text:
    A96A0393.
    LUKE v. THE STATE.
    (474 SE2d 49)
   Smith, Judge.

Marcus Luke appeals his convictions of two counts of aggravated sodomy, OCGA § 16-6-2, two counts of aggravated child molestation, OCGA § 16-6-4 (c), and one count of child molestation, OCGA § 16-6-4 (a).

Construed to support the jury’s verdict, evidence was presented that on October 15, 1994, J. L., Luke’s. 13-year-old nephew, spent the night at Luke’s house. J. L. testified that sometime after midnight, he and Luke got into the back seat of Luke’s car, and in response to Luke’s requests, J. L. and Luke engaged in mutual masturbation. J. L. also testified that Luke performed oral sodomy on him, then instructed J. L. to do the same to him. He testified that Luke also placed his finger in his anus. While J. L. testified that he was not forced to do these acts, he stated that he did not want to do them. J. L. testified that he told Luke he had to go to the bathroom, got out of the car, and ran naked to his own home about a mile away. J. L.’s father testified that J. L. came home around 5:00 a.m., naked, cold, and out of breath and told him about the incident. J. L. testified that Luke had made him “jack him off” approximately three times before.

1. Relying on Hines v. State, 173 Ga. App. 657 (327 SE2d 786) (1985), Luke argues that the trial court erroneously denied his motion for directed verdict of acquittal because the State failed to prove the element of force necessary to convict him of aggravated sodomy. In Hines, relying on Drake v. State, 239 Ga. 232 (236 SE2d 748) (1977), we reversed defendant’s conviction of aggravated sodomy, holding that the State was required to prove the element of force, but not consent, where the victim was nine years old. Hines, 173 Ga. App. at 658 (2). In Drake, defendant was convicted of forcible rape of his nine-year-old daughter. The Supreme Court differentiated between the “against the will” and “force” elements necessary to prove forcible rape. The Court held that the lack of consent element necessary to prove forcible rape was “automatically shown” by proof that the victim was under the age of consent, but the element of force “must be shown by evidence.” 239 Ga. at 233 (1).

We are not bound by Hines because one judge on the panel concurred in the judgment only. See Court of Appeals Rule 35 (b); Cooper v. State, 180 Ga. App. 37, 38-39 (1) (348 SE2d 486) (1986), aff’d, 256 Ga. 631 (352 SE2d 382) (1987). We are compelled, though, in light of more recent appellate decisions, to examine the holding in Drake that lack of consent, but not force, is established by proof of the victim’s age.

(a) We note initially that both the rape and aggravated sodomy statutes require the State to establish that the crimes were committed with force and against the will of the victim. OCGA §§ 16-6-1; 16-6-2. Our courts, however, have defined inconsistently the method of establishing force in rape and sodomy cases. As noted above, in Drake, the Supreme Court held that consent but not force is established by proof of the victim’s age. In aggravated sodomy cases, this Court has routinely held that both elements — force, as well as lack of consent — are presumed when sexual acts are performed against children. In Cooper v. State, supra, 180 Ga. App. 37 where the defendant was convicted of aggravated sodomy on a five-year-old victim, we criticized Drake and Hines, stating that “in rape (and perforce in sodomy) the force necessary to overcome the victim’s resistance was the force meant by the statute. Since in one incapable of resisting or of consenting or dissenting there is no predicate in law for the showing of force as a reaction in resisting defendant, the force that must be shown is simply the force necessary to commit the sexual act on one whom the law views as, in fact, having no legal capacity to resist or deny consent.” 180 Ga. App. at 38 (1). We accounted for the inconsistent treatment of the force element in rape and sodomy cases by merely stating that in Cooper we were dealing “with sodomy and its special statutory provisions and not with rape and its statutory scheme.” 180 Ga. App. at 39. On certiorari, the Supreme Court affirmed, holding: “A five-year-old child cannot consent to any sexual act. [Cits.] Sexual acts directed to such a child are, in law, forcible and ágainst the will. [Cit.]” 256 Ga. 631 (2). The Supreme Court cited Drake but did not address the anomalous result that force may be proved by the victim’s age in sodomy cases but not in rape cases.

Subsequent cases have relied on the Supreme Court’s holding in Cooper and apparently have followed the reasoning set out in this Court’s opinion in Cooper that the proof of force in rape cases involving children differs from such proof in sodomy cases against children. Since Cooper, both the Supreme Court and this Court have consistently held that “[s]exual acts directed toward children are, in law, forcible and against the will. [Cit.]” Richardson v. State, 256 Ga. 746, 747 (2) (353 SE2d 342) (1987). See also Huggins v. State, 192 Ga. App. 820 (1) (386 SE2d 703) (1989). Thus, although Drake differentiates between the elements of “force” and “against the will” in forcible rape cases involving children, in sodomy cases involving children, the cases make no such distinction. See Daniel v. State, 194 Ga. App. 495, 497-498 (3) (391 SE2d 128) (1990).

(b) Our cases have not, however, defined “children.” We have not established with clarity the maximum age at which the element of force necessary to prove aggravated sodomy is presumed. We have held that the “against the will” or “lack of consent” element is supplied by proof that the victim is under age 14 because a victim of that age “ 'is incapable of consenting to illicit sexual acts with another.’ ” Miles v. State, 201 Ga. App. 568 (411 SE2d 566) (1991). In Cooper v. State, 180 Ga. App. 37, supra, we adopted 13 as the age below which the element of force is automatically supplied. In reaching this conclusion, we relied upon OCGA § 16-3-1, which sets the age of criminal responsibility at 13. Similarly, in Huggins v. State, supra, we relied on Cooper and stated, “It thus appears that the Supreme Court is of the opinion that an act of sodomjf perpetrated upon a child who has not attained the age of 13 constitutes aggravated sodomy because the act done to a child of that age is automatically done with force and against the child’s will.” 192 Ga. App. at 821 (1). See also Lapan v. State, 167 Ga. App. 250 (305 SE2d 858) (1983), where we relied on OCGA § 16-3-1 and stated that “[t]he element of consent is obviated by the victim’s age. [Cits.]” Id. at 253 (2).

Relying on OCGA § 16-3-1 as the measure of the age under which force is presumed yields inconsistent results in this case: Because J. L. was 13 at the time of the incident, his age is not sufficient to establish the element of force. But such proof is sufficient to prove the element of lack of consent. See, e.g., Miles, supra. Nowhere in cases such as Cooper and Huggins, however, is it mandated that 13 is the age below which the element of force is automatically supplied; those cases use OCGA § 16-3-1 as one standard for determining the age under which force is presumed. That Code section is not dispositive of the issue. Its purpose is not to protect children under the age of 14 from illicit acts of others. Instead, “it simply raises a defense for [children under 13] because of the social desirability of protecting those no more than 12 years of age from the consequences of criminal guilt.” K. M. S. v. State of Ga., 129 Ga. App. 683, 685 (200 SE2d 916) (1973).

Because the purpose of OCGA § 16-3-1 is not to protect child victims but to protect child perpetrators from the legal consequences of their own wrongdoing, and because its application leads to inconsistent results, we do not believe that OCGA § 16-3-1 should be used to set the age above which force may not be presumed. We are instead persuaded that the appropriate and logical age for such a presumption is the statutory “age of consent,” which in this case was 14. Our opinion in Cooper supports this conclusion. As noted above, we stated there that “in one incapable of resisting or of consenting or dissenting there is no predicate in law for the showing of force as a reaction in resisting defendant.” 180 Ga. App. at 38. Under this rationale, if one cannot legally consent due to his or her age, the element of force becomes irrelevant. In Miles and in this case, a child under 14 could not legally consent to illicit sexual acts. And under Cooper, if one cannot legally consent, force is presumed.

Because J. L. was under 14, the legal age of consent at the time the events involving Luke occurred, both the element of consent and the element of force were proved by evidence of his age. Hence, sufficient evidence was presented to enable a rational trier of fact to find Luke guilty of aggravated sodomy under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). This conclusion avoids the inherent inconsistency resulting from application of OCGA § 16-3-1 to determine the age when force must be proved by evidence other than proof of the victim’s age. It is also consistent with the special legislative treatment given to child victims below a certain age (14 at the time of the events in this case, 16 now) with regard to all sex crimes. See OCGA § 16-6-3 (statutory rape), OCGA § 16-6-4 (child molestation and aggravated child molestation), and OCGA § 16-6-5 (enticing a child for indecent purposes).

2. Luke also complains the evidence was insufficient to support his conviction for child molestation and aggravated child molestation on the ground that J. L.’s testimony was impeached. We disagree. Although J. L.’s testimony conflicted with statements he made to a Department of Family & Children Services employee, his credibility at trial was inherently an issue for jury determination. This Court cannot substitute its judgment on issues of credibility for that of the jury. See, e.g., Potts v. State, 207 Ga. App. 863, 866 (2) (429 SE2d 526) (1993).

3. Luke argues that evidence of similar transactions was erroneously admitted. A thirty-one-year-old witness testified that when he was five or six years old, he was visiting at the home Luke shared with his father. Luke placed the witness’s hands in Luke’s pants and had the witness touch him on the penis. The witness stated that Luke also lowered the witness’s head to Luke’s penis, “one thing led to another,” and Luke ejaculated. The witness also testified that when he was about 18, while he and Luke were in Luke’s car, Luke attempted to get him to lay his head in Luke’s lap.

Decided June 21, 1996

Reconsideration denied July 11, 1996.

Susan E. S. Shook, for appellant.

Marcus Luke, pro se.

Richard A. Malone, District Attorney, for appellee.

Luke argues that this evidence was not admissible because “the State merely mentioned evidence of state of mind, and [the] probability that the former transaction proves the latter.” The State introduced the similar transactions to show state of mind, intent, and modus operandi, all appropriate exceptions to the general rule of inadmissibility of similar transactions. See generally Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991); Oller v. State, 187 Ga. App. 818 (2) (371 SE2d 455) (1988). We find no merit in this argument.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

       We found the language in Drake “seized upon in Hines” to be dubious and also noted, as we have done in this case, that Hines was not binding authority. 180 Ga. App. at 39.

       At the time of the events in issue here, the law of this State provided that a child under the age of 14 could not legally consent to certain sexual acts. After Miles was decided (and after Luke was convicted), these statutes were amended to change, effective July 1, 1995, the operative age to 16. See OCGA § 16-6-3 (statutory rape), OCGA § 16-6-4 (child molestation and aggravated child molestation), and OCGA § 16-6-5 (enticing a child for indecent purposes).


source: Caselaw Access Project

author: Pope, Presiding Judge. SMITH, Judge,

license: Public Domain

text:
    A96A0433.
    HOUSTON v. SURRETT et al.
    (474 SE2d 39)
   Pope, Presiding Judge.

