text:
    A99A2105.
    DESMOND v. TRONCALLI MITSUBISHI et al.
    (532 SE2d 463)
   Ruffin, Judge.

David Desmond sued his former employer, Troncalli Mitsubishi and Troncalli Motors, Inc. (collectively Troncalli) and the general manager of Troncalli Mitsubishi, David Pelligrinelli, for false arrest, malicious prosecution, slander, and intentional infliction of emotional distress. Troncalli moved for summary judgment on all counts, and the trial court granted its motion. Desmond challenges the grant of summary judgment. For reasons that follow, we affirm.

Initially, we note that Desmond has failed to comply with Court of Appeals Rule 27 (c) (1) in that the sequence of argument in his brief does not follow his enumerations of error. Although Desmond enumerates 19 errors, his argument section contains a hodge-podge of sections and subsections that do not correlate with his enumerated errors. Desmond’s disregard for our rules has made our job more difficult. As we have held,

Rule 27 (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [the appellant has] hindered the Court’s review of [his] assertions and [has] risked the possibility that certain enumerations will not be addressed. Accordingly, to the extent that we are able to discern which of the enumerations are supported in the brief by citation of authority or argument, we will address those enumerations. Pursuant to Court of Appeals Rule 27 (c) (2), however, all other enumerations will be treated as abandoned.

Summary judgment under OCGA § 9-11-56 is appropriate in cases in which there are no genuine issues of material fact and the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

So viewed, the record shows that, on October 27, Í996, Troncalli Mitsubishi hired Desmond as a salesman. On November 13, 1996, Marilyn Lavender went to Troncalli to purchase a car and met with Desmond. According to Lavender, Desmond told her she needed $500 for a down payment, but she did not have enough money with her. Lavender testified that she had $355 that she gave to Desmond for the down payment, plus $55 for a car tag. Lavender testified that Desmond told her to bring in another $145 the next day.

Desmond testified that Lavender gave him approximately $400 on November 13 and that he gave the money to Troncalli. Desmond further asserted that he gave Lavender a receipt, but Lavender claimed that she was never given one. Lavender also claimed that, when she returned to Troncalli Mitsubishi on November 14, she gave Desmond an additional $150.

When Lavender returned to Troncalli on November 15, Desmond told her that she would need more car insurance in order to obtain financing, and the two went to an insurance agency. Desmond, who paid the $189 insurance bill with a Troncalli check, testified that he used a portion of the original $390 to pay for the insurance. Lavender, on the other hand, maintains that she gave Desmond an additional $200 in cash to pay for the insurance, which Desmond kept.

On November 18, Desmond was terminated from Troncalli. Lavender called the dealership twice to speak to Desmond and was told that he was not there. When Lavender was unable to reach Desmond, she told the dealership that she wanted the return of her money and the car that she had traded in.

Lavender returned to the dealership on November 20 and was told that Desmond had been fired, but she was not told why. At some point, a saleswoman named Rachel and an unnamed salesman told Lavender that Desmond had been fired for taking money.

Lavender spoke with another salesman who told her that she would need a down payment of $3,000 to finance the car. Lavender explained that Desmond had told her she needed only $500 and that she had already given him the money. The salesman initially told Lavender that Troncalli’s records showed only a payment of $55 for the car tag. But the dealership subsequently acknowledged that it had received $390 from Lavender, of which $189 had been refunded to Lavender to pay for insurance.

Lavender became upset, and the salesman took her to a back office along with three other Troncalli employees that Lavender identified only as Sam, Steve, and Rachel. Lavender explained that she had given Desmond $355 toward her $500 down payment, plus $55 for her tag, an additional $150 toward her down payment, and $200 for her insurance. According to Lavender, Sam asked her, “Are you telling the truth?” and she responded “Man, I wouldn’t come way out here to tell a lie. ... I gave Dave the money.”

Sam told Lavender that he could not refund any of the money because he had no proof that she had given the money to Desmond. Lavender showed Sam a piece of paper documenting Desmond’s request for her to pay $200 for insurance, and she was given a check for $200. But Lavender was told she would have to return later to obtain the rest of the money because Troncalli needed time to investigate further. When Lavender returned, she signed two documents — one of which was notarized — attesting that she had given money to Desmond, and the dealership gave her a check for $355.

After Lavender made these allegations, Pelligrinelli contacted the DeKalb County Police Department to report the missing money and completed an incident report. On December 2, 1996, Pelligrinelli completed an affidavit accusing Desmond of theft by conversion, and a magistrate, finding probable cause, issued an arrest warrant. Although Desmond received a copy of the warrant in the mail, he did not turn himself in.

Also in December, Pelligrinelli informed the Georgia Department of Labor that Desmond had been discharged for failure to report to work or scheduled meetings as required. Pelligrinelli also wrote that “since [Desmond’s] termination, it has been discovered that [he] may have been involve [d] in crimes which may have occurred at [the] dealership. Warrants are outstanding.”

In June or July 1997, Desmond was arrested. According to Desmond, the police arrived at his home at 4:00 a.m., placed him in handcuffs, and transported him to jail. After six to eight hours in jail, Desmond posted bond and was released.

On October 10, 1997, at the preliminary hearing, a Troncalli employee informed the court that Troncalli would not prosecute the claim. Apparently, the employees who had been involved in the incident, including Pelligrinelli, no longer worked for the dealership. Thus, the State declined to issue an accusation charging Desmond.

On March 13, 1998, Desmond sued Troncalli and Pelligrinelli for false arrest, malicious prosecution, slander, and intentional infliction of emotional distress. Troncalli moved for summary judgment on all counts, and the trial court granted the motion. This appeal ensued.

1. In his first enumeration of error, Desmond contends that the trial court erred in failing to articulate its bases for granting summary judgment. We disagree. Although findings of fact and conclusions of law are helpful for appellate review, a trial court’s failure to issue them in granting summary judgment under OCGA § 9-11-56 provides no basis for reversal.

