text:
    A95A2428.
    G.I.R. SYSTEMS, INC. v. LANCE.
    (466 SE2d 597)
   Blackburn, Judge.

G.I.R. Systems, Inc. (G.I.R.) appeals the trial court’s judgment permitting a minority stockholder’s application to inspect certain corporate records.

G.I.R. is a Georgia corporation that produces yarn products used in making carpet. Grady H. Lance is a former officer and director of G.I.R. While he resigned from the company in 1992 and established his own competing business, Lance retained approximately 30 percent of G.I.R.’s stock. The remainder of the company’s stock belongs to Gordon I. Rehberg, G.I.R.’s president and executive officer.

On May 31, 1991, prior to Lance’s departure, G.I.R., Lance and Rehberg entered into a stock purchase agreement stipulating the fair market value of the stock at $49.15 per share. The agreement also provided that, in the absence of majority shareholder action, the stock’s fair market value would be automatically adjusted in line with the company’s earnings. As no majority action was taken until 1994, Lance asserts the value of the stock rose to approximately $55 per share in relation to the company’s earnings. In March 1994, Rehberg, acting as the majority shareholder, voted to lower the value of the stock to $25 a share.

On September 2, 1994, Lance sent G.I.R. a letter requesting a number of different corporate records citing as authority OCGA § 14-2-1602. Lance purportedly requested these documents to help him in assessing the value of his stock. G.I.R. responded on September 15, 1994, supplying some of the requested documents but refusing to produce others on the grounds that the records were sought for an improper purpose and were not subject to production under OCGA § 14-2-1602. Lance filed the underlying complaint in the Superior Court of Whitfield County seeking the court to order G.I.R. to submit certain corporate records for inspection. In response to Lance’s subsequent motion for summary judgment, the trial court did order G.I.R. to produce certain records and outlined the terms under which the production should take place. G.I.R. appeals the trial court’s decision.

OCGA § 14-2-1602 (c) provides that a shareholder is entitled to inspect and copy various corporate records — including certain meeting minutes, accounting records and shareholder records — if he gives the corporation written notice of his demand at least five business days prior to the planned inspection. Pursuant to OCGA § 14-2-1602 (d), a shareholder may inspect and copy these records only if: “(1) His demand is made in good faith and for a proper purpose that is reasonably relevant to his legitimate interest as a shareholder; (2) He describes with reasonable particularity his purpose and the records he desires to inspect; (3) The records are directly connected with his purpose; and (4) The records are to be used only for the stated purpose.” In determining whether a shareholder’s purpose is proper or whether the documents requested are relevant to the shareholder’s purpose, a great deal of discretion is placed in the trial court. Riser v. Genuine Parts Co., 150 Ga. App. 502, 505 (258 SE2d 184) (1979).

1. G.I.R. asserts that some of the factual findings on which the trial court based its decision were erroneous. First, G.I.R. disputes the trial court’s determination that it was bound by the stock purchase agreement. On deposition, Rehberg testified that the fair market value set forth in the stock purchase agreement was based on the amount of life insurance proceeds that could be obtained by the shareholders, and thus, the $49.15 per share value was applicable only in the event one of the shareholders died. However, the stock purchase agreement places no such condition on the stock’s fair market valuation. Because parol evidence, such as Rehberg’s testimony, is not admissible to vary the terms of a written contract, we find no error in the trial court’s determination that the parties were bound by the stock purchase agreement. See OCGA § 13-2-2 (1).

G.I.R. also asserts that the trial court erred in determining that since Lance had left the corporation, the stock had been “revalued” from approximately $55 to $25 per share. Only the unsworn averments of counsel support the proposition that the stock reached a value of $55 per share. However, pursuant to the stock purchase agreement, the stock’s fair market value in the spring of 1991 was $49.15 per share. The next formal assessment of the stock’s worth, made less than three years later and occurring after Lance left the company, significantly reduced the stock’s value to $25 per share. Clearly, Lance had a legitimate reason to question the change in the assessed value of the stock. While there is no evidence to support the trial court’s determination that the stock was valued at $55 in the spring of 1994, this fact would not have materially changed any portion of the trial court’s ruling regarding Lance’s ability to inspect G.I.R.’s records.

2. G.I.R. asserts that the trial court erred by determining that the records were being sought for a proper purpose. Particularly, G.I.R. argues that Lance was seeking the records due to his status as a competitor to G.I.R. G.I.R. also infers that Lance’s inspection request was motivated by a desire to harass G.I.R., noting that Lance has filed a number of different lawsuits against G.I.R. since leaving the company. The trial court rejected these arguments, determining that Lance requested the inspection so as to ascertain the financial condition of the corporation and its stock, a purpose which the trial court found to be proper.

As outlined above, the trial court has wide discretion in determining if a shareholder is seeking to inspect corporate records for a proper purpose. Riser, supra. As the trial court’s determination was supported by evidence that the value of Lance’s stock had been drastically reduced by the acts of Rehberg, G.I.R.’s majority shareholder, we will not disturb this finding on appeal.

3. G.I.R. also contends that the trial court erred in requiring a full audit by Lance’s certified public accountant and requiring G.I.R. to pay one-half of the accountant’s fee. A close reading of its order reflects that the trial court did not mandate a full audit. Rather, the trial court ordered that Lance’s accountant be allowed to inspect those records held by G.I.R. that would customarily be “available for an audit engagement, in compliance with the American Institute of Certified Public Accountants Statement on Auditing Standards.” Thus, the trial court was merely delineating those records subject to production, not requiring an audit take place. A trial court has wide discretion in determining what corporate records are relevant to a shareholder’s purpose. Riser, supra. Considering Lance’s purpose, to determine the value of his stock, the trial court did not abuse its discretion in requiring G.I.R. to produce those records customarily used in performing an audit.

G.I.R. asserts that the trial court erred in ordering it to split with Lance the cost of having his certified public accountant inspect the corporate records. We agree that the trial court exceeded its authority in this respect. The authority of a court to order a corporation to share in the expense of an inspection is found in OCGA § 14-2-1604. OCGA § 14-2-1604 (c) provides: “If the court orders inspection and copying of the records demanded, it shall also order the corporation to pay the shareholder’s costs (including reasonable attorneys’ fees) incurred to obtain the order unless the corporation proves that it refused inspection in good faith because it had a reasonable basis for doubt about the right of the shareholder to inspect the records demanded.” (Emphasis supplied.) This section is clearly inapplicable as the costs assessed to G.I.R. were not costs incurred by Lance in obtaining the inspection order. Further, this section is inapplicable in light of the trial court’s express determination that G.I.R. acted in good faith when it denied Lance’s inspection application.

The comment to OCGA § 14-2-1604 provides further guidance into the authority of a trial court to assess costs. It provides: “[wjhile subsection (a) provides that the corporation shall bear the costs of inspection and copying of [basic corporate records such as articles of incorporation, bylaws, resolutions, etc. not at issue in the present matter], subsection (c) does not address who should bear the cost of reproducing other records ordered by the court; this is a matter for the courts to decide in light of the policy of the Code that costs of reproduction are generally the responsibility of the requesting shareholder and should be assessed against him.” (Emphasis supplied.)

When interpreting a statute “[w]e are required to look for the intent of the legislature and construe statutes to effectuate that intent giving all words their ordinary significance.” Griffin-Spalding County School System v. Daniel, 215 Ga. App. 567, 568 (451 SE2d 480) (1994). In its comment to OCGA § 14-2-1604, the legislature equates the “costs of inspection and copying” with the “cost of reproducing” corporate records. Other costs involved in an inspection are not mentioned despite the fact that the legislature clearly contemplated the various costs that shareholders could incur in attempting to exercise their inspection rights, particularly the attorney fees incurred in obtaining an inspection order. Because the legislature expressly provided that certain costs be recovered but made no provision for expenses incurred by a shareholder in having an accountant review corporate records, the legislature did not intend for these costs to be assessed to the corporation. See also Fletcher Cyclopedia of the Law of Private Corporations (1995 ed.), § 2255 (the costs of an expert to assist in a shareholder’s inspection of corporate records should be borne by the shareholder). Thus, the trial court exceeded its authority in ordering G.I.R. to share in the inspection costs incurred by Lance’s accountant.

4. G.I.R. asserts that the trial court’s inspection order is in essence a mandatory injunction and violates the specificity standards that injunctive orders must meet, citing to Hendrix v. Hendrix, 254 Ga. 662, 663 (333 SE2d 596) (1985). This enumeration is without merit. While an inspection order may, in some respects, be similar to a mandatory injunction, they are two different creatures. G.I.R. has given no authority or analysis as to why the requirements necessary for a mandatory injunction, a distinctly equitable remedy, should be applied in the context of an order requiring a corporation to submit its records to a shareholder inspection, a statutory remedy. Further, we find the trial court’s inspection order to clearly and specifically outline those records that are subject to inspection.

5. In its final enumeration, G.I.R. contends that the court erred in granting Lance’s motion for summary judgment prior to ruling on G.I.R.’s pending motion to compel Lance to more fully respond to various discovery requests. We have reviewed the motion to compel and find that none of the contested discovery responses would have materially impacted the trial court’s decision to permit Lance’s inspection. “ ‘Although the grant of summary judgment while a motion to compel discovery is pending is generally not condoned, where, as here, the disallowed discovery would add nothing of substance to the party’s claim, reversal is not required. (Cit.)’ [Cit.]” Charles S. Martin Distrib. Co. v. Bernhardt Furniture Co., 213 Ga. App. 481, 483-484 (445 SE2d 297) (1994).

In light of the above, the trial court’s order is affirmed, except for its mandate that G.I.R. share with Lance the cost of having his accountant review the G.I.R. records specified by the court, which is reversed.

Judgment affirmed in part and reversed in part.

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

On Motion for Reconsideration.

Upon motion for reconsideration, G.I.R. asserts that with regard to Division 1, Lance shared Rehberg’s misconception that the values outlined in the stock purchase agreement only applied in the event of Lance’s death. Thus, G.I.R. argues, the stock purchase agreement should not be governed by the parol evidence rule but by the doctrine of mutual mistake. It is not necessary for us to address this claim as regardless of how the stock purchase agreement is construed, evidence supports the trial court’s ultimate conclusion that Lance acted with a proper purpose in seeking to inspect G.I.R.’s corporate records.

