author: Ruffin, Judge.

text:
    A00A1895.
    CHANEY et al. v. BURDETT et al.
    (548 SE2d 407)
   Ruffin, Judge.

Lawrence Burdett and Charles Chaney were equal partners in BMW Partners. After Charles Chaney died, his wife, Bonnie Chaney, individually and as the executrix of her husband’s estate, brought suit against Burdett and BMW Partners, seeking to compel liquidation of partnership assets, to enforce a buy-sell agreement contained in the Partnership Agreement, and to recover damages for Burdett’s alleged breach of a fiduciary duty. The parties filed cross-motions for partial summary judgment. The trial court denied Chaney’s motion, but granted Burdett’s motion with respect to several counts of Chaney’s complaint, and Chaney appeals. For reasons that follow, we affirm.

Summary judgment is proper when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. In reviewing a grant of summary judgment, we conduct a de novo review, and we construe the evidence and all inferences in favor of the nonmovant.

In 1982, Burdett and Charles Chaney incorporated a car repair business. The two men subsequently purchased property and built the facility out of which they operated their car repair business. Burdett and Chaney then formed BMW Partners and transferred ownership of the facility to the partnership. Initially, the Partnership Agreement contained a provision that, upon the death of a partner, the “Partnership shall be converted to a limited partnership and the . . . personal representative . . . of a deceased Partner . . . shall be admitted to the Partnership as a Limited Partner.” The agreement was subsequently amended to delete this provision in its entirety, leaving the agreement silent as to the effect a partner’s death would have on the partnership.

In 1987, the partnership entered a lease agreement with the corporation in which the corporation agreed to lease the property for $8,000 per month. The lease provided that it would “automatically renew for three (3) successive terms of five (5) years” absent written notice to the contrary. According to Burdett, however, the partners “did not follow the lease terms exactly” and would accept as rent whatever amount the corporation could afford. Prior to Charles Chaney’s death, the corporation began paying the partnership $9,000 per month in rent.

Charles Chaney was diagnosed with terminal cancer. Prior to his death, he provided his wife a handwritten “memorandum,” which purported to explain “legal and financial matters associated with his estate.” The memorandum stated that the “business” would go to Burdett, but not the “property.” The memorandum also stated that $900,000 would go to Bonnie Chaney for the “business.” Finally, the memorandum indicated that Bonnie Chaney would continue to receive $4,500 each month as her share of the rent from the property owned by BMW Partners.

On April 15, 1998, Charles Chaney died. Burdett elected to continue the business of the partnership, and he sought to purchase the estate’s interest in the partnership. Burdett met with Bonnie Chaney’s attorney, and according to Burdett, they agreed that the corporation would continue to pay Chaney $4,500 per month in rent until Chaney’s attorney obtained an appraisal to establish the fair market rental value of the property. Upon ascertaining the fair market value, the rent would be adjusted retroactive to the month following Charles Chaney’s death.

Bonnie Chaney disagreed with the decision to adjust the rent based upon an appraisal, and she refused to accept less than the $4,500 that she had been receiving. Evidently, her attorney did not have the property appraised. In December 1998, Burdett stopped paying rent to Chaney in an attempt to get Chaney’s attorney “to do what had already been agreed to [and] set the rent at fair market value or agree on a price at which the Estate’s interest could be purchased.”

In February 1999, Chaney, through her attorney, wrote Burdett, claiming to invoke the buy-sell agreement contained within the Partnership Agreement and agreeing to accept $438,500 for her share of the partnership. Burdett, however, did not believe that Chaney had a right to invoke the buy-sell agreement. In a letter dated March 3, 1999, Burdett offered to pay Chaney $300,000 for the estate’s interest in the partnership, which was based upon an appraisal and an estimate of the value of the equipment owned by the partnership. The letter also informed Chaney that, based upon the appraisal, the fair market value of the rent was $4,500 as opposed to $9,000, the corporation had overpaid the partnership $80,000, and the rent was being “adjusted” retroactively to January 1, 1997, to recoup the overpayment.

Upon receiving the March 3 letter, Chaney instituted this action. In Count 1 of her complaint, she sought judicial liquidation of the partnership’s assets, a full accounting of partnership assets, and payment of her share of the assets. In Count 2, Chaney asserted that she was authorized to exercise the buy-sell provision in the Partnership Agreement, and she requested a court order compelling Burdett to sell his interest to her in accordance with that agreement. In Count 3, Chaney alleged that, in unilaterally adjusting the rent, Burdett breached his fiduciary duty owed to her, as the executrix of her husband’s estate.

Chaney moved for partial summary judgment on Count 1, seeking (1) a judicial determination that she had the right to compel liquidation of the assets of the partnership; (2) a judicial determination that she had the right to a judicially supervised winding up of partnership business, including an accounting of partnership assets; (3) a finding that an enforceable lease is a partnership asset; and (4) a finding that Burdett’s unilateral reduction of rent was “null and void.” Burdett filed a cross-motion for summary judgment, asking the court to examine the record and “enter an order specifying the facts that are without substantial controversy and direct further proceedings in the action as are just.”

In its order, the trial court found that Chaney did not have the right to compel liquidation of the partnership’s assets, and it denied her motion. With respect to the accounting and Chaney’s request for payment of her share of the partnership’s assets, the court found that genuine issues of fact remained as to what Chaney was owed. With respect to Chaney’s attempt to assert partnership rights, the court determined that Chaney, as the legal representative of her husband’s estate, stood as an ordinary creditor to the partnership, rather than a partner. As such, the court held that Chaney did not have the right either to exercise the buy-sell agreement or to assert a breach of fiduciary duty. Thus, the trial court granted summary judgment on Counts 2 and 3 of Chaney’s complaint as well as Count 1 on the issue of judicial liquidation.

1. In several enumerations of error, Chaney contends that the trial court erred in denying her motion for summary judgment. Chaney argues that she has the right to compel judicial liquidation of partnership assets. Also, she asserts that Burdett, as the sole remaining partner, does not retain the right to continue the business of the partnership. Chaney, however, misconstrues the statutes setting forth the rights and obligations of the parties in a situation such as this.

Upon Charles Chaney’s death, BMW Partners was dissolved by operation of law. Following dissolution, Bonnie Chaney contends that OCGA § 14-8-38 (a) gives her the right to liquidate partnership assets. This Code section provides, in pertinent part,

[u]nless otherwise agreed by the partners in the partnership agreement, at the time of the transaction, or at any other time, including, but not limited to, an agreement to continue the business of the partnership, when dissolution is caused in any way, other than wrongfully either in contravention of the partnership agreement or as a result of other wrongful conduct of a partner, any partner, or the legal representative of the estate of a deceased partner, as against his copartners and all'persons claiming through them in respect of their interests in the partnership, may have the partnership property applied to discharge its liabilities and the surplus applied to pay in cash or its equivalent the net amount owing to the respective partners.

Contrary to Chaney’s contention, this provision does not give her a general right to liquidate partnership assets.

Where a statute’s language is plain and does not lead to any absurd or impracticable consequences, we simply construe it according to its terms and conduct no further inquiry. Moreover, “we will not construe a statute so as to render any portion of it meaningless, and we must reconcile, if possible, any potential conflicts between different sections in light of the entire statutory scheme and the legislative intent.”

OCGA § 14-8-38, by its express terms, gives the legal representative of a deceased partner the right to satisfy partnership obligations using partnership assets unless the partners agree to continue the business of the partnership. This Code section does not, however, give the legal representative the same rights as a partner. Thus, following the death of Charles Chaney, Burdett was the only partner, and he chose to continue the business of the partnership.

Chaney argues that OCGA § 14-8-38 requires that all original partners agree to continue the business if the business is to be continued. We find this argument unavailing. Where, as here, one partner has died, it is impossible for all original partners to agree to continue the business.

Moreover, Chaney’s view that this statute grants a general right to nonpartners to liquidate partnership assets is inconsistent with the statutory scheme in its entirety, which clearly permits the remaining partners to continue the business of the partnership following the death of a partner. Pursuant to OCGA § 14-8-41 (a),

[w]hen any partner withdraws, is expelled, or dies and the business of the dissolved partnership is continued by one or more of the partners, either alone or with others, without liquidation of the partnership affairs, creditors of the first or dissolved partnership are also creditors of the person or partnership continuing the business.

OCGA § 14-8-42, in turn, provides that

[w]hen any partner withdraws or dies, and the business is continued under any of the conditions set forth in subsection (a) of Code Section 14-8-41 . . . without any settlement of accounts as between the withdrawn partner or the legal representative of the estate of a deceased partner and the persons or partnership continuing the business, unless otherwise agreed . . . [t]he withdrawn partner or legal representative of the estate of the deceased partner shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest, or, at his option, in lieu of interest, the profits attributable to the use of his right in the property of the dissolved partnership.

Reading these Code provisions together, it is evident the legislature intended that, following the dissolution of a partnership due to the death of a partner, the remaining partner or partners can agree to continue the business of the partnership. If the business is continued, the legal representative of the deceased partner stands as a general creditor to the dissolved partnership. Thus, the trial court correctly concluded that Chaney, as a general creditor, had no right to compel liquidation of partnership assets.

2. Chaney alleges that the trial court erred in denying her summary judgment on her right to an accounting of partnership assets. Chaney is correct that, as the legal representative of her husband’s estate, she has the right to an accounting of her husband’s interest in the partnership. Here, however, the trial court expressly ruled that issues of fact remained as to what Chaney was owed. Accordingly, the trial court did not rule against Chaney on this issue. In her complaint, Chaney demanded an “audit by an independent accountant.” To the extent that she bases her claim of error on the trial court’s failure to appoint such auditor, we note that “[t]he appointment of an auditor is within the discretion of the trial court.” We find no abuse of discretion here.