Dr. Houston sued Surrett for legal malpractice, but the trial court granted the attorney summary judgment. Because this case involves no intentional wrongdoing, and because Houston cannot establish a causal relationship between Surrett’s negligence and any injury, we affirm the trial court’s ruling.

Houston divorced his wife, Tina Brown, in Columbia County Superior Court in 1987. The divorce decree, as later modified by that same court, gave the parties joint legal custody of their three children but granted Houston primary physical custody. Houston later moved to Thomas County in southwest Georgia, while Brown continued to live in Columbia County. In 1992, dissatisfied with existing arrangements, Houston retained Surrett to file in Columbia County an action against Brown to modify visitation. Brown answered that suit and counterclaimed for additional visitation “and/or” custody. The trial court, after interviewing the children and finding a material change in circumstances, awarded custody of the two younger children to Brown.

Houston’s suit alleges Surrett should have moved to dismiss Brown’s counterclaim. OCGA § 19-9-23 (a), he argues, required Brown to file any custody claim as a separate action in Houston’s home county, Thomas; therefore, venue of Brown’s custody action was improper in Columbia County. Through new counsel, Houston did file a motion to dismiss the counterclaim for lack of venue before the trial court rendered its final order modifying custody. But the trial court denied the motion, and on appeal we determined that Houston waived any venue defense by failing to raise it early in the litigation. Houston v. Brown, 212 Ga. App. 834 (443 SE2d 3) (1994).

In this malpractice action, Houston claimed as damages the loss of his children’s companionship; increased child support payments ordered in the underlying action; additional attorney fees incurred unnecessarily in Columbia County, including the costs of appealing the trial court’s refusal to dismiss the counterclaim for lack of venue; emotional damages; punitive damages; and attorney fees and expenses of litigation pursuant to OCGA § 13-6-11.

1. This case does not present a jury question regarding any intentional wrongdoing or any tort involving “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences” which might allow punitive damages. OCGA § 51-12-5.1 (b); Powell v. Ferreira, 198 Ga. App. 465 (402 SE2d 85) (1991). Surrett testified his failure to raise the venue defense resulted from oversight. Houston produced no evidence contradicting his attorney’s plea of inadvertence. While an attorney’s concealment and misrepresentation of matters affecting his client’s case will give rise to a claim for punitive damages, Houston produced no such evidence. Cf. Peters v. Hyatt Legal Svcs., 211 Ga. App. 587, 593 (3) (440 SE2d 222) (1993); Thomas v. White, 211 Ga. App. 140, 141-142 (438 SE2d 366) (1993); and Holmes v. Drucker, 201 Ga. App. 687, 688 (411 SE2d 728) (1991), all of which involved evidence of actual concealment and misrepresentation. Law is, at best, an inexact science, Jones, Day &c. v. American Envirecycle, 217 Ga. App. 80, 83 (2) (456 SE2d 264) (1995), and no evidence here shows Surrett’s failure to raise the defense could be anything more than gross negligence.

2. The trial court properly granted summary judgment because it found Houston unable to establish that Surrett’s failure to raise a venue defense proximately caused him any injury. A client suing his attorney must show the attorney’s negligence and must show that negligence proximately caused the client harm. Jaraysi v. Soloway, 215 Ga. App. 531, 532 (1) (451 SE2d 521) (1994). “A claim for legal malpractice is sui generis insofar as the plaintiff’s proof of damages effectively requires proof that he would have prevailed in the original litigation.” (Citation and punctuation omitted.) Nix v. Crews, 200 Ga. App. 58, 59 (2) (406 SE2d 566) (1991). A defendant in a legal malpractice case is entitled to summary judgment only if he shows “that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [the] plaintiff’s case. [Cit.]” (Punctuation omitted.) Huntington v. Fishman, 212 Ga. App. 27, 29 (441 SE2d 444) (1994).

We need not decide whether Surrett was negligent and whether Houston can quantify any damages. Houston’s case fails because he cannot show a causal link between his attorney’s failure to raise the venue defense and any injury suffered. Houston must show that, but for the error, the outcome would have been different; any lesser requirement would invite speculation and conjecture. Hunt v. Tomlinson, 799 F2d 712, 714 (11th Cir. 1986) (applying Georgia law). Brown testified that, had Surrett objected to venue of the counterclaim, she would have filed a separate action for change of custody in Thomas County. The trial court might also have severed the counterclaim from Houston’s action and transferred it to Thomas County. OCGA § 9-11-42 (b); Bennett v. Wood, 188 Ga. App. 630, 632 (1) (373 SE2d 645) (1988); see McCabe v. Lundell, 199 Ga. App. 639, 640 (1) (405 SE2d 693) (1991); McCormick v. Rissanen, 177 Ga. App. 623 (340 SE2d 268) (1986). The record shows nothing prevented Brown from litigating custody in Thomas County, and decrees ordering custody and child support are subject to modification for changed circumstances. OCGA § 19-9-1 (b). Under these circumstances Houston cannot show that, had the case been litigated in Thomas County instead of Columbia County, he would have suffered none of the “injuries” and incurred none of the damages he claims. See Peters, 211 Ga. App. at 589-590 (1).

To recover from his attorney Houston would have to show, at a minimum, that he would have fared better if the parties had litigated Brown’s counterclaim in Thomas County. But in either court, the issue of custody would have been determined on the basis of the children’s best interests. OCGA § 19-9-3 (a) (1991). Houston has not shown he could produce evidence at a Thomas County hearing different from that heard by the Columbia County court. See, e.g., OCGA § 24-10-21 (subpoena power extends throughout state). Thus, to recover he must show that a different judge hearing the same evidence would have acted differently.

Houston’s experts testified that a Thomas County judge would “never” have given Brown custody of the children. But those predictions, while based on professional experience, are nothing more than educated guesses. Because all trial judges in this state are “presumed to know the law and presumed to faithfully and lawfully perform the duties devolving upon [them] by law” (citations and punctuation omitted) In the Interest of A. L. L., 211 Ga. App. 767, 770 (5) (440 SE2d 517) (1994), we must also presume that judges in both Thomas and Columbia counties would decide this case based on the evidence presented and would not be influenced by any local bias. We may therefore presume that, hearing the same evidence, each judge would have reached the same result.

Although no Georgia court has decided a legal malpractice case stemming from an attorney’s failure to object to venue, numerous authorities state such claims call for “sheer speculation.” Mallen & Smith, Legal Malpractice, § 24.24, p. 505 (3rd ed. 1989). See also McLeod v. Fechtel, 821 F2d 1388, 1389 (9th Cir. 1987) (in divorce case, no way to determine a reasonable judge would not have divided community property any differently); Woodruff v. Tomlin, 423 FSupp. 1284, 1287 (W.D. Tenn. 1976) (“speculation” to say federal jury would have rendered verdict different from state jury), aff’d on other grounds, 616 F2d 924 (6th Cir. 1980) (en banc); Mitchell v. Transamerica Ins. Co., 551 SW2d 586, 588 (Ky. App. 1977) (no way to find that a state court jury would have decided the case any differently than would a federal court jury); Parksville Mobile Modular v. Fabricant, 422 NYS2d 710, 716 (1979) (same).

In the typical legal malpractice case centering on an attorney’s negligence in prosecuting or defending prior litigation, the law assumes that one reasonable jury can determine what the reasonable factfinder in the prior litigation would have done but for the attorney’s error. Chocktoot v. Smith, 571 P2d 1255, 1258 (Or. 1977). As the Oregon Supreme Court pointed out in Chocktoot, the malpractice factfinder determining what “would have” happened in the original action actually substitutes its judgment for that of the factfinder in the original action. Resolution of such an issue does not center around what a hypothetical factfinder would have done. See Chocktoot, 571 P2d at 1257. In a venue case such as this, the disappointed client asks the factfinder to determine that a hypothetical factfinder in the original litigation would have been biased, and then asks the reasonable jury to determine what result that biased factfinder would have reached. Such a request calls for pure conjecture.

To claim “unnecessary” or remedial attorney fees, likewise, Houston would have to reasonably show the amount of those fees proximately caused by Surrett’s negligence. Tante v. Herring, 264 Ga. 694 (1) (453 SE2d 686) (1994). It is true that, had Surrett raised the venue defense, the issues raised in the counterclaim would not have been litigated in Columbia County. But to say Houston would have incurred no additional attorney fees because these issues would not have been litigated calls for pure speculation. The trial court could have transferred the counterclaim to Thomas County, causing Houston to incur fees there, or Ms. Brown could have refiled her action in Thomas County, resulting in additional fees. To remove the issue of additional fees from the realm of speculation, we must be able to say that raising the defense would have ended any court’s consideration of the issues raised in the counterclaim; this we cannot do. And because we cannot say a different court would have resolved this issue differently, we cannot say with any reasonable certainty that attorney fees spent to “remedy” the trial court’s ruling were reasonable or necessary.

3. Because Houston cannot show that Surrett’s efforts were in vain or that any inaction on the attorney’s part deprived him of a better outcome, he is entitled to no damages, and we need not consider his enumerations of error concerning those damages.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Andrews and Ruffin, JJ., concur. Birdsong, P. J., Johnson, Blackburn and Smith, JJ., concur in part and dissent in part.

SMITH, Judge,

concurring in part and dissenting in part.

1.1 respectfully dissent with respect to Division 2 of the majority opinion. Under established case law, the elements of a cause of action for legal malpractice are employment of an attorney, failure of the attorney to exercise ordinary care, skill, and diligence, and damages proximately caused by that failure. Tante v. Herring, 264 Ga. 694 (1) (453 SE2d 686) (1994). The first two elements are established beyond question in this case.

In my view, the majority misapplies the third element necessary to support a cause of action for legal malpractice by focusing on the outcome of a custody modification action in Thomas County — an action that never took place. Because it must be presumed that the result of such an action would have been identical to that obtained in Columbia County, the majority takes the position that Houston is unable to show he suffered damages attributable to Surrett’s admitted malpractice.

That hypothetical action, however, is not the proper focus for determining whether Houston met his burden of showing the elements of a cause of action for legal malpractice against Surrett. It is true that “[a] claim for legal malpractice is sui generis insofar as the plaintiff’s proof of damages effectively requires proof that he would have prevailed in the original litigation.” (Citation and punctuation omitted.) Nix v. Crews, 200 Ga. App. 58, 59 (2) (406 SE2d 566) (1991). This does not mean, however, that we must resort to speculation regarding the possible result of litigation that never took place. The “original action” in this case is the Columbia County litigation, including Brown’s counterclaim, and it is to that litigation that we must apply the third element of the test.

