author: McMURRAY, Presiding Judge.

text:
    A97A0423.
    HUGGINS et al. v. CHAPIN.
    (489 SE2d 109)
   McMURRAY, Presiding Judge.

On March 19 and April. 12, 1993, J. Thomas Chapin gave Ronald G. Huggins two checks totaling $50,000 in exchange for a ten percent interest in Huggins’ closely held corporation, I. H. International, Inc. (“IHi”) ^ week later (April 19, 1993), Huggins hired Chapin, gave him a salary and named him vice president of IHI. After discovering documents in June 1993, revealing that IHI was worth less than Huggins had disclosed, Chapin sought to rescind his ten percent interest in IHI and redeem his $50,000. Huggins refused to cancel the purchase, but executed a document on September 9, 1993, which provides as follows: “This letter documents the transactions that took place March 19, 1993 and April 12, 1993 regarding the purchase of partial ownership of I. H. International, Inc. The transactions were for $30,000 and $20,000 respectively. Based on extensive discussions and negotiations [between Chapin and Huggins, the parties] agreed that the $50,000 investment represented a 10% ownership position in the company.”

Chapin brought an action against Huggins and IHI, alleging that Huggins duped him into investing in IHI by giving false information about the corporation’s worth and that Huggins violated Georgia’s Securities Act of 1973 by failing to register the securities transaction. The trial court granted partial summary judgment with regard to Huggins’ securities law violation, awarding Chapin “the sum of $50,000.00, the amount invested, plus interest from the date of investment to the date of judgment, and all costs and expenses of litigation, including reasonable attorneys’ fees pursuant to OCGA § 10-5-14 (a).” This appeal followed. Held:

1. Huggins contends the trial court erred in granting Chapin’s motion for partial summary judgment, arguing that Chapin’s ten percent investment in IHI was neither a “stock” transaction nor an “investment contract” within the meaning of OCGA § 10-5-2 (26). This subsection defines “stock” transactions and “investment contracts” as securities that are subject to Georgia’s Securities Act of 1973.

We must first choose the appropriate test for determining whether the transaction between Chapin and IHI is a regulated securities transaction. “In Tech Resources v. Estate of Hubbard, 246 Ga. 583 (272 SE2d 314) (1980), [the Supreme] Court [of Georgia] applied the federal ‘economic reality’ test that had been outlined in SEC v.W.J. Howey Co., 328 U. S. 293 (66 SC 1100, 90 LE 1244) (1946). The economic reality test is that ‘(i)n order for a transaction to constitute a securities transaction under the law, there must be an investment, a reasonable expectation of profits, and a reliance on the management of another party to bring about the profits.’ Tech Resources, supra, 246 Ga. 585. The United States Supreme Court, however, subsequently explained that the economic reality test was not the threshold test for deciding whether stock is a security. Landreth Timber Co. v. Landreth, 471 U. S. 681 (105 SC 2297, 85 LE2d 692) (1985). In Landreth Timber the Supreme Court applied a ‘stock characterization’ test as the initial inquiry to determine whether the stock in question there should be treated as ‘securities.’ ” Cohen v. William Goldberg & Co., 262 Ga. 606, 607 (1) (423 SE2d 231). This analysis requires scrutiny of documents evidencing an investment transaction to determine if the documents alone convey traits typically associated with stock so as to justify the purchaser’s belief that the transaction involved a regulated stock transfer. Id. at 607-608. Such an analysis, however, is not workable in the case sub judice because Chapin’s $50,000 investment in IHI was complete on April 12, 1993, long before the parties executed the September 9, 1993 letter outlining the terms of Chapin’s investment in IHI. We therefore determine whether Chapin’s $50,000 contribution to IHI was an “investment contract” under the “economic reality” test outlined in SEC v. W.J. Howey Co., 328 U. S. 293, supra.

“ ‘ “(T)he touchstone (of a security) is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.” (Cit.)’ Tech Resources, supra at 584. ‘(T)here must be an investment, a reasonable expectation of profits, and a reliance on the management of another party to bring about the profits.’ Id. at 585.” Cohen v. William Goldberg & Co., 202 Ga. App. 172, 179 (5) (413 SE2d 759), rev’d on other grounds, 262 Ga. 606, supra.

In the case sub judice, Huggins testified during his deposition that Chapin’s investment entitled him to distribution of company profits “relative to his ownership.” This admission conclusively satisfies the first two elements of the “economic reality” test. That is, Chapin’s $50,000 payment to IHI was an investment by which he may reasonably have expected to profit. With regard to the third element of the “economic reality” test, Huggins argues that Chapin’s employment as IHI’s vice president placed his $50,000 payment outside the realm of a regulated securities transaction.

The policy behind the third element of the Howey test “is to protect the investor with the shield of the securities laws when the promoter or syndicator puts forth ‘the essential managerial efforts which affect the failure or success of the enterprise. . . .’ SEC v. Glenn W. Turner Enterprises, [474 F2d 476, 483 (1973)].” D. K. Properties v. Osborne, 143 Ga. App. 832, 833 (1), 834 (240 SE2d 293). See Carney, Securities Practice — The Law in Georgia, § 2-1 through 2-4. With this perspective in mind in the case sub judice, we first look to Chapin’s deposition testimony that he came to work for IHI with the expectation of “developing new business!, creating] marketing brochures, taking the client lists that [Huggins] had previously in his files with names and contacts, [calling these contacts] up[, setting] up the office so that it was a functional operation of establishing new business, bidding jobs, looking at the profitability of jobs, and then accounting for the profitability at the end of the job.” Chapin gave no indication that he had any expectation or that he was ever given any authority to manage or control IHI’s corporate destiny.

Huggins affirmed the view that Chapin was nothing more than an employee, explaining during his deposition that he hired Chapin as a salaried employee and that he “was a little apprehensive about bringing [Chapin] on from a standpoint of how long it was going to take [him] to come up to speed to be able to bring revenue into the company.” Further, while it is undisputed that Huggins gave Chapin title as IHI’s “Vice President,” Huggins admits that he did not give Chapin any executive or operational powers. Specifically, Huggins testified (during his deposition) that he “held all offices in the corporation [during Chapin’s employment].” Huggins explained that, while negotiating Chapin’s employment and $50,000 investment, he informed Chapin, “I’m in charge of the company, and for that amount of money I’m not going to share past financial statements, which I didn’t, nor was I going to share any future financial statements, which I haven’t.” Huggins also explained that, “When I say we, I mean I.H. International which was basically me.” These admissions reveal that Huggins — at all relevant times — was not only IHI’s only intended skipper but also the only person charged with essential managerial control affecting IHI’s failure or success. Because of Huggins’ admissions, we cannot say that Chapin’s $50,000 investment in Huggins’ closely held corporation was anything but an “investment contract” subject to Georgia’s Securities Act of 1973. Accordingly, the trial court did not err in granting Chapin’s motion for partial summary judgment.

Decided July 15, 1997

Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, for appellants.

Wilson, Strickland & Benson, Mary M. Brockington, Daniel I. MacIntyre IV, for appellee.

2. The trial court did not err in concluding that the circumstances in the case sub judice do not support IHI’s and Huggins’ reliance “on the doctrine of pari delicto to avoid liability for their failure to register the security.” See Nash v. Jones, 224 Ga. 372 (162 SE2d 392).

3. We do not address Huggins’ contention that the trial court erred in failing to set-off Chapin’s damage award by the amount IHI paid Chapin in salary because this issue was not enumerated as error. West v. Nodvin, 196 Ga. App. 825, 830 (4) (b) (397 SE2d 567).

Judgment affirmed.

Beasley and Smith, JJ., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A0451.
    DIFFLEY v. MARSHALL’S AT EAST LAKE et al.
    (489 SE2d 123)
   Ruffin, Judge.

Marshall’s at East Lake Partnership (“Marshall’s”) is the owner of a shopping center which was managed by New Market Companies, Inc. as the general partner of New Market Management Company, L.P. (collectively “New Market”). Kitty Diffley worked at Great Clips Hair Salon (“Great Clips”), a business located in Marshall’s shopping center. Nail Art, a manicurist business, was located adjacent to Great Clips in the shopping center. Diffley sued Marshall’s, New Market, and Nail Art for injuries she allegedly suffered from her exposure to toxic odors emitted by chemical solutions used by Nail Art. The trial court granted summary judgment to Marshall’s and New Market, and Diffley appeals. For reasons which follow, we affirm.

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

In this case, Diffley alleged that her exposure to the toxic odors which escaped from Nail Art injured her eyes. According to Diffley, the toxic odors constituted a nuisance, and New Market breached its duty of maintaining the premises in a sanitary and safe condition by allowing Nail Art to maintain this nuisance. Diffley further alleged that New Market was Marshall’s agent and that New Market’s knowledge of the problem was therefore imputed to Marshall’s.