As outlined above, assuming the stock purchase agreement is binding, the stock’s fair market value in the spring of 1991 was set at $49.15 per share and less than three years later, after Lance departed from G.I.R., was reduced to $25 by the unilateral act of Rehberg. In light of this drastic reduction, Lance could legitimately question the change in value assessed to his stock. Should the values set forth in the stock purchase agreement not be considered binding in this situation, Lance has an even stronger case for questioning how the $25 per share value was reached. Apart from the stock purchase agreement, the record contains no evidence of the value of Lance’s stock. In fact, Rehberg offered affidavit testimony that a fair market value for G.I.R.’s stock had never been determined prior to the spring of 1994. In light of the acrimonious relationship between Lance and Rehberg that is amply evidenced in the record, Lance had a legitimate reason to question how G.I.R., which was controlled by Rehberg, valued its stock. Thus, the binding nature of the stock purchase agreement is immaterial to the court’s ultimate conclusion that Lance had a proper purpose in seeking to inspect certain G.I.R. records.

Also, in its motion for reconsideration, G.I.R. asserts that the trial court erred in failing to conduct an evidentiary hearing prior to rendering its judgment. As G.I.R. did not initially enumerate this conduct by the trial court as error, this issue is not properly presented for appellate review. McGraw v. State, 199 Ga. App. 389 (405 SE2d 53) (1991) (appellant is not permitted to enlarge or expand his list of enumerated errors by amendment or argument).

Motion for reconsideration denied.

Decided November 17, 1995

Reconsideration denied January 11, 1996.

John T. Longino, for appellant.

Minor, Bell & Neal, Michael J. Tuck, William F. Jourdain, Robert G. McCurry, Eddy A. Corn, for appellee.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A95A2606.
    TUCKER et al. v. SIGNATURE FLIGHT SUPPORT-SAVANNAH, INC.
    (466 SE2d 694)
   Blackburn, Judge.

Jewett Tucker, Jr. and Southeast Timberlands, Inc. appeal the trial court’s refusal to grant a continuance when it became known that illness would prevent two different out-of-state witnesses from appearing at trial.

Signature Flight Support-Savannah, Inc., formerly known as Butler Aviation-Savannah, Inc., sued appellants for a debt allegedly incurred in repairing their airplane. Appellants defended the suit alleging that the bill was unreasonable and the repairs were poorly performed. At trial, appellants planned on calling only two non-party witnesses including Ed Bennett, who was piloting the plane when the malfunction occurred on the runway in Savannah, and Joe Snodgrass, who was familiar with the plane and its repair history. Both Bennett and Snodgrass lived outside of Georgia.

Early in the week before trial, Snodgrass indicated that he was not feeling well but would attempt to appear at trial. On the Sunday afternoon before trial he called and informed appellants that his condition had worsened and that he would not be able to attend. At that time, appellants contacted the trial court and requested a continuance, which request the trial court denied. Appellants then began plans to try the case using Bennett as the only non-party witness. However, the Wednesday before trial, the trial court had been made aware that Bennett was not feeling well and his attendance was questionable whereupon the trial court recommended that his deposition be taken via telephone. Rather, than pursue this measure, appellants made plans to continue with Bennett as their primary witness. However, like Snodgrass, Bennett’s condition worsened in the weekend before trial. Appellants learned that he would not be able to attend approximately one hour before they were to appear in court. Once again, they asked the trial court for a continuance, and, once again, the request was denied. The trial commenced and a verdict of $41,753.55 was entered against the appellants.

Decided January 11, 1996.

Martin, Snow, Grant & Napier, Michael M. Smith, for appellants.

C. James McCallar, Jr., Todd E. Schwartz, for appellee.

As their sole enumeration, appellants assert that the trial court erred in denying their motions for a continuance. A motion for a continuance based on an absent witness is addressed to the sound legal discretion of the trial court and no error will be assigned unless it appears that the trial court abused that discretion in passing on the motion. United Motor Freight Terminals v. Driver, 75 Ga. App. 571, 572 (44 SE2d 156) (1947).

OCGA § 9-10-160 provides that all applications for continuances based upon the absence of a witness shall set forth eight different requirements. Where any one of these statutory requirements is not met, there is no abuse of the trial court’s discretion to deny a continuance. Carroll v. Crawford, 218 Ga. 635 (129 SE2d 865) (1963) (construing an earlier version of OCGA § 9-10-160). One of the eight statutory requirements is that the absent witness does not reside outside of the state. OCGA § 9-10-160 (3). As appellants readily admit that both absent witnesses resided outside of Georgia, it was not error for the trial court to deny appellants’ request for a continuance.

Further, even in the absence of the statutory analysis, we find no error. At the time of the trial, the case had been pending over two years and had previously been continued several times. At trial, the jury was able to hear the testimony of one absent witness, Snodgrass, by deposition. While it is true that the jury was not able to hear from Bennett, appellants chose not to preserve his testimony via a telephone deposition the week prior to trial as the trial court had suggested even though they knew Bennett’s ability to attend the trial was — in their own words — questionable. Thus, we find that appellants were, in large measure, responsible for their own predicament, and we find no abuse of discretion on the part of the trial court in denying their request for a continuance.

Judgment affirmed.

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


text:
    A95A2727.
    DAVES v. SHEPHERD SPINAL CENTER, INC. et al.
    (466 SE2d 692)
   Blackburn, Judge.

Nancy Daves appeals the trial court’s grant of summary judgment against her claim for personal injuries sustained while she watched the running of Atlanta’s annual Peachtree Road Race.

During the 1992 race, a wheelchair race participant lost control on a curve located in Piedmont Park. He left the designated raceway and struck Daves who was watching the race from a sideline. Daves subsequently sued the parties who administered the race, Shepherd Spinal Center, Inc. and the Atlanta Track Club, Inc. (collectively referred to as “race administrators”). The race administrators moved for summary judgment on the grounds that they were not liable under the theory of premises liability outlined in Daves’ complaint. They also sought summary judgment on the grounds that Daves assumed the risk of and/or negligently contributed to her injuries. After the motion for summary judgment was filed, Daves amended her complaint to include claims for promoter liability and wilful or reckless exposure to a known danger. The trial court granted the motion for summary judgment as to Daves’ entire complaint, and this appeal ensued.

1. Pretermitting the issue of whether the race administrators may have been liable to Daves on a theory of premises liability, we determine that Daves’ recovery was barred by assumption of the risk. Daves chose the location from which she observed the race, a straightaway located at the bottom of a steep, hilly curve. She had watched the wheelchair portion of the race from this same location on many occasions and was or should have been familiar with the speeds at which the wheelchair participants traveled as they descended the hill and made the curve. Daves stood only three or four feet from the race course and was aware that only a thin piece of plastic tape separated her from the racing wheelchairs. Finally, Daves admitted that she was aware that wheelchair racers sometimes lost control of their vehicles and had previously witnessed an accident where a wheelchair racer “turned over.” “Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law.” (Punctuation omitted.) Union Camp Corp. v. Dukes, 217 Ga. App. 95, 98 (456 SE2d 645) (1995). We find this to be such a case. See also Hunt v. Thomasville Baseball Co., 80 Ga. App. 572 (56 SE2d 828) (1949) (spectator injured by wild throw at baseball park assumed the risk of such injury when he chose or accepted his seat).

2. In light of our decision in Division 1, we need not address Daves’ additional enumerations of error. Menendez v. Jewett, 196 Ga. App. 565, 566 (396 SE2d 294) (1990) (assumption of the risk serves as a complete defense).

Judgment affirmed.

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

Decided January 11, 1996

Swanson & Cherry, Mark R. Swanson, Diane Cherry, for appellant.

Long, Weinberg, Ansley & Wheeler, Earl W. Gunn, Quinton S. Seay, for appellees.


author: McMurray, Presiding Judge.

text:
    A95A1903.
    SINCLAIR v. THE STATE.
    (467 SE2d 190)
   McMurray, Presiding Judge.

Defendant was charged, via a multi-count indictment, with committing the offenses of terroristic threats and acts, felony obstruction of a law enforcement officer, simple battery and simple assault. The State entered a nolle prosequi with regard to the simple battery charge and brought defendant before a jury on the remaining charges, proving (at trial) that defendant was arrested while he was on a drunken rampage at a low-income trailer park in Cobb County, Georgia. In response to undisputed proof that he violently resisted arrest, defendant testified that he was voluntarily intoxicated at the time and that he only remembers “waking up in the county jail strapped down to a chair.” Officer Rhett Teague of the Cobb County Police Department gave details of defendant’s arrest, testifying as follows:

“I had just pulled in the front, the Atlanta Road side of the trailer park. ... I looked down a drive, and I saw a group of people. There was some kind of activity going on down there, and there was a white Porsche that caught my eye. So I decided to drive down through there. As I did the Porsche drove off, and as I got within feet of that area, I heard somebody yelling, and I looked and I saw [defendant] Sinclair come out from behind a red Chevy Chevette. I heard him hollering, I’ll kill you. . . . And he raised his fist in the air, and he charged a black gentleman that was standing maybe 10, 15 feet away from him. I jumped out of the car. I didn’t have time to get on the radio. I jumped out of the car, and I grabbed [defendant] Sinclair from behind, around his arms like this (indicating), and was telling him that he was under arrest, and to stop resisting. He initially broke free, and with his right elbow tried to come back on me, and I sidestepped, and I did what I call a full nelson. His arms were in the air. I went up behind and over his head and got him in a full nelson, and I drove him down to the ground. I continued to tell him to stop resisting, and at that point he was — he just started yelling, I’ll get you. I’ll get you. And he was still physically resisting. I wasn’t going to let go. So I was kind of riding him like a bucking bronco, and I could see people gathering in my peripheral vision, and I hollered for somebody to open the back seat of my patrol car. And as soon as the door came open I brought him up from the ground, and he started kicking, and he kicked me about the feet and the ankles. Then I just shoved him, and I drove him into the back seat of the car. I was still telling him several times to stop resisting. I didn’t want to hurt him. And he kept flailing, and I finally went in on top of him in the back seat. With my open hand I popped him a couple of times in the back of the head, and he threw back with his left arm, and when he did I caught it, and I cuffed that left arm, got on the radio, advised radio that I was in a fight at Allgood, and then I was able to get his other hand handcuffed, and I backed out of the car, and I slammed the door. By this time Officer Kendrick and [Officer] Dong drove up, and then Sergeant Sparks showed up on the scene, and while we were getting the information [defendant] Sinclair was screaming and hollering, I couldn’t tell what he was saying, and he was beating his head against the windows in the back seat, and we made a decision to keep him from hurting himself, and from damaging the police vehicle, to take him out, and we hog-tied him. And when I opened the door up I told him what we were going to do, and he again started kicking, and, of course, we hog-tied him. [That is to say, we] cuffed [his] legs, and then restrained [his] hands and [his] feet together so that [he could not] maneuver around.”

