author: McMurray, Presiding Judge. Sognier, Judge,

text:
    75694.
    THACKER CONSTRUCTION COMPANY et al. v. A BETTERWAY RENT-A-CAR, INC.
    (368 SE2d 178)
   McMurray, Presiding Judge.

On February 15, 1984, a complaint was filed in the Superior Court of Fulton County naming A Betterway Rent-A-Car, Inc., d/b/a Budget Rent-A-Car of Atlanta, as defendant. The plaintiff in the suit was denominated as “Barton Contracting Company and Thacker Construction Company, a joint venture.” Damages were sought against defendant for the alleged breach of a construction contract. In this regard, it was alleged that “Plaintiff entered into a contract with Defendant to construct the Budget Rent-A-Car facilities at the Atlanta International Airport”; that “Plaintiff constructed the project in complete accordance and compliance with the provisions of the contract between the parties”; and that defendant breached the contract by failing to pay the amount due thereunder. Defendant answered the complaint asserting, inter alia, that the dispute should be submitted to arbitration pursuant to the terms of the construction contract. Additionally, defendant counterclaimed alleging that the contract was breached by plaintiff in certain particulars.

Thereafter, plaintiff and defendant agreed to submit their claims to arbitration and to stay the proceedings in the superior court until arbitration was completed. A consent order was entered accordingly.

On July 17, 1984, another consent order was entered to lift the stay temporarily to enable the parties to amend the pleadings. Thereupon, defendant amended its answer to assert that “the complaint should be dismissed because the Plaintiff has failed to join an indispensable party, Barton Contracting Company,” and “for failure to prosecute this action in the name of the real party in interest, Barton Contracting Company.”

The complaint was amended to add Barton Contracting Company (hereinafter “Barton”) as a party plaintiff. In the amended complaint, it was asserted that if the “joint venture did not exist at law, then it was Barton Contracting Company which entered into a contract with Defendant . . .” It was also alleged that Barton “provided all labor, materials and expertise under the terms of the contract” and that it was entitled to all sums due under the contract. Answering the amended complaint, defendant alleged that Barton and Thacker Construction Company (hereinafter “Thacker”) were jointly and severally liable to defendant for the breach of the joint venture’s obligations under the contract. In addition, defendant asserted a breach of contract claim against Thacker which was brought into the case as a defendant in counterclaim.

Thacker was served with the amended counterclaim on October 3, 1984. Replying to the counterclaim, Thacker asserted that it did not enter into a contract with defendant and that defendant “knew that Thacker was not in fact a party to the contract . . .”

In the meantime, on September 4, 1984, defendant notified Thacker about the arbitration proceeding between defendant and the joint venture. In so doing, defendant’s counsel wrote a letter to Thacker explaining: “Recent communications with counsel for the Joint Venture, Shreeder, Wheeler & Flint, suggest to us that that firm is perhaps not representing Thacker Construction Company in [the arbitration proceeding]. For that reason, we are writing you to apprise you of the pendency of the arbitration proceedings between [defendant] and the Joint Venture . . .”

On September 11, 1984, counsel for Thacker appeared before the panel of arbitrators and requested and obtained a continuance of the arbitration hearings. Arbitration hearings were held subsequently and on February 8, 1985, an award was entered by the arbitrators as follows: “BARTON CONTRACTING COMPANY & THACKER CONST. CO., A JOINT VENTURE, (hereafter ‘Barton-Thacker’) shall pay to [defendant] $98,735.75.” In making the award, the arbitrators noted: “As the parties were told at the outset of the arbitration hearings, the arbitrators did not consider nor decide the question of whether or not Barton-Thacker is a true joint venture under the laws of Georgia. The arbitrators simply looked at the names of the parties as they appear on the written contract which contained the arbitration provision giving rise to this arbitration, and have entered this award accordingly. The arbitrators did not consider nor take into account in their deliberations or in their decision the possibility of insurance coverage by Barton-Thacker or [defendant].” (Emphasis supplied.)

Barton moved to vacate the arbitration award. It asserted that the arbitrators should have considered the insurance coverage issue and that, therefore, it was necessary to resubmit the case to the arbitrators.

Defendant made application for confirmation of the award. In a proposed judgment, defendant suggested that judgment be entered against the joint venture, as well as Barton and Thacker, jointly and severally, for $98,735.75. Barton opposed the confirmation application asserting that it would be inappropriate to enter judgment against Barton and Thacker jointly and severally because the arbitrators’ award was made against the joint venture only and the arbitrators did not consider whether a joint venture actually existed. Counsel for Thacker also argued that judgment should not be entered against Barton and Thacker individually.

On November 21, 1985, the trial court denied defendant’s application for confirmation and granted Barton’s motion to vacate the award. The case was resubmitted to the arbitrators “foY consideration of the insurance issue . . .”

Pursuant to the trial court’s order, the arbitrators met on April 15, 1986. After considering the insurance issue, the arbitrators reaffirmed the previous award in favor of defendant and against the joint venture.

Once again, defendant sought confirmation of the award and proposed that judgment be entered against the joint venture, Barton and Thacker jointly and severally. Opposing the confirmation, counsel for Barton again argued that the arbitrators’ award against the joint venture could not be “expanded” to a joint and several judgment against Barton and Thacker.

On September 30, 1986, an order was entered by the superior court confirming the award of the arbitrators. Simultaneously, a $98,735.75 judgment was entered in favor of defendant and against the joint venture, and against Barton and Thacker “jointly and severally.” Barton and Thacker filed separate appeals. Barton’s appeal was withdrawn. Held:

The arbitrators did not decide whether a joint venture actually existed or whether Thacker even entered into the contract with defendant. These issues were raised by the pleadings and they should have been decided by the trier of fact. See Bowman v. Fuller, 84 Ga. App. 421, 426 (66 SE2d 249). Yet, a factual resolution of these issues was not made by the arbitrators. The award was entered against the joint venture only because the name of such an entity was placed on the contract.

The award against the joint venture was confirmed “as is” by the superior court; however, judgment was entered against the joint venture, and against Barton and Thacker, jointly and severally. The entry of such a judgment was erroneous.

When a verdict is rendered by a jury, the judgment must conform to it. See Taylor v. Taylor, 212 Ga. 637, 638 (1) (94 SE2d 744). “While a court may, in a proper case, mould a verdict so as to correct a mere matter of form, where a verdict has been received and recorded, and the jury dispersed, the trial court may not amend the verdict in a matter of substance, even if it appears that the jurors intended to find liability against the proper party. After dispersal of the jury, the judge has no power either to add or take from the findings, and has not the power, by amendment or reformation, to supply substantial omissions or make substantial changes in the verdict as rendered by the jury. Fried v. Fried, 208 Ga. 861 (3) (69 SE2d 862). Nor can the trial judge accomplish the same result by amending the verdict in a matter of substance by entering a decree different from the verdict of the jury, thereby eliminating substantial findings of the verdict and thus substantially modifying or changing the other findings of the jury. To do so requires the judge to find facts which the jury did not, and thus usurp their peculiar province. Law v. Coleman, 173 Ga. 68 (159 SE 679); Lake v. Hardee, 57 Ga. 459, 466.” Harrell v. Bank of the South, 174 Ga. App. 384, 386 (330 SE2d 147).

An arbitration award is not unlike the verdict of a jury. See generally 6 CJS 431, 432, Arbitration, § 163. Thus, if an award is confirmed the judgment must be entered in conformity with the award. See generally OCGA §§ 9-9-92; 9-9-95. Of course, an award can be modified; but a modification cannot be substantive, it cannot affect the merits of the case. See OCGA § 9-9-94. See also 6 CJS 440, Arbitration, § 168.

By entering judgment against Barton and Thacker jointly and severally, the superior court, in effect, modified the arbitrators’ award in a substantive way. It found facts which the arbitrators did not. See Harrell v. Bank of the South, 174 Ga. App. 384, 386, supra. This the superior court could not do. “If modification of the award in a matter of substance is required there must be a remission to the arbitrators.” 6 CJS 440, Arbitration, § 168. See also OCGA § 9-9-93 (b) (3).

We note that the case of Seckinger & Co. v. Foreman, 252 Ga. 540 (314 SE2d 891), does not support defendant’s position. In that case, the Supreme Court simply ruled that the evidence supported a finding by the trier of fact that a joint venture existed. In the case sub judice, on the other hand, the trier of fact made no such finding.