3. Chaney argues that the trial court erred in failing to grant her summary judgment on the “Enforceability of the Five-Year Extension of the Lease Agreement.” Burdett, on the other hand, asserts that the corporation and partnership departed from the terms of the lease, and “[t]he issue of whether there had been a joint departure from the contract terms is ordinarily a question for the jury.”* Therefore, the trial court did not err in failing to grant summary judgment on this issue.

4. Chaney contends that the trial court erred in granting Burdett summary judgment on Count 2 of her complaint, in which she sought to enforce the Partnership Agreement. Specifically, she alleges that Burdett and her husband entered into a “quasi-new agreement” in which she would succeed to her husband’s interest in the partnership upon his death. According to Chaney, her husband’s memorandum, combined with Burdett’s actions in negotiating with her regarding a reduction in rent and in failing to wind up partnership business, creates a factual issue “as to the existence of an agreement to continue the partnership.” Chaney asserts that she has the rights of a partner under this quasi-new agreement.

Chaney’s reasoning is flawed. As an initial matter, we note that Burdett could not agree to continue the original partnership as it was dissolved, by operation of law, upon Charles Chaney’s death. Additionally, in his affidavit, Burdett stated that he never agreed to accept Bonnie Chaney as a partner in the business. Indeed, the Partnership Agreement was specifically amended so that the legal representative of a deceased partner would not become a partner in the continued business. And none of Burdett’s actions in dealing with Chaney suggests that he considered her a partner.

Although parties certainly may agree to depart from the terms of an agreement, to survive summary judgment, “there must be some evidence that an agreement to do so had been reached.” As there is no evidence that Burdett intended to enter a quasi-new agreement, the trial court did not err in granting summary judgment on this issue.

It follows that the trial court correctly concluded that Chaney, as a nonpartner, had no right to invoke the buy-sell agreement contained in the Partnership Agreement. A partnership agreement is a contract, and Chaney, as a third party, has no rights under the contract.

5. Chaney asserts that the trial court erred in granting Burdett summary judgment on her claim that, in unilaterally adjusting the rent, Burdett breached a fiduciary duty owed her as the executrix of her husband’s estate. Again, we disagree.

We will not presume that a confidential and fiduciary relationship exists. The burden rests on Chaney, as the party asserting such relationship, to affirmatively show that one does exist. Chaney makes no attempt to establish why a confidential relationship exists, but merely argues that, as the legal representative of her husband’s estate, she is owed the same duty that would be owed to her husband. It is true that “partners owe a duty to act in the utmost good faith with regard to each other.” For reasons discussed above, however, Chaney, who stands as an ordinary creditor to the partnership, is not entitled to be treated as a partner.

6. Finally, Chaney maintains that the trial court erred in finding that Burdett stated that “he and Mr. Chaney made an oral agreement to pay the Partnership more or less [for renting the property] depending on how much the Corporation could afford.” We note, however, that Burdett did, in fact, state in his affidavit that he and Charles Chaney had an agreement that the corporation would pay what it could. Furthermore, the trial court did not rule on the validity of that oral agreement. It concluded instead that issues of fact remain as to what rent should have been paid.

Burdett’s statement in his affidavit creates an issue of fact as to whether he and Charles Chaney mutually departed from the terms of the lease. Contrary to Bonnie Chaney’s contention on appeal, the trial court was not permitted to ignore Burdett’s statement for the purpose of granting her motion for summary judgment.

Decided March 20, 2001

James C. Gaulden, Jr., for appellants.

Perrie, Buker, Jones & Morton, J. William Haley, for appellees.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

        See Duffy v. The Landings Assn., 245 Ga. App. 104 (536 SE2d 758) (2000).

       Id.

       In five enumerations of error, Chaney asserted that the tried court erred in its ruling with respect to Count 1 of her complaint. She addressed the five enumerations in one argument in her brief. In so doing, she has disregarded Court of Appeals Rule 27 (c) (1). Litigants who disregard this Court’s rales do so at their own peril. See Clark v. Blue Circle, 237 Ga. App. 1 (1) (514 SE2d 473) (1999). However, to the extent that we can discern Chaney’s arguments, we will address them. Id.

       See OCGA § 14-8-31 (a) (5).

        Hayden v. Sigari, 220 Ga. App. 6, 8 (1) (467 SE2d 590) (1996).

        Paulsen Street Investors v. EBCO Gen. Agencies, 237 Ga. App. 116, 119 (1) (514 SE2d 904) (1999).

       As it is not necessary to this appeal, we do not address a court’s authority to compel liquidation of partnership assets if such liquidation is necessary to wind up the prior partnership’s business.

       See OCGA § 14-8-43.

        Parmar v. Khera, 215 Ga. App. 71 (2) (449 SE2d 894) (1994).

       See id.

        First Union Nat. Bank of Ga. v. Davies-Elliott, Inc., 215 Ga. App. 498, 504 (2) (452 SE2d 132) (1994).

       See OCGA § 14-8-31 (a) (5).

       We fail to see how the “memorandum” written by Chaney’s husband establishes that Burdett entered into a quasi-new agreement to include Bonnie Chaney in the partnership. The “memorandum” contains no such statement, and Chaney makes no cogent argument as to how the “memorandum” implies such agreement.

       (Punctuation omitted.) Ga. Color Farms v. K.K.L., Ltd. Partnership, 234 Ga. App. 849, 851 (1) (507 SE2d 817) (1998).

       See id.

       See Howard v. Hammond, 216 Ga. App. 703, 706 (2) (455 SE2d 390) (1995).

       Here, there is no evidence that Chaney was a third-party beneficiary to the Partnership Agreement. See Rowe v. Akin & Flanders, Inc., 240 Ga. App. 766, 768 (1) (525 SE2d 123) (1999).

       See Harish v. Raj, 222 Ga. App. 248, 250 (1) (474 SE2d 624) (1996); see also Bowen v. Hunter, Maclean, Exley &c., 241 Ga. App. 204, 207 (2) (525 SE2d 744) (1999) (physical precedent only).

       (Punctuation omitted.) Howard, supra at 706.

       On appeal, Chaney also argues that Burdett breached a fiduciary duty owed to the partnership. Pretermitting whether she has standing to raise this issue, she did not assert such breach in her complaint, and she does not appear to have raised this argument below. This Court will not consider arguments raised for the first time on appeal. See Leal v. Hobbs, 245 Ga. App. 443, 447 (2) (b) (538 SE2d 89) (2000).

       See McNeal v. Days Inn of America, 230 Ga. App. 786, 788 (498 SE2d 294) (1998) (if evidence creates a jury issue, trial court not permitted to ignore such evidence on motion for summary judgment).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A01A0780.
    In the Interest of F. C. et al., children.
    (549 SE2d 125)
   Mikell, Judge.

The biological mother of F. C., A. C., and H. A.* appeals the juvenile court’s order terminating her parental rights. Having determined that the evidence supports the termination and that no reversible error occurred, we affirm.

On appeal from a termination order, this Court views the evidence in the light most favorable to the appellee and determines whether any rational trier of fact could have found by clear and convincing evidence that the biological parent’s rights to custody have been lost. We do not weigh the evidence or determine the credibility of witnesses, but defer to the trial court’s factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.

So viewed, the evidence shows that in April 1998, the mother, who resided in Ohio, left the state with her three children to visit with her brother in Georgia. After two weeks, the brother asked them to leave. On April 22, the mother was arrested for public drunkenness and disorderly conduct, and the children were placed in the emergency custody of the Gwinnett County Department of Family & Children Services (DFACS). DFACS developed a reunification case plan that required the mother to improve her parenting skills, remain alcohol-free, maintain a stable lifestyle, cooperate and maintain contact with DFACS, and cooperate with the Child Support Enforcement Unit (CSE). The mother reviewed, and agreed to, the reunification case plan goals. On May 28, 1998, the juvenile court incorporated the goals into a court order.

Shortly thereafter, the mother moved back to Ohio, leaving the children in Georgia in foster care. A DFACS caseworker testified that she did not hear from the mother again until August. By then, F. C. and A. C. had been placed with their biological father in Ohio, but H. A., who had a different father, remained in foster care in Georgia. The mother requested that H. A. be placed in a foster home in Ohio. The caseworker explained that DFACS does not place children in out-of-state foster homes and instead referred the mother to an Ohio agency and assigned an Ohio caseworker to assist with reunification.

On May 4, 1999, the juvenile court determined, after a hearing, that the mother had failed to progress on the case plan, that DFACS had made reasonable efforts to reunite the family, and that DFACS was permitted to discontinue reunification efforts. The following month, DFACS filed a petition to terminate the mother’s parental rights.

At the termination hearing in March 2000, a DFACS caseworker, who had been involved with the case from May 1998 to May 1999, testified that the mother had not completed the goals of her case plan. Specifically, the mother had failed to maintain contact with DFACS; had missed two scheduled appointments to obtain an alcohol and drug assessment before leaving Georgia; and, after returning to Ohio, the mother provided to DFACS an alcohol and drug assessment with “inconclusive” results. The caseworker testified that the mother failed to follow up, despite DFACS’ request, and that the mother also failed to provide any documentation confirming that she had completed a parenting skills course. Another DFACS caseworker testified that although the mother reported that she worked 55 hours per week, the total amount of child support that she paid between April 1998 and March 1999 was only $119.34 per child. The mother never requested financial assistance or claimed that financial difficulties prevented her from completing her case plan goals.

The mother testified that since returning to Ohio, she had moved into an efficiency apartment, which, she shared with a male roommate. She described the apartment as “one big room with a hallway and a restroom with a shower.” Although the mother testified that she had financially supported and maintained contact with F. C. and A. C. since they were placed with their father in Ohio, she had not seen them since December 1999. She had not visited H. A. since leaving Georgia in May 1998 and had spoken to her only once, in February 2000.

