text:
    A02A0897.
    HALL v. THE STATE.
    (566 SE2d 374)
   Blackburn, Chief Judge.

Following a jury trial, Robert Michael Hall was convicted of three counts of cruelty to children in the first degree. A mistrial was declared by the trial court as to three additional counts of child molestation. Hall appeals the trial court’s order denying his motion for a new trial. Hall contends that the trial court erred by: (1) admitting testimony of a child advocacy center employee improperly bolstering the victims’ testimony; (2) allowing testimony of Dr. Tom McClaren drawing a conclusion on the ultimate issue in the case; (3) denying Hall’s request for funds to hire an expert on the techniques of interviewing children; and (4) failing to rule that Hall had received ineffective assistance of counsel. For the reasons set forth below, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. Cox v. State. So viewed the evidence shows that Hall lived with Kimberly Hicks, his girlfriend, and her five children. S. H., the oldest child, was in the second grade during the time Hall lived with the family. S. G. was in first grade, K. H. and J. H. were in kindergarten, and the last child was even younger. All the children except the youngest testified. The children testified that Hall would lean them over a chair and hit them on their bottoms with a board wrapped in duct tape and with nails in it. K. H. and S. G. testified that they had bruises after the whipping. S. H., S. G., and J. H. testified that it had hurt or felt bad so that they would cry or scream. Hall admitted that he paddled the children with a board that had duct tape wrapped around it while they leaned over a chair.

1. Hall contends the trial court should be reversed for allowing testimony of Lee Jackson Hise to bolster the child victims’ testimony. The trial court must determine whether the probative value of the evidence is outweighed by its tendency to unduly arouse the jury’s emotions of prejudice, hostility, or sympathy under an abuse of discretion standard. Holland v. State During the trial, Hall cross-examined Hise, an employee of the Children’s Advocacy Center in Chattanooga, Tennessee, who had conducted interviews with each of the children. Hall challenges the admission of the following testimony.

Defense Counsel: If a child discloses immediately they must be telling the truth?
Hise: I didn’t say that either way, you know, I feel like these children were telling the truth, if that’s what you are asking me. . . .
Defense Counsel: Basically, we really have no way of knowing whether or not these children are telling the truth or not, do we?
Hise: Well, you know, I believe the children based on the interviews that I did and my experience, I think the children are telling the truth.
Defense Counsel: That’s your personal opinion?
Hise: It’s my professional opinion, yes, sir. . . .
Defense Counsel: So you spent an hour with each of these kids to two hours, and they were real forthcoming with all these details, and in your professional opinion, you know they must be telling the truth?
Hise: I believe they’re telling the truth about what happened, yes, sir.

Admission of testimony on the credibility of a witness elicited by the State has been held to be reversible error. Guest v. State. “Normally, a party may not bolster the veracity of its own witness until the witness has been impeached by the adverse party. . . . Evidence which goes to a witness’s credibility is not relevant unless produced to attack the credibility of a witness, or to rehabilitate credibility when it has been attacked.” (Emphasis supplied.) Campbell v. State In this instance, the contested testimony was not elicited by the State from its own witnesses, but was drawn out by defense counsel during cross-examination. Defense counsel initiated this line of questioning and did not object to the answers as nonresponsive. He asked similar questions of other witnesses including a psychologist who had counseled the children, a Department of Family & Children Services (DFACS) investigator, and a foster parent.

A defendant cannot object to responsive testimony that he has elicited. This Court has previously held that “[c]ounsel for defendant introduced the opinion of this witness that she believed the children when they told her the defendant committed these acts. Asserted prejudice based upon induced error is impermissible.” Keri v. State This enumeration is without merit.

2. Hall also contends that the trial court erred in allowing the State to ask whether Dr. McClaren believed it is appropriate to whip children with a board. Dr. McClaren responded, “I do hot believe that’s reasonable or a realistic way of disciplining children.” Hall asserts this response goes to the ultimate issue in the case and, therefore, the witness has usurped the role of the jury. The record reflects no objections at the time of trial, and any error in this connection is waived. Stewart v. State.

In any event, Dr. McClaren’s response does not go so far as to constitute an opinion about an ultimate issue in the case. A person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain. OCGA § 16-5-70 (b). Dr. McClaren did not opine that “hitting a child with a board” is “malicious” or that it caused these children “excessive or cruel pain.” This enumeration is without merit.

3. Hall next asserts that it was error for the trial court to deny Hall’s request for funds to hire an expert on interviewing techniques. Hall submitted a motion for funds to hire an investigator and an expert witness to aid in the preparation of his defense. The trial court granted the motion as to the investigator for the particular purpose of interviewing the victims, but denied the request for an expert witness. “ ‘The granting or denial of a motion for appointment of expert witnesses lies within the sound discretion of the trial court. Unless there has been an abuse of discretion, the trial court’s ruling will be upheld.’ ” Brooks v. State, A motion for funds to obtain an expert witness requires a reasonable showing to the court, by the defendant, (1) why the expert’s services are required; (2) what services are to be performed; (3) the identity of the expert; and (4) the cost to provide the needed services. The defendant must also demonstrate that without the assistance of the expert, the defendant’s trial would be rendered fundamentally unfair. Coalson v. State.

Hall’s motion indicated that the purpose of his request was “to review the interviewing techniques employed by the State” since the State’s witnesses would “offer their expertise in interviewing techniques as a basis for their credibility.” Exclusion of expert testimony on the techniques used to interview children can be reversible error. Barlow v. State. On the other hand, we cannot find abuse of discretion if the defendant failed to make a reasonable showing of the four elements or if prejudice to the defendant has not resulted from the trial court’s decision. Here, Hall was not prejudiced by the court’s denial of his motion to authorize retention of an expert in interviewing children, where he admitted the underlying facts as represented by the children. Hall also failed to provide the trial court with the identity of the expert and the cost of the services as required to authorize the appointment of an expert.

4. Hall asserts defense counsel rendered ineffective assistance by his failure to reserve objections to the jury instructions and to object to testimony by Dr. McClaren, a clinical psychologist, on the child abuse accommodation syndrome. “A trial court’s determination that a defendant was not denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. [Cit.]” Holland v. State.

Generally, a defendant claiming ineffectiveness of counsel bears the burden of proving that (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Jones v. State, citing Strickland v. Washington.

(a) Prior to trial, the State filed a notice that it intended to present evidence of similar transactions in that Hall maliciously caused “[J. H.], a child under the age of 18, cruel and excessive pain by slinging him into a couch causing a black eye.” No hearing was held to determine the admissibility of the similar transaction evidence. Instead, during direct examination, the State asked J. H. about the black eye incident. J. H. testified Hall slung him against a couch, they had just been playing, and he got a black eye. The principal of J. H.’s school testified about the black eye, identifying a picture of it. The trial court admitted the picture into evidence upon argument by the State that the incident was a prior difficulty.

Evidence of a prior difficulty is admissible when an instruction is given by the court which limits the use of the evidence to show the defendant’s motive, intent, and bent of mind. Stiles v. State. At Hall’s trial, the trial court instructed the jury about similar transactions, but failed to include the prior difficulties charge. The charge for similar transactions limits consideration of such evidence to prove the identity, state of mind, and conduct of the defendant in connection with the offense charged in the indictment. In Hill v. State, we found that the trial court did not err in giving a similar transaction charge instead of the prior difficulty instruction when a child care provider’s testimony constituted a prior difficulty incident rather than a similar transaction.

[T]estimony [about prior difficulties] may be considered more broadly than evidence of a similar transaction. . . . Evidence of previous difficulties between a defendant and a victim is admissible to show the defendant’s intent, bent of mind, and course of conduct. Such evidence may be admitted to show a continuing pattern of conduct in committing battery upon the victim. . . . Because testimony of prior difficulties has considerably more relevance than evidence of similar transactions, the appropriate jury instruction is correspondingly broader in scope. The trial court may instruct the jury that such evidence may be considered for a limited purpose on the question of the defendant’s conduct, bent of mind, motive, scheme, purpose, or intent to commit the crime with which he was charged.

(Citation and punctuation omitted.) Id. at 126 (2). Therefore, use of the more limiting instruction is not error, and counsel’s failure to reserve exceptions would not have changed the outcome of the case.

(b) Hall also contends that trial counsel was ineffective because he did not object to the qualification of Dr. McClaren as an expert on the child abuse accommodation syndrome and to the admission of his testimony about the syndrome.

An expert witness is anyone who, through training, education, skill, or experience, has peculiar knowledge that the average juror would not possess as to “any question of science, skill, trade, or like questions”; the expert witness may render an expert opinion within the witness’ area of expertise after the qualifications have been proven to the trial court. . . . The requirements for qualification as an expert witness are minimal; generally, nothing more is required to qualify an expert than evidence that the person has been educated in a particular trade, science, or profession. ... It is the possession of special knowledge derived either from experience, study, or both in a field of expertise that makes one an “expert.”

In the Interest of C. W. D.

In this case, Dr. McClaren was qualified by education, experience, and study to be an expert. On direct examination, Dr. McClaren testified that he was a clinical psychologist, he had a doctorate in psychology with a special emphasis in working with children and adolescents, the majority of his practice for eight years had been focused on children, and he had read literature and research on the child abuse accommodation syndrome. Although no formal tender was made of Dr. McClaren as an expert on the child abuse accommodation syndrome, during his direct examination, Dr. McClaren explained that a child, suffering from the accommodation syndrome, may change or recant something they have said if they are in a fearful situation. Notwithstanding that defense counsel did not object to Dr. McClaren as an expert, he did ask several questions about Dr. McClaren’s credentials and study of the syndrome and used cross-examination to show that the child abuse accommodation syndrome cannot predict whether a child is being truthful or not.

In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with the client.

(Punctuation omitted.) Bevil v. State. Without further evidence, it cannot be presumed that counsel’s actions were other than strategic or tactical decisions, and, therefore, we cannot find that his failure to object to Dr. McClaren as an expert constituted ineffectiveness.

