author: Pope, Judge.

text:
    A90A0484.
    MITCHEM v. JOE N. GUY COMPANY, INC.
    (395 SE2d 331)
   Pope, Judge.

Plaintiff Mitchem operated as a subcontractor pursuant to several written agreements with defendant Joe N. Guy Company, Inc., as general contractor. Guy entered into an equipment lease for a hydraulic excavator needed by Mitchem to complete some of the work covered by its subcontracts because Mitchem was unable to lease the equipment on its own. Guy loaned the equipment to Mitchem pursuant to an oral agreement whereby Mitchem would cover the rental payments either by reimbursing Guy or by withholdings from periodic payments due under the subcontracts.

Mitchem filed a demand for arbitration with the American Arbitration Association for sums allegedly due under the written contracts between the parties. Guy answered and counterclaimed. One of the counts of the counterclaim alleged that Mitchem had wrongly converted the equipment and withheld it from Guy and that the lessor of the equipment had filed suit against Guy to recover rental payments and costs of repairs. The counterclaim alleged that Mitchem was liable to Guy for these sums and all sums which might be found due to the lessor in the pending lawsuit.

Mitchem filed a pleading in the superior court entitled “Motion for Stay of Arbitration.” In the pleading Mitchem asserted that the counterclaim relating to the equipment lease was not properly the subject of arbitration and prayed for injunctive relief in the form of an order staying the prosecution of that portion of the counterclaim in the arbitration proceeding. The trial court denied the motion for stay of arbitration and Mitchem appeals.

Decided June 8, 1990

Rehearing denied June 25, 1990 — Cert, applied for.

Martin, Cavan & Andersen, C. Walker Ingraham, Helen K. Morad, for appellant.

Bentley, Karesh, Seacrest, Labovitz & Campbell, Thomas S. Bentley, Edwin A. Tate II, for appellee.

Mitchem’s undisputed sworn statement establishes that the agreement between the parties concerning the use of and payment for the equipment was oral, not written. Mitchem stated that Guy agreed to let him use the equipment on any project, not just the projects in which he was subcontractor for Guy. Mitchem argues the oral agreement concerning the equipment is not subject to arbitration because it was not written and did not otherwise comply with the statutory - requirements for subjecting an agreement to arbitration. See OCGA §§ 9-9-82 and 9-9-83 (prior to amendment effective July 1, 1988, Ga. L. 1988, p. 903, § 1). However, each of the written subcontracts contained a provision whereby the contractor may pay for expenses of labor, materials or supplies used by the subcontractor in the work and charge the costs to the subcontractor if the subcontractor fails to pay for such expenses. The agreement to pay rental charges became a debt for supplies (more accurately, equipment) owed to the general contractor itself. Therefore, just as under this provision the general contractor had the right to pay for such unpaid items and charge them back to the subcontractor, it had the right to charge the subcontractor for sums owed directly to it as a “supplier” of equipment. Consequently, the trial court did not err in denying Mitchem’s prayer for relief because, as a matter of law, the amount owed under the rental agreement was arbitrable because it relates to the amount of money owed by one party to the other under the written agreements.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.

       Even though Mitchem prayed for injunctive relief, his petition was in the nature of a complaint for declaratory judgment requesting the trial court to decide as a matter of law whether written contracts between the parties, which were clearly subject to arbitration, permitted Guy to seek reimbursement for the equipment lease as part of the arbitration proceedings. Before the trial court could rule on Mitchem’s prayer for injunctive relief it first had to make a decision whether, by law, payment for the leased equipment could be pursued under the written contracts. The denial of the prayer for injunctive relief necessarily indicates the trial court decided this point of law in favor of Guy. Thus, this appeal actually involves legal issues, not equitable issues, and is properly before this court on appeal.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A90A0617.
    MORGAN ENTERPRISES, INC. v. GORDON GILLETT BUSINESS REALTY, INC.
    (395 SE2d 303)
   Birdsong, Judge.

Morgan Enterprises d/b/a Springfield Dairy Queen appeals the grant of summary judgment to the plaintiff realtor, Gordon Gillett Business Realty, Inc., which found Morgan Enterprises liable to pay $20,000 “liquidated damages” for having cancelled Gordon Gillett’s realty contract before the term expired. Morgan Enterprises contends an issue of fact exists as to whether the liquidated damages clause was, in fact, an unenforceable penalty, under cases such as Fickling & Walker Co. v. Giddens Constr. Co., 258 Ga. 891 (376 SE2d 655). Held:

In determining whether a forfeiture provision in a contract amounts to an enforceable liquidated damages provision, or is an unenforceable penalty clause, the trial court at the summary judgment level must conduct a tripartite inquiry according to these standards: “ ‘First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the . . . loss.’ [Cits.]” Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340). This tripartite inquiry is designed to resolve whether a provision for damages for breach amounts to “liquidated damages” under OCGA § 13-6-7.

At trial the burden is on the defaulting parties to show the provision is a penalty (Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222)), but the lay of this burden does not yet arise at the summary judgment level. Id. On cross-motions for summary judgment, each party must show there is no genuine issue of material fact regarding the resolution of these three points of inquiry and that each, respectively, is entitled to summary judgment; either party, to prevail by summary judgment, must bear its burden of proof.

Thus, in order for plaintiff Gordon Gillett to obtain summary judgment in enforcing this “damages” provision, Gordon Gillett bears the burden to prove the foregoing three elements in its favor. Id. The trial court erred in finding Gordon Gillett had carried this burden of proof in this case.

The listing agreement in this case provides that if appellant can-celled the contract during the listing term, “the commission shall become immediately due by the [s]eller to the [b]roker.” The commission in this case is described as follows: “Seller agrees to pay [b]roker ten (10%), but in any event not less than $8,000, of the purchase price.” Gordon Gillett contends that because the seller, Morgan Enterprises, set the “purchase price” at $200,000, the commission at ten percent is thus $20,000. But there was no purchase. Clearly the parties intended the actual “purchase price” as set by the seller to be flexible.

Gordon Gillett contends vigorously that since appellant seller set the “purchase price” at $200,000 in the contract, the contract must be construed against appellant. But the clause providing the hoped-for purchase price set by seller is not the subject of interpretation. In question is the “liquidated damages” clause, providing a forfeiture of “10% of the purchase price or not less than $8,000.” Inasmuch as the form document, and that “liquidated damages” paragraph, clearly was prepared by Gordon Gillett, any ambiguities in it must be construed against Gordon Gillett. Moreover, in cases where doubt or ambiguity exists in the construction of the damages clause, we must favor the construction which holds “the stipulated sum” to be a penalty. Southeastern Land Fund v. Real Estate World, supra.

In this case “the stipulated sum” to be paid on default is not stated at $20,000 as Gordon Gillett contends, but is “10% of the purchase price, but in any event, not less than $8,000.” The only reason Gordon Gillett contends this language ought to translate, beyond any genuine issue of fact, to $20,000, is that appellant seller set the prospective purchase price at $200,000. But, the property was never sold and Gordon Gillett does not contend it ever had a buyer ready, willing and able to pay any sum. Moreover, the damages provision itself shows beyond issue that the commission, at 10 percent of purchase price, was not necessarily $20,000, but could be as low as $8,000; hence, the purchase price is not established by the contract beyond any issue of fact, and neither is the commission. “If the parties intended for [$20,000, or ten percent of the prospective purchase price] to represent the ‘maximum as well as the minimum sum that can be collected,’ from the [appellant’s] breach, the contract should have made it clear that this was the effect intended by these provisions. It is the lingering ambiguity inherent in these provisions of the contract that persuades us” (id. at 231) that appellee Gordon Gillett has not borne its burden to prove these damages are not a penalty. This is particularly so because we must construe the ambiguity against Gordon Gillett as the drawer of the contract and particularly since in cases of doubt the courts must favor the construction of a penalty. Id.

Gordon Gillett maintains nevertheless that, addressing the tripartite inquiry, the damages are impossible to ascertain since appellant never attempted to sell the property; that the parties did not intend this to be a penalty; and that $20,000 is a reasonable pre-estimate of loss. But the trial court could not reach the full scope of these inquiries, as a trier of fact, because the provision was ambiguous on its face. And, it is evident these three elements cannot be resolved within the four corners of the contract. The fact that Morgan Enterprises never sold the property does not mean the realtor’s loss was impossible or difficult to determine. Moreover, it is self-evident that in order to conclude that “10% of the purchase price or not less than $8,000” is a reasonable pre-estimate of damages, then on the face of the provision, such reasonable pre-estimate could as easily be $8,000 as $20,000. Clearly that is what Gordon Gillett intended. Otherwise, if the highest possible commission ($20,000) is extracted as an arbitrary amount, or to ensure the seller goes through with the deal, then it is a penalty. Budget-Luxury Inn v. Kamash Enterprises, 194 Ga. App. 375 (390 SE2d 607).

Decided June 4, 1990

Rehearing denied June 25, 1990.

Brannen, Searcy & Smith, Joseph J. Berrigan, for appellant.

Gary M. Wisenbaker, for appellee.

We thus find no grounds upon which summary judgment for $20,000 liquidated damages should have been granted to Gordon Gillett, for the damage (commission) provision is so ambiguous as to render the “purchase price” prima facie uncertain. Gordon Gillett failed to bear its burden to prove beyond any genuine issue of material fact that it was entitled to $20,000 rather than $8,000, or somewhere in between.