Both New Market and Marshall’s moved for summary judgment on the ground that OCGA § 44-7-14, which addresses landlord tort liability, relieved them of liability to Diffley for a nuisance created and maintained by Nail Art. OCGA § 44-7-14 provides that after a landlord has “fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” “The Code section makes it clear that a landlord who relinquishes possession of the premises cannot be liable to third parties for damages arising from the negligence of the tenant. [Cits.]” Colquitt v. Rowland, 265 Ga. 905, 906 (1) (463 SE2d 491) (1995). This limitation of liability to third parties applies equally to co-tenants and includes uses of leased premises that create a nuisance. Adair v. Allen, 18 Ga. App. 636 (3) (89 SE 1099) (1916). “ 'Whatever may be the character of the nuisance, the action must ... be brought against the person who creates or the one who maintains the same.’ ” Id. at 637.

In this case, it is undisputed that the fumes which allegedly caused Diffley’s injuries originated in Nail Art’s leased premises. Diffley admits in her appellate brief that “[a]s part of its business, Nail Art treated finger and toe nails with chemical solutions. Nail Art used chemical solutions which emitted strong odors. The odors emitted by these chemicals have toxic characteristics. Toxic fumes escaped from Nail Art’s premises. The toxic fumes caused irritation to customers and employees of stores located in the vicinity. . . . Due to the close proximity of [Diffley’s] place of business to that of Nail Art, she was exposed to the toxic fumes which escaped.”

In light of evidence that Nail Art leased the premises and was in full possession during the time that the nuisance was created, we find that despite defendants’ alleged knowledge of the fumes, they have met their burden of showing that OCGA § 44-7-14 relieved them of liability to Diffley for the nuisance created and maintained by Nail Art. See Adair, supra; Colquitt, supra; see also Gardner v. Rhodes, 114 Ga. 929, 932 (41 SE 63) (1902).

We further find that Diffley has failed to point to any evidence creating a triable issue concerning these defendants’ liability under OCGA § 44-7-14. Although Diffley indicates in her appellate brief that “the landlord” had taken some action to modify a ventilation system, she cites no evidence in the record supporting this assertion or showing how this creates a triable issue. Furthermore, contrary to Diffley’s contention, the defendants in this case did not have a duty to affirmatively disprove Diffley’s case, but only to show by the record that there was an absence of evidence to support her case. Lau’s Corp., supra. Once the defendants met this burden, Diffley could not, as she often does in her appellate brief, rely on the allegations in her complaint, but was required to “point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Id. at 491. Although Diffley’s admissions in her appellate brief concerning the origin of the nuisance can be used against her, she cannot rely on unsubstantiated statements in her brief to establish that the defendants had a duty to abate the nuisance in this case. See Bates v. Guaranty Nat. Ins. Co., 223 Ga. App. 11, 14-15 (2) (476 SE2d 797) (1996). The record in this appeal is approximately 1,500 pages long, and under the rules of this Court, Diffley was required to support her assertions “by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” Court of Appeals Rule 27 (c) (3) (i). See also Bates, supra at 15 (“ ‘It is well-settled that an appellate court will not cull the record in search of error on behalf of one of the parties. (Cits.)’ [Cit.]”).

Because the evidence shows that Diffley’s alleged injuries were caused by Nail Art’s use of the leased premises, and Diffley failed to respond with specific facts giving rise to a triable issue concerning Marshall’s and New Market’s liability under OCGA § 44-7-14, we find no error in the trial court’s grant of summary judgment. See id.; Colquitt, supra.

Decided July 15, 1997.

Cauthorn & Phillips, Thomas E. Cauthorn III, for appellant.

Freisem, Macon, Swann & Malone, Barclay T. Macon, Jr., Long, Weinberg, Ansley & Wheeler, Alan L. Newman, Michele L. Davis, Kari A. Mercer, Arnold E. Gardner, for appellees.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.


author: Smith, Judge.

text:
    A97A0476.
    SCOTT v. SCOTT.
    (489 SE2d 117)
   Smith, Judge.

Scot Scott, the father of a twelve-year-old girl and a ten-year-old boy, instituted a custody modification action against the children’s mother, Melanie Scott. We granted his application for discretionary appeal of the final order of the superior court. Because we conclude that the trial court did not abuse its discretion in awarding joint custody to both natural parents and in placing primary physical custody in Ms. Scott, we affirm.

The parties were married in 1981. Their daughter and son were born in 1983 and 1985 respectively. Divorce was granted in North Carolina in 1987. By consent order, Ms. Scott was awarded custody of the children, and Mr. Scott was granted “reasonable” visitation. Mr. Scott subsequently relocated to Wisconsin and remarried. He and his current wife have an infant son. Ms. Scott relocated to Oregon and then to Georgia. She did not remarry.

In July 1995, Mr. Scott petitioned for custody of both children. Although he maintains that changed circumstances have negatively impacted both children, he asserts that the son is the child who has become seriously at risk.

The court found that subsequent to the divorce, several changes materially affected the welfare of the children, particularly the son. However, the court additionally found that these changes were not significant enough to warrant a change of custody as to either child and that remaining with Ms. Scott would be in both children’s best interest if she complies with a court-ordered treatment plan for the son. The court’s order states that if she does not, custody of the son “shall immediately change to that of the [father] upon petition to this court.” The order further provides that the parties shall have joint legal custody of the children with Ms. Scott retaining primary physical custody; that Ms. Scott shall confer with Mr. Scott on all issues regarding the children’s health, education, and religious training; but that Ms. Scott shall make the final decision regarding these issues whenever the parties are unable to agree. The order also establishes a new visitation schedule, which details weekend and holiday visitation.

1. Mr. Scott contests the court’s finding that the changes in the children’s lives are not significant enough to warrant a change of custody. We have reviewed the evidence presented at the custody modification hearing that the minor son suffers from behavioral problems. It is not disputed that the son requires discipline in school several times each week because of his unruly and even aggressive classroom behavior. It is also true that on two occasions, he was referred to juvenile court because of his physically aggressive behavior at school. Now in the fifth grade, he was also a discipline problem when he was in this school in the third grade, although there has been some improvement in his behavior since then.

We also note that in the summer of 1994, the children spent two months with Mr. Scott and his wife in Wisconsin. The next summer, the son returned for another two-month visit. Both Mr. Scott and his wife testified that as a result of discipline and structure during these summer visits, he was well behaved notwithstanding the fact that he was not on any medication. They also testified that while the two children were in their home, they functioned well together. Ms. Scott testified that she started noting positive changes in the son after he returned from Wisconsin and that Ms. Scott and the son were benefiting from the counseling sessions being conducted at the time of the hearing below.

Mr. Scott’s testimony shows that prior to the summer of 1994, he visited with his daughter twice and with his son once. Although Mr. Scott testified that he could not afford visitation before 1994, he admitted that in 1992 he purchased a new boat for $5,000. Ms. Scott testified that Mr. Scott instituted this proceeding after she obtained an upward modification of child support and that he threatened to “get back at her” by “taking her kids away.”

A CASA worker investigated and filed a report with the court. She found that in the boy’s current family setting, he is not being provided with the structure and consistency in parenting he needs. She recommended that custody be awarded to Mr. Scott with court-ordered counseling and that the daughter’s custody remain with Ms. Scott but also with court-ordered counseling. Alternatively, the CASA worker recommended that custody of both children be awarded to Mr. Scott.

A court may award a change of custody of a minor child “only upon a showing of a change in material conditions or circumstances of the parties or the child, subsequent to the original decree of divorce and award of custody, and that the change of custody would be in the best interests of the child. [Cits.]” Blackburn v. Blackburn, 168 Ga. App. 66, 70 (1) (308 SE2d 193) (1983). See also In the Interest of S. D. J., 215 Ga. App. 779 (452 SE2d 155) (1994).

Despite the evidence presented concerning the son’s discipline problems and the problems experienced by Ms. Scott in providing a structured environment, and despite the CASA worker’s testimony, we cannot say the trial court abused its discretion in making its award. Had we been the factfinder below, we might well have weighed the evidence differently. But this is not our duty as an appellate court. Instead, we must apply the well-settled standard concerning change in custody: “In determining whether a material change of condition has occurred, the trial court is vested with a discretion which will not be controlled by this court absent abuse. This court will affirm the trial court’s decision if there is any reasonable evidence to support it.” (Citation and punctuation omitted.) Hayes v. Hayes, 199 Ga. App. 132, 133 (404 SE2d 276) (1991). “Where the trial judge exercises a sound legal discretion looking to the best interests of the child, this court will not interfere with [the trial court’s] judgment unless it is shown that [its] discretion was abused. [Cits.]” Sullivan v. Sullivan, 241 Ga. 7, 8 (243 SE2d 35) (1978). “[I]f there is reasonable evidence in the record to support the decision . . ., [it] must prevail as a final judgment, and it will be affirmed on appeal. [Cits.]” Crumbley v. Stewart, 238 Ga. 169, 170 (231 SE2d 772) (1977).