Any objection as to Dr. McClaren’s qualifications as an expert in this case would have had no merit, and Hall was thus not harmed by this failure to object. All the children’s testimony was consistent as to the whippings with a board wrapped in duct tape. The school principal and a DFACS worker testified that J. H. had bruises or marks on his back. The principal, a DFACS worker, a foster parent, and the psychologist all testified that the children had told them of the beatings. Hall himself admitted to the sheriff’s investigator and in his own testimony at trial that he whipped the children with a board wrapped in duct tape. Therefore, Hall has failed to prove ineffectiveness of counsel, under the prejudice prong of the Strickland test, since he has not shown that the verdict would have been different if the accommodation syndrome testimony had been excluded.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

Decided June 4, 2002.

Jennifer E. Hildebrand, for appellant.

Herbert E. Franklin, Jr., District Attorney, Elizabeth O. Evans, Assistant District Attorney, for appellee.

        Cox v. State, 241 Ga. App. 388 (526 SE2d 887) (1999).

        Holland v. State, 221 Ga. App. 821, 825 (3) (472 SE2d 711) (1996).

        Guest v. State, 201 Ga. App. 506, 508 (1) (411 SE2d 364) (1991).

        Campbell v. State, 248 Ga. App. 162, 164 (2) (545 SE2d 6) (2001).

        Keri v. State, 179 Ga. App. 664, 667 (1) (347 SE2d 236) (1986).

        Stewart v. State, 210 Ga. App. 474, 477 (7) (436 SE2d 679) (1993).

        Brooks v. State, 232 Ga. App. 115, 116 (6) (501 SE2d 286) (1998).

        Coalson v. State, 251 Ga. App. 761, 766 (3) (555 SE2d 128) (2001).

        Barlow v. State, 270 Ga. 54 (507 SE2d 416) (1998).

        Holland v. State, 250 Ga. App. 24-25 (550 SE2d 433) (2001).

        Jones v. State, 230 Ga. App. 65-66 (495 SE2d 327) (1997).

        Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

        Stiles v. State, 242 Ga. App. 484, 486 (2) (529 SE2d 913) (2000).

        Hill v. State, 243 Ga. App. 124, 125 (2) (532 SE2d 491) (2000).

        In the Interest of C. W. D, 232 Ga. App. 200, 206 (3) (a) (501 SE2d 232) (1998).

        Bevil v. State, 220 Ga. App. 1, 4-5 (7) (c) (467 SE2d 586) (1996).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A02A0902.
    WEBB et al. v. THOMAS TRUCKING, INC. et al.
    (566 SE2d 390)
   Johnson, Presiding Judge.

Debbie and Ricky Webb sued Thomas Trucking, Inc. and its driver, Kenneth Charles Cook, (collectively referred to as Thomas Trucking) for personal injuries and loss of consortium following an automobile collision which occurred in May 1998. Thomas Trucking admitted that its negligence caused the collision, but denied that the collision caused the Webbs’ damages. Following a four-day trial on damages, the jury returned a defense verdict.. The Webbs appeal, arguing that the trial court erred in (1) refusing to grant a new trial because the evidence did not support the verdict, (2) charging the jury on mitigation of damages, (3) excluding the testimony of Debbie Webb’s sister as to the damage done to her vehicle, (4) excluding Ricky Webb’s testimony as to the financial condition of the Webbs, and (5) excluding opinion testimony regarding why Debbie Webb had taken such a wide range of drugs since May 1998. Because each of these enumerations of error lacks merit, we affirm the judgment entered upon the jury’s verdict.

1. The Webbs first argue that the trial court erred in denying their motion for new trial because the jury was not authorized to return a verdict for Thomas Trucking and because the verdict was inconsistent with the preponderance of the evidence. In reviewing the denial of a motion for new trial on the general grounds, this Court must determine whether there is any evidence to support the jury’s verdict, and we must construe the evidence in the light most favorable to the prevailing party.

It is of no consequence on review of the denial of a motion for new trial based on the sufficiency of the evidence that the evidence adduced at trial would have authorized a verdict for either party. A reviewing court must view the evidence in a light most favorable to upholding the jury’s verdict and any evidence which supports the jury’s verdict is sufficient to sustain the trial court’s denial of a motion for new trial based on the sufficiency of the evidence.

In addition, this Court may not substitute its judgment for that of the jury and will neither weigh evidence nor determine the credibility of witnesses.

Viewed in this light, the evidence shows that Debbie Webb was a passenger in a car driven and owned by her sister, Glenda Davis. While waiting to make a left-hand turn at an intersection controlled by four-way stop signs, Cook, who was operating a semi-tractor without a trailer, hit their car from behind twice. At trial, Davis described in detail the damage she contended was caused by the impact, including the driver’s seat, the rear bumper, the taillights, the trunk lid, and the convertible top. However, she admitted that she drove the car home from the scene, and Debbie Webb testified at trial that she had previously stated in a deposition that Davis’ vehicle did not sustain much damage. In addition, Thomas Trucking tendered photographs which reflected minor damage to Davis’ car. Both Davis and Webb admitted at trial that they did not complain of any injuries at the scene. Webb admitted she did not go to the emergency room or a doctor’s office until five days after the collision, when she reported to work for her normal shift, told her supervisor about the collision, and was directed by her supervisor to be examined by a doctor.

Webb claimed that her neck was injured in this collision and that she had not suffered neck problems prior to the collision. However, the record reveals that Webb had a long history of neck and shoulder problems prior to this collision. According to the record, beginning in 1995, over three years before the collision, Webb started intense treatment with muscle relaxers and painkillers for her neck and shoulder. These medicines included seven prescriptions for Norflex and six prescriptions for Toridal in 1995; thirteen prescriptions for amitriptyline, nine prescriptions for Soma (carisoprodol), and two prescriptions for hydrocodone in 1996; and nine prescriptions for Soma (carisoprodol), nine prescriptions for Effexor, seven prescriptions for Zanaflex, three prescriptions for hydrocodone, and four prescriptions for amitriptyline in 1997. Then, prior to the collision on May 7,1998, she filled four prescriptions for Effexor, one prescription for Zanaflex, one prescription for hydrocodone, and one prescription for Soma (carisoprodol). In addition, she was also taking Propacet, Levbid, Baclofen, Ultram, Orasome, amitriptyline, and ibuprofen prior to the collision.

The record also reveals that between 1995 and the date of this collision, Webb saw a number of doctors for her neck and shoulder, including Dr. Bill Naguszewski, a neurologist, and Dr. Joel Hoag. Both doctors have extensive references to neck problems in their medical notes. According to Dr. Naguszewski, Webb first appeared to him complaining of numbness in her right thumb and index finger, pain in her right arm and shoulder, and neck symptoms for two years. He testified that he treated Webb’s neck on numerous occasions prior to the collision. In fact, he prescribed cervical traction in hopes of alleviating the nerve impingement in her neck, and his September 16, 1996 medical records note the “patient returns today and has not been faithful with cervical traction but does have cervical traction unit at home. When she uses the cervical traction, there is a definite improvement in her neck pain.”

While Webb attempted to convince the jury that her pain was getting better prior to the collision, even her sister testified that “it was slowly going downhill” even before the collision. And Dr. Nagus-zewski testified that Webb called his office on April 29, 1998, complaining of increased pain and symptoms and requesting some medication. Webb was filling prescriptions for muscle relaxers and pain medication just days before the collision occurred. Following the collision, Webb did not call Dr. Naguszewski to move up the appointment she had made a month earlier. She simply reported as scheduled. An MRI performed on May 16, 1998, nine days after the collision, revealed bone spurs in the area of Debbie Webb’s neck that Dr. Naguszewski had concerns about in 1996. According to Dr. Nagus-zewski, bone spurs suggest that there has been excessive wear and tear in the area; they could not have been a result of the collision because it would take longer than nine days for bone spurs to develop.

Between May 14, 1998 (the date upon which Dr. Naguszewski first saw Webb after the automobile collision), and September 1998, no additional treatment or examinations were performed other than the MRI which showed the pre-existing bone spurs and normal office examinations. However, in September 1998, Webb visited Six Flags Over Georgia, an amusement park, and rode “The Georgia Cyclone” (“the Cyclone”), a roller coaster. Immediately thereafter, she reported “urgently” to Dr. Naguszewski that she had serious and severe neck pain after riding the Cyclone. Following her ride on the Cyclone, Webb’s condition began to deteriorate, and she received her first epidural injection for the pain. Dr. Naguszewski testified that much of the exacerbation was due to depression and stress in Webb’s family life.

In December 1998, Webb began treatment with Dr. Douglas Laipple, who specializes in pain management and psychiatry. Dr. Laipple testified that Webb never told him that she experienced problems with her neck after riding the Cyclone. In addition, she never told Dr. Laipple or his successor, Dr. Windsor, that she had been treated with cervical traction before the collision. According to Dr. Laipple, Webb suffered from major depression. He acknowledged that Webb had many things on her mind, including having surgery for her gallbladder or kidney stones and having to take a number of months off work to care for her daughter after a serious car accident.

In the summer of 2000, Webb was forced to take leave from her job until she could control the amounts of drugs she was taking. Webb was taking anti-depressants, narcotic analgesics, anti-anxiety drugs, anti-psychotic drugs, and muscle relaxers. The combination of these medications made her drowsy and slow to respond at work. Even Webb was concerned that she had become addicted to the narcotic analgesic.

(a) The Webbs contend that the trial court erred in not interfering with the jury’s zero verdict because the jury was not authorized to return a verdict for Thomas Trucking. According to the Webbs, Thomas Trucking’s admission that Cook’s negligence caused the collision requires an award of monetary damages. This argument lacks merit. Before damages can be awarded, a plaintiff must prove that her damages were proximately caused by the defendant’s negligence. Viewed in the light most favorable to the verdict, there clearly was evidence from which the jury could have concluded that the Webbs’ damages were not the result of Thomas Trucking’s negligence. Instead, the jury could have concluded that the damages were proximately caused by Debbie Webb’s pre-existing injuries, her ride on the Cyclone, and/or stress in her personal life. Accordingly, the trial court did not err in approving the jury’s verdict on this ground.

