text:
    A01A1618.
    SOUTHERN INTERMODAL LOGISTICS, INC. v. D. J. POWERS COMPANY, INC.
    (555 SE2d 478)
   Mikell, Judge.

Southern Intermodal Logistics, Inc. (“Southern”), an interstate motor carrier which ceased operations in 1994, filed this action under the Georgia Racketeer Influenced & Corrupt Organizations (“RICO”) Act, OCGA § 16-14-1 et seq., against D. J. Powers Company, Inc. (“Powers”), a customs house broker. Southern alleged that Powers attempted to extort illegal “commissions” from Southern for hauling K-Mart’s imported container freight from Savannah to various inland distribution facilities. When Southern refused to pay, Powers allegedly embarked on a scheme to coerce K-Mart to replace Southern, and it ultimately lost the account. The trial court granted summary judgment to Powers, ruling that the five-year statute of limitation for civil RICO claims, OCGA § 16-14-8, had expired. For the reasons that follow, we reverse.

This is a renewal action. A complete and detailed recitation of the underlying facts may be found in an order issued by the federal district court in the predecessor litigation. Southern Intermodal Logistics v. D. J. Powers Co., 10 FSupp.2d 1337 (S.D. Ga. 1998). Construed most favorably to the nonmovant, the evidence reveals the following. At all times relevant to this action, K-Mart imported merchandise from the Far East in containers shipped by the Yang Ming Line, a foreign steamship company. Yang Ming’s general agent in the United States was Solar International Shipping Agency, Inc. (“Solar”). In Savannah, Yang Ming was represented by Carolina Shipping Company (“Carolina”).

In 1986 or 1987, Southern became a “house carrier” for Yang Ming, an arrangement whereby Southern billed Yang Ming the lowest market rate in exchange for the right to handle the overland shipment of the majority of Yang Ming’s container freight. Until 1991, Southern handled 85 percent of Yang Ming’s K-Mart cargo. Southern signed its first contract with Powers in 1988. The parties agreed that Powers would assign cargoes to Southern in exchange for a commission. It is undisputed, however, that Southern had already procured Yang Ming’s business, without any effort from Powers.

Problems began in 1990, when Powers created a Domestic Transportation Department (“DTD”) to increase revenues generated from brokering motor carrier freight. Marsha Herb was hired as DTD’s director, and she drafted new contracts requiring the payment of “administrative fees” to Powers. Peter Hogan, Southern’s president, deposed that these fees amounted to a five percent unearned commission. In March or April 1991, Herb demanded that Southern either pay Powers the commission on the Yang Ming/K-Mart freight or relinquish K-Mart’s business to a different carrier. Hogan refused, claiming the commission was illegal. Herb then threatened to disparage Southern in order to influence K-Mart to pressure Yang Ming to cease doing business with Southern.

Hogan contacted Lloyd Seow, a Solar employee in New York, and Mike Collins, a Carolina employee in Savannah, to alert them to Herb’s threats. According to Hogan, Seow and Collins indicated that Herb had been pressuring them to fire Southern. At first, Seow and Collins told Hogan not to worry. Eventually, however, Collins told Hogan that Southern should pay the commission because “[Herb is] going to cause all kinds of trouble. And she’s got power with K-Mart and we’ve got to work this out.” Moreover, Seow told Hogan that Herb had threatened to divert the K-Mart account from Yang Ming to another steamship line unless Carolina agreed to use a trucker selected by Powers.

Carolina finally succumbed to the pressure. On May 15, 1991, Collins met with Herb and other Powers representatives to coordinate their logistics so that Powers’s truckers could begin hauling K-Mart containers. On May 20, Powers replaced Southern with a commission-paying carrier. Hogan testified that it was “some time” before he realized that he had lost the account, given the volume of Southern’s business.

In July, Robert Frederick, transportation director for Senator Line, another steamship company that used Southern to transport containers for K-Mart, contacted Hogan and informed him that Herb ¡vas trying to persuade Frederick to stop using Southern. Presumably in response to this conversation, Hogan sent a letter on July 22, 1991, to Solar’s vice-president, John Chou, warning him that Powers planned to fabricate complaints about Southern’s quality of service in order to persuade Yang Ming to select a house carrier designated by Powers. Hogan deposed that he had not realized at that point that Southern had already lost the K-Mart account. In fact, Southern resumed hauling K-Mart containers for Yang Ming in August, although for reasons not made clear by the record.

Southern continued servicing K-Mart until shortly after December 17, 1991, when Yang Ming received a facsimile from two K-Mart mployees, Shirley Pinkett and Linda Peterson, with instructions to discontinue using Southern because its service had “declined tremendously.” However, according to Philip Abraham, director of cargo ransportation for K-Mart at that time, there were no problems with Southern’s service. Abraham also averred that Herb had telephoned dm constantly since early April, criticizing Southern’s performance id trying to convince him to use Powers’s carrier. Herb called Southrn a “no good carrier” and said that Hogan would “lie and cheat.”

On July 22, 1996, Southern filed suit in superior court against 'owers, Yang Ming, Solar, and Carolina, asserting that it lost the -Mart freight as a result of Powers’s racketeering activity. In addiion, Southern claimed that Herb’s false statements in communications to K-Mart employees constituted mail fraud and wire fraud under 18 USC §§ 1341 and 1343. Yang Ming removed the action to federal district court, and Powers, Yang Ming, and Solar moved for lUmmary judgment. The district court denied Powers’s motion, ruling that the statute of limitation had not expired. However, the court .ranted summary judgment to Yang Ming and Solar, destroying federal jurisdiction. The case was remanded to superior court. However, Southern voluntarily dismissed the action and refiled it in state court. Powers again moved for summary judgment on statute of limitation grounds. The trial court granted the motion, and Southern appealed.

1. OCGA § 16-14-8 provides: “Notwithstanding any other provision of law, a criminal or civil action or proceeding under this chapter may be commenced up until five years after the conduct in violation of a provision of this chapter terminates or the cause of action accrues.” In Blalock v. Anneewakee, Inc., 206 Ga. App. 676, 678 (426 SE2d 165) (1992), we held that the five-year statute of limitation commenced “when the civil RICO cause of action accrues, which we interpret[ed] to mean when the plaintiff discovers, or reasonably should have discovered, that he has been injured and that his injury is part of a pattern.” Here, the trial court ruled that Herb’s allegec extortionate threats made to Southern before July 22,1991, were the injuries that commenced the running of the limitation period. W( disagree with this analysis.

The trial court relied in part on OCGA § 16-14-2 (b). Prior to itt amendment in 1997, that Code section stated that the General Assembly intended the RICO Act to apply to “an interrelated pattern of criminal activity, the motive or effect of which is to derive pecuniary gain.” In 1997, the legislature added the phrase “or economic oj physical threat or injury.” In State of Ga. v. Shearson Lehman Bros., Inc., 188 Ga. App. 120, 121 (2) (372 SE2d 276) (1988), we held that the pre-1997 expression of legislative purpose was not an element of a civil RICO cause of action. Similarly, we do not believe that the leg islature intended it as a benchmark for starting the limitation clock

The trial court additionally relied on Hoffman v. Ins. Co. of Nortl America, 241 Ga. 328 (245 SE2d 287) (1978). Hoffman, however, is inapposite, as our Supreme Court simply concluded in that case tha’ an action against an insurance agent for failure to procure a polic was not barred by the applicable statute of limitation.

There is no Georgia authority specifically addressing what coj stitutes a RICO “injury” under factually analogous circumstances f the purpose of starting the limitation period. Georgia law merely pi vides in pertinent part that “[a]ny person who is injured by reason any violation of Code Section 16-14-4 shall have a cause action. . . .” OCGA § 16-14-6 (c). Federal law is more restrictive, j USC § 1964 (c) limits a civil RICO cause of action to “[a]ny perso injured in his business or property by reason of” the commission of: pattern of racketeering activity, as set out in 18 USC § 1962. (Emphasis supplied.)

“[U]ntil a person suffers an injury due to a RICO violation, hi has no right to sue for damages, and thus a civil RICO cause of actioj cannot accrue until the person suffers injury.” Bivens Gardens Office Bldg. v. Barnett Bank, 906 F2d 1546, 1552 (11th Cir. 1990). Th Supreme Court of Georgia stated this principle succinctly in fixin. ^the point of accrual for an action based on economic losses resulting from alleged tortious negligent misrepresentation: “Indeed, until it suffered economic loss, [plaintiff! did not even have a claim for negligent misrepresentation, and we think it palpably obvious that in order for the prescriptive period to commence, the plaintiff must be •able to state a cause of action.” (Emphasis omitted.) Hardaway Co. v. Parsons, Brinckerhoff, Quade &c., 267 Ga. 424, 427 (1) (479 SE2d 727) (1997).

