closely or causally connected, then the subsequent statement is also inadmissible. Gilpin v. United States, 415 F2d 638, 641-642 (5th Cir. 1969); see United States v. Jenkins, 938 F2d 934, 940-941 (III) (A) (2) (9th Cir. 1991); Grant v. Wainwright, 496 F2d 1043, 1048-1049 (5th Cir. 1974).

Evidence supported the court’s finding that same coercion also attended the subsequent written confession. Not only did the written confession immediately follow the coerced admission, but it took place at the same location under the watchful eye of the officers who had just forced the first confession. See Perdue, 8 F3d at 1467-1468. Moreover, before reading him Miranda rights, Officer Davis had wrested a commitment from Matthew that he would put the just stated admission in writing. Cf. Mobley v. State, 164 Ga. App. 154, 158 (6) (296 SE2d 617) (1982). The reading of the Miranda rights did little to dissipate the coercion present throughout the encounter.

3. The above analysis also supports the court’s finding that the confessions were not freely and voluntarily given. The court did not clearly err in excluding all of Matthew’s statements.

Decided June 30, 1999.

J. David Miller, District Attorney, James B. Threlkeld, Assistant District Attorney, for appellant.

Copeland & Haugabrook, Karla L. Walker, for appellee.

Judgment affirmed.

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


text:
    A99A1512.
    WHITE CLOUD CHARTER, INC. v. DeKALB COUNTY BOARD OF TAX ASSESSORS.
    (520 SE2d 708)
   Judge Harold R. Banke.

White Cloud Charter, Inc. (“White Cloud”) appeals the judgment of the Superior Court of DeKalb County affirming the decision of the DeKalb County Board of Equalization (“Board”) upholding an ad valorem tax assessment on an aircraft owned by White Cloud.

When White Cloud’s aircraft was appraised for tax year 1997 at a fair market value of $5,894,000, White Cloud appealed to the Board. After the Board found in favor of DeKalb County (“County”), White Cloud appealed to the superior court. In its appeal, White Cloud challenged both the taxability of its aircraft and, in the alternative, the failure of the Board to apportion the taxes since the airplane was only in this State for 164.5 days of the year.

The superior court conducted a de novo review. At issue was the applicability of OCGA § 48-5-16 (e), which subjects a nonresident’s aircraft to ad valorem taxation in a county where the aircraft has its “primary home base.” The legislature defined “primary home base” as: “an airport where an aircraft is principally hangared or tied down and out of which its flights normally originate.” OCGA § 48-5-16 (e) (1) (B).

Prior to trial, the parties stipulated to these facts: (1) In 1996, 45 flights originated from Peachtree DeKalb Airport (“PDK”) and no other single airport location had more than or an equal number of originating flights; (2) In 1996, three flights originated from White Plains, New York; and (3) In 1996, this aircraft was physically located in White Plains, New York on 34 different dates and on either 186 or 159.25 days at PDK airport.

Notwithstanding these stipulated facts, White Cloud argued that in determining the “primary home base,” the Board also had to consider the location of its company office, the New York residency of the flight crew members, and the location at which most maintenance activities were performed. White Cloud emphasized its status as a Delaware corporation with a principal place of business in White Plains, New York. It offered evidence that in 1997 it had rented hangar space in White Plains. According to the chief pilot’s affidavit, “[w]e consider White Plains to be the home base of the aircraft and it receives all of its scheduled maintenance there.”

The trial court found that while White Cloud’s principal place of business may well have been New York, the aircraft at issue was principally hangared at PDK airport and the aircraft’s flights normally originated from there. Determining that under OCGA § 48-5-16 (e) the plane’s primary home base was in DeKalb County, the court upheld the tax assessment of $94,681.21 on the aircraft. Enumerating five errors, White Cloud appeals. Held:

1. White Cloud contends that the trial cohrt erred in affirming the Board because revenue statutes, when ambiguous, must be strictly construed in favor of the taxpayer and against the taxing authority. White Cloud claims that the definition of “primary home base” is ambiguous and must be construed against the taxing authority.

Under the guise of construing a statute, we are not at liberty to rewrite it. Cooper v. Edwards, 235 Ga. App. 48, 50 (508 SE2d 708) (1998); Tharpe v. State, 207 Ga. App. 900 (1) (429 SE2d 342) (1993). Nothing in the statute authorizes consideration of matters not relating to where the aircraft is principally hangared or tied down and from where its flights normally originate. We cannot create ambiguity where there is none.

As the party initiating the appeal, White Cloud bore the burden of proving that in 1996 this aircraft was not principally hangared at PDK airport and that its flights normally did not originate from that airport. See Hirsch v. Joint City County Bd. of Tax Assessors, 218 Ga. App. 881, 882 (1) (463 SE2d 703) (1995). This it failed to do. The stipulated facts, as well as the flight logs entered as exhibits, indicate that this particular aircraft was principally hangared in DeKalb County and nowhere else, and that most of the aircraft’s flights originated from PDK airport in the County.

2. White Cloud claims that the court erred in affirming the Board’s decision because the Board’s calculation method was arbitrary, capricious and had no basis in fact or law. It claims that the 1997 taxes should have been based on information from 1997, not 1996.

This argument overlooks the obvious problem that it would not be possible to determine the location of the principal hangaring and the normal origin of flights until after the year concluded. Otherwise, aircraft might be subject to assessment in the wrong county. Moreover, a county’s appraiser would need to be omniscient to anticipate that an aircraft would be primarily located within the county’s boundaries and have most of its flights originating therefrom nearly a year before the flights occurred and the aircraft had been hangared.

Thomas Starnes, a 25-year veteran appraiser for the County, explained that initially a fair market value determination is made using a standard blue book for aircraft to ensure uniformity in assessments. Starnes testified that after this particular aircraft had been appraised, White Cloud appealed. Starnes then requested and obtained the flight records for 1996 from White Cloud. By using that flight data, Starnes determined on which calendar dates this aircraft had physically been present at different airports and was able to ascertain the origin of its flights. Starnes testified that the taxability of an aircraft is mainly determined by the flight logs, which for this particular plane showed mainly DeKalb both as to location and flight origination for calendar year 1996.

Notwithstanding White Cloud’s suggestion that the County “could have borrowed” from commercial airliner statutes which analyze the ratio of plane hours in this State to total system plane hours in order to calculate the primary home base of an aircraft, White Cloud cites no authority, and we know of none, in support of this methodology. In light of the express terms of OCGA § 48-5-16 and in the absence of applicable authority to the contrary, we cannot say that the trial court abused its discretion or acted arbitrarily in this matter.