Because the contract provision at issue is ambiguous on its face, it must be construed against Gordon Gillett, the construction of the provision as a penalty is favored by law, and thus demanded. Id. at 231; Mayor &c. Brunswick v. Aetna Indem. Co., 4 Ga. App. 722, 728 (62 SE 475). Accordingly, the trial court erred in denying summary judgment to appellant Morgan Enterprises and granting summary judgment to Gordon Gillett.

Judgment reversed.

Banke, P. J., and Cooper, J., concur.


author: Sognier, Judge.

text:
    A90A0635.
    FRANK MADDOX REALTY & MORTGAGE, INC. et al. v. FIRST NATIONAL BANK OF ATLANTA.
    (395 SE2d 326)
   Sognier, Judge.

First National Bank of Atlanta brought suit against Frank Maddox Realty & Mortgage, Inc. and Frank Maddox to recover on a promissory note. The trial court granted the bank’s motion for summary judgment and this appeal ensued.

1. Appellants contend the trial court erred by granting appellee’s motion for summary judgment and denying their motion to dismiss made on the basis that appellee’s suit was barred by the statute of limitation. Although the running of the statute of limitation is an affirmative defense, OCGA § 9-11-8 (c), we find no merit in appellee’s argument in this court that appellants waived this defense since the record clearly reflects that appellants raised the statute of limitation in their motion to dismiss. See Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 345-346 (2) (a) (173 SE2d 723) (1970).

The promissory note in issue was signed in November 1980; the instant suit was instituted in February 1988. Despite appellants’ arguments to the contrary, we agree with appellee that the promissory note here is indistinguishable from the contract in Telfair Fin. Co. v. Williams, 172 Ga. App. 489 (323 SE2d 689) (1984) and thus constituted a contract under seal for which the applicable statute of limitation is 20 years. OCGA § 9-3-23. Accordingly, the trial court did not err by denying appellants’ motion to dismiss and granting appellee’s motion.

2. Appellee’s predecessor in interest had earlier brought suit against appellants on the note, which suit was later dismissed for lack of prosecution under OCGA § 9-2-60 (b). Such dismissal is not on the merits, see Covil v. Stansell, 113 Ga. App. 179 (2) (147 SE2d 479) (1966), nor is it res judicata so as to conclude adversely to appellee the cause of action itself. City of Chamblee v. Village of N. Atlanta, 217 Ga. 517, 523 (123 SE2d 663) (1962). The cases cited by appellants are inapplicable here where we have held that the suit by appellee was filed within the proper statute of limitation. See Division 1, supra.

3. We find no error in the trial court’s grant of summary judgment to appellee on the promissory note. Contrary to appellants’ argument, the record establishes the merger of appellee’s predecessor in interest into appellee, and no written assignment of the promissory note was required to be produced. See State Bank &c. Co. v. Newby, 170 Ga. App. 865-866 (1) (318 SE2d 738) (1984). Appellants’ argument regarding the usurious rate of interest charged a corporate debtor on a note executed in 1980 with the principal amount of the loan exceeding $3,000 is controlled adversely to them by former OCGA § 7-4-6 (in effect when the note was executed) and Finlay v. Oxford Constr. Co., 139 Ga. App. 801, 802 (2) (230 SE2d 69) (1976). Appellants’ argument regarding the failure of consideration is controlled adversely to them by OCGA § 11-3-408 and J. M. Tull Indus. v. Reed, 160 Ga. App. 89, 90 (286 SE2d 325) (1981). As to appellants’ remaining arguments, it appearing that appellee produced sufficient evidence to show its entitlement to summary judgment and appellants, in rebuttal, having proffered only appellant Frank Maddox’s affidavit which consists principally of conclusory statements and the bare allegations presented in appellants’ answer, we hold the trial court correctly granted summary judgment in favor of appellee. See Bradley v. Tattnall Bank, 170 Ga. App. 821, 825-828 (2) (318 SE2d 657) (1984). See generally Coleman v. McDonald’s Corp., 185 Ga. App. 628, 629 (365 SE2d 282) (1988).

Decided June 7, 1990

Rehearing denied June 25, 1990 — Cert, applied for.

John L. Watson, Jr., for appellants.

Kevin W. Sparger, for appellee.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A90A0674.
    BROSKI v. THE STATE.
    (395 SE2d 317)
   Sognier, Judge.

Joseph Broski was convicted of driving under the influence of alcohol, driving with an unlawful blood alcohol level, and failure to maintain lane, and he appeals.

1. Appellant contends the trial court erred by denying his motion to quash count 1 of the accusation, driving under the influence of alcohol, because it failed to set forth an offense against the laws of the state. Count 1 of the accusation charged appellant with driving under the influence of alcohol by being in actual physical control of a moving vehicle while under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1). That statute provides that “[a] person shall not drive or be in actual physical control of any moving vehicle while . . . [u]nder the influence of alcohol to the extent that it is less safe for the person to drive.” (Emphasis supplied.) Although the accusation expressly referenced OCGA § 40-6-391 (a) (1), appellant contends that the failure to recite the above emphasized language in the accusation itself constitutes a fatal defect in the accusation. We do not agree.

OCGA § 17-7-71 (c) provides that “[e]very accusation which states the offense in the terms and language of the law or so plainly that the nature of the offense charged may be easily understood by the jury shall be deemed sufficiently technical and correct.” This statute is analogous to OCGA § 17-7-54 for indictments. While it is not necessary to specify the Code section under which an indictment or accusation is drawn, see Turner v. State, 233 Ga. 538 (212 SE2d 370) (1975), and an indictment or accusation is not defective if, while describing the proper elements of the crime, the incorrect statute is referenced, see Curtis v. State, 80 Ga. App. 244, 246 (1) (b) (55 SE2d 758) (1949), neither appellant nor the State has cited this court to any opinion of the appellate courts of Georgia indicating an indictment or accusation is improper if it recites the proper statute but does not detail all the elements thereto.

“An indictment [or accusation] is required to set forth the elements of the offense sought to be charged. The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offen[s]e, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. As long as the defendant is informed of the charges against him so that he may present his defense at trial and not be surprised by the evidence against him, as well as protect against another prosecution for the same offense, the indictment is sufficient. Thus, if a defendant is not misled to his prejudice by any imperfection in an indictment an appellate court will not reverse.” (Punctuation and citations omitted.) Williams v. State, 165 Ga. App. 69, 71 (4) (299 SE2d 402) (1983).

Upon review of numerous authorities concerning the sufficiency of an indictment or accusation, we conclude that reciting the proper statute is a sufficient, though not desirable, method of fulfilling the requirement here of OCGA § 17-7-71 (c). In Toland v. State, 115 Ga. App. 786, 787 (156 SE2d 215) (1967), we found no error in the overruling of appellant’s demurrer, which was based on his argument that the indictment was defective because the offense charged was not described in the language of the specific law violated and citation to the charged offense was by reference to the Georgia Code Annotated instead of the Acts under which the offense was created. In State v. Black, 149 Ga. App. 389 (254 SE2d 506) (1979), an indictment for vehicular homicide referenced the statute and contained descriptive language of the charge, but it could not be determined which of the two types of vehicular homicide contained in the statute was the charged offense. This court noted, “[t]he giving of the Code section is not sufficient if the indictment merely charges vehicle homicide and does not set forth that it is of the first degree or second degree, and in reading the allegations we are unable to determine [which degree was charged.]” (Emphasis supplied.) Id. at 391 (4). From this it can be concluded that including the statute in the indictment would have been sufficient had the proper subsection of the statute been in-eluded. Finally, in Wages v. State, 165 Ga. App. 587, 588-589 (2) (302 SE2d 112) (1983), we noted that an indictment (which set forth that appellant had unlawfully appropriated certain property with the intention of depriving the victim of the property in violation of appellant’s duties as an employee of a certain government office, “in violation of” two Code sections) which was “substantially in the language of the pertinent Code sections, is not confusing as it sets forth the elements of the offense of theft and the provisions applicable to government employees who breach their duties by committing theft, and otherwise meets the standards” required of indictments under OCGA § 17-7-54.

Appellant cites this court to King v. State, 176 Ga. App. 137 (335 SE2d 439) (1985), for the proposition that “[a]n accused is entitled to an indictment or accusation perfect in form as well as substance if he timely raises the question in writing on special demurrer. [Cits.]” Id. at 139. We find King distinguishable from the case sub judice in that while appellant’s motion was timely, written, and specifically reached the point objected to, the absence of the “less safe driver” language was remedied by citation to the statute, and therefore no defect, technical or otherwise, was present in the accusation. Furthermore, even if the absence of the “less safe driver” language did render the indictment not perfect, “this court on appeal must apply a ‘harmless error test’ in order to determine if the error has prejudiced defendant and thus requires reversal of his conviction. [Cit.] ‘(W)hen trial has been had before the appellate court reviews the merits of the special demurrer, where no prejudice to defendant has occurred though the indictment (or accusation or citation) is not perfect, reversal is a mere windfall to defendant and contributes nothing to the administration of justice.’ [Cit.] ... ‘Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. Upon a proceeding after verdict(,) no prejudice being shown, it is enough that necessary facts appear in any form, or by fair construction can be found within the terms of the indictment (or accusation or citation). Thus, a defendant who was not misled to his prejudice by any imperfection in the indictment (or accusation or citation) cannot obtain reversal of his conviction on that ground.’ . . . [Cit.] Defendant alleges no prejudice to himself and we can discern none. Any error in failing to try him upon a ‘perfect’ uniform traffic citation was, thus, manifestly harmless.” (Emphasis supplied.) King, supra at 139-140.