Judgment reversed and case remanded for proceedings not inconsistent with this opinion.

Been, P. J., Banke, P. J., Pope, Ben-ham and Beasley, JJ., concur. Birdsong, C. J., Carley and Sognier, JJ., dissent.

Sognier, Judge,

dissenting.

I respectfully dissent. I cannot agree with the majority that entry of a judgment against Barton and Thacker jointly and severally modified the award in any way, much less in “a substantive way.”

This case is not one, such as Bowman v. Fuller, 84 Ga. App. 421 (66 SE2d 249) (1951), in which we are called upon to determine from the conduct of a party to a contract whether that party should be deemed to have been engaged in a joint venture such that the actions of another joint venturer will bind it or subject it to liability. Rather, in the case sub judice, appellant and another contractor, as a joint venture, signed a contract with a third party which labeled them a joint venture, thereby obligating themselves as joint venturers. In response to a similar challenge by a contractor to its denomination as a joint venturer, on the basis that profits and losses were not shared and there was no pooling of labor or equipment, the Supreme Court held in Seckinger & Co. v. Foreman, 252 Ga. 540 (314 SE2d 891) (1984), that the finding of joint venture was authorized because the agreement was called a joint venture agreement. Similarly, in this case, it is uncontroverted that the contract which forms the subject matter of this action recites that it is an agreement between A Betterway Rent-A-Car, Inc., as one party, and Barton Contracting Company and Thacker Construction Company, a joint venture, as the other party. It is undisputed that both Floyd A. Thacker, appellant’s president, and the president of Barton Contracting Company signed the contract, and that the words “Joint Venture” appear again in proximity to the signature lines. In my view, appellant may not be heard to complain now that there was no joint venture.

Moreover, even were we to accept appellant’s argument that it is not a joint venturer, unlike the situation in Bowman, supra, appellant’s liability remains unchanged, premised on the fact that it obligated itself by signing the contract in some capacity. Either appellant is liable in its capacity as a joint venturer, or it is liable individually. We cannot simply ignore the fact that appellant is a signatory to the contract. If it is a joint venturer, it may be treated in the same manner as a partner, because “we may treat the joint venture as a partnership composed of the adventurers without deciding they are partners.” Boatman v. George Hyman Constr. Co., 157 Ga. App. 120, 123 (276 SE2d 272) (1981). Under the provisions of former OCGA § 14-8-22, applicable here, as to third persons, all partners are liable, not only to the extent of their interests in the partnership property, but also to the whole extent of their separate property. Alternatively, if appellant is not a joint venturer, it has still signed a contract under which the arbitrators found liability, and it is thus liable individually.

Decided March 18, 1988

Rehearing denied March 31, 1988

H. Wayne Phears, for appellants.

John J. Almond, for appellee.

Since appellant is individually liable in any case, I see no need for any further proceedings, and I would, therefore, affirm the trial court’s judgment.

I am authorized to state that Chief Judge Birdsong joins in this dissent.


source: Caselaw Access Project

author: Banke, Presiding Judge. Carley, Judge, Benham, Judge,

license: Public Domain

text:
    75735.
    HENDRIX v. THE STATE.
    (368 SE2d 181)
   Banke, Presiding Judge.

The appellant was tried for leaving the scene of an accident, driving without insurance, and for violating OCGA § 40-6-40, which requires that vehicles be driven on the right half of the roadway except under certain specified circumstances. The trial court directed a verdict on the driving without insurance charge, and the jury subsequently acquitted the appellant of the offense of leaving the scene of an accident while convicting her of violating OCGA § 40-6-40. She was sentenced to serve 12 months on probation, fined $110, and ordered to pay $400 restitution to a railroad whose signal post she was accused of having knocked down.

The state presented an eyewitness who testified that he had seen the appellant’s car approaching him, that it had veered across the centerline onto his side of the road, and that it had then run off the road on its own side, knocking down a railroad signal post. The witness identified the car by its license number, which he recorded. The appellant admitted having driven the car on the date and at the location in question but denied that the state’s witness had been present or that she had driven across the centerline or hit anything. Held:

1. “It is the function of the jury to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony. This court must view the evidence in a light most favorable to the jury’s verdict. [Cit.] Viewing the evidence in that light, we are satisfied that any rational trier of fact could have found appellant guilty beyond a reasonable doubt. [Cit.]; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Blackman v. State, 178 Ga. App. 88 (1) (342 SE2d 24) (1986).

2. The appellant contends that the order of restitution was not authorized by the evidence. We disagree. It may reasonably be inferred from the testimony of the eyewitness in this case that immediately after crossing over the centerline the appellant overcompensated, causing her vehicle to veer back to the right to such an extent that it left the roadway and struck the signal post. As used in the criminal restitution statute, the term “ ‘[damages’ means all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium.” OCGA § 17-14-2 (2). The evidence in this case supports the conclusion that the damage to the sign post was proximately caused by the unlawful act of which the appellant was convicted. It follows that the trial court was authorized to order the appellant to pay restitution for the damage.

3. The appellant enumerates as error the admission, during the sentencing phase of the trial, of a copy of a bill showing the cost of repairing the signal post. It is contended that this document was inadmissible because it was irrelevant, the original was not accounted for, and it constituted hearsay. The first of these contentions is clearly without merit. As for the second and third, the witness who identified the bill testified that he was employed as an investigator for the railroad, that he was the custodian of the record, and that he had received the document from “the accounting department in Jacksonville” in the normal course of business. We hold that this constituted a sufficient showing to authorize the admission of the document as a “photostatic, microphotographic, or photographic reproduction of [an] original writing or record made in the regular course of business to preserve permanently by such reproduction the writing or record. . . .” OCGA § 24-5-26. See also OCGA § 24-3-14.

Judgment affirmed.

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

Carley, Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 and 2 of the majority opinion. However, I must agree with the dissent to the extent that it opines that the copy of the bill showing the cost of repairing the signal post, relied upon by the trial court in fixing the amount of restitution, was inadmissible. In addition to the decisions relied upon in the dissent, in the whole court case of City of Saint Marys v. Stottler Stagg &c., 163 Ga. App. 45, 47-48 (292 SE2d 868) (1982), the majority of this Court made it clear that “[u]nless there is foundation testimony as required by the statute that the actual [document itself was] made in the regular course of business, it cannot be said that the evidence which is being offered is in fact a business record coming within the ambit of [OCGA § 24-3-14]. [Cits.]” (Emphasis supplied.) Accordingly, I believe that the case must be remanded for resentencing.

Benham, Judge,

concurring in part and dissenting in part.

Although I agree with the majority’s holding that the evidence was sufficient to convict appellant of a violation of OCGA § 40-6-40, and I concur in the affirmance of the conviction, I agree neither with the conclusion that the restitution ordered in this case was legal nor with the holding that the evidence of damages was admissible. For those reasons I dissent in part.

1. “The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” OCGA § 17-14-9. “ ‘Damages’ means all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced. . . .” OCGA § 17-14-2 (2). The crucial language in the definition of damages is, “based on the same act . . . for which the offender is sentenced. ...” The only sentence imposed on appellant in this case was imposed for violating a statute requiring drivers to drive on the right half of the road. The testimony that appellant’s car crossed the centerline was the testimony which authorized the conviction. However, the evidence here also shows that she returned to her own side of the road before leaving the roadway and striking the signal post. Had that evidence shown that appellant continued across the centerline and struck something on the wrong side of the road, a different question might be presented. While the railroad may have a right to recover from appellant for the damage done to its signal post, the proximate cause of that damage was not that appellant’s car crossed the centerline of the road.

I agree completely with the majority’s finding that it may be inferred that appellant overcompensated after crossing the centerline, and that the overcompensation caused her car to veer off the roadway and into the signal post. However, appellant was not convicted of and sentenced for overcompensating, for veering off the roadway, for striking the signal post, or even for failing to maintain control of her vehicle. She was sentenced for crossing the centerline. While that may have been an act of negligence, it was not the act of negligence which proximately caused the damage to the railroad and for which the railroad could recover its damages from appellant. In our haste to ensure that the victim of appellant’s bad driving be recompensed, we must not lose sight of the mandate of the statute. The victim is entitled to such damages as it could recover from appellant for the act for which she was sentenced. She was sentenced for crossing the centerline of the road. If the railroad, in a suit to recover damages from appellant, proved no more than that she crossed the centerline of the road, it would not be entitled to damages. If it went on to prove that she then failed to maintain control of her vehicle and that her vehicle damaged railroad property while out of her control, it certainly would be entitled to recover damages from her. But, as I noted above, appellant was not sentenced for failing to maintain control of her vehicle, but for crossing the centerline. That act, the one for which she was sentenced, was not the proximate cause of the railroad’s damages, and the order of restitution was contrary to this State’s law and should be vacated.