In Moeller v. Zaccaria, 831 FSupp. 1046 (S.D. N.Y. 1993), an action alleging injuries stemming from a builder’s alleged conspiracy to defraud homeowners, the court noted that the parties “misapprehend [ed] the key inquiry in determining when their RICO claim ‘-accrued by focusing on their discovery of the details of the alleged fraud scheme.” Id. at 1050. The court ruled that the starting point of the limitation period was when the plaintiffs discovered or should have discovered the injuries to their property arising from the fraud. (Citing Bankers Trust Co. v. Rhoades, 859 F2d 1096, 1103 (2nd Cir. 1988), the court stated, “[C]ongress tied the right to sue for damages inder § 1964 (c), not to the time of the defendant’s RICO violation, ut to the time when plaintiff suffers injury to ‘his business or proptty’ from the violation.” In Moeller, the court ruled that the statute "? limitation began to run when the homeowners made their last payment to the builder. Id. at 1051.

^ As the Seventh Circuit articulated: “[T]here is an important dis-j. action between discovery of an injury and discovery of a cause of btion. The pattern element of RICO gives rise to the cause of action, mt is not the injury itself.” (Citations and emphasis omitted.) McCool v. Strata Oil Co., 972 F2d 1452, 1465 (III) (A) (7th Cir. 1992). -Similarly, in the instant case, we hold that the trial court erred in determining that the injury was the alleged wrongful conduct, i.e., Powers’s alleged attempted extortion. Rather, the injury which Started the running of the five-year limitation period was the economic loss sustained by Southern as a result of Powers’s alleged wrongful conduct.

1 Having decided that the injury is Southern’s loss of the Yang Ming/K-Mart account, we focus on whether the evidence demonstrates, as a matter of law, that Southern knew or should have discovered its injury before July 22, 1991. If so, Southern’s suit, filed on July 22, 1996, is time-barred. On appeal from the grant of a summary judgment, we construe the evidence and all reasonable inferenees and conclusions that may be drawn from it most favorably to Southern, as the party opposing the motion. Patterson v. Proctor, 237 Ga. App. 244, 246 (1) (514 SE2d 37) (1999). In so doing, we hold that whether Southern discovered, or, in the exercise of reasonable diligence, should have discovered, the injury before July 22, 1991, is a question of fact which must be resolved by a jury.

Key employees of Southern testified that they were unaware of the interruption in business. Dexter Bland, Southern’s chief financial officer, testified that due to the volume of K-Mart cargo Southern continued to haul for other steamship lines, and the method by which the cargo was tracked, Southern would not have noticed the absence of the Yang Ming/K-Mart cargo. Daniel Mitchell, who supervised the Savannah terminal, gave similar testimony, noting that Southern continued to handle other containers for Yang Ming during the time period in question.

Hogan maintained throughout his deposition that he was unaware of the initial loss of the account prior to July 22. Similarly, the July 22, 1991, letter Hogan sent to Chou, Solar’s vice-president, reflects that Hogan was unaware on that date that Yang Ming had already replaced Southern as its carrier of K-Mart freight. Powers contends that Hogan’s deposition testimony is necessarily inconsistent with his interrogatory responses in this regard. In the responses, Hogan indicated that he had spoken to Jerry McNair, a Carolina representative, on numerous occasions between May and July 1991; that McNair admitted Powers’s scheme was illegal and unfair; that Yang Ming had agreed to go along with it; and that McNair regretted that Southern had lost the Yang Ming/K-Mart business. In his deposition, Hogan maintained that these conversations took place during November or December 1991.

Under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986), if a party offers a reasonable explanation for the contradiction, the court will not construe the testimony against him. Neither Hogan nor Southern has offered any explanation under oath for the contradiction between Hogan’s deposition and the corporation’s answers to its interrogatories. On the other hand, the rule which was reaffirmed in Prophecy Corp. requires that the testimony of a party be construed against him when it is self-contradictory. In the case at bar, there is evidence which is not testimony — the letter of July 22, 1991, sent by Hogan to Chou (Solar). The letter is documentary evidence, and it long predates the interrogatory answers and Hogan’s deposition. As the nonmovant, Southern is entitled to the possible inference from the letter that the corporation’s agents did not know of the injury until after the letter was written. Moreover, self-contradictory testimony is construed only against a party who is a witness. Hogan is not a party. In Prophecy Corp., the leading Georgia precedent on this subject, Charles Rossignol was one of the plaintiffs and arguably the alter ego of the corporate plaintiff, Charles Rossignol, Inc. Here, although Hogan is Southern’s majority shareholder, the evidence does not demonstrate as a matter of law that Hogan’s deposition testimony was in actuality the testimony of the party, Southern.

In summary, the record reveals four pieces of evidence favoring the nonmovant: the testimony of Bland, the testimony of Mitchell, the testimony of Hogan, and the letter of July 22, 1991. One important piece of evidence favors the movant: the sworn interrogatory answers of the party plaintiff, verified on February 19, 1997, by Hogan. The deposition of a corporation’s president and majority shareholder might well be construed against the corporation when the deposition testimony contradicts the corporation’s interrogatory answers verified by the same witness. But this record contains the additional testimony of Bland and Mitchell as well as nontestimonial, documentary evidence — the letter of July 22. On this record, a jury issue remains as to when Southern knew, or should have discovered, that it had been injured. Accordingly, the grant of summary judgment to Powers on statute of limitation grounds must be reversed.

2. Disposing of the issue of the accrual of the RICO action as to Southern’s initial injury does not end our inquiry, however. Southern contends that it suffered a new injury subsequent to the facsimile sent on December 17, 1991; the final loss of the Yang Ming/K-Mart account. Southern further alleges that this injury was caused by Herb’s alleged mail fraud and wire fraud. Southern urges us to adopt the “separate accrual” rule, pursuant to which, it contends, the five-year limitation period would start running anew from the date of the subsequent injury.

Under the separate accrual rule, “when a new and independent injury is incurred from the same violation, the plaintiff is again ‘injured in his business or property’ and. his right to sue for damages from that injury accrues at the time he discovered or should have discovered that injury.” Bankers Trust Co. v. Rhoades, supra at 1103. In Bankers Trust, the Second Circuit reasoned that the “separate accrual” rule flows logically from 18 USC § 1964 (c):

[C]ongress tied the right to sue for damages under § 1964 (c), not to the time of the defendant’s RICO violation, but to the time when plaintiff suffers injury to “his business or property” from the violation. Consequently, a plaintiff’s action accrues against a defendant for a specific injury on the date that plaintiff discovers or should have discovered that injury.

Id.

We find the Second Circuit’s logic persuasive, and we are inclined to adopt the separate accrual rule. Accordingly, we must determine whether the rule affords Southern any relief in this case. Southern contends, in essence, that the mail fraud and wire fraud constituted a pattern of racketeering activity, separate from the attempted extortion, which caused a separate injury. Powers contends that the injury sustained by Southern as a result of Herb’s alleged mail fraud and wire fraud was merely a continuation of Herb’s alleged attempts to extort commissions from Southern. Powers cites Pilkington v. United Airlines, 112 F3d 1532 (11th Cir. 1997), in which the Eleventh Circuit clarified the separate accrual rule: “under the accrual rule announced by this court in Bivens, a new RICO claim would begin to accrue when the plaintiffs knew, or should have known, about a new and independent injury and that the new and independent injury was the result of a pattern of racketeering activity.” Id. at 1535 (III) (A) (1).

In Pilkington, nonstriking airline pilots alleged that they suffered continuous, illegal harassment, including physical threats, vandalism, assault and battery, and the like, at the hands of union pilots who were on strike. The court held that the plaintiffs’ later injuries were merely “a continuation of the initial injury that resulted from the harassment. With each act of harassment the adverse impact on the plaintiffs’ job performance may accumulate, however, the injury is not new and independent.” (Emphasis omitted.) Id. at 1537-1538 (III) (A) (2).

The instant case is distinguishable from Pilkington. Southern initially lost the Yang Ming/K-Mart account from May 20, 1991, through early August and then regained the business. Southern alleges that it would have retained the account but for a campaign of mail fraud and wire fraud engaged in by Powers, culminating in the facsimile and the ultimate loss of the account sometime in December.

We would thus be inclined to hold that this ultimate loss is a new and independent injury that restarts the limitation clock. However, we are persuaded otherwise by Powers’s argument that its alleged acts of mail fraud and wire fraud in the form of its communications to K-Mart cannot constitute predicate acts of racketeering, for the reason that Southern cannot show that it relied to its detriment on any misrepresentations contained in the communications.

Decided October 11, 2001

Ladson & Suthers, M. Brice Ladson, for appellant.