2. In multiple enumerations of error, Desmond argues that the trial court erred in granting summary judgment on his false arrest and malicious prosecution claims. Again, we disagree.

Initially, we note that neither false arrest nor malicious prosecution claims are favored under Georgia law. It is public policy to encourage citizens to bring to justice those who appear guilty. Nevertheless, if an arrest or prosecution lacks probable cause and is prompted by malice, then a person may have a claim for false arrest or malicious prosecution.

The elements of a false arrest claim include: (1) an arrest under the process of law, (2) without probable cause, and (3) made maliciously. In such an action, it is also essential to show that the prosecution terminated in favor of the complaining party. A claim of malicious prosecution involves “[a] criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted.”

To prevail against Troncalli under either cause of action, Desmond must show that Pelligrinelli, the Troncalli employee -who prosecuted Desmond, acted maliciously and without probable cause. If Desmond is unable to satisfy either element, then Troncalli is entitled to summary judgment on both causes of action.

Pretermitting whether Pelligrinelli had probable cause to suspect Desmond of stealing money, the absence of evidence that Pelligrinelli acted maliciously is fatal to Desmond’s case. Malice consists of: (1) personal spite, or (2) “general disregard of the right consideration of mankind, directed by chance against the individual injured.” There is nothing in the record before us that shows or tends to show that Pelligrinelli acted with malice in prosecuting Desmond for theft by conversion. Indeed, Desmond acknowledged that he never got to know Pelligrinelli on a personal level. And Desmond never deposed Pelligrinelli to ascertain what might have prompted him to prosecute Desmond. Accordingly, the trial court did not err in granting Troncalli’s motion for summary judgment on both the false arrest and malicious prosecution claims.

3. Desmond asserts that the trial court erred in granting summary judgment in favor of Troncalli on his slander claim. Desmond points to Lavender’s testimony that at least two Troncalli salespeople told her that he had been fired for stealing. He also asserts that Pelligrinelli’s statements to the Georgia Department of Labor were slanderous. According to Desmond, Troncalli should be held liable for these slanderous statements. We disagree.

With respect to the statements made by the Troncalli employees, we note that

the doctrine of respondeat superior does not apply in slander cases, and a corporation is not liable for the slanderous utterances of an agent acting within the scope of his employment, unless it affirmatively appears that the agent was expressly directed or authorized to slander the plaintiff.

Desmond points to no evidence supporting his contention that Troncalli directed or authorized its employees to make such statements or that Troncalli ever ratified the statements. Consequently, the trial court did not err in granting summary judgment on this claim.

To the extent that Desmond’s claim was based upon Pelligrinelli’s written statement to the Department of Labor, we note that the statements are “absolutely privileged” and cannot serve as “the subject matter or basis for any action for slander or libel in any court of the State of Georgia.”

Decided March 24, 2000.

Terence T. Thomas, Sarah E. Yarbrough, for appellant.

Fisher & Phillips, Michelle C. Hamilton, Joseph M. English, Burton F. Dodd, for appellees.

4. In three enumerations of error, Desmond contends that the trial court erred in granting summary judgment on his claim of intentional infliction of emotional distress. To prevail on a claim of intentional infliction of emotional distress, Desmond must demonstrate that:

(1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. The defendant’s conduct must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

Desmond is unable to meet the stringent burden of proving such a claim. Desmond’s claim of intentional infliction of emotional distress is predicated upon Troncalli’s prosecution of the conversion claim and Desmond’s subsequent arrest. Because a magistrate found that Troncalli had probable cause to prosecute Desmond, the filing of charges against Desmond cannot serve as the basis for his claim. Thus, the trial court did not err in granting summary judgment on Desmond’s claim.

5. Desmond contends that the trial court erred in considering deposition testimony of Kymberli Durden because the deposition was not timely filed. Pretermitting whether the trial court erred, for the reasons stated in Divisions 1 through 4, any such error was harmless.

Judgment affirmed.

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

       Pelligrinelli, who no longer works for Troncalli, did not move for summary judgment, and he is not a party to this appeal.

       (Punctuation omitted.) Brown v. Cooper, 237 Ga. App. 348 (514 SE2d 857) (1999).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Lavender also testified that Desmond used part of the $200 to pay for gas.

       But Lavender did acknowledge that the insurance company was paid with a dealership check.

       According to the comptroller for Troncalli, the check, which was for $201, represented the original $390 down payment minus the $189 that the dealership had paid for Lavender’s insurance.

        Hopkins v. Hudgins & Co., 218 Ga. App. 508, 510 (1) (d) (462 SE2d 393) (1995).

        Day Realty Assoc. v. McMillan, 247 Ga. 561, 562 (277 SE2d 663) (1981); McGonagil v. Treadwell, 216 Ga. App. 850, 853 (1) (456 SE2d 260) (1995).

        Day Realty, supra.

       OCGA § 51-7-1; Simmons v. Kroger Co., 218 Ga. App. 721, 722-723 (1) (463 SE2d 159) (1995).

        Campbell v. Hyatt Regency, 193 Ga. App. 542 (2) (388 SE2d 341) (1989).

       OCGA § 51-7-40.

       See Roberts v. Duco Dev., 229 Ga. App. 549, 550 (494 SE2d 313) (1997) (employer is liable for employee’s intentional tort committed within the scope of employment).

       See Lau’s Corp., supra (a defendant will prevail at summary judgment by demonstrating the absence of evidence on one essential element of plaintiff’s case).

       OCGA § 51-7-2.

        See Franklin v. Consolidated Govt. of Columbus, 236 Ga. App. 468, 470-471 (1) (512 SE2d 352) (1999).

       (Punctuation omitted.) Smith v. Trust Co. Bank, 215 Ga. App. 413, 416 (2) (450 SE2d 866) (1994).

