author: Andrews, Chief Judge. Blackburn, Judge,

text:
    A97A2311.
    DICKS v. ZURICH AMERICAN INSURANCE COMPANY.
    (499 SE2d 169)
   Andrews, Chief Judge.

This is the second appearance of this case before us. In Zurich American Ins. Co. v. Dicks, 220 Ga. App. 725 (470 SE2d 279) (1996), this Court held by a vote of 6-3, that Dicks had a common law cause of action against Zurich based on “physical injury flowing from and being caused by wilful and wanton misconduct of an insurer in refusing to make payments” and that this cause of action was not barred by the exclusive remedy provision of the Workers’ Compensation Act.

No application for certiorari was filed by Zurich and the remittitur was filed in the trial court on April 25, 1996. Thereafter, Zurich obtained new counsel who filed a motion for continuance of trial based on the question certified to the Supreme Court by the federal Eleventh Circuit Court of Appeals in Doss v. Food Lion, 83 F3d 378, 380 (11th Cir. 1996).

In Doss v. Food Lion, 267 Ga. 312 (477 SE2d 577) (1996), issued November 12, 1996, the Supreme Court held that “[bjecause the Act provides penalties for intentional delays in treatment and allows for compensation for exacerbated injuries, and because an independent cause of action is inconsistent with the public policy behind the statutory scheme, we answer the question in the negative.” Further, that court specifically overruled Zurich, supra.

Zurich filed its motion to dismiss Dicks’ case, based on Doss, on December 6, 1996. By order of January 24, 1997, the trial court denied that motion, concluding that this Court’s opinion constituted the law of the case under OCGA § 9-11-60 (h). A certificate of immediate review of that order was denied by this Court on January 29, 1997.

On April 7, 1997, the trial court, without further explanation, vacated its earlier order and dismissed Dicks’ case, resulting in this appeal.

OCGA § 9-11-60 (h) provides that “[t]he law of the case rule is abolished; . . . provided, however, that any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.”

There is no contention here that the evidentiary posture of this case has changed so as to fall within that exception to the law of the case rule. Lowman v. Advanced Drainage Systems, 228 Ga. App. 182 (491 SE2d 427) (1997); May v. Macioce, 200 Ga. App. 542, 544 (409 SE2d 45) (1991).

Instead, this case is factually similar to and controlled by Navistar Intl. Transp. Corp. v. Ogletree, 199 Ga. App. 699, 700 (1) (405 SE2d 884) (1991). There, this Court’s ruling in Ogletree v. Navistar Intl. Transp. Corp., 194 Ga. App. 41 (390 SE2d 61) (1989) was favorable to the plaintiff Ogletree, reversing summary judgment to Navistar because there had been no showing that Ogletree had “actual knowledge” of an open and obvious danger in this products liability/ negligence action. Thereafter, in an unrelated case, Weatherby v. Honda Motor Co., 195 Ga. App. 169 (393 SE2d 64) (1990), this Court overruled the rationale of Ogletree, finding that actual knowledge was not an element of the open and obvious rule and concluding that Ogletree was “predicated upon significant errors of law.” Weatherby, supra at 170.

Nonetheless, this Court reaffirmed the law of the case rule, relying on four Supreme Court cases including Southern Bell Tel. &c. Co. v. Glawson, 140 Ga. 507 (79 SE 136) (1913), and found that the trial court and appellate courts are bound by the earlier ruling in the case before it. “ ‘The principle in the decision may be reviewed and overruled in another case between different parties, but as between the parties the decision stands as the law of the case, even though the ruling has been disapproved . . . before the second appearance of the case in that court.’ [Cits.]” Navistar, supra; Lowman, supra; McLean v. Continental Wingate Co., 222 Ga. App. 805, 807 (1) (476 SE2d 83) (1996) (physical precedent); Fulton-DeKalb Hosp. Auth. v. Walker, 216 Ga. App. 786, 787 (1) (456 SE2d 97) (1995) (whole court).

Similarly here, Zurich, supra, is the law of the case as between Zurich and Dicks and the trial court’s dismissal of the case is reversed.

Zurich relies heavily on Hart v. Eldridge, 163 Ga. App. 295 (293 SE2d 550) (1982) {Hart II). As pointed out in Navistar, supra, however, the facts of Hart are distinguishable because, as here, Navistar involved “application and interpretation of the common law, [while] Hart involved the interpretation of a statute which, in the interim between the two appearances of the case before this court, was interpreted differently by the Georgia Supreme Court. More importantly, on certiorari of our holding in Hart to the Supreme Court, the Supreme Court expressly did not address the issue of whether this court’s opinion violated the law of the case rule because, as the court noted, its opinion reversing this court’s second ruling effectively restored our initial ruling. See Hart v. Eldridge, 250 Ga. 526 (299 SE2d 560) (1983) {{Hart III)]. Thus, even in Hart, the law of the case effectively prevailed.” Navistar, supra at 700 (1).

It is also noteworthy that, except in Hart III and Navistar, Hart II has not been relied on by either this Court or the Supreme Court regarding the law of the case rule.

Here, there has been no change in the operative workers’ compensation statute, but, for reasons of policy related to that statute, the Supreme Court has abolished the common law cause of action established in Zurich American Ins. Co., supra.

Nonetheless, that common law cause of action still prevails in “all subsequent proceedings in that case in the lower court” (Emphasis supplied.) OCGA § 9-11-60 (h). Such a holding does no offense to the Constitution’s mandate that “[t]he decisions of the Supreme Court shall bind all other courts as precedents[,]” Ga. Const. 1983, Art. VI, Sec. VI, Par. VI, in light of this statutory language, as fully discussed in Southern Bell, supra at 508 (1).

Judgment reversed.

Birdsong, P. J, Beasley, Johnson and Ruffin, JJ., concur. McMurray, P. J., Pope, P. J., Blackburn, Smith and Eldridge, JJ., concur specially.

Blackburn, Judge,

concurring specially.

This case is controlled by our Supreme Court’s holding in Southern Bell Tel. &c. Co. v. Glawson, 140 Ga. 507 (79 SE 136) (1913). Glawson involved a situation where the Supreme Court overruled a principle of law established in a Court of Appeals decision, although it apparently did not specifically overrule the case by name. As Glawson makes clear, where the Supreme Court, in a different case, overrules the principle of law contained in a decision of this Court, such decision nevertheless remains binding on the parties and on this Court in subsequent appearances of that same case. The majority is therefore correct that the “law of the case rule” applies herein and that our prior decision remains the law of the case. I write separately, however, to urge that this Court overrule Hart v. Eldridge, 163 Ga. App. 295 (293 SE2d 550) (1982), because it is in direct conflict with Glawson.

In Hart, a decision of this Court was expressly repudiated by the Supreme Court in a separate action. When the case appeared before this Court a second time, we held that our earlier decision no longer remained the law of the case following its repudiation by the Supreme Court. We held that “the pronouncement of the highest court in our state that the rule of law relied upon by this court was incorrect and would not be followed effectively became ‘law of the case.’ ” Id. at 298 (1). The Hart opinion did not mention the Supreme Court’s decision in Glawson.

In Glawson, the Supreme Court in another case overruled a principle of law without overruling our case which had applied the subject principle. Whereas in Hart, rather than simply overruling the principle outlined therein, it expressly refused to follow the holding in Hart. This factual difference, however, does not authorize distinguishing Hart from Glawson to avoid overruling Hart.

Where the Supreme Court overrules a decision of this Court in a separate action between different parties, the effect of such holding is simply to preclude the use of such case as authority in any future case. It is only where the Supreme Court has jurisdiction of the overruled case itself that the decision becomes the law of the case in that case. Therefore, the effect is the same where, in a later case, the Supreme Court overrules a decision by name or by simply overruling the principle of law contained therein. In either circumstance, the Supreme Court’s holding does not become the law of the overruled case. Thus, it is apparent that Hart was wrongly decided and should be overruled.

The majority, in refusing to overrule Hart, contends that it is distinguishable because this case “involve[s] ‘application and interpretation of the common law, (while) Hart involved the interpretation of a statute which, in the interim between the two appearances of the case before this court, was interpreted differently by the Georgia Supreme Court.’ ” Majority opinion at 450, quoting Navistar Intl. Transp. Co. v. Ogletree, 199 Ga. App. 699, 700 (1) (405 SE2d 884) (1991).

The majority offers no explanation why such a distinction is significant, and no basis for such distinction can be found in Glawson. Moreover, the supposed distinction is factually incorrect. Our earlier decision in this case and the Supreme Court’s decision overruling it were both founded upon the interpretation of a statute, the Workers’ Compensation Act, and not merely upon application and interpretation of the common law.

In Doss v. Food Lion, 267 Ga. 312, 313 (1) (477 SE2d 577) (1996), the Supreme Court held that the exclusivity provisions of the Act preclude an independent cause of action for intentional delay in authorizing treatment. Doss, supra at 312-313 (1). Contrary to the majority’s contention, the Supreme Court’s decision in Doss was not based on mere “policy” considerations “related” to the statute, but on its interpretation of the effect of the exclusivity provisions of the Act, an interpretation contrary to that of this Court in our earlier opinion in this case. Id. Thus, as in Hart, this case involves “interpretation of a statute which, in the interim between the two appearances of the case before this court, was interpreted differently by the Georgia Supreme Court.” Majority opinion at 450, quoting Navistar, supra.

Hart is indistinguishable from the facts of the present case and, if Hart is valid, we would be compelled to hold that our earlier decision in this case is no longer the law of the case because our Supreme Court has expressly repudiated its holding. This would then require us to reject our Supreme Court’s holding in Glawson, which we have no authority to do.

Decided March 20, 1998

Jeffrey W. Frazier, for appellant.

Hawkins & Parnell, Michael J. Goldman, for appellee.