A clinical psychologist testified that when she began treating H. A. in September 1999, the child was “having a lot of difficulty in school, acting out aggressively, hitting other children.” After receiving treatment and moving to a new home, H. A. had “done very well both at home and at school.” The psychologist testified that for about two weeks after H. A.’s telephone conversation with her mother, however, H. A. was “very anxious” and had “increased difficulties at school.”

The guardian ad litem recommended termination. On May 26, 2000, the juvenile court terminated the mother’s parental rights to F. C., A. C„ and H. A.

1. In two enumerations of error, the mother contends that the evidence is insufficient to support the termination of her parental rights. We disagree.

Before terminating parental rights, a juvenile court must employ a two-prong test. First, the juvenile court must make a finding of parental misconduct or inability, which is proved by clear and convincing evidence that: (1) the children are deprived; (2) lack of proper parental care or control is causing the deprivation; (3) the cause of the deprivation is likely to continue or will not likely be remedied; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children. If all four factors are met, the court must then decide whether the termination would be in the best interests of the children, considering their physical, mental, emotional, and moral condition and needs.

As for the first prong of the termination analysis, ample clear and convincing evidence of the four factors established parental misconduct or inability in this case. First, the juvenile court declared the children deprived in orders issued in April and May 1998. The mother is bound by those determinations because she did not appeal them.

Second, the deprivation orders, combined with the mother’s failure to comply with the case plan, her history of alcohol abuse, and the testimony in the court below, show that the mother’s lack of parental care or control caused the children’s deprivation.

Third, in determining whether the children’s deprivation is likely to continue, the juvenile court may consider the parent’s past conduct. Furthermore, “ ‘the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ ” The record before us belies the mother’s claim that she complied with the reunification plan. In addition, the mother has offered no plan for adequately housing or otherwise caring for her children. Thus, sufficient clear and convincing evidence existed from which the juvenile court could have concluded that the deprivation was likely to continue.

Finally, the evidence demonstrated the mother’s unwillingness or inability to comply with significant requirements of the reunification plans and to otherwise provide for proper care for the children. Thus, clear and convincing evidence showed that continued deprivation likely would harm F. C., A. C., and H. A.

As to the second prong, we conclude that the evidence supported a finding that termination of the mother’s parental rights served the children’s best interests. In making that determination, the court correctly considered the children’s need for a stable home environment and the detrimental effects of prolonged foster care. “Children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.” In addition, the same factors that show parental misconduct or inability can support a finding that termination of parental rights is in the children’s best interests.

Having reviewed the juvenile court’s orders and the entire record, we conclude that sufficient clear and convincing evidence supports the juvenile court’s termination of the mother’s parental rights.

2. The mother contends that the juvenile court abused its discretion in finding that DFACS had made reasonable reunification efforts. She claims that communication between DFACS and the Ohio Department of Human Services was inadequate, that DFACS prematurely ceased working to reunite her with her children, that only a few of the provisions of the Interstate Compact on the Placement of Children were complied with, and that had DFACS placed H. A. in a foster home in Ohio, she would have had a more realistic opportunity to meet the reunification goals.

OCGA § 15-11-58 (a) provides that the juvenile court

shall. . . determine as a finding of fact whether reasonable efforts were made by [DFACS] and any other appropriate agencies to preserve and reunify families prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from that child’s home, and to make it possible for the child to return safely to the child’s home.

However, OCGA § 15-11-58 does not impose upon termination proceedings the same procedures that apply to disposition orders and recommendations regarding reunification. We do note that such a finding of fact is required in relation to deprivation orders, but the mother did not appeal the juvenile court’s findings of deprivation.

3. The mother next contends that she was denied her right to effective assistance of trial counsel. To prevail on this claim, the mother must show that (1) counsel’s performance was deficient, and (2) the outcome would have been different but for that deficient performance. We need not address both prongs of this test if the showing on one prong is insufficient, nor must we address them in any particular order.

The mother asserts that one of the attorneys who represented her during the reunification phase of the case failed to forward to DFACS certain documents, including her paycheck stubs, an evaluation form from an Ohio drug and alcohol recovery center, and pictures of her Ohio apartment. She argues that the juvenile court would have reached a different conclusion if the attorney had timely provided DFACS and the court with this evidence of her compliance with the reunification plan. We disagree.

Even assuming that the attorney received those documents and failed to forward them, the mother cannot demonstrate that she was harmed thereby, as the documents were admitted into evidence at the termination hearing.

The mother next complains that the attorney failed to appeal the juvenile court’s deprivation orders and its review order, entered May 13, 1998, which incorporated the goals set forth in the reunification case plan. However, this contention fails, because the mother has not pointed to any evidence in the record showing a basis for reversing the juvenile court’s orders.

Finally, the mother complains that her attorney did not attend one of the citizens review panel meetings and at least one juvenile court hearing. The mother’s counsel was not deficient for failing to attend one of the citizens review panel meetings. Regarding the attorney’s absence from a juvenile court hearing, the record shows that another attorney appeared on behalf of the mother’s attorney. Moreover, the mother has failed to specify how the attorney’s presence at the hearing would have affected the result of that proceeding.

4. The mother next contends that her equal protection rights afforded by the U. S. Constitution and the Georgia Constitution were violated. She claims that her parental rights were terminated due to her poverty. In support of this argument, she relies on her testimony regarding her financial circumstances. However, the mother’s equal protection challenge was not raised and ruled upon in the trial court; thus, it presents nothing for review in this Court.

5. The mother further contends that the juvenile court violated her due process rights under the Georgia Constitution and the Sixth and Fourteenth Amendments of the U. S. Constitution by allowing a home study report prepared by the Ohio Department of Human Services Child Care & Family Services Division to be considered without affording her counsel the right to cross-examine its author. However, under OCGA § 15-11-56 (c),

in all proceedings involving custody of a child, all information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition. The parties or their counsel shall be afforded an opportunity upon request to examine and controvert written reports so received and to cross-examine individuals making the reports, except that portions of such reports not relied on by the court in reaching its decision which, if revealed, would be prejudicial to the interests of the child or any party to the proceeding may be withheld in the court’s discretion.

In this case, the termination petition alleged that “there are no appropriate relatives available or willing to care for [H. A.] There are appropriate relative [s] to care for F. A. and A. C. and [they] are currently placed with the relative [s].”

Decided March 20, 2001.

Anne M. Lugo, Sheryl D. Fambrough, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, John L. Welsh II, for appellee.

The record shows that during closing arguments on the placement issue, counsel for DFACS tendered the home study “for the court to consider if it does decide to terminate the mother’s parental rights and would need a home study in Ohio of the [maternal grandparents] to determine a placement for” H. A. When the mother’s attorney objected, the juvenile court ruled that it would not consider the home study until it ruled on the merits of the termination petition. The court then offered the mother’s attorney an opportunity to respond to the home study. Although counsel stated that she wished to respond, she made no further objection.

Thereafter, in its orders of May 26, 2000, and amended orders of May 31, 2000, and June 7, 2000, the juvenile court terminated the mother’s parental rights to the three children. The court placed F. C. and A. C. with their biological father but found there were no appropriate relatives for H. A.’s placement. The court stated that it would consider the home study report and scheduled a hearing for June 19, 2000, during which the mother or her parents would have an opportunity to respond or otherwise present evidence pertaining to H. A.’s placement. The record shows that the report was not considered with regard to the termination of the mother’s rights; rather, it was submitted for consideration in determining H. A.’s placement in the event of termination. The record also demonstrates that the juvenile court afforded the parties an opportunity to examine and controvert the report and to cross-examine its author. Accordingly, there was no error.

6. Finally, we will not consider the mother’s argument, made for the first time on appeal, that DFACS violated its own rules and regulations in its handling of this case.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       The children were bom on October 12, 1991, October 27, 1992, and February 2, 1994, respectively.

       The parental rights of H. A.’s alleged putative father were also terminated, but he is not a party to this appeal.

       OCGA § 15-11-99, formerly OCGA § 15-11-86; Blackburn v. Blackburn, 249 Ga. 689, 694 (2) (292 SE2d 821) (1982).

        In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

       In Ohio, the mother had been arrested for operating a motor vehicle under the influence and had been convicted of one count of child endangerment.

       The plan required the mother to attend and complete agency-approved parenting classes; to obtain an alcohol and drug assessment and follow the recommendations of the evaluation; to obtain and maintain suitable housing and verify income used for housing expenses; to keep the caseworker informed of her address and employment; and to maintain contact with CSE.

       OCGA § 15-11-94 (a), formerly OCGA § 15-11-81 (a).

       OCGA § 15-11-94 (b) (4) (A) (i)-(iv); In the Interest of R. N., supra at 202.

       OCGA § 15-11-94 (a); In the Interest of R. N., supra.

        In the Interest of J. M. R., 221 Ga. App. 556, 558 (472 SE2d 123) (1996).

       See OCGA § 15-11-94 (b) (4) (B).

        In the Interest of R. N., supra at 204 (1) (c).

       (Citation omitted.) In the Interest of D. I. W., 215 Ga. App. 644, 646 (1) (451 SE2d 804) (1994).

       See, e.g., In the Interest of D. B., 242 Ga. App. 763 (531 SE2d 172) (2000).

        In the Interest of J. O. L., 235 Ga. App. 856, 858 (510 SE2d 613) (1998).

        In the Interest of S. T., 244 Ga. App. 86, 88-89 (2) (534 SE2d 813) (2000).

        In the Interest of V. M. T., 243 Ga. App. 732, 736-737 (534 SE2d 452) (2000).

       OCGA § 39-4-1 et seq.

        In the Interest of V. S., 230 Ga. App. 26, 30-31 (2) (495 SE2d 142) (1997).

        In the Interest of A. M. B„ 219 Ga. App. 133, 136 (464 SE2d 253) (1995).

        In the Interest of A. H. P., 232 Ga. App. 330, 334 (2) (500 SE2d 418) (1998).

        Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991).