3. White Cloud contends that the court erred in affirming the decision of the Board because this aircraft was not in Georgia on January 1 of either 1996 or 1997 and, thus, was not subject to taxation under OCGA § 48-5-10.

While the applicable Code section says “principally hangared or tied down” and “out of which its flights normally originate,” it does not require that the aircraft itself be physically present in a county on the first day of the calendar year. Otherwise, resourceful owners could strategically situate their aircraft outside this State for one day and thereby avoid tax liability for an entire year.

4. White Cloud claims that the court erred in affirming the Board even if the statute at issue is not ambiguous and even if the County’s method of calculation was not improper under the statute, because the tax assessment did not apportion the tax.

Although the Board claims that White Cloud did not raise the issue of apportionment, the notice of appeal shows otherwise, as does the transcript of the hearing. But, in these circumstances, apportionment was neither required nor authorized by law. See OCGA § 48-5-543. The apportionment statute applies to airline companies and requires the submission of a tax return to the State. OCGA § 48-5-541 (a). Here, White Cloud admitted that this aircraft had not been used for commercial purposes in 1996. White Cloud was not an airline company. In addition, White Cloud stipulated to the fact that it did not apply for apportionment with the Georgia Department of Revenue for this aircraft for 1996 and 1997. White Cloud offers no authority and we have found none which requires a county to apportion ad valorem taxes under this statute.

Decided June 30, 1999 — Cert. applied for.

Arnall, Golden & Gregory, Allen I. Hirsch, Shawn A. Kachmar, for appellant.

Jones, Morrison, Womack & Dearing, James E. Dearing, Jr., Ragsdale, Beals, Hooper & Seigler, Lisa F. Stuckey, for appellee.

5. White Cloud asserts that the court erred in affirming the Board’s decision because the Board failed to “specifically decide each question presented by the appeal,” and failed to specify, in its decision, “the reason or reasons for each such decision as to the specific issues . . . raised by the taxpayer.” OCGA § 48-5-311 (e) (6) (D) (i).

This argument lacks merit for two reasons. First, by failing to obtain a ruling from the trial court on the Board’s purported error, White Cloud waived the issue. See Wilkes v. Redding, 242 Ga. 78, 80 (247 SE2d 872) (1978). Second, even assuming arguendo the existence of an error, any such purported error would have been rendered moot after the trial court conducted its de novo review of the issues. OCGA § 48-5-311 (g) (3); see Hirsch, 218 Ga. App. at 882 (1).

Judgment affirmed.

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

       The statute provides in pertinent part: “[a]ny person who owns tangible personal property in the form of an aircraft which has its primary home base in a county in this state other than the county in which such person maintains a permanent legal residence shall return such property for taxation to the tax commissioner or tax receiver of the county in which such primary home base is located.” OCGA § 48-5-16 (e) (2).


author: Pope, Presiding Judge.

text:
    A99A0650.
    BUTLER v. DAWSON COUNTY.
    (518 SE2d 430)
   Pope, Presiding Judge.

Jason John Butler sued Dawson County and Angela Alexander for injuries he received in an automobile collision. The county filed a motion to dismiss, arguing that Butler’s suit against it was barred by sovereign immunity. The superior court granted the motion to dismiss the county and Butler appeals. For the following reasons, we conclude that the superior court correctly determined that the county was immune from suit and affirm.

The complaint alleged that on February 1, 1996, Alexander, who was intoxicated, negligently drove into Butler’s lane of travel and caused the collision. The complaint claimed that Alexander should not have been driving at the time of the accident because she had been serving a sentence for revocation of probation for DUI. The complaint stated that despite the Dawson County jail officials’ knowledge of Alexander’s motor vehicle violations, and despite the fact that Alexander had no driver’s license, the officials permitted Alexander to leave the jail to drive herself to a doctor’s appointment.The complaint alleged that the county was insured and that, accordingly, the county had waived immunity to the extent of its coverage. The complaint stated that the county should have detained Alexander and that by and through Alexander had caused the accident. The complaint did not allege that the vehicle which Alexander was driving at the time of the collision was the county’s.

Dawson County filed a motion to dismiss. In its order granting the motion, the superior court found that the vehicle Alexander was driving in the collision was her personal car. The court found that Alexander had been released from custody before the accident and that, accordingly, she had not been acting under the control or direction of the county at the time of the accident. The court rejected Butler’s argument that the county had abdicated its responsibility to provide Alexander medical treatment, as required under OCGA § 42-5-2. The court noted that there were no allegations that Alexander was required to report back to the jail, nor were there allegations that anyone would follow up on her activities once she was released. The court concluded that once Alexander was released from the supervision of the jail officials, the county was not liable for her actions and that there was no waiver of the county’s sovereign immunity under OCGA § 33-24-51 (a).

Pursuant to the 1991 amendment to the Georgia Constitution, “sovereign immunity extends to the state and all of its departments and agencies.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). This immunity also extends to counties. See Gilbert v. Richardson, 264 Ga. 744, 747 (2) (452 SE2d 476) (1994). “The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). Furthermore, OCGA § 36-1-4 provides that a county is not liable to suit for any cause of action unless made so by statute.

Butler argues that because Dawson County had purchased automobile liability insurance, OCGA § 33-24-51 provides a waiver of sovereign immunity in this case. Butler contends that, as the opponent of the county’s motion to dismiss, the pleadings should be construed broadly and in his favor, and that this construction precludes dismissal.

We recognize the strict standard for granting a motion to dismiss for failure to state a claim: such a motion should be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of the claim. Even taking this standard into account, however, we agree with [the county] that dismissal is warranted.

(Citations and punctuation omitted.) Dept. of Transp. v. Jackson, 229 Ga. App. 321, 322 (494 SE2d 20) (1997).

Pursuant to subsection (a) of OCGA § 33-24-51 counties are authorized to exercise their discretion in buying liability insurance to cover damages, including those resulting from bodily injury or death “arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the . . . county.” Subsection (b) of the statute provides:

[w]henever a . . . county . . . shall purchase the insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties, its governmental immunity shall be waived to the extent of the amount of insurance so purchased.

Despite the provisions of this statute, “procurement of insurance under this statute does not constitute a waiver of sovereign immunity in regard to damages caused by the county’s negligence not connected with motor vehicles.” (Citations and punctuation omitted.) Lincoln County v. Edmond, 231 Ga. App. 871, 873 (1) (501 SE2d 38) (1998).