Because the trial court is vested with broad discretion in making decisions concerning custody, and we must affirm the court’s decision if supported by reasonable evidence, we are constrained to affirm the juvenile court’s judgment. It is true that the child experienced behavioral problems in school and at home from a young age. The juvenile court noted this and other problems, including Ms. Scott’s relationship with a man in jail, but nevertheless allowed her to retain custody. The court clearly took these factors into consideration in making its decision. Evidence was also presented, however, that the son, though still experiencing behavioral difficulties at the time of the hearing, had shown some improvement in school over the preceding two years and that his behavior at home had also improved. Testimony also was given that at the time of the hearing, Ms. Scott and the son had benefited from counseling on a regular basis. Moreover, from the time of the divorce in 1987 until the summer of 1994, Mr. Scott saw his son only once, and then for only a five hour period. It is also noteworthy that Mr. Scott initiated custody modification proceedings approximately one month after Ms. Scott was successful in acquiring a court-ordered increase in child support payments.

Although Ms. Scott has not been perfect with regard to the care and attention given her son, the juvenile court’s decision to allow Ms. Scott to retain custody is supported by reasonable evidence and must be affirmed.

We note Mr. Scott’s argument that the juvenile court committed reversible error by making contradictory findings of fact and conclusions of law. In its findings of fact, the court recited: “The court finds that since the parties’ divorce there have been several changes of circumstance which materially [affect] the interest and welfare of the children especially that of [the son’s] special needs, however the court finds at this time such do not warrant a change of either child at this time.” In its conclusions of law the court then stated that “there has not been a significant change in circumstances” in the lives of the children. We do not agree with Mr. Scott that these statements are so contradictory as to constitute reversible error. In its findings of fact, although the court found that material changes had occurred, it also found that these changes were not sufficient to warrant a change in custody. While perhaps inartfully worded, this finding is not inconsistent with the court’s legal conclusion that the changes were not significant. We find no error.

In addition, we do not agree with Mr. Scott’s contention that “[a] trial court commits reversible error by failing to conclude that a significant change of circumstances affecting the child has occurred where the uncontradicted evidence shows the noncustodian provides a home where an unruly child changes into a sociable child.” Crumbley v. Stewart, supra, relied upon by Mr. Scott for this argument, neither states nor represents this proposition. In Crumbley, the minor child’s behavior did change for the better after he moved into his father’s home. Custody had previously been awarded to the child’s mother. Id. at 169. The trial court, however, declined to change custody to the father. Id. Concluding that the trial court used an improper standard, the Supreme Court remanded the case, directing the trial court to “exercise a legal discretion in ruling whether or not there are changed conditions affecting the welfare of the child.” Id. at 170. The Supreme Court clearly did not hold that the child’s behavior change mandated a change of custody; that decision was expressly left for the trier of fact.

2. Mr. Scott challenges the court’s grant of final decision-making authority to Ms. Scott on issues regarding the health, education, and religious training of the children; he argues that the court awarded joint custody without complying with OCGA § 19-9-6 (2) and in violation of public policy.

“ ‘Joint legal custody’ means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, and religious training; provided, however, that the court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.” OCGA § 19-9-6 (2). Joint legal custody allows both parents’ involvement in making major decisions concerning the child. In the Interest of A. R. B., 209 Ga. App. 324, 327 (2) (433 SE2d 411) (1993) (physical precedent only). In this case, the court designated Ms. Scott as the primary physical custodian and as having the sole power to make decisions concerning the children’s education, health, and religious training if the parents are unable to agree. Under the court order, Mr. Scott retains equal decision-making responsibility in other areas and an opportunity to share decision-making with respect to the three named areas. This does not contravene the statute or public policy.

3. Mr. Scott next complains of the visitation schedule as unduly burdensome. The juvenile court’s carefully crafted order defining visitation belies this contention. The order recites that Mr. Scott may visit with the children at any time if both parents can agree to such visitation and also provides for minimum reasonable visitation times if the parents cannot reach mutual agreement. The order then extensively details weekend, summer, spring and Christmas vacation, and other holiday visitation. It further provides for telephone visitation. Although summer visitation is limited to thirty days despite the fact that the son exhibited improved behavior during his two month stay with Mr. Scott, the schedule nevertheless provides for reasonable, even liberal, visitation. We therefore cannot say that the juvenile court abused its discretion.

4. Mr. Scott also contends the juvenile court erroneously failed “to give serious consideration” to the possibility of joint physical custody under OCGA § 19-9-6. We do not agree. “[Wjhere . . . the trial court finds both parents fit and proper, the trial court must give due consideration to the feasibility of a joint custody arrangement.” (Footnote omitted.) Baldwin v. Baldwin, 265 Ga. 465 (458 SE2d 126) (1995). Although the juvenile court did not make a finding that both parents were equally fit, the record is clear that the trial court gave serious consideration to joint custody options available under OCGA § 19-9-6 and chose one of those options: the court awarded joint legal custody of the children and carefully set forth the parameters of that custody. Indeed, the court’s order tracked the language of OCGA § 19-9-6 (2) by requiring the parents to confer “on all issues regarding the health, education and religious training of the children.” The fact that the court did not award joint physical custody is no indication that it failed to consider seriously all options available under OCGA § 19-9-6, and we cannot say that the court abused its discretion.

Decided July 15, 1997.

Susan P. Tate, Monzer J. Mansour, for appellant.

William R. Ashe, for appellee.

5. Finally, Mr. Scott challenges that part of the order which provides that if Ms. Scott does not comply with the treatment plan for the son, custody shall immediately change to Mr. Scott upon petition to the court. Citing Weaver v. Jones, 260 Ga. 493 (396 SE2d 890) (1990), he argues that requiring a petition to effectuate a self-executing change of custody is contrary to law and public policy. In Weaver, the parties’ divorce decree contained a self-executing change of custody and child support provision requiring the mother to be responsible for child support if the parties’ minor child, upon reaching the age of 14, elected to live with his father. The Supreme Court, approving the use of this self-executing provision, stated: “[S]ince the child’s selection is controlling absent a finding of unfitness ... a self-executing change serves the interest of judicial economy by effecting the change of custody and the establishment of child support obligations without the necessity of court proceedings in a case, such as this one, where there are no allegations of parental unfitness.” Id. at 494 (3).

Weaver does not require that custody change without resort to court proceedings. Judicial economy was served in that case because the 14-year-old child’s decision to live with his father controlled the issue of custody; court intervention simply was not necessary. This case is distinguished from Weaver; some court intervention would be necessary in order to determine whether Ms. Scott complied with the juvenile court’s mandate. Moreover, the juvenile court’s order sets out a narrow, easily discernible circumstance under which custody of the minor son will change: Ms. Scott’s failure to seek testing and treatment for the son. If a petition is filed, the only issue to be decided would be whether Ms. Scott complied with the clear mandate of the order. Although a petition is required, court intervention is necessary under the order in only a limited circumstance, and the policy favoring judicial economy is served. We find no error.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., McMurray, P. J, Ruffin and Eldridge, JJ., concur. Beasley, J., concurs in the judgment only.

       The mother testified at the hearing that she had no contact with this individual for the preceding three months.


author: McMurray, Presiding Judge.

text:
    A97A0516.
    BRANNEN/GODDARD COMPANY v. COLLIN EQUITIES, INC. et al.
    (489 SE2d 106)
   McMurray, Presiding Judge.

Brannen/Goddard Company (“BG”) — a licensed realtor — brought an action against Collin Equities, Inc. (“Collin”) and Montgomery Estates, Inc. (“Montgomery”) to recover monthly lease commissions BG allegedly earned under oral promises Warren Pfeiffer extended on behalf of Collin and Montgomery. BG allegedly relied on these promises in brokering a 1991 lease ámendment which extended a 48-month lease ABB Process Automation, Inc. (“Process Automation”) executed in September 1988 for space at Montgomery’s office park. Defendants denied liability and counterclaimed for commissions paid to BG under Process Automation’s original 48-month lease, alleging these commissions are the office park’s previous owner’s sole obligation. After the parties filed opposing motions for summary judgment, the undisputed evidence revealed the following:

In September 1988, BG’s broker, Mitchell Brannen, procured a 48-month lease providing Process Automation with space at Atlanta Business Services’ (“ABS”) office park, Northwood Commons. ABS paid BG $17,000 when Process Automation occupied the space and agreed to pay BG five percent of Process Automation’s monthly rent through the term of the lease, which expired on December 31, 1992. ABS also agreed to pay BG the same monthly commission if, in the future, BG successfully negotiated an extension, expansion or renewal of the Process Automation lease. ABS paid BG according to this agreement until April 1991.

