text:
    A90A0261.
    ELECTRICAL DISTRIBUTORS, INC. v. TURNER CONSTRUCTION COMPANY et al.
    (395 SE2d 879)
   McMurray, Presiding Judge.

Electrical Distributors, Inc. (“EDI”) appeals from the denial of its motion for summary judgment and the grant of summary judgment in favor of appellees Turner Construction Company (“Turner”) and Federal Insurance Company (“Federal”) in a suit to enforce its lien rights against a construction project for materials furnished but not paid for. The owner of the property contracted with Trans-Con Construction Company (“Trans-Con”) to construct a building to be known as the Buckhead Plaza. Trans-Con subcontracted the electrical portion of the project to Electrical Management, Inc. (“EMI”), which then contracted with EDI to supply electrical and lighting materials. On May 19, 1987, EDI filed a claim of lien against EMI for materials delivered but not paid for. At that time there remained $3,158,903 to be paid to the general contractor under the contract price. On June 3, 1987, EMI filed a petition in bankruptcy, thus allowing an action to be brought directly against the owner under OCGA § 44-14-361.1 (a) (4). Turner, having merged with Trans-Con, assumed all of the obligations of Trans-Con under its contract with the owner and on October 7, 1987, Turner, as principal, and Federal, as surety, filed a bond to discharge EDI’s lien.

EDI initiated the instant action on January 2, 1988, to foreclose on its lien. The owner was subsequently dismissed as a party pursuant to OCGA § 44-14-364, which provides that the sole remedy in such actions is against the bond filed by the owner. EDI alleged that the unpaid invoices totalled $117,538.58 with interest accruing according to the terms of the contract with EMI, and moved for summary judgment. In a cross-motion for summary judgment, appellees raised three defenses, including the “contract price” defense found in OCGA § 44-14-361.1 (a) (4) and (e), the obtaining of lien waivers, and EDI’s intermingling of its accounts. After submission of briefs and oral arguments, the trial court denied EDI’s motion, ruled unfavorably to appellees on their first two defenses, but granted summary judgment on the ground that by failing to maintain separate accounts for each construction project for which it had supplied materials to EMI, EDI had waived its lien rights. See Artistic Ornamental Iron Co. v. Long, 113 Ga. App. 464 (148 SE2d 478) (1966). EDI’s motion for reconsideration of this judgment was denied and it appeals from both orders. Held:

1. EDI admits that it assigned one “customer number to EMI ... for all jobs done by EMI in Georgia . . but argues that it “maintain [ed] the separateness of its billings for each project. . .” by treating “each individual invoice [as] a separate ‘account’ in which EMI became indebted through the purchase of materials.” More specifically, EDI argues that it maintained segregated billings by issuing one invoice for each EMI order, by describing the project of delivery on each invoice, by requiring EMI to designate payments to specific invoices and by issuing monthly statements showing which EMI invoices remained unpaid.

In Rickman Bros. Lumber &c. Co. v. Martin, 144 Ga. App. 39 (240 SE2d 308), it was recognized “that the law requires the claimant to preserve the unity of his claim against particular property, and if he does not ‘but so mingles it with other claims as to necessitate a process of separation by the courts, it may well be held that he has waived his lien.’ ” Id. at 40. However, the plaintiff in Rickman Brothers avoided lien waiver because it “did keep track, by invoice numbers in its general ledger, of the type and cost of materials furnished to each job so that it could assemble this information at any time.” Id. at 41. Likewise, in Maloy v. Planter’s Warehouse &c. Co., 142 Ga. App. 69, 70 (1) (234 SE2d 807), this Court found no waiver where the purchase tickets specified the individual job and reflected whether or not there had been any payments made. Id. at 72.

In the case sub judice, EDI introduced copies of unpaid invoices for electrical materials and lighting supplies furnished to EMI for the Buckhead Plaza project. These invoices support EDI’s $117,538.58 claim. Further, EDI’s accountant explained that when a payment check was received from EMI the amount paid was entered against the invoice number designated on the check stub and that, if no invoice number was so designated, then EMI was contacted for direction as to application of the amount paid. The accountant also explained that invoices were removed from EMI’s account as they were paid and that at the end of each month a statement was prepared showing the job number, name and balance owed. This evidence supports a finding that EDI did not waive its lien rights because of intermingling. See Maloy v. Planter’s Warehouse &c. Co., 142 Ga. App. 69, 70 (1), 71 (ii), supra. Each invoice was in effect a separate account, satisfied according to the direction of EMI. It therefore follows that EDI established a prima facie right to summary judgment. Nonetheless, appellees generally dispute the accuracy of EDI’s claim. However, they offer no sworn testimony to contradict the evidence submitted by EDI.

“Generalized arguments amounting to mere conclusions have no probative value to pierce the facts presented by the movant for sum- . mary judgment. [Cit.]” Jay Gleason Advertising Svc. v. Gleason, 193 Ga. App. 445 (2) (388 SE2d 43) (1989). “[W]here a plaintiff files . . . a motion for summary judgment, and evidence is offered on the issue, if the plaintiff establishes a prima facie right to summary judgment, a defendant may not rest upon conclusory allegations or defenses in his pleadings, but must come forward with facts showing a genuine issue remains for trial.’ [Cit.]” Thomasson v. Pineco, 173 Ga. App. 794, 796 (328 SE2d 410) (1985). Accord International Furniture Distributors v. Lifshultz Fast Freight, 176 Ga. App. 102 (335 SE2d 628) (1985). “In order to counter a properly supported motion for summary judgment, the opposing party ‘must set forth specific facts showing that there is a genuine issue for trial.’ OCGA § 9-11-56 (e).” Doug Howie’s Paces Ferry Dodge v. Chrysler Credit Corp., 191 Ga. App. 556, 560 (382 SE2d 364) (1989). Here, the appellees failed to satisfy this burden.

2. Appellees argue in their brief that the trial court improperly denied their motion for summary judgment on their contract price defense, and contend that even though no cross-appeal was taken from that determination they are entitled to raise the issue on this appeal as any other judgments, rulings or orders rendered in the case which may affect the proceedings below may properly be reviewed by the appellate court. See Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980); Georgia Society of Plastic Surgeons v. Anderson, 257 Ga. 710 (363 SE2d 140) (1987). As explained in Georgia Society of Plastic Surgeons v. Anderson, supra, “[t]he general rule is that an appellee must file a cross-appeal to preserve enumerations of error concerning adverse rulings. [Cit.] However, a ruling that becomes material to an enumeration of error urged by an appellant may be considered by the appellate court without the necessity of a cross-appeal. [Cits.]” Id. at 711. In the case sub judice, the validity of the contract price defense raised by appellees is material to a determination of whether the grant of summary judgment was correct, although for the wrong reason, and thus will be considered. See Reese Realty Co. v. Pal Realty, 182 Ga. App. 215, 216 (2) (355 SE2d 125) (1987).