Therefore, we are obligated to overrule Hart.

I am authorized to state that Presiding Judge McMurray, Presiding Judge Pope, Judge Smith and Judge Eldridge join in this special concurrence.

       The writer, along with Judge Blackburn, joined in the dissent of Judge Ruffin.

       We reject the argument made by Zurich that it was not permitted to apply for a writ of certiorari in Zurich, supra, pursuant to Supreme Court Rule 40 which states that “review on certiorari is not a right. A petition for the writ will be granted only in cases of great concern, gravity, and importance to the public. Subject to the foregoing, certiorari will not be granted: ... (2) Where the Court of Appeals has affirmed ... a denial of a motion for summary judgment.” (Emphasis supplied.)

       “Does Georgia law recognize an independent cause of action apart from any remedy available under the Georgia Workers’ Compensation Act where an employer and/or insurer has intentionally delayed authorizing medical treatment to which an employee is entitled under the Act and where such delay has exacerbated a work-related physical injury?”

        Southern Bell was most recently cited by the Supreme Court for the law of the case principle in Roulain v. Martin, 266 Ga. 353 (466 SE2d 837) (1996).


source: Caselaw Access Project

author: Blackburn, Judge. Andrews, Chief Judge,

license: Public Domain

text:
    A97A2360.
    McCULLOUGH v. KROGER COMPANY.
    (498 SE2d 594)
   Blackburn, Judge.

Wanda McCullough appeals from the trial court’s order which granted summary judgment to the Kroger Company (Kroger) on her claim for damages resulting from her fall on a grape in the produce aisle of Kroger.

In accordance with Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991), the facts, and all reasonable inferences from the facts, must be viewed and considered in the light most favorable to the plaintiff herein. Furthermore, our Supreme Court took action in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), to “remind members of the judiciary that the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable and undisputed.” Id. It is plain and palpable, and should be undisputed, that the case now before us is one for the jury.

Viewing the facts in a light most favorable to the nonmovant, plaintiff herein, McCullough slipped on a grape lying on the floor of an aisle down which a Kroger employee, Bridges, had pushed a cart loaded with crates of grapes up to the level of his nose. Later, while he was still stacking bunches of grapes on a produce display island approximately ten to fifteen feet from McCullough, Bridges saw McCullough pass by on the opposite side of the cart and fall. Although Bridges testified that his view of the floor where McCullough fell was apparently blocked by the cart of grapes, McCullough testified that she believed that Bridges could have seen the area where she fell from where he was standing. No other customers were in the area where McCullough fell. Bridges admitted that, during stocking, grapes “were always falling off” the bunch, although on the day in question he contends no grapes fell onto the floor. When Bridges later told the produce manager about McCullough’s fall, the produce manager told him “to watch out for stuff like that because it’s hard to keep grapes off the floor.” Furthermore, according to Brower, Kroger’s manager, there would have been other employees, including customer service representatives, in the store at the time of the fall who could have seen the area in which it occurred. Finally, although Brower did testify that Kroger has a courtesy clerk whose duties include cleaning the store’s floors, she further testified that such clerks do not log in the times that they perform their various tasks. As such, there was no evidence establishing when or if Kroger’s courtesy clerk inspected the floor where McCullough fell. Kroger produced no affidavit from any courtesy clerk establishing that the floor had been swept, when it was swept, or that no grape was on the floor. The burden was on Kroger to produce such evidence, and it has failed to do so.

As an initial matter, simply because McCullough was pushing her cart straight ahead and looking in front of her, not at the floor, does not make this a case appropriate for summary adjudication. In Robinson, our Supreme Court disapproved of the “appellate decisions which hold as a matter of law that an invitee’s failure to see before falling the hazard which caused the invitee to fall constitutes a failure to exercise ordinary care.” Id. at 743. This Court is not authorized to ignore the holdings of our Supreme Court..

Summary adjudication is also inappropriate in this case because the evidence authorizes a finding that the defendant had superior knowledge of the object which caused the plaintiff’s fall. McCullough presented sufficient evidence here to show that Kroger, through Bridges, had constructive knowledge of the fallen grape. “Constructive knowledge of a foreign substance may be shown by evidence that the foreign substance had been on the floor for a sufficient period of time that in the exercise of ordinary care, the defendant should have noticed and removed the hazard or by evidence that the defendant had an employee in the immediate area of the hazard who could have easily seen and removed the hazard before the plaintiff’s fall” (Emphasis supplied.) Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 351 (496 SE2d 471) (1998).

Based on the facts set out above, it is a reasonable inference that the dropped grape which caused McCullough’s fall came from the cart of grapes Bridges had pushed down the aisle. As a matter of straightforward logic, the grape had to have come from somewhere. There was no other customer in the aisle. The cart piled high with bunches of grapes being pushed by Bridges is the most likely source of the errant grape. The fact that Bridges may not have seen the grape because he was on the far side of the cart in no way refutes the reasonable inference to be drawn. At a minimum, there is a factual issue for jury determination. It is the duty of this Court to follow the mandate of our Supreme Court to leave generally to juries questions of the negligence of the parties. Therefore, the trial court erred in granting Kroger’s motion for summary judgment.

Judgment reversed.

McMurray, P. J., Pope, P. J., Beasley, Johnson and Smith, JJ, concur. Andrews, C. J., dissents.

Andrews, Chief Judge,

dissenting.

Because I disagree with the majority, I must vigorously dissent.

In addition to the facts set out in the majority and viewing the evidence with all inferences in favor of McCullough, the following facts are pertinent. McCullough had been shopping at Kroger, where she regularly shopped, about 20 or 30 minutes on a Sunday evening. As she stated, “I was pushing my cart straight ahead. ... I was looking straight ahead in the direction I was going.” Nothing obstructed her view of the area or prevented her from looking at the floor. The “next thing I knew I was falling, fell. . . .” After the fall, she saw the remains of a grape on her shoe and the floor. She described it as “the pulp, the slimy pulp, and parts of the exterior of the grape. Clear enough to identify it was a grape. . . . The pulp was kind of slimy. ... It was clear with a tinge of . . . let’s say clear.” (Emphasis supplied.) She was unsure if she could have seen the grape before falling even if she had been looking at the floor, obviously because it was CLEAR.

Bridges’ procedure in placing grapes into the produce section from the cart was to lift a bunch of grapes out of its crate, place a piece of paper under it, and then place it on the produce island. As he described the scene, “[t]he produce island was right behind me and the cart was right in front of me and I was in between the two and she was walking down the aisle on the outside.” (Emphasis supplied.) He saw her walking by in front of the cart and “the next thing I didn’t see her anymore.” From his position behind the cart stacked with crates, he could not see the spot where she slipped immediately before she fell. He had, however, rolled the cart with the crates across the area where she fell approximately five minutes before and had seen nothing on the floor. Had he seen anything on the floor, he would have picked it up. He did not drop any grapes during his stocking and he could not tell from examining the remains whether the grape was already mashed when McCullough slipped on it or whether her fall mashed it.

Manager Brower was summoned after the fall and described the remains of the grape as “a smushed-type, clearish. . . . The smushed part blended in with the floor, ... on the outside of it you could see, . . . , the green outside of it, but the majority of it was smushed so it was almost translucent.” (Emphasis supplied.)

There were inspection procedures used by this store. One individual per shift is designated as the “cleanup shift” whose duties are to empty trash, clean bathrooms, clean up any spills in the store, and do floor sweeps throughout the store, which had been done that Sunday.

Although not referred to at all by the majority, Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980), which was reaffirmed in this respect in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), sets out the legal standard for determining liability in these cases. There, “[t]he court reiterated . . . , among other things, the statutory principle that an owner or occupier of land is charged with exercising ordinary care to keep the premises safe (OCGA § 51-3-1), and the fundamental basis for an owner or occupier’s liability that party’s superior knowledge of the hazard encountered by the plaintiff. The court stated that an invitee might recover for personal injury suffered in a slip and fall ‘only when the perilous instrumentality is known to the owner or occupant and not known to the person injured. . . .’ Id. at 622.” (Emphasis supplied.) Robinson, supra at 736.

Considering Alterman in light of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), with regard to the allocation of the burden of coming forward with evidence on a summary judgment motion, Robinson stated that “[a] slip-and-fall plaintiff need not necessarily produce evidence which disproves the plaintiffs negligence to withstand a motion for summary judgment — the burden of coming forward with such evidence arises only after it has been established or assumed the defendant had actual or constructive knowledge of the hazard, and the defendant presents evidence that the plaintiffs injuries were proximately caused either by the plaintiffs voluntary negligence . . . or by the plaintiffs casual negligence. . . . In this way, the defendant has the evidentiary burden as to the issue of the plaintiffs negligence after it has been established or assumed for purposes of a motion for summary judgment that the defendant was negligent, i.e., that the defendant had actual or constructive knowledge of the existence of a hazard on its premises.” (Emphasis supplied.) Robinson, supra at 747-748.

This case, therefore, deals with the first prong of Alterman, as fully discussed in Robinson, supra. Since, in Robinson, “the focus of the Supreme Court’s analysis of the burden of proof in slip and fall cases was on the second prong of the elements of a foreign substance slip and fall cause of action concerning the plaintiff’s knowledge of the foreign substance (see Alterman Foodsi, supra]) and not the defendant’s actual or constructive knowledge of the foreign substance which falls within the first prong[,] we find the Supreme Court’s decision in Robinson did not change either the first prong of a plaintiff’s cause of action under Alterman Foods or the burden on movants for summary judgment on the first prong as established in Lau’s Corp. [, supra].” Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 680 (498 SE2d 748) (1998).