Oliver, Maner & Gray, Patricia T. Paul, Cook, Noell, Tolley, Bates & Michael, Edward D. Tolley, Greenberg & Traurig, Robert E. Spears, Jr., Michael J. King, Kim T. Stephens, for appellee.

To recover under a private cause of action in RICO, a plaintiff must show that the injury suffered flowed directly from the predicate offense. More specifically, when the alleged predicate act is mail or wire fraud, the plaintiff must have been a target of the scheme to defraud and must have relied to his detriment on misrepresentations made in furtherance of that scheme.

(Citations and punctuation omitted.) Gentry v. Volkswagen of America, 238 Ga. App. 785, 791 (4) (521 SE2d 13) (1999). Accord Longino v. Bank of Ellijay, 228 Ga. App. 37, 40-41 (2) (491 SE2d 81) (1997).

Southern has not demonstrated that it relied to its detriment on any communication made by Powers; therefore, Southern may not rely upon Powers’s alleged acts of mail fraud and wire fraud in support of its argument that the injury suffered after December 17, 1991, constitutes a new and independent injury for the purpose of restarting the limitation clock.*

Judgment reversed.

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

       In Blalock, we adopted the Eleventh Circuit’s “injury and pattern” discovery rule, under which a civil RICO claim accrues only when the claimant discovers, or should discover, both an injury and a pattern of RICO activity. Bivens Gardens Office Bldg. v. Barnett Bank, 906 F2d 1546, 1554-1555 (11th Cir. 1990). In Rotella v. Wood, 528 U. S. 549, 553 (120 SC 1075, 145 LE2d 1047) (2000), the United States Supreme Court rejected the “pattern discovery” element of this rule, thereby overruling Blalock, but that does not affect our inquiry. Rotella interpreted the federal RICO statute, and, in any event, our inquiry in this case focuses solely on the injury element of the accrual rule.

       The district court declined to address this issue. Southern Intermodal Logistics, 10 FSupp.2d at 1357, n. 41.

       See Waldschmidt v. Crosa, 177 Ga. App. 707, 711 (2) (340 SE2d 664) (1986).

       We do not decide whether Southern knew, or should have discovered, that its injury was part of a pattern of racketeering activity.

       The evidence is clear that Southern sustained economic loss when it was replaced by another carrier from May 20 through early August.

       While we granted Powers’s motion to file a supplemental brief, the arguments contained therein further convince us that disputed factual issues mandate the reversal of summary judgment.

       It is necessary to address this issue in the event the jury determines that Southern knew, or should have discovered, its initial injury.

       No Georgia appeals court has addressed this argument.

       The Eleventh Circuit adopted the “separate accrual” rule in Bivens Gardens Office Bldg. v. Barnett Bank, supra at 1552. See also Pilkington v. United Airlines, 112 F3d 1532 (11th Cir. 1997).

        Interagency, Inc. v. Danco Financial Corp., 203 Ga. App. 418 (417 SE2d 46) (1992), on which Southern relies, is inapposite, as it does not involve mail fraud or wire fraud.

       In a reply brief, Southern asserts that the mail fraud and wire fraud are not the only predicate offenses which proximately caused the subsequent injury. However, this contradicts Southern’s previous argument, and we will not consider it.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A01A1643.
    CHILDRESS v. THE STATE.
    (554 SE2d 818)
   Eldridge, Judge.

Jason Michael Childress was charged with the offenses of driving under the influence of alcohol to the extent he was a less safe driver (OCGA § 40-6-391 (a) (1)), driving with more than 0.10 percent blood alcohol content (OCGA § 40-6-391 (a) (5)), reckless driving (OCGA § 40-6-390), and failure to maintain lane (OCGA § 40-6-48). Childress moved to suppress all evidence obtained during his arrest, arguing that the arresting officer did not have probable cause to stop and arrest him and that he was not read his implied consent warnings. After a hearing, the trial court denied Childress’s motion to suppress. Following a bench trial, the trial court found Childress guilty of DUI — less safe driver and failure to maintain lane. It is from this conviction that Childress appeals. Finding no error, we affirm.

1. Childress enumerates as error the denial of his motion to suppress. On appeal Childress’s sole argument is that his arrest was without probable cause.

The appeal of a trial court’s ruling on a motion to suppress is governed by three principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support those findings. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation and punctuation omitted.) Perez v. State, 249 Ga. App. 399-400 (547 SE2d 699) (2001).

Viewed in this light, the evidence shows that on October 22, 1999, Officer Teddy Ray Gribbins of the Henry County Police Department was patrolling the area of State Highway 155 and Kellytown Road. It was around midnight when Officer Gribbins initially traveled down Highway 155. At this time he did not notice any cars on the side of the highway. At approximately 2:48 a.m., Officer Gribbins was again traveling south down Highway 155. At this time, he noticed a red Nissan Sentra automobile which appeared to have run off the road. The vehicle had flat tires, “some damage to the front and sides and the passenger side window was busted out.” Officer Gribbins did not see any debris in the roadway near the scene, nor did he see anyone nearby. Officer Gribbins checked the tag to make sure the car was not stolen, and because he had not seen anyone walking before he came upon the vehicle, he decided to continue south on Highway 155 to see if the driver needed assistance.

About two miles south, Officer Gribbins noticed Childress sitting by the pay phone at a Chevron gas station. Officer Gribbins approached Childress without engaging his siren and emergency equipment. As Childress stood up, Officer Gribbins noticed that he was unsteady on his feet. Officer Gribbins testified that Childress’s voice was slurred, his eyes were red and glassy, and he smelled strongly of an alcoholic beverage. Childress admitted that he had been driving the red Nissan Sentra and stated that he had run off the road when the tires on his vehicle had blown after hitting some debris. Childress further admitted to Officer Gribbins that he drank a couple of beers earlier.

When Officer Gribbins asked Childress to perform field sobriety tests, Childress refused and became argumentative. Officer Gribbins testified that Childress was “getting very loud and he kept walking toward me. We ended up back beside my car.” At this point, because Childress was yelling and leaning up against Officer Gribbins’s car, the police dog which was in Officer Gribbins’s car became upset and started barking. Based upon Officer Gribbins’s training and experience as a police officer and in investigating accidents and his observations at the scene, Officer Gribbins opined that Childress was under the influence of alcohol and less safe to drive and that he had ran off the road, lost control of his vehicle, and struck the ditch which bent the right-side rims and flattened the tires of Childress’s vehicle. Relying on this evidence, Officer Gribbins arrested Childress for DUI and failure to maintain lane.

Under our law, there are three levels of police-citizen encounters. In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. This tier provides no Fourth Amendment protection. The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity. The third tier of police-citizen encounters includes full-scale arrests that must be supported by probable cause.

(Citations and punctuation omitted.) State v. Burks, 240 Ga. App. 425, 426 (1) (523 SE2d 648) (1999).

Here, the evidence shows that Officer Gribbins’s initial approach of Childress was without his blue lights and siren and was solely to determine if he were a motorist in need of assistance. Hence, Officer Gribbins’s initial approach to Childress fell under the first level of a police-citizen encounter. While this first level questioning was taking place, Officer Gribbins observed that Childress was unsteady on his feet, his voice was slurred, his eyes were red and glassy, and he smelled strongly of an alcoholic beverage. These observations, along with Childress’s admissions that he was the driver of the red Nissan Sentra and that he had consumed several beers and Childress’s implausible explanation that he had run over some debris in the road, which debris Officer Gribbins had noted was not present, constituted sufficient probable cause to arrest Childress for DUI — less safe driver and failure to maintain lane. See McClain v. State, 226 Ga. App. 714 (487 SE2d 471) (1997).

2. Childress challenges both the trial court’s denial of his motion for directed verdict and the sufficiency of the evidence to sustain his conviction. The test established in Jackson v. Virginia, 443 U S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the appropriate one to use when the sufficiency of the evidence is challenged, whether the challenge is from the denial of a directed verdict or the denial of a motion for new trial based upon alleged insufficiency of the evidence. Moon v. State, 244 Ga. App. 443 (535 SE2d 771) (2000).

The evidence, as set forth in Division 1, along with Officer Gribbins’s testimony at trial that Childress stated to him that he had not had anything to drink during the time period between when he had abandoned his vehicle and the time Officer Gribbins spoke with him at the Chevron station, was sufficient to allow a rational trier of fact to conclude that Childress was guilty beyond a reasonable doubt of the offenses of DUI — less safe driver and failure to maintain a lane. Jackson v. Virginia, supra. Childress’s testimony to the contrary that the only time he consumed any alcoholic beverage was during his walk to the Chevron station is a matter of witness credibility for the finder of fact, in this case the trial judge.