2. The majority notes that the grounds upon which appellant objected to the admission of the evidence proffered by the State to establish damages were that it was irrelevant, that the original was not accounted for, and that it was hearsay. I find all three grounds meritorious.

First, because of my conviction that the imposition of a requirement of restitution was illegal, I am of the opinion that the evidence was irrelevant, there having been no showing that the railroad would be entitled to damages on the basis of appellant’s act of crossing the centerline of the road.

Second, the Code section on which the majority relies to excuse the State’s failure to account for the original of the document requires that the copy be made in the regular course of business. There was no testimony offered at trial to establish that the copy proffered as evidence was made in the regular course of business and no testimony was offered to account for the original. Having failed to meet the standard imposed by OCGA § 24-5-26, the State was not entitled to admission of its exhibit establishing the railroad’s damages. See State v. Mincey, 167 Ga. App. 850 (1) (308 SE2d 18) (1983).

Third, the State did not lay the foundation required by OCGA § 24-3-14 to overcome the hearsay nature of the document on which it relied to prove the railroad’s damages. Although the witness, an investigator, did testify that he was the custodian of the record, there was no evidence that the bill was made in the regular course of business or that it was the regular course of business to make the record at the time of the occurrence. The evidence offered by the State was that some unknown person submitted a form to the railroad’s accounting office and that someone there sent a copy of it to the witness. The bill was clearly hearsay and the State’s failure to make the showing required by the statute rendered the evidence inadmissible. Harris v. Collins, 149 Ga. App. 638 (4) (255 SE2d 107) (1979).

For all the reasons stated above, I concur in the affirmance of appellant’s conviction, but dissent to the affirmance of the imposition of restitution.

Decided March 18, 1988

Rehearing denied March 31, 1988

James A. Yancey, Jr., for appellant.

Douglas Gibson, Solicitor, for appellee.


author: Sognier, Judge. McMurray, Presiding Judge, Beasley, Judge,

text:
    75746.
    KLAUSMAN v. KLAUSMAN.
    (368 SE2d 185)
   Sognier, Judge.

Henry M. Klausman brought an action against his former wife, Patricia W. Klausman, seeking contribution of her portion of delinquent income taxes and penalties for the years 1980, 1981, and 1982. The debt to the Internal Revenue Service had been extinguished when the IRS seized Mr. Klausman’s 1985 estimated tax payments in satisfaction thereof. The trial court granted Patricia Klausman’s motion for summary judgment and denied that of Henry Klausman. Henry Klausman appeals.

The record reveals that appellant is an accountant who, while married to appellee, established a branch of the Universal Life Church as a vehicle to avoid taxes, and became himself an ordained minister in said church. Thereafter, he claimed substantial contributions to the church on the parties’ joint tax returns. In 1983 appellant was notified by the IRS that the deductions claimed for contributions to the Universal Life Church in 1980, 1981, and 1982 would be disallowed, and that penalties and interest would be imposed, and appellant protested the IRS decision. Divorce proceedings between the parties were initiated in 1983, and became final in March of 1984. The final decree incorporated an agreement which purported to settle all issues relating to the parties’ rights and obligations growing out of the marital relationship, and which was otherwise silent as to the delinquent tax liability. In December of 1984 the IRS formally disallowed the deductions; in April of 1985 it billed the parties for the arrearage and penalties totaling more than $33,000. In November of 1985 the IRS seized appellant’s estimated tax payments and applied them to the bill for delinquent taxes, thus satisfying the debt, and appellant brought this action for contribution.

Appellant contends the trial court erred by granting appellee’s motion for summary judgment and denying his own motion, because the evidence established a common liability and thus he, rather than appellee, was entitled to judgment as a matter of law. We do not agree.

“ ‘Contribution can not properly be granted as affirmative relief unless the party claiming such relief has been compelled to discharge a liability for which he and the other party were equally bound.’ [Cit.]” (Emphasis supplied.) Nannis Terpening &c. v. Mark Smith Constr. Co., 171 Ga. App. 111, 115 (1) (318 SE2d 89) (1984). Appellant argues such common liability has been established because 26 USCA § 6013 (d) (3) provides as a general proposition that both husband and wife are jointly and severally liable for any tax due on joint returns. However, certain other provisions of the federal tax code limit or remove that common liability from an “innocent spouse,” provided the applicant for such treatment meets the requirements of those provisions. 26 USCA § 6013 (e).

It is uncontroverted that appellee has appealed the IRS assessment as to her, claiming that she meets the requirements for “innocent spouse” treatment, and that she has pursued that claim through appropriate channels and sought a ruling to that effect. Such a ruling would remove her liability for the tax deficiency, thereby removing as well appellant’s right to contribution. To date, there has been no final determination on appellee’s appeal of the IRS assessment as to her. However, the record shows, and the trial court found, that appellee’s claim is not without merit, and that her chances of being found an “innocent spouse” are at least reasonable. It is undisputed that, unlike appellant, she had little income, no experience in financial or accounting matters, and did not prepare the returns in question. Further, she had refused any involvement with the “church” created by appellant which was the recipient of the disallowed charitable contributions. We note additionally that the IRS has placed appellee’s case on “general continuance,” but has issued notice that no penalties will be sought against appellee. In view of the foregoing, it can hardly be said that appellee’s liability has been “established.” Rather, the time is not yet ripe for adjudicating the matter before us, as there has been no final determination as to whether appellee has any liability, and the trial court’s ruling that this suit is premature is correct.

This case was heard on motions for summary judgment, and a motion for summary judgment cannot be granted on the ground that the action is premature, which is a matter in abatement. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974). However, the evidence does support a dismissal on the basis of prematurity, since appellant has failed to satisfy an essential precondition for bringing an action for contribution. OCGA § 23-2-71. No purpose is served by allowing appellant to proceed in the state forum with this action toward a judgment entitling him to contribution from appellee, when a ruling in the previously initiated federal proceeding that appellee was entitled to “innocent spouse” treatment would render it meaningless. Accordingly, the nomenclature of the motion notwithstanding, we affirm with direction that the trial court’s order be amended to show that said dismissal was not on the merits of appellant’s claim. See Carlson v. Hall County Planning Comm., 233 Ga. 286, 289 (2) (210 SE2d 815) (1974).

Judgment affirmed with direction.

Birdsong, C. J., Been, P. J., Banke, P. J., Carley, Pope, and Benham, JJ., concur. McMurray, P. J., and Beasley, J., dissent.

McMurray, Presiding Judge,

dissenting.

Plaintiff contends that he is entitled to contribution pursuant to OCGA § 23-2-71. In order for a party to be entitled to contribution, he must first show that he and the defendant shared a common liability. Snyder v. Elkan, 187 Ga. 164 (199 SE 891); Williams Bros. Lumber Co. v. Anderson, 210 Ga. 198 (78 SE2d 612); Horton v. Continental Cas. Co., 72 Ga. App. 594 (34 SE2d 605). Common liability is established by 26 USCA § 6013 which provides that both husband and wife are jointly and severally liable for tax deficiencies on joint returns.

Under the “innocent spouse rule” of 26 USCA § 6013 (e) a spouse may be relieved of liability for tax deficiencies on joint returns if she does not know or has no reason to know that there is a substantial understatement of taxes. Defendant in the case sub judice relies in part on the “innocent spouse” provision. The state court has determined that defendant’s evidence supports an innocent spouse claim and that plaintiff has presented no evidence that defendant is not an innocent spouse. However, regardless of the posture of the record before the state court the resolution of any pending “innocent spouse” claim by defendant will take place before the appropriate federal tribunal. Until such occurs defendant remains jointly liable for the tax deficiencies at issue.