       OCGA § 34-8-122 (a); Hightower v. Kendall Co., 225 Ga. App. 71, 72 (2) (483 SE2d 294) (1997).

       (Citation and punctuation omitted.) Frank v. Fleet Finance &c., 238 Ga. App. 316, 318 (518 SE2d 717) (1999).

       See id.

        Biven Software v. Newman, 222 Ga. App. 112, 115 (1) (473 SE2d 527) (1996).

       Id.

       See Porter Coatings v. Stein Steel &c. Co., 247 Ga. 631 (278 SE2d 377) (1981).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A99A2125.
    TRAVIS v. THE STATE.
    (532 SE2d 430)
   Pope, Presiding Judge.

Gregory Travis was tried and convicted of theft by taking of an automobile. He appeals, raising three enumerations of error. Finding that the court properly instructed the jury and that the evidence was sufficient to convict, we affirm.

Viewing the evidence in the light most favorable to the verdict, on January 11, 1997, at about 12:30 a.m., Johnny Rodgers drove his Geo Tracker to a nightclub and parked it near one of the club’s windows so that he could keep an eye on it. The car had a brand new soft top. Rodgers recalled that he locked the car doors and put on the emergency brake to keep the car, which was a stick shift, from rolling. Rodgers remembered putting on the emergency brake because the car was parked on an incline. Rodgers then went inside the club.

A short time later two club patrons, Ricky Jackson and a friend, left the nightclub. Jackson testified that he put a bag in his truck and then noticed the Geo Tracker rolling backwards across the parking lot toward him. The car had no lights on, the. engine was not running, and the doors were closed. The Tracker hit the back of Jackson’s car. After the impact, a man, identified at trial as Travis, got out of the Tracker and tried to leave the scene. Jackson noticed that the plastic back window of the Tracker had been cut. Jackson and his friend detained Travis until the police arrived at the scene.

The police arrived and during a pat-down search of Travis found a steak knife in his front pocket. Travis was arrested at the scene.

At trial Travis contended that he saw the Tracker rolling across the parking lot and tried to stop it. He claimed that he opened the door, grabbed the wheel and jumped in. Travis claimed that he was halfway inside and halfway out of the car and yelled to alert pedestrians to the car. Although Travis testified that he does not know how to drive, he stated that he acted out of impulse in trying to stop the car. Travis denied that he cut the back window of the car.

1. In his first enumeration of error, Travis argues that the trial court erred by failing to give his requested charge on the lesser included crime of entering an automobile. Travis requested in writing that the court give the “standard charge” on entering an auto. The court declined to give this charge and charged the jury only on theft by taking.

We find no error. OCGA § 16-8-18 provides that a person is guilty of the crime of entering an automobile when he enters it “with the intent to commit a theft or a felony.” Theft by taking, on the other hand, is defined in OCGA § 16-8-2, as occurring when a person unlawfully takes or appropriates the property of another. In this case, the evidence showed either that Travis intended to take the car and was caught while taking it or that he was trying to stop a runaway car and committed no crime at all. There was no evidence that Travis entered the automobile with the intent to commit a theft or felony therein, and thus, there was no evidence to warrant a charge on entering the automobile. See generally Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994). Even assuming that in some instances entering an automobile might be a lesser included offense of theft by taking, we need not reach that question in this case because there was no evidence that Travis committed the lesser offense, and there was no error in the court’s charge. Id.

2. Secondly, Travis argues that the evidence was insufficient to convict. Travis contends that the evidence showed that he did not have the requisite control over the vehicle because the car was rolling in the parking lot. He further claims that because he had no keys to the car and the steering wheel column was not damaged, the evidence did not support the conviction for theft by taking.

We disagree. OCGA § 16-8-2 provides: “A person commits the offense of theft by taking when he unlawfully takes . . . any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.”

Under the statute, the phrase “regardless of the manner in which the property is taken” is a “catch-all phrase rendering our theft by taking statute broad enough to encompass . . . any other of the ‘myriad and even yet-to-be-concocted schemes for depriving people of their property.’ ” (Citations omitted.) Spray v. State, 223 Ga. App. 154, 155 (1) (476 SE2d 878) (1996). The statute states that a theft is committed when a person, with the requisite intent, unlawfully takes the property of another; there is no requirement that the engine of a car be running or that the thief successfully navigate the car onto a street before the crime is complete. See Hicks v. State, 196 Ga. App. 180 (1) (396 SE2d 33) (1990) (theft by taking evidence sufficient when appellant .was standing beside stolen Jeep with broken steering column which belonged to a dealership located 500 yards away); see also Preston v. State, 183 Ga. App. 20 (1) (357 SE2d 825) (1987) (conviction for theft by receiving affirmed when appellant unsuccessfully tried to start a car which had been reported as stolen). Given the instant facts, we conclude that a rational trier of fact could find from the evidence at trial proof of Travis’ guilt of theft by taking beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 24, 2000.

Tamara J. Wayland, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

3. Finally, Travis contends that the court erred when it failed to give a limiting instruction after it charged the jury on theft by taking. Specifically, Travis contends that the court did not limit its instruction to the jury to the allegations of the indictment.

This enumeration lacks merit. First, contrary to Travis’ arguments, the court did instruct the jury to limit its consideration to the unlawful taking as specified in the indictment. Compare Dukes v. State, 265 Ga. 422 (457 SE2d 556) (1995). Furthermore, there was no evidence presented at trial from which the jury could conclude that Travis committed theft by taking in any manner other than that outlined in the indictment. Specifically, there was no evidence that Travis unlawfully appropriated the vehicle, and therefore, there was no possibility that the jury was misled. Compare Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999). Accordingly, we find no error.

Judgment affirmed.

Smith and Miller, JJ., concur.