An appellate court does not weigh the evidence or determine witness credibility but only determines that the evidence to convict is sufficient under the standard of Jackson v. Virginia, [supra]. Conflicting testimony is a matter of credibility for the [finder of fact] to resolve. As long as some competent evidence exists, even though contradicted, to support each fact necessary to make out the State’s case, we will uphold the [factfinder’s] verdict.

(Citation and punctuation omitted.) Wheeler v. State, 236 Ga. App. 197, 198 (1) (511 SE2d 564) (1999).

Decided October 11, 2001.

James P. Brown, Jr., for appellant.

Jason M. Childress, pro se.

John T. Rutherford, Solicitor-General, for appellee.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).


author: Phipps, Judge.

text:
    A01A1711.
    BROWN v. WALKER.
    (555 SE2d 223)
   Phipps, Judge.

Robert S. Brown appeals the trial court’s grant of a directed verdict in favor of attorney Ralph W. Walker in this negligence case. Because we agree with the trial court that Brown’s claim was barred by the statute of limitation, we affirm.

Brown and his father jointly owned property in Cobb County. Brown decided to purchase his father’s interest in the property. To that end, Brown refinanced the property with a loan from Lake City Mortgage, Inc. Lake City Mortgage contracted with Walker’s law firm to handle the loan transaction. The closing occurred on November 3, 1995. Walker averred that, as part of the transaction, he prepared a quitclaim deed conveying Brown’s father’s interest in the property to Brown, but the deed “was lost or misplaced” and not recorded.

Brown sued Walker in 1999 for negligently failing to obtain and record the quitclaim deed. Brown alleged that because his father remained listed as part-owner of the property, his father’s creditors had been able to obtain liens against the property. These liens allegedly prevented Brown from selling the property, resulting in financial loss. The case was tried before a jury. At the close of Brown’s evidence, the trial court directed a verdict for Walker.

1. One ground for the directed verdict was that Brown’s claim was untimely. The statute of limitation for an action against an attorney sounding in tort is two years. In this case, the statute began running at the time of the alleged negligent failure to obtain and record the quitclaim deed in November 1995, yet Brown did not file his complaint until April 1999. Thus, the trial court correctly determined that the complaint had been filed after the applicable statute of limitation had run.

Decided October 11, 2001.

N. William Pettys, Jr., for appellant.

Cordle & Ditchen, Ellen A. Cordle, for appellee.

Brown argues that Walker waived his statute of limitation defense. Walker raised the defense in his answer but did not include it in the pretrial order, which was adopted by the trial court. Walker raised the statute of limitation defense again during argument on his motion for directed verdict. Brown protested that Walker had waived the defense and that he was being “ambush [ed]” by Walker’s attempt to resurrect it at trial. The trial court asked Brown whether the omission of the defense from the pretrial order had caused him “not to call any witnesses or forgo any evidence, take any different position than [he] would have taken other than what [he] did in this case.” Brown said that if he had known Walker intended to pursue the defense, he might have amended his complaint. Walker then pointed out that Brown could have amended his complaint after Walker raised the defense in his answer. The trial court apparently agreed with Walker and ruled that the complaint was time-barred.

Under OCGA § 9-11-16 (b), a pretrial order entered by the court “controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” We will not disturb a trial court’s decision to modify a pretrial order absent an abuse of discretion. Here, the court implicitly modified the pretrial order to include the statute of limitation defense only after inquiring into whether Brown had been harmed by Walker’s failure to include it in the pretrial order. Brown failed to show any prejudice. Accordingly, we find no abuse of discretion in the trial court’s implicit modification of the pretrial order and consideration of Walker’s statute of limitation defense.

2. Because the trial court properly ruled that the complaint was untimely, we need not consider the other grounds for the grant of the directed verdict.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       OCGA § 9-3-33; Plumlee v. Davis, 221 Ga. App. 848, 852 (2) (473 SE2d 510) (1996).

       See Morris v. Atlanta Legal Aid Society, 222 Ga. App. 62, 65 (3) (473 SE2d 501) (1996) (action alleging legal negligence accrues “from the date of the attorney’s breach of duty, that is, from the date of the alleged negligent or unskillful act”) (punctuation omitted).

        Whorton v. Boatwright, 233 Ga. App. 369, 371 (504 SE2d 216) (1998); Khoury Constr. Co. v. Earhart, 191 Ga. App. 562 (1) (382 SE2d 392) (1989).

       See Driggers v. Campbell, 247 Ga. App. 300, 302 (1) (543 SE2d 787) (2000) (where affirmative defense was raised before trial, plaintiff was not unfairly surprised by amendment of pretrial order at close of plaintiff’s case to include defense).


author: Mikell, Judge.

text:
    A01A1738.
    HARRIS v. THE STATE.
    (555 SE2d 485)
   Mikell, Judge.

William Justin Harris was convicted of possession of methamphetamine. On appeal, he claims that (1) he was stopped and searched in violation of his Fourth Amendment rights, (2) the evidence was insufficient to support the verdict, (3) the prosecution improperly put his character in issue, and (4) he received ineffective assistance of counsel. We reverse because the prosecution put Harris’s character in issue in direct contravention of the trial court’s pretrial ruling, and because the trial court gave an erroneous instruction to the jury in connection with the improper character evidence.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. So viewed, the evidence shows that the Dade County Sheriff’s Office and other law enforcement agencies set up a checkpoint on the Slygo Road exit off Interstate 59. The roadblock was set up to “make the road safe,” and to look for DUI drivers and other criminal offenses. The police placed a sign by the interstate before the exit which stated, “Prepare to stop, drug checkpoint ahead,” although there was no checkpoint on the interstate itself. The actual checkpoint was situated on the exit after the drug checkpoint sign with the anticipation that drug users and drug runners would get off on that exit in order to avoid being stopped at the phantom “drug checkpoint” on the interstate.

Harris was a passenger in a car which was stopped at the Slygo exit checkpoint. An officer noticed that Harris was extremely nervous and asked the K-9 unit to run a dog around the car, and the dog alerted to the presence of drugs. Officers asked the occupants to step out of the car, and they conducted a pat-down of Harris. When Harris took his shoes off, the officers conducting the search saw the end cap of a small flashlight directly at his feet. No one saw Harris drop the cap, but no officer had seen the cap before Harris began to take off his shoes. Inside the cap were three bags containing methamphetamine. The police expected that drugs would be thrown out of a few of the vehicles before being stopped at the checkpoint; accordingly, several officers were assigned to do nothing but walk up and down the exit ramp looking for discarded contraband. None of the approximately 15 law enforcement officials in the area had noticed the flashlight cap before it was seen at Harris’s feet.

1. Harris claims that the checkpoint violated his Fourth Amendment rights against unreasonable searches and seizures. However, this claim may not be considered for the first time on appeal. Harris made no written motion to suppress before trial and failed to object to the state’s tender of the methamphetamine into evidence.

2. Harris argues that the evidence was insufficient to support his conviction. We disagree. Harris emphasizes that none of the officers saw the flashlight cap in his actual possession, and that other motorists had thrown items out of their vehicles as they approached the checkpoint. He maintains that anyone could have dropped the cap, that there is no evidence of actual possession, and that constructive possession requires more than a showing of mere proximity. However, the evidence, and the inferences that can be logically derived from the evidence, shows more than mere spatial proximity between Harris and the methamphetamine. The flashlight cap was found directly at Harris’s feet, and there were no other persons in the immediate vicinity aside from the police. Although there were several officers in the area, none of them saw the cap until Harris removed his shoes. Police were assigned to look for contraband on the ground, and they had not previously seen the cap. Harris testified on cross-examination that he was a methamphetamine user and that he had used the drug only a few days before his arrest. We find that the evidence was sufficient for a rational trier of fact to find Harris guilty beyond a reasonable doubt of possession of methamphetamine.

3. Harris claims that the prosecution improperly put his character into evidence. We agree. Harris made a motion in limine before trial to exclude testimony that on the day of the arrest he was en route home from Chattanooga, Tennessee, where he had appeared in court in response to a robbery charge. The trial court correctly granted Harris’s motion, noting that the Tennessee court appearance was not relevant. Nevertheless, the prosecutor asked Harris’s wife, who had been with him in the car, and who had testified on direct examination that they had been to court earlier and were on their way back home, to repeat her testimony that she had been in court with her husband and then asked her: “Q: And what had ya’ll been to court for that day? A: It was aggravated robbery.” Defense counsel objected. At a bench conference, the trial court told the prosecutor that his line of questioning was improper. The trial court then gave the jury a limiting instruction on similar transaction evidence, which included an instruction that “The law provides that evidence of other offenses committed by this Defendant which are similar or connected to the offense for which the Defendant is on trial may be admissible.”

Decided October 11, 2001.

Cook & Connelly, Rex B. Abernathy, for appellant.

Herbert E. Franklin, Jr., District Attorney, Bruce E. Roberts, Assistant District Attorney, for appellee.