(b) The Webbs next argue that the trial court erred in not interfering with the jury’s verdict because the verdict was inadequate and inconsistent with the preponderance of the evidence. It is well established that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence. Here, although the evidence might have supported a verdict for the Webbs, the jury found otherwise, and since there was evidence to support that determination, the trial court did not err in denying the Webbs’ motion for new trial. The question of damages was for the jurors, who weighed the evidence and determined the credibility of the witnesses.

2. The Webbs argue that the trial court erred in instructing the jury regarding mitigation of damages. According to the Webbs, mitigation of damages was an improper charge because Debbie Webb "had no knowledge that either riding an amusement ride or not proceeding to the hospital would have lessened her damages.” However, it is not necessary here to decide whether the jury charge was improper. Because the jury declined to award any damages whatsoever, this charge was not harmful even if it was error.

3. The trial court properly excluded testimony from Davis regarding opinion evidence as to the monetary value of the physical damage to her vehicle as a result of the collision. We first note that Davis was permitted to testify regarding the damage her vehicle sustained and the amount paid to repair part of the damage. She was simply not permitted to testify regarding her opinion of a monetary amount of damages. We find no error. Not only was the value of the alleged damage irrelevant in the Webbs’ personal injury action, but the Webbs failed to establish a proper foundation to permit Davis to testify as to a monetary value. There was no evidence that Davis appraised damage to vehicles, repaired vehicles, or performed any other action that would provide her with experience in giving an estimate of a monetary value for damages.

4. The Webbs contend that the trial court erred in excluding testimony relating to their financial condition. We disagree. Evidence of the wealth or worldly circumstances of either party is inadmissible, except in those cases where position or wealth is necessarily involved. In this case, evidence of the Webbs’ financial condition or their financial resources was irrelevant to the issue of damages. The trial court properly excluded testimony regarding the Webbs’ concern over the payment of bills and their financial condition.

5. The Webbs contend that the trial court erred in excluding Eric Erwin’s opinion as to reasons Debbie Webb took such a wide range of drugs since the collision. The record shows that Erwin is a pharmacist who does not hold a medical degree or practice medicine. In addition, he never filled prescriptions for Debbie Webb and never personally met her. However, the Webbs called him to testify about the strength of certain medications, their effects when taken alone or with other medications, and the uses of a variety of medications. This line of questioning was within Erwin’s expertise. However, when the Webbs attempted to ask Erwin questions regarding why certain medications were prescribed by certain doctors for Webb, the trial court sustained Thomas Trucking’s objections. The trial court correctly excluded this testimony. The question of whether a witness is qualified to give his opinion as an expert on a particular issue is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.

As a pharmacist, Erwin was clearly qualified to testify as to the effects of the drugs prescribed to Debbie Webb and as to the conditions the drugs would treat. However, no evidence indicated that Erwin had any firsthand knowledge about Debbie Webb’s medical conditions or any possible treatment for these conditions. Thus, any testimony by Erwin regarding why a doctor prescribed or did not prescribe a certain medication was speculative and not within Erwin’s expertise as a pharmacist. We agree with the trial court that there was an insufficient showing of Erwin’s competence to qualify him to testify as an expert with regard to the care and treatment of Debbie Webb. Direct evidence from the doctors to explain their course of treatment was properly admitted.

Moreover, any opinion formed by Erwin based on his review of Webb’s medical records is hearsay. “Not even an expert can give an opinion based entirely upon reports which have been prepared by others and which are not in evidence. ... A testifying expert is not to serve as a conduit for the opinions of others.” Here, Erwin had no personal knowledge of the facts of the case other than through hearsay. The trial court did not err in excluding this line of questioning.

Judgment affirmed.

Blackburn, C. Jand Miller, J., concur.

Decided June 4, 2002.

Jones & Ledbetter, Howard W. Jones, for appellants.

Cowan, Plumley & Bucci, Robert A. Cowan, for appellees.

        Ga. Power Co. v. Irvin, 267 Ga. 760, 762 (1) (482 SE2d 362) (1997).

       (Citations and punctuation omitted.) High v. Parker, 234 Ga. App. 675, 676 (1) (507 SE2d 530) (1998).

        Stubbs v. Harmon, 226 Ga. App. 631, 632 (1) (487 SE2d 91) (1997).

       See Heston v. Lilly, 248 Ga. App. 856, 857-858 (1) (546 SE2d 816) (2001); Dietz v. Becker, 209 Ga. App. 678-679 (2) (434 SE2d 103) (1993).

        Turpin v. Worley, 206 Ga. App. 341, 343 (1) (425 SE2d 895) (1992).

       Id.

       See High, supra at 677 (1).

        Hammond v. Lee, 244 Ga. App. 865, 869 (5) (536 SE2d 231) (2000).

       See Burchfield v. Madrie, 241 Ga. App. 39, 42 (4) (524 SE2d 798) (1999); Minter v. Leary, 181 Ga. App. 801 (1) (354 SE2d 185) (1987) (physical precedent only).

       See Johnson v. Knebel, 267 Ga. 853 (485 SE2d 451) (1997).

        Allstate Ins. Co. v. Brannon, 214 Ga. App. 300, 303 (4) (447 SE2d 666) (1994).

       See Worthy v. Kendall, 222 Ga. App. 324, 325-326 (1) (474 SE2d 627) (1996); compare McGee v. Jones, 232 Ga. App. 1, 3 (2) (499 SE2d 398) (1998) (evidence that plaintiff could not afford recommended surgery was admissible to show why she did not have the recommended surgery).

       See Warren v. Ballard, 266 Ga. 408, 410 (2) (467 SE2d 891) (1996).

       See Chandler Exterminators v. Morris, 262 Ga. 257, 258-259 (3) (c) (416 SE2d 277) (1992); Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 748 (3) (542 SE2d 151) (2000).

       See Goring v. Martinez, 224 Ga. App. 137, 139 (2) (b) (i) (479 SE2d 432) (1996).

       (Citations and punctuation omitted.) Leonard v. State, 269 Ga. 867, 871 (3) (506 SE2d 853) (1998); see Carlson v. State, 240 Ga. App. 589, 590 (2) (524 SE2d 283) (1999).

       See Goring, supra at 140 (2) (b) (ii).


author: Miller, Judge.

text:
    A02A0192.
    GEORGE L. SMITH II GEORGIA WORLD CONGRESS CENTER AUTHORITY v. MILLER BREWING COMPANY.
    (566 SE2d 361)
   Miller, Judge.

This case presents a single issue on undisputed facts: Does a written indemnity agreement obligate the indemnitor to pay the indemnitee’s attorney fees where the agreement makes no mention of an obligation to defend the indemnitee or of an obligation to pay the indemnitee’s attorney fees or expenses of litigation? We hold that no obligation to pay attorney fees arises in such an agreement and therefore affirm summary judgment in favor of the indemnitor.

Pursuant to a written license agreement, George L. Smith II Georgia World Congress Center Authority (the “Authority”) leased certain exhibit hall space to Miller Brewing Company for a trade show. Excepting a circumstance inapplicable here, Miller agreed “to indemnify and save harmless Authority from any and all liability, or claims of liability, for damage to or loss of property or for bodily or personal injury (including death) of [Miller] or of any person admitted to the Center by [Miller]. . . .”

The facts are undisputed. A participant in the trade show fell from a platform and was injured, resulting in a personal injury lawsuit against Miller and the Authority that generated legal bills for both defendants before Miller negotiated and paid a settlement to the participant. When Miller refused to pay the Authority’s attorney fees, the present suit on the indemnity agreement arose. Both parties moved for summary judgment, with the court granting summary judgment to Miller. The Authority appeals, arguing that the indemnity agreement obligated Miller to pay the Authority’s attorney fees incurred in defending the personal injury action.

The Authority’s claim hinges on the interpretation of Miller’s indemnity obligation as set forth in the written contract. Since the construction of a contract is a question of law for the court based on the intent of the parties as set forth in the contract, we review the question de novo. Deep Six v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000).

“The cardinal rule of construction is to ascertain the intention of the parties.” OCGA § 13-2-3. “The language which the parties have used will be looked to for the purpose of finding that intention, which when it is once ascertained will prevail over all other considerations, in determining the nature of the agreement.” (Citations and punctuation omitted.) Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 497 (1) (455 SE2d 601) (1995). Also, “attorney fees are not [generally] recoverable as damages absent an express provision in a contract or a statutory mandate. [Cit.]” (Emphasis supplied.) Alterman Foods v. G.C.C. Beverages, 168 Ga. App. 921, 923 (310 SE2d 755) (1983); see Ga. Subsequent Injury Trust Fund v. Muscogee Iron Works, 265 Ga. 790-791 (462 SE2d 367) (1995).

No language, express or otherwise, obligates Miller to pay the Authority’s attorney fees. The language focuses only on Miller’s duty to indemnify the Authority for liabilities and claims of liability, not on the legally separate duty to defend the Authority or to pay for expenses of litigation or attorney fees. Cf. City of Atlanta v. St. Paul Fire &c. Ins. Co., 231 Ga. App. 206, 209 (3) (498 SE2d 782) (1998) (duty to defend and duty to indemnify are separate and independent obligations). This language closely parallels that discussed in Allen v. Lefkoff Duncan, Grimes &c., 212 Ga. App. 560, 562 (4) (442 SE2d 466) (1994) (“ ‘any and all claims asserted’ ” against the indemnitee), rev’d on other grounds, 265 Ga. 374 (453 SE2d 719) (1995), where we held that “the scope of the indemnity did not extend to attorney fees and expenses of litigation. . . .”