The jury found defendant guilty of felony obstruction of a law enforcement officer, but not guilty of simple assault and committing terroristic threats and acts. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant first contends the trial court’s failure to give his requested jury instruction with regard to voluntary intoxication, along with the trial court’s charge on voluntary intoxication, “created an unconstitutional burden shift as to intent, under Sandstrom v. Montana, 442 U. S. 510, (99 S. Ct. 2450, 61 L. Ed. 2d 39) (1979).” Specifically, defendant cites Davis v. State, 161 Ga. App. 344 (287 SE2d 772), arguing that the trial court should have charged the following requested instruction in order to cure the trial court burden-shifting charge on voluntary intoxication: “If, the influence of alcohol, (drugs, or narcotics,) impairs a person’s mind to the extent that the person is not able to form an intent to do the act charged, that person would not be criminally responsible for the act.” This enumeration is without merit.

Defendant’s argument, as was our holding in Davis v. State, 161 Ga. App. 344, 345 (2), supra, is premised upon the fact that the trial court’s jury instruction on voluntary intoxication was impermissibly burden-shifting. The difference in the case sub judice, however, is that the trial court’s instruction is not so tainted. Indeed, the format and substance of the trial court’s charges pertaining to the State’s burden of proving intent, beyond a reasonable doubt, and voluntary intoxication are substantially the same as in Bright v. State, 265 Ga. 265, 277 (3) (455 SE2d 37), where the Georgia Supreme Court held that the trial court instruction on voluntary intoxication, “coupled with the standard instruction on the state’s burden of proving the defendant acted with the requisite intent, informs a jury that if the state has proven intent, the defendant cannot be excused from his conduct based upon his voluntary intoxication. See [State v. Erwin, 848 SW2d 476, 485 (1993)] (dissenting opinion).” (Footnote omitted.) Bright v. State, 265 Ga. 265, 277 (3), supra. Under these and other circumstances in the case sub judice, we find that the trial court did not err in failing to charge defendant’s requested instruction on voluntary intoxication. See Sydenstricker v. State, 209 Ga. App. 418, 419 (2) (433 SE2d 644).

Decided January 10, 1996.

Deville & Milholin, Roman A. Deville, Jeremy I. Stein, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Thomas A. Cole, Assistant District Attorneys, for appellee.

2. Next, defendant contends the trial court erred in failing to give his requested instruction on the lesser included offense of misdemeanor obstruction of a law enforcement officer.

“The misdemeanor obstruction offense does not contain the element of ‘violence’ as does the felony offense. Williams v. State, 196 Ga. App. 154, 156 (1) (395 SE2d 399). However, under the evidence presented at trial [in the case sub judice] any obstruction of the officers[, particularly Officer Teague,] was by means of ‘violence,’ and defendant was either guilty of the felony or innocent of any crime. Under these circumstances the trial court did not err in refusing to charge on misdemeanor obstruction [of a law enforcement officer]. Coker v. State, 207 Ga. App. 482, 484 (4) (428 SE2d 578); Dickerson v. State, 207 Ga. App. 241 (1) (427 SE2d 591); Hogan v. State, 205 Ga. App. 637, 638 (2) (423 SE2d 47); Love v. State, 194 Ga. App. 601, 603 (4) (391 SE2d 447).” Drew v. State, 211 Ga. App. 688, 689 (440 SE2d 82).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A94A2124.
    FUNK et al. v. FULTON COUNTY et al.
    (467 SE2d 612)
    Decided January 12, 1996.

      Peek & Whaley, J. Corbett Peek, Jr., James G. Peek, for appellants.

      Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., Jo L. Meeks, Susan B. Forsling, for appellees.
   McMurray, Presiding Judge.

In Funk v. Fulton County, 216 Ga. App. 30 (453 SE2d 82), we reversed the superior court’s judgment based on our finding that the jury had been improperly instructed. The Supreme Court granted certiorari and reversed our decision in Fulton County v. Funk, 266 Ga. 64 (463 SE2d 883). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur. Smith, J., disqualified.


author: Johnson, Judge.

text:
    A95A2054.
    POWELL et al. v. VONCANON.
    (467 SE2d 193)
   Johnson, Judge.

Charles VonCanon, d/b/a Property Management Systems, is in the business of compiling public real estate records and then selling that information via a computer network. In pursuit of that business, VonCanon filed a complaint under the Open Records Act, OCGA § 50-18-70 et seq., against Walker County Tax Commissioner Melba Powell, Tax Assessor Harold Hughes, Commissioner Roy Parrish and Superior Court Clerk Bill McDaniel, requesting that they give him, on computer disk or tape, copies of public real estate records held in their offices. The defendants admitted in their answer to the lawsuit that VonCanon is entitled to copies of public information stored on their computers for reasonable costs. VonCanon then moved for summary judgment, and the defendants filed a cross-motion for summary judgment, on the issue of the reasonable costs that the defendants may charge for the information. The trial court denied the defendants’ motion and granted VonCanon’s motion, ruling that the defendants may charge VonCanon the actual cost of a computer disk or tape onto which the information is transferred and the hourly wage of the lowest paid full-time employee of each defendant who can oversee or perform the transfer, although they cannot assess any charge for the first quarter hour of work. The defendants jointly appeal from the ruling, arguing that they can charge VonCanon costs greater than those determined by the court.

1. The argument of tax commissioner Powell, tax assessor Hughes and commissioner Parrish is without merit. The trial court correctly ruled that as to those three parties this case is controlled by OCGA § 50-18-71 (f), which provides: “Where information requested is maintained by computer, an agency may charge the public its actual cost of a computer disk or tape onto which the information is transferred and may charge for the administrative time involved as set forth in subsection (d) of this Code section.” That subsection states that “a reasonable charge may be collected for search, retrieval, and other direct administrative costs for complying with a request under this Code section. The hourly charge shall not exceed the salary of the lowest paid full-time employee who, in the discretion of the custodian of the records, has the necessary skill and training to perform the request; provided, however, that no charge shall be made for the first quarter hour.” OCGA § 50-18-71 (d). Based on OCGA § 50-18-71 (d) and (f), the court did not err in its ruling as to the reasonable costs that Powell, Hughes and Parrish may charge for providing the requested public information on a computer disk or tape. Accordingly, the court’s ruling as to Powell, Hughes and Parrish is affirmed.

2. The court, however, erred in ruling that superior court clerk McDaniel is limited to charging the same costs as Powell, Hughes and Parrish. OCGA § 15-6-96, which became effective after the Open Records Act, provides: “The clerk of the superior court is the custodian of the records of his or her office. Any contract to distribute, sell, or otherwise market records or computer generated data of the office of the clerk of the superior court for profit shall be made by the clerk of the superior court.” As the trial court found in its summary judgment order, this Code section, authorizing superior court clerks to contract to distribute the records of their offices for profits, conflicts with the Open Records Act mandate that agencies shall use the most economical means available for providing copies of public records. See OCGA § 50-18-71 (e). But contrary to the trial court’s conclusion, this conflict is not resolved by allowing the Open Records Act to prevail over OCGA § 15-6-96. “[A]ll statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it.” (Citations and punctuation omitted.) Henry v. Wild Pines Apts., 177 Ga. App. 576 (340 SE2d 233) (1986). Thus, because the legislature was aware of the Open Records Act at the time it passed OCGA § 15-6-96, “we find the statutes may be reconciled by giving recognition to the last stated statute.” (Citation and punctuation omitted.) Id. Moreover, at the time it passed OCGA § 15-6-96, the legislature expressly repealed all laws and parts of laws in conflict with the new statute. Ga. L. 1994, p. 672, § 3. Consequently, OCGA § 15-6-96 prevails over OCGA § 50-18-71 and any other part of the Open Records Act to the extent they conflict with the ability of superior court clerks to contract to market records of their offices for profit.

Decided January 16, 1996.

Watson & Dana, Dennis D. Watson, David D. Gottlieb, for appellants.

Grisham, Knight & Hooper, James B. M. Hooper, Walter E. Hooper, Burton & Anderson, Leon S. Jones, for appellee.

Rowe & Lawler, Thomas C. Lawler III, amicus curiae.

Furthermore, we note that application of OCGA § 15-6-96 to the particular facts of this case does not contravene the overall purpose of the Open Records Act. “The purpose is not only to encourage public access to such information in order that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions, but also to foster confidence in government through openness to the public.” Athens Observer v. Anderson, 245 Ga. 63, 66 (2) (263 SE2d 128) (1980). The computerized real estate records sought by VonCanon are already open to the public pursuant to OCGA § 50-18-70 (c), which requires any computerized index of county real estate deed records to be printed for public inspection no less than every 30 days. Allowing the Walker County superior court clerk to contract to earn a profit by providing a computer disk or tape containing this already public information in no way limits public access to the information. Accordingly, we hold that the court’s grant of summary judgment against superior court clerk McDaniel is reversed and the case is remanded to the trial court for a determination of the costs McDaniel may charge for reproduction of the requested computerized information. See McFrugal Rental &c. v. Garr, 262 Ga. 369, 370 (418 SE2d 60) (1992).

Judgment affirmed in part and reversed in part with direction.