        Raskin v. Wallace, 215 Ga. App. 603, 604 (1) (451 SE2d 485) (1994).

       OCGA § 15-11-56 (c), formerly OCGA § 15-11-33 (d).

       See OCGA § 15-11-103, formerly OCGA § 15-11-90, concerning the placement of a child following a termination order.

        In the Interest of J. G., 242 Ga. 737, 741 (3) (251 SE2d 299) (1978) (interpreting Code Ann. § 24A-2201 (a), currently OCGA § 15-11-56 (c)); see also In the Interest of M. L. P., 236 Ga. App. 504, 510 (2) (512 SE2d 652) (1999).

        City of Warner Robins v. Rushing, 259 Ga. 348, 349 (381 SE2d 38) (1989).


author: Andrews, Presiding Judge.

text:
    A00A1984.
    WILLIAMS et al. v. AMERICAN MEDICAL SYSTEMS et al.
    (548 SE2d 371)
   Andrews, Presiding Judge.

Bennie Williams appeals from the trial court’s grant of summary judgment to American Medical Systems (AMS), the manufacturer of a penile implant which had to be surgically removed from him after an infection developed. Williams sued for negligent manufacture and inspection, strict liability, and failure to warn. The trial court granted summary judgment to AMS on all claims. Because we conclude there is an issue of fact on the strict liability claim, we affirm in part and reverse in part.

Viewed in the light most favorable to Williams as the nonmoving party, the facts were as follows. Dr. Harrison, a urologist, performed the operation implanting an AMS 700 Inflatable Penile Implant Prosthesis into Williams’s abdomen and scrotum. Dr. Harrison inflated the implant in the operating room, and it was working normally. There is no evidence of any damage to the implant before or after surgery. About a month later, while Williams was still recovering from the surgery, an infection developed, and Dr. Harrison removed the implant. Six months later, Williams underwent the same procedure, with Dr. Harrison implanting another AMS 700 Prosthesis, this time without complications.

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

(Citation, punctuation and emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. The trial court erred in granting summary judgment to AMS on Williams’s strict liability claim. Georgia’s strict liability statute, OCGA § 51-1-11 (b) (1), provides:

The manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.

Under this statute, the plaintiff is not required to show negligence by the manufacturer, but must show that the “product, when sold, was not merchantable and reasonably suited to the use intended and its condition when sold is the proximate cause of the injury sustained.” (Punctuation omitted.) Center Chemical Co. v. Parzini, 234 Ga. 868, 869 (2) (218 SE2d 580) (1975). It is not necessary for the plaintiff to specify precisely the nature of the defect. He must show that the device did not operate as intended and this was the proximate cause of his injuries. Firestone Tire &c. Co. v. King, 145 Ga. App. 840, 842 (244 SE2d 905) (1978).

After removing the implant, Dr. Harrison wrote in his postoperative report: “Postoperative diagnosis: Disconnection of tubing between the reservoir and cylinder, causing the reservoir fluid to leak into the scrotal compartment, thereby causing infection.” Although Dr. Harrison later stated in his deposition that an infection from the incision could have spread and caused swelling, thus forcing the tubing to disconnect, this does not negate his original postoperative diagnosis. Accordingly, there is some evidence that the device did not operate as intended and this caused the infection which required removal of the implant. Gen. Motors Corp. v. Blake, 237 Ga. App. 426, 430 (515 SE2d 166) (1999); King, supra; Parzini, supra.

2. The trial court correctly granted summary judgment to AMS on Williams’s claims for negligent manufacture and negligent inspection. In support of its motion for summary judgment, AMS submitted the affidavit of the director of research for AMS stating that “[e]very inflatable penile prosthesis made at AMS is subjected to inspection, functional testing and sterilization before it is allowed to leave AMS.”

Williams produced no evidence of negligent manufacture or inspection. He argues that res ipsa loquitur applies to this issue because there is no evidence that he did anything to cause the device to malfunction and there is no evidence that Dr. Harrison did not implant the device properly.

The elements of the res ipsa loquitur doctrine are: (1) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. . . . [T]he accident must also be of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence. Moreover, res ipsa loquitur should be applied with caution and only in extreme cases; it is not applicable when there is an intermediary cause which produced or could produce the injury, or where there is direct unambiguous testimony as to the absence of negligence by the defendant, or where there is no fair inference that the defendant was negligent.

(Citations, punctuation and emphasis omitted.) Cornelius v. Lawrence, 203 Ga. App. 113-114 (2) (416 SE2d 115) (1992).

While the evidence here may have been sufficient to establish that an inherent defect in the penile implant caused it to separate, which is enough to prove a strict liability claim, it was not demonstrated that the defect was the result of any negligence by AMS. Home Ins. Co. v. Caterpillar, Inc., 202 Ga. App. 522 (414 SE2d 735) (1992).

Williams contends on appeal that it is not necessary to show exclusive control when making a res ipsa loquitur argument. He provides no authority in support of this, and we find none. As stated above, the plaintiff must prove exclusive control when arguing res ipsa loquitur.

Negligence is not to be presumed, but is a matter for affirmative proof. The expression res ipsa loquitur means that the transaction speaks for itself. It is a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another where it is shown that the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage and the accident was a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence. The principal basis for application of the rule of res ipsa loquitur is that the occurrence involved would not have occurred but for negligence, and this negligence may properly be charged to the person in exclusive control of the instrumentality.

(Citations and punctuation omitted.) U. S. Fidelity &c. Co. v. J. I. Case Co., 209 Ga. App. 61, 64-65 (3) (432 SE2d 654) (1993).

Here, the device was not under the exclusive control of the manufacturer. In addition, there is evidence that the tubing could have disconnected for causes unrelated to any negligence of AMS. For instance, as previously noted, Dr. Harrison testified that Williams was a diabetic and, therefore, his incisions were slow to heal. As a result, it was possible that the infection spread from the incision, causing swelling which forced the tubing apart. Therefore, because res ipsa loquitur does not apply in this case, the trial court correctly granted summary judgment on these issues.

3. The trial court correctly granted summary judgment to AMS on Williams’s claim for failure to warn him of the danger that the tubing could disconnect. This issue is controlled adversely to Williams by Lance v. American Edwards Laboratories, 215 Ga. App. 713, 716 (452 SE2d 185) (1994). In Lance, this Court held that when a device can be prescribed and inserted only by a physician, that treating physician has sole responsibility for advising the patient of dangers associated with the use of the device. The designer, manufacturer, and distributor are under no duty to the patient. Id. at 716. Indeed, any information supplied to Williams by AMS regarding dangers associated with the device could compromise the doctor-patient relationship. Id. Therefore, AMS did not have the responsibility or the means to warn Williams of any dangers associated with the implant. Id.

Decided March 7, 2001

Reconsideration denied March 21,2001

Jerry B. Hatcher, for appellants.

Jennings, Sparwath & Satcher, Milton B. Satcher, Love & Willingham, John A. Gilleland, for appellees.

Judgment affirmed in part and reversed in part.

Ruffin and Ellington, JJ, concur.

       Williams’s wife also sued for loss of consortium.

       Williams also sued Dr. Harrison for failing to warn him of the risks associated with the implant, but the case against Dr. Harrison is not before us on appeal.

       We note that the package insert does contain the warning that there is a risk of infection with surgery to implant the device and men with diabetes have an increased risk of infection. It also states that product wear, component disconnection, or other mechanical problems may occur.


author: Blackburn, Chief Judge.

text:
    A00A2299.
    BENNETT STREET PROPERTIES, L.P. v. CSX TRANSPORTATION, INC.
    (548 SE2d 619)
   Blackburn, Chief Judge.

In this action for injunctive relief, actual damages, punitive damages, and attorney fees, Bennett Street Properties, L.P. appeals the denial of its motion for new trial, contending that the trial court improperly granted a directed verdict to CSX Transportation, Inc. on all counts at the close of Bennett Street’s case. On appeal, Bennett Street contends that CSX, a neighboring landowner, failed to properly maintain drainage culverts along its railroad tracks which caused flooding on Bennett Street’s property. For the reasons set forth below, we affirm.

On February 17, 1997, Bennett Street filed suit against CSX, Carbuffs, Inc., and JDL Construction, seeking an injunction against these neighboring landowners to prevent the flow of rainwater and construction debris onto Bennett Street’s property. In simplified terms, Carbuffs’ property, on which construction was taking place, is located toward the top of a hill, CSX’s property is located in the middle, and Bennett Street’s property is located at the bottom. Bennett Street alleged that water, traveling by the natural force of gravity and carrying Carbuffs’ construction debris, flowed down the hill and into a culvert under CSX’s railroad tracks which artificially increased the water flow onto Bennett Street’s property. Bennett Street further alleged that this downhill flow of water caused flooding and erosion on its premises, producing a continuing nuisance triggered by each heavy rain.

Accordingly, Bennett Street requested that the trial court enter an order restraining CSX from “concentrating” the runoff onto its property and preventing Carbuffs and JDL from construction activities causing mud to be deposited on Bennett Street’s property. Bennett Street also requested actual damages, punitive damages, and attorney fees.

JDL was never served and, as such, never became a party to this action; however, Bennett Street proceeded against Carbuffs and CSX. At the close of Bennett Street’s evidence during a jury trial, the trial court granted a directed verdict in favor of the remaining defendants. Bennett Street subsequently dismissed its case against Carbuffs and filed a motion for new trial with regard to CSX only, arguing that the trial court erred by granting a directed verdict. The trial court denied Bennett Street’s motion, and that ruling is the subject of this appeal.

1. The trial court did not err in granting a directed verdict to CSX in this case.

A directed verdict is appropriate where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). A grant of directed verdict can be upheld only where we determine that all the evidence demands that verdict. This requires a de novo review.

(Punctuation omitted; emphasis in original.) Hulsey v. Dept. of Transp.