The state court held that the doctrine of res judicata or estoppel by judgment bans plaintiff’s action as a matter of law. A final divorce decree binds the parties as to all matters put in issue, or which under the rules of law might have been put in issue until such decree shall be reversed or set aside. Mize v. Mize, 80 Ga. App. 441 (56 SE2d 121); Sumner v. Sumner, 186 Ga. 390 (197 SE 833). Relying upon recitals in the settlement agreement the state court determined that the parties intended to resolve all financial rights and obligations between themselves. The settlement agreement does mention the parties’ 1983 tax return. The state court responded that plaintiff also could have provided for the 1980, 1981 and 1982 tax liabilities but failed to do so and that at a minimum the tax claim at issue could have been raised in the divorce proceeding or alternatively was raised and decided in the divorce decree thereby barring any subsequent claims.

However, pretermitting any issue as to whether the state court’s reasoning and conclusion is correct, I would find error in its application to the facts of the case sub judice. At the time of the settlement agreement and divorce decree any tax liability arising from the audit of the 1980,1981 and 1982 joint tax returns was the joint obligation of both parties under 26 USCA § 6013. Nothing on the face of the record indicates that this has changed (although there is some evidence of a pending “innocent spouse” claim by defendant). Plaintiffs complaint does not attempt to alter the rights and obligations which were in place at the time of the settlement agreement and divorce decree; if anything, plaintiff relies upon the relative rights of the parties at that time. Instead plaintiffs complaint seeks to rectify events which occurred in 1985 following the divorce decree, when his funds were seized to satisfy the pre-existing joint liability for taxes arising from the audit of the 1980, 1981 and 1982 joint returns. Clearly the 1984 divorce decree incorporating the parties’ settlement agreement did not and could not have determined the rights of the parties in regard to the 1985 seizure of plaintiff’s funds.

Therefore, I respectfully dissent as I would hold that the state court erred in granting defendant’s motion for summary judgment.

Beasley, Judge,

dissenting.

I concur fully in the other dissent.

1. At first, it appears that the suit was premature because of the pendency of defendant’s “innocent spouse” claim which she filed by petition in the United States Tax Court in March 1985. If that were resolved in her favor, she would not be indebted to plaintiff for the contribution he seeks.

However, it is her defense which is premature, or more accurately perhaps, inchoate. She has not established that she has been absolved of the joint and several liability imposed by 26 USC § 6013 (d) (3). She may be relieved of liability as provided in subsection (e) “[u]nder regulations prescribed by the Secretary [of the Treasury], . . .” by a procedure which she has commenced but not completed. After her case was referred back to the IRS Appellate Division and subsequently returned to the court, it was twice scheduled for trial and continued, the second time “generally,” in March 1987.

And there it sits. The burden in that case is on the taxpayer to prove she satisfies every element of the exception to joint liability provided in section 6013 (e) (1). Shea v. C.I.R., 780 F2d 561, 565 (2) (6th Cir. 1986); Ratana v. C.I.R., 662 F2d 220, 224 (1) (4th Cir. 1981). Not having done this in the forum which the law provides for resolution of such an issue, plaintiff’s claim in the court below remains governed by the joint and several liability imposed by section 6013 (d) (3).

I have found no authority for the proposition that Mr. Klausman, plaintiff below, would have to first ask to be added as a party plaintiff in Mrs. Klausman’s Tax Court suit and then seek to have it adjudicated to a conclusion that she is not excepted as an “innocent spouse,” in order to bring his claim for contribution. Thus I agree that the defendant was not entitled to summary judgment.

Decided March 18, 1988

Rehearing denied March 31, 1988

Martin L. Fierman, for appellant.

Donald W. Gettle, for appellee.

2. Even if I agreed with the majority’s substantive position, I would have to dissent as to a procedural aspect. The propriety of the denial of plaintiff’s motion for summary judgment is not before us.

Whether right or wrong as to appealability, appellant states in his brief that, as respects the order in regard to plaintiffs motion, “no appeal is being taken as the denial of such a motion is not appealable.” At the end of his brief, his “Final Conclusion” is that: “For the reasons stated above, the appellant urges this Court to review the Trial Court’s granting of Defendant/Appellee’s Motion for Summary Judgment.”

While it is true that appellant appealed from the order which also contained the ruling on plaintiff’s motion, that is the order which contained the ruling complained of. We may not reach beyond the issues properly brought before us. Clark v. Bandy, 196 Ga. 546, 558 (27 SE2d 17) (1943); Bouldin v. Contran Corp., 173 Ga. App. 823 (328 SE2d 424) (1985); Continental Nut Co. v. Savannah Bank, 142 Ga. App. 509, 515 (3) (236 SE2d 501) (1977).


author:
Deen, Presiding Judge. Pope, Judge,
      Beasley, Judge,

text:
    75769.
    DEPARTMENT OF TRANSPORTATION v. MORRIS et al.
    (368 SE2d 155)
   Deen, Presiding Judge.

On September 4, 1986, appellant Department of Transportation (DOT) instituted condemnation proceedings against certain property owned by appellee Carroll Morris. Morris was personally served with the petition on September 6, 1986; thirty-one days later, on October 7, 1986, he filed his untimely notice of appeal. Pursuant to OCGA § 32-3-8 (f) citation was published on September 11 and September 18, 1986. On October 23, 1986, thirty-five days after the publication of the last citation, a joint notice of appeal was filed by appellees Morris’s, Inc. and C & L Gifts and Jewelry, Inc., both of which claimed an interest in the property under an oral tenancy at will. DOT filed motions to dismiss against all appellees, based on their failure to timely file their notices of appeal. Appellees submitted affidavits in opposition to said motions which contained facts tending to show that DOT had notice of the interests of both Morris’s and C & L Gifts in the property. The trial court denied DOT’s motion to dismiss based on insufficiency of service of process and, citing Knight v. Dept. of Transp., 134 Ga. App. 332 (214 SE2d 418) (1975), held that all parties could proceed to trial as joint appellants. The trial court also granted a certificate of immediate review, and this court subsequently granted DOT’s application for interlocutory appeal. Held:

OCGA § 32-3-5 (3) requires the condemnor to include in the condemnation petition “[t]he names and residences of the persons whose property or interests are to be taken or otherwise affected, so far as known.” (Emphasis supplied.) OCGA § 32-3-8 further provides that said petition and declaration must be personally served on the persons so named, provided they are residents of this state. In the present case, appellees’ uncontradicted affidavits established that DOT had knowledge of the leasehold interests of both Morris’s and C & L Gifts in the property to be condemned; hence, DOT was required to both name these appellees in the petition and personally serve them as provided by OCGA §§ 32-3-8 and 32-3-10. Knight v. Dept. of Transp., supra. See generally Franco’s Pizza & Delicatessen v. Dept. of Transp., 178 Ga. App. 331 (1) (343 SE2d 123) (1986). Cf. Robinson v. Dept. of Transp., 185 Ga. App. 597 (364 SE2d 884) (1988).

The time for filing the notice of appeal begins to run from the date of personal service. OCGA § 32-3-14; Dept. of Transp. v. Rudeseal, 156 Ga. App. 712 (1) (276 SE2d 52) (1980); Dept. of Transp. v. Brooks, 143 Ga. App. 872 (1) (240 SE2d 163) (1977). “The condemnees have a perfect right to waive service and come on in, [which they did in the present case when they filed their joint notices of appeal], but until they are properly served, and unless the record shows this fact by a proper return of service, the right remains until it is voluntarily waived. Here the waiver and the appeal are one and the same.” Knight, supra at 336. Accordingly, the trial court did not err in refusing to dismiss the notice of appeal filed jointly by appellees Morris’s and C & L Gifts. See also OCGA § 32-3-10.

The question remains, however, as to whether the trial court erred in also refusing to grant DOT’s motion to dismiss as to appellee Morris, who filed his notice of appeal thirty-one days after personal service of the petition and declaration of taking. Although conceding that the notice of appeal was not timely filed, Morris argues that under the authority provided in Knight, supra, he should be allowed to join appellees Morris’s and C & L Gifts in their appeal against the DOT. We agree. Knight holds that a court does not have jurisdiction until there is a return of service or a reason is shown for lack of service. Where, as in the instant case, some of the condemnees are not served, Knight, at 336, holds, “It does not inhere in this legal structure to fragment the case at the moment when the issue of value is being reciprocally considered for the first time.” Fundamental fairness would therefore permit the condemnee to participate in the appeal when the other condemnees who were not served file their appeals. We find that a condemnee who files an untimely appeal in such a situation is also entitled to just and adequate compensation of his interest in the property.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Carley and Benham, JJ., concur. Sognier, Pope, and Beasley, JJ., dissent.