Birdsong, P. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A95A2278.
    BOOMERSHINE PONTIAC-GMC TRUCK, INC. v. GLOBE INDEMNITY COMPANY.
    (466 SE2d 915)
   Smith, Judge.

Boomershine Pontiac-GMC Truck, Inc. d/b/a Boomershine Nissan appeals from the trial court’s grant of summary judgment to its insurer, Globe Indemnity Company d/b/a Royal Insurance Company, in this suit brought by Boomershine to recover proceeds under a policy of general commercial insurance.

Boomershine suffered losses from employee dishonesty. Upon discovery of these losses it submitted a claim to Royal. The policy issued by Royal to Boomershine covered such losses, but Royal denied the claim on the ground that the losses were not “discovered” within the time required under the policy. The policy language in issue provides that Royal would “pay only for covered loss discovered no later than one year from the end of the policy period.” No dispute exists that the policy period ended on June 1, 1991. The sole issue for decision in this appeal, therefore, is the propriety of the trial court’s conclusion that the evidence established that the loss was not “discovered” prior to June 1, 1992.

The trial court found that “[b]ecause Yancey was never able to identify prior to June 1, 1992, if losses were incurred, where losses existed, how losses were incurred or the amounts of any losses incurred, . . . [Boomershine] did not discover the covered losses within the one year extension permitted by the policy.” Because we find the trial court misstated the standard to be met, and because we conclude that genuine issues of material fact remain regarding when the loss was “discovered” within the meaning of the policy, we reverse the grant of summary judgment.

Finding the point at which the loss is “discovered” when the problem is employee dishonesty is always difficult; unlike some other insured losses, it is usual in such situations for the loss to be concealed insofar as possible, for as long as possible. It is therefore not surprising that Georgia cases have only rarely addressed issues surrounding the ascertainment of the date when a loss is “discovered” for purposes of complying with policy requirements in a fidelity claim. We find persuasive, however, the guiding principles set forth in Wachovia Bank &c. Co. v. Manufacturers Cas. Ins. Co., 171 FSupp. 369 (M. D. N. C. 1959). In Wachovia Bank &c. Co., the bank brought an action in federal court in North Carolina on a banker’s indemnity bond to recover proceeds covering a loss resulting from the embezzlement of bank funds by a teller. The principal question there, as here, was whether the loss was “discovered” prior to expiration of coverage. Id. at 375.

In general, the court held that to constitute “discovery,” facts must be known that would lead a reasonable person to assume that a loss exists. Id. at 375 (5). Those facts must be viewed as they would have been at the time discovery is asserted and not in the light of knowledge that was subsequently acquired. The insured need not have been in possession of details such as the exact amount of the loss or the specific manner in which the scheme caused a loss, as required by the trial court here, but the knowledge relied on to constitute “discovery” must rise above mere suspicion of loss. Simply being aware of facts that lead to other facts that ultimately reveal the existence of a shortage does not satisfy this test. The disclosure in an investigation after the expiration of the discovery period of an actual defalcation does not raise a previous suspicion to the level of a “discovery.” Discovery of unusual or suspicious circumstances does not always constitute a “discovery” of employee dishonesty even though the suspicion is confirmed when dishonest acts are later found to have occurred; if inefficient business procedures or discrepancies in accounts are as consistent with employees’ integrity as with their dishonesty, such circumstances do not constitute a “discovery” under the policy terms. Id. at 375-376 (5).

It is extremely difficult, then, to determine on summary judgment when a loss caused by employee dishonesty was “discovered.” In fact, it has been acknowledged that “ ‘[w]hether the information possessed by the [insured] amounts to actual knowledge of loss or wrongdoing or is merely a basis for suspicion is usually regarded as a question for the jury under proper instructions from the court, provided there is room under the evidence for any reasonable difference of opinion.’ [Cit.]” First Fed. Sav. &c. v. Commercial Union Ins. Co. &c., 115 Ga. App. 756, 758 (156 SE2d 101) (1967). First Fed. Sav. &c. involved an employee dishonesty claim on a fidelity bond that provided for termination of the bond “when ‘the insured ... or any officer thereof not in collusion with such employee discovers any fraudulent or dishonest act on the part of” the dishonest employee. Id. at 757. We held that some evidence existed from which a jury could properly find “discovery.” Id. at 759 (1).

Our task in this case is to determine whether, as a matter of law and without any reasonable difference of opinion, the information possessed by Boomershine on June 1, 1992 (the date coverage under the Royal policy expired), did or did not meet the standard of being actual knowledge of employee dishonesty, which would constitute a “discovery.” If the facts do not show as a matter of law either that Boomershine had such knowledge or that it did not, this case falls under the general rule, and a jury must determine whether the loss was “discovered” by June 1, 1992. We find that the general rule indeed does control here, and we must reverse the trial court’s grant of summary judgment to the insurer.

The record shows that Charles Yancey, secretary-treasurer of Boomershine, was in charge of operations at all the Boomershine organizations, including Boomershine Nissan. By April 1992, Yancey asked Norman Ficke, the general manager of the Nissan dealership in Duluth, to look into his used car operation because it “just didn’t seem right.” Ficke reviewed it, and reported back to Yancey that he thought “everything was okay.”

Yancey continued to believe that a problem existed, however. He noticed that the operation was generating unusually high accounts receivable that were aging, but as soon as they were brought to Ficke’s attention, they would be paid “real promptly.” In addition, when these receivables were paid, payment was sometimes made in a peculiar manner: One check would pay off several receivables, and the amount of the receivables did not always match the exact amount of the check. Yancey was also suspicious for other reasons: The account covering those cars Boomershine Nissan bought for wholesale resale showed a loss every month, which was unusual although the loss was small; the paperwork in the used car department was generally sloppy; and he never saw one of the two people in the wholesale used car department.

Ficke did not view the problem as seriously as Yancey did, however, and in fact, Ficke thought a reasonable explanation for the unusual circumstances could be found in the unusually high volume of wholesale business engaged in by Boomershine Nissan. In April 1992, Yancey discharged Ficke, partly because no solution had been found to the problem. Before being discharged, Ficke never informed Yancey that any loss had been sustained in the used car department. Yancey admitted that as of the date he discharged Ficke, in April, he still was unsure what the problem was.

Yancey hired David Pollard to succeed Ficke, and Pollard began his employment on June 1, 1992. Unlike Ficke, Pollard had an accounting background in addition to his automotive management experience. In the interim, Yancey himself tried to cover Ficke’s duties. Yancey’s initial instructions to Pollard were not to bother managing any other aspects of the dealership but to concentrate exclusively on finding the problem in the used car department.

Pollard complied with this directive, and he soon became aware himself of “something wrong.” Pollard’s investigation was still continuing when on July 6, 1992, Harold Dixon, an employee in the used car department and the father of the used car manager, confessed that he had been stealing money from the dealership by pocketing the proceeds of checks he authorized to be drawn on the dealership account for the purchase of fictitious vehicles for resale. He estimated he had stolen about $170,000 from Boomershine.

Both Pollard and Yancey testified on their depositions they did not know the exact cause of the problem until Dixon confessed. Yancey testified that the time he spent at the Nissan dealership between Ficke’s departure and Pollard’s arrival, which was prior to the expiration of coverage under the policy, led him to learn more about the problem. He became certain then that a problem existed, although it did not lead him to any specific employee or employees. He thought it possible that an employee might be “skimming money off the top” but confessed that his suspicions centered more on the other employee than on Dixon. Although Pollard’s knowledge soon became more detailed, that knowledge was necessarily acquired after June 1, 1992. Pollard knew some cars were being sold by Boomershine for less than what had been spent to acquire them, which was highly suspicious, particularly in light of entries reducing the book values of the cars.

Based on this record, we cannot agree with Boomershine’s assertion that the record shows that by June 1, 1992, Yancey “concluded correctly that an employee in the used car department was causing losses through dishonest operations.” Certainly, he thought this was a possibility. But the record shows clearly only that Boomershine was aware of small losses shown by the wholesale used car department, losses which were characterized as minor, and that Yancey referred outwardly to his thoughts regarding employee dishonesty as “suspicions.” Pollard testified that Yancey did not point him in any specific direction in the used car operation. Pollard admitted that even after June 1, 1992, when he discovered that cars were sold for less than their cost, that could have been caused by something other than employee misappropriation of funds. The record does show a statement by Pollard that at some time before June 15, 1992, he knew a loss existed because he had assets listed that he could not find. He acknowledged, however, that even on June 15, 1992, causes other than employee dishonesty could have been responsible for such losses. The record does not establish as a matter of law that Boomershine “discovered” the loss within the coverage period.

Likewise, however, the record also fails to establish as a matter of law that Boomershine had not “discovered” the loss by June 1, 1992. The policy recites that it covers employee dishonesty whether the dishonest employee is identified or not. If Boomershine can show that it knew by June 1, 1992, that it was definitely the victim of employee dishonesty, then despite its failure by that date to identify Dixon as I the culprit, the loss would be covered under the policy as written. I Under this policy’s language, coverage depends on the “discovery” date, which in turn depends on the nature and extent of information J possessed by Yancey (and possibly only by Yancey) on June 1, 1992. Since the record does not establish with precision the extent of Yancey’s knowledge on that date and reasonable minds could differ as to what was known on that date by Yancey, the question of coverage may not be decided as a matter of law. A jury must determine this issue.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

Decided January 17, 1996.

Stephen C. Whicker, for appellant.

Welch, Spell, Reemsnyder & Pless, Ronald D. Reemsnyder, Hope R. Arbery, for appellee.

       Certain other issues, including timeliness and adequacy of notice and proof of loss were not considered by the trial court because Royal’s declination of coverage was made upon this single ground.


author: Beasley, Chief Judge.

text:
    A95A2467.
    PRUDENTIAL BANK et al. v. MOORE.
    (467 SE2d 7)
   Beasley, Chief Judge.

The appellants Prudential Bank and its insurer appeal the trial court’s reversal of the denial of benefits to claimant Moore by the appellate division of the State Board of Workers’ Compensation.