As principal and surety on the bond posted to discharge EDI’s lien claim, appellees were entitled to assert any defenses which would otherwise belong to the owner, such as the Contract price defense found in OCGA § 44-14-361.1 (a) (4). This subsection provides in part “that in such action for recovery, the owner of the real estate improved, who has paid the agreed price or any part of same, may set up the payment in any action brought and prove by competent and relevant evidence that the payments were applied as provided by law, and no judgment shall be rendered against the property improved.” OCGA § 44-14-361.1 (e) further specifies that “[i]n no event shall the aggregate amount of liens set up by Code Section 44-14-361 exceed the contract price of the improvements made or services performed.” The focus of this defense is the amount the owner of the property has spent under the contract at the time the lien was filed, for the claimant is entitled to recover only the balance of the contract price remaining to be paid at the time the lien was filed; once a lien is filed, payments to others are made at the peril of the owner. See Green v. Farrar Lumber Co., 119 Ga. 30 (46 SE 62) (1903).

Citing Adams v. W. P. Stephens Lumber Co., 158 Ga. App. 761 (282 SE2d 217) (1981) and Young v. Harley-Mitchell Hardware Co., 173 Ga. 35 (159 SE 567) (1931), as authority, appellees argued that because either Trans-Con, as general contractor, or Turner, as its successor, were paid the full amount owed under the contract by the owner, but expended an amount beyond the contract price, any payment to EDI on its lien was precluded. The trial court found this defense to be inapplicable as it was premised upon the amount spent by the general contractor, rather than the owner. The trial court distinguished Adams and Young because in those cases the general contractor had defaulted on the contract, thereby breaching the contract between itself and the owner and forcing the owner to expend more funds to hire another contractor to complete the project. Unlike Adams and Young, in the case sub judice, the general contractor completed the construction, and while the subcontractor EMI did abandon the project, this abandonment did not affect the contract price between the owner and the general contractor.

We find the issue of the validity of appellees’ contract price defense to be controlled by the recent decision of this Court in Mayer Elec. Supply Co. v. Federal Ins. Co., 195 Ga. App. 191 (393 SE2d 270) (1990), which involved a suit brought against the same appellees to foreclose another materialman’s lien. There we held that “an owner’s mere payment of the full contract price to the contractor, standing alone, is not and has never been a complete defense to foreclosure of a materialman’s lien.” Id. at 192. The requirement in OCGA § 44-14-361.1 (a) (4) for an owner to prove that such payments were “applied as provided by law” means, as explained in Mayer, that “an owner must not only show that full payment was actually made to the contractor, he is also ‘required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor’s statutory affidavit concerning such indebtedness had been obtained. (Cits.)’ [Cit.]” Id. at 192. Where, as here, the liens were filed prior to payment of the full contract price to the general contractor, “payment that is thereafter made to any other materialman as a potential lien claimant is not payment which is ‘properly appropriated’ and may not be set up by the owner in defense of the subsequent foreclosure of those previously filed liens. ‘ “If a claim of lien has been filed and recorded, then the owner must see that the materialman or laborer is satisfied out of the money paid by him to the contractor, or he will be held liable for the amount in the event, upon suit brought, it should be determined the claim was valid.” ’ (Emphasis omitted.) [Cit.]” Id. at 193-194.

Application of these principles to the facts in the case sub judice, as was done in Mayer Elec. Supply Co. v. Federal Ins. Co., 195 Ga. App. 191, supra, demonstrates the same results: “Contrary to the Surety’s assertions, the consequences resulting from the abandonment of the project by the Subcontractor were the responsibility of the Contractor and that abandonment has no bearing on the Material-man’s right to foreclose its lien for such materials as were furnished to the Subcontractor and actually used in the project. ‘ “(W)here the original contractor completes the work in accordance with the contract, the property owner will be responsible to mechanics, material-men, and subcontractors who have fulfilled their contracts, and who have observed the requirements ... of the statutes for the amount of their claims that do not aggregate more than the contract price, although the owner may have paid the original contractor the full contract price. . . .” ’ [Cit.] The Materialman filed its claim of lien before the Owner paid the full contract price to the Contractor. Accordingly, the Surety did not meet its burden of showing that the sums paid by the Owner to the Contractor as full payment of the contract price were ‘properly appropriated’ so as to defeat the Materialman’s lien. As previously noted: ‘(W)here claims of liens have been duly recorded, payments made to other materialmen and laborers with the money of the owner will be no reply to the claim of such materialmen or laborers so recording their liens.’ [Cit.] It follows that the trial court [did not err in denying] summary judgment in favor of the Surety.” Id. at 194-195.

“ ‘When . . . the movant is the defendant, he has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint.’ [Cit.]” Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595, 596 (370 SE2d 843) (1988). Having failed to pierce EDI’s allegations and affirmatively negate at least one essential element of its case, appellees were not entitled to summary judgment. Burns v. Gleason, 183 Ga. App. 245, 246 (1) (358 SE2d 646) (1987).

In our consideration of appellees’ contention that the trial court improperly denied their motion for summary judgment on their contract price defense, we hold that although the trial court erred in granting appellees’ motion for summary judgment on the ground that EDI had waived its lien rights, the court correctly determined that the contract price defense did not afford appellees a valid ground for the grant of their motion,

3. Appellees insist that EDI’s motion for summary judgment was properly denied because it did not show that specific materials were actually delivered to the construction site or used in construction of the Buckhead Plaza project. Again, appellees have “presented no evidence to indicate that the materials were not used on their property but merely disputed the sufficiency and accuracy of [EDI’s] evidence.” Taverrite v. Lowe’s of Franklin, 166 Ga. App. 346, 347 (1) (304 SE2d 78) (1983). Moreover, “[a] materialman is not required to show that the materials for which he claims a lien were actually used on the job of the owner against whose interest he is asserting his lien. ‘It is the general rule that there is a presumption of the use of materials in a building or improvement arising from the fact of their delivery thereto for that purpose, and the burden is then on the property owner to prove that the material was not so used. (Cits.) . . .’ Where a materialman furnishes and delivers to the owner’s contractor or agent materials in reliance upon the owner’s representation that the materials are intended for the improvement of his property, the owner is estopped, as between himself and the materialman, to contend that it was not in fact so used. [Cits.]” Maloy v. Planter’s Warehouse &c. Co., supra at 71.

Thus, the fact that EDI’s accountant was unable to identify some persons who signed the invoices upon delivery to the Buckhead Plaza project, that some items were picked up by EMI’s employees, or that some items were delivered to EMI’s shop rather than the job site, does not prove that the materials were not used in the Buckhead Plaza project and afforded no ground for denial of EDI’s motion for summary judgment.