Indeed, a focused analysis of the specific liabilities indemnified confirms this conclusion. Miller agreed to indemnify the Authority from any and all liability, or claims of liability, for property loss or damage or personal injury “of [Miller] or of any person admitted to the Center by [Miller].” Thus, the indemnification protected the Authority from liability for losses or injuries experienced by Miller or Miller’s invitees, not for expenses incurred by the Authority in defending itself.

The Authority nevertheless contends that the use of the phrase “claims of liability” in addition to “any and all liability” somehow gives rise to an obligation to pay attorney fees. This contention lacks merit. When used in addition to the phrase “any and all liability,” the phrase “claims of liability” simply refers to the status of an action before liability is conclusively determined by a court judgment. Thus, pre-judgment settlements are specifically covered by the indemnity obligation. Attorney fees, however, are not.

In contrast to its agreement in the present case, the Authority in other indemnity agreements has used express language to create defense cost obligations when such was the intent of the parties. See, e.g., George L. Smith II &c. Auth. v. Soft Comdex, 250 Ga. App. 461, 463 (550 SE2d 704) (2001) (indemnifies the Authority “from all liabilities, and the cosi[s] and expenses of defending all claims of liability,” for personal injury claims) (emphasis supplied). As there is no such language here, we affirm the summary judgment granted to Miller.

Decided May 24, 2002

Reconsideration denied June 5,2002.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Owen, Gleaton, Egan, Jones & Sweeney, Timothy J. Sweeney, for appellant.

Swift, Currie, McGhee & Hiers, Bradley S. Wolff, Jeanne K. Strickland, for appellee.

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.


author: Blackburn, Chief Judge.

text:
    A02A0686.
    GEORGIA TRANSMISSION CORPORATION v. BARRON et al.
    (566 SE2d 363)
   Blackburn, Chief Judge.

Following a jury trial to establish the value of condemned land, Georgia Transmission Corporation (GTC) appeals the verdict of $280,000 in favor of John W. Barron, Jr., arguing that the trial court erred by allowing testimony regarding the value of the residential property in question as if it were subject to commercial uses. Specifically, GTC argues that rezoning of the residential property was so speculative and remote that the valuation testimony based on its commercial use was improper. For the reasons set forth below, we agree and reverse.

The record shows that the GTC condemned a 1.34-acre portion of Barron’s residentially zoned land for use as an access easement to a new electric substation site located just off Highway 20 in Gwinnett County. GTC’s appraiser initially valued the property at $50,250. After a hearing, a special master awarded Barron $105,000 for the property. GTC paid this amount into the registry of the court on February 24, 1999, the official date of the taking, and took title to the property at that time. Both parties appealed the special master’s award and requested a jury trial.

Prior to trial, GTC filed a motion in limine in which it asked the trial court to rule that Barron could not elicit testimony regarding the value of the property if it were rezoned to a commercial use. GTC argued that the lot was located in a residential neighborhood and that any potential commercial zoning and use were too speculative to provide the sole basis for establishing the value of the property on the date of the taking.

The trial court denied GTC’s motion and allowed Barron to call Dr. Alan Aycock as a valuation expert. Aycock opined that the highest and best use for Barron’s property was a commercial use. Aycock determined that, based on the commercial development growing around the residential area in which Barron’s home was located, including the Mall of Georgia, the property might, at some point in the future, be rezoned for commercial use. Aycock noted that planned commercial areas were already located within several hundred feet of Barron’s home. Based on these observations, Aycock decided to use only commercial properties as comparables, and he valued Barron’s property at $305,000.

After Aycock testified, Barron was called to the stand. He opined that the condemned parcel of his property was worth $278,000. Barron testified that he searched courthouse deeds and records to identify comparable properties to arrive at this figure. Like Aycock, all of the comparables used by Barron were commercial properties.

In direct contradiction to this speculative testimony of Aycock and Barron, Jeff West, the manager of Gwinnett County’s planning division, testified that the county’s long-term Land Use Plan designated Barron’s property as “Low Density Residential.” He also testified that, if Barron were to apply to the zoning office to rezone his property to commercial, he would recommend that the application be denied in accordance with the county’s Land Use Plan. Therefore, GTC provided evidence that any change of Barron’s residential property to commercial zoning would be in direct conflict with the county’s existing long-term Land Use Plan.

GTC now argues that valuation evidence based solely on commercial use of Barron’s property should have been excluded as too speculative and remote. We agree.

OCGA § 22-2-62 (d), applicable to special master proceedings and corresponding jury trials (OCGA § 22-2-108), directs that in determining the value of the property or interest the trier of fact is not restricted to the agricultural or productive qualities of the land. “(I)nquiry may be made as to all other legitimate purposes to which the property or interest could be appropriated.” OCGA § 22-2-62 (d). “It is appropriate for a jury to be allowed to inquire into all legitimate purposes, capabilities and uses to which the property might be adapted, provided that such use is reasonable and probable and not remote or speculative”

(Emphasis in original.) Elliott v. Henry County Water &c. Auth.

Decided May 24, 2002

Reconsideration denied June 5, 2002

Webb, Tanner & Powell, Robert J. Wilson, for appellant.

In this case, the valuation testimony provided by Aycock and Barron was inappropriate for two reasons: (1) it was based on pure speculation that Barron’s property would be rezoned to a commercial use and (2) it assumed that the property was already being used commercially at the time of the taking. Such testimony is inappropriate.

In all cases, the only question for decision is the value of property taken (or consequential damages) at the time of taking. The fact that the property is merely adaptable to a different use is not in itself a sufficient showing in law to consider such different use as a basis for compensation; it must be shown that such use of the property is so reasonably probable as to have an effect on the present value of the land. Even where a different use is shown to be reasonably probable, the jury cannot evaluate the property as though the new use were an accomplished fact; the jury can consider the new use only to the extent that it affects the market value on the date of taking. Condemnees’ expert could give his opinion of the value of the land on the date of taking based upon its enhanced value because of its adaptability as a [commercial property]; he could not testify as to the value before and after the taking based upon his assumption of the value as if the property had already been [commercially developed], but where he gives reasons which appear to be wholly speculative or conjectural, his opinion is without foundation and without probative value.

(Citations, punctuation and emphasis omitted.) Dept. of Transp. v. Benton.

In this case, Barron’s valuation testimony was based on speculative and conjectural reasoning, and, as such, this testimony lacked both a proper foundation and probative value. Because Aycock and Barron were improperly allowed to provide speculative valuations of Barron’s property based on its use as a commercial property at the time of its taking, the trial court abused its discretion in this matter, and this case must be reversed. Colonial Pipeline Co. v. Williams.

Judgment reversed.

Johnson, P. J., and Miller, J., concur.

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N Hubert, for appellees.

        Elliott v. Henry County Water &c. Auth., 238 Ga. App. 15, 17 (4) (517 SE2d 545) (1999).

        Dept. of Transp. v. Benton, 214 Ga. App. 221, 222 (1) (447 SE2d 159) (1994).

        Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304 (425 SE2d 380) (1992).


text:
    A02A0382.
    SAVAGE et al. v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.
    (566 SE2d 682)
   Blackburn, Chief Judge.

In this case involving insurance coverage for the theft of dental equipment, Susan L. Savage appeals the trial court’s grant of summary judgment to St. Paul Fire & Marine Insurance Company, contending that issues of fact remain regarding coverage. Because there is no evidence that Savage’s corporation, Family Medical & Dental Centers of America, P.C., was insured under the policy, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewed in this light, the record shows that, on April 19, 1998, St. Paul issued an insurance policy to Dr. Susan L. Savage to cover her medical practice. The named insured under this policy was Susan L. Savage, M.D., and the insured’s address was listed as Idlewood Road in Tucker, Georgia. Dr. Savage procured this policy through an agent, Potter Holden & Company, and it is undisputed that Potter Holden was not an agent of St. Paul. On January 1,1999, subject to a written endorsement, this policy was amended to show Susan L. Savage, M.D., Inc. as the named insured to reflect the fact that Savage had incorporated her medical practice.

In May 1999, Dr. Savage, in her individual capacity, decided to purchase a dental practice and open a combined medical and dental clinic with Anthony McMillan. This new business was incorporated as Family Medical & Dental Centers of America, PC. on May 14, 1999. As discussed in more detail below, there is no evidence in the record that Dr. Savage asked St. Paul to insure this newly formed corporation, and Dr. Savage did not relate the nature or organization of this new business arrangement to the insurance company, although she did discuss it with Potter Holden.

On May 20, 1999, the policy was once again amended (with an effective date of May 13, 1999) to show a new address on Chamblee Tucker Road in Doraville, Georgia, where Family Medical was located, and an additional premium in the amount of $5,355 was assessed. The endorsement making this change reads:

Location Number 001 [Idlewood Road in Tucker] is deleted. Location Number 002 [Chamblee Tucker Road in Doraville] is added, see attached Professional Office Package Location Coverage Summary. The premium shown below is the total net premium of all additions, changes, and deletions for this endorsement to your policy.

The named insured continued to be Susan L. Savage, M.D., Inc. On September 1, 1999, St. Paul issued an endorsement raising Savage’s insurance coverage for the Chamblee Tucker location to $250,000, effective August 27, 1999.

Dr. Savage’s operation of Family Medical quickly became problematic. Sometime in October 1999, Dr. Savage discovered that McMillan was not licensed to practice dentistry and that he had been embezzling money from the business. Realizing that Family Medical was no longer viable, Dr. Savage disassociated with McMillan, closed down Family Medical’s operations on October 29, 1999, and told her staff to go home.