Claimant was employed as a computer clerk with Prudential. When her supervisor noted that there were numerous errors in her work, claimant explained that these errors were related to vision problems. Shortly thereafter, claimant had a fall at work, apparently from fainting, and hit her head on the baseboard. She alleges suffering diplopia (double vision), headaches, neck pain, and carpal tunnel syndrome as a result of the fall. The administrative law judge made an award in favor of Prudential, finding that the idiopathic fall did not arise out of claimant’s employment, and therefore she was not entitled to workers’ compensation benefits. The ALJ also found that she failed to prove that any disability she suffered was causally connected to the accident. The appellate division disputed a factual finding relating to claimant’s supervisor testifying at the administrative hearing, but it affirmed the finding that the fall did not arise out of claimant’s employment and that benefits would not be awarded, citing Borden Foods Co. v. Dorsey, 112 Ga. App. 838 (146 SE2d 532) (1965). Claimant appealed to the superior court, which agreed that Borden was controlling. Nevertheless, it disagreed with the appellate division’s application of Borden to the facts, reversed the decision and remanded the case.

1. Injuries from idiopathic falls on the job generally are not afforded coverage under the Workers’ Compensation Act, since they do not arise out of the employment although they occur in the course of employment. OCGA § 34-9-1 (4). Borden Foods Co., supra at 838. There is a narrow exception when, in the process of the idiopathic fall, the claimant strikes some object specifically related to the work place, such as a work bench, machinery or equipment, because of the “increased risk” caused by the presence of the work-related object. United States Cas. Co. v. Richardson, 75 Ga. App. 496, 500 (43 SE2d 793) (1947). Claimant maintains the Richardson decision compels that she be compensated in that her idiopathic fall was not directly to the floor, but was interrupted by hitting her head on the baseboard, which she maintains was an increased risk of her employment. Claimant’s attempt to contrast hitting one’s head on a floor baseboard as opposed to hitting the floor directly makes a distinction without a difference. Neither is compensable as an accident arising out of her employment, because a baseboard — like a floor — is a structural hazard that the claimant is equally exposed to apart from her employment. An accident does not arise out of employment when it “ ‘cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work. . . . [Cit.]’ [Cit.]” A & P Transp. v. Warren, 213 Ga. App. 60, 62 (443 SE2d 857) (1994). A wall and baseboard is not peculiar to the employment and thus does not fit the exception to non-coverage.

Decided January 17, 1996

Saveli & Williams, Mark S. Gannon, Vincent A. Toreno, for appellants.

Drew, Eckl & Farnham, Charles L. Drew, for appellee.

2. Because of our holding in Division 1 that the superior court erred in reversing the appellate division, it is unnecessary to rule on appellants’ other enumeration.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

        Richardson is also distinguishable from this case in that the state board there affirmed a specific factual finding that the seizure claimant suffered had been caused by on-the-job exertion as opposed to an idiopathic cause. Id. at 498.


text:
    A95A2547.
    BAYNES v. BAYNES.
    (467 SE2d 195)
   Beasley, Chief Judge.

Shirley Baynes appeals from the denial of a motion for new trial. It followed the probate court’s denial of her request for issuance of letters of administration to herself and the issuance instead to appellee Trina Baynes, whom the court simultaneously appointed as administratrix. The estate at issue is that of Harold George Baynes, whose common law wife Shirley Baynes claimed to be. Trina, who had objected to the appointment of Shirley, is his daughter.

A trial was held, and the trial court set out its findings of fact.

1. The first enumeration is that the court erred in holding that “collateral” evidence was sufficient to overcome the presumption of a common law marriage established by “direct evidence.”

The evidence was in conflict, as recited by the trial court and as admitted by appellant in her brief. The court’s observation, that the parties held themselves out as married when it was to their benefit to do so and maintained their non-marital status when it was to their benefit, is supported by the evidence. This led to the finding that there was no marriage, as such legal relationship cannot be partial or periodic. The evidence must be construed in favor of the judgment. Brown v. Carr, 198 Ga. App. 567 (402 SE2d 296) (1991); Evans v. Marbut, 140 Ga. App. 329, 332 (231 SE2d 94) (1976). The appellate court will not disturb a verdict or nonjury judgment in such a case “if there is any evidence to support [it].” Ridley v. Grandison, 260 Ga. 6 (389 SE2d 746) (1990).

As the trial court recognized, there are three elements of a marriage in Georgia. OCGA § 19-3-1. They must exist “all at one period in time.” Brown v. Brown, 234 Ga. 300, 301-302 (215 SE2d 671) (1975). When the alleged marriage is unlicensed and nonceremonial, the burden is on the proponent to prove that a common law marriage existed. Drawdy v. Hesters, 130 Ga. 161, 170 (5) (60 SE 451) (1908). This may be done by various means. See, e.g., Fireman’s Fund Ins. Co. v. Smith, 151 Ga. App. 270, 273 (2) (259 SE2d 675) (1979); Brown v. Brown, supra. The issue is one for the factfinder. Drawdy, supra at 163; Edwards v. Edwards, 188 Ga. App. 821 (1) (374 SE2d 791) (1988).

Both direct evidence and indirect evidence are admissible, Scott v. Jefferson, 174 Ga. App. 651, 653 (2) (331 SE2d 1) (1985), and in this case there is no direct evidence of “an actual contract,” which is one of the elements. OCGA § 19-3-1 (2). Even if appellant’s testimony were taken as such, the factfinder was not bound by it. Brown v. Brown, supra. The weight and credibility of evidence are for the jury (or bench) to determine. OCGA § 24-9-80; Evans v. State, 207 Ga. App. 358, 359 (1) (427 SE2d 837) (1993).

2. Contrary to the appellant’s second enumeration, the court did not erroneously consider motive as determinative of the fact of existence vel non of a common law marriage.

The actions of the appellant and the deceased were sometimes inconsistent with respect to marriage. Of particular significance to the trial court was the evidence that in all the fifteen years the two lived together, the deceased never told his daughter, his mother, his brother, or his best friend that he was married to appellant. His firearms license showed his mother’s address as his actual residence address, as did his voter registration card, and appellant herself did not list the deceased as her spouse on documents filed for public housing. Compare Beals v. Beals, 203 Ga. App. 81, 82 (1) (416 SE2d 301) (1992).

Decided January 17, 1996.

Lawson & Thornton, Charles S. Thornton, Derek M. Wright, for appellant.

Scott Walters, Jr., for appellee.

This evidence supports the court’s findings, and the court’s deduction regarding the various patterns of “holding out” behavior was not an impermissible one. The court did not consider it determinative of the fact of marriage, but as some evidence that the parties had not intended to enter into a binding marriage.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A1942.
    A95A1943.
    A95A2003.
    BUCKNER v. BIBB YARNS, INC. ROUSE v. BIBB YARNS, INC. BUCKNER v. BIBB YARNS, INC.
    (467 SE2d 183)
   Beasley, Chief Judge.

We consolidated these appeals after granting applications for discretionary appeal by Buckner and Rouse, workers’ compensation claimants. The appeals are from orders reversing the awards of total disability benefits to claimants based on a change in condition. The question in each case is whether the claimant carried his or her burden of proof.

Buckner became a light-duty employee of Bibb Yarns, Inc., after suffering a compensable injury to her hands while working at the Monroe County plant. While on light-duty status at the Bibb County plant, Buckner suffered another compensable injury to her knee. Rouse became a light-duty employee after suffering a compensable injury to his knee while working at the Bibb County plant.

Both Buckner and Rouse were working at the Bibb County plant when Aladdin Industries purchased all of the assets of Bibb Yarns and discontinued them and other light-duty employees at the Bibb County plant. They sought a recommencement of total disability benefits based on a change in condition. Rouse alternatively requested partial disability benefits.

In both proceedings, the ALJ concluded that the claimants had not carried their burden of proof, but the Appellate Division concluded otherwise. Bibb Yarns appealed to the Bibb and Monroe superior courts in Buckner’s case and to the Bibb superior court in Rouse’s case. Both courts reversed the State Board in all three appeals.

In the proceeding instituted by Buckner, the ALJ found that Buckner had not shown whether Aladdin failed to hire all or merely some of the light-duty employees at the Bibb County plant. The ALJ also found that Buckner had sought employment with a number of different prospective employers, had told all of them of her physical limitations, and had not been offered a job. As to Rouse, the ALJ found that Aladdin had eliminated all light-duty jobs at the Bibb County plant, that Rouse had gone to the employment office to look for job leads, had looked for other work and informed prospective employers of his physical limitations, but that none of the prospective employers had given him an application. In both instances, the ALJ concluded that the employee failed to carry the burden of proof to show that jobs were available or that applications were not given or jobs were not offered due to her or his physical condition.

In both employees’ cases, the ALJ relied upon Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991), and Autolite v. Glaze, 211 Ga. App. 780 (440 SE2d 497) (1994). In Landon, as in Ga. Power Co. v. Brown, 169 Ga. App. 45, 47 (2) (311 SE2d 236) (1983), a light-duty employee sought a recommencement of benefits based on a change in condition after being terminated for cause. In Autolite, as in Hartford Accident &c. Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978), a light-duty employee sought a recommencement of benefits based on a change in condition after being laid off because her employer closed the plant at which she worked. Both Bristol and Brown held that in order for the claimants to have carried their burden of showing a change in economic condition or loss of earning capacity as a result of their compensable injuries, the burden was on them to show that their inability to secure suitable employment elsewhere was proximately caused by their previous accidental injuries. This Court held that in order for the employees in Autolite as well as London to have met this burden, it was necessary for them to show the reasons they were not hired by prospective employers.

In reversing the awards of the ALJ in Buckner’s and Rouse’s cases, the Appellate Division found that both employees were terminated by Aladdin because of their compensable injuries. It distinguished London and Autolite based on this fact. Citing Gilmer v. Atlanta Housing Auth., 170 Ga. App. 326 (316 SE2d 535) (1984), the Appellate Division concluded that both Buckner and Rouse had carried their burden of proving they were unable to maintain suitable employment due to their work-related injuries, and that they were not required to prove that their inability to obtain suitable employment elsewhere was also caused by their compensable injuries.

The superior courts reversed the awards, ruling that the employees had not shown that their injuries were the reason Aladdin did not hire them and that, additionally, they had not shown that other prospective employers had not hired them due to their physical limitations.