       Despite his stated enumeration, in his argument Travis cites the statute regarding criminal trespass, OCGA § 16-7-21 (b) (1), rather than OCGA § 16-8-18, which pertains to entering an automobile. Nevertheless, Travis does not assert error in the trial court’s ruling on his request to charge criminal trespass, and thus, we will not address this unenumerated error.

       See Hawkins v. State, 219 Ga. App. 484, 485 (2) (465 SE2d 527) (1995); compare Phillips v. State, 162 Ga. App. 199, 200 (1) (290 SE2d 142) (1982).

       In support of his argument, Travis cites OCGA § 16-8-11, which provides that in a prosecution under OCGA § 16-8-2, the crime shall be considered as having been committed where “the accused exercised control over the property which was the subject of the theft.” Although this section applies to venue, Travis’ argument here construes the word “control” too narrowly.


author: POPE, Presiding Judge.

text:
    A99A2146.
    VAUGHN v. PROTECTIVE INSURANCE COMPANY et al.
    (532 SE2d 159)
   POPE, Presiding Judge.

The jury returned a defense verdict in this tragic case arising out of an automobile accident that killed James Christopher Vaughn. His mother, as administrator of Vaughn’s estate, appeals the result on the grounds that the court should not have instructed the jury on assumption of the risk and that the trial court improperly refused to allow Vaughn to question her expert witness about his prior employment by defense counsel. Because the facts did not raise the issue of assumption of the risk, we reverse.

On July 14, 1993, James and others were riding in the back of a flatbed farm truck that had faulty brakes when the truck was approaching a stop sign at an intersection with Highway 257. At the same time, Norman L. Austin was approaching the same intersection on Highway 257 driving a fully loaded tractor-trailer, weighing over 37 tons. The farm truck was unable to stop. When he was approximately 300 feet from the intersection, Austin, who did not know the farm truck was facing a stop sign, saw the truck entering the intersection, tried to stop, and left skid marks beginning approximately 45 feet from the point of impact — which means that because the braking tires are on the back of the tractor, the front of the tractor was only 30 feet from the farm truck when the skid began. Austin was unable to stop or steer around the truck, and his vehicle demolished the back end of the farm truck killing James and another person who was riding in the back. The tractor came to a stop over 100 feet past the intersection, and the trailer went 86 feet farther than that.

Vaughn, on behalf of her son, brought suit against Austin, his employer, James Motor Company, and its insurance company, Protective Insurance Company. At trial there were issues of fact about whether Austin was driving within the 55-mph speed limit and about whether he negligently tried to beat the farm truck through the intersection. Austin estimated his speed at between 50 and 55 mph, but Vaughn’s accident reconstruction expert, Thomas Langley, testified that Austin was traveling between 66 and 69 mph at the beginning of the skid mark. Also, Austin had his truck in either the eighth or ninth gear (out of ten) at the time of the accident, he had not geared down at all after seeing the farm truck, and he admitted that he initially turned in the direction the farm truck was going because his “[flirst instinct is to beat it.”

1. The court charged the jury on assumption of risk as follows:

When a person knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such risk in and of itself amounts to failure to exercise ordinary care for one’s own safety, that person cannot hold another liable for the injuries proximately caused by such action, even though the injuries may in part be attributed to the negligence of other persons.

Vaughn contends that the charge should not have been given because the principle is not applicable to this case. The defendants disagree and contend she waived this objection. Vaughn agreed to the charge during the charge conference and failed to object after the court charged the jury for the first time. But the jury requested that it be fully charged a second time. After the second charge the court called for objections to the recharge, and Vaughn objected to the charge on assumption of risk on the ground that it was not adjusted to the evidence and that it was not applicable to the case.

One waives any defect in the charge by failing to object to an instruction before the jury returns its verdict. OCGA § 5-5-24 (a); Pope v. Goodgame, 223 Ga. App. 672, 675 (3) (c) (478 SE2d 636) (1996); Bryant v. Housing Auth. &c. of Atlanta, 121 Ga. App. 32 (2) (172 SE2d 439) (1970). But as shown, Vaughn objected before the verdict. See Brown v. Sims, 174 Ga. App. 243, 244 (2) (329 SE2d 523) (1985) (physical precedent) (objection after charge sufficient even though there was no objection at charge conference).

The purpose of OCGA § 5-5-24 (a) is to allow correction of errors in the charge when there is still time to do so. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 16 (2) (195 SE2d 417) (1973) (decided under former Code Ann. § 70-207). This was the case here. The court could have withdrawn the charge and instructed the jury to no longer consider assumption of the risk, or it could have given revised instructions sufficient to clarify the law applicable to the case. Cf. Jones v. State, 246 Ga. 109, 111-112 (5) (269 SE2d 6) (1980) (no merit to claim of incorrect charge where it has been called to jury’s attention, withdrawn from them, and a correct charge given).

2. The court’s charge on assumption of the risk was not appropriate because James did not assume the risk of Austin’s alleged negligent driving.

“In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.” (Citation omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996).

A charge on assumption of the risk is appropriate where there is evidence that the plaintiff had subjective knowledge of “the specific, particular risk of harm associated with the activity or condition that proximately causes injury,” yet proceeded anyway. Vaughn, 266 Ga. at 864 (1). “The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities.” Id. See also Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 479 (3) (491 SE2d 909) (1997). Also, in Georgia assumption of the risk is based in part on the reasoning that, “the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.” (Citation and emphasis omitted.) Vaughn, 266 Ga. at 864 (1).

In this case the plaintiff knowingly or unknowingly faced at least three risks: (1) the risk of riding in the back of a farm truck; (2) the risk of the farm truck not stopping because of faulty brakes; and (3) the risk of Austin’s allegedly negligent speed. The facts in this case suggest that all three risks may have contributed to James’ death. But Vaughn’s suit against the defendants is premised on the allegation that Austin’s alleged negligence was the proximate cause of James’ death.