“Summary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and ‘while there may be some “shadowy semblance of an issue” (cit.), the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.’ [Cits.]” Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 424 (373 SE2d 515) (1988). “ ‘ “When a motion for summary judgment is submitted and supported by evidence, the adverse party may not rest his case as made, but must set forth specific facts and present his case in full in order to show there is a genuine issue for trial. (Cits.)” (Cit.) The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. (Cit.) “(I)f the defenses set up in an answer are pierced by the plaintiff’s affidavits and the defendant fails to respond with specific facts showing a genuine issue for trial, summary judgment is properly granted.” (Cit.)’ [Cit.]” Coleman v. McDonald’s Corp., 185 Ga. App. 628, 629 (365 SE2d 282) (1988). Accord Phillips v. Plymale, 191 Ga. App. 338, 339 (1) (381 SE2d 580) (1989). Consequently, since EDI segregated its accounting process so as to avoid intermingling and since EDI presented undisputed evidence to support its $117,538.58 claim, the trial court erred in failing to grant EDI’s motion for summary judgment.

Decided June 27, 1990

Rehearing denied July 13, 1990 — Cert, applied for.

Bovis, Kyle & Burch, John V. Burch, Matthew D. Williams, for appellant.

Alston & Bird, John I. Spangler III, for appellees.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.

       In effect, appellees’ defense is premised on the basis of insufficient evidence, rather than disputed evidence. Indeed, other than one invoice for the Buckhead Plaza project which was inadvertently charged to a wrong customer number, they have made no showing that any of the documents submitted by EDI were not valid proof of its claim.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A90A0413.
    ANNEEWAKEE, INC. v. HALL.
    (396 SE2d 9)
   Banke, Presiding Judge.

The appellee, Barbara Hall, acting individually and as administratrix of the estate of her late husband, J. D. Hall, brought this action against the appellant, Anneewakee, Inc., seeking to recover damages for its alleged negligence in failing to foresee and prevent the fatal shooting of Mr. Hall by one Billy Ray White. The case was tried before a jury, which awarded the appellee $506,000 in actual damages and $500,000 in punitive damages. However, the trial court reduced this award by $200,000 to reflect the plaintiff’s receipt of a settlement in that amount on a claim against the State of Florida arising from the same incident. This appeal followed.

At all times relevant to this case, Anneewakee, Inc., operated an in-patient juvenile psychiatric facility in Douglas County, Georgia. In early 1985, Agnes Tucker, a juvenile counselor with the Florida Department of Health and Rehabilitative Services (DHRS), submitted an application for admission to Anneewakee on behalf of Billy Ray White, a 13-year-old Florida youth. Ms. Tucker thereafter scheduled an appointment to bring White to the Anneewakee facility on March 27, 1985, for testing and evaluation to determine his suitability for the Anneewakee program, it being understood that in no event would he be admitted to the facility on that date.

Ms. Tucker and White flew to Atlanta from Jacksonville, Florida, on the morning of March 27th with reservations to return to Jacksonville that evening. They immediately proceeded in a rented car to the Anneewakee facility in Douglas County, where White underwent interviews and tests until approximately 3:30 p.m. At that time, they got back into the rental car and set out on what was to be the return trip to the airport. Although White had been cooperative during the tests and interviews, he opened the car door and fled into the woods as Ms. Tucker was about to turn onto the main road from the Anneewakee driveway. After attempting without success to find him in the immediate vicinity, Ms. Tucker drove back to the Anneewakee facility to report his escape. A social worker employed by Anneewakee immediately telephoned the office of the Douglas County Sheriff, reported what had happened, and provided a physical description of the boy.

Later that afternoon, a deputy sheriff arrived at Anneewakee and interviewed Ms. Tucker about the incident. She stated during this interview that White was emotionally disturbed and without money, that he would not hesitate to break into a home in search of food and that care should be used in approaching him. Later that day, Ms. Tucker drove to the sheriff’s office of her own initiative, reiterated that White was emotionally disturbed and suggested that tracking dogs be utilized to locate him. She was advised at this time that no tracking dogs were available and that due to personnel limitations, it was possible that no search at all would be conducted for him that night. Ms. Tucker then returned to the area where White had escaped, reported the situation to the operators of a nearby convenience store and advised them to call the sheriff’s department if they obtained any information about the youth. She returned to Florida later that night but telephoned the sheriff’s department the following day to inquire about the status of the investigation. She testified that no one seemed to know about White’s escape at this time, so she again reported what had happened, emphasizing that the boy was emotionally disturbed and suicidal and that he had perpetrated a series of burglaries in the State of Florida.

That same day, i.e., March 28, the sheriff’s department received a report that some clothing had been stolen from a car on the Anneewakee grounds and that the “juvenile that ran away from [Anneewakee] 3-27-85 [had] possibly perpetrated the incident.” The department also received a report that day that a truck had been stolen from the decedent’s property. White remained at large for a total of three nights. On the morning of March 30, 1985, he shot and killed the decedent while attempting to steal another truck from his property. Held:

1. Anneewakee contends that it was entitled to a directed verdict due to the absence of a causal relationship between its conduct and the decedent’s death. We agree.

“To state a cause of action for negligence in Georgia, the following elements are essential: ‘(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.’ [Cit.] ” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). “On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” Prosser and Keaton on Torts (5th ed. 1984), § 41, p. 269.

The appellee’s claim against Anneewakee was based on allegations that it knew or should have known of White’s homicidal tendencies yet failed to impart that knowledge to law enforcement authorities. The basis for this asserted knowledge on Anneewakee’s part was a statement appearing in a psychological evaluation which it had received from the Florida DHRS to the effect that White’s “antisocial attitudes and underlying rage [were] so severe that [he] would [be] regard [ed] as a distinct homicidal threat in the future.” However, given the affirmative steps taken by Ms. Tucker to impress upon the sheriff’s department the seriousness of the situation and given the lack of response elicited by her actions in this regard, we do not believe there is any reasonable basis for an inference that the department would have intensified its search efforts significantly had it known that there was a Florida psychologist who held the opinion that the youth should be regarded as potentially homicidal. Although the Douglas County Sheriff testified that his department would have made greater efforts to locate White and “would have caught that kid” had this information been brought to its attention, such testimony must be considered entirely conclusory and self-serving under the circumstances. If Ms. Tucker’s insistent warnings to the department regarding White’s emotional problems and history of criminal behavior were insufficient to convey the message that he was potentially dangerous, it is only through the sheerest of speculation that it could be concluded that a copy of the Florida psychological evaluation would have succeeded where she had failed. Consequently, being unable to discern any evidentiary basis for an inference that the decedent’s death would have been avoided but for the sheriff’s department’s ignorance of the contents of this document, we hold that the trial court erred in denying Anneewakee’s motion for a directed verdict.