2. Appellant contends the trial court erred by admitting the results of his breath test because the State failed to show that the test was performed according to methods approved by the Division of Forensic Sciences (DFS) pursuant to OCGA § 40-6-392 (a) (1). The technician who administered the test testified to the results over appellant’s foundation objection. The evidence adduced at trial reveals that the technician who administered the breath test was trained at the police academy to operate the Intox 3000 intoximeter machine; she received a certificate showing she had completed the. training which covered the date in question; the permit was displayed above the intoximeter machine; the machine was approved by the DFS; the steps taken in administering the test were detailed; and the technician testified to the proper operation of the intoximeter machine. Thus, the State laid a foundation showing that the requirements of OCGA § 40-6-392 (a) (1) were met to make the test valid. See Riley v. State, 175 Ga. App. 810, 811 (1) (334 SE2d 863) (1985).

On appeal to this court appellant also contends the test results were inadmissible because the intoximeter machine had been modified so that the testing was not conducted according to methods approved by the DFS. The transcript reveals, however, that the objections raised below by appellant to the test printout (including two regulations of the Department of Public Safety, one of which is nonexistent and the other repealed almost two years before appellant’s August 1989 trial) did not include the argument now asserted on appeal. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” (Citations and punctuation omitted.) Iglesias v. State, 191 Ga. App. 403, 404 (381 SE2d 604) (1989).

3. Appellant asserts error in the trial court’s failure to give appellant’s requested charge on circumstantial evidence. It is not error to fail to charge on circumstantial evidence where there is some direct evidence involved in the case. Herndon v. State, 187 Ga. App. 313 (370 SE2d 164) (1988). Contrary to appellant’s argument, his own testimony constituted direct evidence that he was driving his automobile on a public highway when he was involved in an accident with a truck, and direct evidence was adduced as to the amount of alcohol in his blood when he was tested shortly after the accident. Hence, appellant’s enumeration of error is without merit. Id.

4. Although appellant’s expert cast doubt on the accuracy of the test results of the Intoximeter 3000, testimony by the technician who performed the test and the State’s rebuttal expert was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that appellant was operating a motor vehicle with an unlawful blood alcohol level in violation of OCGA § 40-6-391 (a) (4), in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., concurs. Carley, C. J., concurs in Divisions 1, 3, and 4, and in the judgment.

Decided June 6, 1990

Rehearing denied June 25, 1990 — Cert, applied for.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

Ralph T. Bowden, Jr., Solicitor, Andrew R. Fernandez, Cliff Howard, Assistant Solicitors, for appellee.


author: Banke, Presiding Judge.

text:
    A90A0165.
    ORCHARD PECAN COMPANY v. ALBANY PECAN SALES COMPANY, INC. et al.
    (395 SE2d 374)
   Banke, Presiding Judge.

The four appellees herein filed separate suits against the appellant corporation for breach of a plan of reorganization which it had filed under Chapter 11 of the United States Bankruptcy Code. The appellant responded by counterclaiming for damages for abusive litigation. The actions were consolidated for trial without a jury; and after hearing evidence, the trial judge entered judgment in favor of each appellee for the amount claimed, plus interest and court costs. This appeal followed.

The appellees were unsecured creditors of the appellant at the time the bankruptcy proceeding was initiated. Under the appellant’s Chapter 11 reorganization plan, which was approved by the United States Bankruptcy Court on July 28, 1983, the claims of such creditors were to be paid “one hundred cents on the dollar in six annual payments, to begin in the year following the date of affirmation [of the plan].” However, in order to allow the appellant “flexibility” in satisfying its obligations to its creditors, the amount of these annual repayments was not specified.

The appellant made payments to the appellees each year for the first three years following the confirmation of the plan but made no subsequent payments, thus prompting the appellees to file the present actions in May of 1988 to recover the balance owing on the debts. An evidentiary hearing was held in the case in December of 1988, following which the court apparently took the matter under advisement. Each appellee filed a “motion for judgment” on July 21, 1989; and on August 1, 1989, the trial court responded by entering the judgments from which the present appeal is taken. Held:

1. The appellant contends that it had no liability to the appellees at the time they filed the present actions because the six-year period afforded it by the bankruptcy plan to pay their claims had not yet expired at that time. However, the appellant’s obligation to the appellees under the plan clearly had matured by the time the court entered its judgments; and at the hearing on the appellees’ motions for entry of judgment, the appellant’s counsel affirmatively represented to the trial court that the passage of time had rendered the maturity issue moot. “ ‘ “That to which opposing counsel agree during the progress of a trial cannot be assigned as error.” ’ [Cit.]” Anderson v. Williams, 192 Ga. App. 130, 132 (384 SE2d 229) (1989).

Decided June 25, 1990.

Burt & Burt, Hilliard P. Burt, for appellant.

H. Arnold Hammack, for appellees.

2. The appellant’s remaining enumerations of error are rendered moot by the foregoing.

3. The appellees’ motion for the assessment of a 10 percent penalty against the appellant pursuant to OCGA § 5-6-6 for filing a frivolous appeal is denied. The maturity issue raised by the appellant had arguable merit; and had it not been for the appellees’ affirmative representation to the lower court prior to the entry of the judgments that the issue had become moot, we cannot say that a reversal would not have been warranted on the basis of it. As the issue of waiver was not raised by the appellees as a basis for affirming the judgments, we conclude that the imposition of a frivolous appeal penalty would not be appropriate in this case. See generally Burger v. Burton, 168 Ga. App. 378 (2) (308 SE2d 868) (1983).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Carley, Chief Judge.

text:
    A90A0175.
    HENDRICKS v. MONROE REALTY, INC.
    (395 SE2d 375)
   Carley, Chief Judge.

Appellant-plaintiff brought suit against appellee-defendant, seeking to recover on a promissory note. Appellee answered and counterclaimed, seeking to recover for fraud and tortious interference with business relations. The case was tried before a jury. As to appellant’s main claim on the note, the jury returned a $500 verdict in his favor. As to appellee’s counterclaims, the jury returned a general verdict in its favor and awarded $2,000 in compensatory damages and $15,000 in punitive damages. Appellant appeals from the judgments that were entered by the trial court on the jury’s verdicts.

1. Appellant moved for a directed verdict as to several of the defenses that appellee had raised to its liability on the note. The trial court denied the motions and, in its charge to the jury, gave instructions on these defenses. Appellant enumerates as error the denial of his motions for a directed verdict and the giving of the instructions.

Since the jury found in appellant’s favor as to his main claim on the note, error, if any, in the denial of his motions for a directed verdict as to appellee’s defenses and in the giving of jury instructions as to those defenses was clearly harmless. Mundy v. Cincinnati Ins. Co., 141 Ga. App. 106, 108 (1) (232 SE2d 621) (1977).

2. The trial court’s denial of appellant’s motion for a directed verdict as to his main claim on the note is enumerated as error.

Insofar as appellee’s liability on the note is concerned, error, if any in the trial court’s failure to grant a directed verdict in favor of appellant, was rendered harmless when the jury returned a verdict in his favor. Mundy v. Cincinnati Ins. Co., supra at 108 (1). Insofar as the extent of appellee’s liability on the note is concerned, a jury issue was presented. Accordingly, this enumeration of error is without merit.

3. The trial court’s denial of appellant’s motion for a directed verdict as to appellee’s counterclaim for tortious interference with business relations is enumerated as error.

“ ‘Where one maliciously and wrongfully, and with the intent to injure another person’s business prevents others from dealing with him and his business is thereby injured, the person thus injured has a cause of action against the person thus causing the injury, for the loss and damage sustained.’ [Cits.]” NAACP v. Overstreet, 221 Ga. 16, 21 (1a) (142 SE2d 816) (1965). According to appellee, appellant had tortiously interfered with its right to receive a certain real estate commission. The evidence showed that appellant had indeed contacted the closing attorney and that, thereafter, the closing attorney had not paid the commission to appellee but had filed an interpleader action. However, the evidence also showed that, when appellant contacted the closing attorney, he was acting pursuant to a signed written contract, whereby appellee had agreed that “all disputed funds [that were to be paid to it as the real estate commission] shall be escrowed with an attorney of [appellee’s president’s] choice. . . .” Thus, appellee had agreed that, in the event of a dispute with appellant as to its entitlement to the funds that were otherwise to be paid to it as the real estate commission, those funds would be withheld from it and placed in escrow. It is uncontroverted that, after appellant contacted the closing attorney and registered his dispute as to appellee’s entitlement to the funds, the escrow agent who was selected by appellee’s president refused to'serve and that the closing attorney then opted for filing an interpleader action because appellee’s attorney was threatening to file suit. Accordingly, the original withholding of the real estate commission was precipitated by appellee’s own written agreement with appellant and the subsequent interpleader action was precipitated by the actions of appellee’s own agents. Under this evidence, the withholding of the commission from appellee was not shown to be the result of any malicious act on the part of appellant. “In an action for interference with contract, ‘ “malicious” or “maliciously” means any unauthorized interference, or any interference without legal justification or excuse.’ [Cit.]” Tedford v. Roswell Village, 173 Ga. App. 780 (1A) (328 SE2d 403) (1985). Appellant was originally authorized to rely upon his written agreement with appellee in contacting the closing attorney and he is not legally responsible for the subsequent actions of appellee’s agents. It follows that the trial court erred in failing to grant appellant’s motion for a directed verdict.