James, as a normal adult in this day and age, must be held to have understood the risks associated with riding in the back of a flatbed truck. The risks include being thrown out of the truck or being injured in an accident to a greater degree than riding in a seat properly buckled up. Those risks do not include being run over by a tractor-trailer unable to stop in time because it was traveling at excessive speed. James did not consent to that. He did not consent to relieving Austin of his duty to drive carefully. See Vaughn, 266 Ga. at 865 (2); Jimenez v. Morgan Drive Away, 238 Ga. App. 638, 640 (1) (519 SE2d 722) (1999) (“knowledge of the dangers of driving a truck on the highway when the clutch is malfunctioning and parking a disabled truck in the emergency lane is not sufficient to establish knowledge that a vehicle would come into the emergency lane and strike the truck”).

Similarly, assuming without deciding that there may be slight evidence that James was awáre the brakes were faulty, that knowledge does not mean that he assumed the risk of Austin’s negligence. The risk of faulty brakes includes running into things, losing control of a vehicle, and running stop signs. But again, it does not include the risk of being hit by a vehicle because that vehicle was being operated in a negligent manner.

In Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (4) (409 SE2d 524) (1991), this Court held that it was error to have charged on assumption of the risk when an officer was involved in a head-on collision while he was traveling, with emergency lights flashing, as part of an official convoy that was exceeding the speed limit and straddling the road’s median. We held that the officer would have to have been aware of the actual risk in order for assumption of the risk to apply:

In order for [the officer] to have assumed the risk of being struck by [the] truck, there must be evidence that, after the truck had swerved into his lane of traffic, he had then made a conscious and voluntary decision to proceed and risk a head-on collision.

(Emphasis omitted.) Id. at 824 (4). Compare Norman v. Williams, 220 Ga. App. 367 (1) (469 SE2d 366) (1996).

In this case, a charge on assumption of the risk would have been appropriate only if there was some evidence that James saw the speeding tractor-trailer and then chose to stay in the truck rather than jump to safety, and then, only if he had time to do so. See Beringause, 200 Ga. App. at 824 (4); Brown, 174 Ga. App. at 245-246 (3). Although James may have seen the tractor coming toward him, the defendants do not contend he had time to jump off the truck or otherwise avoid injury at that point in time. Thus, it cannot be said that James assumed that risk. For these reasons, it was error to give the charge on assumption of the risk in this case.

3. We next address whether the error was harmful:

“ ‘(W)hen an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless.’ (Cit.)” Jones v. Davis, 183 Ga. App. 401, 402 (1) (359 SE2d 187) (1987).

Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547) (1988).

Based on the charge as a whole, including the charge on assumption of the risk, the jury could easily have believed that if they found that James was negligent because he chose to ride in the back of an open truck, Vaughn could not recover as a matter of law. Therefore a new trial is required.

4. We will address the remaining enumeration of error because the issue is likely to recur on retrial.

Prior to trial, the court granted the defendants’ motion in limine thereby prohibiting reference to the fact that their counsel, and his former firm or clients, had employed Langley in the past, in other cases, as an accident reconstruction expert. During the trial, defense counsel objected to Langley testifying as an expert and, in so doing, attacked Langley’s qualifications in front of the jury. The court ruled over the defense objection that Langley was qualified as an expert in the area of accident reconstruction.

While questioning Langley on direct, Vaughn’s attorney sought to have the court reconsider its ruling on the motion so that he could rehabilitate the witness by asking about his past employment by defense counsel. The court ruled that Vaughn could show that Langley had been hired by both plaintiffs and defendants generally but could not ask about prior employment by this defense counsel. Later, Vaughn made the same request again and eventually proffered that defense counsel’s former law firm or its clients had employed Langley “probably 12 to 15 times,” in similar cases. The court denied the request.

The trial court has wide discretion in determining relevancy of questions asked on voir dire of a proposed expert witness. Williams v. State, 171 Ga. App. 807, 810 (4) (321 SE2d 386) (1984). Evidence is relevant if it either directly or indirectly relates to a question being tried. OCGA § 24-2-1. The issue being tried during voir dire of an expert is whether his or her background, including education, training, special knowledge, skill or experience, qualifies him or her to render an opinion within the scope of a particular expertise and whether that particular expertise is relevant to an issue in the case. And, a party is allowed to impeach or rehabilitate an expert witness’ credibility. See Dept. of Transp. v. Adams, 193 Ga. App. 866 (1) (389 SE2d 343) (1989).

But the type of information that Vaughn attempted to elicit was not proper rehabilitation evidence and was not relevant to the decision of whether he was a competent expert. See Krause v. Vance, 207 Ga. App. 615, 618 (5) (428 SE2d 595) (1993). In Krause, a party sought to introduce evidence that the judges in two other lawsuits disagreed with his opponent’s witness’ testimony in those cases. Id. We held that the evidence “was incompetent for impeachment purposes because it did not contradict the witness’ testimony in the instant case.” Id. It was irrelevant.

Krause is instructive for this case. Vaughn sought to bolster Langley’s credibility by raising the inference that defense counsel universally thought Langley was a competent expert witness. But that evidence is irrelevant. If defense counsel hired Langley in another case, his duty there was to find the best available expert willing to offer an opinion favorable to his client’s case. The fact that he used Langley in other suits does not show what defense counsel thought of him. Defense counsel’s obligation to his client in this case is to zealously guard against incompetent expert opinion testimony being used against his client. It could be that exactly because defense counsel used Langley in another matter, he knows the weaknesses of Langley’s qualifications as an expert.

Decided March 24, 2000

Orr & Edwards, W. Fred Orr II, Gambrell & Stolz, Irwin W. Stolz, Jr., for appellant.

Gray, Hedrick & Edenfield, William E. Gray II, Linda M. Fitzgerald, for appellees.