The record shows that Bennett Street acquired the property in question in 1973 and the culvert on which the complaint was based had been in place for possibly more than 50 years. Bennett Street contends that, around 1995, the flow of water onto its property began to increase, resulting in intermittent flooding. Concerned about the problem, Bennett Street contacted CSX and requested a meeting. When CSX representatives met with Bennett Street’s partners, the latter expressed their concern that the flooding was being caused by a newly paved road on Piedmont Hospital’s property, which effectively acted like a “waterfall” onto the adjoining land. To possibly remedy the problem, Bennett Street asked CSX to talk to Piedmont Hospital about installing a speed bump on the road to divert the water flow. In follow-up correspondence, CSX asked Bennett Street to inform it of any other complaints which it might have against CSX, and Bennett Street made no further replies.

Bennett Street, however, continued to experience flooding and hired Charles Wilson, a water drainage expert, to examine the problem. In an initial letter to Bennett Street, Wilson opined that the increased water flow was caused by new construction taking place on uphill property and alterations in drainage flow along Peachtree Street caused by the modification of a street entrance. Later, during his deposition and at trial, Wilson testified that the flow of water onto Bennett Street’s property could have been caused by a clogged culvert on CSX’s property, which thereby diverted water into a second culvert which emptied onto Bennett Street’s property. Wilson, however, admitted at trial that he did not know how long the culvert in question had been clogged or whether the clog was actually the cause of the flooding experienced by Bennett Street. He stated that, as far as he knew, the culvert may never have worked and, as in his initial opinion letter, the flooding was the result of uphill construction past the railroad’s property.

Decided February 22, 2001

Reconsideration denied March 21, 2001.

Gregg Loomis, for appellant.

Casey, Gilson, Williams & Shingler, Sandra Gray, for appellee.

In addition, Wilson stated that no studies had been conducted to determine whether water from sources other than the culvert might be causing the flooding problem on Bennett Street’s property. And the record shows that numerous other sources could have caused or contributed to the problem, including flumes constructed by Bennett Street on higher elevations of its own property which directed water onto its lower tenants.

Therefore, in its case-in-chief, Bennett Street failed to present a prima facie showing that CSX acted in any way to cause or contribute to the intermittent flooding of its property. To the contrary, Bennett Street relied on speculation, conjecture, and the admittedly equivocal opinion of an expert who stated that he could not pinpoint the cause of the flooding and that he had not investigated all of the possible causes. As such, the trial court properly granted CSX’s motion for a directed verdict with regard to the imposition of an injunction and actual damages.

2. In light of our holding in Division 1, Bennett Street’s claims regarding punitive damages and attorney fees are rendered moot.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Hulsey v. Dept. of Transp., 230 Ga. App. 763 (498 SE2d 122) (1998).


author: Pope, Presiding Judge.

text:
    A00A2123.
    CIBA VISION CORPORATION v. JACKSON.
    (548 SE2d 431)
   Pope, Presiding Judge.

CIBA Vision Corporation, a Delaware corporation, manufactures contact lenses in Georgia and also warehouses in Georgia ophthalmic drugs that were purchased out of state. As a part of its marketing strategy, CIBA gives away free samples of these items to licensed dispensers throughout the world. CIBA paid Georgia sales and use tax on these transactions from 1992 to 1996 (the “Refund Period”) totaling $2,558,234. In 1998, CIBA requested a refund contending that distribution of free samples is exempt from the tax. The trial court granted summary judgment in favor of the State, holding that as a matter of law, the transactions were taxable. CIBA appeals and argues that the case law relied upon by the trial court should be disapproved or overruled.

During the Refund Period, CIBA manufactured and packaged contact lenses in Gwinnett County and stored them in a facility in Fulton County. Sample lenses were labeled “not for resale,” were stored separately, and were given to eye-care professionals located in Georgia and elsewhere. In most cases, CIBA simply mailed them to requesting eye-care professionals who, in turn, would use them to demonstrate the product for the patient, to test their fit on the patients, and to test the patients’ tolerance for the lenses. But in some cases, CIBA gave the sample lenses to sales representatives who in turn gave them to eye-care professionals. The sales representatives would sometimes open the packages during sales calls to demonstrate the characteristics of the product. Approximately 90 percent of CIBA’s refund claim derives from distribution of free contact lenses.

CIBA purchased prescription ophthalmic drugs from third-party manufacturers located outside Georgia. All drugs that CIBA intended to use as samples were purchased as finished products that had already been packaged and labeled or otherwise designated as samples not intended for resale. In some cases, CIBA mailed samples, to requesting eye-care professionals. In most cases, CIBA sent the samples to sales representatives who called on those professionals. The representatives might show the product and explain its benefits, but typically would not open the sample to demonstrate its use. Approximately ten percent of CIBA’s refund claim relates to distribution of these drug samples.

In reviewing the Department of Revenue’s administrative decision,

the superior court determines whether there was any evidence to support the agency’s decision. Upon our review of the superior court’s actions, the evidence is construed in favor of the agency’s decision. Both the superior court and this Court review conclusions of law de novo. OCGA § 50-13-19 (h).

(Citations omitted.) Gen. Motors Acceptance Corp. v. Jackson, 247 Ga. App. 141 (542 SE2d 538) (2000).

1. Relying on Collins v. Prince Street Technologies, 220 Ga. App. 492 (469 SE2d 700) (1996), the trial court held that giving free samples of contact lenses constituted a “deemed retail sale” under OCGA § 48-8-39 because giving away free samples was a use of such items “other than retaining, demonstrating or displaying [them] for sale,” and thus, subject to the Georgia Retail Sales and Use Tax. CIBA would like to overrule Prince Street. It further argues that because its use of the items was unquestionably for purposes of demonstrating or displaying its products, giving away free samples should not have been deemed a retail sale.

Under the Georgia Retail Sales and Use Tax, although the ultimate consumer is the party liable for sales tax (OCGA § 48-8-30 (b) (1)), the seller must collect the tax and submit it to the State. OCGA § 48-8-39 (a) and (b) govern the situation where the dealer never sells the goods but instead puts them to his own use. That Code section provides that for retailers (subsection (a)) and for manufacturers (subsection (b)), if the dealer “makes any use of the article of tangible personal property other than retaining, demonstrating, or displaying it for sale, the use shall be deemed a retail sale as of the time the article is first used by him. . . .” (Emphasis supplied.) OCGA § 48-8-39 (b). The intent of this statute “ ‘is to capture tax revenues by creating a fictional “sale” where the manufacturer of an item elects to use it himself rather than sell it in the normal course of his retail business.’ [Cit.]” Prince Street, 220 Ga. App. at 493. We note, however, that, as made clear in that Code section, a deemed retail sale is nothing more than a “use” of the product which is also a taxable event. OCGA § 48-8-30 (a). And “use” is defined as “the exercise of any right or power over tangible personal property incident to the ownership of the property. . . .” OCGA § 48-8-2 (12).

Prince Street is directly on point for most of the “free sample” contact lenses at issue in this case, and we find no grounds to overrule it. In Prince Street, a carpet manufacturer gave away free samples as a part of its marketing strategy. This Court held that Prince Street’s use of some of the carpet as free samples did not constitute “retaining, demonstrating, or displaying it for sale.” Prince Street, 220 Ga. App. at 493. Prince Street stands for the proposition that giving away free samples is different from demonstrating your product without giving it away. Each of the three exempt uses implies that the dealer still owns the item. It follows that where ownership of the item has changed, e.g., where the item has been given away, it cannot be said the dealer is “retaining, demonstrating, or displaying it for sale.”

Here, most of the free contact lenses were given to the eye-care professionals for their use any way they saw fit. The use of the free samples is simply a marketing scheme designed to promote the sale of CIBA lenses. Thus, under the authority of Prince Street, those samples were properly classified as deemed retail sales.

But, there were instances where CIBA’s sales representatives did, in fact, open the packaged lenses and demonstrate their use and characteristics. These samples fall within the exception set forth in OCGA § 48-8-39 and are not taxable. There remains an issue of fact, therefore, as to how many contact lenses fall into this category.

The drugs that CIBA purchased out of state for delivery in state are also taxable because CIBA did not purchase the drugs for resale and therefore it owed the use tax upon purchasing the drugs. See OCGA §§ 48-8-30 (c.l) (1); 48-8-2 (6) (A) (retail sale means a sale for any purpose other than for resale). It is undisputed that CIBA packaged, labeled, or otherwise designated the drug samples as “samples” not intended for resale. See also Craig-Tourial Leather Co. v. Reynolds, 87 Ga. App. 360, 364 (2) (73 SE2d 749) (1952) (the transaction is taxable if it is the “last of a possible series of sales”). As explained by the trial court, even if this were not so, the rule in Prince Street would apply, and the act of giving away free samples would constitute a deemed retail sale under OCGA § 48-8-39.

2. CIBA next argues that OCGA § 48-8-3 (47), sales and use tax exemption 47, applies to the transactions at issue. That exemption provides that the sales tax shall not apply to “[s]ales of drugs dispensed by prescription and prescription eyeglasses and contact lenses.” OCGA § 48-8-3 (47). CIBA argues that in the exemption, the term “contact lenses” is not modified by the terms “prescription” or “dispensed by prescription.” Accordingly, it argues, the exemption applies to all sales of contact lenses (including deemed retail sales), not just sales to the ultimate consumer holding a valid prescription. Therefore, CIBA concludes, the sample contact lenses that it gave to eye-care professionals were not taxable.

The trial court disagreed and found that exemption 47 did not apply because it applied only to the sale of contact lenses pursuant to a valid prescription. In so doing, the court upheld the Tax Commissioner’s application of Department of Revenue Regulation 560-12-2-.30 (5), which provides:

The tax does not apply to retail sales of drugs dispensed by prescription. ... As used herein, the phrase “dispensed by prescription” means drugs which are actually purchased at retail pursuant to a valid prescription which has been issued to the consumer by a person authorized by law to issue the prescription.