Pope, Judge,

dissenting.

I must dissent to that portion of the majority opinion which allows appellee Morris, who though properly served failed to timely file his notice of appeal, to join Morris’s, Inc. and C & L Gifts and Jewelry, Inc. in their appeal against DOT.

The payment of just and adequate compensation by the condemnor is a constitutional prerequisite to the taking of property through the power of eminent domain. The condemnee does have a right to file an appeal to a jury on the question of value but “only if it is filed not later than 30 days following the date of service as provided for in [OCGA § 32-3-8].” (Citations and punctuation omitted.) Blonder v. Dept. of Transp., 156 Ga. App. 711 (275 SE2d 762) (1980); OCGA § 32-3-14. Likewise, it has been established beyond cavil that “ ‘[t]he right to appeal to a jury from a declaration of taking has been held to be absolutely conditional upon the filing of a timely notice of appeal in the superior court. [Cit.]; D. O. T. v. Massengale, 141 Ga. App. 70 (232 SE2d 608) (1977); D. O. T. v. Harrison, 154 Ga. App. 118 (267 SE2d 651) (1980).’ ” Chambers v. Dept. of Transp., 172 Ga. App. 197 (1) (322 SE2d 366) (1984). “Accordingly, the trial court [has] no authority or discretion to extend the period of time for filing a notice of appeal.” McClure v. Dept. of Transp., 140 Ga. App. 564 (231 SE2d 532) (1976). See also Dept. of Transp. v. Rudeseal, 156 Ga. App. 712 (1) (276 SE2d 52) (1980); Dept. of Transp. v. Forrester, 149 Ga. App. 647 (255 SE2d 115) (1979); Dept. of Transp. v. Brooks, 143 Ga. App. 872 (1) (240 SE2d 163) (1977). Thus, to the extent that Knight v. Dept. of Transp., 134 Ga. App. 332 (214 SE2d 418) (1975), suggests otherwise, I believe it must be overruled and the decision of the court below be reversed as to appellee Morris.

I am authorized to state that Judge Sognier joins in this dissent.

Decided March 16, 1988

Rehearing denied March 31, 1988.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Roland F. Matson, Senior Assistant Attorney General, Beverly B. Martin, Assistant Attorney General, Wil liam A. Zorn, for appellant.

Beasley, Judge,

dissenting.

I agree with all in the dissent except the overruling of Knight v. Dept. of Transp., 134 Ga. App. 332 (214 SE2d 418) (1975) and would instead limit it to its facts.

The property there consisted of three contiguous tracts in' which members of the same family owned most of the interests. Errors in service were made in serving the junior instead of the senior as to two tracts, in not making proper returns on nonresidents as to one tract, and in not showing service on the bank as to one tract. (Although the court ruled that the time limitation could not run against the junior in Case No. 1232 because there was no return of service on him, it earlier stated that he had personal service in this state.)

Considering the close relationship of most of the condemnees as to whom proper service or proper returns were not shown on all of the tracts, the confusion of service attributed to the similarity of names of two of the condemnees, the interests of same in some but not all of the tracts, and so on, the court faced the question: “What is the effect of this ruling [as to returns of service] on the progress of the cases?” It appears that it took into account the circumstances of the case and the difficulties attendant to proceeding with ascertainment of compensation to only some of these joint owners and as to some of the contiguous tracts, which would be a meticulous nightmare at best, and reached a practical solution. All could participate.

I do not read Knight as establishing a general rule that where a person having an interest in the property does not timely appeal after proper service, he may still participate if there are other parties who were not properly served or with respect to whom there is not a proper return of service. Such an exception does not appear in the statute and could not with authority be engrafted into it by the court. Attributing such a cast to Knight misreads it.

The same situation is not presented here. We simply have a tardy owner, who was served on a Saturday and did not appeal until a Tuesday thirty-one days later. Having been precluded by OCGA § 32-3-14 from participating in the appeal, he cannot ride into it on the coattails of the lessees, who have a separate and different and independently measurable interest. The statute simply does not provide for this reprieve.

Strickland Holloway, Jr., for appellees.


author: Banke, Presiding Judge. Beasley, Judge,

text:
    75989.
    ATLANTA GENERAL TIRES, INC. et al. v. WILLIAMS.
    (368 SE2d 333)
   Banke, Presiding Judge.

The claimant in this workers’ compensation case, Daniel Lee Williams, was employed by Atlanta General Tires, Inc., on June 3, 1983, to work as a seasonal temporary warehouseman. On June 9, 1983, he sustained an injury to his left arm and shoulder while stacking tires on the employer’s premises. As a result of this injury, the employer and its workers’ compensation insurer, The American Insurance Company, began paying him benefits for temporary total disability. However, on July 12, 1983, they suspended payment of such benefits and filed a “notice to controvert payment of compensation,” based on the fact that the claimant had been arrested and incarcerated on charges of rape and aggravated sodomy. The claimant was convicted of these offenses in November of 1983 and is currently serving a life sentence as a result of those convictions.

On February 28, 1986, a hearing was held before an administrative law judge to determine, among other things, “whether the employer/insurer suspended the payment of weekly income benefits for disability without justification.” The administrative law judge ruled in favor of the employer/insurer on this issue, concluding that the claimant had “removed himself from being available to seek gainful employment due to his confinement for the felony convictions, and, consequently, the employer/insurer were justified in suspending benefits for total disability during the period that he remains incarcerated.” The administrative law judge found the evidence to be in conflict with respect to “the extent, if any, of claimant’s permanent partial impairment, which may be related to his compensable injury,” but determined that a resolution of that issue would be premature so long as he remained incarcerated.

On appeal, the board, with one of its three members dissenting, reversed the administrative law judge, concluding that the employer/ insurer had not been authorized to suspend the claimant’s weekly income benefits on account of his incarceration. The board awarded the claimant back benefits from the date of the suspension and directed the employer/insurer to continue paying him benefits for temporary total disability “until further board order or [until the claimant’s entitlement to income benefits was] changed by operation of law.”

The dissenting director agreed that employer/insurer had a continuing duty to provide medical services to the claimant, stating that “[m]edical attention though provided by prison physicians, should be the responsibility of employer/insurer and not [that of] the taxpayers of this state.” However, he expressed the opinion that the claimant was not entitled to income benefits because his incarceration had prevented him from suffering any “economic disability” as a result of his injury.

On appeal to the superior court, the employer/insurer contended that the decision of the board was invalid because one of the two concurring directors, former Chairman Herbert T. Greenholtz, Jr., had resigned from the board effective August 31, 1986, whereas the decision had been issued on September 15, 1986. In response to this argument, the claimant submitted affidavits from former Chairman Greenholtz and from the board’s secretary-treasurer, Mr. James Pullin, averring that the board had made its decision in the case prior to September 1, 1986. The secretary characterized the subsequent issuance of the written decision as being merely a “ministerial act providing a permanent record of the board’s decision.” The superior court affirmed the board’s decision, and we granted the employer/insurer’s application for a discretionary appeal to this court. Held:

1. In Hartford Accident & Indem. Co. v. Mapp, 96 Ga. App. 517 (100 SE2d 742) (1957), this court held that a workers’ compensation award which was “issued” on May 1, 1957, was invalid where one of the two directors concurring in the decision had previously submitted his resignation effective April 30, 1957. We find that holding to be dispositive of the case before us. We reject the claimant’s contention that, because the act of issuing a written memorandum of a decision previously reached by an administrative body may be characterized as a mere “ministerial function,” it is the date the members actually make their decision which controls its validity rather than the date of its issuance. An identical argument was previously considered and rejected by this court in Aetna Cas. & Surety Co. v. Barden, 179 Ga. App. 442 (346 SE2d 588) (1986).