The cases Butler cites in support of his position that sovereign immunity has been waived involve conduct either by a deputy or by an inmate under the direction and control of a county employee. See, e.g., Gilbert v. Richardson, 264 Ga. at 751-753 (immunity waived to the extent of insurance coverage where deputy sheriff wrecked causing injuries to the plaintiff while responding to an emergency call). In Crider v. Zurich Ins. Co., 222 Ga. App. 177, 179 (2) (474 SE2d 89) (1996), this court concluded that the county waived immunity to the extent of its insurance coverage where an inmate was injured while working on a county-owned backhoe operated by a county employee. See also Hall County v. Loggins, 110 Ga. App. 432-433 (1), (3) (138 SE2d 699) (1964).

Decided May 20, 1999

Reconsideration denied July 1, 1999.

Weiner, Yancey, Dempsey & Diggs, Beryl H. Weiner, John C. Yancey, Jennifer A. Riddick, for appellant.

Barnhart, O’Quinn & Williams, Steven D. Barnhart, Kenneth E. Jarrard, for appellee.

In this case the complaint does not allege that Alexander was under the direction and control of the county. Rather, here the complaint alleges that the county was negligent in not detaining Alexander and in permitting her to leave the jail. There are no allegations that the car was owned by the county, nor are there allegations that the car was operated by an authorized officer, agent, servant, attorney, or employee in the performance of his or her official duties. According to the complaint itself, Alexander had been released from custody at the time of the accident. There were no allegations that she was required to report back to jail or that anyone would follow up on her activities once she was released. Under the allegations of the complaint, there is no waiver of immunity under OCGA § 33-24-51 (a). See Harry v. Glynn County, 269 Ga. 503, 504 (1) (501 SE2d 196) (1998) (no waiver based on the purchase of insurance where the allegations against the paramedic involved medical issues and did not arise from the use of a motor vehicle).

This conclusion comports with the result reached in Long v. Hall County, 219 Ga. App. 853, 857 (2) (b) (467 SE2d 186) (1996), in which the plaintiff sued Hall County Correctional Institute and others for injuries from an accident allegedly caused by an inmate who had escaped from that facility. This court concluded that OCGA § 33-24-51 did not apply because the liability of the county departments was not predicated upon their alleged negligent use of an insured motor vehicle. See also Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995).

Judgment affirmed.

Smith and Eldridge, JJ, concur.

       In addition to the sovereign immunity arguments addressed here, the county also argued that it was not liable for acts of the deputies of the sheriff’s department. These arguments are not at issue in this appeal.

       In an amendment to its order, the court made clear that plaintiff’s claims against defendant Alexander, who had not been found in Georgia, survived.


author: Ruffin, Judge.

text:
    A99A0412.
    FLAMBEAU CORPORATION v. MORGAN COUNTY BOARD OF TAX ASSESSORS.
    (520 SE2d 275)
   Ruffin, Judge.

Unhappy with the Morgan County Board of Tax Assessors’ valuation of its personal property for tax purposes, Flambeau Corporation appealed its assessment to the county board of equalization, which lowered the assessment. The Board of Tax Assessors (the Board) then filed a de novo appeal to the superior court pursuant to OCGA § 48-5-311 (g). Following a jury trial, the jury valued Flambeau’s machinery and equipment at $8,366,500, the amount proposed by the Board, and the trial court entered judgment in that amount.

In its sole enumeration of error, Flambeau contends that the trial court erred in entering judgment upon the jury verdict because all value evidence submitted by the Board “was of ‘value in use in place’ which is not a valid or legal standard of value.” Flambeau does not contend generally that the evidence was insufficient to support the verdict and states in its brief that “the underlying issue is one of law, only.” Thus, the only issue properly raised by Flambeau’s enumeration is whether use of a “value in use in place” standard is improper as a matter of law, not whether the evidence in this case supported the jury’s valuation under such a standard.

Unfortunately, in the argument section of its brief, Flambeau does not directly address the validity of a “value in use in place” standard as a matter of law. Rathér, Flambeau argues that (1) the Board improperly adjusted the value of equipment and machinery to include freight and installation costs, thus “valuing equipment used by [Flambeau] as a separate class of tangible property than identical equipment held by other taxpayers for sale”; (2) the Board improperly included the value of fixtures and real property improvements in the value of Flambeau’s personal property; and (3) the Board erroneously made a piecemeal valuation of parts of a going business instead of valuing the business as a whole. Of these three arguments, only the first has any relation to the issue raised in Flambeau’s enumeration, and it goes more to the application of a “value in use in place” standard than to the propriety of using such standard in the first place.

Pursuant to OCGA § 48-5-7 (a), all tangible property is to be assessed based on its “fair market value.” OCGA § 48-5-2 (3) defines fair market value as

the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm’s length, bona fide sale. With respect to the valuation of equipment, machinery, and fixtures when no ready market exists for the sale of the equipment, machinery, and fixtures, fair market value may be determined by resorting to any reasonable, relevant, and useful information available including, but not limited to, the original cost of the property, any depreciation or obsolescence, and any increase in value by reason of inflation.

OCGA § 48-5-2 (3) (A) provides that

[i]n determining the fair market value of a going business where its continued operation is reasonably anticipated, the tax assessor may value the equipment, machinery, and fixtures which are the property of the business as a whole where appropriate to reflect the accurate fair market value.

OCGA § 48-5-2 (3) (A) clearly authorizes the tax assessor to value the assets of a going concern “as a whole,” rather than valuing such assets as if they were to be sold piecemeal. James Nolan, the county’s chief appraiser during the time in question, testified that, if a plant’s assets were to be dismantled and sold piecemeal, costs for shipping and installing the equipment in a new location would not be included in the price paid by the purchaser. However, if the plant were to be sold as a going concern, with the equipment already installed and in use as an operating unit, such costs would be reflected in the purchase price. In other words, someone purchasing all the assets of a going concern will pay more than someone purchasing the same assets piecemeal, since the purchaser in the first instance will not have to incur the additional expenses, such as transportation and installation, necessary to assemble the equipment and integrate it into an operational unit. Thus, a piece of equipment in place and in operation as part of a going business is worth more than the same piece of equipment sitting idle.