See also Regulation 560-12-2-.67 (“The sale by prescription of the glasses and lenses would be exempt under law,” and “eye glasses and lenses sold by prescription are exempt”). The court also reasoned that the interpretation was consistent with the policy of reducing an individual’s burden for medical necessities.

“It is well settled that an exemption or a claim of exemption must be construed strictly against the taxpayer and in favor of the taxing authority.” Blackmon v. Cobb County-Marietta Water Auth., 126 Ga. App. 459, 461 (1) (191 SE2d 128) (1972). See also Lowry v. McDuffie, 269 Ga. 202, 204 (2) (496 SE2d 727) (1998) (exemptions should be strictly construed in favor of the general public, and no exemption shall apply by implication). Further, we are required to give great weight and deference to the Department of Revenue’s interpretation. Kelly v. Lloyd’s of London, 255 Ga. 291, 293 (336 SE2d 772) (1985); Hosp. Auth. of Gwinnett County v. State Health Planning Agency, 211 Ga. App. 407, 408 (2) (438 SE2d 912) (1993).

We first note that the taxable event at issue in this case is the transfer of free items from CIBA to the eye-care professionals. Although the gift of a free sample is deemed a retail sale, in reality, it is nothing more than a use of the product by CIBA. There was no consideration and no real sale. As stated above, “use” is defined as “the exercise of any right or power over tangible personal property incident to the ownership of the property. . . .” OCGA § 48-8-2 (12). On its face, the exemption applies only to sales, and the transaction at issue here was a use of the product, not a sale. OCGA § 48-8-3 (47).

Second, CIBA’s argument that the statute exempts transactions involving contact lenses regardless of whether the goods were sold pursuant to a prescription has no merit. Standing alone, exemption 47 is ambiguous in this regard. The phrase “drugs dispensed by prescription” appears to reflect the Tax Commissioner’s interpretation — it suggests that sales of prescription drugs are exempt only if they are sold in a transaction pursuant to a prescription. The remainder of the exemption gives some support to CIBA’s interpretation — it suggests that prescription glasses and contact lenses are exempt regardless of the nature of the transaction in which they are sold.

But, construing the exemption strictly against the taxpayer, we hold that the exemption applies only to transactions involving a sale pursuant to a prescription. This construction is consistent with the interpretation of the exemption by the Tax Commissioner, who has the duty of enforcing it. For these reasons we conclude that the trial court correctly refused to apply exemption 47 to CIBA’s practice of giving away free samples of contact lenses and ophthalmic drugs.

Decided March 21, 2001

Smith, Gambrell & Russell, Edward K. Smith, Paul G. Williams, for appellant.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Warren R. Calvert, Senior Assistant Attorney General, for appellee.

CIBA argues that the interpretation of exemption 47 found in Regulation 560-12-2-.30 (5) is not supported by the wording of the statute. It is true that an administrative rule or regulation may be held invalid if it is not authorized by statute or is unreasonable. Ga. Real Estate Comm. v. Accelerated Courses in Real Estate, 234 Ga. 30, 32 (2) (214 SE2d 495) (1975). But, given our construction of the exemption upon which the regulation is based, we find that the regulation applicable here is authorized and reasonable.

CIBA claims that our construction of the exemption creates anomalous results. That is, prescription lenses and drugs are taxable if they are given away but not taxable if they are sold, or, in other words, deemed retail sales are taxable but real sales are not. But, the true state of affairs is that prescription lenses and drugs are not taxable when they are sold; they are taxable when they are used as a part of a marketing strategy of promoting sales. There is no anomaly.

CIBA also claims that the failure to apply the exemption to CIBA is a violation of equal protection under the Fourteenth Amendment and under the Georgia Constitution because the tax is assessed against only one taxpayer. However, CIBA has not shown how the statute or the regulations would tax any similarly situated entity differently.

Judgment affirmed in part and reversed in part.

Miller and Mikell, JJ, concur.

       We granted CIBA’s application for a discretionary appeal to review this decision.

       Similarly, a 1962 opinion of the Attorney General advised that a manufacturer that purchased advertising materials out of state and shipped them directly to its retailers, at no cost, for use in promoting sales, was liable for use tax on the advertising materials. 1962 Op. Atty. Gen., p. 556.


text:
    A00A2265.
    PHILLIPS CORRECTIONAL INSTITUTE et al. v. YARBROUGH.
    (548 SE2d 424)
   Ruffin, Judge.

Jeffrey Yarbrough worked as a prison guard at Phillips Correctional Institute. While on duty, Yarbrough suffered a cardiac dysrhythmia and died. Yarbrough’s widow claimed entitlement to workers’ compensation benefits, alleging that her husband’s death was caused by job-related stress. Following a hearing on the matter, the State Board of Workers’ Compensation awarded benefits, and the award was affirmed by the superior court. We granted the employer’s application for discretionary appeal, and, for reasons that follow, we affirm.

In reviewing an award of workers’ compensation benefits, we construe the evidence in the light most favorable to the prevailing party, and we will affirm the award if there is any evidence to support it. So viewed, the evidence shows that, on May 11,1997, Jeffrey Yarbrough arrived at work at approximately 5:45 a.m. Yarbrough, who was assigned to the mental health unit, went from cell to cell to check on the inmates. He then served the inmates breakfast. While performing his job, Yarbrough walked up and down several flights of stairs. After serving breakfast, Yarbrough was sweating profusely and complained to a co-worker that he did not feel well. He then collapsed and was taken to Gwinnett Medical Center where he was pronounced dead. An autopsy attributed Yarbrough’s death to cardiac dysrhythmia secondary to an enlarged heart.

Yarbrough’s widow, as claimant, sought payment of workers’ compensation benefits, asserting that her husband’s death arose out of and in the course of his employment. At the administrative hearing, Dr. Kris Sperry and Dr. A. Gordon Brandau provided expert opinions regarding the cause of Yarbrough’s death. Both doctors agreed that Yarbrough’s systemic hypertension coupled with his obesity caused him to have a severely enlarged heart, which predisposed him to sudden, lethal heart rhythm disturbances. The doctors disagreed, however, on whether Yarbrough’s work was a contributing factor. According to Dr. Sperry, “but for the physical and mental stress [Yarbrough] experienced at work on that day, he should not have died at that time.” Dr. Brandau, on the other hand, concluded that Yarbrough’s death was solely attributable to the state of his heart.

In finding in favor of the claimant, the administrative law judge (ALJ) determined that, although Yarbrough “was certainly predisposed to a cardiac arrhythmia by his enlarged heart caused by his hypertension and his hyperlipidemia, . . . the greater weight of the evidence supports a finding that his work was a contributing precipitating factor.” Thus, the ALJ concluded that Yarbrough sustained a compensable injury. On appeal, the employer argues that the evidence did not support the ALJ’s finding of a compensable, work-related injury. We disagree.

Pursuant to OCGA § 34-9-1 (4), an injury shall not include

heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, stroke, or thrombosis unless it is shown by a preponderance of competent and credible evidence, which shall include medical evidence, that any of such conditions were attributable to the performance of the usual work of employment.

It is evident from this language that the legislature intended that the compensable heart injury be the exception rather than the rule. Under our workers’ compensation system, however, determining whether such heart injury falls within this exception remains the function of the factfinder.

As our Supreme Court has recognized, in “heart attack” cases, it often is

difficult for the trier of fact to find the line between a noncompensable heart injury that is a symptom of an existing disease merely manifested during job exertion, and a compensable heart injury to which the job exertion was a contributing precipitating factor.

Once the trier of fact has found that line, we must affirm if there is any evidence to support the factfinder’s determination. Here, Dr. Sperry’s testimony provides such evidence.

The employer argues that, in order to find Yarbrough’s death compensable, we must conclude that it is compensable as an aggravation of a pre-existing condition. According to the employer, the law does not permit recovery in workers’ compensation for the aggravation of an underlying heart condition. Again, we disagree.

It is well settled that work need be only a contributing factor to a heart injury in order for that injury to be compensable. In this case, there is some evidence that Yarbrough’s work contributed to his death from his heart condition, and “[t]he fact-finding body must in this event remain the final arbiter of the compensability of the attack, and of whether the disability arose out of the employment as well as in the course of it.” Thus, we affirm.

Decided March 21, 2001.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Sartain, McKay & Crowell, Frank R. McKay, for appellants.

Mark Harper, for appellee.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

        Olde South Custom Landscaping v. Mathis, 229 Ga. App. 316 (494 SE2d 14) (1997).

        Guye v. Home Indem. Co., 241 Ga. 213, 214-215 (244 SE2d 864) (1978).

       Id. at 215.

       See id.

       See Sewell v. Bill Johnson Motors, 213 Ga. App. 853, 855-856 (1) (446 SE2d 239) (1994); Southwire Co. v. Eason, 181 Ga. App. 708 (353 SE2d 567) (1987); Carter v. Kansas City Fire &c. Ins. Co., 138 Ga. App. 601 (226 SE2d 755) (1976) (physical precedent only).

        Cox v. Employers Mut. Liability Ins. Co. &c., 122 Ga. App. 659, 660-661 (178 SE2d 287) (1970).

       See Eason, supra at 709 (“Since there was competent and credible evidence to support the award of the ALJ, we must affirm.”).


text:
    A00A2565.
    HUVAL v. JACOBS et al.
    (548 SE2d 437)
   Ruffin, Judge.

C. J.’s parents were killed when she was seven years old. Her grandmother, Gerlie Huval, applied for guardianship and was appointed as the child’s temporary personal guardian.* C. J.’s aunt and uncle (hereinafter referred to as “appellees”) then intervened, objecting to the grandmother’s appointment and seeking to have themselves appointed as guardians. Following a hearing, the juvenile court appointed the appellees as the child’s personal guardians.