Legally speaking, no award existed prior to the time it was reduced to writing and filed in accordance with OCGA § 34-9-103. In this respect, the issuance of an award by the board is analogous to the rendition of a decision or judgment by a court of record. See generally OCGA § 9-11-58 (b); Bloodworth v. Thompson, 230 Ga. 628 (198 SE2d 293) (1973). While it is true that a decision reached by a judge may, in certain instances, acquire legal effect prior to the time it becomes official (so as, for example, to preclude the filing of a voluntary dismissal by a party to the action, see, e.g., Guillebeau v. Yeargin, 254 Ga. 490 (1) (330 SE2d 585) (1985)), the actual entry of the order or judgment clearly is itself an act requiring judicial authority. The appellee’s reliance upon Denton v. U. S. Fidelity &c. Co., 158 Ga. App. 849 (282 SE2d 350) (1981), is misplaced. The issue involved there was not whether the members of the board had been duly authorized to enter an award on the date they did so but whether they had approved the settlement agreement on which their award was based prior to the issuance of the award. See Aetna Cas. & Surety Co., supra at 444-445.

Pursuant to the authority of Hartford Accident & Indem. Co. v. Mapp, supra, the judgment of the superior court affirming the award of the board in this case is reversed, with direction that the case be remanded back to the board for the entry of an award concurred in by at least two existing directors. See generally OCGA § 34-9-46.

2. Because the board has not yet entered a legally valid ruling in the case, we are unable to address the merits of the underlying claim for compensation.

Judgment reversed and case remanded with direction.

Birdsong, C. J., McMurray, P. J., Corley, Pope and Sognier, JJ., concur. Deen, P. J., concurs in judgment only. Benham and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

It is clear from the award issued September 15 and from the affidavits of Greenholtz and Pullin, the board’s secretary/treasurer, that the issuance of the award was based on the decision made by the three-member board which heard and considered and voted on the case in August. The award itself shows: “Concurring: Chairman Herbert T. Greenholtz, Jr.” As is apparently customary, when it was signed on September 15 it was signed only by Knowles, the third director who participated and voted in the case, acting for the board in affixing the signature authorizing issuance. Greenholtz did not, and did not have to, take any action after August 31 with respect to the decision. Everything he did was done while he was vested with authority. Likewise, there is no evidence that Knowles did not have the authority of the board as constituted on September 15 to issue the award memorializing the earlier decision made by the board members who heard and fully considered the case. To the contrary, the affidavit of the board’s secretary/treasurer shows that the board intended the decision made by those members who vote on the case be its decision, even if a participant is no longer a member when the decision is reduced to writing and issued. The board as of September 15 apparently saw no need to rehear and reconsider the case simply because the resignation of one of the participating members had become effective in the meantime.

The statute provides that only two members are needed for “the rendering of any decision required . . . to be made by all of the members.” OCGA § 34-9-46. That was done when Greenholtz was a director, and all three made the decision. The voting occurred before Greenholtz left. The statute does not contemplate that the formal entry or issuance of the award be done by a minimum of two members, because it specifically uses the word “made” and does not use or add “entered” or “issued.” It does not require the signature of each. Obviously in this case, as no doubt in many, the decision is made (voted on) on a day earlier than the day the award is issued, as the latter must be reduced to writing and has effect from that day with respect to time limitations. Thus the issuance of the award, based on the August decision of the board, should be deemed valid.

Decided March 17, 1988

Rehearing denied March 31, 1988

Michael J. Rust, for appellants.

Another saving approach is to view the order containing the award as nunc pro tunc the August voting, insofar as the “decision” is concerned, with Knowles acting for all three who voted on the case when he signed and issued the award. The record does not establish anything other than that the board intended the decision to be given effect.

All of the action in the case taken by Greenholtz having been taken when he was a member of the board, and the decision in the case having been “made” by three members, there is no violation of OCGA § 34-9-46 when the award is issued after a member leaves, barring any contrary action in the case by those authorized to act in the interim.

This does not conflict with Hartford Accident & Indem. Co. v. Mapp, 96 Ga. App. 517 (100 SE2d 742) (1957), because of the additional evidence here regarding the intention of the board, and because it is clear that all of Greenholtz’ participation occurred while he was a member. Neither is Aetna Cas. & Surety Co. v. Barden, 179 Ga. App. 442 (346 SE2d 588) (1986), dispositive as it rules on a distinguishable set of procedural facts and other provisions of the workers’ compensation law which are not applicable here.

It is proper to reach the merits of the issues in this case now, rather than remand it for the superior court to remand it to the board, for a decision which will because of the issues involved inevitably wend its way here again, at great cost to the parties and at great expenditure of judicial and administrative resources. A newly composed board will have to reconsider and vote on the case, when that has already been correctly done once by authorized members. We are addressing an award issued in 1986, involving alleged benefits commencing in 1983, and the “speedy, efficient, and inexpensive resolution” of this dispute should be provided, in the spirit of Ga. Const. 1983, Art. VI, Sec. IX, Par. I.

David A. Cook, for appellee.


author: Pope, Judge. Birdsong, Chief Judge, Deen, Presiding Judge,

text:
    75091.
    75092.
    DIAMOND v. AMERICAN FAMILY CORPORATION et al. AMERICAN SAVANNAH BROADCASTING COMPANY v. DIAMOND.
    (368 SE2d 350)
   Pope, Judge.

Plaintiff Diamond, a real estate broker, claims he was defamed by a television news broadcast by WTOC-TV, a Savannah television station. The facts show Diamond was instrumental in arranging a real estate transaction in which Hardee’s restaurant purchased a tract of land on which to build a restaurant on Wilmington Island. Upon purchasing the land, Hardee’s contracted to have it cleared in preparation for construction. In the process of clearing the tract the contractor also mistakenly removed from adjoining county property a stand of trees and other foliage which served as a natural buffer zone between the commercial area in which the restaurant was to be built and a nearby residential neighborhood. The improper clearing was the subject of heated local debate and was reported on the local news.

The first report concerning the controversy was broadcast on December 4, 1984. In preparing for a second broadcast on December 5, the reporter learned that Hardee’s was investigating the possibility that it might have paid for land actually owned by the county. In the course of the December 5 broadcast, the reporter stated: “The county appears to be somewhat responsible, but the mistake apparently began months ago when this man, Bob Diamond, sold a bigger tract of land than his client actually owned. That’s a mistake the restaurant people are sure to investigate.” In actuality, the mistake was made when a surveyor hired by Hardee’s placed surveying stakes ten feet over the actual property line onto land owned by the county. In a final broadcast on December 7, the reporter reported the surveyor’s mistake and added that Hardee’s was satisfied they had not paid for land not belonging to them.

Plaintiff Diamond filed this action for defamation against American Savannah Broadcasting Company and American Family Corporation, alleging they were the owners and operators of station WTOCTV. Defendant American Family Corporation moved for summary judgment in reliance upon an affidavit by its chief operating officer attesting that it was a separate legal entity from American Savannah Broadcasting Company and that it did not own or operate the television station. Both defendants moved for summary judgment on the ground the objectionable report was conditionally privileged because it concerned a matter of public interest. Since the undisputed evidence showed the statement was made with no actual malice or ill will, defendants argued the plaintiff could not prevail on this claim. The lower court granted summary judgment to American Family Corporation. It also granted partial summary judgment to American Savannah Broadcasting Company as to plaintiff’s claim for punitive damages. However, summary judgment was denied as to plaintiffs claim for general or actual damages. Plaintiff Diamond appeals the grant of summary judgment to American Family Corporation and the grant of partial summary judgment to defendants concerning his claim for punitive damages (Case No. 75091). Defendant American Savannah Broadcasting Company cross-appeals the order denying its motion for summary judgment to plaintiffs claim as a whole (Case No. 75092).

Case No. 75092

1. The trial court granted partial summary judgment to defendant American Savannah Broadcasting Company as to plaintiff Diamond’s claim for punitive damages. However, the court denied summary judgment on the complaint as a whole and defendant appeals. Defendant claims the allegedly defamatory statements made in its broadcast were privileged because they pertained to a matter of general or public interest. According to defendant, under these circumstances a plaintiff in a defamation case may recover damages only if he proves the statements were made with actual malice. Because the undisputed evidence shows defendant entertained “no serious doubts” as to the truth of the statements in question, defendant argues it is entitled to judgment as a matter of law.

The evidence clearly establishes the broadcast in question concerned a matter of public interest. However, the evidence also shows plaintiff is a private individual and not a public figure. Therefore, the fact that the broadcast concerned a matter of public interest is not the determining factor for deciding whether actual malice must be shown in order for the individual to recover in a defamation action.