Flambeau does not contest the validity of this analysis and indeed admits in its reply brief that it is “partly correct.” It seems clear that, in authorizing the assets of a going concern to be valued “as a whole” for tax purposes, OCGA § 48-5-2 (3) (A) contemplates that the assets are to be valued as installed and in use on their current site. If the assets “as a whole” were to be valued as if they were to be dismantled for shipping and installation in a new location, there would be no reason for the statute to require that the “continued operation” of the business be “reasonably anticipated.” We note that courts in other states have upheld the use of a similar analysis in determining the fair market value of a going concern’s tangible assets. See Sorokach v. Trusewich, 35 N. J. Super. 86, 92 (113 A2d 194) (1955) (goal in determining fair market value of machinery and equipment of going business is “to determine ‘the fair market value of the machinery in place at the defendant’s factory’ ”); Boise Cascade Corp. v. Dept. of Revenue, 12 Ore. Tax. 263, 268-269 (Ore. Tax. Ct. 1991) (market value of taxable property includes “assemblage value,” or “[v]alue created by assembling separate parts into an integrated whole,” including “‘start up’ expenses incurred in bringing the assemblage to the point where it operates as an integrated unit”); Lionel Trains v. Chesterfield Township, 224 Mich. App. 350, 354-355 (568 NW2d 685) (1997) (upholding application of “in use” multiplier, as well as inclusion of freight and installation costs, in determining fair market value of property in use).

Decided July 1, 1999.

Zimmerman & Associates, James G. Killough, for appellant.

Lambert & Roffman, Allan R. Roffman, Marvin J. Reitman, Jr., Hulsey, Oliver & Mahar, Thomas L. Fitzgerald, for appellee.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Warren R. Calvert, Senior Assistant Attorney General, Michael P. Ludwiczak, amici curiae.

Because Flambeau has not shown that “value in use in place” is, as a matter of law, an inappropriate method of determining fair market value for taxation purposes, and because it does not contend that the Board’s evidence in general was insufficient to sustain the jury’s verdict, its sole enumeration of error is without merit.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A99A0761.
    PARKS v. STATE FARM GENERAL INSURANCE COMPANY.
    (520 SE2d 494)
   Smith, Judge.

This is the second appearance of this property insurance litigation before this court. The relevant facts may be found in Parks v. State Farm &c. Ins. Co., 231 Ga. App. 26 (497 SE2d 575) (1998) (“Parks I"). In Parks I, the trial court granted summary judgment to State Farm on the ground that no binder for insurance had been issued to Parks, the alleged insured. Id. at 28. We reversed, holding that the conduct of State Farm’s agent, “including his acceptance of the premium check, coupled with the parties’ past course of dealings, was sufficient evidence to foreclose summary judgment as to whether a binder for temporary protection had been created.” Id. at 29.

Upon return of the case to the trial court, State Farm renewed its motion for summary judgment on the ground that Parks failed to comply with the policy requirements that he provide a sworn statement of proof of loss and bring any suit within one year of the date of loss. State Farm also moved to dismiss the action for failure to proceed in the name of the real party in interest, Southern General Insurance Company. The trial court declined to dismiss the claim but substituted Southern General as the party plaintiff and granted the renewed motion for summary judgment. Because we agree with the trial court that, if a binder existed, Parks and Southern General were equally bound by the provisions of the relevant policy requiring that suit be brought within one year, we affirm on that basis and do not reach the issue of the real party in interest.

1. We first address Parks’s contention that the trial court’s decision was foreclosed by the “law of the case” rule. See OCGA § 9-11-60 (h). Parks contends that the trial court’s earlier ruling and our affirmance bar any further consideration of summary judgment here, because State Farm raised the issue of the policy provisions in its earlier motion for summary judgment. We disagree, because the rule applies only to actual decisions, not to issues raised by the parties but never ruled upon:

The “law of the case” has been defined as a controlling legal rule established by a previous decision between the same parties in the same case. However, the principle only establishes the law of the case in its then existing evidentiary posture. When a case is brought to this court, all questions as to pleadings and the effect of evidence adjudicated by this court are binding as the law of the case on this court and in the court below, unless additional pleadings and evidence prevail to change such adjudications.

(Citations, punctuation and emphasis omitted.) Richards v. First Union Nat. Bank &c., 204 Ga. App. 660, 662 (1) (420 SE2d 352) (1992). Here, although State Farm had raised the issue of compliance with policy provisions, the trial court’s earlier grant of summary judgment was based solely on the non-existence of a binder. Moreover, Parks did not raise this issue in his previous appeal; we noted in Parks I that “[i]n his sole enumeration of error, Parks contends that the trial court erred in ruling that State Farm did not issue a binder for insurance.” Id. at 28. “Where the second motion for summary judgment is based on matters not involved in the decision on the first motion, the law of the case is not involved.” (Citations and punctuation omitted.) Modern Roofing &c. Works v. Owen, 174 Ga. App. 875, 876 (1) (332 SE2d 14) (1985). The issue of a contractual limitation on Parks’s claim was not previously ruled on below, enumerated as error, or discussed in Parks I, and the law of the case rule is inapplicable here.

2. We accordingly address the limitation in State Farm’s policy providing that “[n]o action shall be brought unless there has been compliance with the policy provisions and the action is started within one year after the date of loss or damage.” OCGA § 33-24-33 provides:

(a) Binders or other contracts for temporary insurance may be made orally or in writing and shall be deemed to include all the usual terms of the policy as to which the binder was given together with any applicable endorsements that are designated in the binder, except as superseded by the clear and express terms of the binder.

Here, the binder was allegedly established by the agent’s oral representations to Parks, as well as the course of their past dealings over a 14-year business relationship. The undisputed evidence demonstrates that Parks was renewing a State Farm policy that had been in force for some time and had lapsed shortly before his conversation with the agent. Parks I, supra at 26. An underwriter for State Farm gave undisputed testimony that the policy that would have been issued on the alleged binder was identical to the policies insuring the same property that State Farm had issued to Parks in 1988 and 1991. Parks has offered no evidence of any binder terms superseding the policy conditions for filing suit.

Cincinnati Ins. Co. v. Stuart, 139 Ga. App. 80 (227 SE2d 771) (1976), cited by Parks, is inapposite here. In Stuart, no evidence was presented that an oral binder for coverage of different property was intended as a rider or endorsement on an existing policy, and that policy was properly excluded from evidence. Id. at 82 (1). Here, in contrast, the undisputed evidence demonstrates that the binder was intended as a renewal of a previous State Farm policy issued on the same property, and Parks relies on the provisions of that policy in his complaint.

The property damage at issue here occurred February 21, 1993. Parks I, supra at 27. The complaint in this action was filed September 10, 1995. Parks admitted in response to State Farm’s request for admission that he did not file this action within one year of the date of damage. The one-year limitation period is valid and enforceable, Shelter America Corp. v. Ga. Farm &c. Ins. Co., 209 Ga. App. 258, 259-260 (1) (433 SE2d 140) (1993), and the trial court correctly granted summary judgment on this basis.