There was no actual knowledge shown on the part of Kroger regarding the errant grape. Constructive knowledge can be shown by showing 1) that the foreign object had been on the premises for such a time that ordinary diligence by the owner/occupier should have resulted in its discovery or 2) that an employee was in the immediate vicinity of the hazardous condition and could have easily seen the substance. Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350 (496 SE2d 471) (1998);Hornbuckle Wholesale Florist v. Castellaw, 223 Ga. App. 198, 199 (477 SE2d 348) (1996); Drake v. Kroger Co., 213 Ga. App. 72, 73 (1) (443 SE2d 698) (1994).

Here, plaintiff produced no evidence concerning the length of time during which the grape had been on the floor and acknowledged that she did not know how long it had been there. Kroger, on the other hand, showed that, when Bridges had traversed the area approximately five minutes before the fall, there was no grape. Therefore, McCullough has failed to show constructive knowledge by this method. Haskins, supra; Hornbuckle, supra; Jenkins v. Bi-Lo, 223 Ga. App. 735 (479 SE2d 14) (1996).

Plaintiff’s only evidence of constructive knowledge is the physical proximity of Bridges to the grape. The fact that Bridges was in the area does not, alone, establish constructive knowledge, because it must also be shown that the employee “could have easily seen and removed the hazard before the plaintiff’s fall.” Haskins, supra at 351. The grape was described by those who saw it as “clear” and “almost translucent” and blending in with the floor. If McCullough, who acknowledged that her view of the floor in front of her was not obstructed, as was Bridges’ view, did not know if she could have seen the grape had she been looking at the floor, it is impossible to infer, as does the majority, that Bridges could have “easily” seen and removed the grape. Here, as in Jenkins, which involved string beans, which are generally present and displayed in produce sections, under the evidence presented, the grape could as easily have fallen to the floor “mere seconds” before McCullough fell, since customers can and do, as stated by the witnesses, also drop grapes on the floor.

Also, even if plaintiff were able to show that Bridges should have seen the grape, “she must show that she was being careful and still failed to see the [grape] as she approached. ... As this is a logical impossibility, the trial court did not err in granting summary judgment for defendant. Cf. Moore v. Kroger Co., 221 Ga. App. 145, 147 (470 SE2d 529) (1996) (if a grape on the floor should have been visible to a store employee six to eight feet away, it should have been visible to the plaintiff).” Whisby v. Bruno’s Food Stores, 228 Ga. App. 597, 598 (492 SE2d 338) (1997) (Pope, P. J.).

Decided March 20, 1998.

Buzzell, Graham & Welsh, Stephen M. Welsh, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Matthew L. Hilt, Douglas A. Wilde, for appellee.

Inasmuch as there is no evidence which would permit a jury to find that Kroger had knowledge of the grape superior to that of McCullough, this is one of those “plain, palpable and undisputable” cases where summary judgment in favor of the owner/occupier was appropriate. Haskins, supra; Jenkins, supra; see Kolomichuk v. Bruno’s, Inc., 230 Ga. App- 638 (497 SE2d 10) (1998). Holding otherwise, as does the majority, makes the owner/occupier an insurer of the safety of its customers which Robinson reiterates is not the standard. “While not an insurer of the invitee’s safety, the owner/occupier is required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge” Robinson, supra at 740.


author: Beasley, Judge.

text:
    A97A2366.
    WELDON et al. v. TRUST COMPANY BANK OF COLUMBUS, N.A.
    (499 SE2d 393)
   Beasley, Judge.

This case presents for decision questions concerning the circumstances under which payment on a cashier’s check may be stopped by either the bank issuing the check or the remitter, who is one who purchases a cashier’s check payable to another party. Numerous Code sections within Articles 3 and 4 of the Uniform Commercial Code come into play. OCGA § 11-3-101 et seq. The new versions of these Code sections, rewritten in 1996 (Ga. L. 1996, p. 1306 et seq.), are not considered because the transactions at issue occurred earlier.

Aim Weldon and her son James sued the Trust Company Bank of Columbus for breach of contract and conversion due to the bank’s payment of a cashier’s check notwithstanding its acceptance of a stop-payment order by Ms. Weldon, the purchaser of the check. The Weldons appeal the trial court’s grant of the bank’s motion for summary judgment.

Ann Weldon maintained an account at Trust Company Bank. James Weldon, a garment broker, purchased textile goods from Sportswear Services, Inc. (Sportswear), an out-of-state corporation, for resale to another out-of-state corporation known as Thicket Textiles, Inc. (Thicket). Sportswear informed James Weldon that it would have to receive certified funds before shipping the goods. Weldon testified that, upon inquiry, he was informed by Trust Company Bank officer Sweat that if the goods were purchased by cashier’s check, payment could be stopped if the merchandise delivered was not as represented.

On March 23, 1995, a $16,319.29 cashier’s check payable to Sportswear was purchased by Ms. Weldon with the funds deposited into her account by her son. The check was mailed to James Weldon’s agent, Carr. On March 27, Carr delivered the check to Sportswear, and the goods were shipped by Sportswear to Thicket. The next day Weldon telephoned Sweat to request stop payment on the cashier’s check because the goods were defective. Sweat testified that he agreed to stop payment if Ms. Weldon would sign the required paperwork.

Ms. Weldon went to the bank on March 29 and signed a preprinted indemnification agreement, whereupon the bank debited a $25 stop-payment fee from her account. James Weldon notified Sportswear on March 31 that a stop payment had been issued. On or about April 5, Trust Company Bank received a communication from Sportswear’s out-of-state bank regarding the stop payment. Although Trust Company Bank had initially dishonored the cashier’s check, it paid it after being informed the check had been delivered to Sportswear, which had released the goods in reliance on the check and had presented the check for payment. The $25 stop-payment fee was credited back to Ms. Weldon’s account.

According to Sweat, Ms. Weldon represented to him that the cashier’s check had not been delivered to Sportswear and would be returned, and he testified he would not have agreed to issue the stop-payment order had he known the check was delivered. James Weldon testified that on March 28 he informed Sweat that Sportswear was in possession of the check, but Sweat testified that Weldon told him Carr had the check.

The court granted the bank’s motion for summary judgment on the following grounds: (1) Neither the bank nor Ms. Weldon could stop payment on the cashier’s check because it was the same as payment in cash and, therefore, performance of any stop-payment agreement between Ms. Weldon and the bank is excused; (2) Any such agreement cannot be enforced because of mutual mistakes as to who had the check and whether it was going to be returned; (3) The Weldons have no cause of action for conversion because the proceeds of Ms. Weldon’s personal check became the property of the bank once the check was converted into a cashier’s check.

1. The first issue concerns the efficacy of Ms. Weldon’s order to stop payment on the cashier’s check.

There are essentially two classes of checks. First, there are ordinary personal checks. Such checks do not operate as an assignment of funds, and the drawee is not liable on them until they are accepted or paid. Cashier’s checks, certified checks, and bank drafts compose the second class of checks and are collectively known as bank checks. A cashier’s check is a check drawn by a bank on itself. A bank draft is a check drawn by one bank on another bank. A certified check is a personal check that a bank has accepted; acceptance of the check operates as an assignment of funds to the payee.

Under OCGA § 11-4-303 (1), any stop-order received by a payor bank comes too late if the stop-order is received or served and a reasonable time for the bank to act on it expires “after the bank has done any of the following: (a) Accepted or certified the item; (b) Paid the item in cash; (c) Settled for the item without reserving a right to revoke the settlement and without having such right under statute, clearing-house rule, or agreement. . . .”

Wright v. Trust Co. of Ga., 108 Ga. App. 783, 786 (3) (134 SE2d 457) (1963), espoused the view that a cashier’s check is the equivalent of a certified check. This view has been adopted by a majority of courts but by only a minority of commentators. The courts treat both cashier’s checks and certified checks the same, because of the prevalent commercial understanding that both are cash equivalents.

The commentators have criticized this view on grounds that although the UCC provides a special role for certified checks, it does not accord cashier’s checks a similar status; that a cashier’s check is nothing more than a negotiable instrument issued by a bank; that the bank, as the drawer and drawee, can stop payment; and that, as against a non-holder in due course, the UCC allows for the assertion of claims and defenses.

Cases subsequent to Wright hold that a cashier’s check is accepted in advance by the act of its issuance and operates as an assignment of funds to the payee. Thus, under OCGA § 11-4-303 (1) (a), Ms. Weldon’s stop-payment order came too late. When the money was withdrawn from her account and the cashier’s check was issued in Sportswear’s name, it became Sportswear’s property. She could not recall the cashier’s check or stop payment on it.

Although technically payment on the cashier’s check could not have been stopped after it had been issued, as a practical matter no impediment to stopping payment existed if the check had not been delivered to Sportswear. But Ms. Weldon placed the stop-payment order after the check had been delivered. Under OCGA § 11-3-202 (1), delivery of the cashier’s check to the payee resulted in its negotiation. In pertinent part, OCGA § 11-3-202 (1) states that “Negotiation is the transfer of an instrument in such form that the transferee becomes a holder.”

2. The next question concerns the position the bank would have occupied had it voluntarily honored Ms. Weldon’s stop-payment order.

(a) Wright, supra at 788-789 (3), recognized the “general view . . . that where the instrument (be it a check, bill of exchange, note, or whatever) is in the hands of the original payee, where no holder in due course is involved, where the payee has not suffered any detriment or changed his position because of reliance on the instrument, the bank may properly defend itself on the basis of mistake and want of consideration.”

In Wright, the bank customer issued his personal check to the payee, the payee obtained the bank’s certification of the check, and the bank allowed the payee to convert the certified check into cashier’s checks because of an error in not flagging the customer’s account with a stop-payment order the customer placed on his personal check before it was certified. The consideration given by the bank for the cashier’s check failed, because it had no right to charge its customer’s account. Wright held that the bank could stop payment.