Applying the third prong of the test, I have no difficulty in determining that Houston could and did demonstrate damage caused by Surrett’s negligence. It is black-letter law in this state that a petition for change of child custody must be brought “as a separate action in the county of residence of the legal custodian of the child.” OCGA § 19-9-23 (a). No question exists, therefore, that Brown’s “counterclaim” for change of custody was completely improper, both because it was not brought as a separate action and because venue did not lie in Columbia County.

Had Surrett raised Houston’s valid venue defense to this counterclaim, the Columbia County child custody litigation would have ceased to exist', it would have been either dismissed or transferred. Its continuation in Columbia County was caused by Surrett’s malpractice; its continuation in Columbia County directly damaged Houston in several ways, at least some of which are clearly discernible and unrelated to any hypothetical litigation in Thomas County. The majority mentions at least one of these: additional attorney fees incurred unnecessarily in Columbia County, including the costs of appealing the trial court’s refusal to dismiss the counterclaim for lack of venue.

Our law does not and should not condone an attorney’s malpractice. This Court pronounces otherwise when it deprives Houston of a cause of action rightfully his and allows Surrett to escape the direct consequences of his negligence, at least for the expenses of remedial litigation caused by Surrett’s malpractice. I would hold that summary judgment as to liability should not have been granted to Surrett in this case.

2. I concur in Division 1 of the majority opinion because I agree that no punitive damages were recoverable. ,

I am authorized to state that Presiding Judge Birdsong, Judge Johnson and Judge Blackburn join in this opinion.

Decided June 20, 1996

Reconsideration denied July 11, 1996

Tony Center, for appellant.

Freeman & Hawkins, Howell Hollis III, Christine L. Mast, Steven J. Misner, for appellees.

       Although Surrett’s partners and former partners are also named as defendants, Dr. Houston charges them only with vicarious liability for Surrett’s actions.

       Contrary to Houston’s argument here, we did not hold in our prior decision that he waived any jurisdictional, defenses. Furthermore, in that case we made no ruling on the merits of any venue defense.

       In fact, it appears from the record that when Houston gave his deposition in this case in March 1995, he and his former wife were again litigating the child custody issue, this time in Thomas County.


author: Beasley, Chief Judge.

text:
    A96A0533, A96A0534.
    BROWN et al. v. FREEDMAN; and vice versa.
    (474 SE2d 73)
   Beasley, Chief Judge.

This suit arose from the sale of a home under power of sale and removal of personal property. Freedman and Halperin lent Moore $7,200 for home improvements on her residence and received a deed to secure debt on the house. The note called for monthly payments of $158.16, but Moore consistently paid at the rate of $200 per month for more than three years. Moore became ill, ceased payments, and died in November 1990. On January 15, 1991, an attorney for Freedman and Halperin sent a letter to Moore at the residence, demanding full payment of the principal, interest, and attorney fees, both as provided in the security deed and note and OCGA § 13-1-11 (a) (3). The demand letter set out the “principal balance due” but not the entire amount allegedly due.

Brown, Moore’s elderly aunt and sole heir, lived across the street from Moore’s house and eventually received the letter. Through intermediaries, she attempted to determine what amount would be necessary to pay the note, but neither Freedman nor the attorney would state it, each saying the other would have to give the information. Sale proceeded without notice to Brown and on March 5, 1991, Freedman purchased the house at auction for $5,610. After removing personal property, he resold the house for $31,400 on April 11. Brown retained an attorney to pursue the matter, but he failed to do so, and she is represented by different counsel in this suit.

Count 1 of the complaint alleged Freedman and Halperin breached, as to the security deed, the duty of good faith and fair dealing in performance and enforcement that accompanies every contract. See Bldg. Materials Wholesale v. Reeves, 209 Ga. App. 361, 363 (1) (433 SE2d 346) (1993). Count 2 alleged they did not fairly exercise their power of sale, OCGA § 23-2-114, and Count 3 alleged they converted Brown’s personal property found inside the house, OCGA § 51-10-1; Grant v. Newsome, 201 Ga. App. 710 (1) (411 SE2d 796) (1991). Count 4 asserted that Halperin and Freedman committed violations of the Georgia Racketeer Influenced & Corrupt Organizations Act (“RICO”). OCGA § 16-14-1 et seq. Counts 5 and 6 asserted claims against Brown’s former attorney. Freedman’s motion for summary judgment was granted as to Count 4, the RICO claim, and denied as to Counts 1 through 3.

In Case No. A96A0533, Brown appeals from the grant of summary judgment on the RICO claim. In Case No. A96A0534, Freedman appeals from the denial of summary judgment as to the first two counts of the complaint but not as to Count 3, conversion of personal property. The other defendants are not party to this appeal. In both appeals, the evidence and all inferences and conclusions arising therefrom must be construed most favorably toward Brown, the party opposing the motion. Garmon v. Warehouse Groceries Food Center, 207 Ga. App. 89, 91 (1) (427 SE2d 308) (1993).

Case No. A96A0534

1. Taking Freedman’s appeal first, he contends he was entitled to summary judgment on Count 2, the OCGA § 23-2-114 claim for unfair exercise of the power of sale, because he sold the property as provided in the deed to secure debt and in the manner required by statute. The right of sale arises from a contract, but breach is a tort compensable at law. Calhoun First Nat. Bank v. Dickens, 264 Ga. 285 (1) (443 SE2d 837) (1994). See also, e.g., Curl v. First Fed. Sav. &c., 243 Ga. 842, 843-844 (2) (257 SE2d 264) (1979); Decatur Investments Co. v. McWilliams, 162 Ga. App. 181, 182 (2) (290 SE2d 526) (1982); 20A EGL, Mortgages and Bonds for Title, p. 342, § 69. A claim for wrongful exercise of a power of sale under OCGA § 23-2-114 can arise when the creditor has no legal right to foreclose. Sears Mtg. Corp. v. Leeds Bldg. Products, 219 Ga. App. 349, 351 (2) (464 SE2d 907) (1995) (non-precedential as to other holdings). Although Brown responds that Freedman could not proceed because the note was never in default before foreclosure, that is incorrect. It is undisputed that no payments had been made for some months preceding the acceleration letter, and the note clearly calls for the debt to be paid in monthly installments.

Brown asserts that the earlier payments in excess of $158.16 per month were not properly posted to the account because payments in excess of the stated monthly charge were not applied to principal. OCGA § 7-4-17; First Nat. Bank of Gainesville v. Appalachian Indus., 146 Ga. App. 630, 632 (2) (247 SE2d 422) (1978). When payments were missed, Freedman calculated the “extra” amount that had been paid and began drawing against it at $158.16 per month and did not pursue sale until the overages had been exhausted. While this method of allocating excess payments was not in accordance with the statute and affected the amount of interest and principal remaining on the debt and the amount due on default, neither the excess payments nor the method of posting them to the account altered the debtor’s obligation under the note to make monthly payments even if the principal was reduced. When payments were not made, the note was in default. Brown points to nothing in the note, deed, or OCGA § 7-4-17 that would relieve the debtor of the obligation to pay monthly installments, which would include interest, and we find nothing to support such an interpretation.

A claim for wrongful exercise of a power of sale can be asserted even though a debt is in default. “[W]hen a power of sale is exercised ‘ “[a]ll that is required of [the foreclosing party] is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith.” [Cits.]’ [Cit.]” Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327, 330 (1) (270 SE2d 867) (1980). “Good faith” in conducting the sale is not necessarily limited to the provisions of the deed. A power of sale “ ‘simply evidences an agreement between the parties that the (mortgagee) shall be relieved from the necessity of resorting to a foreclosure at law or in equity. . . . However, even though the power of sale is conferred upon the grantee for the purpose of facilitating his collection of the amount of the underlying debt which is secured by the property, the power must be exercised fairly. [OCGA § 23-2-114.]” Id. at 328-329 (1). A “breach of this duty to conduct the sale ‘fairly’ gives rise to a claim for damages to the injured holder of the equity of redemption.” Id. at 329 (1); accord Calhoun First Nat. Bank v. Dickens, supra at 285-286 (1).

Brown contends, in part, that Freedman’s purchase of the property at auction for less than one-fifth the amount he sold it for shortly thereafter is sufficient to conclude that he breached his duty to conduct the sale fairly. However, price alone is not sufficient; a claim for damages may lie “ ‘only when the price realized is grossly inadequate and the sale is accompanied by either fraud, mistake, misapprehension, surprise or other circumstances which might authorize a finding that such circumstances contributed to bringing about the inadequacy of price that’ the foreclosing party has breached his duty under the power of sale. [Cit.]” (Emphasis supplied.) Kennedy, supra at 331 (1). It is the “circumstances,” in conjunction with the price, that can lead to a recovery.

The January 15, 1991, letter of Freedman’s attorney set forth a “Principal Balance Due” of $4,475.25, but also stated that tender of payment would have to be for that amount and “interest to the date of payment.” It also referred to “legal and other expenses . . . that must be paid by [debtor]” regardless of when the debt was paid. Although there is no evidence Brown made any “tender” that was rejected, there is evidence that she attempted through intermediaries to determine how much was owed so she could pay it, but neither Freedman nor his attorney would tell her, each saying the other would have to do so. A jury could conclude that Freedman knew that Brown, the person now responsible for the encumbrance, would pay the debt, but that Freedman deliberately kept that information from her. Evidence that Freedman took personal property from the house after the sale could also support a finding that Freedman’s primary interest in exercising the power of sale was not to protect his security but to gain as much as possible financially regardless of Brown’s equity of redemption or property rights. Such a fact, if found, coupled with Freedman’s purchase of the property at a price less than a fifth of what he received for it a month later, could support a finding that he exercised the power of sale unfairly.

Freedman notes that Brown did not appear at the sale, but the record is devoid of any notice given to her of the date or place or of any indication she had actual notice. Compare Kennedy, supra at 332 (2). Failure to give it knowing of her interest in the property is a circumstance that could also support a finding that Freedman did not wish Brown to appear and bid, which might prevent him from buying property worth more than $30,000 for only $5,610. Without even discussing other evidence, the evidence described above does not preclude a finding that Freedman’s conduct constituted an unfair exercise of the power of sale. The court did not err in denying summary judgment on Count 2.