3. Because Parks’s claim fails for the reasons stated in Division 2, any issue of the real party in interest in this action is moot. If Southern General were found to be a subrogee of Parks, it would “stand in his shoes” and assume only those claims that he has, subject to any defenses that could be asserted against him. Parks must have had some right of recovery to which Southern General could succeed by subrogation. Travelers Ins. Co. v. Commercial Union Ins. Co., 176 Ga. App. 305, 309 (335 SE2d 681) (1985). Since summary judgment in State Farm’s favor is proper under the terms of the policy in any event, we do not reach the issue of the real party in interest here.

Decided July 2, 1999.

Jenkins & Nelson, Peter R. Olson, for appellant.

Magruder & Sumner, Clay M. White, for appellee.

Judgment affirmed.

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


author: Johnson, Chief Judge.

text:
    A99A1186.
    HARRIS v. THE STATE.
    (520 SE2d 496)
   Johnson, Chief Judge.

Charles Harris appeals from his armed robbery conviction. He argues that while the evidence would have authorized a conviction of robbery by force or intimidation, it was insufficient to support the armed robbery conviction because there was no evidence that he actually possessed a weapon. This argument is without merit.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that Harris approached the counter of the Dollar General Store and placed two items on the counter. After the cashier rang up the items, Harris told her he had a gun and demanded that she give him the money in the cash register. He stepped behind her and pressed something hard against her back, telling her to open the register or he would shoot her. Although the cashier did not see any weapon, she testified that the object felt as if it could have been a gun. The cashier had difficulty opening the register, and as she tried to do so, Harris told her “over and over” that if she did not get the register open, he would shoot her.

A conviction for armed robbery may be sustained even though the weapon itself was not seen by the victim. Jones v. State, 209 Ga. App. 138, 139 (433 SE2d 106) (1993). What is required is some physical manifestation of a weapon or some evidence from which the presence of a weapon may be inferred. Id.

The jury in this case was authorized to infer from the evidence the presence of a weapon, as well as a reasonable apprehension by the cashier that the weapon might be used. See Moody v. State, 258 Ga. 818, 819-820 (1) (375 SE2d 30) (1989); Smith v. State, 215 Ga. App. 673, 674-675 (2) (452 SE2d 526) (1994). The evidence was sufficient for a jury to find Harris guilty of armed robbery beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Sanders v. State, 204 Ga. App. 37, 38-39 (2) (419 SE2d 24) (1992).

Decided July 2, 1999.

Fanning & Hudson, Steven E. Fanning, for appellant.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Andrews, Presiding Judge,

text:
    A99A0326.
    KEY et al. v. GRANT.
    (520 SE2d 277)
   McMurray, Presiding Judge.

Kevin Lewis shot and killed 18-year-old Victor Key (“the decedent”) during a late night brawl. The decedent’s father, Vance Key, Sr., and decedent’s mother, Connie Jones Key, individually and as the decedent’s estate’s temporary administrator, filed this wrongful death action against Pasqual Grant, alleging that Grant negligently passed a loaded handgun to Lewis just before the fatal shooting. The Keys filed this appeal after a jury returned a verdict for Grant. Held:

1. The Keys contend that the trial court erred in granting Grant’s motion in limine to exclude their claim against Grant based on his alleged violation of OCGA § 16-5-60 (b). This Code subsection makes conscious disregard for the safety of others a crime.

Violation of a criminal statute does not always give rise to civil liability. See Doyle Dickerson Co. v. Durden, 218 Ga. App. 426, 428 (461 SE2d 902); Cechman v. Travis, 202 Ga. App. 255 (1) (414 SE2d 282); Rolleston v. Huie, 198 Ga. App. 49, 50 (2) (400 SE2d 349); Oswald v. American Nat. Can Co., 194 Ga. App. 882, 883 (392 SE2d 26); Sparks v. Thurmond, 171 Ga. App. 138, 142 (5) (319 SE2d 46), but, civil liability may be authorized where the legislature has indicated a strong public policy for imposing a civil as well as criminal penalty for a violation of a penal statute. See Spires v. Goldberg, 26 Ga. App. 530 (1) (106 SE 585).

In McEachern v. Muldovan, 234 Ga. App. 152 (505 SE2d 495), a majority of this Court held that civil liability was authorized in a wrongful death (handgun shooting) case based on an alleged violation of OCGA § 16-11-101.1 — a penal statute which was said to be aimed at protecting minors from their own inability to protect themselves from their dangerous conduct when in possession of handguns. Id. at 161 (3), supra. This public safety objective seems to be no different than the legislative objective behind Georgia’s reckless conduct statute, OCGA § 16-5-60 (b). To this extent, the Supreme Court of Georgia held in State v. Boyer, 270 Ga. 701 (512 SE2d 605), that OCGA § 16-5-60 (b) is directed at “limiting the risks that one person will cause another, and does so in terms that advise a person of ordinary intelligence that the behavior here alleged is prohibited.” Id. at 703, supra. Consequently, since a person of ordinary intelligence would know that handing a loaded handgun to a confederate during a late night brawl is the sort of conduct prohibited under OCGA § 16-5-60 (b), since the decedent appears to fall within the class of persons this statute was intended to protect and since the shooting at issue was the type of harm Georgia’s reckless conduct statute was aimed at guarding against, the trial court erred in granting Grant’s motion in limine to exclude the Keys’ claim against Grant based on his alleged violation of OCGA § 16-5-60 (b). See McEachern v. Muldovan, 234 Ga. App. 152, 161 (3), supra, and Potts v. Fidelity Fruit &c. Co., 165 Ga. App. 546, 547 (301 SE2d 903).

2. The Keys contend the trial court erred in admitting evidence of the decedent’s brother’s prior convictions for aggravated assault, felony possession of marijuana and selling marijuana. The Keys also challenge the trial court’s admission of the decedent’s father’s prior convictions for selling cocaine and for theft by conversion.

An abuse of discretion is generally the only basis for overruling a trial court’s judgment as to evidence’s relevancy. Ga. American Ins. Co. v. Varnum, 179 Ga. App. 195, 196-197 (2) (345 SE2d 863). The existence of such an abuse may be measured by weighing the challenged evidence’s probative value against the risk that its admission misled the jury or created a substantial danger of unfair prejudice or confusion. Metropolitan Property & Liability Ins. Co. v. Shepherd, 166 Ga. App. 300, 301 (1) (304 SE2d 74). In the case sub judice, Grant contends the decedent’s brother’s and father’s criminal records were relevant to diminish the full value of the decedent’s life, but does not explain why.