This sequence of events was fatally prejudicial to Harris’s defense. First, the testimony solicited by the prosecution regarding Harris’s court appearance in Chattanooga on a robbery charge was irrelevant and reflected badly on his character. “It is error in a criminal case for the State to place the defendant’s character in issue [when] he has not voluntarily chosen to do so.” Secondly, if the prosecution solicits excluded prejudicial testimony, the trial court is, upon objection and if it chooses not to declare a mistrial, required to direct the jury to disregard such testimony. Here, upon objection by defense counsel to the prosecution’s questioning, the trial court did not instruct the jury to ignore the prejudicial testimony, but instead immediately instructed the jury on similar transaction evidence although no similar transaction evidence had been introduced. This instruction infers that the jury had heard evidence that Harris had committed another offense when no such evidence was introduced. Finally, the evidence supporting Harris’s guilt is not overwhelming, and we have found that upon the prosecution’s intentional introduction of irrelevant and inadmissible evidence, “we will not speculate to the prejudice of the defendant by concluding the error must have been harmless.” Harris’s conviction must be reversed.

4. Finally, Harris argues that he received ineffective assistance of counsel. In view of Division 3 of this opinion, the claim is moot.

Judgment reversed.

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

       OCGA § 16-13-30.

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

       See Duitsman v. State, 212 Ga. App. 348, 349 (2) (441 SE2d 888) (1994); Gee v. State, 210 Ga. App. 60, 61 (3) (435 SE2d 275) (1993).

        Whipple v. State, 207 Ga. App. 131, 132 (1) (427 SE2d 101) (1993).

        See Aldridge v. State, 237 Ga. App. 209, 211-212 (1) (515 SE2d 397) (1999).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Bowen v. State, 123 Ga. App. 670 (182 SE2d 134) (1971).

        Mazo v. State, 224 Ga. App. 744, 745 (1) (481 SE2d 831) (1997).

        Hammond v. State, 139 Ga. App. 820, 822 (1) (229 SE2d 685) (1976).


text:
    A01A1747.
    SATILLA COMMUNITY SERVICE BOARD v. SATILLA HEALTH SERVICES, INC. et al.
    (555 SE2d 188)
   Eldridge, Judge.

This is an interlocutory appeal from the denial of the motions for summary judgment of Satilla Community Service Board (“SCSB”), third-party defendant and fourth-party defendant, to the third-party action by C. David Joyner, guardian of the property of Patricia Fields, defendant and third-party plaintiff, and the fourth-party action brought by John F. Michaels, M.D., and Satilla Health Services, Inc., third-party defendants and fourth-party plaintiffs. We affirm as to the denial of summary judgment as to implied contract indemnity and reverse as to denial of summary judgment for sovereign immunity as to tort contribution and workers’ compensation as the exclusive remedy for implied indemnity in tort and for contribution for joint tortfeasors.

SCSB contracted with Satilla Park Hospital, a subdivision of Satilla Health Services, to accept and treat SCSB’s clients/patients for mental health services. Fields, a SCSB client, was admitted as an emergency psychiatric patient to Satilla Park Hospital operated by Satilla Health Services and staffed by Dr. Michaels. On March 4, 1998, Fields was released from the hospital. On March 5,1998, under her treatment plan devised by SCSB and Dr. Michaels, Fields went to SCSB; there, she stabbed to death Marie W. Rowell, her SCSB caseworker, who was acting in the scope of her employment for SCSB.

Rowell’s estate and her child’s guardian sued Joyner, as guardian of the property of Fields, for the tort and wrongful death. On May 19, 2000, Joyner brought a third-party action against Dr. Michaels, Fields’ psychiatrist at Satilla Park Hospital, and against Satilla Health Services for contribution and implied indemnity. Dr. Michaels and Satilla Health Services, in turn, brought a fourth-party action against SCSB. On May 19, 2000, Joyner amended the third-party action to add SCSB as an additional third-party defendant. SCSB filed a motion for summary judgment against the third- and fourth-party actions, which was denied.

SCSB contends that the trial court erred in denying its motions for summary judgment as to the third- and fourth-party actions against it.

1. (a) SCSB contends that it is entitled to sovereign immunity from tort liability as an agency or department of the state. We agree.

Under Article I, Section II, Paragraph IX (d) of the 1983 Constitution of Georgia and the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., the State of Georgia has sovereign immunity for itself, its officers, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions except to the extent of statutory waivers of such immunity. Miller v. Ga. Ports Auth., 266 Ga. 586, 588-589 (470 SE2d 426) (1996). A community service board is either a state agency or department within the constitution and Georgia Tort Claims Act and is subject to sovereign immunity to the extent it is not waived. See Youngblood v. Gwinnett Rockdale &c. Svc. Bd., 273 Ga. 715, 716-717 (545 SE2d 875) (2001). Under OCGA § 50-21-24 (7), the “assault and battery” exclusion from waiver of sovereign immunity extends not only to state employees but also to other parties that are tortfeasors. “The focus, therefore, is not on the duty allegedly breached by the State but on the act causing the underlying loss regardless of who committed the act.” Id. at 717 (3); see also Dept. of Human Resources v. Coley, 247 Ga. App. 392, 394 (1) (544 SE2d 165) (2000). Therefore, SCSB is entitled to summary judgment as to any tort theory of contribution and implied indemnity for a tort in the nature of an assault and battery, including murder. Young-blood v. Gwinnett Rockdale &c. Svc. Bd., supra (barring contribution for assault and battery among joint tortfeasors); see generally, as to the right of contribution among joint tortfeasors, Marchman & Sons, Inc. v. Nelson, 251 Ga. 475, 476-477 (306 SE2d 290) (1983); Rolleston v. Cherry, 226 Ga. App. 750, 754 (2) (a) (487 SE2d 354) (1997) (joint tortfeasors liable for contribution and indemnity). Thus, the trial court should have granted summary judgment as to the third-party claim of Joyner and the fourth-party action of Dr. Michaels and Satilla Health Services sounding in tort for contribution or common law indemnity for tort.

(b) SCSB has no sovereign immunity as to claims sounding in breach of contract or indemnity as a contractual right, because the constitution waived sovereign immunity based upon theories of contract liability. 1983 Ga. Const., Art. I, Sec. II, Par. IX (c); Youngblood v. Gwinnett Rockdale &c. Svc. Bd., supra at 717-718 (4); Miller v. Ga. Ports Auth., supra at 588-589; Waters v. Glynn County, 237 Ga. App. 438, 439 (1) (514 SE2d 680) (1999).

Fields was a client of SCSB for whom it contracted with Satilla Health Services to treat her. Satilla Health Services had a written contract with SCSB to treat clients sent for mental health services, i.e., Fields. Thus, Joyner on Fields’ behalf raised the issue that she was a third-party beneficiary of this written contract and that SCSB breached the contract, requiring SCSB to do client screens, to make a history, to do physical exams, and to provide medication, which failure contributed to Dr. Michaels’ failure to hospitalize Fields or to properly medicate her as a danger to others, because of SCSB’s failure to provide an adequate case history, indicating her prior violent propensities and criminal history. OCGA § 9-2-20 (b); Youngblood v. Gwinnett Rockdale &c. Svc. Bd., supra.

Satilla Health Services had a contractual relationship with SCSB, which gave rise to this action, and on which it sued SCSB for contractual indemnity even though the contract did not expressly confer such a right. In fact, Satilla Health Services expressly indemnified SCSB from the acts or omissions of Satilla Health Services, its agents, employees, and subcontractors. Such express indemnity would include separate or concurrent acts or omissions of Satilla Health Services with SCSB, involving Rowell’s murder by Fields. However, the contract said nothing regarding acts or omissions of concurrent negligence of SCSB, Satilla Health Services, and subcontractor Dr. Michaels which caused injury or death. Further, the contract was silent as to indemnity by SCSB to Satilla Health Services for the acts or omissions of SCSB’s agents, employees, and subcontractors concurring in any injury or death. Thus, Satilla Health Services’ fourth-party action sounds in implied contract of indemnity.

Dr. Michaels, as a subcontractor of Satilla Health Services, was not a signer of the agreement between SCSB and Satilla Health Services; however, Satilla Health Services acted only through its agents, employees, and subcontractors, as contemplated by the contract and the express indemnity to SCSB. SCSB expected Satilla Health Services to function in such fashion, because the written agreement stated that “[n]othing contained in this contract shall be construed to constitute [Satilla Health Services] or any of its employees, agents, or subcontractors as a partner, employee, or agent of [SCSB]. . . .” Therefore, Dr. Michaels also was a third-party beneficiary of the contract mandating SCSB’s duties to screen Fields prior to admission, to do a history of Fields prior to her admission, to do physical examinations of Fields prior to admission, to provide medication prescribed by Satilla Health Services’ physicians for Fields after admission, to develop a treatment and discharge plan in conjunction with Satilla Health Services for Fields after admission, and to daily review Fields’ status with Satilla Health Services.