Decided June 20, 1990

Rehearing denied July 13, 1990 — Cert, applied for.

Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Lance D. Lourie, for appellant.

Howe & Dettmering, Donald B. Howe, Jr., W. O’Neal Dettmering, Jr., for appellee.

2. The appellant’s remaining enumerations of error are rendered moot by the foregoing.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


author: Pope, Judge.

text:
    A90A0615.
    PREVOST v. TAYLOR.
    (396 SE2d 17)
   Pope, Judge.

Plaintiff James Thomas Taylor filed a medical malpractice claim against defendant Maurice G. Prevost, M.D. The jury returned a verdict in favor of plaintiff and defendant appeals.

1. Plaintiff’s expert witness based his opinion not only upon a review of the plaintiff’s medical records but also upon a physical examination of the plaintiff. Defendant filed a motion for an order permitting one of his expert witnesses to examine the plaintiff pursuant to OCGA § 9-11-35. Defendant asserts the trial court erred in denying his motion. The order denying defendant’s motion shows it was based in part on a finding that the information sought under the motion for examination could be obtained from other available sources. The record shows the medical records for all treatment received by plaintiff after the surgery performed by defendant were available to defendant. Thus, the trial court did not abuse its broad discretion in denying defendant’s motion. See Sheffield v. Lockhart, 151 Ga. App. 551 (1) (260 SE2d 416) (1979) and cases cited therein. See also Shannon v. Huntley’s Jiffy Stores, 174 Ga. App. 125 (1) (329 SE2d 208) (1985).

2. Neither did the trial court err in granting plaintiff’s motion in limine prohibiting the defendant from establishing at trial that he had requested the opportunity to examine the plaintiff but plaintiff had objected. It would have been improper for the defendant to draw attention to the objection of the plaintiff which had been sustained by a ruling of the court. See Savannah &c. R. Co. v. Wainwright, 99 Ga. 255 (2) (25 SE 622) (1896). The ruling on the motion in limine expressly applied to both plaintiff and defendant. Consequently, the defendant was not disadvantaged before the jury by not being able to explain that he had requested an examination because the plaintiff was also prohibited from discrediting the opinions of defendant’s expert by establishing that those opinions were not based on a physical examination.

3. Defendant asserts that the trial court erred in overruling his objection to the question eliciting the opinion of plaintiff’s expert witness because it was not propounded in the form of a hypothetical question. Plaintiff’s attorney asked the expert if he had an opinion based on his review of plaintiff’s medical records and his examination of the plaintiff. “When an expert testifies to facts within his knowledge, it is not necessary that the question propounded be stated hypothetically. An expert may base his opinion upon facts which he knows and has observed.” Corbin v. State, 81 Ga. App. 353, 354 (58 SE2d 485) (1950). Accord Ware v. State, 252 Ga. 90 (3) (310 SE2d 908) (1984). The medical records on which the witness based his opinion had not at that point been admitted into evidence. However, that all the facts upon which the witness based his opinion had not yet been admitted into evidence does not preclude him from offering his opinion. The facts upon which an expert bases his opinion may be presented either on direct or cross-examination because the basis of the opinion relates to the weight to be given the testimony by the jury and not its admissibility per se. State Highway Department v. Howard, 119 Ga. App. 298 (6) (167 SE2d 177) (1969).

4. Defendant also asserts the trial court erred in overruling his objection to the question posed by plaintiff’s attorney to defendant’s expert witness as to whether he would have personally chosen to undergo the surgery performed by the defendant if he, himself, had been the patient. It is true, as defendant argues, that the issue in a medical professional negligence action is whether the treatment met the standard of care of the profession generally and not what any one individual doctor believes is advisable. However, those cases cited by defendant involved instances where the only testimony presented to support plaintiff’s claim is the individual view of one doctor and no testimony was presented as to the standard of care generally practiced by the profession. See Simpson v. Dickson, 167 Ga. App. 344 (1) (306 SE2d 404) (1983). Kenney v. Piedmont Hospital, 136 Ga. App. 660 (3) (222 SE2d 162) (1975); Mayo v. McClung, 83 Ga. App. 548 (2A) (64 SE2d 330) (1951). Here, plaintiff did not present the individual opinion of defendant’s expert for the purpose of establishing the acceptable standard of care but offered it to impeach the expert’s opinion that the surgery performed by defendant met the standard of care of the profession generally. “Evidence tendered for impeachment purposes need not be of the kind or quality required for proving the facts.” (Citation and punctuation omitted.) Pound v. Medney, 176 Ga. App. 756, 761 (337 SE2d 772) (1985). See also Quinn v. State, 132 Ga. App. 395 (2) (208 SE2d 263) (1974).

Decided June 25, 1990

Rehearing denied July 13, 1990.

Newton, Smith, Durden & Kaufold, Wilson R. Smith, for appellant.

Doremus & Jones, Bobby T. Jones, for appellee.

5. We disagree that the plaintiff’s attorney improperly published to the jury the text of a medical treatise during his cross-examination of defendant’s expert witness. “A party can prove by cross-examination of an opposing party’s expert that a treatise is standard on the subject.” Pound v. Medney, supra at 762. An examination of the transcript shows plaintiff’s attorney did not improperly present the text to prove the opinions of the author but questioned the witness whether the opinions expressed in the text were also his own. See State Highway Dept. v. Willis, 106 Ga. App. 821 (3) (128 SE2d 351) (1962).

6. Defendant has abandoned one of its remaining enumerations of error by failing to support it with argument or citations of authority. See Rule 15 (c) (2) of the Rules of the Court of Appeals of Georgia. Those remaining enumerations of error which were argued in the brief relate to the sufficiency of the trial court’s charge to the jury on the law of professional medical negligence and the court’s failure to charge five of defendant’s requested charges. We find the charge as given is proper and adequate. “[R]efusal of a request [to charge] is not error where a correct instruction by the trial court dealing with the principles of law embodied in the request, although in more abstract terminology, is given . . . .” Johnson v. Myers, 118 Ga. App. 773, 775 (165 SE2d 739) (1968).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0661.
    VERNON BOWDISH BUILDER, INC. v. SPALDING LAKE HOMEOWNERS’ ASSOCIATION, INC.
    (396 SE2d 24)
   Pope, Judge.