While the range of proof in determining the full value of a deceased’s life is broad, we find no reasonable basis for holding that a decedent’s father’s and brother’s criminal records are relevant to any aspect of such a valuation. See Consolidated Freightways Corp. v. Futrell, 201 Ga. App. 233, 234 (3) (410 SE2d 751). Grant presented no proof that criminality is an inherited or learned trait. Nor did he otherwise show that the decedent’s father’s and brother’s criminal leanings would have limited the decedent’s future employability, earning capacity, or life expectancy. Evidence of the decedent’s father’s and brother’s respective criminal records was therefore not shown to be probative as to any issue before the jury. The controlling issue then is whether this evidence unfairly prejudiced the jury’s verdict. The Keys argue that the evidence in question prejudiced the jury by injecting room for stereotyping the men in the decedent’s family as valueless criminals.

Although we cannot be certain that evidence of the decedent’s father’s and brother’s criminal records prejudiced the jury against the Keys, the danger that this evidence clouded the Keys’ claims — without any probative value in exchange — is too high to dismiss as harmless. The Keys were entitled to a trial based on relevant evidence — not on evidence which indicated that their family was composed of criminals who were not worthy of an award for the decedent’s loss. The trial court’s error in admitting evidence of the decedent’s father’s and brother’s criminal records requires a new trial. See Gielow v. Strickland, 185 Ga. App. 85, 87 (2) (363 SE2d 278), holding that the trial court erred in a wrongful death action in allowing the introduction of a defendant’s felony conviction for impeachment purposes.

3. The trial court did not abuse its discretion in excluding evidence of the decedent’s juvenile record for running a stop sign, no proof of insurance and unlawful use of a driver’s license. Compare Gust v. Jones, 162 F3d 587, 595-596 (1998); Wilson v. Union Pacific R. Co., 56 F3d 1226, 1231 (1995), and Meller v. Heil Co., 745 F2d 1297, 1303 (1984).

4. The Keys’ remaining five enumerations of error challenge the trial court’s refusal to give certain requested jury instructions. These enumerations of error, however, are not supported by argument or citation of authority. The Keys merely quote the pattern jury instructions and a written jury instruction which they contend the trial court should have given. Argument which is no more than a restatement of the enumeration of error provides no basis for appellate review. Upton v. Duck, 249 Ga. 267, 268 (3), 269 (290 SE2d 92). We, therefore, deem the Keys’ final five enumerations of error abandoned pursuant to Court of Appeals Rule 27 (c) (2). See Jett v. State of Ga., 230 Ga. App. 655, 656 (1) (498 SE2d 274).

Judgment reversed.

Ruffin, J., concurs. Andrews, P. J., concurs specially.

Andrews, Presiding Judge,

concurring specially.

I concur in Divisions 2, 3 and 4, and in the judgment. I write separately because I disagree with the majority’s conclusion in Division 1.

OCGA § 16-5-60 is a criminal provision. “The violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who claims to have been injured thereby.” (Citations and punctuation omitted.) Rolleston v. Huie, 198 Ga. App. 49, 50 (400 SE2d 349) (1990). I find no instance where this Code section has been used to create a private cause of action in tort in favor of an alleged victim. Moreover, there is nothing within the provisions of this section which affords a basis for a civil action by an alleged victim. See Rolleston, supra.

Decided July 6, 1999.

H. Lehman Franklin, Jr., for appellants.

Brown & Livingston, Charles H. Brown, Becky D. Livingston, for appellee.

In addition, the crime of reckless conduct is, in essence an instance of criminal negligence, which

implies, not only knowledge of probable consequences which may result from the use of a given instrumentality, but also wilful or wanton disregard of the probable effects of such instrumentality upon others likely to be affected thereby. Criminal negligence is something more than ordinary negligence which would authorize a recovery in a civil action. Criminal negligence as used in our Code is the reckless disregard of consequences, or a heedless indifference to the rights and safety of others, and a reasonable foresight that injury would probably result.

(Citation and punctuation omitted.) Bohannon v. State, 230 Ga. App. 829, 830-831 (498 SE2d 316) (1998).

A review of the transcript in this case shows there is no evidence that Grant was criminally negligent. There was no testimony that Lewis had a propensity for violence, that Lewis had ever threatened to shoot or harm Key, or that Lewis had ever shot or harmed, or threatened to shoot or harm, anyone. Therefore, there is nothing in the record tending to prove that Grant should have known that the probable consequence of his handing the gun to Lewis was that Lewis would kill Key. Thus, there was no evidence that Key’s death was a reasonably foreseeable result of Grant’s action. Accordingly, the trial court correctly granted Grant’s motion in limine prohibiting any reference to a violation of OCGA § 16-5-60 (b).


author: Andrews, Presiding Judge.

text:
    A99A0449.
    JOHNSON v. HOLIDAY FOOD STORES, INC. et al.
    (520 SE2d 502)
   Andrews, Presiding Judge.

Monica Denita Johnson appeals the trial court’s order granting summary judgment to Holiday Food Stores, Inc., Zeb’s Zip-In, Inc., Roger Knight, and Holiday Foods, Inc. (the appellees) in this premises liability action arising out of an assault. We affirm.

1. Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Id.

Monica Johnson was employed by appellees as a convenience store clerk. On June 21, 1993, around 10:00 p.m., Johnson’s fiance, Jimmy Lee Smith, Jr., drove her to work. Smith parked his car on the side of the store by a pay telephone. This area was not visible to Johnson’s co-worker, Roger Knight, who was waiting for Johnson to arrive and relieve him from his shift. Before Johnson went inside, she and Smith had an argument. During this argument, Smith threw Johnson against the exterior wall of the convenience store. Knight did not see this.

Johnson stated in her deposition that she laughed at Smith because she thought he was being silly. She said she and Smith had been arguing on and off all day long. This argument lasted about four minutes. When it was over, Johnson went inside the store to relieve Knight. Smith followed her inside a few minutes later to buy some juice.

Knight did not realize that Smith was with Johnson. He just assumed Smith was a customer. Knight left the building and drove his car around to the front of the store. When Knight drove by the front of the store, he saw Smith leaning over the counter having an animated conversation with Johnson. Smith appeared upset, but he was not yelling. Knight went back in the store and asked Smith if there was a problem. Smith said “no,” that he just wanted to talk to Johnson. Knight told Smith to pay for his juice and leave. Smith complied. According to her deposition testimony, Johnson told Knight that Smith was acting strange and had thrown her against the wall. Knight, however, remembers Johnson saying that Smith had grabbed her wrists.