Moreover, the testimony essentially would make defense counsel a witness. His true feelings regarding the expert could not be explored without doing so. Finally, defense counsel’s argument that Langley was not competent is not evidence. Therefore the fact that defense counsel may have hired Langley in other cases does not contradict any evidence in the present case. See Krause, 207 Ga. App. 618 (5).

In short, the evidence is not admissible for the purpose of attempting to rehabilitate or bolster Langley’s credibility. The court did not abuse its discretion in prohibiting questioning on this point.

Cases where one party hired an expert previously employed by the opposing party are not on point. See, e.g., Dept. of Transp. v. Cochran, 160 Ga. App. 583 (287 SE2d 599) (1981); DeKalb County v. Queen, 135 Ga. App. 307 (217 SE2d 624) (1975); Logan v. Chatham County, 113 Ga. App. 491 (148 SE2d 471) (1966). Canada v. Shropshire, 232 Ga. App. 341 (501 SE2d 860) (1998) is also not on point. The issue in that case was the past use by the plaintiff himself of the same expert and attorney arising out of three similar accidents.

Judgment reversed.

Smith and Miller, JJ, concur.

       The occupants of the cab of the truck received only minor injuries.

       He was 25 years old at the time of the accident and had a high school diploma.

       The issue of whether riding in the back of an open truck is admissible only for the purpose of damages is not before us. Compare Sapp v. Johnson, 184 Ga. App. 603, 606 (3) (362 SE2d 82) (1987).

       See OCGA § 24-9-67; Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562) (1993) (“one whose habits and profession endow him or her with a particular skill in forming an opinion on the subject matter in inquiry”); Goodman v. Lipman, 197 Ga. App. 631, 633 (2) (399 SE2d 255) (1990) (“education, training or experience in the pertinent field of stud/’); Johnson v. State, 266 Ga. 624, 627 (2) (469 SE2d 152) (1996) (expert’s testimony must be relevant to an issue in the case).


author: Andrews, Presiding Judge. Pope, Presiding Judge,

text:
    A99A2226.
    SIMMONS COMPANY v. DEUTSCHE FINANCIAL SERVICES CORPORATION.
    (532 SE2d 436)
   Andrews, Presiding Judge.

Simmons Company appeals from the trial court’s order: (1) compelling arbitration of a claim asserted by Simmons in a suit against Deutsche Financial Services Corporation (DFS), and (2) dismissing the suit with prejudice. The trial court’s order concerned an arbitration agreement enforceable under the Federal Arbitration Act (FAA) (9 USC §§ 1-16). First, we conclude that we have jurisdiction over this appeal because the FAA does not preempt Georgia procedural law allowing the appeal. Second, we find no error in the trial court’s order compelling the parties to arbitrate under the agreement and dismissing the suit with prejudice in favor of arbitration.

After Simmons sued DFS asserting a claim under the terms of a written floor plan repurchase agreement, DFS contended the agreement contained a provision requiring arbitration of the claim and moved pursuant to the FAA to compel arbitration and for dismissal or stay of the suit. Under the FAA, written agreements to arbitrate contained in contracts involving interstate commerce are valid and enforceable in federal and state courts. Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (115 SC 834, 130 LE2d 753) (1995). The parties did not dispute that the floor plan agreement was a contract involving interstate commerce. Rather, the issue presented by DFS’ motion was whether the agreement contained a provision requiring arbitration.

DFS presented evidence in support of the motion that the agreement contained the following arbitration provision:

BINDING ARBITRATION. Any controversy or claim arising out of or relating to this Agreement, the relationship resulting in or from this Agreement or the breach of any duties hereunder will be settled by binding arbitration in accordance with the Commercial Arbitration Rules of The American Arbitration Association. . . . The site of all arbitration participatory hearings will be in the Division of the Federal Judicial District of [DFS’] branch office closest to [Simmons]. . . . The laws of the [S]tate of Illinois will govern this Agreement; provided, however, that the Federal Arbitration Act (“FAA”), to the extent inconsistent, will supercede the laws of such state and govern. This Agreement concerns transactions involving commerce among the several states.

Simmons opposed the motion with evidence that it never agreed to inclusion of this arbitration provision in the floor plan repurchase agreement.

In granting DFS’ motion, the trial court determined there was a written agreement to arbitrate the claim, compelled the parties to arbitrate, and dismissed the suit with prejudice. On appeal, Simmons claims the trial court erroneously concluded there was an agreement to arbitrate and thus erred by compelling arbitration and dismissing the suit.

1. Our initial task is to determine if we have jurisdiction of the appeal. This issue arises because of a conflict between FAA rules controlling enforcement of the arbitration agreement and Georgia procedural rules. The FAA controls enforcement of arbitration agreements in contracts involving interstate commerce. Dobson, 513 U. S. 265. The arbitration provision at issue indicates that Illinois law governs to the extent it is not inconsistent with the FAA. This does not mean, however, that the FAA. or Illinois law governs the procedures, including appellate procedures, which apply in Georgia, where the suit was filed. Lloyd v. Prudential Securities, 211 Ga. App. 247, 248 (438 SE2d 703) (1993). Under the rule of lex fori, procedural or remedial questions are governed by the law of Georgia. Id. Even where a claim is governed by substantive federal law, a state may apply its own procedural rules in its own courts, if those procedures do not defeat the objectives of the federal law. Felder v. Casey, 487 U. S. 131, 138 (108 SC 2302, 101 LE2d 123) (1988). Accordingly, the issue controlling our jurisdiction is whether FAA rules prohibiting the appeal preempt Georgia procedural rules allowing the appeal.

Under § 16 of the FAA, once a court has determined that the parties agreed to arbitrate the claim, preliminary appellate review of that determination is limited. The limits are designed to promote the pro-arbitration policies of the FAA by minimizing the delays inherent in preliminary appellate review prior to arbitration. To accomplish this, § 16 prohibits appeals from interlocutory orders compelling arbitration. However, § 16 allows appeals from final decisions compelling arbitration. The opportunity for appellate review of an order compelling arbitration is not lost, but it must wait until after the arbitration award.