Plaintiff Vernon Bowdish Builder, Inc., purchased lots in a residential subdivision on which it built speculative houses for sale. The plat to the subdivision showed a “lake” or “retention pond” on the property. Alleging, inter alia, that the lake was never properly constructed and once it was dedicated to the homeowners’ association it was never properly maintained, plaintiff brought suit against the developer, an architectural firm hired by the developer and defendant Spalding Lake Homeowners’ Association, Inc. Summary judgment was granted to all three defendants and plaintiff appeals only the judgment in favor of the homeowners’ association.

Although plaintiff, appearing pro se by its president, as the representative of plaintiff corporation, sets forth several enumerations of error, the sole issue on appeal is whether defendant breached any duty, in contract or in tort, owed to the plaintiff. Plaintiff’s president admitted on deposition that the duty allegedly owed by defendant arose from its duty to maintain the common areas of the development as set forth in the declaration of covenants filed by the developer of the subdivision. The record reflects that after the lake was dedicated to the homeowners’ association the board of directors of the association expended funds and took certain actions to maintain and improve the lake. The record reflects that the essence of plaintiff’s complaint against the homeowners’ association is that it did not take what its president believes were the necessary steps to maintain the lake at a water level which the president believes to be minimally acceptable.

The controversy concerns a difference between the judgment and actions taken by the board of directors of the homeowners’ association and the judgment of plaintiff’s president, who was at all times relevant to this lawsuit a member of the homeowners’ association. The decision of the majority of directors of a corporation is not actionable unless the facts show: “1. Some action or threatened action of the directors beyond the charter powers; or 2. Such a fraudulent transaction; ... or, 3. That a majority of the officers and directors are acting in their own interest in a manner destructive of the [corporation], or of the rights of the other stockholders^]” Regenstein v. J. Regenstein Co., 213 Ga. 157, 158 (97 SE2d 693) (1957). Plaintiff’s complaint does not allege any act or omission by the homeowners’ association which would be actionable. At most, plaintiff’s complaint alleges and the evidence presented by plaintiff shows merely that the homeowners’ association acted negligently. “No principle of law is more firmly fixed in our jurisprudence than the one which declares that the courts will not interfere in matters involving merely the judgment of the majority in exercising control over corporate affairs.” (Citation and punctuation omitted.) Id. at 159. Summary judgment is appropriate where, as here, the record reflects no genuine issue of material fact exists. Fort v. Boone, 166 Ga. App. 290 (304 SE2d 465) (1983).

Decided June 26, 1990

Rehearing denied July 13, 1990 — Cert, applied for.

Vernon Bowdish, pro se.

Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Joseph B. Atkins, for appellee.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


author: Sognier, Judge. Carley, Chief Judge,

text:
    A90A0677.
    FRANKLIN et al. v. HENNRICH et al.
    (395 SE2d 859)
   Sognier, Judge.

Reba Franklin and James C. Franklin brought suit against Jeffrey Lewis Hennrich and Sarah Heydrick seeking damages for pain and suffering and loss of consortium incurred as the result of an automobile collision between Reba Franklin and Heydrick. The jury returned a verdict in favor of the defendants, and the Franklins appeal.

1. Appellants enumerate the denial of their motion for new trial on the general grounds. The evidence at trial established that the collision occurred at the intersection of North Church Street and West Walker Street in Thomaston, Georgia. North Church Street is one way heading south with three lanes, the easternmost lane being reserved for parking. Traffic on North Church crests a small hill just before the intersection with West Walker. A stop sign at the intersection controls the east-west traffic on West Walker, but there is no stop sign for southbound traffic on North Church Street.

On the date in issue, appellee Hennrich had parked the tractor trailer truck he was driving in the parking lane on North Church Street with the emergency flashing lights activated. The evidence is uncontroverted that he was properly within the parking lane and was not infringing on the yellow curb, which maintained an eleven foot strip from the North Church Street parking area to the intersection with West Walker. A second tractor trailer truck, not involved in the case sub judice, was parked directly behind Hennrich’s. Hennrich testified that before leaving the truck he checked to make sure it was properly parked. He stated he did not know he was obstructing the vision of vehicles entering the intersection from the east side of West Walker.

Appellee Heydrick testified that she was travelling west on West Walker with another vehicle behind her. The evidence is uncontroverted that she came to a stop in accordance with the stop sign at the intersection, but due to the presence of the tractor trailer trucks she could not see the oncoming traffic heading south into the intersection on North Church. Due to the vehicle behind her Heydrick could not back away from the intersection. Heydrick testified that she “eased out” into the intersection. She could not see the top of the hill and did not see the automobile driven by appellant Reba Franklin. Franklin’s car collided with the passenger side of Heydrick’s car, and the force of the impact propelled Heydrick’s car back into Hennrich’s tractor trailer truck, leaving 15 feet of skid marks.

Tom Wilkins testified that minutes before the accident he had approached the intersection in his vehicle from the same direction as Heydrick, but upon realizing the view was obstructed, he had been able to back up and drive through the parking lot of the adjacent restaurant and thus avoid the intersection. He testified he saw the collision occur and saw Heydrick’s vehicle “pull just far enough beyond the trucks” for the other automobile to hit it.

Appellant Reba Franklin testified that she was driving in the westernmost lane on North Church Street travelling 35 to 37 miles per hour on dry pavement. She did not see and testified she had no reason to notice the 116 feet of tractor trailer trucks parked two lanes to her left. She stated she did not see Heydrick’s vehicle, that “ [a]ll of a sudden it was there.” She slammed on her brakes as hard as she could, leaving 27 feet of skid marks on the road. The automobiles collided in the middle of the intersection in appellant’s (westernmost) lane. Appellant was propelled into the dashboard where she injured her head and hurt her knees, aggravating a pre-existing osteoarthritic condition.

“On appeal, we do not weigh evidence, for the jury has already done that; and once the jury has done so, every inference and construction in the evidence is indulged in favor of the verdict so as to uphold it. [Cits.]” Pointer v. Cooley, 191 Ga. App. 548 (1) (382 SE2d 359) (1989). From the evidence adduced at trial, a jury reasonably could have determined that appellee Hennrich had non-negligently parked his truck and that appellee Heydrick had entered the obstructed intersection using all due caution, but that appellant Reba Franklin had approached the intersection without due regard to the vision difficulties posed by the properly parked trucks and had failed to observe Heydrick’s vehicle entering the intersection. From the skid marks left by the automobiles and the resting position of Heydrick’s vehicle (two lanes opposite from the direction she was travelling), the jury could have determined that the speed of appellant Reba Franklin’s vehicle exceeded the safe speed proper for the intersection in question under the circumstances presented.