Knight followed Smith outside the store and saw him get into his car. Knight told Smith to leave. Smith, in a tone Knight thought was “nice,” agreed to leave after he made a phone call. Knight went back inside and asked Johnson if she was all right. Johnson said she was fine, that she was not afraid, and that she and Smith were in the process of breaking off their engagement. Johnson appeared calm. Knight told Johnson to call 911 if Smith returned. As Knight was driving away, he saw that Smith was still on the premises, sitting in his car.

After about 15 minutes, during which time Johnson waited on approximately nine customers, Smith reentered the store. Smith was upset because he believed Johnson had been flirting with two of the male customers. Smith spoke to Johnson, but she was angry and did not pay attention to what Smith said. After the men left, Smith walked outside the store again. There is no evidence that Johnson called 911 or protested Smith’s presence in the store. A few moments later, Smith returned and hit Johnson in the face, injuring her. Johnson explained in her deposition that Smith was a jealous man and had actually quit his job to “keep an eye on” her. However, she did not think he would ever hit her.

The general rule is that a landlord does not ensure a tenant’s safety against third-party criminal attacks, and that any liability from such attacks must be predicated on a breach of duty to “exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1; Lau’s Corp. v. Haskins, supra at 492 (1). If a proprietor has “reason to anticipate a criminal act,” then the proprietor has “ ‘a duty to exercise ordinary care to guard against injury from dangerous characters.’ ” Id. The basis of liability is a proprietor’s superior knowledge of the existence of a condition that may subject an invitee to an unreasonable risk of harm. Howell v. Three Rivers Security, 216 Ga. App. 890, 892 (456 SE2d 278) (1995). Johnson argues the trial court erred in granting the appellees summary judgment because Knight knew that Smith remained on the premises; therefore, she argues, the appellees had superior knowledge of a condition that posed an unreasonable risk of harm to Johnson. We do not agree.

In this case, Johnson had superior knowledge of Smith’s personality, character, and temperament, as well as the nature of Smith’s relationship with her. Only Johnson knew the extent to which she and Smith had argued that day. Yet, she did not believe Smith would hit her even after he pushed her against the wall. Johnson thought Smith was being “silly.” Knight, who had no dealings with Smith prior to this incident, took his cue from Johnson. After all, he had seen nothing that would cause him to reasonably anticipate a criminal attack. Johnson assured Knight she was fine and she was not afraid. Further, she knew to call 911 if Smith returned to the premises. Although Smith stayed on the premises, Knight testified that Smith appeared calm, behaved respectfully, and said he remained only because he intended to use the phone. Given these facts, we cannot say that appellees had any reason to anticipate a criminal assault or superior knowledge of a condition that subjected Johnson to an unreasonable risk of harm. See Griffin v. AAA Auto Club South, 221 Ga. App. 1, 2-3 (1) (470 SE2d 474) (1996).

Further as we have explained:

This case also differs significantly from those in which a jury could find a legal failure to keep the premises and approaches safe, so that its invitees in general are not subjected to the risk of foreseeable attacks by unknown assailants. This was not a random stranger attack but rather grew out of a specific private relationship which had no connection with [the premises or] employment whatsoever. The place chosen by the boyfriend for the attack just happened to be the employer’s [store]. The employer did not create or allow to exist an environment which placed [Johnson] at risk any more than if she had been at home or on the street.

(Emphasis omitted.) Id. at 3.

Finally, Johnson has submitted no evidence that suggests what appellees could have done to prevent Smith from injuring her. A legally attributable causal connection between the appellees’ conduct and the injury is required. “Guesses or speculation which raise [s] merely a conjecture or possibility [is] not sufficient to create even an inference of fact for consideration on summary judgment.” Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996). Even if Knight had remained at the store until Smith drove away, Smith could have returned as soon as Knight left. And, Johnson was not motivated to call 911 even after she became aware that Smith was •still on the premises. The trial court did not err in granting summary judgment under these circumstances.

Appellees raised and argued several other alternate bases for summary judgment, one of these being that they were immune from suit under the exclusive remedy provision of the Georgia Workers’ Compensation Act, OCGA § 34-9-11. We find no merit in this argument because the evidence shows that Johnson’s injuries were caused by the wilful act of a third person for reasons entirely personal to her. This type of injury is specifically excluded from coverage. OCGA § 34-9-1 (4); Potts v. UAP-GA. AG. CHEM., 270 Ga. 14 (506 SE2d 101) (1998); Murphy v. ARA Svcs., 164 Ga. App. 859 (298 SE2d 528) (1982).

Decided July 6, 1999.

Adams & Adams, Charles R. Adams III, Robert A. Butler, Carl A. Veline, Jr., for appellant.

McNatt, Greene & Thompson, Troy L. Greene, for appellees.

2. Our ruling in Division 1 renders moot Johnson’s remaining enumeration of error.

Judgment affirmed.

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


text:
    A99A0585.
    GREG FISHER, LTD. et al. v. SAMPLES.
    (520 SE2d 280)
   Smith, Judge.

We granted this discretionary appeal from the superior court’s order reversing the decision of the appellate division of the State Board of Workers’ Compensation. Because we find that Samples was not an employee of Greg Fisher, Ltd. (“Fisher”) or one of its subcontractors and that the superior court erred in applying the estoppel provisions of OCGA § 34-9-124 (b), we reverse.

Samples owned a carpentry business and worked side by side with his employees. Samples was hired by Fisher to perform framing work on a building project. He was on top of the building setting trusses in windy conditions when several trusses fell, knocking him off the building and injuring him.

Although Samples had obtained workers’ compensation insurance for his employees, he had elected to exempt himself from coverage as permitted by OCGA § 34-9-2.2. After filing a workers’ compensation claim against his company and learning that he was not covered by its insurance policy, Samples submitted a claim against Fisher and its workers’ compensation insurer. The administrative law judge (ALJ) denied Samples’s claim, concluding that he was not an employee of Fisher but an independent subcontractor who had elected to exclude himself from coverage under the workers’ compensation insurance policy of his own company. The ALJ found that Fisher did not control the time, manner, or method in which Samples performed his job and that when the legislature enacted OCGA § 34-9-2.2 to require an employer to affirmatively elect coverage, it made clear that a sole proprietor would not otherwise be considered an employee of his own business. The appellate division modified slightly and affirmed the ALJ’s decision. The superior court reversed the appellate division on the ground that the Board had failed to apply the estoppel provisions of OCGA § 34-9-124 (b).