For the first time on November 4, 1999, Potter Holden issued a letter to St. Paul requesting that the policy be amended to add Family Medical as a named insured and to decrease the policy coverage to $40,000. Potter Holden requested that these changes be made effective retroactively to May 14, 1999. Shortly thereafter, effective November 3,1999, St. Paul issued an endorsement reducing Savage’s insurance coverage for the Chamblee Tucker location to $40,000. To effectuate the change of insureds to include Family Medical, however, St. Paul asked Dr. Savage to complete an “entity application form.” Dr. Savage did not complete the entity application form at that time.

Sometime between November 14, 1999, and just after Thanksgiving, almost $90,000 worth of dental equipment was allegedly stolen from the Family Medical offices while Dr. Savage was out of town. Six weeks later, on December 28, 1999, Dr. Savage reported the theft to a St. Paul adjuster. After investigating the incident, St. Paul informed Dr. Savage that the theft loss was not covered under her policy because Family Medical, the owner of the dental equipment, was not named as an insured.

Dr. Savage finally completed the entity application sent to her by St. Paul on December 21, 1999. At that time, she designated Susan Savage, M.D., P.C. as the entity to be added to the policies because Family Medical was no longer in operation. Effective December 21, 1999, St. Paul issued an endorsement changing the named insured to Susan L. Savage, M.D., P.C.

The record contains no evidence that Dr. Savage ever requested that Family Medical be insured under her policy with St. Paul. In fact, the letters from Dr. Savage’s own agent indicate that Family Medical was never added to the policy as a named insured. One such letter states: “Due to the fact that we never received the appropriate application needed to add Family Medical. . . , this corporation was never added to your policies.”

“The general rule is that [a]n action on a policy of insurance or on a written binder must be brought in the name of the holder of the legal title thereto. Generally, one other than the person to whom it was issued can not, in his own name, maintain an action thereon, unless the policy has been duly assigned to him in writing.” (Citations and punctuation omitted.) U. S. Homes Assistance Corp. v. Southern Guaranty Ins. Co.

The evidence of record, therefore, supports the trial court’s grant of summary judgment to St. Paul. Nonetheless, Dr. Savage argues that St. Paul should be required to insure Family Medical pursuant to State Farm Fire &c. Co. v. Mills Plumbing Co. Mills Plumbing, however, is distinguishable from the matter at hand.

In Mills Plumbing, a plumbing business, initially established as a partnership, incorporated without informing the insurer, although it otherwise continued its operations in the same manner. Subsequent to this incorporation, the insurance company audited the business, determined the extent of its exposure risks, and raised the business’ premiums, which were paid with checks drawn on the business’ new corporate account. In that case, we held:

Decided June 5, 2002

Michael M. Calabro, for appellants.

Claxton & Claxton, William P. Claxton, Carlock, Copeland, Semler & Stair, Wade K. Copeland, for appellee.

Under these circumstances it cannot be said, as a matter of law, that the insurer has not “consented” to the assignment of the policy by the partnership to the corporation or that the insurer has not, by its actions, waived the policy requirement that assignments be endorsed on the face of the policy. When the insurer received the audit report, it knew or should have known that the partnership had been replaced by the corporation. At that point, the insurer chose not to treat the policy as no longer in force, but, rather increased the premiums due thereunder, for reasons based upon the fact of that incorporation.

Id. at 534 (1).

In this case, on the other hand, one business entity did not change form into another type of entity, for example, a partnership into a corporation. Instead, one founder created two separate corporations; Dr. Savage created Susan L. Savage, M.D., Inc. and Family Medical. And, unlike the entities in Mills Plumbing, the operations carried on by the two entities in this case were very different, and, as a result, the risks to the insurance company were very different. Accordingly, Mills Plumbing has no application here.

Because there is no evidence that Family Medical was a named insured under the policy in question, the trial court appropriately granted summary judgment to St. Paul.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       The insurance policy provides: “Any organization, other than a partnership, joint venture, or limited liability company, that you acquire or form while this agreement is in effect is a protected person if you own more than 50% of it.” The insurance policy further provides, however, that such an organization is covered for only 90 days from the date it was acquired or formed unless otherwise agreed. As the theft on which this case is based indisputably occurred more than 90 days after Family Medical was formed and there is no evidence of an agreement to extend the automatic coverage period, this policy provision is inapplicable.

        U. S. Homes Assistance Corp. v. Southern Guaranty Ins. Co., 131 Ga. App. 676, 678 (206 SE2d 555) (1974).

        State Farm Fire &c. Co. v. Mills Plumbing Co., 152 Ga. App. 531 (263 SE2d 270) (1979).


text:
    A02A0449.
    FEINOUR v. RICKER COMPANY.
    (566 SE2d 396)
   Miller, Judge.

The question on appeal concerns when the six-year statute of limitation begins to run on a claim for breach of an express warranty on a new house construction. We hold that the statute begins to run, in this case, from the date on which the builder attempted to repair the construction defect covered by the warranty, which repair was inadequate. Since the present suit was filed within six years of that date, we reverse the portion of the summary judgment order that was granted in favor of the builder on the breach of express warranty claim. The remainder of the summary judgment order is affirmed.

As this is an appeal from the grant of summary judgment, we review the evidence de novo, construing all inferences in favor of the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). Summary judgment is proper only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

So construed, the evidence showed that Barbara Feinour contracted to buy a house being constructed by the Ricker Company that was clad in synthetic stucco on the exterior walls. The certificate of occupancy on the house issued on September 23, 1993, and the closing took place later that month. On September 30, Ricker agreed to a one-year limited warranty on the house, obligating Ricker to repair or replace defects in construction.

As the year on the limited warranty approached expiration, Fei-nour on September 18, 1994, notified Ricker of water leakage problems in the master bathroom. Ricker responded that a workman would be sent over to correct the problem, which occurred a few days later on October 3. Although the workman represented that the problem was fixed, the workman only temporarily or cosmetically corrected the underlying problem, which apparently arose out of the general improper installation of the synthetic stucco.

Six years later in 2000, Feinour hired an expert who determined that the improper installation of the synthetic stucco had resulted in major water damage to the infrastructure of the house. Feinour sued Ricker on September 28, 2000, asserting claims for breach of the construction contract, breach of implied warranty, breach of express warranty, fraud in concealing the defects, and negligent construction. The court granted summary judgment to Ricker, holding (1) the tort claims (fraud and negligent construction) expired in 1997, four years after the certificate of occupancy issued, (2) the contract, implied warranty, and express warranty claims all expired on September 23, 1999, six years after the certificate of occupancy issued, and (3) no evidence showed any actual fraud by Ricker that deterred Feinour from discovering her injury sooner.

Feinour appeals, asserting that the express warranty claim did not arise until October 3,1994 (the date of the attempted repair), and that the cosmetic actions by the workman on that date prevented her from learning the truth sooner. We agree that the express warranty claim did not arise until October 3 but hold that his actions were not actual fraud that deterred Feinour from learning the truth sooner. Accordingly, we affirm in part and reverse in part.

1. Feinour first argues that the court erred in granting summary judgment on her breach of express warranty claim, which she contends did not accrue until October 3,1994, when Ricker inadequately repaired the house. We agree and reverse this portion of the judgment.

We have repeatedly held that the six-year statute of limitation set out in OCGA § 9-3-24 applies to contract claims (whether breach of implied warranty, breach of express warranty, or breach of sale/ construction contract) by homeowners against professional builder-sellers and have specifically applied this to contract claims arising out of damages caused by water leakage through synthetic stucco. Rosenheimer v. Tidal Constr. Co., 250 Ga. App. 145, 146-147 (2) (550 SE2d 698) (2001); Hickey v. Bowden, 248 Ga. App. 647, 648-649 (1) (548 SE2d 347) (2001); Stimson v. George Laycock, Inc., 247 Ga. App. 1, 3-4 (1) (542 SE2d 121) (2000); Mitchell v. Jones, 247 Ga. App. 113, 114-115 (1) (541 SE2d 103) (2000). The four-year period set out in OCGA § 9-3-30 (a) applies to related tort claims. Rosenheimer, supra, 250 Ga. App. at 146 (1); Hickey, supra, 248 Ga. App. at 649 (2). With regard to tort claims and claims for breach of implied warranty and breach of the sale/construction contract, we have held that the applicable statutes of limitation begin to run on the date of substantial completion, i.e., the date that the certificate of occupancy is issued. Hickey, supra, 248 Ga. App. at 649-650 (1), (2); see Rosenheimer, supra, 250 Ga. App. at 146 (1). Unless those statutes were tolled by actual fraud (discussed in Division 2 below), the fraud, negligent construction, breach of implied warranty, and breach of the sale/construction contract claims brought by Feinour are all barred, since suit was not filed until 2000, more than six years after the certificate of occupancy issued in 1993.

We treat the start date for the breach of express warranty claim differently. Benning Constr. Co. v. Lakeshore Plaza Enterprises, 240 Ga. 426, 429 (241 SE2d 184) (1977), held that the contractor’s obligation under an express warranty to repair or replace any defects in materials or workmanship does not arise until the landowner notifies the contractor of the alleged defects. “No breach of the ‘guarantee’ could have occurred until that time.” Id. Thus, Benning Constr. concluded that the six-year statute of limitation commenced to run from the date that the landowner notified the contractor of the alleged defects in construction. Id. at 429-430; see Howe v. Roberts, 259 Ga. 617, 618 (1), n. 4 (385 SE2d 276) (1989) (“Since the builder could not have corrected defects per the warranty agreement until he received notice, the statute would have begun running no sooner than [the date on which he received that notice]. [Cit.]”). In Benning Constr., however, the contractor had never attempted to correct the defect. Id. at 426.