“ ‘This court will not disturb a judgment when there is any evidence to sustain it, in the absence of a material error of law. [Cit.] If the verdict is wholly without supporting evidence, it will be set aside, but where the evidence is in conflict and a properly instructed jury resolves the conflicts against the plaintiff, and that decision is approved by the trial judge and is supported by the evidence of record, this court, in the absence of material errors of law, will affirm. [Cit.] The trial court did not err [by] denying [appellants’] motion for new trial.’ [Cits.]” Weathers v. Foote & Davies Transport Co., 189 Ga. App. 134, 135 (1) (375 SE2d 97) (1988).

2. Appellants enumerate three errors in the charge of the court.

(a) Appellants contend the trial court erred by charging the jury on sudden emergency. “ ‘The doctrine of sudden emergency refers only to those acts which occur immediately following the apprehension of the danger or crisis and before there is time for careful reflection. (Cit.) The rule of sudden emergency is that one who in a sudden emergency acts according to his best judgment or, because of want of time in which to form a judgment, acts in the most judicious manner, is not chargeable with negligence. (Cits.)’ [Cit.] ‘An emergency is a “sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.” (Cit.)’ . . . [Cit.]” Luke v. Spicer, 194 Ga. App. 183-, 184 (3) (390 SE2d 267) (1990).

The evidence established that when appellee Heydrick arrived at the intersection, she discovered she could not see the oncoming traffic on North Church Street from her position at the stop sign because the tractor trailer trucks blocked her view. Her testimony reflects that she apprehended the danger or peril posed by this obstruction of the intersection. However, at that moment another vehicle drove up behind her, so she could not retreat from the intersection or approach it from another direction, as had Wilkins. Although arguably Heydrick could have chosen not to enter the intersection, thereby forcing the vehicle behind her either to back up or go around her stationary vehicle, she chose under the circumstances to proceed and to attempt to avoid the danger or peril posed by the obscured view of traffic entering the intersection by easing out past the trucks. She testified she “got hit before I could see anything” and acknowledged she had realized that she was taking a “chance.”

“Whether an emergency existed or not, that issue, like all questions of diligence, negligence, contributory negligence and proximate cause except in plain and indisputable cases, was a question for determination by the jury. Under the evidence presented at trial, we conclude that this issue was properly .submitted to the jury.” (Citations and punctuation omitted.) Ray v. Anderson, 189 Ga. App. 80, 82 (374 SE2d 819) (1988). The fact noted by the dissent that other evidence was adduced at trial indicating that Heydrick had no alternatives does not render error the giving of the charge on sudden emergency, since “[i]t is a well established rule that an instruction is not inapplicable where there is any evidence, however slight, on which to predicate it. [Cit.] It is not even necessary there should be direct evidence going to that point, it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it. [Cit.]” Lockard v. Davis, 169 Ga. App. 208, 210 (312 SE2d 194) (1983). Applying that rule here, we find no reversible error in the giving of the charge in question.

(b) The trial court charged the jury that “no person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and the potential hazards then existent[. Consistent with the foregoing, every person shall drive at a reasonable and a prudent speed when approaching and crossing an intersection, when approaching and traversing a hill crest, or when special hazards exist with the respect to pedestrians or other traffic or by reasons of weather or by highway conditions.” This charge tracks the language in OCGA § 40-6-180. Appellants correctly point out that there was no direct evidence that appellant Reba Franklin was exceeding the posted speed limit at the time of the incident in question. However, the fact that a driver’s rate of speed is within the posted speed limit at the scene of the collision does not affect the propriety of a charge based on OCGA § 40-6-180. See Cohran v. Douglasville &c. Products, 153 Ga. App. 8, 12 (2) (264 SE2d 507) (1980). Evidence was adduced that appellant Reba Franklin had crested a hill and was approaching an obstructed intersection, and that even travelling the 37 m.p.h. she claimed to be going and leaving 27 feet of skid marks, the impact of her car with Heydrick still propelled Heydrick’s vehicle backwards into Hennrich’s truck. “ ‘Where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue.’ [Cits.]” Department of Transp. v. 19.646 Acres of Land, 178 Ga. App. 287, 288 (2) (342 SE2d 760) (1986).

(c) Appellants contend that the only evidence supporting the trial court’s charge on the obligation to mitigate or lessen one’s damages was testimony adduced at trial regarding appellant Reba Franklin’s failure to wear a seat belt. Appellants argue that OCGA § 40-8-76.1 (d), which became effective after the accident but before trial, renders the giving of this charge reversible error. It is not necessary here, however, to decide whether this charge on an issue involving damages was proper, because an incorrect charge on damages “is harmless error where the jury’s verdict shows that it found that the defendant^ were] not liable to the plaintiff[s]. [Cits.]” Fulton Nat. Bank v. Marshall, 245 Ga. 745, 747 (267 SE2d 225) (1980). See also Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 155 (1) (342 SE2d 352) (1986).

Decided June 25, 1990

Rehearing denied July 13, 1990 — Cert, applied for.

Richard T. Bridges, for appellants.

Judgment affirmed.

Deen, P. J., Banke, P. J., Birdsong, Pope, Beasley and Cooper, JJ., concur. Carley, C. J., and McMurray, P. J., dissent.

Carley, Chief Judge,

dissenting.

Because I disagree with the majority’s conclusion in Division 2 (a) that the trial court did not err in charging on sudden emergency, I must respectfully dissent.

In quoting from Ray v. Anderson, 189 Ga. App. 80, 82 (374 SE2d 819) (1988), the majority correctly points out that the existence vel non of a sudden emergency is a jury question “except in plain and indisputable cases.” (Majority opinion, p. 374.) I respectfully submit that this is a plain and indisputable case, and that a sudden emergency as contemplated by the law of this State simply did not exist.

“The doctrine of emergency refers to those acts which occur immediately following the apprehension of the danger or crisis and before there is time for careful consideration or reflection. [Cit.] This requires that the person confronted by the emergency have the opportunity to exercise one of several reasonable alternative courses of action. In the absence of such factors, there can be no conduct to which to apply the standard and the doctrine is inapplicable.” [Cit.] Barlow v. Veber, 169 Ga. App. 65, 66 (1) (311 SE2d 501) (1983). In this case, no emergency arose until the action of the defendant in taking the “chance” by “easing out” into the intersection. Until Mrs. Heydrick took that “chance” there was no peril with which she was immediately faced and to avoid which she had to take one of several alternative courses of action. In fact, Mrs. Heydrick’s own attorney asked the following question during the cross-examination of the police officer: “Mrs. Franklin is coming south. Mrs. Heydrick has got somebody behind her, she’s got the truck to her right, she can’t see to the right, so there is nothing safe for her to do, right?” (Emphasis supplied.) To this question the police officer replied in the affirmative. There being no alternatives, there was “no conduct to which to apply the standard and the doctrine is inapplicable.” Barlow v. Veber, supra. Accordingly it is my opinion that the trial court erred in charging on sudden emergency and, in view of the evidentiary posture of this case, I do not believe that the error was harmless. Accordingly, I respectfully dissent from the affirmance of the trial court’s judgment.