In distinguishing under § 16 between nonappealable interlocutory orders compelling arbitration and appealable final decisions compelling arbitration, two categories of cases have emerged) When the only issue before the trial court is whether the parties agreed to arbitrate, the arbitration claim is referred to as an “independent” claim. Randolph v. GreenTree Financial Corp., 178 F3d 1149, 1153 (11th Cir. 1999). The trial court’s ruling compelling arbitration on an “independent” claim is considered to be a final decision which ends the litigation and is appealable under § 16. Id. On the other hand, where the issue of whether the parties agreed to arbitrate is before the trial court along with other issues in a broader, substantive suit, the arbitration claim is referred to as an “embedded” claim. Id. Most courts conclude that the trial court’s ruling compelling arbitration on an “embedded” claim does not end the litigation for purposes of § 16 and thus the ruling is considered to be a nonappealable interlocutory order under § 16. Altman Nursing v. Clay Capital Corp., 84 F3d 769, 771 (5th Cir. 1996).

Since the ruling compelling arbitration in the present case involved an arbitration claim “embedded” in Simmons’ suit on the floor plan repurchase agreement, it fell, at least initially, into the category of a nonappealable interlocutory order under § 16. Rather than staying Simmons’ suit pending arbitration, however, the trial court dismissed the suit with prejudice, leaving no other issues before the court. Some courts have concluded that, when the trial court dismisses the remaining claims in which the arbitration claim was “embedded,” this is a final decision appealable under § 16. Arnold v. Arnold Corp., 920 F2d 1269, 1275 (6th Cir. 1990); Randolph, 178 F3d at 1155-1157. However, the weight of authority holds that, regardless of whether the trial court elects to dismiss or stay the remaining claims, a ruling compelling arbitration on an “embedded” claim is interlocutory and nonappealable under § 16. Altman, 84 F3d at 771-772; see Randolph, 178 F3d at 1153-1155 (citing authority pro and con).

Contrary to this authority, Georgia procedural law allows a preliminary appeal from an order by the trial court compelling arbitration, regardless of whether the arbitration claim is “embedded” in a broader substantive suit. Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488 (299 SE2d 538) (1983). Moreover, Georgia law allows appeals from final judgments where the case is no longer pending in the court below. OCGA § 5-6-34 (a) (1). Thus, whether we have jurisdiction depends on whether the FAA preempts the Georgia rule.

The FAA preempts state laws that undermine enforcement of private arbitration agreements. Southland Corp. v. Keating, 465 U. S. 1, 16 (104 SC 852, 79 LE2d 1) (1984). “[T]o the extent that [a state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” it will be preempted by the FAA. (Citation and punctuation omitted.) Volt Information Sciences v. Bd. of Trustees &c., 489 U. S. 468, 477 (109 SC 1248, 103 LE2d 488) (1989). It follows that procedural rules established by a state for the arbitration process that do not undermine the purposes and objectives of the FAA are not preempted. North Augusta Assoc., L.P. v. 1815 Exchange, 220 Ga. App. 790, 791 (469 SE2d 759) (1996). As explained by the Supreme Court in Volt, “[t]here is no federal policy favoring arbitration under a certain set of procedural rules; the federal policy is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate.” Id. at 476.

Applying these principles, we find that the Georgia rule allowing a preliminary appeal from an order compelling arbitration does not undermine the purposes or objectives of the FAA to enforce arbitration agreements. The timing of the right to appeal from an order compelling arbitration is a procedural matter which may delay but does not prevent enforcement of a valid arbitration agreement. See Batton v. Green, 801 SW2d 923 (Tex. App. 1990); Weston Securities Corp. v. Aykanian, 46 Mass. App. Ct. 72 (703 NE2d 1185, 1189) (1998). Georgia’s procedure allowing a preliminary appeal from an order compelling arbitration recognizes that, if the trial court erred in determining there was an enforceable arbitration agreement, a party may be forced to participate in an unwarranted arbitration proceeding. Phillips, 250 Ga. at 489. Moreover, as noted above, the federal courts are split over whether the FAA would prohibit a preliminary appeal under the facts of this case. We conclude under the present facts that, assuming § 16 of the FAA would prohibit the appeal, it does not preempt Georgia’s procedural rule allowing this appeal. Compare Primerica Financial Svcs. v. Wise, 217 Ga. App. 36-37, 41 (456 SE2d 631) (1995) (finding state signature requirements were preempted by the FAA). To the extent Eure v. Cantrell Properties, 236 Ga. App. 427 (512 SE2d 323) (1999), holds to the contrary, it is overruled. Accordingly, we have jurisdiction to consider the appeal.

2. In ruling on whether the parties agreed to arbitrate the claim, the trial court was required to apply ordinary state law principles governing the formation of contracts to determine whether the agreement contained an arbitration provision enforceable under the FAA. First Options &c. v. Kaplan, 514 U. S. 938, 944 (115 SC 1920, 131 LE2d 985) (1995). Pursuant to the agreement, this required the application of Illinois law.

The suit by Simmons was to collect amounts claimed due from DFS under a floor plan repurchase agreement by which DFS financed Montgomery Ward’s purchase of Simmons bedding products for retail sale. DFS presented evidence that in 1995 it entered into a revised floor plan repurchase agreement with Simmons which contained an arbitration provision applicable to the Montgomery Ward floor plan and a floor plan for another retailer, Lechmere. Simmons conceded that it signed the 1995 agreement containing the arbitration provision applicable to the Montgomery Ward and Lechmere floor plans, but it claimed it did so by mistake. According to Simmons, both DFS and Simmons intended to strike all references to Montgomery Ward in the 1995 agreement so that the agreement and the arbitration provision would apply only to the Lechmere floor plan. DFS said it intended for the 1995 agreement and arbitration provision to apply to the Montgomery Ward floor plan and that it received no indication from Simmons that it had a different intention.