In order for a third party to have standing to enforce a contract under (OCGA § 9-2-20 (b)) it must clearly appear from the contract that it was intended for his (or her) benefit. The mere fact that (the third party) would benefit from [the] performance of the agreement is not alone sufficient. Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389, 391 (1) (367 SE2d 278) (1988) [(indemnity agreement)].

(Punctuation and emphasis omitted.) Burton v. DeKalb County, 209 Ga. App. 638, 639 (434 SE2d 82) (1993).

It is axiomatic that a single act or course of conduct may constitute not only a breach of contract but an independent tort as well, if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him. Such an independent harm may be found because of the relationship between the parties, or because of defendant’s calling or because of the nature of the harm. However, not all breaches of contract are also independent torts: where defendant’s negligence ends merely in nonperformance of the contract and where defendant is not under any recognized duty to act apart from contract, the courts generally still see no duty to act affirmatively except the duty based on — and limited by — defendant’s consent. In those circumstances, an action in tort may not be maintained for what is a mere breach through non-action or through ineffective performance (which is the same thing) of a contract duty — the duty must arise independent of contract to constitute a tort.

(Citations, punctuation and emphasis omitted.) Sheppard v. Yara Engineering Corp., 248 Ga. 147, 148-149 (281 SE2d 586) (1981).

For the breach of a contract to give rise to a tort action, such breach of contract must also constitute a violation of a duty imposed by law to the public either by statute, law, or arising from the relationship created by contract, and there must be misfeasance rather than nonfeasance in failing to perform the contract for a tort to arise. Peterson v. First Clayton Bank &c. Co., 214 Ga. App. 94, 99-100 (1) (b) (447 SE2d 63) (1994); Commercial Bank &c. Co. v. Buford, 145 Ga. App. 213, 214-215 (243 SE2d 637) (1978); Kenney v. Piedmont Hosp., 136 Ga. App. 660, 662-663 (1) (222 SE2d 162) (1975). “A study of [these] authorities and similar cases shows that in every instance where such tort cause of action was upheld there was negligence in the performance of a duty owed either apart from a contract or arising from the contract rather than from a failure to carry out the contract itself.” (Citation and punctuation omitted.) Kenney v. Piedmont Hosp., supra at 662 (1). “Generally, a mere breach of a valid contract amounting to no more than a failure to perform in accordance with its terms does not constitute a tort.” Mauldin v. Sheffer, 113 Ga. App. 874, 877 (150 SE2d 150) (1966). Here, the contract rights violated by SCSB were a failure to perform duties imposed by contract; therefore, this is not an action sounding in tort, arising from contract. See Burton v. DeKalb County, supra at 639 (duty of owner/landlord under contract to maintain premises in a safe condition for invitees). Thus, the denial of summary judgment was proper on this issue.

2. SCSB contends that, since Rowell’s dependent received death benefits under workers’ compensation, the exclusive remedy immunity of workers’ compensation bars the third- and fourth-party actions against it for anything other than contractual indemnity.

Because of [OCGA § 34-9-11], an employer cannot be held liable as a joint tortfeasor with a third party, even when the employer’s negligence contributes to the employee’s injuries. Thus, an employer who pays workers’ compensation benefits to an employee is immune from liability as a third-party defendant in the employee’s tort action.

(Citations omitted.) Ga. Dept. of Human Resources v. Joseph Campbell Co., 261 Ga. 822, 823 (1) (411 SE2d 871) (1992). Implied indemnity as a joint tortfeasor for contribution is also barred. Id. at 823 (2).

The Workers’ Compensation Act does not bar statutorily granted indemnification. OCGA § 46-3-40 (b); Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 270 Ga. 464, 466 (511 SE2d 160) (1999). “[I]f the third party and employer stand in a special legal relationship that carries with it the obligation of the employer to indemnify the third party, this relational right of indemnity may be enforced without offending the exclusive-remedy clause.” (Citation omitted.) Id. at 465-466. Further, the Workers’ Compensation Act does not bar a defendant from enforcing a contractual right of indemnity against the employer who has paid workers’ compensation benefits to the employee or to the employee’s beneficiary. See Ga. Dept. of Human Resources v. Joseph Campbell Co., supra at 823; Seaboard Coast Line R. Co. v. Maverick Materials, 167 Ga. App. 160, 161-163 (305 SE2d 810) (1983); see also Gen. Tel. Co. &c. v. Trimm, 252 Ga. 95, 97 (311 SE2d 460) (1984); Sargent Indus. v. Delta Air Lines, 251 Ga. 91, 94 (303 SE2d 108) (1983).

The great majority of cases hold that, when the relation between the parties does not spring from a contract . . . , the third party cannot recover indemnity from the employer, since an active or primary wrongdoer does not have an implied obligation, capable of penetrating the exclusiveness rule of workmen’s compensation law, to indemnify a passive or secondary tortfeasor.

(Citation and punctuation omitted.) Ga. Dept. of Human Resources v. Joseph Campbell Co., supra at 823 (2). Further, Satilla Health Services gave an express indemnification to SCSB for the negligence of Satilla Health Services, its agents, employees, and subcontractors. Therefore, an identical reciprocal implied contractual indemnity arose that SCSB indemnify Satilla Health Services for the acts or omissions of SCSB, its agents, employees, and subcontractors. In this case both third-party and fourth-party actions arose out of a contractual relationship between the parties and SCSB, although there was no express contractual indemnity provision to them from SCSB.

Georgia has long recognized implied contract indemnity. Central of Ga. R. Co. v. Lester, 118 Ga. App. 794, 801 (2) (165 SE2d 587) (1968); see also Robert & Co. Assoc. v. Pinkerton & Laws Co., 120 Ga. App. 29, 34 (2) (169 SE2d 360) (1969); Central of Ga. R. Co. v. Macon R. &c. Co., 9 Ga. App. 628, 631 (2) (71 SE 1076) (1911). “The duty to indemnify may arise from express or implied agreement to indemnify, or may arise by operation of law, independently of contract.” Central of Ga. R. Co. v. Macon R. &c. Co., supra at 631 (2). However, the parties must be in a contractual relationship, as in this case. Further, “[c]ontracts indemnifying one against the consequences of his own negligence are not favored, but will be given effect where the intent is expressed in plain and unequivocal terms.” (Citation omitted.) Rome Builders Supply v. Rome Kraft Co., 104 Ga. App. 488-489 (3) (122 SE2d 133) (1961); see also Batson-Cook Co. v. Ga. Marble &c. Co., 112 Ga. App. 226, 230 (144 SE2d 547) (1965). These third-party and fourth-party actions “may be viewed as a breach of an implied contract of indemnity and that we may draw from the general law of indemnity to assist us in arriving at the just and fair conclusion.” Alterman Foods v. G.C.C. Beverages, 168 Ga. App. 921, 923 (310 SE2d 755) (1983).

The implied contractual indemnification in this case is not the kind of implied indemnification that Georgia courts will disallow, i.e., where the indemnitor indemnifies the indemnitee against the indemnitee’s sole negligence. Rome Builders Supply v. Rome Kraft Co., supra at 488-489; Batson-Cook Co. v. Ga. Marble &c. Co., supra at 230. “Georgia courts never imply an agreement to indemnify another for one’s own negligence in the absence of express language.” (Punctuation omitted.) Central of Ga. R. Co. v. Lester, supra at 801 (2); see also Park Pride Atlanta v. City of Atlanta, 246 Ga. App. 689, 691 (541 SE2d 687) (2000). “Due to public policy concerns, absent explicit language to the contrary, an indemnity agreement cannot be interpreted to hold an indemnitee harmless from its own negligence. Ga. State Tel. Co. v. Scarboro, 148 Ga. App. 390, 391 (2) (251 SE2d 309) (1978).” Park Pride Atlanta v. City of Atlanta, supra at 690-691 (1).

However, although language in an agreement may not be sufficiently explicit to indemnify the indemnitee against liability resulting strictly from its own negligence alone, such less than explicit language may be sufficient to require indemnification for damages resulting from the combination of the indemnitee’s negligence and the indemnitor’s negligence. Ga. State Tel. Co. v. Scarboro, supra at 391; Arthur Pew Constr. Co. v. Bryan Constr. Co., 148 Ga. App. 114, 115 (3) (251 SE2d 105) (1978) (incorporation by reference from contract between general and owner to apply to subcontractor); Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 717-718 (3) (234 SE2d 363) (1977); Peacock Constr. Co. v. Montgomery Elevator Co., 121 Ga. App. 711, 713-714 (3) (175 SE2d 116) (1970). Thus, an implied contract of indemnity can arise where the indemnification goes only to the acts and omissions of the indemnitor-tortfeasor, its agents, employees, and subcontractor or the concurrent negligence of the indemnitor and indemnitee. See generally Ga. Ports Auth. v. Central of Ga. R. Co., 135 Ga. App. 859, 862-865 (219 SE2d 467) (1975) (allegedly ambiguous written indemnity agreement). The trial court properly denied summary judgment.