On appeal, Huval contends that the juvenile court was required to appoint her as guardian pursuant to OCGA § 29-4-8 because she is C. J.’s next of kin. For reasons discussed below, we disagree.

1. OCGA § 29-4-8 provides that Several cases have held that “[t]he nearest relative . . . has an absolute right to the appointment if unobjectionable.” We are aware of no cases, however, that provide a comprehensive definition of “unobjectionable” or conclusively establish what it means to be “objectionable.”

[a]mong collateral relatives applying for the guardianship of a minor child, the nearest of kin by blood, if otherwise unobjectionable, shall be preferred. The judge of the probate court, however, may exercise his discretion according to the circumstances of each case and, if necessary, may grant the letters of guardianship to one who is not a blood relative.

Perhaps the closest definition for the term “unobjectionable” is found in Armor v. Moore, where the Supreme Court stated that

[i]n determining whether or not John W. Moore was “unobjectionable,” — that is, was a suitable person to be appointed the guardian of his brother, — the amount, character and condition of the latter’s estate were pertinent matters of inquiry.

The Armor decision suggests that an “unobjectionable” person is one “suitable . . . to be appointed the guardian.” Unfortunately, the Court did not expound on what it meant by “suitable.” In Beavers v. Williams, however, the Supreme Court commented on the overriding principle in guardianship cases, stating that “cases dealing with the appointment of guardians for minor children show that the paramount duty of the court in such cases is to appoint the person in whose custody the interests and welfare of the child will be best served.” Although Beavers did not involve the statute at issue here, it indicates that a person’s suitability for guardianship cannot be determined without considering the “interests and welfare of the child.”

In Johnson v. Kelly, the Supreme Court provided additional guidance for determining whether someone is unobjectionable:

We remark, generally, that when the question before the Court and jury is the fitness of a person for guardian, the limitation upon the inquiries within the scope of his capacity and ability is not laid down, so that the questions are pertinent. It is proper to ascertain his habits, temper, morality, sobriety, sense, and responsibility, or the contrary.

We have also recognized that a court reviewing an applicant’s “objectionability” may take into account the child’s financial interests. In Chalker v. Thornton, we held that while an unobjectionable next of kin might have an absolute right to appointment,

this does not mean that he or she, in order to forfeit such right, must be proved to be deficient in habits, temper, morality, sobriety, or sense. ... If, under all the proved facts and surrounding circumstances, the jury could have been authorized to believe that for any reason her appointment might reasonably embarrass or jeopardize the property rights of the child, the next of kin could not claim the appointment as a matter of right under the statute.

In Kelley v. Kelley, we further held that “the words objectionable, or even unfit, refer not to moral qualities exclusively but to any position or course of dealing which leads to the conclusion that the interest of the person selected is adverse to that of the estate.”

Although these cases do not offer a comprehensive definition of the term “unobjectionable,” they reveal that the court has wide discretion in determining whether an applicant is entitled to the absolute preference set forth in OCGA § 29-4-8. And it is apparent that “objectionability” in a guardianship dispute is not the same as “parental unfitness,” which must generally be shown before a court can interfere with a parent’s right to custody over a child.* An inquiry into a guardianship applicant’s “unobjectionability” may broadly consider the applicant’s suitability, habits, responsibility, sense, and morality, as well as the financial interests of the child. A person may be “objectionable,” and therefore not entitled to guardianship as a matter of right, even though the objections would not authorize interfering with her right to custody of her own child.

In the present case, the juvenile court made several findings to support its conclusion that Huval was not “unobjectionable.” For example, the court noted that Huval had “not exhibited good parenting skills in regard to her two [living] children” and had “led an inappropriate lifestyle in the presence of minors in the past.” The court noted that Huval divorced the children’s father when they were young and then “had two long term live in relationships while the minor children lived in her house.” One of the children went to live with her father for a year when she was thirteen because of “difficulties in her relationship with her mother” and subsequently left home before finishing high school. The court found that Huval “has time and again made poor moral . . . decisions” and that “[e] ducational success has not been a priority for her or her children.” The court stated that “the prospects of successful parenting of a child can to some extent be gauged by past success or failure in this realm” and concluded that Huval’s “family environment has been and would be chaotic, undisciplined and constantly shifting.”

Huval does not challenge these findings, but essentially claims that they are not sufficient to deprive her of the automatic preferment granted the next of kin. We do not agree. Regardless of whether the objections described by the juvenile court would render Huval an “unfit parent,” concerns over a guardianship applicant’s ability to properly raise children, grounded in her actual experience with her own children, are sufficient to deprive the applicant of the absolute right to appointment set forth in OCGA § 29-4-8 in the circumstances of this case. Huval does not dispute the juvenile court’s conclusion that appointment of appellees as personal guardians is in the best interest of the child. Accordingly, since Huval was not entitled to the absolute preference, the court did not err in granting guardianship based on the best interest of the child.

2. Although not necessary for our decision, we feel compelled to address an issue raised by C. J.’s guardian ad litem. Recently, in Stills v. Johnson, the Supreme Court considered the standard governing a custody dispute between a child’s paternal grandmother, to whom parental power had been transferred by the child’s father, and the child’s maternal uncle. The Court held that the voluntary transfer of parental power to the grandmother did not give her a superior right to custody that could be overcome only upon a showing of unfitness. Rather, “where two parties seek custody of a child, and neither is a parent of the child, custody is to be governed by the standard of best interest of the child.” In reaching its decision, the Court noted that

[a]s between parents seeking custody, the best interest standard is applied. In a custody dispute between two non-parents, the standard must also be the best interest of the child. Otherwise the law would protect a child more in a custody dispute involving his or her own parent than in one involving non-parents. . . . The purpose of the standard we now adopt is to ensure that children are treated fairly as individuals and that a determination of custody as between non-parents will focus on their best interests, welfare and happiness.

Decided March 21, 2001.

Joseph M. McLaughlin, Christopher J. McFadden, for appellant. Land, Cohen & Keon, Barbara E. Keon, Edgar J. Perkerson III, for appellees.

The Supreme Court did not discuss whether its analysis would apply in guardianship disputes, did not mention OCGA § 29-4-8 or suggest that it is unconstitutional, and did not overrule any of its prior cases construing the statute. Yet, C. J.’s guardian ad litem argues that Stills “demand [s] that the wording of OCGA § 29-4-8 be either set aside completely or construed to mean that any proposed guardian is objectionable if the appointment is contrary to the best interest of the child.” Given our decision in Division 1, we need not conclude that Stills’ reasoning extends to guardianship disputes. Indeed, we would hesitate to do so, since that would require us to find that the Supreme Court either (1) implicitly overruled its prior cases construing OCGA § 29-4-8 or (2) implicitly held the statute unconstitutional to the extent that it allows anything other than a best interest of the child test.

Nevertheless, we recognize that application of any type of preference for the next of kin in a guardianship dispute raises a potential for conflict with the Stills decision because “a guardian of a minor is entitled to the custody of his ward.” If OCGA § 29-4-8 continues to apply in guardianship disputes, and the next of kin is entitled to an absolute preference if unobjectionable, then custody of the minor child will be effectively decided under something other than a best interest of the child test, which is contrary to the policy enunciated in Stills. Although it is not necessary for us to resolve this issue here, we believe that the Supreme Court will in the future be required to address the continued viability of OCGA § 29-4-8 in guardianship disputes.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       The county administrator, Michael Smith, was appointed guardian of the child’s property.

       The guardianship action was originally initiated in probate court. Appellees intervened in this action and also filed a separate petition for custody in superior court, which transferred the matter to the juvenile court. The probate court then designated the juvenile court judge to hear the guardianship matter. The juvenile court judge consolidated the matters for hearing and treated the contest as a guardianship action.

       (Emphasis supplied.) Kelley v. Kelley, 129 Ga. App. 257, 259 (1) (199 SE2d 399) (1973). See also Abrams v. Daffron, 155 Ga. App. 182, 183 (270 SE2d 278) (1980); Armor v. Moore, 104 Ga. 579, 581 (30 SE 821) (1898); Johnson v. Kelly, 44 Ga. 485, 487 (1871).

       (Emphasis supplied.) Supra at 581 (3).

       194 Ga. 875 (23 SE2d 171) (1942).

       Id. at 878.

       Supra at 486 (1).

       31 Ga. App. 791 (122 SE 244) (1924).

       Id. at 792 (3).

       (Emphasis omitted.) Supra at 259.

       See Villenueve v. Richbourg, 217 Ga. App. 354 (1) (457 SE2d 821) (1995).

       The trial court also expressed concerns over Huval’s financial decision-making ability, concerns Huval contends are misplaced. Since the court’s nonfinancial objections were sufficient to overcome the automatic preference, however, we need not address the financial concerns.

       See Beavers, supra at 878 (“[T]he paramount duty ... is to appoint the person in whose custody the interests and welfare of the child will be best served.”).

       272 Ga. 645 (533 SE2d 695) (2000).

       Id. at 649.

       Id. at 645.

       (Footnote omitted.) Id. at 650 (2).

       This Court, with limited exceptions, is generally without jurisdiction to rule on the constitutionality of a statute. See Helmeci v. State, 230 Ga. App. 866, 868 (1) (498 SE2d 326) (1998).

       (Punctuation omitted.) Beavers, supra at 878.


text:
    A00A2590.
    READY TRUCKING, INC. v. BP EXPLORATION & OIL COMPANY.
    (548 SE2d 420)
   Pope, Presiding Judge.

Ready Trucking, Inc. sued BP Exploration & Oil Company flk/a BP Oil Company for breach of contract, claiming that BP breached the parties’ agreement by failing to collect and remit “all applicable sales tax” on Ready’s numerous purchases of diesel fuel. Both Ready and BP filed motions for summary judgment. The trial court granted BP’s motion and denied Ready’s motion. Ready challenges both rulings.