2. Freedman also contends he should have been granted summary judgment on Count 1, the claim for breach of the duty of good faith and fair dealing in the performance and enforcement of obligations and rights in the deed to secure debt. This implied duty “requires both parties to a contract to perform their promises and provide such cooperation as is required for the other party’s performance. [Cit.]” Ihesiaba v. Pelletier, 214 Ga. App. 721, 724 (2) (448 SE2d 920) (1994). It is a jury question whether Freedman breached this duty in the manner in which he posted Moore’s prepayments to the account. It is also a jury question whether his actions concerning Brown’s attempts to redeem the property showed a lack of good faith in performance of the security deed contract. The court did not err in denying summary judgment on this count.

Case No. A96A0533

3. Brown contends the court erred in granting summary judgment to defendant Freedman on the RICO claim. A RICO violation, OCGA § 16-14-4, and any consequent recovery through OCGA § 16-14-6 (c), requires that Brown show an injury by a pattern of racketeering activity, State of Ga. v. Shearson Lehman Bros., 188 Ga. App. 120, 121 (2) (372 SE2d 276) (1988). A pattern requires at least two interrelated predicate offenses. OCGA § 16-14-3 (8).

In her complaint, Brown does not expressly allege which of the acts she recites in her narrative of events constitute predicate criminal acts for RICO purposes. In her brief in this Court, and in her response to Freedman’s motion below, she alleges theft by conversion, OCGA § 16-8-4, theft by deception, OCGA § 16-8-3, and mail fraud, 18 USC § 1341, which constitute RICO predicate acts. See OCGA §§ 16-14-3 (9) (A) (ix); 16-14-3 (9) (A) (xxix). Although she does not specify all the acts which she alleges constitute these crimes, at this point she is not required to. Freedman may move for a more definite statement if one is necessary. Maddox v. Southern Engineering Co., 216 Ga. App. 6, 8 (2) (453 SE2d 70) (1995).

We need not address all potential predicate acts for the purposes of this appeal. Brown must show evidence only of two predicate acts. Id. at 7 (2). She alleges injuries from theft by conversion of her personal property inside the house. Summary judgment was denied Freedman on the complaint’s separate conversion count, he does not appeal that decision nor argue that conversion as a predicate act cannot be shown, and there is evidence of conversion of the belongings in the house.

She also argues Freedman’s actions in response to her attempts to find out how much money was owed on the property constituted theft by deception so as to deprive her of her property by preventing her “from acquiring information pertinent to the disposition of the property.” OCGA § 16-8-3 (b) (3). As discussed in Division 1, a jury could conclude that Freedman deliberately kept the correct amount of the debt from Brown. Freedman has not precluded a jury’s finding that his actions in this regard constituted the crime of theft by deception.

Freedman asserts that even if two predicate acts are shown, a single transaction does not constitute a pattern of racketeering activity, and the only transaction shown here is the sale at auction of the property. Raines v. State, 219 Ga. App. 893, 894 (1) (467 SE2d 217) (1996), cert. denied; Cobb v. Kennon Realty Svcs., 191 Ga. App. 740, 741-742 (2) (382 SE2d 697) (1989). The two predicate acts described are not part of one transaction; improper accounting on the note is separate from conversion of personal property after the sale. The sale under power does not unite them into a single transaction, but rather only serves as the link required for them to be considered a pattern of racketeering activity. OCGA § 16-14-3 (8). The court erred in granting summary judgment as to the RICO claim in Count 4.

Decided June 25, 1996

Reconsiderations denied July 11, 1996.

Tony Center, for appellants.

Rubin & Wildau, Martin H. Rubin, Robert C. Port, for appellee.

Judgment reversed in Case No. A96A0533. Judgment affirmed in Case No. A96A0534.

Birdsong, P. J., and Blackburn, J., concur.

        Sears Mtg. Corp. refers to the action as one for wrongful foreclosure, but in that case, as here, the sale of the property was under the power of sale in a security deed, not the foreclosure of a mortgage. See OCGA §§ 44-14-49; 44-14-60. Both instruments are encompassed under OCGA § 23-2-114.


author: POPE, Presiding Judge.

text:
    A96A0541.
    YOUNG et al. v. W. S. BADCOCK CORPORATION.
    (474 SE2d 87)
   POPE, Presiding Judge.

Plaintiffs Chip and Kim Young entered into a dealership agreement with defendant W. S. Badcock Corporation to operate a home furnishing center. Subsequently, they sought to terminate this relationship in accordance with the agreement. Upon return of the dealership to defendant, defendant informed plaintiffs that they were entitled to accounts receivable in the amount of $33,413.92 for merchandise they had sold on consignment from defendant. Thereafter, plaintiffs filed a tort claim against defendant alleging that it had fraudulently misrepresented and withheld the actual amount of accounts receivable plaintiffs were entitled to receive and had fraudulently charged them for an item called “factory labor,” which was not mentioned in the agreement. Defendant answered, denying liability. It then filed a motion for judgment on the pleadings, which the trial court granted. Concluding that the trial court erred, we reverse.

1. In granting defendant’s motion for judgment on the pleadings, the trial court applied Florida law based on the choice-of-law provision found in the agreement. The trial court concluded that under Florida’s “economic loss rule” plaintiffs’ claim was barred because they had not alleged any personal injury or property damage. See AFM Corp. v. Southern Bell Tel. &c. Co., 515 S2d 180, 181-182 (Fla. 1987); Hoseline, Inc. v. U. S. A. Diversified Products, 40 F3d 1198, 1200 (2) (11th Cir. 1994). Plaintiffs, however, contend that the choice-of-law provision is not applicable in this case because plaintiffs’ claim is ex delicto rather than ex contractu. We agree.

The choice-of-law provision in the agreement states: “This Agreement and the terms hereof shall be governed by and construed in accordance with the laws of the State of Florida.” It does not state that any and all claims arising out of the relationship between the parties shall be governed by Florida law. Consequently, we conclude that the provision is not applicable in determining whether plaintiffs have set forth a valid tort claim. Under Georgia’s conflict-of-law rules regarding tort cases, the substantive law of the place where the tort allegedly was committed is the law by which liability shall be determined. Maryland Cas. Ins. Co. v. Glomski, 210 Ga. App. 759, 760 (437 SE2d 616) (1993); Wardell v. Richmond Screw Anchor Co., 133 Ga. App. 378, 380 (1) (b) (210 SE2d 854) (1974). In this case, the alleged misrepresentations regarding the amount owed to plaintiffs for accounts receivable were made upon turning the dealership, which was in Georgia, over to defendant, and plaintiffs have asserted that the “factory labor” charges also were made in Georgia. Therefore, plaintiffs’ tort claim is governed by the substantive law of this state.

Decided June 27, 1996

Reconsideration denied July 11, 1996

Hugh D. Ridgway III, for appellants.

Lambert & Roffman, Allan R. Roffman, Marvin J. Reitman, Jr., for appellee.

Having reached this conclusion, we now turn to the issue of whether plaintiffs have sufficiently asserted a tort claim under Georgia law. In doing so, we note that in this state “a tort action cannot be based on the breach of a contractual duty only, [but] it can be based on conduct which, in addition to breaching a duty imposed by contract, also breaches a duty imposed by law. Commercial Bank &c. Co. v. Buford, 145 Ga. App. 213 (243 SE2d 637) (1978).” Unified Svcs. v. Home Ins. Co., 218 Ga. App. 85, 87 (4) (460 SE2d 545) (1995). A review of the complaint demonstrates that plaintiffs have asserted that defendant defrauded them, thereby breaching a duty owed to them in law as set forth in OCGA § 51-6-2. If the allegations of the complaint are proven to be true, then plaintiffs would be entitled to recovery in tort. Accordingly, we conclude that there are issues of material fact to be resolved in this case. Thus, the trial court erred in granting defendant’s motion for judgment on the pleadings.

2. In light of our holding in Division 1, we need not address plaintiffs’ contention that Florida’s “economic loss rule” violates this state’s public policy.

Judgment reversed.

Andrews and Smith, JJ, concur.


author: McMURRAY, Presiding Judge.

text:
    A96A0612.
    CARTER et al. v. FULTON-DeKALB COUNTY HOSPITAL AUTHORITY.
    (474 SE2d 83)
   McMURRAY, Presiding Judge.

This is the second appearance of this wrongful death and survival action brought against defendant Fulton-DeKalb Hospital Authority d/b/a Grady Emergency Medical Service (“the Hospital”). Following an automobile accident, plaintiffs’ decedent, Paulette Bryant, died from internal bleeding, allegedly as a result of negligent treatment and a 25-minute delay in transporting her by the Hospital’s emergency medical transportation service. The trial court originally granted summary judgment, on the basis of sovereign immunity. This Court “remand[ed] this case to the trial court to allow the parties to perfect the record on the issue of insurance coverage which could constitute a waiver of sovereign immunity, after which the trial court should enter an appropriate order consistent with this [Court’s] opinion and [with the decision of the Supreme Court of Georgia in Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 (413 SE2d 718)].” Carter v. Fulton-DeKalb County Hosp. Auth., 209 Ga. App. 384, 387 (4) (433 SE2d 433) (physical precedent). Before the trial court entered an order upon remand, however, the Supreme Court decided Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40 (440 SE2d 195), holding that hospital authorities are not entitled to sovereign immunity. Id. at 42 (2). Nonetheless, the trial court later granted summary judgment in favor of the Hospital based on sovereign immunity. This appeal followed. Held:

In Fulton-DeKalb Hosp. Auth. v. Walker, 216 Ga. App. 786, 787 (1) (456 SE2d 97), this Court was not able to apply the rule in Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40, supra, because an earlier appeal in the same case, Walker v. Fulton-DeKalb Hosp. Auth., 200 Ga. App. 750 (409 SE2d 529), established “the law of the case,” i.e., the plaintiffs could not contend that the hospital authority was not entitled to sovereign immunity. Fulton-DeKalb Hosp. Auth. v. Walker, 216 Ga. App. 786, 787 (1), 788, supra. The circumstances in the case sub judice are different, however, since this Court did not reach the issue of whether the Hospital is entitled to sovereign immunity in Carter v. Fulton-DeKalb County Hosp. Auth., 209 Ga. App. 384, 387 (4), supra. Consequently, “the law of the case” was not established with regard to the Hospital’s sovereign immunity defense, and as a consequence, the trial court was bound to apply the rule that county hospital authorities are not entitled to sovereign immunity. See Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40, 42 (2), supra. Accordingly, the trial court erred in granting the Hospital’s motion for summary judgment.

Judgment reversed.

Johnson and Ruffin, JJ, concur.

Decided June 26, 1996

Reconsideration denied July 11, 1996.

Smolar, Roseman, Brantley & Seifter, Barry L. Roseman, for appellants.