When a defamation action is brought by an individual against a member of the press, the court is faced with competing legal interests. On the one hand, the individual has a common law right to the protection of his own good name. On the other hand, the First Amendment of the United States Constitution guarantees freedom of speech and the press. Common law imposed strict liability for defamatory statements. However, “a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship.” Gertz v. Robert Welch, Inc., 418 U. S. 323, 340 (94 SC 2997, 41 LE2d 289) (1974). In balancing these two competing interests the United States Supreme Court has long recognized a conditional privilege for statements made about either a private or public figure if those statements concerned the individual’s involvement in an event of public or general interest. See, e.g., Rosenbloom v. Metromedia, 403 U. S. 29 (91 SC 1811, 29 LE2d 296) (1971); New York Times Co. v. Sullivan, 376 U. S. 254 (84 SC 710, 11 LE2d 686) (1964). Prior to the Gertz decision the privilege in favor of freedom of speech was so strong that when a statement concerned a matter of public interest, the individual could recover for defamation only if he could prove the statement was made with “actual malice,” which is defined as knowledge of the statement’s falsity or reckless disregard for the truth of the statement. New York Times Co. v. Sullivan, supra.

However, in Gertz the Supreme Court retreated from its earlier position and held, in effect, that the controlling factor in determining the standard of review for defamatory statements is not whether the statement relates to an issue of public or general concern but whether the remark was made about a private individual as opposed to a public official or figure. The court rejected the “public or general interest” standard for determining the applicability of the New York Times “actual malice” test to private defamation actions. Instead, the court stated: “[W]e conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.” 418 U. S. at 343, supra. Therefore, the Supreme Court ruled there is no longer a constitutional requirement for a private individual to prove malice in order to recover for defamation. “We hold that, so long as they do not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id. at 347. Statements made by the press about a private individual which concern a matter of public interest are still granted a conditional privilege to the extent that such statements are not subject to “strict liability” which might otherwise be imposed at common law. However, there is no longer a constitutional requirement that the individual must prove actual malice in order to recover.

In response to the relaxed standard announced by Gertz, the Georgia Supreme Court adopted the standard of the majority of states, i.e., ordinary care. Triangle Publications v. Chumley, 253 Ga. 179 (317 SE2d 534) (1984). The same standard which applies to publishers should also apply to broadcasters. Thus, whether a broadcaster practiced that degree of care required of a reasonable broadcaster under the circumstances is an issue for the jury. See Triangle Publications v. Chumley, supra at (1). A private individual need not prove a defamatory statement was made with actual malice. He or she may recover if the broadcaster failed to use ordinary care to determine the truth or falsity of the statement.

Those cases in which this court has held a private individual must show actual malice in order to prevail on a claim for defamation were decided prior to Gertz and Triangle Publications. See Montgomery v. Pacific &c. Co., 131 Ga. App. 712 (206 SE2d 631), aff'd on other grounds, 233 Ga. 175 (210 SE2d 714) (1974) (affirmed on the ground that the defense of justification, i.e., the truth of the statement involved in the defamacast, should be tried by a jury); WSAV-TV v. Baxter, 119 Ga. App. 185 (166 SE2d 416) (1969). To the extent these cases held that the qualified privilege for the reporting of matters of public concern may be defeated only by a showing of actual malice, they should be overruled. We need not overrule Minton v. Thomson Newspapers, 175 Ga. App. 525 (333 SE2d 913) (1985), which was decided subsequent to the announcement of the new standard by the United States Supreme Court in Gertz. In Minton, we properly applied the standard of ordinary care adopted by our own Supreme Court in Triangle Publications, supra, and ruled that the qualified privilege for publishing newsworthy stories must be exercised in good faith and pursuant to the standards of ordinary care.

It is true that the defamacast in this case is not granted a statutory privilege since a report on matters of public concern is not one of those categories covered by statute. See OCGA §§ 51-5-7 and 51-5-8. However, that does not mean there exists no constitutional privilege for publishing or broadcasting matters of public concern. Those concurring specially seem to recognize only those privileges granted by state statute. However, we cannot ignore that the United States Supreme Court still recognizes a qualified constitutional privilege for statements concerning matters of public concern, whether they are made in reference to private individuals or public figures. As noted above, those statements are privileged to the extent that the states may not impose strict liability for such statements, for to require absolute accuracy of all published statements would stifle the freedom of the press. See Gertz v. Robert Welch, Inc., supra. Our opinion in Minton correctly recognized the privilege and correctly applied the ordinary care standard of review. It need not be overruled. The problem with Montgomery v. Pacific &c. Co., supra, and WSAV-TV v. Baxter, supra, is not that they recognized a non-statutory privilege for reporting matters of public concern, for there exists such a privilege. The true reason these opinions should be overruled is that they applied the wrong standard of review for liability and erroneously held that the privilege may be defeated only by a showing of actual malice. By overruling those two earlier cases we simply clarify that actual malice is not required for the aggrieved party to recover for a defamacast.

In the case at hand, even though defendant presented uncontradieted testimony that it had no actual knowledge that the broadcast in question contained false statements, defendant is not entitled to summary judgment. Pursuant to the standard announced in Triangle Publications, a broadcaster may be liable even for a newsworthy report if it contains a defamatory statement and the broadcaster failed to employ the procedures a reasonable broadcaster under the circumstances would have employed to assure the accuracy of the statement before broadcasting the report. An issue remains for jury determination whether defendant was negligent in broadcasting the admittedly false statements.

Case No. 75091

2. Defendant American Family Corporation presented undisputed evidence that it was a separate legal entity from its co-defendant American Savannah Broadcasting Company and that it did not own or operate the television broadcasting station WTOC-TV. Therefore, summary judgment was properly granted to American Family.

3. Plaintiff Diamond also appeals from the grant of partial summary judgment to defendants as to his claim for punitive damages. As discussed in Division 1 of this opinion, the United States Supreme Court in Gertz permitted the states to define for themselves the appropriate standard of liability for defamation, so long as they did not impose liability without fault. Nevertheless, the guidelines set forth in Gertz prohibited recovery of punitive damages for defamation without a showing that the broadcaster or publisher possessed knowledge of the falsity of the defamatory statement or exercised reckless disregard for the truth. Although Gertz relaxed the standard of proof necessary for a plaintiff to recover actual damages for defamation, the evidence must still meet the more demanding standard of “actual malice,” as set forth in New York Times Co. v. Sullivan, supra, in order to support a recovery of punitive damages. Therefore, the lower court properly granted partial summary judgment to defendants as to plaintiff’s claim for punitive damages.

Judgments affirmed.

Banke, P. J., Sognier and Benham, JJ., concur. McMurray, P. J., and Beasley, J., concur in the judgment only. Birdsong, C. J., Deen, P. J., and Carley, J., concur specially.

Birdsong, Chief Judge,

concurring specially.

I concur specially with the majority opinion because I cannot concur with all that is said therein. Specifically, I cannot concur with the conclusion that “the United States Supreme Court has long recognized a conditional privilege for statements made about either a private or public figure if those statements concerned the individual’s involvement in an event of public or general interest.” (Emphasis supplied.) Rosenbloom v. Metromedia, 403 U. S. 29 (91 SC 1811, 29 LE2d 296), and New York Times Co. v. Sullivan, 376 U. S. 254 (84 SC 710, 11 LE2d 686), are cited as authority for this statement. In New York Times the court “defined a constitutional privilege intended to free [the media from liability for] criticism of public officials from the restraints imposed by the common law of defamation.” (Emphasis supplied.) Gertz v. Robert Welch, Inc., 418 U. S. 323, 334 (94 SC 2997, 41 LE2d 289). The majority opinion confuses the term “constitutional privilege” with the statutory term “conditional privilege.” In Georgia, the term “conditional privilege” is a term of art for it has a codified meaning. It is defined in OCGA § 51-5-7, and is restricted to those statutorily included subjects, and it does not include “statements made about either a private or public figure if those statements concerned the individual’s involvement in an event of public or general interest.” The New York Times case does not discuss a “conditional privilege” and addressed only public officials. Further, any reference to Rosenbloom as authority is suspect. Rosenbloom was a badly fractured opinion, with five separate opinions being issued, and the views of the plurality of three were soundly rejected in Gertz. Rosenbloom applied the “actual malice” test of New York Times to a private individual. Gertz rejected that notion and the reasoning of Rosenbloom (see Gertz, supra at 346) and held that New York Times “actual malice” test did not apply to media defamation of a private individual, and “that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id. at 347. This holding places the authority for establishing the liability for defamation of a private individual with the states. In Georgia, neither our statutes nor decisions of our Supreme Court extend a “conditional privilege” to media publication of newsworthy events.