Decided January 4, 1996

Reconsideration denied January 18, 1996.

Steven E. Marcus, for appellants.

Wall & Elliott, Elton L. Wall, Anderson, Walker & Reichert, Brown W. Dennis, Jr., for appellee.

George, Bartles & Wallach, Alex B. Wallach, Gardner, Willis, Sweat & Goldsmith, Robert D. Goldsmith, amici curiae.

To the extent that cases such as Landon and Autolite required an employee to show the reasons he or she was not hired by prospective employers, they were overruled in Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995), which involved a light-duty employee who had been terminated for cause. In order to receive workers’ compensation benefits based on a change in condition, Maloney holds that “a claimant must establish by a preponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination.” Id. at 828.

It is uncontested that both Buckner and Rouse continue to suffer physical limitations attributable to their compensable work-related injuries. As we interpret the awards of the ALJ, she found that both Buckner and Rouse made diligent but unsuccessful efforts to secure suitable employment elsewhere, but she concluded that they had not carried their burden of showing a loss of earning power as a result of their injuries so as to be entitled to total disability benefits, based upon London’s and Autolite’s requirement that the employee show why he or she was not hired by prospective employers. The Appellate Division found these decisions distinguishable, but opined that Landon should be limited to its facts and Autolite overruled. In Maloney, the Supreme Court did overrule these decisions insofar as they imposed the requirement that the employee show the reason he or she was not hired by prospective employers. Therefore, the question of whether Landon and Autolite are distinguishable from the present cases is moot and, under Maloney, the awards of the Appellate Division in these three appeals should be affirmed.

Judgments reversed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A2834.
    A95A2835.
    A95A2836.
    A95A2837.
    A95A2838.
    A95A2839.
    LONG v. HALL COUNTY BOARD OF COMMISSIONERS et al. LONG v. DEPARTMENT OF CORRECTIONS et al. LONG v. PHILLIPS et al. HAMMOND v. HALL COUNTY BOARD OF COMMISSIONERS et al. HAMMOND v. DEPARTMENT OF CORRECTIONS et al. HAMMOND v. PHILLIPS et al.
    (467 SE2d 186)
   McMurray, Presiding Judge.

Plaintiffs Marsha Long and Peggy Lynn Hammond brought separate but identical tort actions seeking to recover for personal injuries received when, on June 9, 1992, the automobile in which they were riding was struck by a truck owned by defendant Malcolm Richard Phillips and driven by defendant Jerome Walker. The material facts are not in dispute. While an inmate under the custody of defendant Hall County Correctional Institute (the “Correctional Institute”) and defendant Georgia Department of Corrections (the “Department of Corrections”), Jerome Walker escaped from a minimum security work detail. Jerome Walker then stole Malcolm Richard Phillips’ truck, which had been parked with the keys left in the ignition. Allegedly as a result of Jerome Walker’s negligent driving, he caused a head-on collision resulting in plaintiffs’ injuries. According to the amended complaint, Jerome Walker “was permitted to gain access to defendant [Malcolm Richard] Phillips’ vehicle due to the negligence of employees and/or agents of the . . . Correctional Institute and/or the . . . Department of Corrections,” because Jeffery A. Cates, the correctional officer assigned to the particular work detail, failed to inspect the work area for means of escape and further failed to supervise Jerome Walker. Defendant Malcolm Richard Phillips was negligent by leaving “his vehicle unlocked knowing that the keys were in the vehicle and knowing that, . . . prisoners were in the area where the vehicle was parked.” Defendant Hall County Board of Commissioners is allegedly “vicariously liable under a theory of respondeat superior for the acts, omissions and negligence of defendant [Malcolm Richard] Phillips.”

Jerome Walker was personally served by leaving a copy of each summons and complaint with Robert Ingram, “a person of suitable age and discretion,” at Jerome Walker’s dwelling and usual place of abode. No defensive pleadings were filed on Jerome Walker’s behalf and default judgment was entered against him. The Hall County Board of Commissioners and the Correctional Institute answered, denying the material allegations of negligence, asserting immunity, but further admitting that Jerome Walker was a “state prisoner” at the time of the collision; that the Correctional Institute is a “county work camp housing state inmates and [which] operates under the control of Hall Countyf, . . .] subject to various regulations of the Georgia Department of Corrections”; and that Jerome Walker was on a “work detail prior to the collision. . . .” Also there is an “insurance policy apparently covering the . . . Correctional Institute for any liability against it based on the incident. . . involving the motor vehicle collision.” The Department of Corrections denied the material allegations but admitted that “[u]nder the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., the Georgia Department of Corrections has waived any sovereign immunity.” Defendant Malcolm Richard Phillips admitted that the vehicle “owned by him . . . was stolen by Defendant Walker on June 9, 1992[,]” and cross-claimed against Jerome Walker, seeking to recover the value of his vehicle and reimbursement for any damages assessed against Malcolm Richard Phillips.

After discovery, each remaining defendant moved for summary judgment, which was granted by the trial court. Plaintiffs appealed directly to the Supreme Court of Georgia, which transferred these six appeals to the Court of Appeals of Georgia. In Case No. A95A2834, Marsha Long appeals from the grant of summary judgment to defendants, the Hall County Board of Commissioners and the Correctional Institute. In Case No. A95A2835, Marsha Long appeals from the grant of summary judgment to the Department of Corrections and its agents. In Case No. A95A2836, Marsha Long appeals from the grant of summary judgment to Malcolm Richard Phillips. In Case No. A95A2837, Peggy Lynn Hammond appeals from the grant of summary judgment to the Hall County Board of Commissioners and the Correctional Institute. In Case No. A95A2838, Peggy Lynn Hammond appeals from the grant of summary judgment to the Department of Corrections and its agents. In Case No. A95A2839, Peggy Lynn Hammond appeals from the grant of summary judgment to Malcolm Richard Phillips. As the plaintiffs raise identical contentions and enumerations of error, the cases are hereby consolidated for disposition on appeal in this single opinion. Held:

Case Nos. A95A2836 and A95A2839

1. With respect to defendant Malcolm Richard Phillips, plaintiffs contend the trial court’s grant of summary judgment is erroneous because a jury should determine whether Malcolm Richard Phillips’ act of leaving an unlocked car with the keys in it near a county work farm is reasonably foreseeable as a contributing cause to the injuries they sustained when Malcolm Richard Phillips’ truck, as negligently driven by the escapee Jerome Walker, collided with their vehicle. This contention is controlled adversely to plaintiffs by a venerable line of authority holding that the alleged negligence of the owner, in leaving the keys in the ignition, is not the legal cause of personal injuries sustained due to the negligent operation of a stolen vehicle by a thief.

“ ‘(M)ere ownership of an automobile involved in a collision may not be made the basis for holding an owner liable for the negligent operation of the automobile without showing that the defendant owner was guilty of some other negligent act which proximately contributed to the plaintiff’s injury.’ Redd v. Brisbon, 113 Ga. App. 23, 26-27 (147 SE2d 15) (1966). ‘With reference to the issue of proximate cause, there can be no recovery by a plaintiff for the negligence of a defendant “which was not the proximate cause of the injury. If the cause was remote and furnished only the condition or occasion of the injury, it was not the proximate cause thereof.” (Cits.)’ Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 157 (256 SE2d 916) (1979). ‘ “The owner, or keeper, of an automobile will not be held liable for a negligent homicide committed therewith in a public street by a person old enough to be discreet and responsible in the eyes of the law, who took the machine, without the knowledge of the former.” (Cit.)’ Rape v. Barker, 25 Ga. App. 362, 363 (103 SE 171) (1920). ‘Even if we [were] for a moment [to] concede . . . that it would be negligent^ i.e., a breach of a duty of care owed to others,] for a person to leave an automobile . . . without chaining it down or locking it ... , still when the injury which actually happens is directly resultant from the immediate negligence of a conscious, efficient, and responsible actor, with whose conduct the former is in no wise bound by any privity, the leaving of the machine unguarded is not the proximate cause of the injury.’ Lewis v. Amorous, 3 Ga. App. 50, 56 (59 SE 338) (1907). The fact that the keys were left in the unguarded automobile would not authorize a recovery against the owner for the injuries which were the result of its subsequent negligent operation by a thief. See [the whole court decision of] Robinson v. Pollard, 131 Ga. App. 105[, 106 (1), 107] (205 SE2d 86) (1974).” Dunham v. Wade, 172 Ga. App. 391, 392 (2) (323 SE2d 223). In Georgia, it is not the duty of the owner or driver of an automobile, before leaving it parked, to render the vehicle “impossible for it to be started by a third person.” Lewis v. Amorous, 3 Ga. App. 50, 56, supra. We decline plaintiffs’ invitation to hold that Dunham v. Wade, 172 Ga. App. 391, 392 (2), 393, supra, “incorrectly interprets O.C.G.A. § 40-6-201,” regarding the absence of a statutory requirement that a driver remove the ignition key from an unattended car. In the two cases sub judice, the trial court correctly granted summary judgment to defendant Malcolm Richard Phillips, the owner of the stolen vehicle. His act in leaving his truck parked, unattended, and with the keys in the ignition, was not the legal cause of any injuries plaintiffs sustained in the subsequent collision. See Price v. Big Creek of Ga., 191 Ga. App. 534, 535 (382 SE2d 356).

Case Nos. A95A2834 and A95A2837

2. The trial court held that the Hall County Board of Commissioners and the Hall County Correctional Institute were entitled to summary judgment on the basis of sovereign immunity. Plaintiffs contend the trial court erred “in failing to find that sovereign immunity was waived, and in failing to find that Article I, Section II, Paragraph IX (e) of the [1983] Georgia Constitution, O.C.G.A. § 33-24-51 (b) and O.C.G.A. § 36-33-1 (a) create a constitutional-statutory scheme which unconstitutionally denies [plaintiffs] equal protection and due process.”

(a) The transfer of these appeals from the Supreme Court of Georgia to the Court of Appeals of Georgia is tantamount to a ruling that any constitutional argument, even if properly raised, is nevertheless without merit. See, e.g., Crutchfield v. State, 218 Ga. App. 360 (1) (461 SE2d 555).