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

Martin, Snow, Grant & Napier, Cubbedge Snow III, R. Chris Irwin & Associates, David L. Whitman, for appellees.


author: McMurray, Presiding Judge.

text:
    A90A0965.
    HILL et al. v. BUGGS.
    (396 SE2d 36)
   McMurray, Presiding Judge.

Plaintiffs Nickey Hill and Christine Frazier brought this negligence action against William Buggs in the State Court of Fulton County. A copy of the complaint and summons was delivered to defendant’s mother at her home in Fulton County. Subsequently, defendant answered the complaint, denying liability, and raising, inter alia, lack of venue, and insufficiency of service of process defenses. Via motion to dismiss, defendant sought an early adjudication of the defenses raised in his answer. In support of the motion, defendant filed an affidavit in which he deposed (1) that, at that time, and at the time of the filing of the complaint, he lived at 3319 Clemmons Road, in Stockbridge, Henry County; and (2) that he was not living with his mother at her home in Fulton County and had moved from that address approximately 20 years ago. Following a hearing upon defendant’s motion to dismiss, the State Court of Fulton County transferred the case to the Superior Court of Henry County.

Subsequently, the Superior Court of Henry County granted defendant’s motion to dismiss, finding that defendant “was not properly served with a copy of the complaint as prescribed by law.” Plaintiffs moved for a rehearing, alleging they were not afforded notice of the hearing. The motion for a rehearing was denied inasmuch as the superior court found plaintiffs received notice of the hearing. Plaintiffs appeal. Held:

1. Plaintiffs contend the motion to dismiss should not have been granted because the service of process issue was “moot.” In this regard, plaintiffs argue the State Court of Fulton County could not have transferred the case without first determining that service of process was sufficient and that, therefore, since the State Court of Fulton County impliedly determined service of process was sufficient, the Superior Court of Henry County could not rule upon the issue. This argument is without merit. In the first place, the State Court of Fulton County made no ruling whatsoever upon the insufficiency of service of process defense. It simply ruled upon the venue question. It did not impliedly rule upon any other matter by transferring the case to the Superior Court of Henry County. In the second place, a ruling by the State Court of Fulton County on a defense raised by defendant would not necessarily preclude a subsequent ruling regarding that defense by the Superior Court of Henry County. See generally OCGA § 9-11-60 (h); Uniform Transfer Rules, T-13 (251 Ga. 893, 895).

Decided July 2, 1990

Rehearing denied July 13, 1990.

Repasky, Minin & Bates, Fred R. White, Alexander J. Repasky,

for appellants. Swift, Currie, McGhee & Hiers, William P. Claxton, Murray, Temple & Dinges, Burke B. Johnson, for appellee.

2. Plaintiffs’ contention that the Superior Court of Henry County erred in determining they received notice of the hearing is not supported by citation of authority or argument and must be deemed abandoned. Rule 15 (c) (2) of the Rules of the Court of Appeals of the State of Georgia; Melton v. Gilleland & Sons, Inc,, 176 Ga. App. 390 (1) (336 SE2d 315).

Judgment affirmed.

Carley, C. J,, and Sognier, J., concur.


text:
    A90A1086.
    BALKCOM et al. v. JONES COUNTY et al.
    (395 SE2d 889)
   McMurray, Presiding Judge.

On February 13, 1989, James Balkcom, David Lane and Nelson Chapman (plaintiffs) brought an action against Jones County, Georgia, and members of the Board of Commissioners of Jones County (defendants), alleging that they (plaintiffs) were former commissioners of Jones County; that they “were removed from office pursuant to a recall election held under the provisions of O.C.G.A. § 21-4-1, et seq.”; that “[t]he [recall] statute, as enacted, was unconstitutional . . .”; and that, as a consequence, their removal “from office . . . was illegal and unconstitutional.” Plaintiffs demanded judgment for an “amount of money representing salary and other benefits to which they were entitled as Commissioners of Jones County, plus interest to the date of judgment. ...”

Evidence adduced at a bench trial showed that on January 1, 1981, plaintiffs began serving four-year terms as members of the Board of Commissioners of Jones County and that on March 30, 1982, plaintiffs were removed from office pursuant to an OCGA § 21-4-1 recall election. The evidence also revealed that, as members of the Board of Commissioners of Jones County, plaintiffs were entitled to statutorily conferred expense benefits and salaries. Plaintiffs’ salaries and expense benefits were cut off after they were removed from office.

Judgment was entered for defendants and this appeal followed. Held:

“All actions for the enforcement of rights accruing to individuals under statutes or acts of incorporation or by operation of law shall be brought within 20 years after the right of action has accrued; provided, however, that all actions for the recovery of wages, overtime, or damages and penalties accruing under laws respecting the payment of wages and overtime shall be brought within two years after the right of action has accrued.” OCGA § 9-3-22.

Decided July 2, 1990

Rehearing denied July 13, 1990 — Cert, applied for.

O. Hale Almand, Jr., Leigh G. Brogdon, for appellants.

Groover & Childs, Frank H. Childs, Jr., for appellees.

In the case sub judice, plaintiffs were entitled to salaries and benefits as members of the Board of Commissioners of Jones County through December 31, 1984. Plaintiffs did not bring an action for the recovery of their statutorily conferred salaries and benefits within two years after their claims accrued. Consequently, plaintiffs’ claims are barred. See City of Atlanta v. Adams, 256 Ga. 620 (351 SE2d 444). The trial court did not err in entering judgment for defendants.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A1137.
    ALLSOP v. THE STATE.
    (396 SE2d 47)
   McMurray, Presiding Judge.

Defendant was indicted for burglary. His trial counsel filed a comprehensive motion for discovery which included a request for defendant’s in-custody statements, any scientific reports to be used in evidence against defendant, a copy of the indictment, a list of the State’s witnesses and a copy of the warrant issued against defendant. Defendant’s trial counsel later filed a “NOTICE OF INTENT OF DEFENSE TO RAISE ISSUE OF INSANITY OR MENTAL INCOMPETENCE.” As a consequence, the trial court ordered a psychiatric evaluation of defendant. Defendant was examined and it was determined that he was able to assist his attorney, that he was not suffering from any mental illness which would hinder him from knowing right from wrong and that he was not suffering from a delusional compulsion which would hinder him from acting in a right manner. The case was tried before a jury and the evidence revealed the following:

On November 2, 1988, at about 2:00 in the afternoon, Deputy J. C. Lawton of the Dougherty County Sheriff’s Office observed defendant “knocking out a window . . .” of a business establishment with a hammer. The deputy, who was then off-duty, thought that the building was being razed so he carried on without further investigation. About 10 minutes later, the deputy passed the scene and did not see defendant outside, but he did see the window and he noticed “a hole big enough for a person to get through in the glass.” Deputy Lawton investigated and found defendant inside the business. The deputy identified himself as a law enforcement officer and defendant attempted to leave by walking away. Deputy Lawton apprehended defendant and notified a local law enforcement agency. It was later discovered that defendant had no authority to enter the business establishment.