After discovering Collin’s advertisement to foreclose ABS’s interest in Northwood Commons in March 1991, BG entered into an interim agreement with Collin to. manage the office park. This interim agreement went into effect on April 2, 1991, when Collin acquired Northwood Commons at a foreclosure sale conducted via powers conferred in a Deed to Secure Debt. Collin transferred the property to Montgomery immediately after the foreclosure sale and, a day later (April 3, 1991), Montgomery and BG entered into an exclusive agency agreement providing BG with rights to procure new tenants at Northwood Commons. This agreement includes a “merger” or “entire agreement” clause and provides as follows: “Notwithstanding the appointment of [BG as leasing agent], Owner reserves for itself, exclusively, the right to . . . negotiate the renewal of or the exercise of options to renew Tenant Leases existing from time to time, whether or not [BG] was originally involved in the negotiations of such Tenant Lease. ... If Owner desires, on a case-by-case basis, to have [BG’s] assistance in connection with any of the above referred to negotiations, then Agent and Owner shall agree in writing upon the commission or compensation to which [BG] shall be entitled with respect to such activity prior to the rendering of any such assistance. . . .”

After the foreclosure sale, defendants’ agent, Warren Pfeiffer, agreed to honor ABS’s promise to pay BG monthly commissions for the Process Automation lease and, in April or May 1991, Pfeiffer, “on behalf of Montgomery Estates, requested that [BG] assist Montgomery Estates in negotiations with Process Automation for an extension or renewal of the Lease, including an expansion of the leased premises. . . . On behalf of Montgomery Estates, [Pfeiffer] agreed that [BG’s] compensation for the Process Automation lease [extension] would be the same as originally agreed to by [ABS, i.e., five percent of Process Automation’s monthly rent through the term of the lease extension].” Pfeiffer informed BG’s agent, Mitchell Brannen, that a contract evidencing this agreement was unnecessary because “we’ll just use the one we already have[; i.e., the commission agreement ABS executed in 1988 promising to pay BG five percent of Process Automation’s monthly rentals through the term of Process Automation’s original lease].”

In reliance on Pfeiffer’s oral promises, BG negotiated with Process Automation and, on “August 5, 1991, Process Automation signed an agreement dated June 17, 1991 entitled Amendment to Lease’ (the Amended Lease’). The Amended Lease was [to begin] on January 1, 1993, after the termination of the Original Lease, and was to continue for a period of 36 months.”

On August 21, 1991, Pfeiffer executed a document on behalf of Montgomery entitled, “COMMISSION AGREEMENT,” whereby Montgomery agreed to pay BG “a commission equal to two percent (2%) of the aggregate rentals [under the Process Automation lease amendment].” Although this lump-sum commission agreement does not specify whether it replaces or partially satisfies Montgomery’s five percent commission agreement to BG (extended by Pfeiffer), Mitchell Brannen deems the agreement proof of Montgomery’s separate obligation to pay a commission to the individual BG leasing agents who represented the landlord’s and the tenant’s respective interest.

On April 10, 1992, Montgomery stopped paying BG five percent of Process Automation’s monthly rentals and sold Northwood Commons to a new owner. Because the new owner did not agree to pay BG monthly commissions for the Process Automation lease transactions, BG was not paid commissions for the remaining term of the Process Automation lease and lease amendment.

This appeal followed the trial court’s order denying BG’s motion for summary judgment and granting defendants’ motion for summary judgment. Held:

BG contends undisputed evidence of Warren Pfeiffer’s oral promises, and its agents’ performance and reliance thereunder, demands summary judgment for the liquidated amount of the unpaid commission that accrued during the remaining terms of Process Automation’s lease and lease amendment. See OCGA § 13-3-44 (a). Defendants counter by asserting that the “merger” or “entire agreement” clause in Montgomery’s and BG’s exclusive agency contract, as well as the parol evidence rule, bars proof and enforcement of Warren Pfeiffer’s oral promises. Defendants also argue that Pfeiffer did not have authority to extend any promise outside Montgomery’s and BG’s exclusive agency agreement and that any such oral agreements are unenforceable for lack of consideration.

Defendants’ lack of consideration argument is without merit because the exclusive agency agreement between Montgomery and BG did not require BG to negotiate the Process Automation lease amendment and, according to the undisputed evidence, BG performed these services only because Pfeiffer promised to pay BG a five percent commission for the remaining term of Process Automation’s lease and lease amendment. See Diamondhead Corp. v. Robinson, 144 Ga. App. 60 (1) (240 SE2d 572). The same circumstances reveal the frailty of defendants’ “merger” clause and “parol” evidence assertions. That is, since Pfeiffer’s verbal promises did not adversely or materially alter Montgomery’s and BG’s rights and obligations under the exclusive agency agreement, Pfeiffer’s promises (to pay BG for procuring the original Process Automation lease and negotiating the lease amendment) constitute part of a collateral, independent and distinct contract which may be proved by parol evidence. And “[tjhough [defendants assert that Pfeiffer’s oral promises constitute] a collateral contemporaneous agreement between the parties, its independence and its lack of inconsistency with the written contract cause it not to become merged with the written contract. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 211 (37 SE 485); Brinson v. Franklin, 177 Ga. 727 (1) (171 SE 287); Indiana Truck Corp. v. Glock, 46 Ga. App. 519 (1) (168 SE 124); Neuhoff v. Swift & Co., 54 Ga. App. 651 (2-a, b) (188 SE 831). See also Cottle v. Tomlinson, 192 Ga. 704, 712 (16 SE2d 555); 20 Am. Jur. 992, § 1140; 32 CJS 970, § 997.” Langenback v. Mays, 205 Ga. 706, 711 (1, 2) (54 SE2d 401). The parties’ remaining assertions are resolved by the undisputed fact that defendants ratified Warren Pfeiffer’s oral promises by accepting benefits thereunder and by paying BG the amount Pfeiffer promised (while it benefited defendants) for negotiating the Process Automation lease amendment. “Ratification may occur by the principal’s partial payment on an allegedly unauthorized agreement. Pioneer Concrete Pumping Svc. v. T & B Scottdale Contractors, 218 Ga. App. 596, 597-598 (462 SE2d 627) (1995); Holliday Constr. Co. v. Sandy Springs Assoc., 198 Ga. App. 20, 21 (400 SE2d 380) (1990). When an agent acts in excess of his authority, ‘the principal may not ratify in part and repudiate in part; he shall adopt either the whole or none.’ OCGA § 10-6-51.” Thomas Register of American Manufacturers v. Pronto Systems Electronic Packaging, 221 Ga. App. 779, 780 (471 SE2d 235).

Decided July 15, 1997.

Since defendants failed to establish a legally sufficient defense to Pfeiffer’s commission agreement promises, the trial court erred in granting defendants’ motion for summary judgment and denying BG’s motion for summary judgment as to liability. The trial court, however, did not err in denying BG’s motion for summary judgment as to damages because there is no conclusive proof regarding the amount of BG’s damages.

Montgomery’s August 21, 1991, agreement to pay BG a two percent lump-sum commission for procuring the Process Automation lease amendment does not specify whether it is separate from, or whether it replaces or partially satisfies, the five percent commission agreement between BG and Montgomery. And while Mitchell Brannen testified during his deposition that he believes this contract proves nothing more than Montgomery’s unrelated obligation to pay the individual leasing agents involved in the Process Automation lease amendment negotiations, Brannen does not articulate the basis of his understanding or the details of this purportedly separate commission agreement. These circumstances raise genuine issues of material fact as to BG’s alleged damages. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).

Judgment affirmed in part and reversed in part.

Beasley and Smith, JJ, concur.

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, for appellant.

Alston & Bird, Lori P. Hughes, for appellees.

       Collin and BG entered into a more comprehensive property management agreement sometime after September 5, 1991.

       Although defendants do not cite evidence disputing Mitchell Brannen’s understanding, Brannen does not articulate the details of this separate commission agreement during his deposition.

       Although defendants asserted a Statute of Frauds defense in the trial court, this assertion is not urged on appeal.


author: Ruffin, Judge. BIRDSONG, Presiding Judge,

text:
    A97A0598.
    CARLOCK et al. v. KMART CORPORATION et al.
    (489 SE2d 99)
   Ruffin, Judge.

Shortly before 10:00 p.m. on April 8, 1994, Evelyn Carlock was shot and killed during an attempted robbery in a shopping center parking lot. Evelyn Carlock’s surviving spouse and executor of her estate, Frank Carlock, sued two businesses located in the shopping center, Kmart Corporation, doing business as American Fare (“Kmart”), and Super Discount Markets, Inc., doing business as Cub Foods (“Cub Foods”). Carlock alleged that he was entitled to wrongful death and punitive damages due to the defendants’ negligence and conscious indifference to consequences in failing to keep the premises safe. The trial court subsequently granted Cub Foods summary judgment on all claims and Kmart partial summary judgment on Car-lock’s claim for punitive damages. Carlock appeals from those judgments and the trial court’s partial grant of a motion in limine excluding expert testimony on the issue of foreseeability of the criminal act. For reasons which follow, we affirm the trial court’s grant of summary judgment to Cub Foods and the order in limine, but reverse the grant of partial summary judgment to Kmart.