Decided June 25, 1990.

Hartley, Rowe & Fowler, G. Michael Hartley, Elizabeth A. Geoffroy, for appellant.

Howe & Dettmering, W. O’Neal Dettmering, Jr., for appellee.

4. The trial court’s denial of appellant’s motion for a directed verdict as to appellee’s counterclaim for fraud is enumerated as error.

Our review of the record shows that such evidence as was adduced at trial purported to relate only to appellee’s fraud defense as to its liability on the note. There was no evidence adduced which would authorize an independent recovery by appellee under a fraud theory. Although appellee’s president Mr. Pat Monroe did testify that the extent of her ownership of the stock in appellee had been misrepresented to her by appellant, this obviously has no bearing whatsoever on whether the corporate appellee itself was ever defrauded by appellant. There being no evidence to authorize appellee to recover in fraud, it follows that the trial court erred in denying appellant’s motion for a directed verdict.

5. Over objection, the trial court admitted certain evidence as relevant to the issue of appellant’s commission of fraud. This evidentiary ruling is enumerated as error.

Insofar as the evidence may have been inadmissible and irrelevant to appellee’s defense of fraud, its erroneous admission would be harmless for the reasons discussed in Division 1. Insofar as the evidence may have been inadmissible and irrelevant to appellee’s counterclaim for fraud, any harm that may have resulted from its erroneous admission has been rendered moot by virtue of our holding in Division 4. It follows that this enumeration of error is without merit.

6. The judgment on appellant’s main action is affirmed. The judgment on appellee’s counterclaim is reversed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Sognier, J., concur.


author: Carley, .Chief Judge.

text:
    A90A0194.
    KOLE et al. v. LINKENHOKER et al.
    (395 SE2d 378)
   Carley, .Chief Judge.

Appellant-plaintiffs and appellee-defendants are adjoining landowners. Alleging the violation of an oral agreement not to lease to a competitor, appellants brought suit against appellees and sought equitable and legal relief. The trial court’s denial of appellants’ claim for equitable relief was affirmed by the Supreme Court. Kole v. Linkenhoker, 259 Ga. 82 (377 SE2d 671) (1989). Thereafter, appellees moved for summary judgment as to appellants’ claims for legal relief. The trial court granted appellees’ motion for summary judgment, and appellants appeal.

1. Appellants assert that a genuine issue of material fact remains as to their breach of contract claim. The alleged oral contract was made in the context of preliminary negotiations regarding appellants’ support for appellees’ future development of their property. According to appellants, when an inquiry was made as to whether appellees planned to lease to a competitor, the following response was given: “We would never consider anything like [that]. Don’t even think anything like that.”

Even assuming without deciding that appellees’ Statute of Frauds and lack of consideration defenses are not viable, it is nevertheless clear that this alleged “promise” would not otherwise constitute an enforceable anti-competition agreement. It contains no provision as to its duration. “[T]he validity of such restrictive covenants is subject to the overriding requirements that, as to territoriality and/or duration, they be reasonably necessary to protect the interests of the covenantee, that they not impose greater restrictions upon the covenantor than are necessary for the covenantee’s protection, and that they not unduly prejudice the interests of the public. [Cits.]” (Emphasis supplied.) Webster v. Star Distrib. Co., 241 Ga. 270, 272 (a) (244 SE2d 826) (1978).

Construing the evidence most favorably for appellants, the most that is shown is that appellees may have expressed their preliminary amenability to reaching a future anti-competition agreement in consideration for appellants’ support for the planned development of appellees’ adjoining property. It is undisputed, however, that no such specific and enforceable agreement was even reached. It follows that the trial court did not err in granting summary judgment in favor of appellees as to appellants’ breach of contract claim. “ ‘Unless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect. (Cits.)’ [Cit.] . . . ‘ “An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.” [Cit.]’ [Cit.]” Hartrampf v. C & S Realty Inves tors, 157 Ga. App. 879, 881 (1) (278 SE2d 750) (1981).

Decided June 25, 1990.

Buchsbaum & Lowe, Aaron L. Buchsbaum, Alan S. Lowe, for appellants.

King & Spalding, Ralph B. Levy, Gregory S. Smith, Malberry Smith, Jr., for appellees.

2. Likewise, the trial court correctly granted summary judgment in favor of appellees as to appellants’ fraud claim. “[Tjhere is no question that the promises made by [appellees] were prospective in nature, and ‘(a)ctionable fraud cannot be based on statements and promises as to future events.’ [Cits.]” Hudson v. Venture Indus., 147 Ga. App. 31, 34 (2) (248 SE2d 9) (1978), aff’d 243 Ga. 116 (252 SE2d 606) (1979).

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A0384.
    BONDS v. BURCH.
    (395 SE2d 379)
   Carley, Chief Judge.

After appellant-plaintiff was injured in an automobile collision, he received $2,500 in no-fault benefits. He then brought this tort action against appellee-defendant, seeking to recover for the injuries that he had allegedly sustained in the collision. The case was tried before a jury. The collision having occurred after July 1, 1987, evidence of appellant’s receipt of payments from collateral sources, including his receipt of no-fault benefits, was admitted and the jury was instructed that, in its discretion, it would be authorized to consider this evidence. The verdict was returned on a special verdict form which required the jury to allocate as between the various elements of economic and non-economic damages being sought by appellant and which further required the jury to indicate whether any economic damages awarded had been reduced because of appellant’s receipt of payments from collateral sources. With regard to appellant’s economic damages, the jury awarded him $4,147.75 for his medical expenses and $4,500 for his loss of earnings and further indicated that, in the exercise of its discretion, neither award had been reduced by payments from collateral sources. The trial court wrote off from the jury’s verdict the $2,500 in no-fault benefits and then entered judgment in favor of appellant for the balance. Appellant appeals from this judgment, enumerating as error only the trial court’s write-off of $2,500 in no-fault benefits.

Under OCGA § 33-34-9 (b), an injured party is precluded from recovering his economic damages to the extent that he is eligible to receive no-fault benefits for those damages. Under OCGA § 51-12-1 (b) the trior of fact is authorized, but not required, to reduce an award of damages by the amount of payments received by an injured party from collateral sources. Appellant urges that OCGA § 51-12-1 (b) is inconsistent with OCGA § 33-34-9 (b) and that the former provision has repealed the latter provision by implication. The specific contention is that, pretermitting OCGA § 33-34-9 (b), an injured party is not precluded from recovering his economic damages unless and until the trior of fact elects under OCGA § 51-12-1 (b) to reduce an award by the amount of no-fault benefits received for those economic damages. Since the jury’s verdict in the instant case indicates that it did not elect to reduce its award of economic damages pursuant to OCGA § 51-12-1 (b), appellant contends that the trial court had no authority to reduce the jury’s award pursuant to OCGA § 33-34-9 (b).

Contrary to appellant’s contentions, OCGA § 33-34-9 (b) and OCGA § 51-12-1 (b) are not inconsistent. OCGA § 33-34-9 (b) precludes the recovery of certain specific damages. Since those damages are not recoverable in a civil action, they are not otherwise subject to the mandate of OCGA § 51-12-1 (b). The trior of fact has no discretion as to whether an award of damages will be reduced based upon the plaintiff’s receipt of no-fault benefits for economic damages because the plaintiff is precluded from recovering those damages.

Accordingly, evidence of appellant’s receipt of no-fault benefits was not admissible as evidence of his receipt of payment from a collateral source and, if the instant case had been tried according to the “approved” procedure for trying a no-fault tort action, the issue of appellant’s recovery for economic damages covered by no-fault would never have been submitted to the jury. “The approved way to prevent [a] double payment [of economic damages covered by no-fault] is by consent at pretrial, or in the event of contest, by presenting the facts showing such coverage and payment to the court outside the presence of the jury. [Cit.] If evidence of such [economic] damages is introduced for the purpose of proving the extent of injuries, the court should then charge the jury to exclude consideration of such evidence on the issue of damages. [Cit.]” McDaniel v. Gysel, 155 Ga. App. 111, 112 (5) (270 SE2d 469) (1980). “If this ‘approved’ procedure is followed, when a verdict is returned in the case there will be no doubt that the plaintiff is presumably entitled to the full award of the jury, i.e., that the award includes only a recovery of such damages as the plaintiff would be entitled to under the evidence and the law.” (Emphasis in original.) Levine v. Wyatt, 160 Ga. App. 632, 633-634 (287 SE2d 649) (1981).

Decided June 25, 1990.

William W. Keith III, for appellant.

James H. Phillips, for appellee.