Wright is distinguishable in that payment on Ms. Weldon’s personal check was not stopped. Consequently, the bank properly charged Ms. Weldon’s account and the consideration given by Trust Company Bank for the cashier’s check to Sportswear did not fail. Had the bank dishonored the check and then been sued by Sportswear, it would have had no defense in its own right.

Ms. Weldon could have been impled in an action by Sportswear against the bank pursuant to the indemnification agreement. In it she covenanted and agreed to indemnify and save the bank harmless from any liability and expense it might incur on account of causing the dishonor of the check if presented for payment. Had she been impled, OCGA § 11-3-306 would have governed. Under it a person not having the rights of a holder in due course takes the instrument subject to: “(a) All valid claims to it on the part of any person; and (b) All defenses of any party which would be available in an action on a simple contract. . . .”

Even if Sportswear was not a holder in due course, the Weldons could not have asserted a claim to the proceeds of the cashier’s check; the check operated as an assignment of funds to Sportswear. Compare Fulton Nat. Bank, supra. There, the bank customer delivered a bank draft to the payee. At the customer’s request, the bank that had issued the draft stopped payment on it. It was held that the bank had a right to do this and that the customer, as a party to the action, could assert a claim to the proceeds of the draft. In so holding, the court distinguished a bank draft from a cashier’s check, noting that a bank draft does not operate as an assignment of funds “as does a certified check . . . or a cashier’s check.” The commentators are of the opinion that the result in Fulton Nat. Bank should be the same where a cashier’s check is involved. This is based on a view rejected by Georgia courts.

In addition, the Weldons could not have asserted a defense, for they were not parties to the cashier’s check. A remitter, such as Ms. Weldon, is not a party to the instrument. See Fulton Nat. Bank, supra, 128 Ga. App. at 18 (2).

(b) There is no merit in the Weldons’ argument that they had a right under OCGA § 11-4-303 (1) (c) to stop payment on the cashier’s check, in that Sweat’s representation that Weldon could stop payment if the goods were defective amounted to a settlement of the item with reservation of a right to revoke settlement.

Weldon testified that Sweat made this representation to him prior to Ms. Weldon’s purchase of the cashier’s check. The stop-payment order was not placed until after the cashier’s check was issued. Even if Sweat and Weldon reached an earlier agreement that settlement of the cashier’s check could be revoked, payment could not be stopped after the check was issued. OCGA § 11-4-303 (1) states that a stop order comes too late after the bank has done “any of the following.” Moreover, insofar as the rights of the payee of a check are concerned, the question under § 11-4-303 (1) (c) is whether the bank informed the payee of a right to revoke settlement, not whether it informed the drawer or purchaser.

3. The Weldons contend the court erred in granting summary judgment on the question of whether the indemnification agreement was entered into under a mutual mistake as to the whereabouts of the cashier’s check. They argue that Weldon’s testimony that Sweat was aware that the check had been delivered to Sportswear, and certain statements in the indemnification agreement, create a conflict in the evidence. The statements referred to are found in Sweat’s handwritten notation following the pre-printed language of the indemnification agreement: “Recipient [Sportswear] misrepresented merchandise for sale. Check is to be returned, however, receipt of check is uncertain at this time.” In the agreement’s pre-printed language, Ms. Weldon swore the check had not been endorsed or negotiated.

Any such conflict is not material. If, as maintained by the Weldons, the parties entered into the agreement with knowledge it had been delivered to the payee, then both parties were obviously laboring under the mistaken belief that payment on the check lawfully could be stopped. In this event, the agreement would be unenforceable because it was founded on a mutual mistake of law. “If the consideration upon which a contract is based was given as a result of a mutual mistake of fact or of law, the contract cannot be enforced.” OCGA § 13-5-4.

4. The final question is whether the bank was entitled to summary judgment on the Weldons’ conversion claim. The answer is “yes.”

The rule is that once money is withdrawn from a bank customer’s account and a cashier’s check is issued in the payee’s name, the check becomes the payee’s property. “ ‘Conversion is the unauthorized assumption and exercise of the right of ownership over personal property belonging to another which is contrary to the owner’s rights. (Cit.)’ [Cit.]” Unavailing is the Weldons’ argument that they have a claim for conversion because the bank initially dishonored the cashier’s check. There is no evidence the funds represented by the check were ever credited back to Ms. Weldon’s account.

Decided March 20, 1998.

Gambrell & Stolz, Alvin T. Wong, Hoke J. Thomas, Jr., for appellants.

Hatcher, Stubbs, Land, Hollis & Rothschild, Theodore D. Morgan, J. Barrington Vaught, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur in Divisions 1, 2 (b), 3 and in the judgment only as to Divisions 2 (a) and 4.

       See Lawrence, Making Cashier’s Checks & Other Bank Checks Cost-Effective: A Plea for Revision of Articles 3 and 4 of the Uniform Commercial Code, 64 Minn. L. Rev. 275, 278 (1980).

       Id.

       OCGA § 11-3-409 (1).

       Id.

       OCGA § 11-4-213 (1) (a).

       See Lawrence, supra.

        Harris v. Hill, 129 Ga. App. 403, 405 (1) (199 SE2d 847) (1973).

        Fulton Nat. Bank v. Delco Corp., 128 Ga. App. 16 (1) (195 SE2d 455) (1973).

       OCGA § 11-3-411 (1).

       OCGA § 11-3-409 (1).

       Lawrence, supra at 286. See McDonnell, Freedom from Claims & Defenses: A Study in Judicial Activism under the Uniform Commercial Code, 17 Ga. L. Rev. 569, 613-620 (1983).

       McDonnell, supra.

        Harris, supra, 129 Ga. App. at 406.

        Fulton Nat. Bank, supra, 128 Ga. App. at 18.

        Harris, supra, 129 Ga. App. at 407.

        Wright was followed in Intl. Furniture Distributors v. First Ga. Bank, 163 Ga. App. 765 (294 SE2d 732) (1982).

       Cf. C & S Nat. Bank v. Youngblood, 135 Ga. App. 638 (219 SE2d 172) (1975). In Youngblood, the payee of a personal check converted it into a cashier’s check by the- drawee bank, and the drawer later placed a stop-payment order on the personal check. The bank honored the stop-payment order and then sued the payee to recover the proceeds of the cashier’s check. This Court held that the stop-payment order came too late, and the bank erred to its prejudice by not so informing its customer.

       It can be argued that Sportswear was not a holder in due course, since it took the cashier’s check with notice that the check was in payment of defective goods. See OCGA § 11-3-302 (1) (c). Even so, Sportswear did “change [its] position because of reliance on the instrument.” Wright, supra, 108 Ga. App. at 789.

       128 Ga. App. at 18 (2), (3).

       128 Ga. App. at 18.

       See 2 Uniform Commercial Code, Sumner & White, Ch. 21-5, p. 390 (4th ed.).

       See n. 10.

        Harris, supra.

       (Emphasis supplied.) Rush v. Farmers &c. Bank, 162 Ga. App. 65 (290 SE2d 164) (1982).


text:
    A97A2416.
    HARKLEROAD et al. v. STRINGER et al. MORRIS, MANNING & MARTIN et al. v. HARKLEROAD et al. MORRIS, MANNING & MARTIN et al. v. HARKLEROAD et al.
    A97A2417.
    A97A2418.
    (499 SE2d 379)
   Beasley, Judge.

These cases have been before this Court on two prior occasions: Stringer v. Harkleroad & Hermanee* (“Stringer”); Harkleroad & Hermanee v. Stringer {“Harkleroad”).

The main appeal, Case No. A97A2416, concerns whether the law firm of Harkleroad & Hermanee and its president Donald Harkleroad (appellants/cross-appellees: collectively “the Harkleroad litigants”) may be awarded attorney fees under OCGA § 9-15-14 for legal services provided to themselves in this litigation. In the cross-appeals, Case Nos. A97A2417 and A97A2418, the law firm of Morris, Manning & Martin and its attorneys Joseph R. Manning, Anthony E. DiResta, and George T. Hibbs (appellees/cross-appellants, “the Morris, Manning attorneys”) challenge the award of sanctions to Harkleroad & Hermance’s outside counsel, the law firm of Schwall & Ruff and its attorney Emory Schwall (“Schwall”).

This litigation began when Harkleroad & Hermanee filed a complaint against W. Kenneth Stringer III and his company, Monarch Capital Group, for nonpayment of bills for legal services. Although Schwall represented it, Harkleroad & Hermanee was primarily responsible for providing support legal services. Stringer and Monarch were represented by the Morris, Manning attorneys. As a result of numerous counterclaims filed by Stringer and Monarch, Donald Harkleroad was added as a counterclaim defendant. With respect to claims against him personally, Harkleroad represented himself as counsel of record during most of the litigation.

By agreement of the parties, the case was arbitrated, and the Harkleroad litigants were awarded $488,663 plus interest. The Morris, Manning attorneys filed a notice of appeal from the award on behalf of Stringer and Monarch, but then withdrew from the case.

We affirmed the award in Stringer and granted the Harkleroad litigants’ OCGA § 5-6-6 motion for sanctions for frivolous appeal (ten percent of judgment), noting that “[w]hat was a fairly routine collection case on a delinquent account spiralled into vituperative and vitriolic litigation.”

Several months after judgment was entered on the award, the trial court denied Harkleroad & Hermance’s motion for OCGA § 9-15-14 sanctions against Stringer, Monarch, and the Morris, Manning attorneys. We reversed that decision in Harkleroad but did not address the issues in the appeal as they related to Stringer, because he had filed a federal bankruptcy petition and was thus entitled to a stay of the proceedings.