Alston & Bird, James C. Grant, Robert D. McCallum, Jr, Candace N Smith, for appellee.


author: Ruffin, Judge.

text:
    A96A0623.
    SEVCECH et al. v. INGLES MARKETS, INC. et al.
    (474 SE2d 4)
   Ruffin, Judge.

Duane and Kathy Sevcech sued Ingles Markets, Inc. and three Ingles’ employees (collectively “Ingles”) for damages allegedly resulting from Ingles wrongfully accusing Mr. Sevcech of shoplifting. The Sevcechs’ complaint contains 11 counts asserting various causes of action and alleging that while they were shopping at Ingles’ market, three employees loudly accused Mr. Sevcech of shoplifting, forced him to submit to a body search, knocked him to the ground, and had him arrested. The trial court granted Ingles’ motion for partial summary judgment on the Sevcechs’ claims under Georgia’s Racketeer Influenced & Corrupt Organizations Act (“RICO”), OCGA § 16-14-1 et seq., slander, intentional infliction of emotional distress, negligent hiring, and loss of consortium, and denied the Sevcechs’ motion to compel certain discovery responses. For reasons which follow, we affirm the trial court’s order with the exception of its grant of summary judgment to Ingles on Mr. Sevcech’s claims for slander and intentional infliction of emotional distress.

“[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

1. In two enumerations of error, the Sevcechs contend the trial court erred in granting Ingles summary judgment on their RICO claim. The Sevcechs allege that Ingles’ conduct constituted a pattern of racketeering activity under OCGA § 16-14-4. The complaint further alleges that “Ingles, through this pattern of racketeering activity, acquired or maintained an interest in . . . personal property and money [and that the three individual defendants] participated in the enterprise through this pattern of racketeering activity.” In establishing the pattern of racketeering activity, the Sevcechs apparently rely on previous incidents where Ingles’ employees have falsely accused customers of shoplifting. The trial court ruled that the Sevcechs “failed to sufficiently establish a ‘pattern of racketeering’ which is required under subsections a, b and c of OCGA § 16-14-4. Furthermore, [the Sevcechs] have failed to adequately establish ‘enterprise’ under OCGA § 16-14-4 (b).”

OCGA § 16-14-4 (a) provides that “[i]t is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.” OCGA § 16-14-4 (b) provides that “[i]t is unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.” The General Assembly enacted RICO “to impose sanctions against [the] subversion of the economy by organized criminal elements and to provide compensation to private persons injured thereby. It is not the intent of the General Assembly that isolated incidents of misdemeanor conduct be prosecuted under this chapter but only an interrelated pattern of criminal activity, the motive or effect of which is to derive pecuniary gain. This chapter shall be construed to further that intent.” (Emphasis supplied.) OCGA § 16-14-2 (b).

Construing OCGA § 16-14-4 in light of the legislative intent, it is clear that RICO applies to a pattern of criminal activity where it is directed towards acquiring or maintaining something of pecuniary value. Mere evidence that a person’s criminal conduct constitutes a pattern of racketeering activity is insufficient; RICO’s remedial provisions are intended to address “the increasing extent to which criminal activities and funds acquired as a result of criminal activity are being directed to and against the legitimate economy of the state.” OCGA § 16-14-2 (a).

Accordingly, pretermitting the question of whether Ingles’ conduct in falsely accusing customers of shoplifting constituted a “pattern of racketeering activity” or whether Ingles’ employees participated in an enterprise through a pattern of racketeering activity, we find that the General Assembly did not intend for RICO to proscribe the alleged conduct in this case. Even if falsely accusing customers of shoplifting constitutes a pattern of criminal activity, under the facts of this case it is not conduct intended to derive pecuniary gain as is required by the statute and alleged in the Sevcechs’ complaint. Fur-therm ore, although the Sevcechs are to receive the benefit of all reasonable inferences from the evidence, we cannot conceive how Ingles or its employees had anything to gain, pecuniary or otherwise, from falsely accusing customers of shoplifting. We conclude that the trial court did not err in granting Ingles summary judgment on the Sevcechs’ RICO claim. See Moore v. Barge, 210 Ga. App. 552 (3) (436 SE2d 746) (1993).

2. Mr. Sevcech asserts the trial court erred in granting Ingles summary judgment on his slander claim. Mr. Sevcech alleged in the complaint that when he was speaking with Ingles’ employees in the store office, they accused him “in a loud voice, of having stolen a butane lighter . . . [and that] all of the patrons at the front of the store could and did hear the accusations.” The trial court granted Ingles’ motion upon finding “no evidence that a third party heard the alleged slanderous statements.”

The record shows that an Ingles’ cashier was standing nearby at the time the statements were made. The cashier stated that she heard the Ingles’ managers “arguing with [Mr. Sevcech] that he had stolen something. . . The evidence further showed that there was moderate to heavy traffic in the store at the time, that you could hear the commotion in the office from the cash registers, and that some of the customers standing at the registers could have observed the incident.

Although there is no evidence of record that anyone other than the cashier heard the statement, viewing the facts and reasonable inferences from those facts in a light most favorable to Mr. Sevcech, we conclude that the trial court erred in granting summary judgment on this count. Where there is evidence that allegedly slanderous statements are spoken audibly, and loud enough to be heard, a jury issue is created as to whether the statements were heard. Walter v. Davidson, 214 Ga. 187, 190 (1) (104 SE2d 113) (1958). In this case a jury question remains as to whether any of the customers at the cash registers heard the statement.

3. Mr. Sevcech asserts that the trial court erred in granting Ingles summary judgment on his claim for intentional infliction of emotional distress. The trial court found that there was no evidence that Mr. Sevcech’s emotional distress is severe. We disagree.

“Four elements must be present to support a claim of intentional infliction of emotional distress: (1) The conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe. [Cit.]” Johnson v. Savannah College &c., 218 Ga. App. 66, 67 (460 SE2d 308) (1995). “[T]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress. . . . It is for the court to determine whether on the evidence severe emotional distress can be found.” (Citation, punctuation and emphasis omitted.) Moses v. Prudential Ins. &c., 187 Ga. App. 222, 226 (369 SE2d 541) (1988). In determining the reasonableness of the distress, a court must consider whether the defendants’ conduct was outrageous or egregious. Carroll v. Rock, 220 Ga. App. 260 (2) (469 SE2d 391) (1996).

In this case there is evidence sufficient for a jury to find that Mr. Sevcech’s emotional distress was severe, reasonable and justified under the circumstances. There is evidence in the record showing Ingles’ employees took Mr. Sevcech to the store office where he was accused of shoplifting, assaulted and battered by an Ingles’ employee. Despite the fact that the Ingles’ employees found no stolen merchandise on Mr. Sevcech, they called the police and had him arrested, whereupon police placed Mr. Sevcech in the back of the police car. This evidence is sufficient to create a jury issue as to whether the employees’ conduct was outrageous. Furthermore, Mr. Sevcech stated in his deposition that the event makes him sick, that he trembles when he thinks about it, and that he is full of shame and cannot look at his children. Considering the nature of the conduct that spurred these reactions, a jury would be authorized to find that Mr. Sevcech’s distress was not exaggerated. Under these circumstances, we find the evidence sufficient to authorize a finding that Ingles intentionally inflicted upon Mr. Sevcech severe emotional distress. Accordingly, the trial court erred in granting Ingles summary judgment on this count. See Davis v. Copelan, 215 Ga. App. 754 (6) (452 SE2d 194) (1994).

4. Mrs. Sevcech asserts that the trial court erred in granting Ingles summary judgment on her claim for intentional infliction of emotional distress. We disagree.

Implicit in the requirement that the conduct be intentional is the requirement that it be directed towards the complainant. See Jackson v. Nationwide Credit, 206 Ga. App. 810 (2) (426 SE2d 630) (1992). Where the conduct is directed towards others, not the complainant, he or she cannot establish a necessary element of the claim. Id.

In this case, Mrs. Sevcech contends there is evidence creating a jury issue as to whether Ingles’ conduct was directed towards her. She cites evidence in the record that she saw Mr. Sevcech in the store office and later saw him seated in the police car. However, even construing this evidence and any reasonable inferences in Mrs. Sevcech’s favor, it does not show that Ingles directed its conduct toward her. Accordingly, we agree with the trial court that there is insufficient evidence to create a jury issue as to Mrs. Sevcech’s claim for intentional infliction of emotional distress. See id.

5. Mrs. Sevcech asserts that the trial court erred in granting Ingles summary judgment on her claim for negligent hiring. However, this cause of action is dependent on the survival of Mrs. Sevcech’s claim that the Ingles’ employees were directly liable to her for intentional infliction of emotional distress. See Harvey v. Kidney Center &c., 213 Ga. App. 319, n. 1 (444 SE2d 590) (1994); Duke Trucking Co. v. Giles, 185 Ga. App. 833 (2) (366 SE2d 216) (1988). Because we held in Division 4 that the trial court correctly granted Ingles summary judgment on Mrs. Sevcech’s emotional distress claim, this claim must also fail.

6. Mrs. Sevcech asserts that the trial court erred in granting Ingles summary judgment on her claim for loss of consortium. We disagree.

A claim for loss of consortium is based on the loss of “ ‘a property right growing out of the marriage relationship, and includes the exclusive right to the services of the spouse and to the society, companionship, and conjugal affection of each other.’ [Cits.]” Arnac v. Wright, 163 Ga. App. 33, 34 (292 SE2d 440) (1982). The trial court found that there was no evidence Mrs. Sevcech’s relationship with her husband has been affected by the incident, and we agree.

In her deposition, Mrs. Sevcech testified that the incident has not in any way changed her home life or relationship with her husband, including her physical relationship. She further testified that she has not in any way been deprived of her husband’s services as a result of the incident. Although she stated that his conduct has changed when they visit stores together, she did not claim that these changes resulted in any loss of services or companionship. Rather, Mrs. Sevcech testified that her husband “stays close by” when they go to stores. Such a change in conduct does not amount to a loss of consortium. Accordingly, we conclude that the trial court did not err in granting Ingles summary judgment on this claim.

7. Neither did the trial court err in granting Ingles’ motion for summary judgment on Mr. Sevcech’s loss of consortium claim. Loss of consortium claims are derivative. Rogers v. Fred R. Hiller Co. &c., 214 Ga. App. 448 (3) (448 SE2d 46) (1994). As the trial court correctly granted summary judgment on Mrs. Sevcech’s claims, Mr. Sevcech’s loss of consortium claims were no longer viable. Id.