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

1. Carlock’s claim against Cub Foods for its alleged failure to keep the premises safe is governed by OCGA § 51-3-1. Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785 (482 SE2d 339) (1997). Among other facts that must be shown to prevail on this claim, Carlock must prove that the criminal act was reasonably foreseeable to Cub Foods. See id.; Whitmore v. First Fed. &c., 225 Ga. App. 768 (1) (484 SE2d 708) (1997).

In its motion for summary judgment, Cub Foods showed that it leased the store space from Kmart and opened for business at the location approximately two months before the incident. Cub Foods claimed that there was no evidence in the record showing the criminal act was reasonably foreseeable to Cub Foods. Bearing in mind that it was not Cub Foods’ burden to affirmatively disprove Carlock’s case, to survive summary judgment Carlock was required to point to specific evidence creating a triable issue on foreseeability. See Lau’s Corp., supra.

Although foreseeability can be established through the presentation of evidence of prior similar crimes, see Whitmore, supra at 769, and the trial court based its ruling in part on a lack of such evidence, on appeal Carlock points to other evidence which he contends gives rise to a triable issue. Specifically, Carlock cites evidence of a parking lot security patrol hired by Kmart, the landlord, and signs indicating that the property was “protected by Wells Fargo.” He contends this evidence showed Cub Foods that there was a need for security devices and, presumably, that the necessity arose due to criminal activity substantially similar to the crime in this case.

Carlock cites no authority in support of this contention, and we do not find that a jury could reasonably infer from the evidence cited that Cub Foods knew the reason why a security patrol was hired or that substantially similar criminal activity had previously occurred in the parking lot. There are numerous reasons why Kmart might have hired a security patrol. Even if crime prevention was a reason for the security patrol in this case, that fact would not necessarily indicate to Cub Foods that crimes were previously committed in the parking lot. Moreover, it would not be reasonable to infer from this evidence that substantially similar crimes occurred in the parking lot. In short, the cited evidence does not show that the crime in this case was foreseeable to Cub Foods.

Carlock also contends that Cub Foods had a duty to investigate the possibility of criminal conduct in the parking lot. Carlock contends that an investigation would have shown that prior robberies occurred in the parking lot. Although Carlock acknowledges in his brief that these robberies occurred before Cub Foods occupied the leased space, he argues that the incidents were known to Kmart and as a result, Cub Foods had a duty to inquire of Kmart about such incidents.

In Sun Trust Banks v. Killebrew, 266 Ga. 109 (464 SE2d 207) (1995), our Supreme Court found no authority in this state imposing a duty on a property owner to investigate police files to determine whether criminal activities have occurred on its premises. The Court refused to impose such a duty in Killebrew, where testimony by the bank’s security chief did not establish that the bank’s “duty to investigate crimes on its property encompassed seeking out police reports of incidents not reported to the bank.” Id. at 109-110.

We likewise refuse to impose a similar duty on Cub Foods in this case. We are aware of no authority requiring a commercial tenant of a shopping center to investigate police files or the files of its landlord to determine whether criminal activities occurred in the parking lot prior to its occupancy. Furthermore, the testimony of Cub Foods’ corporate loss prevention manager indicates that Cub Foods never had such a policy. Under these circumstances, we find that no genuine issue of foreseeability exists on this ground. See id.

Finally, Carlock contends that the crime was foreseeable because of the generally recognized danger associated with shopping center parking lots. Although we have found that there is a “generally recognized danger associated with ATMs and night depositories,” there is no authority extending this finding to parking lots. Whitmore, supra at 770. Indeed, as Carlock states in his brief, it is sad but true that many public areas are all too frequently the scene of criminal activity. In Whitmore, we gave special consideration to ATMs because of the “well documented reality” that ATM customers, who are known to be either depositing or withdrawing significant amounts of money outdoors in full public view, are frequently the subjects of robberies. See id.; Killebrew, supra at 110 (Sears, Justice, concurring specially). These special circumstances are absent in the instant case.

For the foregoing reasons, we find that Carlock failed to present any evidence creating a triable issue of whether the tragic shooting in this case was foreseeable to Cub Foods. Accordingly, the trial court did not err in granting Cub Foods summary judgment. In light of this ruling, it is unnecessary to address Carlock’s two other enumerations asserting error in the trial court’s grant of summary judgment to Cub Foods.

2. We do find, however, that the trial court erred in granting Kmart partial summary judgment on Carlock’s claim for punitive damages.

Pursuant to OCGA § 51-12-5.1 (b), “[pjunitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” “The latter expression relates to an intentional disregard of the rights of another [and] knowingly or wilfully disregarding such rights. Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. Negligence, even gross negligence, is inadequate to support a punitive damage award.” (Citations and punctuation omitted.) Ga. Farm &c. Ins. Co. v. Miller, 222 Ga. App. 95, 96-97 (1) (b) (473 SE2d 189) (1996).

In support of its motion, Kmart points to evidence showing that the parking lot was well lit and that during September 1992, due to employee complaints about property crimes in the parking lot, it retained Wells Fargo Guard Services to patrol the area. The record shows that on the night of the shooting, a Wells Fargo security guard was on duty and patrolled the entire parking lot until 9:00 p.m., when Kmart closed. Pursuant to his duties, however, the security guard then parked his cart in front of Kmart and “stayed in that portion of the parking lot to watch and assist [Kmart] employees as they walked to their cars.” The security guard was permitted to leave once all the Kmart employees had left the building, which was usually before 10:00 p.m. On the night of the incident, the security guard was walking to his car when he learned of the shooting.

Carlock contends that, in light of previous parking lot criminal activity known to Kmart, its failure to provide security patrols to Cub Food customers at the time of the shooting raised the presumption of a conscious indifference to consequences. Viewing the evidence in a light most favorable to Carlock, we agree.

The record shows that when Evelyn Carlock finished her shopping at Cub Foods at approximately 9:41 p.m., she returned to her car which was parked in front of Cub Foods, and the attempted robbery and shooting occurred shortly thereafter. Other evidence shows, and Kmart does not dispute, that at the time of the incident it was responsible for maintaining the parking lot in a safe condition. Furthermore, although Cub Foods remained open until midnight, the security guard was required to stop patrolling the parking lot at 9:00 p.m. and focus his attention solely on Kmart employees leaving work.

The record further shows that another, arguably substantially similar armed robbery occurred in the same parking lot on August 24, 1992. Like the robbery in this case, the victim of the prior incident was a woman and the incident occurred at approximately 9:45 p.m. when the victim returned to her car after shopping. After the incident, the victim informed the Kmart store manager and other employees of what happened. On December 4, 1992, another female victim had her purse stolen when she returned to her car after shopping. Although there is no evidence a gun was used, she also informed store employees of the robbery. Finally, the record contains a Kmart “Loss Control Statement Form” showing that on September 9, 1993, a third female was the victim of a “purse-snatching” in the parking lot.

In Walker v. Sturbridge Partners, Ltd., 221 Ga. App. 36, 40 (4) (470 SE2d 738) (1996), aff’d 267 Ga. 785 (482 SE2d 339), which also involved a claim that the defendants failed to keep the premises safe, a majority of this Court held that the defendants were entitled to summary judgment on the plaintiffs claim for punitive damages. In Walker, the record showed that the plaintiff was raped in her apartment after her assailant gained entry through a rear kitchen window. The record contained further evidence that the rape was foreseeable to the defendants, who were the owners and managers of the apartment complex. Id. at 38-39. Although it was undisputed that the window contained a lock, conflicting evidence was presented concerning whether the lock was broken and, if so, whether the defendants knew it was broken. Id. at 40. Without referring to specific facts, we concluded that the record contained insufficient evidence to support an award of punitive damages.

Turning to the evidence in the instant case, we note initially that, considering the previous armed robbery and the other parking lot robberies involving female victims, there is sufficient evidence for a jury to find that the robbery and shooting in this case were foreseeable to Kmart. See id.; Sturbridge Partners, supra. And, though it is true that Kmart showed due regard for the safety of its own customers by providing a security patrol in the parking lot until 9:00 p.m. when Kmart closed, it is uncontroverted that after 9:00 p.m. Kmart provided no security to Cub Foods’ customers. It is the intentional and complete absence of security measures that distinguishes this case from Walker, where the uncontroverted evidence showed the existence of a window lock, albeit allegedly broken. In light of the foreseeability of the robbery and shooting in this case, a jury could find that Kmart’s decision to completely cease providing security services for Cub Foods’ customers at 9:00 p.m., when Cub Foods remained open until midnight and while Kmart continued to provide security to its own employees, showed a conscious indifference to consequences that patrons of Cub Foods might suffer due to the lack of security. In light of such evidence, we find that the trial court erred in granting Kmart summary judgment on Oarlock’s claim for punitive damages.