We held that under OCGA § 9-15-14 (a) the trial court’s decision denying appellants’ motion was not supported by the evidence, for the record showed the counterclaims were without factual or legal support; there was an absence of evidence supporting defenses; an expert who had prepared an OCGA § 9-11-9.1 affidavit had disavowed the opinions stated in the affidavit and disclaimed any real awareness of the matters stated in it; and there were attempts to assert claims barred by the statute of limitation on the ground the statute had been tolled by fraud, but no evidence of fraud was produced. An abuse of its discretion was found by the trial court’s failure to make an award under OCGA § 9-15-14 (b) because of the tactics employed to delay disposition and to harass and expand the proceedings.

The case was remanded “to determine what award, if any, should be assessed against which of the appellees under OCGA § 9-15-14 (a) or (b) for their roles in this litigation.” Upon remand the court had express authority to consider evidence as it deemed appropriate on the reasonableness of and necessity for the fees and expenses of litigation.

When the court again took up the case, it did not address issues relating to Monarch, because it had been administratively dissolved before judgment was entered, but it nevertheless entered judgment against Monarch. At the hearing after remand, the Morris, Manning attorneys sought to show, contrary to this Court’s holdings in Harkleroad, that their litigation tactics were not sanctionable. The court allowed them to make a proffer of evidence and held it was bound by this Court’s decision.

Following the hearing, the court entered an order awarding $129,842.17 in attorney fees and expenses incurred by Schwall and expenses incurred by appellants, but no sanctions against George Hibbs individually due to lack of evidence of any sanctionable conduct by him. The court denied Harkleroad & Hermance’s request for $329,920 in attorney fees for the firm’s and Donald Harkleroad’s own legal services, reasoning that Moore v. Harris, and Tandy Corp. v. McCrimmon, bar such an award. Moore was cited as authority for the proposition that activities undertaken by a party in support of the hired counsel’s representation, even though the party is a law firm, are not a compensable component in an award of attorney fees. McCrimmon was cited as authority for the view that, to be compensable, attorney fees must be charges for professional services rendered by another.

The Harkleroad litigants filed notice of the main appeal after our grant of their application for discretionary appeal. Divisions 1 through 4 address their enumerations of error. The remaining divisions address the enumerations in the Morris, Manning attorneys’ cross-appeals.

1. The Harkleroad firm and Harkleroad argue that the court’s reliance on Moore and Tandy Corp. was misplaced.

In Moore, a law firm and its two lawyers were sued for legal malpractice. They were represented by other attorneys. After being granted summary judgment, they obtained an award of sanctions under OCGA § 9-15-14. The sanctioned defendants appealed, raising as error the inclusion in the award of the attorneys “professional time” spent in the defense of the case. It was noted that the attorneys were not counsel of record and that documentation submitted to support their claim included time spent by one of them in giving his own deposition. Moore held that the “personal time” spent by attorneys in their own defense is not a compensable component of an award of attorney fees. This portion of the award was reversed and the case was remanded to the trial court to fashion a revised award.

In Tandy, a pro se plaintiff who was also an attorney obtained an award of attorney fees based on defendant’s failure to comply with a discovery order. The award was based on OCGA § 9-11-37 (b) (2), which authorizes the court to require a party to pay “reasonable expenses, including attorney fees” caused by such party’s failure to obey a discovery order. This Court held, in a majority decision, that it was without jurisdiction in that case to consider the issue of whether an attorney representing himself is authorized to collect attorney fees pursuant to OCGA § 9-11-37 (b) (2), because this ground for the award was not enumerated as error.

Thus, in Tandy the majority did not reach the issue presented here, and the instant case is distinguishable from Moore. Unlike Moore, the attorneys here are seeking reimbursement for time and expertise spent doing legal work and not for time spent and knowledge conveyed in the capacity of a client. Moreover, unlike the discovery statute in Tandy, the abusive litigation statute provides for an award of “reasonable and necessary attorney’s fees and expenses of litigation,” does not categorize attorney fees as an expense, and thus does not require the prevailing party to incur a monetary obligation to another.

The absence of such a requirement is consistent with the purpose of the statute, which is to deter litigation abuses by requiring the responsible party or attorney to pay the opposing parties’ attorney fees and litigation expenses. Given this intent, “one cannot conceive of a reason why the Legislature would distinguish between pro se litigants and those represented by an attorney. Why should the prosecutor of a frivolous [litigation] claim be let off the hook simply because the victim of the litigation represented himself? How is the purpose of deterrence less served by compelling the offending party to make payment to a pro se party?”

In addition, appellants persuasively argue that they decided to render support legal services, rather than have outside attorneys perform these tasks, because their familiarity with the case would enable them to spend less hours on it and thereby reduce costs. If they expended the same or less professional time, coupled with the same knowledge and experience, as other attorneys employed by them would have been compelled to do, it should make no difference to appellees whether the fees are to be paid for appellants’ services rather than those of another attorney employed by them. Minimizing attorney fees rather than increasing them by the unnecessary employment of other attorneys should be encouraged, not penalized.

Cases relied on by the Morris, Manning attorneys which deny attorney fees to pro se litigants under 42 USC § 1988 and the Freedom of Information Act (FOIA) are also distinguishable. Those statutes categorize attorney fees as part of the litigation costs incurred by the prevailing party, and the policy of those statutes is to encourage litigants to retain independent counsel. Also distinguishable are cases denying attorney fees to pro se litigants who are not attorneys because of the lack of any meaningful standard for calculating the amount of the award. This concern is absent where, as here, the litigant is an attorney.

The court thus erred in denying Harkleroad & Hermance’s request for attorney fees for legal services rendered by the firm and Donald Harkleroad on the ground that an award of such fees is not authorized under OCGA § 9-15-14.

2. The Harkleroad litigants complain of the court’s exclusion of fees of attorneys not present to testify as based on hearsay testimony, in that such testimony was admissible as a hearsay exception under the Georgia Business Records Act.

This enumeration is not supported by specific reference to the record or transcript. “In the absence of such reference, the Court will not search for or consider such enumeration.”

3. They next cite as error the court’s failure to award prejudgment interest under OCGA § 7-4-15 for the attorney fees and expenses of Schwall and Harkleroad & Hermanee.

OCGA § 7-4-15 imposes liability for prejudgment interest on all demands which are liquidated, “i.e., certain and fixed, ‘a sum which cannot be changed by the proof.’ [Cit.]” “ Amount claimed is a “liquidated demand” if it is susceptible of being made certain in amount by mathematical calculations from factors which are or ought to be in possession or knowledge of (the) party to be charged.’ Black’s Law Dictionary, (4th Ed.) p. 1080.” Obviously, a party to a lawsuit does not have sufficient facts within his or her knowledge to render certain the amount of attorney fees and litigation expenses incurred by an adverse party. Moreover, “in assessing attorney fees against a party or the party’s attorney pursuant to OCGA § 9-15-14, the trial judge must make an independent determination concerning the reasonableness and necessity of the fees. [Cit.]” Consequently, an award of attorney fees and litigation expenses is not liquidated until reduced to judgment and cannot support an award of prejudgment interest under OCGA § 7-4-15.

4. Finally, the Harkleroad litigants contend that the court erred in ruling that in attorney Hibbs’ individual capacity he is not liable for sanctions.

The citations to the record given in support of this enumeration do not show the existence of any sanctionable conduct by Hibbs.

5. We turn now to the cross-appeals of the Morris, Manning attorneys. Based on a number of arguments, they contend the trial court erred in holding that it was bound by this Court’s decision in Harkleroad.

(a) Cross-appellants suggest that in Harkleroad we engaged in unauthorized appellate factfinding, and that prior to the hearing on remand they did not have an opportunity to present evidence rebutting the opponents’ claims that their conduct was sanctionable.

The standard of review for OCGA § 9-15-14 (a) is the “any evidence” rule. It requires the appellate court to determine, on the basis of the record developed in the trial court, whether the evidence is sufficient to support the trial court’s decision to award or refuse to award sanctions. Harkleroad held that the evidence did not support the refusal to award sanctions because the record established sanctionable conduct in numerous regards. The Morris, Manning attorneys’ desire to litigate these issues should have been advanced in the course of Harkleroad. After Harkleroad became final, the holdings as to the evidence became binding as the law of the case. OCGA § 9-11-60 (h).

(b) The contention that the “law of the case” rule did not bar relitigation of these issues because of a change in the evidentiary posture is not valid.

The rule set forth in OCGA § 9-11-60 (h) is that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” But “[a]ppellate court holdings as to pleadings and evidence are not binding as the law of the case, where the evidentiary posture of the case in the trial court changes subsequent to the appellate court decision. [Cit.]” May v. Macioce.

MOM Corp. v. Chattahoochee Bank concerned the permissibility of changing the evidentiary posture of the case on remand following the appellate court’s reversal of the trial court’s grant of summary judgment. The Court held that following appellate review of summary judgment, the law of the case rule does not limit or prohibit the trial court from receiving new evidence which changes the evidentiary posture. Jumping the gun in an effort to win summary judgment does not preclude a later attempt when more evidence is gathered.

Similarly, May held that the law of the case rule did not prohibit a verdict in favor of plaintiff on a theory of recovery contained in an amended complaint, following appellate reversal of summary judgment to plaintiff due to lack of evidentiary support for the allegations in the original complaint.

Harrison v. Dorsey and Lee v. Dept. of Transp. recognized that the evidentiary posture of a case may change where the judgment is reversed and the case remanded for a new trial. Lee reversed a jury verdict for the condemnee because of the trial court’s erroneous exclusion of evidence relating to consequential damages. On appeal from judgment entered following retrial before a judge, the condemnee argued that the trial court violated the law of the case rule by making findings and conclusions at odds with the court’s previous decision. We rejected this argument, noting that the prior decision made no determination as to damages, but held only that the trial court had erroneously excluded this evidence. Obviously, if there was no possibility of a different finding of fact with that evidence included, erroneous exclusion would be deemed harmless and a new trial useless.