Decided October 11, 2001

Whelchel, Brown, Readdick & Bumgartner, Richard K. Strickland, for appellant.

Taylor, Odachowski & Sperry, Philip R. Taylor, Hall, Booth, Smith & Slover, Michael G. Frick, W. Grady Pedrick, John R. Thigpen, Sr., for appellees.

3. SCSB contends that Fields’ third-party action for implied contract indemnification is barred by the statute of limitation, because it is predicated upon a theory of medical malpractice.

“Where no funds have yet been expended, a party’s right to seek indemnification has not yet actualized.” (Citation omitted.) Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 775 (2) (503 SE2d 649) (1998). “Since there are claims against [the indemnitee] presently pending trial and no funds have been expended by [the indemnitee] relating to these claims so as to accrue a right of indemnity against [the indemnitor], he has not incurred any ‘actual legal liability’ in order to assert a claim for indemnity at this point in the litigation.” (Citation omitted.) Carr v. Nodvin, 178 Ga. App. 228, 233 (3) (342 SE2d 698) (1986). The statute of limitation for contribution or indemnity rims after 20 years from settlement or final judgment. OCGA § 9-3-22; Rolleston v. Cherry, supra at 755 (2) (b); Krasaeath v. Parker, 212 Ga. App. 525, 526 (1) (441 SE2d 868) (1994).

However, if the right of contribution or indemnity was based upon medical malpractice by a joint tortfeasor, then the statute of repose would abrogate any action commenced more than five years after the date on which the act or omission occurred. See OCGA § 9-3-71 (b); Krasaeath v. Parker, supra at 526-527. On May 19, 2000, this third-party action was commenced, regarding a medical malpractice which occurred on or prior to March 4, 1997, well within the statute of repose. Thus, denial of the motion for summary judgment was proper.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Miller, J., concur.


text:
    A01A1936.
    BURNS v. THE STATE.
    (555 SE2d 209)
   Eldridge, Judge.

A Fulton County jury found Dargan Bums guilty of violating OCGA § 40-6-271, duty upon striking an unattended vehicle. He appeals, claiming that the trial court erred in denying his motion for directed verdict and that the trial court abused its sentencing discretion by imposing a $1,000 fine that included reimbursement for indigent defense fees. Upon review, we affirm Burns’ conviction, but vacate the fine imposed and remand for resentencing as to such.

Viewed in a light most favorable to upholding the jury’s verdict, the evidence shows that, at approximately 10:30 p.m., Bums arrived at a nightclub called Club Taste off Courtland Street in Atlanta and parked in the club’s privately owned parking lot. The parking lot was “packed.” At approximately 11:45 p.m., the parking lot owner observed Bums attempt to exit the lot and in the process strike two vehicles. He testified that “Mr. Bums was in the car at that present point in time when I approached him. He had already hit two cars. And I asked Mr. Bums to exit the car. And at that time Mr. Bums refused. And I asked Mr. Bums several times to exit the car so that I could locate the drivers of the other cars that were damaged.” The lot owner told Bums that he could not leave the lot until the owners of the damaged vehicles were located. When the lot owner refused to allow him to leave, “Mr. Bums then started driving his car, parked his car, got out of his car and went back into the club.” The owner called the police. He wrote down the tag numbers, descriptions, and models of the cars that were hit and sent one of his valets inside the club to locate the owners. The vehicles’ owners came out of the club while Bums was still inside. The lot owner “told them that their cars were hit. One owner decided she wanted to, he or she wanted to leave. The other owner stayed there.” The police arrived within 15 minutes of the call by the lot owner. When they arrived, they found Bums inside the club standing near the bar. Held:

1. Bums first claims the trial court erred in denying his motion for directed verdict of acquittal. The standard of review for the denial of a motion for a directed verdict is the same as that for reviewing the sufficiency of the evidence to support a conviction. “Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

In that regard, under Georgia law, one’s duty upon striking an unattended vehicle is to

immediately stop and . . . then and there either locate and notify the operator or owner of such vehicle of the name and address of the driver and owner of the vehicle striking the unattended vehicle or . . . leave in a conspicuous place on the vehicle struck a written notice giving the name and address of the driver and the owner of the vehicle doing the striking.

Here, it is undisputed that Bums did not leave written notification of his damage to the vehicles. And the evidence is that Bums did not attempt to locate and notify the owners of the vehicles he stmck. Instead, when confronted with his actions by the parking lot owner, Bums refused to exit his vehicle and wanted to leave the parking lot. The parking lot owner frustrated this desire when he would not permit Burns to exit the lot until the owners of the damaged vehicles were located.

On appeal, Bums challenges the State’s failure to call to the stand the owners of the vehicles. He claims that, absent the car owners’ testimony, there was insufficient proof that he did not notify them when he went back inside the club. We disagree. Bums’ contention involves purely a jury question as to the weight of proof regarding an element of the offense. If the State can prove through means other than the owners’ testimony that Burns did not notify them of the damage to their vehicles, the State is not required to call the owners. “[T]he credibility and weight to be accorded the evidence are . . . task[s] for the jury.”

In this case, Bums did not take the stand and never claimed that he contacted the owners of the cars when he went back inside the club, so there was no factual allegation with regard thereto for the State to rebut. The State’s evidence showed that Bums had no intention of notifying the owners of the damage to their vehicles, but wanted to leave the parking lot. The evidence shows that Bums did not obtain the make, model, or description of either of the vehicles that he hit but, instead, reentered the club immediately after exiting his car. The parking lot was full and the club was filled with people; thus, without any information about the cars that had been hit, Bums could not have identified the car owners in order to notify them. Finally, when the police located Burns, he was standing at the bar in the club, not attempting to locate the car owners who had already been contacted by the lot owner and had left the club. This evidence is sufficient to demonstrate that Burns did not “immediately stop and . . . then and there . . . locate and notify the operator or owner of such vehicle” of the damage thereto, even without the owners’ testimony to that fact. Accordingly, this evidence was sufficient for a rational trier of fact to have found each essential element of the crime charged beyond a reasonable doubt, and denial of Burns’ motion for directed verdict was not error.

2. Bums was declared indigent on the basis of an indigent affidavit and was appointed a county public defender. Following his conviction, a sentencing hearing was held during which the trial court called into question the validity of Burns’ indigent affidavit, because a defense witness who testified during trial stated that Burns is an accountant. Upon questioning, it was established that Bums was formerly Comptroller for Morehouse College and had been an accountant for 20 years, serving in both a public and private capacity. He is a certified public accountant (CPA) and had just started his own full service CPA firm, Burns & Associates. Bums told the trial court that he was indigent at the time he filed his affidavit because he had incurred substantial losses when his brokerage accounts with E*Trade and Ameritrade lost money “during the course of the year as the dot corns went down.” So, in filing his prior year’s taxes, Burns declared an income of “in excess of $50,000,” but declared “Schedule C and Schedule D losses in excess of $70,000, which created net losses for the year.” No documentation was presented in support of his contentions. Nor was there evidence of Burns’ assets, expenses, income, or outstanding obligations. Burns stated that prior to trial he had been receiving unemployment and was still indigent at the time of sentencing because he had just started his new business.

The trial court then imposed a fine of $1,000. Defense counsel objected that the sentence was “a little excessive” for a misdemeanor, and the trial court stated, “Well, I’ve got under consideration to make him pay some attorney’s fees.”

OCGA § 17-12-10 (c) provides that to the extent that a person covered under the standards to determine indigence is able to provide for the employment of an attorney, “the court concerned may order him to provide for this payment or reimbursement.” However, “under OCGA § 17-12-10 (c), a superior court may tax additional amounts onto any fine or restitution where a criminal defendant was represented by a full or part-time public defender, but the court may only order such payments or reimbursements to the extent of the individual defendant’s financial capability to pay.” It appears clear that Bums may very well have the ability to reimburse the county “over time” for the indigent defense fees spent on his behalf. However, there is no factual determination in the record of “the amount of [Burns’] assets, expenses, income, or outstanding obligations, so as to determine his ability to reimburse the county for the cost of his legal representation.” In fact, the judge appointed Burns’ public defender to represent him on appeal. Thus, “the trial court inappropriately sentenced the indigent defendant to pay for the cost of his legal representation, where the record provides no basis for a determination that he was able to pay for the employment of the attorney.” “As there was no record basis for the trial court to determine that [Bums] was ‘able to provide for the employment of an attorney,’ that portion of the sentence which required [a fine which included attorney fees] must be vacated and the case remanded for resentencing in this regard, consistent with the statute and case law.”