8. Finally, the Sevcechs assert that the trial court erred in denying their motion to compel Ingles to produce statements taken by a private investigator from Ingles’ employees. The Sevcechs concede that they would not ordinarily be entitled to the statements because they were prepared in anticipation of litigation. See Lowe’s of Ga. v. Webb, 180 Ga. App. 755 (350 SE2d 292) (1986). However, they contend that Ingles waived any objections to the request because it failed to timely file any objections. We disagree.

Decided June 17, 1996

Reconsideration denied July 11, 1996

John T. Longino, for appellants.

Johnson & Kane, Frederick A. Johnson, for appellees.

The Sevcechs apparently served the discovery request with their complaint on July 8, 1994. Ingles’ registered agent mailed the complaint to an Ingles’ vice-president who did not recall whether any discovery requests were attached to the complaint. On August 23, 1994, the Sevcechs’ attorney wrote Ingles demanding responses to the requests. After Ingles informed the Sevcechs’ attorney they had not received the requests, he sent a copy and informed Ingles that if it provided responses within six days he would not seek sanctions. Ingles served responses and objections to the discovery six days later. The trial court found that Ingles’ failure to timely file objections was due to excusable neglect and denied the Sevcechs’ motion.

“ ‘The trial court is vested with a broad discretion over the use of discovery procedures and unless there is a clear abuse of its discretion, appellate courts will not interfere in its rulings.’ [Cit.]” Dept. of Transp. v. APAC-Ga., 217 Ga. App. 103, 108 (7) (456 SE2d 668) (1995). We find no abuse of discretion in the trial court’s denial of the Sevcechs’ motion.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A96A0654.
    A96A0655.
    ASTIN v. CALLAHAN et al. SOUTHERN NATURAL GAS COMPANY v. CALLAHAN et al.
    (474 SE2d 81)
   McMurray, Presiding Judge.

On March 10, 1995, plaintiff Dennis M. Astin brought this tort action against defendants Carl Lamar Callahan (“Mr. Callahan”) and Sylvia Jean Callahan (“Mrs. Callahan”), seeking to recover for personal injuries plaintiff sustained on March 12, 1993, when Mrs. Callahan, while driving Mr. Callahan’s vehicle, “collided into a 1989 CMC Sierra Pickup Truck in which Plaintiff was riding.” This complaint was submitted by Don H. Taliaferro as “ATTORNEY FOR PLAINTIFF” and by G. Scott Hoffman as “ATTORNEY FOR SOUTHERN NATURAL GAS COMPANY.” The Home Indemnity Company and St. Paul Fire & Marine Insurance Company also were served in their capacities as ostensible uninsured motorist carriers. In the Callahans’ joint answer, filed March 23, 1995, Mrs. Callahan admitted “she failed to stop at [a] stop sign,” but they denied the other material allegations and defended, inter alia, on the ground of a prior suit “already pending in the Superior Court of Upson County entitled Dennis M. Astin v. Carl Lamar Callahan and Sylvia Jean Callahan being Civil Action File #94-V-1196 and [contended that] this action should therefore be dismissed pursuant to O.C.G.A. § 9-2-5.” Defendants subsequently moved for summary judgment, supporting their motion with a copy of the first action, Case No. 94-V-1196, filed December 28,1994. Defendants also submitted plaintiff’s voluntary “DISMISSAL WITHOUT PREJUDICE” of that case as of March 29, 1995, i.e., six days after the answer raised the pendency of that first suit.

On July 21, 1995, plaintiff’s employer, Southern Natural Gas Company (“SNG”) filed a response to defendants’ motion to dismiss Case No. 95-V-200 purportedly “on behalf of plaintiff Dennis M. Astin,” contending that dismissal was' unauthorized under OCGA § 9-2-5 because while SNG “is a party in the second action, it was not in any respect a party in the first action.” The trial court concluded that plaintiff Astin’s claim was barred owing to the pendency of the prior suit, and further concluded that SNG, as Astin’s employer, was a statutory assignee under OCGA § 34-9-11.1 which “could take nothing more than that which existed to assign.” Consequently, the trial court dismissed the second suit, Case No. 95-V-200. These appeals followed. In Case No. A96A0654, plaintiff Astin appeals from the dismissal of the second suit, and in Case No. A96A0655, SNG also appeals from that dismissal. As the two cases raise identical enumerations based on the same set of facts, the cases are hereby consolidated for disposition on appeal. Held:

In three related enumerations, SNG and plaintiff Astin contend that the trial court erred in applying the wrong version of OCGA § 34-9-11.1 (and so the wrong limitation period) and further erred in dismissing the second suit.

Case No. A96A0654

1. OCGA § 9-2-5 (a) provides: “No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.” “The effect of [this] defense cannot be avoided even by a dismissal of the first suit. Singer v. Scott, 44 Ga. 659 (1872); McPeake v. Colley, 116 Ga. App. 320 (157 SE2d 562) (1967); Harbin Lumber Co. v. Fowler, 137 Ga. App. 90 (222 SE2d 878) (1975). See also: Cooper v. Public Finance Corp., 146 Ga. App. 250 (246 SE2d 684) (1978).” Steele v. Steele, 243 Ga. 522, 523 (2) (255 SE2d 43). In the case sub judice, the two complaints, the causes, and the defendants are identical except that the second suit expressly alleges that Dennis M. Astin “is Plaintiff pursuant to OCGA [§] 34-9-11.1.” Consequently, the trial court correctly dismissed the second suit as to plaintiff Astin on the basis of a prior suit pending, even though the prior suit had been voluntarily dismissed after commencement of the second action. Steele v. Steele, 243 Ga. 522, 523 (2), 524, supra. All other issues are moot as to plaintiff Astin.

Case No. A96A0655

2. OCGA § 34-9-11.1 (b), as amended by Ga. L. 1995, p. 642, § 2, provides that the “employer or such employer’s insurer [of an injured employee] shall have a subrogation lien, not to exceed the actual amount of [any workers’] compensation paid . . . against any . . . recovery . . .” by the employee in an action against a third-party tortfeasor. “The employer or insurer may intervene in any action to protect and enforce such lien.” OCGA § 34-9-11.1 (b). Any action against such a third-party tortfeasor “must be instituted in all cases within the applicable statute of limitations. If such action is not brought by the employee within one year after the date of injury, then the employer or such employer’s insurer may . . . assert the employee’s cause of action in tort, either in its own name or in the name of the employee.” OCGA § 34-9-11.1 (c). “If after one year from the date of injury the employee asserts his or her cause of action in tort, then the employee shall immediately notify the employer or its insurer . . ., and the employer or its insurer shall have a right to intervene.” OCGA § 34-9-11.1 (c).

SNG correctly argues that the provisions of OCGA § 34-9-11.1, as amended by the 1995 law, are applicable to this case, since plaintiff Astin’s injury took place on March 12, 1993. OCGA § 34-9-11.1 (e); Moore v. Savannah Cocoa, 217 Ga. App. 869, 870 (1) (459 SE2d 580). Consequently, SNG was entitled to protect and enforce any claim to a subrogation lien. But SNG never moved to intervene in either suit, where Dennis M. Astin is the sole entity named as a party plaintiff. See OCGA §§ 9-11-17 (a) (real party in interest) and 9-11-24 (a) (intervention of right). “‘Only a party to the case can appeal from a judgment or one who has sought to become a party by way of intervention, and has been denied that right. (Cits.)’ Johnson v. Rex Evans RV Center, 160 Ga. App. 189, 191 (286 SE2d 509) (1981)." Kubler v. Goerg, 197 Ga. App. 667, 671 (4) (399 SE2d 229). In our view, the fact that the second complaint was jointly submitted by one “ATTORNEY FOR PLAINTIFF” and another “ATTORNEY FOR SOUTHERN NATURAL GAS COMPANY” is insufficient to describe SNG as a party litigant to the complaint captioned Dennis M. Astin, plaintiff, v. Carl Lamar Callahan and Sylvia Jean Callahan, defendants. “We rule this upon the broad principle that no person can successfully assert a beneficial interest under a proceeding who is not, either by name or description, mentioned or referred to in the petition or application constituting the basis thereof.” Anderson v. Walker, 114 Ga. 505, 506 (2), 507 (40 SE 705). Consequently, we dismiss Case No. A96A0655 due to the lack of standing for SNG to prosecute this appeal from the trial court’s dismissal of Civil Action No. 95-V-200, Astin v. Callahan. Gates v. Rutledge, 151 Ga. App. 844 (261 SE2d 757).

Decided June 26, 1996

Reconsideration denied July 11, 1996

Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Zirkle & Hoffman, G. Scott Hoffman, Benjamin E. Pellegrini, Kevin Elwell, for appellants.

Alan W. Connell, for appellees.

Judgment affirmed in Case No. A96A0654. Appeal dismissed in Case No. A96A0655.

Blackburn and Ruffin, JJ, concur. Johnson, J., disqualified.


author: POPE, Presiding Judge. Andrews, Judge,

text:
    A96A0734.
    SORRELLS v. EGLESTON CHILDREN’S HOSPITAL AT EMORY UNIVERSITY, INC.
    (474 SE2d 60)
   POPE, Presiding Judge.

In Richmond County Hosp. Auth. v. Brown, 257 Ga. 507 (361 SE2d 164) (1987), the Supreme Court held that the doctrine of apparent agency applies in medical malpractice cases: a hospital may be liable for a doctor’s negligence, even though the doctor is an independent contractor, if the hospital represents or holds out the doctor as its agent and the plaintiff relies on that representation. Subsequently, in Abdul-Majeed v. Emory Univ. Hosp., 213 Ga. App. 421, 423 (1) (445 SE2d 270) (1994), we held that a question of fact exists regarding whether the hospital holds out the doctor as its agent if the hospital provides the doctor without explicitly informing the patient that the doctor is not its employee. Here, we examine further the question of what a hospital must do to “explicitly inform” the patient of the doctor’s non-employee status, and therefore avoid a jury question regarding its liability for the negligence of the non-employee doctor it provides.

Plaintiff Sir Mitchell Sorrells, a three-and-a-half-year-old boy, lost his left eye as the result of the negligence of Drs. Sternberg and Lopez. Plaintiff’s eye had become infected, and his mother took him to defendant’s emergency room as his pediatrician suggested. The hospital admitted plaintiff and provided Dr. Sternberg as his attending physician; Dr. Lopez was a Resident Fellow working under Dr. Sternberg’s supervision. (Drs. Sternberg and Lopez will be collectively referred to as “the doctors.”) Plaintiff’s expert opined that the doctors should have promptly ordered an eye tap to identify the organism causing the infection. The doctors did not do so, however. Instead they apparently assumed the infection was non-bacterial and began a course of treatment, including the administration of steroids, which failed to help plaintiff and actually worsened his condition, causing the loss of his eye.