Space Leasing Assoc. v. Atlantic Bldg. Systems, 144 Ga. App. 320 (241 SE2d 438) (1977), did involve an attempt to repair. There the installer of a roof had expressly warranted the roof for six years from the date of completion. Id. at 321. Construction was completed in May 1969, and the roof began to leak, leading to repair efforts in 1971. Id. at 321-322. Dissatisfied, the owner filed suit in November 1975, which was more than six years after completion of construction, thus mandating summary judgment on the owner’s claim for breach of the construction contract. Id. at 324 (2). The court, however, reversed summary judgment on the breach of express warranty claim, explaining that it was “the refusal to remedy within a reasonable time, or a lack of success in the attempts to remedy which would constitute a breach of warranty.” (Citations and punctuation omitted; emphasis in original.) Id. at 325 (4); see Teledyne Indus, v. Patron Aviation, 161 Ga. App. 596, 598 (2) (288 SE2d 911) (1982). Thus, the applicable statute of limitation was to run from the time the jury determined that the installer had abandoned its warranty obligations and refused or failed to perform further corrective work. Space Leasing, supra, 144 Ga. App. at 327 (4).

Citing Benning Constr. and Space Leasing, we held in Versico, Inc. v. Engineered Fabrics Corp., 238 Ga. App. 837, 842 (3) (520 SE2d 505) (1999), that the breach of an express warranty to repair or replace did not occur until the warrantor refused to perform further repairs. Versico explained that since an express warranty contemplates that the warrantor have an opportunity to remedy any defects, the breach of that warranty does not occur until the warrantor either refuses to remedy the defects or is unsuccessful in remedying the defects. This general principle of contract law applies whether the case is a UCC case or not. Cf. Ford Motor Co. v. Gunn, 123 Ga. App. 550, 551 (1) (181 SE2d 694) (1971). Thus, we hold that the breach of Ricker’s express warranty obligation did not occur until Ricker attempted unsuccessfully to remedy the defect on October 3, 1994. Since suit on this express warranty was filed within six years of that date, the court erred in granting summary judgment on this claim.

The trial court’s reliance on Gropper v. STO Corp., 250 Ga. App. 820, 823-824 (2) (552 SE2d 118) (2001), to reach an opposite conclusion was understandable but misguided, as Gropper focused primarily on the statute of limitation start date for breach of an implied warranty and did not specifically analyze the start date for breach of an express warranty to repair and replace. Since an express warranty to repair is not breached until the warrantor refuses to repair or inadequately repairs the defect, the statute of limitation on that claim does not commence to run until that obligation is breached. As discussed in Benning Constr, supra, 240 Ga. App. at 429, if the rule were otherwise and the six-year statute of limitation on express warranty claims began to run from the date the structure was substantially completed, then ten-year express warranties would be meaningless, as claims for defects discovered in the seventh, eighth, ninth, and tenth years of the warranty would be outside the statute of limitation.

2. The trial court correctly concluded that no evidence supported a finding that the statutes of limitation applicable to the other contract and tort claims were tolled. In a synthetic stucco case, Mitchell v. Jones emphasized:

To establish fraudulent concealment under OCGA § 9-3-96 sufficient to toll the statute of limitation, the homeowners must prove that (1) [the builder] committed actual fraud involving moral turpitude, (2) the fraud concealed the cause of action from the homeowners and (3) the homeowners exercised reasonable diligence to discover their cause of action despite their failure to do so within the applicable statute of limitation. Moreover, to toll the statute of limitation under OCGA § 9-3-96, the concealment of a cause of action must be by positive affirmative act, not by mere silence. Some trick or artifice must be employed to prevent inquiry or elude investigation or to mislead and hinder the party who has the cause of action from obtaining the information, and the acts relied on must be of an affirmative character and fraudulent.

(Footnotes omitted.) Id. at 117 (3).

Feinour has failed to present any competent evidence rebutting the testimony that at that time of construction, Ricker did not know of any problems associated with the use of synthetic stucco. Indeed, Ricker’s CEO used it for cladding his personal home. Such unrefuted testimony shows there was no actual fraud (see Mitchell, supra, 247 Ga. App. at 118 (3); cf. Gropper, supra, 250 Ga. App. at 824 (3)), and we fail to see how the inadequate attempt to repair the problem in October 1994 would constitute actual fraud. Since the trial court was authorized to hold that the statutes of limitation were not tolled, it did not err in granting summary judgment on the remaining claims (i.e., the claims other than the breach of express warranty claim).

Decided June 6, 2002.

Charles F. Peebles, Lane R. Frostbaum, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, John M. Hawkins, for appellee.

Judgment affirmed in part and reversed in part.

Blackburn, C. J., and Johnson, P. J., concur.

       The recent statutory amendment allowing the four-year statute of limitation for torts for synthetic stucco damage to begin running upon discovery does not revive any cause of action that was barred by former law before March 28, 2000. OCGA § 9-3-30 (b) (2). Here the tort claims were barred as of 1997.


author: Phipps, Judge.

text:
    A02A0884.
    EVANS COUNTY BOARD OF COMMISSIONERS et al. v. CLAXTON ENTERPRISE.
    (566 SE2d 399)
   Phipps, Judge.

The main issue in this case is whether a litigant who proves a violation of Georgia’s Open Meetings Act is entitled to attorney fees incurred in litigating the matter on appeal. We hold that such fees are recoverable. We also hold that they — along with attorney fees for trial level work — were appropriately awarded in this case.

The Claxton Enterprise, a newspaper, sued the Evans County Board of Commissioners for violating the Open Meetings Act by closing certain meetings to the public. The trial court ruled that one meeting had been illegally closed, but a second meeting had not. The Enterprise sought $9,699.88 in attorney fees under OCGA § 50-14-5 (b), which states that in any action brought to enforce the provisions of the Open Meetings Act

in which the court determines that an agency acted without substantial justification in not complying with [the Act], the court shall, unless it finds that special circumstances exist, assess in favor of the complaining party reasonable attorney’s fees and other litigation costs reasonably incurred. Whether the position of the complaining party was substantially justified shall be determined on the basis of the record as a whole which is made in the proceeding for which fees and other expenses are sought.

The court awarded $1,500 because “although the evidence shows there was no bad faith on the part of the Commission, the fact remains that the public was wrongfully excluded in violation of the law.”

On appeal, we affirmed in part and reversed in part, holding that the closure of both meetings had violated the Act. We also held that the Board had violated the Act by failing to timely record the minutes of one closed meeting and an affidavit explaining the reason for its closure. Finally, we held that the trial court, which apparently had awarded attorney fees simply because the Board had violated the Act, had applied an incorrect standard in determining whether fees were warranted. We instructed the court that

[u]pon remand, in determining whether to award fees, [it] must first consider whether the Board’s noncompliance with the Act was without, or “lacked,” substantial justification. “Lacked substantial justification” has been identified in the attorney fees context as “substantially frivolous, substantially groundless, or substantially vexatious.” See OCGA §§ 9-15-14 (b); 9-15-15 (a); 43-1-19 (f); Munoz v. American Lawyer Media, 236 Ga. App. 462, 466 (2) (512 SE2d 347) (1999). If the court determines [that] the Board’s noncompliance with the Act lacked substantial justification, it must award fees. The court may . . . reduce or eliminate the award completely, however, upon a finding of special circumstances that would, in the exercise of the court’s discretion, justify such a decision.

After remand, the trial court held a hearing on the attorney fees issue. The parties stipulated that the Enterprise had incurred attorney fees of $21,320.63, of which $9,699.88 represented charges for litigation in the trial court and the remainder represented charges for the appeal. The Board did not contend that the fees were unreasonable for the work performed. Instead, the Board argued that the Enterprise could recover only attorney fees associated with trial court litigation, not those for appellate litigation. The Board also argued that the trial court’s prior finding that the Board had not acted in bad faith precluded a finding that the Board had acted “without substantial justification,” as this court defined that term in Claxton Enterprise.

The trial court issued a written order finding, based on the record as a whole, that the Board lacked substantial justification for closing both meetings and for failing to timely file the meeting minutes and affidavits and that there were no special circumstances that might affect an award of fees. The court also found that the Enterprise was entitled to attorney fees for both trial and appellate work. Accordingly, the court awarded the Enterprise the full amount of stipulated fees. The Board appeals.

1. The Board argues that the trial court’s conclusion that the Board acted without “substantial justification” was erroneous in light of its earlier finding that the Board did not act in bad faith. But acting without substantial justification and acting in bad faith are not synonymous, as we explained in Claxton Enterprise. One meaning of “lacked substantial justification” is “substantially groundless.” Based on this definition and our review of the factual record, we find no clear error in the trial court’s determination that the Board’s closure of the meetings and untimely filing of the minutes and affidavits lacked substantial justification.

2. The Board argues that the trial court should have found that its lack of bad faith was a “special circumstance” supporting a reduction or elimination of the fee award. The Board also argues that other “special circumstances” include the fact that it took no official action at the closed meetings and that the Open Meetings Act is a relatively new law with little authority interpreting it.

Determining whether there are special circumstances that would justify a reduction or elimination of a fee award is within the discretion of the trial court. We find no abuse of discretion here. As we noted in Claxton Enterprise, although the trial court found that the Board did not act in bad faith, the evidence showed that it changed its stated reason for closing the first meeting without explanation and approached its obligations under the Act with a “cavalier attitude.” And it offered no explanation, either initiálly or on remand, for its late filing of the meeting minutes and affidavit. That no official action was taken at the closed meetings is not necessarily a “special circumstance” because the need for open government is not limited to meetings in which formal measures are taken. As the Enterprise points out, the events of closed meetings could lead to later official action. Finally, contrary to the Board’s assertion, any lack of authority interpreting the Act does not require a finding of “special circumstance.”

3. The Board contends that the trial court erred in awarding attorney fees that the Enterprise incurred in the first appeal to this court. Whether attorney fees for appellate work are recoverable under the Open Meetings Act is an issue of first impression in Georgia, although other states have ruled that such fees are compensable under their open government laws. We hold that the Act permits recovery of costs and attorney fees for litigation in appellate courts when such costs and fees otherwise would be compensable under OCGA § 50-14-5 (b).