Unlike the situation in Lee, this Court did make a determination in Harkleroad that the evidence demanded a finding that sanction-able conduct had occurred. That issue was resolved. The case was remanded so the trial court could determine the remaining issues of the reasonableness and necessity of the requested fees and expenses and what award, if any, should be assessed against which of the sanctioned defendants.

At the remand hearing, the Morris, Manning attorneys challenged the reasonableness and necessity of fees claimed by the Harkleroad firm and Harkleroad, but the court did not resolve the challenge because it denied those fees on grounds reviewed in Division 1. The Morris, Manning attorneys also objected to Schwall’s affidavits in support of his claim for fees and expenses to the extent they contained time entries made by other parties. They have not enumerated as error any ruling by the trial court on this objection, nor do they show that the sanctionable conduct identified in Harkleroad was attributable to their clients rather than to themselves, as they could have done. Actually, such an assertion would have had little chance of success, as the conduct is the type attributable to counsel. The trial court properly ruled that their attempt to relitigate sanctionability of the conduct was beyond the scope of the remand directive and thus barred by the law of the case rule.

(c) The Morris, Manning attorneys argue that this Court lacked jurisdiction to render the Harkleroad decision because an application for discretionary appeal is required for appeals from the grant or denial of OCGA § 9-15-14 motions, and no such application was filed. Jurisdiction of the direct appeal of the OCGA § 9-15-14 award in Harkleroad was accepted under the authority of Haggard v. Bd. of Regents, as jurisdiction of the underlying claim was before the court in Stringer.

Decided March 20, 1998

Harkleroad & Hermanee, Donald R. Harkleroad, Emory A. Schwall, for Harkleroad et al.

W. Kenneth Stringer, pro se.

Bondurant, Mixson & Elmore, Jeffrey O. Bramlett, Michael B. Terry, for Morris, Manning & Martin et al.

6. The last contention is that the court erred in including certain fees and expenses in its award to the Harkleroad firm and Harkleroad.

The award included fees charged by Schwall in pursuing the rejected prejudgment-interest claim, in prosecuting appeals to this Court, in pursuing claims against Stringer in federal bankruptcy court, and in post-judgment collection efforts.

The foregoing fees were not recoverable under OCGA § 9-15-14. (a) A trial court must limit sanctions to those fees incurred because of sanctionable conduct, so fees incurred in pursuing an unsuccessful claim would not be recoverable, (b) The Morris, Manning attorneys cannot be liable for fees incurred in post-judgment collection as they had withdrawn long before that phase of the litigation, (c) OCGA § 9-15-14 does not authorize an award for the expenses of litigation incurred during proceedings before an appellate court of this state. (d) OCGA § 9-15-14 does not authorize an award for attorney fees or expenses for proceedings before a federal bankruptcy court; application of the statute is limited to courts of record where the Georgia Civil Practice Act applies.

The judgment in the main appeal and cross-appeals is reversed, and the cases are remanded for the court to fashion a sanctions award consistent with this opinion.

Judgment reversed and cases remanded.

McMurray, P. J., and Smith, J., concur.

       218 Ga. App. 701 (463 SE2d 152) (1995).

       220 Ga. App. 906 (472 SE2d 308) (1996).

        Stringer, supra at 704 (2).

        Harkleroad, supra at 907 (1).

       Id. at 908 (3) (a).

       Id. at 909 (3) (b).

       Id. at 909 (3) (d).

       Id. at 909 (3) (c).

      . 201 C-a. App. 248 (410 SE2d 804) (1991).

       183 Ga. App. 744 (360 SE2d 70) (1987).

        Moore, supra at 250 (3).

       Id. at 250-251.

       Id. at 251.

       Id.

        Tandy, supra at 746 (3).

       See Pratt & Whitney Canada, Inc. v. Sheehan, 852 P2d 1173, 1181 (4) (Alaska 1993) (prevailing party appearing pro se can receive attorney fees for time expended as an attorney active in the litigation, but not for time expended as a client).

       Compare OCGA § 13-6-11; Steele v. Russell, 262 Ga. 651, n. 1 (424 SE2d 272) (1993). OCGA § 13-6-11 authorizes the recovery of the expenses of litigation by the plaintiff where the defendant has acted in bad faith, been stubbornly litigious, or caused the plaintiff unnecessary trouble and expense. Steele noted that “expenses of litigation” refers to the costs of the action as well as attorney fees. Steele does not hold that attorney fees must always be classified as a litigation “expense.”

        Dixon v. Home Indem. Co., 206 Ga. App. 623, 624 (1) (426 SE2d 381) (1992).

        Deutch & Shur, P.C. v. Roth, 663 A2d 1373, 1377 (5) (N.J. Super. 1995).

       See Leen v. Demopolis, 815 P2d 269, 277 (18) (Wash. App. 1991).

       See Weaver v. Laub, 574 P2d 609, 611 (2) (Okla. 1978); McClung v. Posey, 514 S2d 1139,1140 (Fla. App. 1987).

       See Cunningham v. Federal Bureau of Investigation, 664 F2d 383, 385 (2) (3rd Cir. 1981) (FOIA); Pitts v. Vaughn, 679 F2d 311, 312 (2) (3rd Cir. 1982) (42 USCA § 1988).

       See Kay v. Ehrler, 499 U. S. 432, 436 (111 SC 1435, 113 LE2d 486) (1991) (42 USCA § 1988); Wolfel v. United States, 711 F2d 66, 68 (3) (6th Cir. 1983) (FOIA).

        Crooker v. United States Dept. of Justice, 632 F2d 916, 921 (2) (1st Cir. 1980).

       See Cazalas v. United States Dept. of Justice, 709 F2d 1051, 1057 (4) (5th Cir. 1983). We do not decide the question of whether pro se litigants who are not attorneys may recover attorney fees under OCGA § 9-15-14, as it is not before us. We simply note that there is a rational basis for distinguishing such parties from litigants who are attorneys.

       Court of Appeals Rule 27 (c) (3) (i).

        Marathon Oil Co. v. Hollis, 167 Ga. App. 48, 51 (3) (305 SE2d 864) (1983).

        Intercompany Svcs. Corp. o. Kleeb, 140 Ga. App. 512, 513 (4) (231 SE2d 505) (1976).

        Duncan v. Cropsey, 210 Ga. App. 814, 816 (2) (437 SE2d 787) (1993).

       See American Family Life Assurance Co. &c. v. United States Fire Co., 885 F2d 826, 835 (18) (11th Cir. 1989).

        Haggard v. Bd. of Regents, 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987).

       200 Ga. App. 542, 544 (2) (409 SE2d 45) (1991).

       203 Ga. App. 847 (1) (418 SE2d 74) (1992).

       184 Ga. App. 870, 871 (1) (363 SE2d 151) (1987).

       198 Ga. App. 716 (402 SE2d 551) (1991).

       See Eastgate Assoc. v. Piggly Wiggly Southern, 200 Ga. App. 872, 873 (1) (410 SE2d 129) (1991) (any direction awarded by the appellate court shall be carried into full effect by the court below).

       OCGA § 5-6-35 (a) (10); Fabe v. Floyd, 199 Ga. App. 322 (405 SE2d 265) (1991).

       257 Ga. at 526 (4) (a), supra.

       See Duncan v. Cropsey, supra, 210 Ga. App. at 815 (2).

        Dept. of Transp. v. Franco’s Pizza &c., 200 Ga. App. 723, 727 (5) (409 SE2d 281) (1991), overruled on other grounds, White v. Fulton County, 264 Ga. 393, 394 (1) (444 SE2d 734) (1994).

        Contract Harvesters v. Clark, 211 Ga. App. 297, 299 (2) (439 SE2d 30) (1993).


author: Smith, Judge. Andrews, Chief Judge, Beasley, Judge,

text:
    A97A2520.
    ROSS et al. v. TAYLOR COUNTY et al.
    (498 SE2d 803)
   Smith, Judge.

Enola Gay Ross and her husband Willie C. Ross brought this action against Taylor County and its road superintendent, Lawrence Short, to recover for injuries to Mrs. Ross and loss of consortium resulting from a single-vehicle accident when Mrs. Ross’s car overturned in a ditch on a county road. The trial court granted the defendants’ motion for summary judgment, and this appeal ensued.

The Rosses alleged in their complaint that the county and Short were negligent in several respects in constructing and maintaining the road, and that this negligence proximately caused Mrs. Ross’s accident. The defendants moved for summary judgment principally on the grounds of sovereign and official immunity, and the issue presented in this appeal is the applicability of those doctrines.

1. The Rosses concede that summary judgment was properly granted in favor of the county on Willie Ross’s claim for loss of consortium because no timely ante litem notice was given to the county on that claim, as required by OCGA § 36-11-1.

2. The Rosses contend the doctrine of sovereign immunity does not apply in this case because the duty breached by the county was a purely ministerial duty. We do not agree.

The accident occurred when Mrs. Ross was driving her car on Hicks Road in Taylor County on a clear afternoon. She was unfamiliar with Hicks Road, and when her car rounded a curve at the end of the paved portion of the road, it skidded into a ditch and flipped over. The record shows that Hicks Road was built by the county pursuant to a public road contract with the State Department of Transportation. The original plans for the road were altered by the county before construction began when a railroad objected because the road encroached on its right-of-way. Pursuant to this change in the plans, a portion of the road was left unpaved.

The contract with the Department of Transportation included a standard provision requiring the construction to be performed in “strict and entire conformity” with the specifications. The Rosses maintain that this provision renders the entire process of constructing the road a purely ministerial function, making the county’s negligence actionable notwithstanding sovereign immunity. Art. I, Sec. II, Par. IX, Ga. Const, of 1983, as amended in 1991; Gilbert v. Richardson, 264 Ga. 744, 750, 752 (452 SE2d 476) (1994); Crisp County School System v. Brown, 226 Ga. App. 800, 802 (2) (487 SE2d 512) (1997).