Applying Illinois law to these facts, we find no error in the trial court’s determination that the parties were bound by a written agreement to arbitrate the claims at issue that was contained in the 1995 agreement signed by both parties. Whether a contract is ambiguous is a question of law for the court, and clear and unambiguous contract terms must be given their ordinary and natural meaning without variance by parol evidence. Foxfield Realty v. Kubala, 287 Ill. App.3d 579 (678 NE2d 1060, 1063) (1997). Moreover, “[i]n order to establish a case for reformation of [a] contract, a litigant must prove that the written contract did not reflect the parties’ true bargain because of (1) mutual mistake of the parties or (2) unilateral mistake by one party caused by the fraud of the other.” Aetna Screw Products Co. v. Borg, 116 Ill. App.3d 206 (451 NE2d 1260, 1264) (1983). The terms of the agreement containing the arbitration provision were clear, and Simmons did not establish a basis for reformation of the agreement because of mutual mistake or unilateral mistake caused by fraud.

The trial court did not err by compelling arbitration according to the terms of the agreement. Moreover, since all of the issues in the underlying suit were compelled to arbitration, there was nothing left for the trial court to resolve, and it was not error to dismiss the suit with prejudice rather than grant a stay. See Green v. Ameritech Corp., 200 F3d 967 (6th Cir. 2000); Randolph, 178 F3d at 1151, 1154, 1156. The dismissal with prejudice has no effect on a subsequent challenge to the arbitration ruling, which would be a separate action. Green, 200 F3d 967.

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Blackburn, P. J., Smith, Ruffin, Eldridge, Barnes, Ellington and Phipps, JJ, concur. Pope, P. J., and Miller, J., concur specially.

Pope, Presiding Judge,

concurring specially.

I concur in the majority’s opinion in this case and conclude that my opinion in Eure v. Cantrell Properties, 236 Ga. App. 427 (512 SE2d 323) (1999), must be overruled to the extent it states that federal, not state, procedure applies to determine when an order compelling or denying arbitration may be appealed. Rather, state procedure applies unless it “would undermine the goals and policies of the [Federal Arbitration Act].” Volt Information Sciences v. Bd. of Trustees &c., 489 U. S. 468, 478 (109 SC 1248, 103 LE2d 488) (1988). In this case, at least under the Eleventh Circuit precedent noted by the majority, the result is the same under either federal or state law — the trial court’s order was final and thus subject to appeal.

But 9 USC § 16 was passed as a means of enforcing the strong federal policy favoring arbitration and inherently recognizes that one of the purposes of arbitration is to provide a streamlined, less expensive alternative to litigation, which could be impeded by the appellate process. And in enacting § 16, Congress determined that in certain instances delaying an appeal would better serve federal arbitration policy. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U. S. 614, 633 (105 SC 3346, 87 LE2d 444) (1985); Ermenegildo Zegna Corp. v. Lanificio Ermenegildo Zegna, S.p.A., 133 F3d 177, 180-181 (2nd Cir. 1998). Therefore, in a case where the availability of an appeal would depend upon whether federal or state procedure is applied, courts must determine whether the application of state procedure would undermine the goals and policies of the FAA. See Collins v. Prudential Ins. Co. &c., 2000 La. LEXIS 114 (January 19, 2000); Superpumper v. Nerland Oil, 582 NW2d 647 (N.D. 1998); Dakota Wesleyan Univ. v. HPG Intl., 560 NW2d 921 (S.D. 1997).

I am mindful of the Supreme Court of Georgia’s opinion in Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488 (299 SE2d 538) (1983), in which the Supreme Court recommended that trial courts certify for interlocutory review most orders granting or denying stays pending arbitration. But that opinion predates the passage of § 16 and was decided at a time when the federal courts followed the Enelow-Ettelson doctrine, which distinguished cases based upon law from cases based upon equity in determining whether an order affecting arbitration was appealable. The Supreme Court understandably declined to adopt that federal policy and instead applied Georgia procedural law. 250 Ga. at 489-490. The Supreme Court has not addressed a case in which the application of state procedure conflicts with § 16. The appeal in Phillips Constr. Co. was from an order denying a stay of judicial proceedings pending arbitration. Id. at 490. Assuming an appellant followed the proper procedures for certifying the order for interlocutory review, such an order would be appealable under either Georgia law or § 16. Id. at 490; 9 USC § 16 (a) (1) (A). Therefore, in a case where a conflict between Georgia and federal law exists as to whether an appeal is available, Georgia courts will have to consider whether Georgia procedure undermines the policies of the FAA as set forth in § 16.

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

Decided March 24, 2000.

Small, White & Marani, Gus H. Small, Jr., David A. Geiger, for appellant.

Sutherland, Ashill & Brennan, James A. Orr, Rebecca L. Burnaugh, for appellee.

       Prior to its decision in Volt, the U. S. Supreme Court stated in Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U. S. 1, 24 (103 SC 927, 74 LE2d 765) (1983) that the FAA creates a body of federal substantive law and “a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.” See Hilton Constr. Co. v. Martin Mechanical Contractors, 251 Ga. 701, 703 (308 SE2d 830) (1983) (quoting this language from Cone in applying the FAA). The Supreme Court’s subsequent decision in Volt clarified its holding in Cone by making clear that the FAA does not preempt all contrary state procedural policies, but only those that would defeat the FAA’s objective to enforce private arbitration agreements.

        Enelow v. New York Life Ins. Co., 293 U. S. 379 (55 SC 310, 79 LE 440) (1935); Ettelson v. Metro Life Ins. Co., 317 U. S. 188 (63 SC 163, 87 LE 176) (1942).

       See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271 (108 SC 1133, 99 LE2d 296) (1988) (overruling the Enelow-Ettelson doctrine).