First, nothing in the Act limits recovery of attorney fees to those incurred in trial court litigation. OCGA § 50-14-5 (b) provides that whether the position of the party claiming a violation of the Act was substantially justified shall be determined based on “the record as a whole which is made in the proceeding for which fees and other expenses are sought.” The use of the general term “proceeding,” which can apply to a court of any level, suggests that the recovery of fees was not intended to apply only to litigation in a trial court.

Second, permitting recovery of fees and costs incurred on appeal would further the purpose of the Act. The Act was intended “to protect the public — both individuals and the public generally — from ‘closed door’ politics and the potential abuse of individuals and the misuse of power [that] such policies entail.” The Act encourages private enforcement of its provisions by making attorney fees compen-sable, and that encouragement would be significantly weakened by prohibiting recovery of attorney fees incurred on appeal. In this case, the Enterprise could not have fully prevailed without the appeal in which it incurred additional legal fees. Because appeal is often an integral part of litigation to enforce the Act, recovery of attorney fees should not exclude those incurred on appeal.

The Board argues that this issue should be governed by case law interpreting OCGA § 9-15-14, which allows recovery of costs and attorney fees for frivolous litigation in “any civil action in any court of record” in Georgia. In Dept. of Transp. v. Franco’s Pizza &c., we held that that statute does not allow a trial court to require payment of attorney fees and expenses for litigation before appellate courts. We reasoned that the language of OCGA § 9-15-14 implicitly permitted a trial court to award fees and expenses of litigation only for proceedings before that court. And because other authority allows this court to assess damages or penalties for frivolous appeals, a party to a frivolous appeal has an adequate remedy. Finally, we noted that the trial court lacked jurisdiction over the case during appeal.

Decided June 6, 2002

Callaway, Neville & Brinson, William E. Callaway, Jr., William J. Neville, Jr., for appellants.

Glen A. Cheney, for appellee.

King & Spalding, Joseph R. Bankoff, Thomas C. Lundin, Jr., amici curiae.

None of these reasons applies here. OCGA § 50-14-5 neither explicitly nor implicitly confines a trial court’s attorney fees award to proceedings before the trial court. On the contrary, as noted above, the language of OCGA § 50-14-5 suggests an applicability to proceedings in any court. Moreover, we are not aware of any authority that would allow this court to impose attorney fees for a violation of the Open Meetings Act. While OCGA § 5-6-6 and Court of Appeals Rule 15 allow us to impose damages and penalties for frivolous appeals, they do not allow us to award attorney fees for unjustified violations of the Open Meetings Act. OCGA § 50-14-5 expressly vests jurisdiction to award such fees in the superior courts of this state, not in the court of appeals. Thus, our holding in Dept, of Transp. v. Franco’s Pizza &c. is not controlling here.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       OCGA § 50-14-1 et seq.

       See Claxton Enterprise v. Evans County Bd. of Commrs., 249 Ga. App. 870 (549 SE2d 830) (2001), for a more detailed discussion of the background facts.

       (Punctuation omitted.) Id. at 877 (5).

       Id. at 872-875 (1), (2).

       See id. at 876-877 (4); OCGA § 50-14-4 (b).

        Claxton Enterprise, supra at 878 (5).

       Id.

       OCGA § 50-14-5 (b).

        Claxton Enterprise, supra at 878.

       Id. at 876 (4).

       See Intl. Longshoremen’s &c. Union v. Los Angeles Export Terminal, 69 Cal. App.4th 287, 303-304 (81 Cal. Rptr.2d 456) (1999); Piazza v. City of Granger, 909 SW2d 529, 535 (Tex. App. 1995); Brown v. East Baton Rouge Parish School Bd., 405 S2d 1148, 1156-1157 (La. App. 1981).

       (Emphasis supplied.)

       (Citation and punctuation omitted.) Beck v. Crisp County Zoning Bd. of Appeals, 221 Ga. App. 801, 803 (472 SE2d 558) (1996).

       200 Ga. App. 723, 727-728 (5) (409 SE2d 281) (1991), overruled on other grounds, White v. Fulton County, 264 Ga. 393, 394 (1) (444 SE2d 734) (1994); see also Harkleroad v. Stringer, 231 Ga. App. 464, 472 (6) (499 SE2d 379) (1998).

       See OCGA § 5-6-6; Court of Appeals Rule 15.


author: Andrews, Presiding Judge.

text:
    A02A0029.
    FLOWERS v. THE STATE.
    (566 SE2d 339)
   Andrews, Presiding Judge.

Joe Flowers appeals from the judgment entered after a bench trial in which he was found guilty of two counts of child molestation. After reviewing the evidence, we conclude there was no reversible error and affirm.

The evidence at trial, taken in the light most favorable to support the verdict, was as follows. The victim in this case, A. A., was an 11-year-old girl who lived near the Flowerses, spent a lot of time with Flowers’s family and often babysat for his children. The victim’s mother testified that during the period in question the victim would usually spend weekends at the Flowerses’ home. Just after the victim’s twelfth birthday, her mother became suspicious when she found out that A. A. had not gone to school that day. She found her with Joe Flowers in his brother’s trailer and took her home and questioned her about her relationship with Flowers. A. A. finally admitted that she and Flowers had sexual intercourse.

A. A.’s school counselor testified that she talked to A. A. and she admitted to being sexually active but would only state that it was with someone for whom she babysat. A Georgia Bureau of Investigation investigator testified that A. A. described one act of intercourse with Flowers that occurred when she was over at his house. The investigator said that in a second interview with A. A., she described three separate acts of sexual intercourse.

The victim took the stand and testified about her three sexual encounters with Flowers. The victim’s cousin testified that she and A. A. were alone together and A. A. started crying and described to her three sexual encounters with Flowers. The evidence was sufficient to support the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

1. In his first enumeration of error, Flowers claims the trial court erred in allowing the victim to remain in the courtroom in violation of the rule of sequestration. At the beginning of trial, prosecuting counsel requested that A. A., who was 14 at the time of trial, remain in the courtroom and assist him during the trial. Counsel told the court that this was a special presentment case and there was no official prosecutor. The victim was the sixth of eleven State’s witnesses to testify.

Under OCGA § 24-9-61.1 (a),

[t]he victim of a criminal offense may be entitled to be present in any court exercising jurisdiction over such offense. It shall be within the sole discretion of the judge to implement the provisions of this Code section and determine when to allow such victim to be present in such court and, if such victim is permitted to be present, to determine the order in which the testimony of such victim shall be given.

Accordingly, it was within the trial court’s sole discretion to make this determination, and no manifest abuse of this discretion has been shown. There was no error. Shepherd v. State, 245 Ga. App. 386, 388 (537 SE2d 777) (2000).

2. Next, Flowers argues the court erred in not allowing defense counsel to question the investigator about the victim’s prior sexual activity. Flowers contends the evidence was relevant to whether the victim’s description of the sexual incidents was credible. We disagree. OCGA § 24-2-3, the rape shield statute, prohibits the introduction of evidence of the past sexual behavior of the complaining witness in rape cases. This rape shield statute is also applicable in child molestation cases. McGarity v. State, 224 Ga. App. 302, 303 (480 SE2d 319) (1997). There is an exception to this exclusion of evidence when the State introduces evidence of the “child abuse syndrome.” Id. at 304 (1). But, the State did not do so in this case; nor does this case present any other facts which would except it from the rape shield statute. There was no error.

3. Lastly, Flowers contends the trial court erred in allowing hearsay testimony about statements made by the victim to her mother, the school counselor, and the nurse practitioner who examined the victim. In each instance, the trial court overruled defense counsel’s objection, stating that the testimony was admissible under the child hearsay statute. Flowers claims this was error because there is no evidence in the record to support a finding that the circumstances of the statements provide sufficient indicia of reliability.

OCGA § 24-3-16 provides:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

It is not necessary for the court to make a specific finding that the, statements provide sufficient indicia of reliability as a condition precedent to admitting the statement. The statutory requirement is met if, after both parties have rested, the record contains evidence which would support such a finding. Gregg v. State, 201 Ga. App. 238, 239 (411 SE2d 65) (1991).

The factors which the court may consider, when applicable, include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same[,] and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.

Decided May 23, 2002

Reconsideration denied June 7,2002.

Hugh J. McCullough, for appellant.

J. Thomas Durden, Jr., District Attorney, Henry P. Smith, Assistant District Attorney, for appellee.

(Emphasis omitted.) Gregg, supra at 240 (3) (b).

Flowers argues that there was no evidence that the statements were spontaneous and points out two inconsistencies in the victim’s statements, namely, that she gave differing answers when asked how many times Flowers had molested her and described the incidents in a different order in two different statements. This is not sufficient to show that the trial court abused its discretion in admitting the statements. Moreover, the victim was present at trial and called to testify as a witness. Therefore, defense counsel had the opportunity to cross-examine the child and allow the judge to observe the child’s demeanor in response to questions about the making and veracity of these statements. Gregg, supra at 241. See also Fields v. State, 194 Ga. App. 149, 151 (390 SE2d 71) (1990) (because child was found competent to testify at trial and was available to testify at trial, court did not err in allowing hearsay testimony about the victim’s account of the alleged abuses).

Judgment affirmed.

Phipps and Mikell, JJ., concur.


text:
    A02A0530.
    SAGENICH v. THE STATE.
    (566 SE2d 327)
   Blackburn, Chief Judge.

After a jury trial, Brett Sagenich was found guilty of failure to obey a stop sign and two counts of driving under the influence of a controlled substance, per se, OCGA § 40-6-391 (a) (6). The jury found Sagenich not guilty of charges under OCGA § 40-6-391 (a) (1), (2), and (4), driving under the influence of alcohol, a controlled substance, and a combination thereof to the extent that Sagenich was less safe to drive. Sagenich alleges that the trial court erred in sending the police officer’s implied consent card and a videotape of the traffic stop to the jury room since these items acted as continuing witnesses. For the reasons set forth below, we affirm.