But even if this were true with regard to the actual construction process, the county’s negligence, as alleged by the Rosses, consisted of certain decisions made by the county: to change the plans and not build a portion of the road; to end the paving at a certain location in a certain manner; and to use (and not use) certain warning signs and traffic signals indicating the end of the paved road. Such decisions are the very essence of discretionary acts.

Discretionary acts “ ‘lie midway between judicial and ministerial ones.’ ” Hennessy v. Webb, 245 Ga. 329, 331 (264 SE2d 878) (1980). They call “for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” (Citations and punctuation omitted.) Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). Hennessy, supra, addressed the immunity of a school principal from liability for injury to a student who fell, and not a county’s liability stemming from road construction. But the Supreme Court noted in Hennessy that “[i]t has been held that there is no liability on the part of a county commissioner in deciding when and how to work on roads because such a decision was discretionary. [Cit.]” Id. It is beyond question that the county’s actions in this case were also discretionary in nature, and the county therefore is immune from liability. The trial court did not err in granting the county’s motion for summary judgment on this ground.

3. A difference exists, however, between a decision to build a road or determine how it is to be designed or its general location, on the one hand, and the actual work of constructing it, on the other. The latter has been held to be a ministerial task, and “the duties of a road supervisor in carrying out the physical details of the work are likewise ministerial in nature.” Joyce, supra at 97. Although Short’s duties may have involved the exercise of some degree of judgment, it is clear from Short’s testimony that his work consisted solely of ministerial acts.

Short testified on his deposition that although he had authority to replace traffic signs and signals, he did not make original decisions as to whether or where to place stop signs or traffic signals; he had some discretion, however, to place signs lowering speed limits on blind curves. As to the actual construction of the road, Short and his crew did the subgrading under the supervision of the State Department of Transportation. This work was done by following the grade stakes previously marked out by the Department. Short testified he had absolutely nothing to do with the paving process. Nor did he have any “freedom of action” in the road’s location; he testified that “we built the road in between the stakes.” We intimate no opinion regarding the Rosses’ allegation that Short was negligent in performing his duties. The evidence of record simply persuades us that Short’s actions, like those of the road supervisor in Joyce and unlike those of the county in this case, were ministerial rather than discretionary. The trial court therefore erred in granting Short’s motion for summary judgment on the ground of official immunity.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Birdsong, P. J., Ruffin and Eldridge, JJ, concur. Andrews, C. J., concurs in part and dissents in part. Beasley, J., dissents.

Andrews, Chief Judge,

concurring in part and dissenting in part.

I agree with Judge Beasley’s dissent to Division 3 of the majority opinion. I write separately because I concur fully as to Divisions 1 and 2 of the majority’s opinion.

Beasley, Judge,

dissenting.

The question is whether what plaintiffs allege was negligently done by either defendant county or defendant roads superintendent or both constituted discretionary acts or ministerial acts. Only if the actions or inactions of each were ministerial could each be held liable for negligent performance of the same, due to the shields of the county’s sovereign immunity and the roads superintendent’s official immunity from liability for discretionary acts.

Plaintiffs’ position is that the defendants failed to perform their PR (public road) contract with the State DOT in accordance with its terms. The contract was entered into because DOT and the county desired the improvement and construction “of a certain facility,” and the county agreed “to do and perform all the work and labor for said purpose.” Among the contract terms was: “The work and materials shall be in strict and entire conformity with the provisions of this contract and the plans and specifications prepared (or approved) by the state highway engineer or his authorized representative the originals of which are on file in the office of the state highway engineer and which said plans and specifications are hereby made part of this agreement as fully and to the same effect as if the same had been set forth at length in the body of this agreement. This contract will be executed and constructed in accordance with the standard specifications, 1983 edition, the supplemental specifications, 1989 edition, and the supplemental specifications and special provisions included in and made a part of this contract. . . . [W]ork shall be done in accordance with the laws of the State of Georgia under the direct supervision and to the entire satisfaction of the Department of Transportation. The decision of the state highway engineer upon any question connected with the execution or fulfillment of this agreement and interpretation of the specifications or upon any failure or delay in the prosecution of the work by the county shall be final and conclusive.”

Among the plans and specifications were a series of survey maps showing the location of the roadbed. The original survey map called for the easterly end of Hicks Road to turn south and cross the tracks of the Norfolk Southern Railroad to join Georgia Highway 96. Because of a dispute with the railroad as to taking the paving of the road across the railroad tracks at the point provided for on the original survey plat, the county revised the paving plans to eliminate the portion of the road that crossed the tracks. As a result, the county decided to leave a portion of the road unpaved.

Plaintiffs assert that the county’s revised plans were not in conformity with the provisions of its contract with the DOT, and that this modification by the county created an inherently dangerous situation which caused Mrs. Ross’ injury. They argue that this was the result of a negligently performed duty imposed by the DOT contract, which duty was ministerial because defendants could exercise no independent judgment in deviating from the terms of the contract, and that the changes which resulted in the problems which caused the accident'were deviations from the contract.

The negligent acts which plaintiffs allege caused the accident and injuries are in their complaint. Their expert’s opinion is that the specifics complained of, i.e., the various physical and locational features of the road and the traffic signs or abuse thereof allegedly causing the accident, constituted a deviation from the standard of care in the industry.

“Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case.” (Citation and punctuation omitted.) Kordares v. Gwinnett County, 220 Ga. App. 848, 851 (470 SE2d 479) (1996).

If the county and the county road superintendent could exercise judgment in making the changes in the road and traffic signs from what was in the contract, or if these aspects of the construction of the road were not covered by the contract, then the decisions were discretionary.

A ministerial act is “ ‘one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. . . .’ [Cit.]” Guthrie v. Irons, 211 Ga. App. 502, 506 (439 SE2d 732) (1993).

A discretionary act is one for which “ ‘there [is] no procedure or instruction which the . . . [defendants failed to follow. . . .’ ” Kordares, supra. Discretionary acts call for “the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). “Grounded in separation of powers concerns, the discretionary function exception reflects [the law’s] ‘wish to prevent judicial “second-guessing” of legislative and administrative decisions grounded in social, economic, and political policy through the medium of action in tort. [United States v. S.A. Empresa de Viacao Aerea &c., 467 U. S. 797, 814 (104 SC 2755, 81 LE2d 660) (1984)].’ ” Kennewick Irrigation Disk v. United States, 880 F2d 1018,1021-1022 [1] (9th Cir. 1989).

The United States Supreme Court explained in Dalehite v. United States, 346 U. S. 15, 34 (73 SC 956, 97 LE 1427) (1953), that sovereign immunity covers “the discretion of the executive or the administrator to act according to one’s [best] judgment of the best course. . . .” It also includes “determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision[,] there is [room for] discretion.” Id. at 35-36.

The majority in the instant case concludes, in Division 2, that the county’s decisions to change the plans and not build a portion of the road, and to end the paving at the location in question, were “the very essence of discretionary acts.” While this may generally be the case, see Hennessy v. Webb, 245 Ga. 329, 331 (264 SE2d 878) (1980), the county ceded its discretion here by contractually obligating itself to build the road in the manner specified by the DOT. Cf. Kennewick, supra at [3] (discretion of governmental actor may be removed if government incorporates specific safety standards in contract).

It follows that paving Hicks Road in conformity with the DOT contract is properly classified as a ministerial act. “ ‘ “Should the (county) decide when a street should be opened, closed, or repaired, or when a sewer should be built, it is clearly exercising legislative or judicial functions, but when it engages in the work of opening, closing, or repairing a street, or building a sewer, and is thus engaged in the physical execution of the work, it is evidently in the discharge of duties purely of a ministerial nature.” (Cit.). . .’ [Cits.]” Joyce, supra at 97.

Since the decisions to depart from the contract were made by the county, the trial court erred in granting its motion for summary judgment.

Plaintiffs seek to impose liability on county road superintendent Short, as well as on the county, based on assertions of negligence by them in failing to install certain warning signs and traffic signals indicating the end of the paved road. I agree with the conclusions in Divisions 2 and 3 of the majority opinion that decisions to use (and not use) traffic warnings and traffic signals are discretionary. They call for the exercise of personal judgment and acting in a way not specifically directed. The DOT contract does not cover this subject.

Decided March 20, 1998

Adams & Adams, Charles R. Adams III, Robert A. Butler, Nelson & Lord, Ellis M. Nelson, for appellants.

Roberts, Roberts & Ingram, Guy U Roberts, Jr., for appellees.

I cannot agree with the majority’s reversal of the trial court’s grant of Short’s motion for summary judgment in División 3. As acknowledged by the majority in that division, the evidence shows that decisions as to the paving and location of the road were made by the county and not by Short. Under the bases of liability pursued by the plaintiffs in this appeal, Short was entitled to summary judgment.

I respectfully dissent from the affirmance of the grant of the county’s motion for summary judgment in Division 2 and from the reversal of the grant of Short’s motion for summary judgment in Division 3.

       They also claimed lack of timely ante litem notice to the county on the consortium claim'. See Division 1, infra.

       We note that the Georgia Tort Claims Act is inapplicable because this case involves • allegations of negligence only against a county and a county official. OCGA § 50-21-22 (5). See Hemak v. Houston County School Dist., 220 Ga. App. 110,113 (469 SE2d 679) (1996). We therefore need not apply the restrictive definition of discretionary acts supplied by the Georgia Tort Claims Act, OCGA § 50-21-22 (2). Compare Dept. of Transp. v. Brown, 218 Ga. App. 178 (460 SE2d 812) (1995), aff’d 267 Ga. 6 (471 SE2d 849) (1996).


author: McMurray, Presiding Judge.

text:
    A98A0727.
    BRUNDAGE v. THE STATE.
    (499 SE2d 408)
   McMurray, Presiding Judge.