Decided October 11, 2001.

Joe Morris III, for appellant.

Joseph J. Drolet, Solicitor-General, Jennifer L. Moore, Assistant Solicitor-General, for appellee.

Judgment affirmed, sentence imposing fine vacated and case remanded.

Andrews, P. J., and Miller, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Goddard v. State, 244 Ga. App. 730, 733 (2) (536 SE2d 160) (2000).

       OCGA § 40-6-271 (a).

        Ashley v. State, 240 Ga. App. 502, 503 (1) (523 SE2d 901) (1999).

       Contrary to a contention contained as a corollary to this first enumeration of error, the failure to call the owners of the vehicles did not deny Burns his “right to confront his accusers.” The owners of the vehicles were not Bums’ accusers, nor did they witness the incident in question. Since it was unnecessary for the State to call the car owners in order to prove the essential elements of its case, no confrontation clause issue arises from the failure to call them.

       1985 Op. Atty. Gen. 203, U85-32.

        Raines v. State, 242 Ga. App. 727, 731 (3) (531 SE2d 158) (2000).

       (Citations and punctuation omitted.) Hall v. State, 189 Ga. App. 824, 825 (2) (377 SE2d 907) (1989).

        Owens v. State, 187 Ga. App. 262, 263 (1) (369 SE2d 919) (1988).

        Reid v. State, 224 Ga. App. 524, 527 (481 SE2d 259) (1997).


text:
    A01A2181.
    In re HOLLOWAY.
    (555 SE2d 228)
   Phipps, Judge.

Beverly Harris and Harriett Taylor instituted this proceeding for appointment of themselves as guardians for the person and property of their mentally incapacitated 86-year-old mother, Mamie Bell Holloway, a widow. Holloway’s sons intervened and sought appointment of themselves or others as guardians. Finding none of the children qualified to act as guardian, the Superior Court of Crisp County appointed certain third parties as guardians under OCGA § 29-5-2. The daughters appeal. They contend that the trial court erroneously relied on OCGA § 29-4-8 and Kelley v. Kelley , and they challenge the court’s determination that they are not qualified to act as guardians. We find no ground for reversal and affirm.

Evidence introduced at the hearing below showed that Holloway’s support needs were being adequately met through Social Security benefits and interest earned on $320,000 invested in bank certificates of deposit (CDs) when one of her sons obtained power of attorney from her, redeemed the CDs, transferred the proceeds to an irrevocable trust, named himself as trustee, and put the money in a stock brokerage account. Her daughters later removed Holloway from her home in Cordele to Macon without informing her sons. As a result, she was reported missing, and law enforcement authorities undertook a frantic search for her. The daughters filed a petition in the Probate Court of Bibb County for invalidation of the trust and appointment of themselves as guardians for the person and property of their mother. The guardianship proceeding was later transferred to Crisp County because it is Holloway’s legal residence, and she was placed in a nursing home there. In the nursing home, she fell and broke her hip. Because of her children’s inability to agree on whether she should receive medical treatment in Cordele or Macon, an emergency guardian had to be appointed to consent to immediate surgery.

OCGA § 29-5-2 sets forth statutory preferences to be considered by a court in selecting guardians for incapacitated adults. Unless disqualified, spouses and adult children are preferred over all other persons except for individuals who have been formally nominated by the ward prior to the ward’s becoming incapacitated. Although the statutory preferences must be considered by the court in selecting a guardian, the court may pass over a person having preference and appoint a person having lower preference or no preference “for good cause shown.” In determining whether to depart from the statutory preferences, the court shall consider “all relevant factors, including the ability of the person to perform the duties of a guardian . . . and the period of time which has elapsed since any person was nominated by the prospective ward or another.” “If no other person is available to be the guardian of the person of the ward, the judge may appoint the director of the department of family and children services of the county of the residence of the person or of the county in which the person is being cared for as guardian of the person.” “If no other person is available to be the guardian of the property of the ward, the judge may appoint the county guardian to be guardian of the property.”

OCGA § 29-4-8 provides that among collateral relatives applying for the guardianship of a minor child, the nearest kin by blood, “if otherwise unobjectionable,” shall be preferred. In Kelley, the court held that “the word[ ] objectionable . . . referís] ... 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. [Cit.]” Because OCGA § 24-9-8 relates to proceedings for the appointment of guardians for minors, it and Kelley have no direct application here.

In the order appealed, the court ruled “that none of Mrs. Holloway’s children is qualified to act as her guardian because each has in some way recently acted in such a way as to call into question whether his or her judgment as to Mrs. Holloway’s best interests would be clouded by or influenced by his or her disdain for or mistrust of one or more siblings.” The court found that although the daughters seemingly have the financial acumen and medical knowledge to serve as guardians, their actions in surreptitiously taking their mother from Cordele to Macon, and in refusing to consent to their mother’s surgery in Cordele even though she was in excruciating pain, raise questions as to their objectivity in deciding guardianship issues. The court also noted that it is unlikely that any of the children could make an objective evaluation as to whether establishment of the trust was in Holloway’s best interests and that, in all probability, if any of the children were appointed guardian of Holloway’s person or property, further litigation would be the likely result. As strongly urged by Holloway’s court-appointed attorney, the court therefore appointed the Crisp County Department of Family & Children Services (DFACS) Director as guardian of Holloway’s person and the Crisp County Guardian as guardian of her property. In its order, the court, citing Kelley and OCGA § 29-4-8, also noted that it would be adverse to Holloway and her estate to appoint any of her children as guardian.

The evidence supports a determination that “good cause” has been shown for not appointing any of Holloway’s children as guardian of her person or property. Therefore, OCGA § 29-5-2 authorized the court to refuse to appoint her children as guardians and to appoint the DFACS director and county guardian instead. Under these circumstances, the court’s citation to the inapplicable Code section and case provides no ground for reversal. Contrary to arguments advanced by the daughters, Holloway did not previously nominate her daughter Beverly as her guardian, nor did any ruling by the Crisp Superior Court in this case conflict with any earlier finding by the Bibb Probate Court.

Decided October 11, 2001.

Gregory D. Golden, Lawrence D. Kupferman, for appellant.

Roberts, Rainwater & Ingram, Guy V. Roberts, Jr., Harris & James, Sarah S. Harris, Clifford W. Harpe, Jr., James W. Hurt, for appellee.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       129 Ga. App. 257 (199 SE2d 399) (1973).

       OCGA § 29-5-2 (c) (l)-(3).

       OCGA § 29-5-2 (b).

       Id.

       OCGA § 29-5-2 (d) (1).

       OCGA § 29-5-2 (d) (2).

       Supra, 129 Ga. App. at 259 (1).

       (Emphasis in original.)

       At a time when this statute was not limited to proceedings involving minors, Armor v. Moore, 104 Ga. 579 (30 SE 821) (1898), held the statute applicable to proceedings involving the appointment of guardians for adults.


author: Eldredge, Judge.

text:
    A01A2236.
    STALVEY v. BATES.
    (555 SE2d 477)
   Eldredge, Judge.

We granted this discretionary appeal to review whether the Clinch County Superior Court erred in awarding legal and physical custody of appellant-plaintiff David Ronald Stalvey’s children to their maternal grandmother, appellee-defendant Gisela I. Bates. The record reveals that the superior court determined that the interests of the two children were best served by placing them in the legal and physical custody of Bates. Stalvey was awarded visitation rights. Citing Clark v. Wade, 278 Ga. 587, 598-599 (IV) (544 SE2d 99) (2001), Stalvey appeals contending the superior court’s best interest of the child determination was error in the absence of an initial finding that parental custody would harm the child, both determinations as upon clear and convincing evidence. Because we agree, we reverse and remand with direction that the superior court determine upon a clear and convincing evidence standard whether parental custody in Stalvey would harm the children and, if so, whether an award of custody to Bates would be in their best interests.

Decided October 11, 2001.

Benson & Phillips, Melinda B. Phillips, for appellant.

Suzanne P. Mathis, for appellee.

Judgment reversed and remanded with direction.

Andrews, P. J., and Miller, J., concur.

       The Supreme Court pertinently held that “the ‘best-interest-of-the-child’ standard in OCGA § 19-7-1 (b.l) requirfed] the third party to show that parental custody would harm the child to rebut the statutory presumption in favor of the parent. Once this presumption is overcome, the third party must show that an award of custody to him or her will best promote the child’s health, welfare, and happiness.” Clark v. Wade, supra at 598 (IV).

       The Court defined “harm” as “physical harm or significant, long-term emotional harm; . . . not. . . merely social or economic disadvantages.” Id.