The majority ignores two Georgia Supreme Court decisions, one decision of this court, and one decision of the United States Supreme Court, in holding that the media has a qualified privilege to publish newsworthy events. The U. S. Supreme Court held that “ ‘[t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.’ Associated Press v. Labor Board, 301 U. S. 103, 132-133.” Curtis Publishing Co. v. Butts, 388 U. S. 130, 150 (87 SC 1975, 18 LE2d 1094). Our Georgia Supreme Court held: “A newspaper is not privileged in its publications, but it is liable for what it publishes, in the same manner as any individual. [Cits.] The publication of defamatory matter is not privileged because published in the form of an advertisement, or as news, or because furnished by a correspondent, or is copied from other papers. [Cits.]

“The right to publish through the newspaper press such matters of interest as may be properly laid before the public does not go to the extent of allowing the publication concerning a person of false and defamatory matter, there being no other reason or justification for so doing than the mere publication of the news.” (Emphasis supplied.) Cox v. Strickland, 101 Ga. 482, 493 (3) (28 SE 655). This is our general law in Georgia and apparently the majority view in the United States. See Atlanta News Publishing Co. v. Medlock, 123 Ga. 714 (6) (51 SE 756); Morton v. Stewart, 153 Ga. App. 636, 637 (266 SE2d 230); Wood v. Constitution Pub. Co., 57 Ga. App. 123, 131 (194 SE 760); Lowe v. News Pub. Co., 9 Ga. App. 103, 104 (5) (70 SE 607); 53 CJS 173, Libel & Slander § 98; 50 AmJur2d 769, Libel & Slander, § 251; Anno. 50 ALR3d 1311, 1362 § 21. No attempt has been made to distinguish or overrule these Georgia authorities. However, they exist and they are incompatible with the majority opinion.

The majority does recognize that Montgomery v. Pacific &c. Co., 131 Ga. App. 712 (206 SE2d 631) and WSAV-TV v. Baxter, 119 Ga. App. 185 (166 SE2d 416) should be overruled, but that Minton v. Thomson Newspapers, 175 Ga. App. 525 (333 SE2d 913) which followed Baxter and Montgomery need not be overruled. They distinguish Minton, even though it holds that “the media which routinely broadcast or publish news stories of what happens in the community in which the public has a legitimate interest are afforded a cloak of protection in that the publication constitutes a qualified privilege. [Baxter, supra.] Where the privilege is qualified (conditional), the exercise of the privilege must be in good faith and ordinary care.” 175 Ga. App. at 527. My objection to Minton is that it perpetuates the misconception that media publishers and broadcasters have “a qualified privilege” to “publish news stories ... in which the public has a legitimate interest. . . .” 175 Ga. App. at 527. This wording is contrary to Cox, supra, and Medlock, supra, and no attempt is made to explain why these Supreme Court cases are not controlling.

The majority opinion finds Minton acceptable because it was “decided subsequent to . . . Gertz . . . [and] properly applied the standard of ordinary care adopted by our own Supreme Court in Triangle Publications. . . .” This reasoning fails to consider that the Supreme Court did not find that the publisher had a “conditional privilege” to publish its defamatory matter. The court explained that “21 states have adopted an ordinary care standard . . . [and they] agree with the majority view that a negligence standard for private figure plaintiffs best preserves the balance between free speech interests and protection of the individual’s reputation. See Restatement 2d of Torts, § 580 (b).” 253 Ga. at 181. Hence, the court adopted the Restatement view along with the majority of the states. That Restatement view is: “One consequence of the holding of [Gertz, supra] is that mere negligence as to falsity, being required for all actions of defamation, is no longer treated as sufficient to amount to abuse of a conditional privilege. Instead, knowledge or reckless disregard as to falsity is necessary for this purpose.” (Emphasis supplied.) Restatement 2d, Torts § 600, Comment B. This distinction is the key to my disagreement with the majority view, that is, mere negligence does not defeat “a conditional privilege.” A “conditional privilege” (OCGA § 51-5-7) is defeated by “malice.” OCGA § 51-5-9. “ ‘(P)roof that the communication as made was privileged will defeat recovery unless actual malice on the part of the defendant exists.’ ” Morton v. Gardner, 155 Ga. App. 600, 604 (271 SE2d 733); Sparks v. Parks, 172 Ga. App. 823, 826 (324 SE2d 784); Van Gundy v. Wilson, 84 Ga. App. 429, 433 (66 SE2d 93). Thus, it is clear that a conditionally privileged communication is defeated by malice and that a communication regarding a private individual by a media publication or broadcast is now defeated by a showing of negligence. Triangle Publications, supra. The only logical conclusion is that the media publication or broadcast is not conditionally privileged. If it was conditionally privileged, the controlling criterion would be “malice.” OCGA § 51-5-9. Since such media publication or broadcast regarding a private individual is now defeated by a showing of negligence, and negligence is insufficient to defeat a conditional privileged communication (Restatement 2d, Torts § 600, Comment B), I cannot agree with the majority conclusion that this TV broadcast was conditionally privileged. Hence, since Minton, supra, parrots Baxter, supra, and Montgomery, supra, as to news broadcasts being conditionally privileged, and these holdings are contrary to Cox, supra, and Medlock, I would overrule Minton and follow our Supreme Court.

In summary, the news media have a “constitutional privilege” to publish and broadcast newsworthy items of general or public interest (Gertz, supra), and such “privilege” is defeated by a showing of “negligence.” Triangle Publications, supra at 181. However, this “constitutional privilege” is not the same as Georgia’s statutory “conditional privilege” (OCGA § 51-5-7), which is defeated by a showing of “malice.” OCGA § 51-5-9. The Georgia Supreme Court, implementing Gertz by establishing a standard for determination of liability of a media defendant in a defamation action by a private individual, elected to follow the majority and the Restatement and adopted a “negligence” standard. “Negligence” being insufficient to amount to an abuse of a “conditional privilege” (Restatement 2d, Torts, § 600, Comment B), any notion that a news broadcast of matters of public or general interest is conditionally privileged, is not supported by our law.

I therefore specially concur with the majority.

I am authorized to state that Judge Carley joins in this special concurrence.

Decided March 18, 1988

Rehearing denied April 1, 1988

Charles W. Brannon, Jr., for Diamond.

Paul W. Painter, Jr., for Am. Family and Am. Savannah.

Deen, Presiding Judge,

concurring specially.

This writer concurs in about 95 percent of what is said in the majority opinion and the same percentage of what is said in the other special concurrence filed in this case. Both sides acknowledge that this court should overrule WSAV-TV v. Baxter, 119 Ga. App. 185 (166 SE2d 416) (1969), and Montgomery v. Pacific &c. Co., 131 Ga. App. 712 (206 SE2d 631) (1974). There is no disagreement there. In addition, the other special concurrence seeks to overrule Minton v. Thomson Newspapers, 175 Ga. App. 525 (333 SE2d 913) (1985). The majority opposes the overruling of the latter cited case. In my opinion, there is only about 5 percent worth of difference between the two positions; the central point focuses upon whether or not to overrule Minton.

The other special concurrence is correct in saying that Minton quotes, or picks up on, promotes, and parrots the same erroneous language used in the two cases that are to be overruled by agreement, so that the specially concurring opinion has merit. The majority view is also correct in defending Minton, to the extent that Minton did apply the correct standard under Georgia law.

Where I disagree with both views is that Minton contains no precedential value and does not need overruling, because there is nothing left to overrule. The case has, in effect, already been overruled. One judge concurred in the judgment only, rendering the case lifeless as a physical precedent only, so the debate as to overruling it is much ado about nothing. Minton contains zero precedential value, and, in the words used by eight judges on this court in Tanner v. State, 160 Ga. App. 266, 267 (287 SE2d 268) (1981), is “a toothless tiger” and “a fish that cannot swim”; or in the pithy language of Sewell v. Eubanks, 181 Ga. App. 545 (352 SE2d 802) (1987), “is a jellyfish.” There is no need to beat a dead horse further; therefore, I concur specially.