Viewing the facts in the light most favorable to the verdict, the record shows that an Atlanta police officer stopped Sagenich after observing his vehicle fail to stop at a stop sign. Thereafter, the officer activated his videocamera. Upon stopping Sagenich, the officer noticed that he had a strong odor of alcoholic beverages and that his eyes were dilated, glassy, and bloodshot. He was fidgety and sniffling during the interrogation. Several field sobriety tests, the horizontal gaze nystagmus test, the modified Romberg test, the nine-step walk and turn, and the one-leg stand, were performed. Based on his observation of Sagenich and the results of the tests, the officer arrested Sagenich and read him the implied consent warning.

Sagenich was charged with driving under the influence of alcohol, per se, driving under the influence of two controlled substances, per se, and several less safe to drive violations. Sagenich submitted to a blood test which indicated a 0.05 blood alcohol content and the presence of two controlled substances. During the trial, the officer’s implied consent card from which he had read the warning and the videotape of the incident were admitted into evidence. The videotape was shown to the jury by the prosecution and again by the defense. Both the card and videotape were sent to the jury room during deliberations without objection.

1. Sagenich contends that the trial court erred by permitting the implied consent card to go to the jury room. We disagree. The continuing witness rule prohibits writings from going to the jury room during deliberations when the evidentiary value of the writings depends on the credibility of the writer.

Documents that are prohibited by the “ ‘continuing witness rule’ ” from going out with the jury include answers to written interrogatories, written dying declarations, and signed statements of guilt. These documents, which generally contain their makers’ assertions of purported truths, are ascribed evidentiary value only to the extent that their makers are credible.

(Footnotes omitted.) Bryant v. State. The rationale for the rule is that the party submitting the writing will gain an unfair advantage over the other side by having the testimony favorable to his case read and reread by the jury. Gabbard v. State.

The implied consent card is a recitation of the law and does not depend on the credibility of the officer testifying about the traffic stop. Sagenich did not contest the admissibility of the card or that it was the card read by the officer during the traffic stop. The requirement, in Fields v. State, that the evidence be consistent with the defendant’s theory of the case before being sent to the jury room is applicable only to written or recorded statements. Therefore, the trial court did not err in permitting the implied consent card to be sent to the jury room.

2. Sagenich contends that the videotape of the traffic stop is a “continuing witness,” and the trial court should not have allowed it to go out with the jury. The continuing witness rule has been applied to recordings as well as writings. This Court has held that the rule is violated when, for instance, the trial court sends the videotaped interview of a witness to the jury room, Summage v. State or allows a defendant’s tape-recorded statement to police to go to the jury room, Fields, supra at 243. Unlike a videotaped interview or a transcript of testimony, the videotape of the traffic stop is “independent and original evidence, in and of itself,” Vinyard v. State and does not depend on the credibility of the maker for its value. Brewton v. State. It is a true depiction of the event. There is no allegation that the videotape did not accurately record the incident or that the video was altered.

The videotape does show the officer advising Sagenich that he believes him to be under the influence of a stimulant. This comment is made for the purpose of informing the defendant why he is being arrested. The error, if any, in permitting the videotape to go out with the jury was harmless. Kent v. State. The videotape was played in its entirety, twice during the trial, first by the State and then by the defendant. The videotape was consistent with the theory of defense that Sagenich’s demeanor and his performance on the field sobriety tests during the traffic stop show that he was not less safe to drive. Fields, supra at 243. Additionally, there was substantial evidence produced at trial, including the blood test results and testimony of both the officer and lab personnel, that the defendant was under the influence of an illegal drug. It is highly probable that the videotape was not determinative of the verdict on the driving under the influence of controlled substances charges. See Brewton, supra at 111.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

Decided May 22, 2002

Reconsideration denied June 7, 2002.

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellant.

Joseph J. Drolet, Solicitor-General, Julie A. Kert, Assistant Solicitor-General, for appellee.

        Bryant v. State, 270 Ga. 266, 270-271 (3) (507 SE2d 451) (1998).

        Gabbard v. State, 233 Ga. App. 122, 124 (3) (503 SE2d 347) (1998).

        Fields v. State, 266 Ga. 241, 243 (2) (466 SE2d 202) (1996).

        Summage v. State, 248 Ga. App. 559, 561 (1) (546 SE2d 910) (2001).

        Vinyard v. State, 177 Ga. App. 188, 190 (1) (338 SE2d 766) (1985).

        Brewton v. State, 174 Ga. App. 109, 110-111 (2) (329 SE2d 270) (1985).

        Kent v. State, 245 Ga. App. 531, 533 (3) (538 SE2d 185) (2000).


text:
    A02A0672.
    WACHOVIA BANK, N.A. v. DECATUR AUTO CENTER, INC.
    (566 SE2d 337)
   Miller, Judge.

As the result of a dispute over the proceeds in its corporate checking account, Decatur Auto Center, Inc. sued Wachovia Bank, N.A. for conversion. The trial court granted Decatur Auto’s motion for summary judgment, awarding $30,500 in principal and $12,757.75 in attorney fees to Decatur Auto. In this appeal, Wachovia argues that the trial court erred in finding conversion. As conversion was not the proper cause of action to recover funds missing from a standard checking account, we reverse.

On June 3, 1999, Decatur Auto issued a check drawn on its corporate checking account in the amount of $30,500 made payable to Northside Sales & Leasing as payment for a car. Northside immediately deposited the check into its own checking account at Colonial Bank. When Colonial presented the check to Wachovia for collection, Wachovia refused to honor it because Decatur Auto’s account lacked sufficient funds to cover the check.

On June 9, 1999, Colonial then sent a notice to Northside stating that the check had been dishonored by Wachovia and that North-side’s account at Colonial had been debited in the amount of $30,503 that same day to make up for the dishonor plus a $3 fee. No evidence in the record reflects that Northside ever thereafter received any value from Colonial (whether as a credit to its account, advance, loan, funds, or otherwise) in exchange for the dishonored check.

According to Raimi Sanuse, the president of Decatur Auto, after the check bounced, he and David Womack of Northside negotiated a new agreement in which Decatur Auto agreed to pay Northside $30,500 in a combination of cash and checks in exchange for North-side’s promise to return the check to Decatur Auto. Colonial nevertheless retained the check and continued to pursue collection. Colonial contacted Wachovia on a daily basis to determine if Decatur Auto’s account had sufficient funds to cover the check. When two months later it learned that sufficient funds were present, Colonial had its representative immediately drive over to Wachovia to cash the check. Colonial’s representative happened to meet Decatur Auto’s president at Wachovia. Upon learning of Colonial’s intent, Decatur Auto’s president told Colonial’s representative that Decatur Auto had already paid Northside in cash and that the check belonged to Decatur Auto. Decatur Auto immediately put a “stop-payment” order on the check, and Colonial’s representative left.

Aware of the stop-payment order, Colonial nevertheless requested that Wachovia pay the check and promised to indemnify Wachovia for any losses. Based on Colonial’s promise, Wachovia two weeks later paid the check by issuing Colonial a new $30,500 “official check” drawn by Wachovia and by debiting Decatur Auto’s account in that amount. Despite demands, Wachovia refused to pay Decatur Auto the $30,500 Wachovia had debited to cover the bank check to Colonial. Decatur Auto brought the present suit for conversion to recover the funds.

Although Decatur Auto may have various causes of action available to it, it chose to sue Wachovia only under the theory of conversion. Conversion, however, is not a proper avenue to recover funds missing from a standard checking account. Conversion (also known as trover) only lies to recover specific money entrusted to the defendant’s care, not to recover money held generally by a bank in a checking account that is commingled with the bank’s funds. See Cooke v. Bryant, 103 Ga. 727, 731-732 (30 SE 435) (1898). “Plaintiff is not seeking to recover some specific money, either in certain bills or coins to which it had title, but instead seeks to recover a certain amount of money generally.” (Citations and punctuation omitted.) Mgmt. Compensation Group &c. v. United Security Employee Programs, 194 Ga. App. 99, 104 (4) (389 SE2d 525) (1989). Since Decatur Auto’s claim could be discharged by the payment of any lawful currency of the United States, “this is not such a case for which a cause of action for conversion was intended.” (Citations and punctuation omitted.) Id.

The particular relationship of banks to their checking account depositors confirms this conclusion in this case. “A deposit of money in a bank on general deposit creates the relation of debtor and creditor between the bank and the depositor.” (Citation and punctuation omitted.) Green Property Corp. v. O’Callaghan, Saunders &c., 177 Ga. App. 686, 687 (2) (340 SE2d 652) (1986). “The bank owes money to its depositor and becomes a debtor of the depositor. As a result, it is obligated to pay checks when drawn by its customer.” (Citations omitted.) West v. Fed. Deposit Ins. Corp., 149 Ga. App. 342, 345 (2) (a) (254 SE2d 392) (1979). Thus, the particular money credited to a depositor’s general bank account (which is then commingled with other bank funds) does not “belong” to the depositor, but simply represents a debt or obligation owed by the bank to the depositor. A breach of contract action or applicable tort action, but not a conversion action, would lie to recover damages caused by the bank’s refusal to pay back the money. See, e.g., Ralston v. Etowah Bank, 207 Ga. App. 775, 777 (2) (429 SE2d 102) (1993). Grant v. Newsome, 201 Ga. App. 710 (1) (411 SE2d 796) (1991), cited by Decatur Auto, is distinguishable, as that case involved the unique relationship of an account held by a prison on behalf of a prisoner.

Decided May 23, 2002

Reconsideration denied June 7, 2002

Gray & Gilliland, Charles A. Ratz, for appellant.

Weener, Mason & Nathan, William P. Mason, Brian J. Harris, Garland, Samuel & Loeb, Edward T. Garland, Spix & Krupp, Mark V. Spix, for appellee.

The trial court erred in granting Decatur Auto’s motion for summary judgment.

Judgment reversed.

Blackburn, C. J., and Johnson, R J., concur.