At the time the hospital admitted plaintiff and assigned Dr. Sternberg as his attending physician, it did not inform his parents, either by sign or notification form, that Dr. Sternberg was not a hospital employee. During the course of plaintiff’s hospitalization, however, he underwent three procedures which required the signing of informed consent forms by his parents; and on the back of the form, in paragraph 6, the parents acknowledged that physicians on the hospital staff were not hospital employees. Although the language of this acknowledgment was general, the rest of the form spoke only of the particular procedure at issue. Notably, the form included specific questions which a witness was supposed to ask the consenting person, to make sure they understood what they were consenting to. But these questions also addressed only the particular procedure at issue, without mentioning the acknowledgment in paragraph 6. Plaintiff’s parents signed the first of these forms the day after plaintiff was admitted.

Sir Mitchell and his parents brought this action against defendant hospital as well as the negligent doctors. The trial court con-eluded that the acknowledgment in the informed consent forms explicitly notified the parents that the doctors were not hospital employees. It therefore rejected plaintiff’s argument that the hospital could be liable under the doctrine of apparent authority and granted summary judgment for the hospital. Because we conclude there is a jury question regarding whether the acknowledgment on the informed consent forms served to explicitly notify the parents that the doctors were not hospital employees, we reverse the trial court’s grant of summary judgment for the hospital.

1. A plaintiff suing a hospital for the negligence of a non-employee doctor cannot rely upon an apparent agency theory if the plaintiff knew or should have known that the doctor was not an agent of the hospital. Holmes v. Univ. Health Svc., 205 Ga. App. 602 (423 SE2d 281) (1992). Moreover, when the hospital posts “conspicuous signs” in the admissions area which expressly disclaim any agency relationship and has the plaintiff sign an acknowledgment that the doctor is not a hospital employee, we can conclude as a matter of law that the plaintiff knew or should have known the doctor was not the hospital’s agent (i.e., there is no jury question regarding whether the plaintiff knew or should have known, and summary judgment is appropriate). Id.

But that is not the case here. Defendant hospital did not post signs in the admissions area disclaiming any employment or agency relationship. Nor did it have plaintiff’s parents sign an acknowledgment form designed to convey this information at the time of admission. Instead, it included the acknowledgment on the back of a form designed to elicit consent to a specific procedure, and it did nothing to call attention to the acknowledgment, even though it did take steps to call attention to other parts of the form. And it only did this a day after Sir Mitchell had been admitted and his parents had relied on the hospital’s assignment of Dr. Sternberg to accept him as Sir Mitchell’s doctor. Under these circumstances, we cannot conclude as a matter of law that the plaintiff knew or should have known that the doctor the hospital provided was not a hospital employee or agent. This is a question for a jury.

2. Defendant hospital suggests we should overrule Abdul-Majeed and hold, as a matter of law, that a hospital is not responsible for the negligence of non-employee doctors on its staff unless the hospital affirmatively represents that the doctors are its employees or agents. Essentially, this would mean holding that anyone going to a hospital without a doctor should simply know, in the absence of any representation, that the doctors a hospital provides are not the hospital’s agents. We decline to do this, as we do not believe it is realistic.

The law should reflect the reality of human relationships whenever possible. In this context, the reality is that most people who are provided a doctor by a hospital expect that doctor to be the hospital’s employee or agent, and in the current environment in which hospitals prodigiously market themselves as providers of health care, we cannot say that expectation is unreasonable as a matter of law. See Brown, 257 Ga. at 509.

Judgment reversed.

Smith, J., concurs. Andrews, J., concurs specially.

Andrews, Judge,

concurring specially.

I concur specially to point out that Abdul-Majeed v. Emory Univ. Hosp., 213 Ga. App. 421 (445 SE2d 270) (1994), cited by the majority, does not stand for the proposition that a hospital must always “explicitly inform” a patient that a non-employee treating physician is not its agent to avoid liability for the physician’s negligence under a claim that the physician was the hospital’s apparent agent. The theory of apparent agency is inapplicable, as a matter of law, any time the circumstances are sufficient to clearly show that the plaintiff patient knew or should have known that the treating physician was not an agent of the hospital. Holmes v. Univ. Health Svc., 205 Ga. App. 602, 603 (423 SE2d 281) (1992). Even if by furnishing a treating physician a hospital in effect represents that the physician is its employee, and fails to explicitly inform the patient that the physician is not its employee, the patient cannot hold the hospital liable for the non-employee physician’s negligence under apparent agency if the patient otherwise knew or should have known that the physician was not the hospital’s employee. Of course, the surest means of informing a patient that a physician furnished by the hospital is not an employee or agent of the hospital is to inform the patient of this fact in writing prior to providing medical treatment.

In the present case, there was evidence from which a jury could conclude that the hospital represented or held out the treating physicians as its agents. There was also evidence, provided by affidavits from the parents, that they justifiably relied upon this representation in accepting medical treatment for their child from the physicians because they knew of the hospital’s reputation for providing quality medical care. Although the hospital clearly notified the parents of the child in writing the day after the child’s admission that the treating physicians were not agents or employees of the hospital, there was evidence that at least some of the alleged acts of negligence by the physicians had already occurred prior to the written notification. There was no evidence that the parents of the child otherwise knew or should have known that the treating physicians were not employees of the hospital prior to the written notification. Under these circumstances, I agree that a jury question was presented as to whether the hospital could be held liable for the alleged negligence of the non-employee physicians under a claim of apparent or ostensible agency. Brown v. Coastal Emergency Svcs., 181 Ga. App. 893, 896-898 (354 SE2d 632) (1987), aff’d sub nom., Richmond County Hosp. Auth. v. Brown, 257 Ga. 507 (361 SE2d 164) (1987).

Decided June 24, 1996

Reconsideration denied July 11, 1996

Peterson, Dillard, Young, Asselin & Powell, Thomas H. Asselin, James M. Lachance, for appellant.

Sullivan, Hall, Booth & Smith, Alexander H. Booth, Allen & Peters, Paul E. Weathington, Love & Willingham, Daryll Love, Traci G. Courville, Long, Weinberg, Ansley & Wheeler, J. M. Hudgins TV, for appellee.

       As this appeal is from the grant of a motion for summary judgment, we view the evidence in a light favorable to plaintiff as the non-moving party. Actually, a jury question remains with respect to the negligence of Drs. Sternberg and Lopez, but for purposes of this appeal, we assume that the doctors were negligent and that their negligence proximately caused the loss of Sir Mitchell’s eye.

       None of the procedures addressed by the consent forms is the subject of the alleged negligence. Moreover, the alleged negligence — the failure of the doctors to ascertain the cause of the infection before beginning treatment — occurred at least in part prior to the signing of the forms.


text:
    A96A0743, A96A0744.
    INDUSTRIAL DISTRIBUTION GROUP, INC. v. WAITE; and vice versa.
    (474 SE2d 28)
   McMurray, Presiding Judge.

Plaintiff Alvis J. Waite initiated this “COMPLAINT FOR CORPORATE DISSOLUTION, DAMAGES, AND EQUITABLE RELIEF” against the close corporation, defendant Industrial Distribution Group, Inc. (“IDG”), and against IDG’s other shareholders, seeking to dissolve IDG under the provisions of OCGA § 14-2-1430 as an allegedly deadlocked corporation. Plaintiff Waite is “Chief Financial Officer of IDG and Chairman of its Board of Directors.” He owns “45.18 percent of [IDG’s] outstanding shares.” Defendant Douglass C. Smith (“Mr. Smith”) and defendant Sue C. Smith (“Ms. Smith”) respectively own 36.15 percent and 9.04 percent of IDG’s outstanding shares. Defendant Charles L. Lingenfelter owns five percent. Although the bylaws of IDG require the presence of “80 percent of the outstanding shares . . .,” for a quorum, the defendant shareholders allegedly “attempted to and have exercised their control over a mere 51 percent majority ... to attempt to freeze out [plaintiff] Waite’s minority interest in IDG, to enhance their own positions of ownership and control. . . .” On “September 16,1993, defendant Mr. Smith wrongfully . . . attempted to convert a . . . directors’ meeting into an annual shareholders’ meeting (over the protest of plaintiff Waite who was present solely in his capacity as a director of IDG) in order to . . . terminate plaintiff Waite as a director and officer.” In addition to dissolution of the corporation, plaintiff Waite sought to “recover his attorneys’ fees and expenses of litigation pursuant to O.C.G.A. § 9-8-13.”

On February 17, 1995, the trial court entered a final judgment with respect to the dissolution claim, reserving the issue of attorney fees. On the merits, dissolution of the profitable corporation was denied, and the trial court declined to appoint a receiver. But the trial court concluded that IDG was “the author of [its] own misfortune [and comes into court] with dirty hands because [it has] done something foolish,” namely the unworkable 80 percent quorum requirement. IDG was ordered to pay plaintiff a “fee equal to 50 [percent] of the annual compensation” that the defendant shareholders had voted for themselves. The trial court further ordered certain “changes and amendments” to the bylaws. Specifically, the trial court ordered that “Directors of IDG shall be elected by cumulative voting[, and that the] 80 [percent] quorum require[ment] ... is removed, and the quorum . . . shall be a simple majority of the total shares outstanding.” Also, the shareholders were awarded “preemptive right[s]” and the right of first refusal of any stock sold by the existing shareholders. Plaintiff subsequently moved “for an award of $153,248.16 in legal fees and disbursements in connection with plaintiff Waite’s obtaining judgment on his claims . . . relating to dissolution of IDG.” This claim was supported by the affidavit of plaintiff’s counsel as to the amount, and also by the affidavit of another attorney, not representing plaintiff, as to the reasonableness of that amount. The trial court awarded plaintiff “$100,000.00 as reasonable and necessary attorneys’ fees in connection with his claims under Count I of the Complaint. . . .” This direct appeal followed. In Case No. A96A0743, defendant IDG appeals from the award of attorney fees, and in Case No. A96A0744, plaintiff cross-appeals. Held:

Case No. A96A0743

1. Defendant IDG enumerates the award of attorney fees as error, arguing no such award is authorized by OCGA § 9-8-13 in this instance because no receiver was appointed and no res or fund was brought into the custody of the court.