Ready Trucking is an interstate motor common carrier and has a truck terminal in Ellenwood. At this terminal, Ready maintains two 10,000-gallon storage tanks for diesel fuel for its truck fleet. Since 1989, Ready has been a customer of BP and its predecessor, Gulf Oil Company, and regularly purchased diesel fuel from BP. When the account was established, Ready sent to BP a Georgia ST-5 Sales and Use Tax Certificate which provided that Ready was exempt from taxation on the purchase of certain enumerated goods. Ready had a business practice of sending a certificate to certain vendors in case that vendor had items that would be tax-exempt if Ready purchased them.

Between April 1, 1994, and December 31, 1996, the period at issue, Ready made approximately 150 separate purchases of diesel fuel from BP. For each sale, BP sent an invoice to Ready showing the price, amount of diesel fuel being purchased, and the various taxes included in each transaction. Although by law, as the agent collecting taxes on behalf of the State, BP was required to collect and remit all applicable taxes owed on its sales, BP did not collect or remit a required one percent state sales tax and a one percent local tax because BP mistakenly believed, based on Ready’s ST-5 Certificate, that Ready was exempt from having to pay these two taxes on diesel fuel purchases.

During a sales and use tax audit of Ready’s accounts conducted in early 1997, the Georgia Department of Revenue (“Department”) discovered the error. The audit revealed the shortfall in taxes paid by Ready between April 1, 1994, and December 31, 1996. Consequently, the Department billed Ready $37,801.56, including a $25,560.55 assessment in back taxes owed for fuel purchased by Ready from BP during that period as well as $12,240.91 in penalties and interest.

After paying the assessment to the Department, Ready sued BP for breach of contract. The crux of Ready’s complaint is that BP agreed to a purchase price that included “all applicable sales tax.” In support of its motion for summary judgment, BP offered copies of the approximately 150 invoices, each of which indicates the gallons delivered, purchase price, freight, and taxes withheld by category. Although each invoice shows that BP was withholding federal tax and three percent as a “SECOND MOTOR FUEL TAX,” each invoice also plainly shows that the two taxes at issue were not being withheld. And each invoice also states: “GA LOCAL SLS TAX EXEMPT” and the 11-digit number of Ready’s ST-5 exemption certificate.

After the trial court entered summary judgment for BP and denied Ready’s motion, Ready filed this appeal.

1. Although the State, under OCGA § 48-8-35, could have held BP liable for the back taxes instead of Ready, it was authorized to choose to recover from Ready under OCGA § 48-8-30 (g), and Ready has now paid the taxes and penalties. See Dittler Bros., Inc. v. AMR Intl., 142 Ga. App. 570 (1) (236 SE2d 544) (1977). Thus, neither Ready’s nor BP’s liability to the State is at issue. Accordingly, this case simply involves Ready’s claim that it is entitled to reimbursement from BP as damages for breach of contract.

2. Ready claims that under the terms of the approximately 150 sales agreements between Ready and BP, BP was required to pay these two taxes to the proper authorities and that it breached that agreement. It also claims that BP cannot hide behind the tax exemption certificate because BP had the burden of ensuring that the proper taxes were paid.

Each purchase was made based on either an oral or facsimile quote of the price per gallon for the fuel. The parties do not contend that the discussion or the facsimile ever mentioned the applicable taxes. However, the parties do not dispute that as a retail seller, BP incurred a statutory obligation to collect and remit all applicable sales taxes to the State. OCGA § 48-8-30 (b). This obligation necessarily became a term of the agreement because “laws in existence at the time a contract is executed are part of that contract.” (Citation and punctuation omitted.) Wilensky v. Blalock, 262 Ga. 95, 98 (3) (414 SE2d 1) (1992). Accordingly, absent an agreement to the contrary, a simple quote to purchase gasoline at a certain price would include an agreement that the price included all applicable taxes.

By claiming that it relied on Ready’s ST-5 exemption certificate, BP essentially argues that the parties had an agreement to the contrary. But it is beyond dispute that the exemption certificate does not expressly state that Ready is exempt from the tax on its purchase of diesel fuel. Further, the certificate states: “The supplier must exercise ordinary care to determine that the tangible personal property obtained under this certificate is for the purpose indicated. Suppliers failing to exercise such care will be liable for the sales tax due on such purchases.” BP’s interpretation of the ST-5 was an admitted misreading of the document and/or misunderstanding of the law, BP’s good faith notwithstanding. As such, it was a unilateral mistake. Normally, a unilateral mistake based upon a defendant’s negligence in failing to determine the facts or the law does not justify reformation of a written agreement absent fraud or inequitable conduct on behalf of the other party. Layfield v. Sanford, 247 Ga. 92, 93 (274 SE2d 450) (1981). Compare OCGA § 13-5-4. There is no evidence that by submitting the ST-5 to BP, Ready was attempting to defraud BP.

But, each invoice sent as a confirmation of each order shows beyond dispute that BP did not in fact charge Ready the two forms of sales tax at issue in this case on any of the approximately 150 transactions. Don Dougherty, the president of Ready, while reviewing these invoices during his deposition, readily admitted, “[w]ell, obviously it says that there is no sales tax charged on it, that it’s sales tax exempt. And the next line is the exemption certificate number, which confirms the number on the Georgia use and sales tax exemption certificate.” Although Dougherty conceded that he had probably seen the invoices before being deposed, he explained he had not realized the exemption appeared on them. He further testified that he, and therefore Ready, was aware at the time that Ready was not entitled to such an exemption and he would have expected Ready’s office manager to have inquired why BP exempted Ready from the sales taxes. Ready’s office manager, the sole employee responsible for accounts payable, testified that she merely verified the price per gallon and paid no attention to the sales tax information on the invoices. Ready never contacted BP to question the exemption.

Under these circumstances, the Georgia codification of the Uniform Commercial Code resolves this dispute. Article 2 of the UCC governs transactions involving the sale of goods. See Mail Concepts v. Foote & Davies, Inc., 200 Ga. App. 778, 779 (1) (409 SE2d 567) (1991). Where the sale of goods is “between merchants,” the sales invoices constitute written confirmation of their agreement. Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897 (2) (328 SE2d 564) (1985). As “between merchants,”

if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it [constitutes a writing enforceable] against such party unless written notice of objection to its contents is given within ten days after it is received.

OCGA § 11-2-201 (2). See Jem Patents v. Frost, 147 Ga. App. 839 (250 SE2d 547) (1978). Further, that writing then becomes the “final expression of their agreement with respect to such terms as are included therein,” and it “may not be contradicted by evidence of any prior agreement. . . .” OCGA § 11-2-202. Thus, if Ready is a merchant for the purposes of OCGA § 11-2-201 (2), the invoices govern and there has been no breach of contract.

Whether a party is a merchant under the UCC is a question of law for the court. Perez-Medina v. First Team Auction, 206 Ga. App. 719, 721 (1) (426 SE2d 397) (1992). But see Greater Southern Distrib. Co. v. Usry, 124 Ga. App. 525, 526 (184 SE2d 486) (1971) (issues of fact as to whether defendant’s seller was “merchant”). A purchaser may be considered a merchant under this subsection where it is “chargeable with the knowledge or skill of merchants.” OCGA § 11-2-104 (3). For instance, a purchaser can be considered a merchant where the purchaser is a “business professional as opposed to a casual or inexperienced seller or buyer,” Armco, Inc. v. New Horizon Dev. Co. of Va., 299 Va. 561, 565 (331 SE2d 456, 459) (1985) (citing official comment 1 for UCC subsection 2-104), and the purchase involves a type of goods related and necessary to the business or occupation of the purchaser. Cudahy Foods Co. v. Holloway, 55 N.C. App. 626, 627-629 (286 SE2d 606, 607-608) (1982). Here, Dougherty testified that Ready routinely made fuel purchases in the local market from BP and two other vendors. Ready is an interstate motor carrier, and it made nearly 150 purchases from BP alone. Ready was familiar with the purchase of diesel fuel and the taxation issues, and it had the knowledge necessary to discover BP’s initial error. We therefore hold that Ready is a merchant for the purposes of OCGA § 11-2-201 (2) when buying diesel fuel for its business.

It is undisputed that BP sent 149 invoices to Ready which confirmed the fact that BP was not withholding either of the two missing taxes and that Ready never revoked its acceptance, in whole or in part, of the terms appearing on the invoices within ten days as required by OCGA § 11-2-201 (2). See Jem Patents, 147 Ga. App. at 840 (1); compare Entertainment Sales Co. v. SNK, Inc., 232 Ga. App. 669, 671 (1) (502 SE2d 263) (1998). The invoices constitute an enforceable writing confirming the terms of the agreement, and they constitute an agreement between the parties that the two missing taxes would not be collected and remitted by BP. See Joe N. Guy Co. v. Valiant Steel & Equip., 196 Ga. App. 20, 21 (1) (395 SE2d 310) (1990). Since there was no breach of contract by BP, the trial court did not err in denying Ready’s motion for summary judgment. See Odem v. Pace Academy, 235 Ga. App. 648, 652 (1) (510 SE2d 326) (1998).

Decided March 21, 2001.

Kim G. Meyer, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Adam L. Appel, for appellee.

3. For the same reasons, Ready’s contention that the trial court erred by granting summary judgment to BP lacks merit. See Odem, 235 Ga. App. at 654 (1).

Judgment affirmed.

Miller and Mikell, JJ, concur.

       At the time of the sales, BP knew that motor fuels were subject to both of the two taxes at issue in this case. And, Gavin Atkinson, BP’s tax director, testified that BP discovered that the ST-5 exemption did not apply to diesel fuel sales to Ready after Ready filed suit and BP researched the issue.

       As Ready correctly points out, one is free to enter into an agreement to reimburse another for a tax obligation, as long as the State ultimately receives the proper amount of tax. See Chilivis v. Rogers Oil Co., 135 Ga. App. 176, 178 (217 SE2d 179) (1975).