In determining whether Fisher and its insurer were barred from asserting any defenses against the workers’ compensation claim of Samples, we must examine the provisions of OCGA § 34-9-124 (b) in light of OCGA §§ 34-9-2.2 and 34-9-8. OCGA § 34-9-8 (a) provides:

A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.

(Emphasis supplied.) OCGA § 34-9-8 (c) provides:

Every claim for compensation under this Code section shall be in the first instance presented to and instituted against the immediate employer, but such proceedings shall not constitute a waiver of the employee’s right to recover compensation under this chapter from the principal or intermediate contractor. If such immediate employer is not subject to this chapter by reason of having less than the required number of employees as prescribed in subsection (a) of Code Section 34-9-2 and Code Section 34-9-124 does not apply, then such claim may be directly presented to and instituted against the intermediate or principal contractor.

(Emphasis supplied.) OCGA § 34-9-124 (b) provides:

A policy of insurance issued under this chapter shall always first be construed as an agreement to pay compensation; and an insurer who issues a policy of compensation insurance to an employer not subject to this chapter shall not plead as a defense that the employer is not subject to the chapter; and an insurer who issues to an employer subject to this chapter a policy of compensation insurance covering an employee or employees ordinarily exempt from its provisions shall not plead the exemption as a defense.

(Emphasis supplied.) In applying these Code sections, we must bear in mind that

[i]n reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division. It is axiomatic that the findings of the Board, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a factfinding body in lieu of the Board.

(Citation and punctuation omitted.) Olde South Custom Landscaping v. Mathis, 229 Ga. App. 316 (494 SE2d 14) (1997). Some evidence exists to support the finding of the ALJ and appellate division that Samples initially filed a workers’ compensation claim through his own carrier and was subsequently notified that he had specifically exempted himself from that coverage. Therefore, we are bound by these findings. Samples was barred from making a claim against his own company when he exempted himself from coverage under OCGA § 34-9-2.2. See Peters v. Kevin Moody Constr., 223 Ga. App. 133, 134 (1) (476 SE2d 772) (1996). As Samples initially filed a workers’ compensation claim against his own company, upon denial of that claim he was authorized to directly present and institute his claim against Fisher. The filing of an initial claim against his own company did not constitute a waiver of Samples’s right to recover compensation from the principal or intermediate contractor. OCGA § 34-9-8 (c).

But Samples nevertheless is precluded from recovering workers’ compensation benefits from Fisher and its insurer. Here, Samples could recover benefits from Fisher in three ways: as an employee of Fisher, as an employee of his own business, or if Fisher was barred from contesting coverage under OCGA § 34-9-124 (b). None of those circumstances applies here.

While in Peters, supra at 133, this court held that an employer who has elected exemption under OCGA § 34-9-2.2 could still obtain coverage if he was also the employee of another business, Samples was not an employee of Fisher. The ALJ and the appellate division found as a matter of fact that Samples was an independent contractor and not an employee of Fisher. That finding is supported by some evidence of record, and we therefore must accept it. Mathis, supra.

Samples also does not qualify as an employee of his own company under OCGA § 34-9-2.2. That Code section provides:

Any sole proprietor or partner of a business whose employees are eligible for benefits under this chapter may elect to be included as an employee under the workers’ compensation insurance coverage of such business if he is actively engaged in the operation of the business and if the insurer is notified of his election to be so included. Any such sole proprietor or partner shall, upon such election, be entitled to the employee benefits and be subject to the employee responsibilities prescribed in this chapter.

(Emphasis supplied.) The purpose of this legislation is to allow a sole proprietor or partner of a qualifying business to make an election to be included as an employee under the workers’ compensation insurance coverage of the business. See Ga. L. 1984, p. 1218. The plain wording of this statute reflects that a sole proprietor or partner will not qualify as an employee of his or her business for purposes of obtaining workers’ compensation insurance coverage, unless he or she makes an election to that effect. See Sherwin-Williams Co. v. Escuadra, 224 Ga. App. 894, 896 (482 SE2d 505) (1997). Because Samples not only failed to elect, under OCGA § 34-9-2.2, to be included as an employee of his company but expressly elected to be exempt from such an inclusion, he cannot claim under OCGA § 34-9-8 (a) to be an employee injured while employed by his company in its capacity as a subcontractor of Fisher. “[A] sole-proprietor subcontractor should not ordinarily be considered both employer and employee for purposes of OCGA § 34-9-8’s statutory employer provisions.” Id.

Samples contends, however, that Fisher is barred by the provisions of OCGA § 34-9-124 (b) from asserting that Samples is not covered by the workers’ compensation insurance policy issued to Fisher. We are not persuaded by this argument. When Samples did not elect to be included as an employee of his own company to obtain coverage under his company’s workers’ compensation insurance policy, he remained in the status of owner and employer. Fisher and its insurer are not barred from asserting Samples’s actual business status because the language of OCGA § 34-9-124 (b) pertaining to “ ‘employees ordinarily exempt from its provisions’ ” does not apply to an employer. King v. James King Cleaners &c., 199 Ga. App. 796, 797 (405 SE2d 909) (1991).

Samples’s reliance on Hill-Harmon Pulpwood Co. v. Walker, 237 Ga. 736 (229 SE2d 607) (1976); Walker v. Hill-Harmon Pulpwood Co., 138 Ga. App. 282 (226 SE2d 86) (1976); and Ga. Cas. &c. Co. v. Rainwater, 132 Ga. App. 170 (207 SE2d 610) (1974), is misplaced. These cases were decided prior to the enactment of OCGA § 34-9-2.2 in 1984 and are not controlling in the disposition of this case. We also note that the workers’ compensation policy issued to Fisher was not introduced at the administrative hearing, and we therefore cannot determine with certainty whether the terms of this policy are substantially similar, both in coverage and as to exclusions, to those policies in the cases relied upon by Samples. Fisher therefore was not estopped from asserting its defense, and the superior court erred in reversing the decision of the appellate division that Samples was not entitled to benefits.

Decided July 6, 1999 — Cert. applied for.

Donahue, Hoey, Rawls & Skedsvold, Daniel E. Cohen, for appellants.

Smith, Wallis & Scott, Kenneth A. Smith, James W. Wallis, Jr., Van C. Wilks, for appellee.

Judgment reversed.

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