(b) Scottsdale Insurance Company issued a “Comprehensive Law Enforcement Liability Policy,” naming as insureds the “County of Hall, GA.,” and the Correctional Institute, and containing the following clause: “13. SOVEREIGN IMMUNITY. It is agreed that the Company will not avail itself of the defense of sovereign immunity to which the INSURED may be entitled by reason of its being a public and/or governmental entity, unless the INSURED requests the Company to raise such defense by written notice to the Company not less than ten (10) days before the time to file an answer to any suit.” Plaintiffs argue that the defense of sovereign immunity was waived by these defendants due to their purported failure to instruct the insurer to assert sovereign immunity in writing before filing an answer as required by the terms of the policy.

“Unless sovereign immunity has been waived, that defense bars [plaintiffs’] claims against [Hall] County, the [several] commissioners, and [any] county employees in their official capacities. Gilbert v. Richardson, 264 Ga. 744, 746 (2), fn. 4 (452 SE2d 476) (1994). Since the [June 9,1992, collision in the cases sub judice] occurred after January 1, 1991, the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983 is controlling on this issue. Pursuant to that constitutional provision, the defense of sovereign immunity to tort liability cannot be waived by the mere purchase of insurance coverage. Donaldson v. Dept. of Transp., 262 Ga. 49, 50 (1) (414 SE2d 638) (1992). That defense can only be waived pursuant to a ‘legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver.’ Gilbert v. Richardson, [264 Ga. 744,] supra at 748 (3).” Woodard v. Laurens County, 266 Ga. 404, 405 (1) (456 SE2d 581). Plaintiffs in the cases sub judice refer this Court to no legislative act which specifically provides that sovereign immunity is waived by the purchase of a comprehensive law enforcement liability policy. Compare OCGA § 33-24-51 (b). “A county’s sovereign immunity has been waived pursuant to OCGA § 33-24-51 (b), but only ‘to the extent of the amount of liability insurance purchased for the negligence of (county) officers, agents, servants, attorneys, or employees arising from the use of a motor vehicle.’ (Emphasis supplied.) Gilbert v. Richardson, [264 Ga. 744,] supra at 749 (4). [In the cases sub judice,] OCGA § 33-24-51 (b) does not apply because the liability of [the Hall County Board of Commissioners and the county Correctional Institute] is not predicated upon their alleged negligent use of an insured motor vehicle.” (Emphasis supplied.) Woodard v. Laurens County, 265 Ga. 404, 405 (1), supra. Since, with respect to the cases sub judice, the General Assembly has not waived the defense of sovereign immunity, as raised in defendants’ answer, the trial court correctly granted summary judgment to the Hall County Board of Commissioners and the county Correctional Institute.

Case Nos. A95A2835 and A95A2838

3. The trial court granted summary judgment to the Georgia Department of Corrections on two grounds. First, the trial court concluded that the Hall County Correctional Institute was clearly acting as an independent contractor to the Department of Corrections when the Correctional Institute employee, Jeffery A. Cates, was guarding the inmate Jerome Walker, and that the General Assembly had not waived the State’s sovereign immunity with respect to the alleged negligence of an independent contractor. Secondly, the trial court concluded that the State was not liable for any losses resulting from the method of providing law enforcement or police protection. These rulings are enumerated as error.

Any question of fact as to Jeffery A. Cates’ status as a State officer, employee, or agent within the meaning of OCGA § 50-21-22 (7) is ultimately immaterial. With respect to tort claims against it, the State of Georgia “waives its sovereign immunity only to the extent and in the manner provided in [OCGA § 50-21-20 et seq.].” OCGA § 50-21-23 (b). The Georgia Tort Claims Act expressly provides that the State shall have “no liability for losses resulting from: . . . Civil disturbance, riot, insurrection, or rebellion or the failure to provide, or the method of providing, law enforcement, police, or fire protection[.]” OCGA § 50-21-24 (6). In the cases sub judice, the allegation that Jeffery A. Cates negligently supervised the work detail from which the inmate Jerome Walker escaped amounts to a failure to provide law enforcement services within the meaning of this Code section. Since the State shall not be liable for losses occasioned by such failure to provide law enforcement, the trial court correctly granted summary judgment to the Department of Corrections.

Decided January 9, 1996

Reconsideration denied January 18, 1996

Paul R. Vancil, for Long and Hammond.

England & McKnight, George M. Weaver, for Hall County Board of Commissioners.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, William F. Amideo, David J. Marmins, Assistant Attorneys General, for Department of Corrections.

Whelchel, Dunlap & Gignilliat, Charles N. Kelley, Jr., for Phillips.

Judgments affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2557.
    HOLMES et al. v. BOGINO et al.
    (467 SE2d 197)
   Beasley, Chief Judge.

In 1975, T. C. Holmes, Jr., leased certain commercial property to Windsor Beverages, Inc. Appellants-plaintiffs (landlords) are the successors in interest to Holmes. Appellees-defendants (tenants) are the assignees of Windsor. Landlords filed this dispossessory proceeding, seeking judgments against tenants, as well as their assignees, for unpaid rent and other charges due under the lease.

Landlords also sought interest and attorney fees under various provisions in the lease. With regard to interest, the applicable lease provision states that any amounts not paid by tenants to landlords within the times set forth in the lease shall bear interest from the date any such payment was due until paid “at two percent (2%) above the prime rate as determined from time to time by the Chase Manhattan Bank but not in excess of the highest legal rate of interest allowable.” In the lease, tenants also agreed to pay “any reasonable attorney’s fees incurred by landlord [s]” if, on account of any breach or default by tenants, it became necessary for landlords to employ an attorney to enforce or defend any of landlords’ rights or remedies under the lease.

At a bench trial, landlords’ witness testified without objection that he had acquired a history of Chase Manhattan’s prime rate since 1934 and that the lowest prime rate of that bank during the period in question was six percent. Landlords calculated the interest due under the lease by adding two percentage points to this six percent figure.

In its final judgment, the court awarded to landlords $27,965.38 for unpaid rent and other charges. It declined to award interest, based on the ruling that landlords’ proof of the Chase Manhattan Bank’s prime rate was mere hearsay. The court concluded that landlords’ attorney fee claim is subject to OCGA § 13-1-11 so as to limit their entitlement to fifteen percent of the first $500 and ten percent of all other amounts. See OCGA § 13-1-11 (a) (2).

1. Landlords enumerate as error the refusal to award interest. They contend that the court erred in ruling that their proof of the Chase Manhattan Bank’s prime rate was mere hearsay. We agree.

Through the testimony of their witness, landlords made a showing of the applicable interest rate charged by the Chase Manhattan Bank during the period in question. Compare Read v. Benedict, 200 Ga. App. 4, 8 (3) (406 SE2d 488) (1991); Garrett v. Atlantic Bank &c. Co., 157 Ga. App. 103 (1) (276 SE2d 152) (1981); Moore v. Wachovia Mtg. Co., 138 Ga. App. 646, 647 (1) (226 SE2d 812) (1976). It does not affirmatively appear from the witness’s testimony that he had personal knowledge of the fact to which he testified. However, it does not affirmatively appear that the witness was without such knowledge. Moreover, tenants did not object to the witness’s testimony on grounds that he was not competent to testify to this fact or that a proper foundation had not been laid for admission of his testimony. Compare Lehman v. Zuckerman, 198 Ga. App. 202, 204 (4) (400 SE2d 704) (1990). Therefore, this case is governed by the rule that where a witness testifies to a fact, the presumption is that he is testifying from his own knowledge in the absence of anything to the contrary. Johnson v. Woodward Lumber Co., 76 Ga. App. 152 (1) (45 SE2d 294) (1947). It was error to exclude this proof as hearsay.

2. Landlords contend that the court erred in ruling that their attorney fee claim is subject to OCGA § 13-1-11, in that a commercial lease does not constitute an “evidence of indebtedness” within the meaning of OCGA § 13-1-11.

In Burgess v. Clermont Properties, 141 Ga. App. 112 (2) (232 SE2d 627) (1977), this Court found “no reason why a lease may not be an ‘evidence of indebtedness’ ” within the meaning of OCGA § 13-1-11. In other cases, OCGA § 13-1-11 has been applied unquestioningly to provisions in leases authorizing the landlord to recover attorney fees against a tenant in default. Duff’s Enterprises v. B. F. Saul &c. Trust, 170 Ga. App. 9, 10 (1) (316 SE2d 21) (1984); Kasum Communications v. CPI North Druid Co., 135 Ga. App. 314 (217 SE2d 492) (1975).

An examination of OCGA § 13-1-11 in its entirety shows that it is generally intended to apply to obligations to pay attorney fees upon any note or other evidence of indebtedness under which principal and interest are owing. The rent and other charges which the lease required tenants to pay constituted the principal amount of their debt. The lease also required tenants to pay interest on unpaid amounts. Compare Holcomb v. Evans, 176 Ga. App. 654, 657 (3) (337 SE2d 435) (1985); O’Brien’s Irish Pub v. Gerlew Holdings, 175 Ga. App. 162, 165 (4) (332 SE2d 920) (1985). This lease was thus an “evidence of indebtedness” within the meaning of OCGA § 13-1-11.

Decided January 18, 1996.

Chesnut & Livingston, Tom Pye, for appellants.

Spix, Krupp & Reece, Mark V. Spix, Edward F. Danowitz, for appellees.

Judgment reversed and case remanded for entry of a new judgment in conformity herewith.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A2651.
    CONNER v. GREENE et al.
    (467 SE2d 199)
   Blackburn, Judge.

Randall Conner, an employee allegedly suffering a job-related injury at the hands of third-party tortfeasors, Arthur Greene (Greene) and his employer, Wilson Trucking Corporation (Wilson), appeals the grant of summary judgment entered in favor of said tortfeasors under the former version of OCGA § 34-9-11.1 (c).