3. Finally, Carlock asserts that the trial court erréd in granting Cub Foods’ motion in limine. The order prohibited Carlock from introducing at trial expert testimony regarding foreseeability of the instant criminal act. The trial court found that the foreseeability issue was “within the province of the jury. . . .”

(a) We note that, contrary to Carlock’s contention, this issue was not rendered moot by the grant of summary judgment to Cub Foods. “ ‘A controversy is justiciable when it is appropriate for judicial determination. It must be definite and concrete, touching the legal relations of parties having adverse legal interests, rather than being hypothetical, abstract, academic or moot.’ ” Bd. of Trustees &c. v. Kenworthy, 253 Ga. 554, 557 (322 SE2d 720) (1984). A motion is moot “when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.” Black’s Law Dictionary (5th ed. 1979). See also Chastain v. Baker, 255 Ga. 432, 433 (2) (339 SE2d 241) (1986) (“ ‘A moot [issue] is one which seeks to determine an abstract question which does not arise upon existing facts or rights.’ (Emphasis supplied.) Black’s Law Dict. (Revd. 4th ed.)”).

Although the motion in limine at issue was filed by Cub Foods, it affected the interests of both defendants in that it sought to prohibit the introduction of expert testimony concerning the foreseeability of the shooting. While the issue of foreseeability is now academic in the controversy between Carlock and Cub Foods, there still remains a justiciable issue of foreseeability between Carlock and Kmart. Accordingly, because the trial court’s order in limine will have a practical effect on the existing controversy between Carlock and Kmart, the issue presented is not moot, and we now consider its merits.

(b) Upon consideration, we find no error in the trial court’s partial grant of the motion in limine. “ ‘Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. . . . However, it is equally clear that the scope of what is admissible as expert opinion testimony is not unlimited. It is the established rule in Georgia, that where (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony. A party may not bolster his (case) as to the ultimate issue with expert testimony when the jury could reach the same conclusion independently of the opinion of others.’ [Cit.]” Baxter v. Melton, 218 Ga. App. 731, 732 (463 SE2d 53) (1995) (physical precedent only). Furthermore, because the admission of such evidence, including a trial court’s ruling on a motion in limine, is a matter resting within the sound discretion of the trial court, we will not disturb the trial court’s ruling absent evidence of abuse. Boyett v. Webster, 224 Ga. App. 843, 844 (1) (482 SE2d 377) (1997).

Here, the trial court excluded expert testimony only on the issue of whether the criminal act was foreseeable to Kmart, and Carlock argues that the court erred because prior opinions of this Court show that expert testimony has been admitted to address the issue of foreseeability. However, the cited cases are distinguishable in that the use of the expert testimony in those cases was not challenged on appeal. Accordingly, any abuse of discretion that may have occurred in admitting the testimony was not an issue, and those cases are not authority showing the trial court abused its discretion in this case.

We further find that the determination of foreseeability under the facts of this case is not one which requires expert testimony. Rather, under the facts presented, the trial court did not abuse its discretion in finding that the jurors would be capable of determining whether the attempted robbery and shooting were foreseeable to Kmart. See Baxter, supra. As to other issues that might be properly addressed with expert testimony, the trial court expressly reserved ruling until the time of trial.

Judgment affirmed in part and reversed in part.

Pope, P. J., Johnson and Eldridge, JJ, concur. Andrews, C. J, Birdsong, P. J, and Blackburn, J., concur in part and dissent in part.

BIRDSONG, Presiding Judge,

concurring in part and dissenting in part.

Although I concur fully with Divisions 1 and 3 of the majority opinion, I cannot agree that the trial court erred by granting summary judgment to Kmart on Carlock’s claim for punitive damages. Accordingly, I must dissent to Division 2 of the majority opinion.

Under our punitive damages law, punitive damages could only be awarded in this case if Carlock can prove, by clear and convincing evidence, that Kmart’s actions showed wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to the consequences. See OCGA § 51-12-5.1 (b); Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (365 SE2d 827). Further, negligence alone, even gross negligence, will not support a punitive damage award. Assoc. Health Systems v. Jones, 185 Ga. App. 798, 802 (366 SE2d 147). Something more than the commission of a tort is always required. “ ‘ “There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton.” ’ ” Cullen v. Novak, 201 Ga. App. 459, 460 (411 SE2d 331), citing Colonial Pipeline, supra at 121-122. Further, “conscious indifference to consequences relates to an intentional disregard of the rights of another, knowingly, or wilfully disregarding such rights.” (Punctuation omitted.) Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860 (1) (389 SE2d 355). There must be evidence of culpable conduct to support the award of punitive damages. Colonial Pipeline, supra; Troutman v. B. C. B. Co., 209 Ga. App. 166, 168 (433 SE2d 73).

In this appeal Carlock and the majority rely upon Kmart’s knowledge of certain criminal activity in the parking lot (an armed robbery in August 1992, and purse snatchings in February 1991; December 1992; and September 1993) and Kmart’s failure to provide security patrols for Cub Foods’ customers after Kmart’s closing time to create a jury issue on the presumption of a conscious indifference to consequences. Even though I agree that this evidence may be sufficient to create a jury issue on whether Kmart is liable for damages arising from Mrs. Carlock’s death, I cannot agree that this evidence is sufficient to constitute clear and convincing evidence of Kmart’s “entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b).

There is no evidence showing that Kmart had knowledge that its failure to provide security patrols after its store closed made persons in the parking lot subject to attacks by armed robbers yet refused to do anything about it. There also is no evidence that Cub Foods or anyone else ever asked Kmart to provide increased security after Kmart’s closing and that Kmart refused.

More significantly, the evidence shows that the crimes Carlock and the majority rely upon did not occur after the Kmart security patrol ceased to operate for the night. Two of the crimes occurred before Kmart started providing security in September 1992: The affidavit of the first victim states only that her purse was stolen on February 11, 1991, and does not provide a time, and the affidavit of another victim states that about 9:45 p.m., August 24, 1992, she was the victim of an armed robbery. Although the other two crimes occurred after Kmart started providing a security patrol, the evidence shows that these purse snatchings occurred around 8:00 p.m. on December 4, 1992, and around noon on September 9, 1993. As these crimes occurred before the security patrol quit for the night, they are not events from which it can be inferred that a security patrol was needed after Kmart closed.

Consequently, these events are not sufficient to show that the security patrol provided by Kmart was inadequate and that Kmart wantonly and consciously refused to provide additional or increased security. Thus, there is no evidence, much less clear and convincing evidence, sufficient to create a jury issue on whether Kmart was guilty of any conduct which would establish the entire want of care or indifference to consequences that would authorize the imposition of punitive damages. Bradford v. Xerox Corp., 216 Ga. App. 83, 84 (453 SE2d 98); Troutman v. B. C. B. Co., supra at 168. Accordingly, I cannot agree that the trial court erred by granting summary judgment to Kmart on the issue of punitive damages.

I am authorized to state that Chief Judge Andrews and Judge Blackburn join in this opinion.

Decided July 15, 1997

Lawson, Davis & Pickren, G. Thomas Davis, Paul R. Jordan, for appellants.

Drew, Eckl & Farnham, George R. Moody, Francis E. Wiggers, Jr., Mary B. Galardi, for appellees.


author: McMURRAY, Presiding Judge. Beasley, Judge,

text:
    A97A0847.
    McDANIEL v. THE STATE.
    (489 SE2d 112)
   McMURRAY, Presiding Judge.

During an investigative traffic stop, defendant Christopher McDaniel consented to a search of his vehicle and person, where the police officer found marijuana, cocaine, and stolen goods. Defendant’s combined motion to suppress/motion in limine was denied. After a bench trial, defendant was found guilty of two counts of violating the Georgia Controlled Substances Act for possession of cocaine and possession of less than one ounce of marijuana, and further found guilty of entering an automobile with the intent to commit a theft. The question on appeal is whether the officer, who had observed no suspicious conduct, could properly stop the vehicle based on a “be on the lookout” dispatch which, unbeknownst to the officer, had been revoked. We hold the stop was authorized under the circumstances of this case and affirm the convictions.