Rather than following this “approved” procedure, the decision apparently was made to try the instant case as if it were a non-no-fault tort action with an eventual write-off from the verdict of economic damages awarded by the jury, but not otherwise recoverable under OCGA § 33-34-9 (b). “Obviously, when [such a] decision is made . . ., it is better practice to insure that the verdict that will be returned is in a form which will facilitate the write-off. [Cit.]” Levine v. Wyatt, supra at 634. The verdict form that was employed in the instant case would facilitate such a write-off, at least insofar as it required the jury to specify the amount of economic damages it had awarded and the extent to which it had already reduced that award by virtue of appellant’s receipt of payment from collateral sources. The verdict form would not, however, facilitate a write-off of no-fault benefits insofar as it did not require the jury to specify the source of its reduction of an award of economic damages. Without some indication as to whether the jury’s reduction of an award of economic damages was or was not based upon the receipt of no-fault benefits, the trial court could not know whether a post-verdict write-off would be warranted. The question would remain whether the jury’s reduction was based upon the receipt of no-fault benefits, in which case no further write-off would be authorized, or was based upon the receipt of payment from some other collateral source, in which case no-fault benefits should be written off by the trial court. However, since it is clear that the jury in the instant case awarded appellant economic damages unreduced by receipt of payment from any collateral source whatsoever, the issue of whether a further write-off by the trial court would constitute a double reduction of non-recoverable economic damages does not arise. The jury made an unreduced award of all of appellant’s economic damages and it follows that the trial court correctly wrote off $2,500 as the amount of appellant’s economic damages which were non-recoverable under OCGA § 33-34-9 (b).

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A0588.
    HIRSH et al. v. GOODLETT.
    (395 SE2d 626)
   Carley, Chief Judge.

Appellee-plaintiff performed certain work in connection with the construction of appellant-defendants’ home. When he was not paid, appellee filed suit against appellants and their general contractor. The case was tried before a jury. As against the general contractor, the jury found in favor of appellee and awarded him $860 in damages. As against appellants, the jury also found in favor of appellee and awarded him $5,874 in damages and $30,000 in attorney’s fees. Appellants appeal from the judgment that was entered by the trial court on the jury’s verdict.

1. Since the jury found the general contractor to be liable to appellee for only $860, appellants urge that the $5,874 verdict that was returned against them is contrary to law and is not supported by the evidence.

Appellants’ liability could not exceed that of the general contractor if appellants’ liability were dependent upon their status as guarantors of the general contractor’s indebtedness to appellee. However, the case was not tried and submitted to the jury under the theory that appellant had specifically guaranteed that appellee would receive the payment that was otherwise owed to him by the general contractor. It was tried and submitted to the jury under the theory that appellants had simply guaranteed that appellee would receive the payment that was otherwise owed to him for his services. The evidence, although conflicting, would authorize a finding that appellee performed $860 in services that the general contractor was otherwise contractually obligated to provide to appellants and would also authorize a finding that appellee performed $5,874 in services that the general contractor was not otherwise contractually obligated to provide to appellants. Accordingly, the general grounds are without merit.

2. The trial court’s failure to grant appellants’ motion for a directed verdict as to their liability for attorney’s fees is enumerated as error.

There was sufficient evidence of bad faith on the part of appellants to authorize a finding of their liability for attorney’s fees pursuant to OCGA § 13-6-11. “Bad faith authorizing an award of attorney [’s] fees in a contract action must relate to the conduct of entering the contract or to the transaction and dealings out of which the cause of action arose, which includes not only the negotiations and formulation of the contract but also performance of the contractual provisions. [Cit.]” Hayes Constr. Co. v. Thompson, 184 Ga. App. 482, 484 (2) (361 SE2d 865) (1987). There was evidence that appellants knew from the outset that they, not the general contractor, would ultimately be responsible for paying appellee for the majority of his proposed services but that, after the services had been rendered, they refused to acknowledge their liability for any part thereof and attempted to shift total financial responsibility to the general contractor. “This evidence would authorize a finding of something ‘other than a good-faith belief on the part of [appellants] that [appellee] was asking [them] to pay more than [they were] contractually obligated to pay.’ [Cit.] ‘Since there was some evidence to support [appellee’s] contention on the issue of bad faith, the trial court [correctly denied appellants’] motion for directed verdict on the issue of attorney[’s] fees. [Cit.]’ [Cit.]” Beall v. F.H.H. Constr., 193 Ga. App. 544, 547 (5) (388 SE2d 342) (1989).

Decided June 25, 1990.

Neely & Player, Michael R. Johnson, for appellants.

Louis K. Polonsky, for appellee.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A0751.
    MILLER, STEVENSON & STEINICHEN, INC. v. MALLETT et al.
    (395 SE2d 381)
   Banke, Presiding Judge.

The appellant contracted to provide certain engineering and consulting services to Fayette County in connection with the proposed construction of improvements to that county’s water system. The county became dissatisfied with the appellant’s performance under these contracts, and a meeting was held to discuss terminating the agreements. Following that meeting, the appellant executed two releases pursuant to which it was paid a total of approximately $205,000 in satisfaction of all claims arising from the contracts. The appellant nevertheless filed suit against the county approximately a year later seeking to recover damages for its alleged breach of the engineering service contract, asserting that the releases were invalid because they had been signed under duress. Named as additional defendants in this suit were the appellees herein, who had also contracted with the county to perform services in connection with the proposed improvements and who were alleged to have injured the appellant by tortiously interfering with its rights under its contracts with the county. This court subsequently affirmed a grant of summary judgment to the county on the breach of contract claim, holding that “[t]he evidence contained in the record creates no issue of fact as to whether the release is voidable but shows, as a matter of law, that the executed release constitutes an accord and satisfaction of the . . . contract.” Miller, Stevenson & Steinichen v. Fayette County, 190 Ga. App. 777, 778 (380 SE2d 73) (1989). The appellees herein were subsequently awarded summary judgment on the tortious interference claims, and the present appeal followed. Held:

Decided June 25, 1990.

Thomas J. McHugh, Jr., for appellant.

McNally, Fox, Mahler & Cameron, Patrick J. Fox, for appellees.

In its brief filed in support of the present appeal, the appellant states that its claims against the appellees are based on allegations that they “tortiously interfered with the business contracts of the [appellant] with Fayette County, in that they deliberately failed to perform duties imposed upon them pursuant to the contract. . . .” We must agree with the appellees that such allegations state no claim for relief for tortious interference with contractual relations. “ ‘The mere failure of a party to a contract to carry out its terms will not give rise to a cause of action ex delicto in favor of a third person who has contracted with the opposite party to such contract, although in breaching the contract the party so failing may be charged with notice that the opposite party will not be able to perform its contract with such third person. . . .’ ” First Mtg. Corp. of Va. v. Felker, 158 Ga. App. 14, 15 (279 SE2d 451) (1981), quoting from Wometco Theatres v. United Artists Corp., 53 Ga. App. 509, 513-14 (186 SE 572) (1936). Moreover, four of the county commissioners who held office at the time the appellant’s contracts with the county were terminated submitted affidavits stating that the appellees had not advised, suggested or solicited the termination of those contracts; and the appellant has cited this court to no evidence of record which would tend to controvert those averments. We accordingly hold that the trial court did not err in granting summary judgment to the appellees on the tortious interference claims.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0756.
    BACON v. BREWER.
    (395 SE2d 383)
   Birdsong, Judge.

Perry Bacon, as Superintendent of Bryan County School Systems, sued Dr. Sallie Brewer seeking to have declared null and void a contract of employment executed by Dr. Brewer with the Board of Education, nominating and appointing herself as principal of Bryan County High School for January 1, 1989, for the 1989-1990 school year. Dr. Brewer had lost her re-election bid for school superintendent. Prior to expiration of her term on December 31, 1988, she nominated herself to fill the vacant principal’s job and was then duly elected by the school board, which included Perry Bacon, the plaintiff herein.

Plaintiff Bacon sued as next and current superintendent of Bryan County schools, filed this suit in superior court to have that employment contract declared null and void; and to recapture salary payments made under it. This appeal is from the superior court’s dismissal of Mr. Bacon’s suit on grounds that this is a “local controversy” involving the application of school law within the meaning of OCGA § 20-2-1160, and that Bacon was first required to exhaust administrative remedies contained in that Code section. Held:

Appellant Bacon contends this case is a matter for the courts and not a “local controversy” within the meaning of OCGA § 20-2-1160, in principle because of the high position of trust held by public officials and the “gross abuse of power and display of conflict of interest [in this case] so as to require the Superior Court of Bryan County to take jurisdiction of this matter and to declare the noted contracts void and against public policy.” Appellant cites as authority no case on point or statute which excepts this case from § 20-2-1160.

OCGA § 20-2-1160 (a) provides: “Every county, city, or other independent board of education shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summon witnesses and take testimony if necessary.” The remainder of § 20-2-1160 sets forth in detail the rules of procedure, hearing, and determination, and provides for appeal to the superior court.

The term “local controversy” refers to matters of controversy pertaining or existing within one local school board as discreet from other school boards. The remedy provided by § 20-2-1160 is the “legal remedy” for such controversies, and is authorized in inception by Art. VIII, Sec. V, Pars. I & II of the Georgia Constitution. Patterson v. Boyd, 211 Ga. 679 (87 SE2d 861). The courts will not preempt this administrative remedy in the first instance except as a matter of equity where it is necessary to prevent irreparable injury, or where equity alone can grant adequate relief; the courts of equity will not interfere until and unless the administrative remedy has been exhausted and has failed to eliminate the violation of law or the gross abuse of discretion which is its equivalent, and this by way of appeal only. Bedingfield v. Parkerson, 212 Ga. 654 (94 SE2d 714).