Conner, a truck driver, was injured on December 7, 1992, when his tractor-trailer rig was struck by another rig owned and operated by Wilson and driven by Wilson’s employee Greene. Conner, a California resident, received workers’ compensation benefits from his employer which is located in California. On December 5, 1994, Conner filed the underlying tort action to recover for his injuries against Wilson, its insurer, and Greene. Conner filed this lawsuit within the two-year statute of limitation period governing personal injury actions. OCGA § 9-3-33. In February 1995, appellees filed a motion for summary judgment asserting that OCGA § 34-9-11.1 (c), a workers’ compensation subrogation provision that was in effect at the time, required Conner to file his suit within one year of receiving his injuries. The trial court granted summary judgment to appellees. For reasons that follow, we reverse.

1. Subsequent to entry of the trial court’s judgment, OCGA § 34-9-11.1 (c) was amended so as to provide that workers injured by third-party tortfeasors no longer must file suit to recover against the same within one year. Instead, they may now commence their lawsuit any time within the applicable statute of limitation. In adopting the amendment, the Georgia legislature expressly provided that the revised provisions of OCGA § 34-9-11.1 (c) should be applied retroactively to all injuries that occurred on or after July 1, 1992. See OCGA § 34-9-11.1 (e).

Decided January 18, 1996.

Butler, Wooten, Overby, Cheeley, Pearson & Fryhofer, C. Frederick Overby, Jason L. Crawford, J. Wyman Lamb, for appellant.

McLaughlin, MacDougald, Hendon & Miller, Norman R. Miller, for appellees.

The present matter is controlled by two cases recently decided by this Court reinstating the suits of similarly situated employees who did not file their suits against third-party tortfeasors within the one-year period provided by the former statute. In Draughn v. Delta Airlines, 218 Ga. App. 540 (462 SE2d 445) (1995) and Moore v. Savannah Cocoa, 217 Ga. App. 869, 870 (459 SE2d 580) (1995), this Court cited to Powell v. Dougherty Christian Academy, 215 Ga. App. 551, 552 (451 SE2d 465) (1994) for the proposition that “a reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right (in this State) under the prior law.” (Punctuation omitted; emphasis in original.) Because application of the new OCGA § 34-9-11.1 (c) will impair no vested right on the part of the appellees, see Moore, supra at 871, we find that Conner commenced the present action within the applicable statute of limitation in accordance with his rights under the revised statute. Without determining whether the trial court acted erroneously under the terms of the old statute, we reverse its entry of summary judgment against Conner.

2. In light of our disposition of Division 1, it is unnecessary to address Conner’s remaining enumeration of error concerning the applicability of OCGA § 34-9-11.1 in the present matter.

Judgment reversed.

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


author: Pope, Presiding Judge.

text:
    A95A2754.
    THE STATE v. O’BRYANT.
    (467 SE2d 342)
   Pope, Presiding Judge.

Following a hearing, the trial court granted James D. O’Bryant’s motion to suppress, finding the agents lacked authority to look into O’Bryant’s vehicle which was parked on private premises. The State appeals. For the reasons that follow, we affirm.

“A trial court’s decision of questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428).” Garcia v. State, 195 Ga. App. 635, 637 (1) (394 SE2d 542) (1990). With that in mind we consider the evidence.

The evidence presented at the suppression hearing showed the following. Four drug agents of the Marietta-Cobb-Smyrna Narcotics Unit (“MCS”) proceeded without a warrant to O’Bryant’s home to speak with O’Bryant because they had received an anonymous tip of possible drug dealing. Two MCS agents testified they walked around to the side of the residence because they believed there was a living area in the basement. The State never proved there was a living area in that location and that this activity was not a pretext to further explore O’Bryant’s property. Again, there was no response at this door. The agents noticed a black Toyota truck parked in the driveway on the side of the house. Agent Hathaway testified the same truck had been there during an earlier unsuccessful attempt to contact O’Bryant. Agent Cebula testified he had never before seen this truck. Although Agent Cebula testified no vehicles had been present when he visited O’Bryant’s home on July 8, 1993, and in the fall of 1993, Agent Hathaway testified that Cebula had looked into the same Toyota truck on their fall 1993 visit and on that occasion discovered “marijuana roaches” in the ashtray.

Agent Cebula claimed he went over to the truck to determine whether the engine was still warm or if the keys were in the ignition. He admitted there was nothing the agents would have done differently if the engine were warm or the keys present, thus conceding he had no valid reason for walking over to the truck. While looking inside the closed and tinted windows, he claimed he was able to discern what appeared to be a plastic bag of marijuana, partially hidden under the driver’s seat.

Agent Hathaway then left the residence and procured a search warrant for the house and the truck. The search warrant was based on their observation of marijuana on the floorboard, anonymous tips of purported drug activity involving O’Bryant, and the officers’ observation of marijuana in the truck’s ashtray in the fall of 1993. The warrant apparently was founded in part on Cebula’s prior discovery of marijuana in the ashtray, a discovery which Cebula seemed to repudiate. Although Hathaway testified Cebula discovered marijuana in the truck on two different occasions, Cebula denied even seeing a vehicle on the premises before April 1994.

During the search of the house, drug agents discovered approximately 20 pounds of marijuana in the master bedroom, anabolic steroids, and a pound of marijuana on the floorboard of the truck. O’Bryant was indicted for possession with intent to distribute marijuana.

“[A] police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant’s Fourth Amendment rights in the process of establishing his vantage point. [Cits.]” Galloway v. State, 178 Ga. App. 31, 33 (342 SE2d 473) (1986). “[L]aw enforcement officers simply have the right to look into automobiles, so long as they have a legitimate reason and are looking from a place in which they have a right to be (e.g., a street or roadside). Any incriminating evidence they have the fortune to see in plain view may be seized and later admitted as evidence. [Cit.]” Id. at 34. However, in this case, the vehicle was not on a street or a roadway and the incriminating evidence was not plainly visible but necessitated peering through a tinted and closed window and the State failed to offer a legitimate reason for looking in the vehicle. The State has failed to show the officers were at a place they were entitled to be. The officers had already knocked on both doors and had no valid reason to look into the truck.

Nor is this a case where the drug agents merely approached O’Bryant’s truck on the “same route as would any guest, deliveryman, postal employee, or other caller” and observed contraband. See State v. Nichols, 160 Ga. App. 386 (287 SE2d 53) (1981) (holding no privacy right breached where officer walking toward door of mobile home observes roto-tiller that had been reported as stolen). Nichols is distinguishable because the contraband, the stolen roto-tiller, was out in the open and visible from the officer’s lawful vantage point on the premises. See also State v. Zackery, 193 Ga. App. 319, 320 (387 SE2d 606) (1989) (holding where officer has his access blocked to front door of a residence, knocking on side door is a “valid intrusion”). Here, the evidence shows the officers had finished their official business and veered from the route any other callers would have taken to look into the truck.

The State contends the trial court improperly granted O’Bryant’s motion to suppress because the agent’s act of peering through the truck’s window was not a search. Catchings v. State, 256 Ga. 241, 247 (347 SE2d 572) (1986). The State claims O’Bryant had no legitimate expectation of privacy in those portions of the truck’s interior which were visible from the outside of the vehicle by either inquisitive passersby or diligent police officers. Id. at 247.

Catchings, however, is factually distinguishable. At the time the police officer peered through the windshield of the automobile in Catchings, the vehicle was located in an area of an apartment complex parking lot cordoned off as part of a crime scene. The owner of a vehicle located in a public lot and behind crime scene tape would not have a reasonable expectation of privacy. But in this case, the vehicle was parked in a private driveway at a private residence.

Similarly, the State’s reliance on Galloway, supra, is misplaced. In Galloway, we affirmed the denial of a suppression motion on dissimilar facts. In Galloway, police were investigating a reported aggravated assault during which a firearm had allegedly been discharged at the victim by the driver of a white van. Id. at 31. Pursuant to their investigation, police arrived at the home of the alleged perpetrator about 20 minutes after the shooting occurred. Id. at 32. Although the suspect’s van was clearly positioned on private property, an officer with the aid of a flashlight looked inside the vehicle and readily observed a handgun. The officer testified he was looking inside the van for the safety of the police, in case the perpetrator was located inside it. Id. at 32.

In the case at bar, the officer was not looking inside the truck for his own safety, it was broad daylight, and the marijuana was not easily visible through the tinted windows. Moreover, the officer who discovered the marijuana testified the agents would not have done anything differently if the keys had been in the ignition or the engine had been warm. Thus, the officer implicitly admitted he had no valid reason for determining whether the engine was warm or the keys were in the ignition. At the point where he elected to peer inside the truck, his actions became investigative in nature. Furthermore, the vehicle was within the curtilage of the home, and O’Bryant had a reasonable expectation of privacy in his driveway. Espinoza v. State, 265 Ga. 171, 174 (454 SE2d 765) (1995).

The State argues that the trial court erred by analyzing the facts under the plain view exception because no evidence was seized under that theory. The State claims the officers obtained the warrant before they seized any evidence. However, if the warrant was defective, the evidence obtained therefrom is excludable. OCGA § 17-5-30. See Daniels v. State, 183 Ga. App. 651 (359 SE2d 735) (1987).

Decided January 18, 1996.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Irvan A. Pearlberg, Assistant District Attorneys, for appellant.

Jimmy D. Berry, Mitchell D. Durham, for appellee.

The plain view exception to the warrant requirement is based on the discovery of incriminating evidence that is not the product of a search. Mitchell v. State, 181 Ga. App. 470 (352 SE2d 647) (1987). In this case, there was a search, the discovery of the contraband was not inadvertent, and the officer did not have a legal right to be looking inside the vehicle. Id.

We find that at the suppression hearing the State did not carry its burden of proving the search and seizure were lawful. Liskey v. State, 156 Ga. App. 45 (1) (274 SE2d 89) (1980). For the foregoing reasons, the trial court correctly determined that “[t]he agents had no authority to extend their presence on defendant’s private property from knocking on outer doors, to looking inside of the vehicle parked on the premises.”

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

       Because the trial court made no ruling on the facial validity of the search warrant, we need not reach that issue. However, in light of the staleness of one of the anonymous tips, the failure to verify any other anonymous tip, the conflicting testimony as to whether the officers had earlier observed the vehicle or noticed marijuana present in the vehicle on another occasion, the lack of a lawful basis for peering into the truck on April 21, 1994, and the failure to verify that O’Bryant owned the vehicle, there may not have been a sufficient basis for the issuance of the search warrant.