Only Officer Monteau and Officer Hudson testified at defendant’s suppression hearing. Their evidence would authorize the following findings of fact: Just before midnight on April 16, 1996, Officer Monteau of the Clayton County Police Department was dispatched to the Brookstone Ridge Apartments, where a tenant reported that he had twice seen the occupants of a white Isuzu Rodeo suspiciously looking into the tenant’s parked Jeep Cherokee. The first time, “he saw a white Isuzu Rodeo and a silver Isuzu Rodeo driving through his apartment complex, and both vehicles had stopped by his [the tenant’s] Jeep Cherokee and the occupants had took a look at it. . . .” At 2:34 a.m., Officer Monteau witnessed two such vehicles leaving the adjoining Garden Walk Apartments. The white Isuzu Rodeo had a “Bob Davis drive out tag. . . .” The silver Rodeo’s driver slammed on his brakes, turned his lights off, and put the vehicle in reverse while the white Rodeo sped off in another direction. Suddenly the silver Rodeo sped out of the apartment complex at a high rate of speed, and Officer Monteau followed. The silver Rodeo then turned into the next apartment complex, but because of a security gate, returned immediately to the highway. Based on this suspicious conduct, Officer Monteau radioed his dispatcher to contact the neighboring Riverdale Police Department to be on the lookout for a possible stolen silver Rodeo with a certain tag number. Officer Monteau turned on his blue flashing lights and stopped the silver Rodeo. Joined by another officer from his police force, Officer Monteau questioned and frisked the driver, defendant McDaniel, and the other occupants. Defendant would not consent to a vehicle search. Determining that the Rodeo was not stolen and finding nothing amiss, Officer Monteau allowed them to leave and informed his dispatcher of the results of the stop. The dispatcher’s duty was to pass this information on to the Riverdale police.

Officer Lee Hudson of the Riverdale Police. Department “receive[d] a lookout over [his] radio[, for two] Isuzu Troopers or Rodeo type vehicles, one silver and one white,. . . believed . . . to be stolen vehicles or one of them to be stolen.” Acting on the original lookout and unaware of the previous traffic stop by Officer Monteau, Officer Hudson pulled the same Rodeo over, roughly an hour after Officer Monteau had released it. Upon speaking with defendant, Officer Hudson “could smell heavy marijuana smoke inside the vehicle.” Officer Hudson asked for defendant’s consent to search the vehicle. Defendant “said yes, and stepped out of the car. As he stepped out of the car, [Officer Hudson saw] on the floorboard ... a partial marijuana cigarette and one in the ashtray.” Officer Hudson obtained a “separate consent to search [defendant’s] body,” at which time Officer Hudson found three bags of suspected cocaine in defendant’s left front pocket. Officer Hudson “noticed several pieces of shattered glass from a vehicle window in the floorboard carpet. A further search found several Freaknik type tee-shirts. [Officer Hudson] then radioed to Clayton County Unit 324[, i.e., Officer Monteau,]” to “check the Garden Walk Boulevard area where he saw the vehicles to see if there had been any vehicles entered in that area.” Officer Monteau did not inform Officer Hudson of the results of his previous stop of defendant’s vehicle. Held:

1. In his first enumeration of error, defendant claims that Officer Monteau lacked an articulable suspicion to make the initial stop. We disagree.

When defendant first saw Officer Monteau, he slammed on his brakes, turned off his headlights, and immediately put his vehicle in reverse. Defendant raced away, unsuccessfully trying to enter a secure complex before abruptly speeding off again. These odd and evasive circumstances created a reasonable suspicion of criminal activity to permit a limited investigative stop of the vehicle. Stanley v. State, 191 Ga. App. 603, 604 (2) (382 SE2d 686). “ ‘[Deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea! [Cit.]” State v. Webb, 193 Ga. App. 2, 4 (1) (386 SE2d 891). See also Burgeson v. State, 267 Ga. 102, 105 (3) (a) (475 SE2d 580) (“Flight can be a significant factor in determining probable cause.”).

2. In his second and third enumerations, defendant contends Officer Hudson lacked any reasonable, articulable suspicion to stop his vehicle after he had been released by Officer Monteau.

In the case sub judice, defendant consented to the search of his vehicle and person, yielding the tangible items (marijuana cigarettes, cocaine, and stolen tee shirts) sought to be suppressed. “ ‘Once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn. (Cits.)’ Mallarino v. State, 190 Ga. App. 398, 403 (2) (379 SE2d 210) (1989). ‘ “A valid consent eliminates the need for either probable cause or a search warrant. (Cit.)” ’ Wright v. State, 189 Ga. App. 441, 444 (1) (375 SE2d 895) (1988).” Boggs v. State, 194 Ga. App. 264 (390 SE2d 423). If Officer Hudson was authorized to stop defendant’s vehicle and approach, the consent to search is not invalid.

When the police received a call to be on the lookout for a possibly stolen car, and defendant’s car “roughly fit the description given for the lookout, this provided the basis for an articulable suspicion justifying the stop. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); Brisbane v. State, 233 Ga. 339 (211 SE2d 294) (1974).” McGhee v. State, 253 Ga. 278, 279 (1) (319 SE2d 836). We conclude the stop of defendant’s vehicle was lawful, even though based on a revoked “be-on-the-lookout” dispatch, where that revocation preceded the stop by but one hour and such revocation had not yet been communicated to the arresting officer. Specifically, the Riverdale officer’s momentary detention of defendant’s vehicle was reasonable despite being based on another jurisdiction’s (Clayton County’s) recalled dispatch, where the recall of that dispatch one hour earlier was not seasonably communicated.

The existence of a reasonable suspicion to stop a moving vehicle, like “ ‘[t]he existence of probable cause [to arrest] must be “measured by current knowledge, i.e., at the moment the [stop or] arrest is made and not hindsight. (Cit.)” (Cit.)’ Jackson v. State, 191 Ga. App. 439, 441 (2) (382 SE2d 177) (1989).” Harvey v. State, 266 Ga. 671, 673 (469 SE2d 176). “Although in [stopping defendant’s silver Rodeo with the specified tag number in the case sub judice], the [Riverdale] officer relied upon the [initial report of the Clayton County officer], he [Riverdale officer] neither knew, nor could be reasonably expected to have known, that the information [of a possible stolen vehicle] was incorrect when he made the arrest. The [articulated suspicion], which [had just been recently] proven wrong, was stale by [less than an hour]. This Court, in hindsight, [ought] not declare [an otherwise reasonable traffic stop] to be invalid when the [detaining] officer reasonably relied upon [an articulated ground] which he had no reason to [suspect] was incorrect. [Cits.]” Harvey v. State, 266 Ga. supra at 673. It follows that the Riverdale officer was justified in approaching defendant’s car, where he detected the distinctive aroma of marijuana. See, e.g., Galbreath v. State, 213 Ga. App. 80, 82 (2) (443 SE2d 664). The trial court correctly denied defendant’s motion to suppress and that ruling is affirmed.

The dissent’s reliance on State v. Stringer, 258 Ga. 605 (372 SE2d 426), is misplaced. In Stringer, that defendant was arrested on a 21-month-old bench warrant for two misdemeanor charges, even though that bench warrant had been recalled. The trial court’s suppression of Stringer’s custodial statement was affirmed by the Supreme Court of Georgia, which reasoned that the “documented collective knowledge and negligence of the law-enforcement department must be imputed to the officer executing the [recalled] bench warrant. [Cits.]” 258 Ga. supra at 607. Like the Supreme Court in Harvey, we conclude that “State v. Stringer, supra, is not authority for a contrary holding.” 266 Ga. supra at 673. “Probable cause for an arrest[, like reasonable suspicion to detain,] does not depend on, and is an entirely separate question from, the existence of a valid bench warrant and its reasonable execution. [Cit.]” Harvey v. State, 266 Ga. supra at 673.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J, and Eldridge, J., concur. Beasley, Smith and Ruffin, JJ, dissent.

Beasley, Judge,

dissenting.

I concur in Division 1 but dissent with respect to Division 2. In it we focus on McDaniel’s motions to suppress the evidence found by Officer Hudson and to exclude Hudson’s testimony, which motions the trial court denied after an evidentiary hearing. As grounds, McDaniel invoked the Fourth Amendment.

Evidence obtained in violation of the federal constitution, as well as evidence obtained in violation of state law, is inadmissible at trial as a matter of state statute. OCGA § 17-5-30. Although the United States Supreme Court has acknowledged a good faith exception to the federal rule of inadmissibility, the Supreme Court of Georgia has rejected the same, jurisprudentially, with respect to the Georgia statute. Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992). Thus evidence obtained in violation of a defendant’s Fourth Amendment constitutional rights will be suppressed in Georgia regardless of the innocent intentions of the police officer.