OCGA § 9-8-13 contains in three subsections the substantive provisions of former Code Ann. § 55-315. OCGA § 9-8-13 (a) and (b) expressly refer to the appointment’ of a receiver. Since no receiver was appointed in the case sub judice, defendant is correct that these two subsections provide no authority for the award of attorney fees in this case. Subsection (c), however, provides: “In all cases, the presiding judge . . . shall allow such compensation to the attorney ... filing the original petition ... as their services are reasonably worth.” This Code subsection appears mandatory and does not expressly require the appointment of a receiver or the introduction of a valuable res into the custody of the court. Such a requirement is implied, however, by both the language of OCGA § 9-8-13 (c) and the structure of OCGA § 9-8-13 as a whole. See Reserve Life Ins. Co. v. Ayers, 105 Ga. App. 804, 808 (3), 809 (126 SE2d 448), interpreting former Code Ann. §§ 55-314 and 55-315.

“As a general rule, in the absence of statutory authority, a court of equity cannot under ordinary circumstances, in an adversary proceeding, allow attorneys fees to the prevailing party. [Cit.]” Ewing v. First Nat. Bank &c., 209 Ga. 932, 933 (76 SE2d 791). This general rule is subject to an important exception: “A court of equity . . . will in its discretion order an allowance of counsel fees to a complainant who at his own expense has maintained a successful suit for the preservation, protection, or increase of a common fund or common property, or who has created at his own expense, or brought into court, a fund in which others may share with him. Price v. Cutts, 29 Ga. 142 [(hn. 3)] (74 Am. D. 52); [cit.].” Eckford v. Borough of Atlanta, 173 Ga. 650, 652 (2) (160 SE 773), overruled in part on other grounds, State of Ga. v. Private Truck Council &c., 258 Ga. 531, 534 (5), 535 (371 SE2d 378).

In the case sub judice, plaintiff sought to protect his private rights as a minority shareholder via judicial dissolution under OCGA § 14-3-1430 (2). Had he prevailed on that theory alone, having brought no fund into the court and neither recovering nor protecting or preserving any valuable asset for the corporation, he would have had to bear the expenses of litigation himself. Alexander v. Atlanta & West Point R. Co., 113 Ga. 193 (38 SE 772). Here, however, in addition to protecting plaintiff’s private interest in the value of his investment, the trial court granted substantial relief to all shareholders in the form of cumulative voting, preemptive rights and rights of first refusal. Also, the trial court dissolved the shareholder deadlock (versus the corporation itself) by reducing the quorum requirement to a simple majority. The remedy fashioned by the trial court was not a mere injunction but a dramatic reformation of the bylaws. In our view, this equitable relief was more beneficial to the corporation as an entity and to all of the shareholders than if the requested receiver had been appointed. We hold that relief from shareholder deadlock in a hitherto profitable enterprise is the type of preservation and protection of a common fund as will authorize the equitable award of attorney fees under OCGA § 9-8-13 (c), payable to the plaintiff-shareholder by the defendant-corporation. Ga. Veneer & Package Co. v. Florida Nat. Bank, 198 Ga. 591, 613 (3), 614 (32 SE2d 465). Consequently, we affirm the trial court’s award of $100,000 as reasonable attorney fees in the case sub judice.

Decided June 19, 1996

Reconsideration denied July 11, 1996

Kilpatrick & Cody, Thomas C. Harney, Craig E. Bertschi, for appellant.

Case No. A96A0744

2. In this cross-appeal, plaintiff Waite enumerates as error the failure of the trial court to award the entire amount originally prayed for as reasonable attorney fees, $153,248.16.

“ ‘It [OCGA § 9-8-13 (c)] does not require that the [court] make an allowance in every case, but it does require that [the court] exercise [its] discretion upon such application, and if it is found that from the efforts of counsel moving in behalf of his own client equitable processes of the court are brought into play and given effect, and that as the result the court [renders an equitable decree] from .which all of the parties benefit, the [court] should on such application make a reasonable award to be assessed, just as . . . the fees of the receiver [are] assessed, against the whole fund.’ ” Nixon v. Nixon, 197 Ga. 426, 427 (1), 429 (29 SE2d 613). In the case sub judice, the defendant corporation, freed from the paralysis of shareholder deadlock, represents that “whole fund.” Nevertheless, the rule allowing assessment of attorney fees in any amount “rests upon the premise that where one litigant has borne the burden of litigation which others did not undertake, but which has inured to their benefit as well as his own, those who share in the benefits or fruits of his efforts should ratably share the expenses. City of Atlanta v. Screws, 194 Ga. 214, 216 (21 SE2d 424).” (Emphasis supplied.) Nixon v. Nixon, 197 Ga. 426, 427 (1), 430, supra.

In this case, the award of $100,000, out of the prayed for $153,248.16, puts the onus on those owning 55 percent of the outstanding shares to bear 65 percent of plaintiff’s costs of litigation. “The allowance of counsel fees from a fund is capable of great abuse, and should be exercised with the most jealous caution in regard to the rights of litigants, lest thereby the administration of justice be brought into reproach. In most cases it is better to leave those concerned to contract for the compensation to be paid for the services rendered or received.” Eckford v. Borough of Atlanta, 173 Ga. 650, 653 (4), supra. In the case sub judice, we find no abuse of the trial court’s broad equitable discretion in refusing to award plaintiff additional amounts in excess of his ratable share of the benefits conferred by the instant litigation.

Judgments affirmed.

Johnson, J., concurs. Ruffin, J., concurs in the judgment only.

Bondurant, Mixson & Elmore, H. Lamar Mixson, Jill A. Pryor, for appellee.


text:
    A96A0755.
    DANIELS v. DEPARTMENT OF TRANSPORTATION.
    (474 SE2d 26)
   Ruffin, Judge.

Clemmie Daniels sued the Georgia Department of Transportation (“DOT”) for injuries he sustained in an automobile collision at a state highway intersection. Daniels alleged that the DOT’s negligent design of the intersection and its failure to upgrade the intersection to eliminate safety hazards caused the collision. The trial court granted the DOT’s motion for summary judgment, and Daniels appeals that order. For reasons which follow, we affirm.

“The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). A movant/defendant must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. [Cit.] A movant/defendant may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the non-moving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather[,] must point to specific evidence giving rise to a triable issue. [Cit.]” Papera v. TOC Retail, 218 Ga. App. 777 (1) (463 SE2d 61) (1995). “Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences flowing therefrom .in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each element of the case. [Cit.]” Id.

1. In this case, the DOT met its burden of showing it was exempt from liability for Daniels’ negligent design claim under the design standards exception to the Georgia Tort Claims Act (OCGA § 50-21-24 (10)). This exception provides that the State has no liability for “[t]he plan or design for construction of or improvement to highways ... where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or designLY (Emphasis supplied.) OCGA § 50-21-24 (10).

In this case, the record shows that the design plans for the highway intersection where the accident occurred were completed on March 11, 1940. Accordingly, the DOT would not be liable to Daniels if the intersection’s design substantially complied with the generally accepted engineering or design standards in effect on March 11, 1940. See Dept. of Transp. v. Brown, 218 Ga. App. 178 (1) (460 SE2d 812) (1995); Lynch v. Ga. Power Co., 185 Ga. App. 256 (1) (363 SE2d 777) (1987).

In support of its motion, the DOT presented the affidavit of a transportation engineer who stated that there were no published design guidelines in existence when the highway in this case was designed, and that the first national design guide was approved on October 7, 1940. He concluded that the highway intersection “did not violate any accepted national standards . . . [and that the design] must have been a common intersection design in Georgia during this period since there are so many of these intersections in existence in Georgia.”

In response to the DOT’s evidence, Daniels was required to submit expert testimony or some other competent evidence showing “that the plan or design was not prepared in substantial compliance with generally accepted engineering or design standards at the time [the] plan was prepared.” Brown, supra at 179. Daniels submitted the affidavit and deposition testimony of an engineer, John Glennon, who was familiar with the design standards in effect when the highway plans in this case were finalized. In his affidavit, Glennon stated that based on his education, background, and experience, the design of the highway intersection was not in substantial compliance with generally accepted engineering or design standards in effect at the time. However, in his deposition, Glennon testified that his education, background, experience, and opinion in this case concerning the specific standards applicable to the highway intersection were based on one document titled “A Policy On Intersections At Grade.” The record shows that this document and its standards were not approved until October 7, 1940, approximately seven months after the design plans in this case were finalized.

Because the highway intersection was designed prior to the adoption of these guidelines, neither the guidelines nor Glennon’s testimony “constitute^] evidence which would be admissible for consideration on the issue of [the DOT’s] negligence. [Cit.]” Lynch, supra at 258; OCGA § 50-21-24 (10). Compare Brown, supra (although no published standards existed, evidence showed that plan deviated from generally accepted engineering and design standards). Because Daniels failed to point to any evidence creating a triable issue on this claim, the trial court did not err in granting summary judgment. See Papera, supra.

2. Neither is the DOT liable to Daniels for its alleged failure to upgrade the highway intersection. Daniels contends that the intersection’s design created obvious safety hazards under current design standards and that the DOT therefore had a duty to upgrade the intersection to meet those standards. In promulgating the Georgia Tort Claims Act, the legislature expressly intended that “State government should not have the duty to do everything that might be done. Consequently, it . . . declared to be the public policy of this state that the state shall only be liable in tort actions within the limitations of [the Act] and in accordance with the fair and uniform principles established in [the Act].” OCGA § 50-21-21 (a). As stated in Division 1, the Georgia Tort Claims Act exempts the DOT from liability for highway design deficiencies where the highway was initially designed in substantial compliance with then existing design standards. OCGA § 50-21-24 (10). We find that the legislature intended the DOT’s exemption from liability under OCGA § 50-21-24 (10) to include protection for its failure to upgrade a highway to meet current design standards.

Decided June 19, 1996

Reconsideration denied July 11, 1996

W. Earl McCall, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Eric A. Brewton, C. Latain Kell, Assistant Attorneys General, for appellee.

In determining the extent of the DOT’s liability under the Georgia Tort Claims Act, we must construe its provisions in a manner that will uphold it in every part. Exum v. City of Valdosta, 246 Ga. 169 (1) (269 SE2d 441) (1980). Under this rule of construction, we find that if the DOT is exempt from liability for its initial design of a highway under the Georgia Tort Claims Act, it would make little sense to permit liability for failing to change that initial design. Allowing liability in such cases would effectively eliminate the protection provided the DOT under OCGA § 50-21-24 (10). Accordingly, we must conclude that the only reasonable construction of OCGA § 50-21-24 (10) prohibits the claim asserted here. Thus, the trial court did not err in granting the DOT summary judgment.

Judgment affirmed.

Johnson, J., concurs. McMurray, P. J., concurs in the judgment only.