Appellant Bacon has shown no basis to conclude that the administrative remedy could not resolve this controversy, including construction of the employment contract and determinations of fact and matters of hiring and firing and payment of salary. This being a controversy that affects only the administration of the local board of education, and not others, appellant was required to follow the legal remedy set up for the resolution of such internal controversy in § 20-2-1160.

Decided June 25, 1990.

Jack E. Carney, Jr., for appellant.

Lee & Clark, James M. Thompson, Mark A. Bradley, for appellee.

Moreover, the trial court, having heard the matter, did not find any basis upon which to conclude that the legal remedy provided by § 20-2-1160 was inadequate, and we find no abuse of discretion in this finding. Accordingly, appellant is recommended to the procedure set out by the legislature to resolve any remaining disputes such as repayment of salary.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Deen, Presiding Judge.

text:
    A90A1318.
    BRYANT v. THE STATE.
    (395 SE2d 385)
   Deen, Presiding Judge.

The appellant, Pruitt Bryant, was convicted of simple battery and false imprisonment. On appeal, he contends that the evidence was insufficient to support the conviction for false imprisonment, and that the trial court erred in denying his motion for mistrial during the State’s closing argument.

1. The victim testified about how Bryant forcibly entered her house when she refused to open the door for him, and how Bryant physically pulled her back into the house when she tried to escape out the front door. During the incident, Bryant also pushed the victim down and lay on top of her for a moment. This evidence authorized a rational trier of fact to find Bryant guilty beyond a reasonable doubt of false imprisonment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. During closing argument for the State, defense counsel objected to the prosecutor’s argument that the victim was lucky still to be alive, and moved for mistrial. The trial court sustained the objection and instructed the jury to disregard the comment, but denied the motion for mistrial, and defense counsel did not renew the motion. Failure to do so constituted waiver of that objection. Callahan v. State, 179 Ga. App. 556 (5) (347 SE2d 269) (1986).

Judgment affirmed.

Pope, J., concurs. Beasley, J., concurs in Division 1 and in the judgment.

Decided June 25, 1990.

William J. Mason, for appellant.

Douglas C. Pullen, District Attorney, J. Mark Shelnutt, Assistant District Attorney, for appellee.


author: Cooper, Judge.

text:
    A90A0193.
    WELLS v. THE STATE.
    (395 SE2d 296)
   Cooper, Judge.

Appellant, convicted by a jury for possession of marijuana, cocaine and pethidine, appeals her conviction and sentence and the denial of her motion to suppress. Appellant raises five enumerations of error.

1. Appellant first contends that the trial court erred in denying her motion to suppress because the search warrant was invalid. The search warrant which the Clayton County Narcotics Unit used to search appellant’s apartment specified the address to be searched as “990 Battlecreek Road, Building #12, Apartment #1210, Jonesboro, Clayton County, Georgia.” This address appeared in the first section of the warrant but was omitted in a later section where a line calling for a description of the premises was left blank. The premises to be searched was an apartment in the Chase Lake Apartment complex, and an investigating officer testified that he prepared the warrant based upon an inquiry to the water department which revealed the address of such apartments to be 990 Battlecreek Road. The appellant testified that her address was 1210 Chase Lake Drive and that she had not seen the designation “990” on Battlecreek Road. Other testimony revealed the existence of a similar apartment complex adjacent to the Chase Lake Apartments, also on Battlecreek Road. There was no evidence presented to refute the fact that one address used for the Chase Lake Apartments is 990 Battlecreek Road. The affidavit supporting the warrant did contain a designation of Chase Lake Apartments in the address, however the officer testifying at the motion to suppress hearing stated that he did not know if the officers executing the warrant had read the affidavit.

“ ‘To be valid, a search warrant must contain a description of the . . . premises to be searched with such particularity as would enable a prudent person executing the warrant to locate the . . . premises definitely and with reasonable certainty. [Cit.]’ ” Anderson v. State, 155 Ga. App. 25 (270 SE2d 263) (1980). There being no evidence to show that the address stated in the warrant was incorrect, “the trial court did not abuse its discretion in holding, in substance, that . . . the officer could ‘ascertain and identify the place intended.’ [Cit.]” Martin v. State, 165 Ga. App. 760 (302 SE2d 614) (1983). The omission of the address in the body of the warrant did not affect its validity and did not authorize suppression of the evidence. Latimer v. State, 134 Ga. App. 372 (1b) (214 SE2d 390) (1975). In producing the warrant, the supporting affidavit and the other evidence offered, the State met its burden to show that the search and seizure were lawful. See State v. Slaughter, 252 Ga. 435, 439 (315 SE2d 865) (1984).

2. Appellant’s contention that the trial court erred in admitting her confession into evidence is without merit. In the Jackson v. Denno hearing, the prosecution was required to show by a preponderance of the evidence that the confession was voluntarily made. Riley v. State, 257 Ga. 91 (1a) (355 SE2d 66) (1987). The State showed that the appellant made her confession after being read her rights and after stating that she understood her rights. Two witnesses indicated that her confession appeared to be given freely and voluntarily, and evidence that the appellant was scared and crying does not affect the voluntariness of the confession. “After a careful review of the evidence submitted to the trial judge here, we feel that his determination was not clearly erroneous, and that the confession was properly admitted into evidence.” High v. State, 233 Ga. 153 (1) (210 SE2d 673) (1974).

3. In her third enumeration, appellant asserts that the trial court erred in denying her motion for a directed verdict based on the equal access rule. The drugs seized were found in appellant’s bedroom and bathroom — the marijuana was between towels under the master bathroom sink, the cocaine and drug paraphernalia were found in a box inside another box on a top shelf in the master bedroom closet, and the pethidine was found on a nightstand in appellant’s bedroom. Appellant presented testimony that people were “in and out” of her apartment and that other people had access to her bedroom area. “The equal access rule applies to contraband that is for the most part in ‘open, notorious and easily accessible areas.’ [Cit.]” Wright v. State, 154 Ga. App. 400 (1) (268 SE2d 378) (1980). “The totality of the evidence was sufficient to connect the [appellant] to the possession of the drugs . . . ,” (Pamplin v. State, 164 Ga. App. 610 (1) (298 SE2d 622) (1982)) and the trial court was not in error to deny the directed verdict.-

4. Considering appellant’s voluntary confession, the location of the evidence seized and a witness’ testimony that she had bought cocaine from appellant, we find the evidence was sufficient to sustain a finding of guilt by a rational trier of fact beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

5. Appellant’s fifth enumeration that her character was erroneously placed into evidence is asserted without success. In response to the prosecution’s questions, appellant testified that on a separate occasion the Clayton County Narcotics Unit came to her apartment asking for narcotics, but appellant denied trying to sell drugs to the agents. Any error which occurred was harmless to the appellant since she denied any wrongdoing and since the matter was not pursued by the prosecution. See Terry v. State, 190 Ga. App. 570 (2) (379 SE2d 604) (1989). Further, “ ‘ “[i]n the absence of a demonstration that a mistrial was essential to preservation of [appellant’s] right to a fair trial, it is not an abuse of discretion to deny a motion for a mistrial even where no curative instructions were given.’” [Cit.]” Shivers v. State, 188 Ga. App. 21 (4) (372 SE2d 2) (1988).

Decided June 1, 1990

Rehearing denied June 27, 1990 — Cert, applied for.

Gale W. Mull, for appellant.

Robert E. Keller, District Attorney, Gregory K. Hecht, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Beasley, Judge. Deen, Presiding Judge,

text:
    A90A0474.
    COURSEY v. THE STATE.
    (395 SE2d 574)
   Beasley, Judge.

Defendant appeals his convictions of burglary, OCGA § 16-7-1, possession of a firearm by a convicted felon, OCGA § 16-11-131, financial transaction card theft, OCGA § 16-9-31, and giving a false name to a law enforcement officer, OCGA § 16-10-25.

1. Despite defendant’s contention otherwise, the evidence was sufficient to authorize his conviction for burglary and firearm possession under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Defendant was identified by one of the occupants of the burglarized house as being immediately outside in the driveway after she discovered her home had been broken into. He was also identified as a perpetrator by a female companion who owned the car that he, the companion, and a codefendant fled in, pursued by the police. After wrecking the car, defendant and his codefendant fled on foot and were captured when found hiding behind a house. The car contained all the items missing from the burglarized house, including a 12-gauge shotgun. When searched defendant was found in possession of two stolen credit cards not in his name.

Although the shotgun was not in defendant’s immediate possession, the evidence authorized a finding that defendant was a party to the crime, OCGA §§ 16-2-20 and 16-2-21, and he and his codefendant were co-conspirators. The act of either was the act of the other and each is as fully responsible for the act of the other as if he had committed that act. Smith v. State, 142 Ga. App. 810, 811 (3) (237 SE2d 216) (1977); Painter v. State, 237 Ga. 30, 34 (226 SE2d 578) (1976). Regardless of which defendant actually took the shotgun, defendant, being responsible for his codefendant’s act, was in possession of the firearm in violation of the penal provision. Bogan v. State, 177 Ga. App. 614, 616 (2) (340 SE2d 256) (1986); Green v. State, 187 Ga. App. 373, 374 (2) (370 SE2d 348) (1988).