Following a jury trial, Jessie Brundage, also known as Jesse Brundage, was convicted of two counts of trafficking in cocaine. The court imposed a life sentence on Count 1 and 30 years on Count 2, concurrent with Count 1. Brundage appeals from the denial of his motion for new trial. We affirm.

The evidence, construed in favor of the verdict, shows that on February 8, 1994, Lieutenant Kendrick Hall of the Bibb County Sheriff’s Department, was working “under cover.” Lieutenant Hall arranged a controlled buy of one ounce of crack cocaine from defendant Brundage through an intermediary, Sherman Stewart. Lieutenant Hall, whose movements were surveilled by members of a multijurisdictional drug task force, met Stewart at the Gateway Shopping Center in Gray, Georgia. He then followed Stewart, who was driving a blue Oldsmobile Cutlass, to the intersection of Ellis Church Road and Roosevelt Road, a short distance from Gray. Sherman Stewart told Lieutenant Hall to wait for him at a nearby church, while Stewart made the buy. Scott Reese and Calvin A. Pitts of the Jones County Sheriff’s Department were positioned in the woods across the street from defendant Brundage’s home. They observed as the Blue Oldsmobile Cutlass driven by Stewart “turned into his [defendant’s] driveway. . . .” The sole occupant, a male, “exited the car and went to the door of the house.” This male remained in the house “[n]o more than five or six minutes.” “He came back out[,]. . . got in the car, the car left the property and went back down Ellis Church Road[, and then] it went to the church.” Back at the church, Sherman Stewart “gave [Lieutenant Hall] a plastic bag with [suspected] cocaine. . . . It was real big pieces, chunky, like rocks, big rocks[; and] [h]ad a real strong smell to it.” Forensic chemical analysis subsequently determined the contents to be 30.6 grams of crack cocaine with a purity level of 55 percent. When the drug buy was completed, Lieutenant Hall radioed fellow officers who immediately obtained a search warrant and went to defendant Brundage’s home.

A taxi arrived at defendant Brundage’s home just before the warrant was served. Defendant Brundage, his family, and Ronnie Bruce Hill (the passenger from the taxi), were detained while defendant’s house was searched pursuant to the warrant. The officers found a bag containing 30 grams of crack cocaine with a purity level of 55 percent hidden behind the clothes dryer in defendant Brundage’s kitchen. The search also revealed digital scales, plastic bags, razor blades, and amounts of cash concealed throughout the house totaling approximately $4,600. Lieutenant Hall testified that the crack found in defendant Brundage’s home “looked and smelled like the cocaine [Lieutenant Hall] got from [Sherman] Stewart[, and] was [in] the same type of chunks that [Lieutenant Hall] had seen in the earlier package.”

Although at trial, Sherman Stewart denied any involvement in the cocaine transaction, his prior inconsistent statements to police and from Sherman Stewart’s own guilty plea hearing were introduced into evidence. There, Sherman Stewart admitted buying the crack from “Jesse” with Lieutenant Hall’s cash. Ronnie Bruce Hill, who was arrested for possession of cocaine following the search of Brundage’s home, testified at trial that he bought the crack cocaine found on his person that night from defendant Brundage. The trial court also admitted evidence of defendant Brundage’s prior narcotics offense. In 1989, Special Agent Cecil Hutchins of the Georgia Bureau of Investigation bought less than a gram of crack from defendant Brundage while at a nightclub in Putnam County. This similar transaction was admitted to show Brundage’s bent of mind.

1. The evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant Brundage is guilty, beyond a reasonable doubt, of trafficking in cocaine as alleged in Counts 1 and 2 of the indictment. Gay v. State, 221 Ga. App. 263, 265 (1) (b) (471 SE2d 49).

2. The trial court did not err in admitting evidence of a prior similar transaction. “Prior crime evidence is admissible when the State satisfactorily makes the three affirmative showings required by Williams v. State, 261 Ga. 640 (2) (b) (409 SE2d 649) (1991). See also Uniform Superior Court Rule 31.3 (B). ‘The independent act does not have to be identical in character to the charged offense if there is a sufficient connection between them.’ Smith v. State, 264 Ga. 46, 47 (2) (440 SE2d 188) (1994).” Spencer v. State, 268 Ga. 85, 86 (2) (485 SE2d 477) (1997). Both the crime charged and the October 20, 1989, episode involved the sale of crack cocaine to an undercover officer through an intermediary while on property under Brundage’s control. These circumstances authorize the trial court’s finding that proof of Brundage’s actions during the October 20, 1989 incident is relevant to show Brundage’s bent of mind during the February 8, 1994 drug sale. Spead v. State, 218 Ga. App. 547 (1), 548 (462 SE2d 635). Accord Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148) (whole court). The relevance of the similar transaction evidence, coupled with the trial court’s appropriate limiting instruction regarding the purpose of this evidence, outweighed any prejudicial impact upon Brundage’s character. Cantrell v. State, 210 Ga. App. 218, 220 (2), 221 (435 SE2d 737). The four-year time-span between Brundage’s prior criminal act and the crime charged was not significant enough to affect the relevance of the prior act. See Childs v. State, 202 Ga. App. 488 (1), 489 (414 SE2d 714). In the case sub judice, we find no error in the admission of this similar transaction evidence.

3. In his third enumeration of error, defendant Brundage argues his custodial statement should not have been admitted into evidence. He has, however, failed to brief this alleged error. “Any enumeration of error which is not supported in the brief by citation of authority or argument shall be deemed abandoned.” Court of Appeals Rule 27 (c) (2); Bragg v. State of Ga., 226 Ga. App. 588 (1) (487 SE2d 137) (1997).

4. The trial court did not err in imposing a life sentence for one of Brundage’s trafficking convictions (Count 1). The State gave Brundage notice that his prior conviction for possession of cocaine with the intent to distribute would be used in aggravation at sentencing pursuant to OCGA § 16-13-30 (d). Brundage’s “conviction for the more serious offense of trafficking in cocaine under OCGA § 16-13-31 was sufficient in conjunction with his previous conviction for possession of cocaine with intent to distribute under OCGA § 16-13-30 (b) to trigger the mandatory life sentence provisions of OCGA § 16-13-30 (d). See Gilbert v. State, 208 Ga. App. 258, 259-262 (430 SE2d 391) (1993).” Cody v. State, 222 Ga. App. 468, 471 (4) (474 SE2d 669).

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.

Decided March 20, 1998.

Green B. Moore III, for appellant.

Fredric D. Bright, District Attorney, Gregory L. Bushway, Assistant District Attorney, for appellee.


author: Pope, Presiding Judge.

text:
    A97A2193.
    GURLEY v. GORDON COUNTY BOARD OF EDUCATION et al.
    (498 SE2d 64)
   Pope, Presiding Judge.

Plaintiff Jeri Gurley was issued a letter of reprimand by the superintendent of defendant Gordon County School District (“School District”). She appealed the superintendent’s action to defendant Gordon County Board of Education (“Local Board”). After the Local Board decided to uphold the issuance of the reprimand, Gurley appealed the Local Board’s decision to the State Board of Education (“State Board”), who reversed the Local Board’s decision. The Local Board then appealed the State Board’s decision to the superior court. The superior court reversed the State Board, effectively reinstating the reprimand. Gurley sought an appeal to this Court from the superior court’s decision, but her application for discretionary appeal was denied. In a separate proceeding, which is the subject of this appeal, Gurley filed a complaint which for the first time challenged the Local Board’s authority to appeal the State Board’s decision to the superior court on the grounds that the Local Board had not complied with the requirements of the Georgia Open Meetings Act or the Georgia Education Code. See OCGA § 50-14-1 et seq.; OCGA § 20-2-57. The trial court dismissed Gurley’s complaint and Gurley filed a notice of direct appeal from that dismissal.

1. We assume without deciding that the issues raised in this appeal have not been rendered moot by the denial of Gurley’s application for discretionary appeal. However, OCGA § 5-6-35 (a) (1) enumerates “[ajppeals from decisions of the superior courts reviewing decisions of . . . state and local administrative agencies” among those appeals which require adherence to the discretionary appeal procedure. In Rebich v. Miles, 264 Ga. 467 (448 SE2d 192) (1994), the Supreme Court held that a superior court’s denial of a petition for a writ of mandamus to compel the Georgia Department of Public Safety to hold a hearing on the suspension of the petitioner’s driver’s license was in effect a decision of a superior court reviewing the decision of a state administrative agency within the scope of OCGA § 5-6-35 (a) (1). Similarly, we find that the decision of the Local Board in this case to appeal the State Board’s decision to the superior court constitutes a decision of a local administrative agency within the meaning of OCGA § 5-6-35 (a) (1). As such, a direct appeal to this court from the superior court’s final disposition of the matter is not authorized.

Decided January 8, 1998

Reconsideration denied March 23, 1998

Kramer & Thomas, Michael E. Kramer, for appellant.

Brock, Clay, Wilson & Rogers, Ernest L. Gunn IV, Danny G. Brock, for appellees.

We also note that Gurley’s present appeal is in substance an attempt to effect the same result sought in her previous application for discretionary appeal — affirmance or reinstatement of the State Board’s decision rather than that of the Local Board — through different means. Rebich counsels “that the underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal. . . . Otherwise, any party could avoid the discretionary review procedure by seeking relief, however inappropriate, that would trigger the right to a direct appeal.” Id. at 469. We see no valid reason to distinguish the underlying subject matter of Gurley’s present appeal from that presented previously in her application for discretionary review.

For the foregoing reasons, Gurley’s direct appeal is hereby dismissed for lack of jurisdiction.

2. In light of the above, the School District and Local Board’s motion to dismiss the instant appeal on other grounds is rendered moot.

Appeal dismissed for lack of jurisdiction.

Johnson and Blackburn, JJ, concur.