The sole basis for Officer Hudson’s stop was the original radio dispatch to be on the lookout for the silver Rodeo with a specific tag number as a possible stolen vehicle. An- officer may indeed act on a radio-dispatched lookout as reasonable grounds to stop a vehicle. “The investigating deputy [is] authorized to rely upon the determination by ... a fellow law enforcement officer that circumstances required that an investigative stop be made of the” vehicle. (Citations and punctuation omitted.) Griggs v. State, 167 Ga. App. 581, 582 (1) (307 SE2d 75) (1983). See Whiteley v. Warden, 401 U. S. 560 (91 SC 1031, 28 LE2d 306) (1971); State v. Wright, 221 Ga. App. 202, 205 (3) (470 SE2d 916) (1996) (“the apprehending officer[ ] ‘was entitled to rely on the information given him by a fellow officer’ in the formation of an articulable suspicion”). See also Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990) (“police officers are authorized to use information received by radio as part of their basis for establishing probable cause”). A determination of reasonable suspicion or probable cause “can rest upon the collective knowledge of the police when there is some degree of communication between them, instead of the knowledge of the arresting [or investigating] officer alone.” Burgeson v. State, 267 Ga. 102, 105 (3) (a) (475 SE2d 580) (1996). See Tarwid v. State, 184 Ga. App. 853, 855 (1) (363 SE2d 63) (1987) (“reasonable suspicion may exist based on the collective knowledge of law enforcement officials,” citing United States v. Allison, 616 F2d 779 (5th Cir. 1980)).

“There is no requirement that the officer making the stop have all the information the original officer had about a suspect and the informant. In other words, ‘the searching officer need not personally be aware of all the facts which would support a [reasonable suspicion] determination so long as it can be established by evidence that the searching officer’s actions were the end result of a chain of information-sharing, one link of which is an officer in possession of the ‘information requisite to support an independent judicial assessment of [reasonable suspicion].’ ” (Citations and punctuation omitted.) Beck v. State, 216 Ga. App. 532, 534-535 (1) (455 SE2d 110) (1995). See State v. Fowler, 215 Ga. App. 524 (451 SE2d 124) (1994) (to determine validity of stop based on radio report, court should test facts known to reporting officer).

Here the question is whether this key link disintegrated when Officer Monteau stopped McDaniel and determined that the vehicle was not stolen and that nothing else was amiss. If this key link is found defective at that point, the chain was broken and could no longer serve as a basis for the reasonable suspicion needed for Officer Hudson’s later stop. The question is whether, if the first officer putting out the lookout obtains knowledge eviscerating the grounds for reasonable suspicion and revokes the lookout, that new knowledge essentially is imputed to the second officer who later stops the suspect, even if for some reason the second officer was not notified of the revocation of the lookout. The answer is yes.

Although State v. Henderson, 215 Ga. App. 215, 216 (450 SE2d 288) (1994), is physical precedent only, its ultimate ruling is valid and persuasive in this analogous case. In Henderson, the investigating officer heard a radio broadcast to be on the lookout for a 1981 burgundy Buick, no tag available, occupied by several black males suspected of stealing the car and killing its owner. An updated lookout was broadcast two minutes later, stating the stolen car was a 1981 Buick LeSabre, any color from maroon to pink, with a broken taillight and occupied by six heavily armed black males. The investigating officer “did not remember if he heard” the updated message. Seeing two black males in a burgundy 1981 Buick Electra with no broken taillight (a description that matched the first broadcast), the investigating officer ran a computer check on the license plate, which showed it was not stolen. The officer nevertheless conducted a Terry stop and discovered evidence of another crime.

Imputing the knowledge of the updated broadcast to the investigating officer, we held that in addition to knowing through the computer check that the car was not stolen the officer “knew the make was different, the taillight was not broken and the number of occupants varied from the description given in the” updated broadcast. Id. at 218. The evidence was suppressed.

The Supreme Court of Georgia has employed a similar' analysis in cases where the bench warrant on which an officer acted in arresting and searching the defendant had, unbeknownst to the arresting officer, actually been revoked. In State v. Stringer, 258 Ga. 605 (372 SE2d 426) (1988), the original bench warrant was recalled when the defendant appeared before the court. An officer unaware of the recall used that warrant to arrest the defendant, who then confessed to murder and armed robbery while in custody.

The Supreme Court reasoned: “The proper focus of inquiry in this case is whether the [police department] knew or should have known that their information about the bench warrant was incorrect. If the information was incorrect or incomplete and they are at fault, they should not be permitted to rely upon it and justify an arrest based upon it. The primary reason for the exclusionary rule is to deter police misconduct, whether it be negligent or intentional. . . . ‘(A) contrary holding — which would sanction evidence seized through the arrest of any citizen merely because he has once been legally subject to apprehension — would affirmatively encourage the careless, perhaps deliberately neglectful, failure to delete names from that proscribed list on what would then be the correct theory that the longer the list, the more persons subject to search and the consequent seizure of admissible evidence. Affirmance would therefore actually advance just that impermissible, indeed unconstitutional, conduct the exclusionary rule was expressly adopted to prevent.’ ” Stringer, 258 Ga. at 606-607.

In a subsequent split decision (4-3), the Supreme Court of Georgia held valid an arrest based on a revoked bench warrant where the officer immediately prior to the arrest called the Georgia and National Crime Information Centers to confirm the validity of the warrant. Harvey v. State, 266 Ga. 671 (469 SE2d 176) (1996). Officer Hudson engaged in no such confirmation here.

In Boatright v. State, 225 Ga. App. 181, 184 (483 SE2d 659) (1997), we held as inadmissible the evidence obtained through an arrest where the officer relied in good faith on an invalid probation arrest warrant. We distinguished Harvey on the ground that “it was the affirmative acts of the police themselves which invalidated the warrants in [Boatright], not an administrative computer glitch” as in Harvey. (Emphasis in original.) Similarly, it was the affirmative acts of Officer Monteau in stopping and clearing McDaniel the first time which invalidated the reasonable suspicion upon which Officer Hudson was in good faith relying, not an administrative computer failure.

Allowing evidence obtained by a second officer stopping a vehicle after the vehicle has already been stopped and cleared would encourage police to not communicate or at least to delay in communicating the results of the first stop in the hope of obtaining admissible evidence. But the State cannot escape the effect of a crumbled foundation. Furthermore, a citizen who has been stopped and cleared should reasonably expect such information to be passed on and should not be subject to multiple Terry stops to investigate the same “suspicious” conduct. Accord United States v. Shareef, 100 F3d 1491, 1503 (10th Cir. 1996) (“exclusionary rule applies when an error by a dispatcher or an officer leads to a Fourth Amendment violation”); People v. Ramirez, 668 P2d 761, 764 (Cal. 1983) (“if we impute to the arresting officer the collective knowledge of law enforcement agencies for the purpose of establishing probable cause, we must also charge him with knowledge of information exonerating a suspect formerly wanted in connection with a crime”); State v. Mance, 918 P2d 527 (Wash. App. 1996); People v. Mitchell, 678 P2d 990, 995 (Colo. 1984); Carter v. State, 305 A2d 856, 860 (Md. App. 1973). Compare United States v. Zurosky, 614 F2d 779, 786 (1st Cir. 1979) (exculpatory evidence learned by one officer not imputed to fellow officer but exculpatory evidence did not extinguish probable cause to search even if imputed).

The first investigative stop eliminated the basis for the original lookout and caused the necessary link referenced in Beck v. State, supra, to evaporate. Based on the “collective knowledge” concept employed in Tarwid v. State, supra, and its progeny, at that point no officer could any longer rely on the radioed lookout as a basis for a Terry stop, regardless of whether the second officer actually learned of the results of the first Terry stop.

Decided July 15, 1997.

Emmett J. Arnold TV, for appellant.

Robert E. Keller, District Attorney, Lisa S. Estes, Assistant District Attorney, for appellee.

Because the stop by Officer Hudson lacked reasonable suspicion, the consent obtained during that stop to search the vehicle and person of McDaniel is tainted and thus invalid. Bowers v. State, 221 Ga. App. 886, 888 (473 SE2d 201) (1996); Tarwid v. State, supra, 184 Ga. App. at 856. McDaniel’s conviction based on this evidence cannot stand.

I am authorized to state that Judge Smith and Judge Ruffin join in this dissent.

       Near the end of his appellate brief, McDaniel makes a vague reference to the “++ Amendment to the Georgia Constitution.” Raised for the first time on appeal and unsupported by any argument, this incomplete and vague reference cannot be considered.

       On the other hand, if an officer who posts a lookout that a defendant should be arrested lacks probable cause but later obtains evidence meeting the probable cause standard before the arrest by another officer is made, “his subsequently obtained knowledge cannot be imputed to the arresting officer.” Hunt v. State, 212 Ga. App. 217, 218 (441 SE2d 514) (1994). Because at the time the lookout was posted the lookout was invalid, the chain of information-sharing was never properly forged and can therefore not support an arrest. Id. See also United States v. Edwards, 885 F2d 377, 382 (7th Cir. 1989); People v. Ford, 198 Cal. Rptr. 80 (Cal. App. 5th Dist. 1984); State v. Mickelson, 526 P2d 583 (Or. App. 1974). Contra, Johnson v. State, 660 S2d 648 (Fla. 1995). To protect constitutional rights, warrantless searches must be considered carefully so as to avoid encouraging police misconduct. See State v. Stringer, 258 Ga. at 607.