2. The second enumeration of error is that the State failed to prove venue as to the financial transaction card theft.

The indictment brought in Gwinnett County alleged in counts three and four that defendant “did then and there unlawfully and knowingly obtain, without the consent of the cardholder” a described financial transaction card. The victim who lived in Union City, which is not in Gwinnett County, reported the two cards as stolen from her apartment. Defendant testified he found the two cards in a wallet which he came across in Union City. In his flight after the burglary defendant crossed from Gwinnett County into DeKalb where he was arrested. It was there he was found to be in possession of the two cards. The cards were not utilized from the time they were reported stolen on Monday until defendant’s capture on early Wednesday morning.

Under OCGA § 16-9-31 (b), “taking, obtaining, or withholding a financial transaction card without consent of the cardholder” is a criminal offense. There was proof that defendant withheld the cards in Gwinnett, see Thomas v. State, 176 Ga. App. 771 (337 SE2d 344) (1985), but defendant was charged only with unlawfully “obtaining” the cards.

While immaterial allegations in an indictment need not be established, the essential ones must be proved. DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) (1969). Furthermore, where an offense may be committed in one of several ways and defendant is charged generally in the language of the Code he may be convicted upon a showing that the offense was committed in one of the ways set forth in the indictment. But when the charge is one specific method, then only proof that the offense was committed that way will sustain a verdict. Otherwise there is a fatal variance. Walker v. State, 146 Ga. App. 237, 244 (2) (246 SE2d 206) (1978); Evans v. State, 138 Ga. App. 620, 621 (1) (227 SE2d 448) (1976).

The State’s election to indict defendant for committing an offense in a specified way bound it to prove that particular manner. Griffin v. State, 168 Ga. App. 696, 699 (4) (310 SE2d 278) (1983). The testimony showed that the cards were taken or obtained in a county other than Gwinnett and there was no evidence that defendant obtained the credit cards in Gwinnett County.

Although slight evidence of venue is sufficient, Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988), there was none here. See Miller v. State, 174 Ga. App. 42, 44 (3) (329 SE2d 252) (1985). The convictions of financial transaction card theft must be reversed for insufficient evidence. Bush v. Chappell, 225 Ga. 659, 660 (2) (171 SE2d 128) (1969).

3. The next question is whether the trial court clearly charged the jury concerning its authority to convict one defendant and acquit the other.

An examination of the trial court’s instructions reveals that the court did repeatedly charge distinctly that each was to be considered separately. Compare Lanzo v. State, 187 Ga. App. 616, 619 (4) (371 SE2d 119) (1988).

4. Defendant’s assignment of error on the court’s charge on flight is without merit. Rozier v. State, 259 Ga. 399, 401 (5) (383 SE2d 113) (1989).

5. After the filing of enumerations of error and brief by his counsel, defendant filed a pro se brief and included additional enumerations of error.

Neither our State Constitution, see Ga. Const. 1983, Art. I, Sec. I, Par. XII, nor the Federal Constitution provides defendant with a right to simultaneous representation by counsel and self-representation. Smith v. State, 194 Ga. App. 327 (390 SE2d 304) (1990); Cargill v. State, 255 Ga. 616, 622 (3) (340 SE2d 891) (1986). Thus, we do not consider those errors raised or arguments made by defendant himself. He is obliged to bring them to the attention of his counsel in a timely manner for counsel’s consideration and incorporation in the enumerations of error and brief if counsel deems them worthy and appropriate.

The judgment must be reversed as to counts three and four, financial transaction card theft, and affirmed as to the remaining counts.

Judgment affirmed in part and reversed in part.

Carley, C. J., Banke, P. J., Birdsong, Sognier and Cooper, JJ., concur. Deen, P. J., McMurray, P. J., and Pope, J., concur in part and dissent in part.

Deen, Presiding Judge,

concurring in part and dissenting in part.

While concurring fully with Divisions 1, 3, 4, and 5 of the majority opinion, I disagree with the reversal of the conviction for financial transaction card theft in Division 2. Specifically, I dispute the majority opinion’s finding that the State had not proven venue.

At trial, it was never clearly stated in which county the appellant actually obtained the charge cards. Although the majority opinion states that the appellant obtained the cards in Union City and that Union City is not in Gwinnett County, and defense counsel states that the location was Union City, Clayton County, the witnesses only testified that it was Union City. In either event, if the State were confined to proving the offense by showing the obtaining of the charge cards, venue was not shown to be proper in Gwinnett County.

Decided May 31, 1990

Rehearing denied June 27, 1990 — Cert, applied for.

Michael M. White, for appellant.

Rickey D. Coursey, pro se.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

However, I do not view the instant case to be one where the State elected to charge one form of financial transaction card theft, but proved at trial an alternate form of the offense. OCGA § 16-9-31 (a) provides four different ways a person may commit the offense of financial transaction card theft. OCGA § 16-9-31 (a) (1) is but one of those alternatives, and provides that the offense may be committed by taking, obtaining, or withholding a financial transaction card without the cardholder’s consent. The gravamen of this subsection is that possession of a financial transaction card without the cardholder’s consent is prohibited; this subsection does not clearly define separate and alternate types of financial transaction card theft. Compare Walker v. State, 146 Ga. App. 237 (246 SE2d 206) (1978). Since it is undisputed that the State did show the appellant’s unauthorized possession of the charge cards during the chase across Gwinnett County, venue was proven, and the appellant’s conviction for financial transaction card theft should be affirmed.

I am authorized to state that Presiding Judge McMurray and Judge Pope join in this opinion.


text:
    A90A0097.
    CITY OF COLLEGE PARK v. BATSON-COOK COMPANY.
    (395 SE2d 385)
   Cooper, Judge.

This appeal is from an order denying appellant’s motion to vacate or modify an arbitration award and granting appellee’s motion to confirm the award. The sole enumeration of error is that the arbitration panel overstepped its authority in making the award.

In April 1984, appellant and appellee entered into a guaranteed maximum cost contract for the construction of a convention center to be completed in March 1985. The contract was an American Institute of Architects Standard Form of Agreement between Owner and Contractor, which included an arbitration clause requiring all claims and disputes between the contractor and owner to be decided by arbitration. The contract provided, in relevant part, that the guaranteed maximum cost to the owner would not exceed the sum of $9,406,000; that costs in excess of the guaranteed maximum cost would not be reimbursed; that changes in the contract sum could be changed only by change order, which is a written order to the contractor signed by the owner and the architect, issued after the execution of the contract, authorizing a change in the work or an adjustment; and, that if the contractor wished to make a claim for an increase in the contract sum, written notice should be given to the architect within 20 days after the occurrence of the event giving rise to such claim. After the project was substantially completed, appellee originally submitted a claim for an increase in the project cost of approximately 1.4 million dollars over the guaranteed maximum cost. When the claim was denied, appellee filed a demand for arbitration claiming over 1.2 million dollars in excess costs. Appellant filed a declaratory judgment action in the Superior Court of Troup County on the ground that the dispute was not subject to the arbitration clause of the contract. That court denied appellant’s request for declaratory relief, concluding that the claim was subject to arbitration, and the Supreme Court of Georgia affirmed without opinion.

At the arbitration hearing, appellant argued that the increase should not be allowed because appellee did not comply with the terms of the contract requiring that written notice be given of any claim for an increase in the contract sum and the requirement that change orders be submitted. Appellee presented evidence that all changes which increased the project cost were made by authorized officials of appellant and that appellant agreed to wait until the project was completed to resolve the increases and further argued that appellant waived the requirement regarding the submission of change orders. The arbitration panel awarded appellee slightly less than the full amount claimed in the increase, and the award was appealed to the Superior Court of Fulton County. The trial court, after examination of the record, confirmed the award, finding that it was within the range of the evidence and that there was no evidence that the terms of the contract or the applicable law were ignored by the arbitrators.

The Supreme Court of Georgia having determined that appellee’s claim was properly the subject of arbitration, we address appellant’s argument that the trial court erred in failing to vacate the award because the award was manifestly against applicable law and the arbitrators overstepped their authority in making the award. OCGA § 9-9-93 (b) (3) provides that an arbitration award shall be vacated if the court finds that the rights of the party making the application were prejudiced by “an overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made.” Appellant argues that the arbitrators overstepped their authority by ignoring the provisions of the contract regarding the giving of written notice of increases in the contract sum and the submitting of authorized change orders. “The function of the trial court in proceedings to confirm or vacate an arbitration award should be severely limited in order not to frustrate the purpose of avoiding litigation by resorting to arbitration.” Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232 (4) (335 SE2d 708) (1985). The dispute between the parties involved the meaning, interpretation and application of certain terms of the contract and these were matters for the arbitrators to determine. See United Steelworkers of America v. American Mfg. Co., 363 U. S. 564, 567-569 (80 SC 1343, 4 LE2d 1403) (1960); ADC Constr. Co. v. McDaniel Grading, 177 Ga. App. 223 (3) (338 SE2d 733) (1985). The arbitrators having resolved the dispute in favor of appellee, the trial court considered the record of the arbitration proceedings and determined that neither the contract terms nor the applicable law had been ignored by the arbitrators. Our review of the record reveals no error in the trial court’s ruling.

Decided June 27, 1990.

Glaze, Fincher & Bray, George E. Glaze, Gary H. Brakefield, for appellant.

Glover & Davis, J. Littleton Glover, Jr., for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Beasley, Judge.

text:
    A90A0250.
    GIBBS v. THE STATE.
    (395 SE2d 387)
   Beasley, Judge.

Defendant, convicted of two counts of rape, OCGA § 16-6-1 (a), appeals, contending that the court improperly refused to allow him to thoroughly cross-examine the teenage victim.

Viewed in favor of the verdict, the evidence was that Gibbs lived with the victim and 8 to 10 other people. According to the victim and corroborating witnesses, the first rape occurred in October 1987 and the second on January 16, 1988. The victim’s father took her to the hospital on January 19, but the doctor’s exam produced inconclusive findings.

1. Gibbs introduced no evidence. Instead, he sought to impeach the victim through her cross-examination, plus that of the doctor to the effect that she said Gibbs raped her on additional occasions. The court conducted an in camera hearing and disallowed this evidence based on OCGA § 24-2-3 (the Rape Shield Statute). It provides in subsection (a) that “evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section.”

Subsection (b) provides that “[i]n any prosecution for rape, evidence relating to the past sexual behavior of the complaining witness may be introduced if the court . . . finds that the past sexual behavior directly involved the participation of the accused or finds that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of . . . ,”

Despite repeated inquiries by the court, Gibbs disavowed any intent to invoke consent as a defense. He further denied that he had ever had sexual relations with the victim. His sole intention was to “attack the credibility of the victim,” to cause a reasonable doubt that the incidents in the indictment even happened.

The Rape Shield Statute limits inquiries or suggestive innuendoes concerning the sexual background of the rape victim absent compliance with its terms. It represents “the exclusive means for admitting evidence relating to the past sexual behavior of the complaining witness. . . . The res gestae rule, impeachment techniques and other traditional means for introducing evidence which is otherwise inadmissible can have no effect in this situation.” Johnson v. State, 146 Ga. App. 277, 280 (246 SE2d 363) (1978); Veal v. State, 191 Ga. App. 445, 447 (4) (382 SE2d 131) (1989).

Gibbs denied both alternative prerequisites of the statute, i.e., that he had ever had sexual relations with the victim or that he did but she consented. See Marks v. State, 192 Ga. App. 64 (2) (383 SE2d 626) (1989). His proffer indicated only that she might have said defendant raped her also on occasions other than the two charged. Rape is not consensual sexual behavior, which is what the statute alludes to. Moreover, it is not clear how such evidence would have aided defendant.

The proffer also failed to show how the evidence would impeach the victim. Haynes v. State, 180 Ga. App. 202, 203 (3) (349 SE2d 208) (1986). Despite Gibbs’ argument, the present case is dissimilar from Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158) (1989), cert. denied, _U. S._ (110 SC 88, 107 LE2d 53) (1989) which involved prior false accusations by the victim against other men. Here, there was no indication that the victim was lying about the other incidents of rape by Gibbs. In fact, such evidence would have been admissible as proof of guilt rather than innocence. See, e.g., Felker v. State, 252 Ga. 351, 359 (1) (314 SE2d 621) (1984), for the principles pertaining to the admissibility of other criminal acts.

2. The enumeration dealing with the examining doctor’s recollection of the victim’s reference to more than two rapes by Gibbs is controlled by Division 1.

3. Defendant enumerates that the court’s failure to allow him to cross-examine the victim with regard to sexual acts with males other than defendant and the fact that she was “quite possibly pregnant” when she went to the doctor violated his federal Sixth Amendment right to confrontation. He cites Olden v. Kentucky, 488 U. S. 227 (109 SC 480, 102 LE2d 513) (1988).

Defendant did not specifically invoke the Sixth Amendment right during the in camera hearing or otherwise. He argued only that such evidence was relevant to the victim’s credibility and not precluded by the Rape Shield Statute. Those are the only grounds which will be considered. Prince v. State, 257 Ga. 84, 86 (3) (355 SE2d 424) (1987). The statute has previously been held constitutional and not violative of the Sixth Amendment. Harris v. State, 257 Ga. 666 (1) (362 SE2d 211) (1987).

The only proffer made by defendant concerning the possible pregnancy as a motive for lying was counsel’s mere statement. The court did not err in finding that unavailing for purposes of meeting the requirements of the statute. As reflected on the statute’s face, whether the evidence is introduced on direct or cross-examination, defendant must first satisfy one of the statute’s alternative prerequisites.

Olden, supra, does not require a different result. There, consent was an issue and cross-examination about the victim’s motive to deny consent, after defendant made a proffer which did directly contradict her prior testimony as to her living arrangements, was held to be reasonable cross-examination. The court noted that the right to cross-examine is not absolute and that a trial court may impose reasonable limits to take account of such factors as “ ‘harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that (would be) repetitive or only marginally relevant[.]’ Delaware v. Van Arsdall, [475 U. S. 673] at 679, 89 LE2d 674, 106 SC 1431.” Olden, supra at 232.

4. The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); McNeese v. State, 170 Ga. App. 118 (1) (316 SE2d 564) (1984).

Decided June 27, 1990.

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Constance C. Russell, Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

       This disjunctive provision was amended by Ga. L. 1989, p. 272. The statute now requires both that the past behavior involved the accused and that the accused could have believed the victim consented.


text:
    A90A0522.
    LAGOUEYTE v. ROCKET EXPRESS.
    (395 SE2d 389)
   Pope, Judge.

Plaintiff Natalie Lagoueyte appeals the grant of summary judgment to defendant Rocket Express in this automobile collision case. Vehicles driven by Lagoueyte and co-defendant Garry Bonney collided on June 10, 1988. Bonney was driving a truck leased to Rocket Express under a contract between it and Albert Parker d/b/a Parker Trucking. Bonney was directly employed by Parker. At issue on appeal is whether the record shows a genuine issue of fact regarding Parker’s status as an independent contractor. Held:

The contract between Parker and Rocket Express leased certain vehicles to Rocket and in paragraph 4 gave Parker “full operating authority over the use of the leased vehicle and . . . complete discretion in the manner and method utilized in making delivery of the property given to [Parker] by [Rocket] for delivery. That [Parker], operating as an independent contractor, shall be fully and completely responsible for all loss and damage, both personal injury and property damage, as a result of the operation of any motor vehicle by [Parker], [his] agents, servants or employees.” Lagoueyte does not dispute that the contract sets out that Parker is to be an independent contractor of Rocket Express. “Where the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed . . . control [over the time, manner and method of executing the work]. [Cit.]” American Family Life Assur. Co. v. Welch, 120 Ga. App. 334, 339 (170 SE2d 703) (1969). “The test to be applied in determining whether the relationship of the parties under the contract for performance is that of master and servant or that of employer and independent contractor lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity with the contract.” (Citations and punctuation omitted.) Spell v. Port City Adhesives, 183 Ga. App. 816, 817 (360 SE2d 63) (1987). Lagoueyte argues the evidence in the record shows that Rocket Express did assume control to the extent that it would be liable under the theory of respondeat superior.

In opposition to the motion for summary judgment by Rocket Express, Lagoueyte submitted an affidavit by Parker. In the affidavit he stated that Rocket Express had exclusive use of the leased vehicles, that it obtained all relevant permits and licenses to operate the vehicles, that Rocket Express maintained the authority to fire the drivers and had done so, that Rocket Express had an implicit right to designate the use of particular vehicles for particular tasks and that it had done so. Parker also averred that Rocket Express could designate the route the trucks would travel, that it maintained liability insurance on the trucks and that the truck involved in the accident was on dispatch from Rocket Express at the time of the accident.

At his deposition, counsel for Rocket Express questioned Parker about his affidavit. Rocket Express argues that Parker’s deposition testimony clearly repudiates his earlier “conclusory” affidavit and establishes that he was an independent contractor. The record does not support this argument. In deposition, Parker was asked, “You do have control to determine who is going to make a particular delivery, correct?” He replied, “Well, yes, I can do that, unless they [Rocket Express] request something different.” Parker also testified that he could not hire drivers to run freight for Rocket Express until the driver was approved by Rocket Express and that it had terminated more than one of his drivers or, “as [Rocket Express] callfed] it, disqualified them.” Bonney, the driver at the time of this incident, had been approved by Rocket Express. Further, Parker’s testimony showed that Rocket Express always maintained control over which of his drivers could drive for him under the contract. As Parker stated, if he sent a driver to Rocket Express, as far as Parker was concerned, the driver was okay, but the head of safety for Rocket Express would check references, give him a written test and a road test and make a decision whether to approve or disapprove his hiring. The whole tenor of the deposition is that Rocket Express controlled who drove the trucks leased to it and that Parker believed they had the authority to designate the equipment to be used. Further, Parker testified that what he said in his affidavit is true.

Given this record, the grant of summary judgment was improper. Genuine issues of fact remain regarding whether, in spite of the language of the contract, Rocket Express assumed control of Parker’s employees in the performance of the tasks associated with the contract. We do not find persuasive Rocket Express’ argument that because it could only “disqualify” Parker’s drivers and could not terminate them from his employ, Parker and his employees remained independent contractors of Rocket Express.

Decided June 27, 1990.

James A. Goldstein, Dennis J. Redic, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Douglas A. Wilde, R. Michael Ethridge, Robert W. Browning, for appellee.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.