Defendant was found guilty of burglary and an attorney, different from trial counsel, was then appointed to represent defendant “on a motion for a new trial, and if necessary, to appeal his trial proceedings.” At a hearing on the motion for new trial, it was argued that trial counsel was ineffective because he did not “talk to [defendant] about the actual merits of the case except for the day before trial.” Next, defendant complained that his pre-trial decision to terminate his trial counsel was not honored and that his acceptance of trial counsel upon the court’s inquiry on the day of trial was unknowingly made because he was never advised that he could “reject [his trial attorney] at that time and obtain a new attorney.” Thirdly, it was argued that defendant’s trial counsel did not adequately advise defendant of the advantages and disadvantages of testifying at trial. More specifically, defendant complained that this trial attorney “scared him into not testifying by telling him that the District Attorney would tear him to pieces if he testified.” Defendant then argued that his trial attorney should never have stipulated into evidence a psychiatric report which revealed defendant’s mental competence. (Defendant took the stand and, on cross-examination, admitted that he knew the difference between right and wrong; that he knew “that burglary is against the law . . .”; that he was aware that it is illegal “to go into someone’s building that doesn’t belong to you . . .,” but he explained that while intoxicated he did “things that [he] wouldn’t regularly do.” Defendant next complained of the absence of evidentiary objections at trial and he pointed out that “he was held in jail for . . . about fourteen months before trial”; that “he was not read his Miranda rights upon, being arrested and [that he] never really was advised of his rights of what he should do.” The trial court denied defendant’s motion for new trial and this appeal followed. Held:

In five enumerations, defendant contends that the trial court erred in failing to find that he “was denied reasonably effective assistance of counsel. ...” More specifically, defendant contends his trial counsel was ineffective because: (a) “the defense attorney consulted the defendant in detail about the substance of the case only for fifteen minutes [one] week before trial”; (b) defense counsel continued to represent defendant after defendant “terminated the defense attorney prior to trial and the case proceeded without the defense attorney privately consulting the defendant about alternatives”; (c) “defense counsel entered a Notice of Intent to Raise Issue of Insanity or Mental Incompetence prior to trial, did not present a defense at trial, and stipulated to the entry of a letter from a psychologist stating that the defendant did not suffer from mental illness during the trial”; (d) “defense counsel [failed] to have possible witnesses of the defendant interviewed and to have the case investigated”; and, (e) defense counsel failed to adequately advise defendant “on whether [he] should testify or otherwise present a defense to the case.”

“The standard of review on the question of trial counsel’s effectiveness is whether the conduct of counsel thwarted the adversary process to the point that the result of the trial could not be relied upon as being just. To meet this standard, the defendant must show ‘a reasonable probability that but for counsel’s unprofessional errors, the result of the proceedings would have been different.’ Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).” Reese v. State, 257 Ga. 624, 625 (2), 626 (361 SE2d 796).

In the case sub judice, defendant offered no evidence at the motion for new trial hearing contrary to the State’s overwhelming evidence of guilt. Defendant merely testified that he gave his trial counsel the name of “three witnesses [who were near the scene of the crime and who] would have testified to [defendant’s] mental state at the time of the crime.” (The three witnesses were not called to testify at the motion for new trial hearing.) Further, defendant did not offer a defense at his motion for new trial hearing which could have in any way challenged the overwhelming evidence of his guilt. Defendant’s sole defense of temporary insanity due to voluntary intoxication was fruitless. See OCGA § 16-3-4 (c). Under these circumstances, we cannot say that but for trial counsel’s alleged unprofessional errors, the results of trial would have been different. However, this does not end our inquiry.

Defendant’s contention that he terminated his trial counsel before trial is not supported by the record. The trial transcript shows that defendant accepted the services of his trial counsel before trial and without reservation. Secondly, we find no evidence that defendant’s trial counsel was not prepared. On the contrary, the trial transcript shows that defendant’s trial counsel was fully aware of the circumstances surrounding defendant’s case. He effectively cross-examined State’s witnesses, bringing their view of events into a proper perspective, raising issue with testimony regarding the preservation of incriminating real evidence and injecting evidence through leading questions of defendant’s sobriety at the time of defendant’s arrest. Defendant’s trial counsel made valid evidentiary objections and offered a series of requests to charge which were favorable to defendant’s cause. Thirdly, we find no harm in defendant’s trial counsel’s stipulation of the psychiatric report into evidence as it was not contrary to defendant’s temporary insanity due to voluntary intoxication defense. The report provided that defendant was “competent to assist his attorney . . .,” that defendant “does not suffer from any mental illness which would hinder him from knowing right from wrong [and that defendant] does [not] suffer from [a] delusional compulsion which would hinder him from acting in a right manner.” Finally, defendant’s trial counsel’s recommendation for defendant not to take the stand is tactical and will not be questioned. See Hosch v. State, 185 Ga. App. 71 (2), 72 (363 SE2d 258).

Decided July 3, 1990

Rehearing denied July 13, 1990.

Neal Weinberg, for appellant.

Britt R. Priddy, District Attorney, John L. Tracy, Assistant District Attorney, for appellee.

In conclusion, we find that defendant received adequate representation at trial and that the trial court did not err in denying defendant’s motion for new trial.

Judgment affirmed.

Sognier, J., concurs. Carley, C. J., concurs in the judgment only.

       After a jury was empaneled but before they were sworn, the following transpired: “THE COURT: All right. Mr. Allsop, do you have any objections to [your appointed attorney] presenting your case for you and representing you in the trial of this case? THE DEFENDANT: No, sir. THE COURT: You don’t? THE DEFENDANT: No, sir. THE COURT: No objection to him at all? THE DEFENDANT: No, sir.”


author: Sognier, Judge.

text:
    A90A1147.
    HOLBROOK v. GENERAL ELECTRIC CAPITAL CORPORATION.
    (396 SE2d 253)
   Sognier, Judge.

J. P. Holbrook appeals from the trial court’s judgment issuing a writ of possession on a petition by General Electric Capital Corporation as successor in interest to Colwell Mortgage Corporation.

1. On May 24, 1989, appellee filed a petition for writ of possession regarding a mobile home occupied by appellant. In its petition appellee alleged that appellant was in wrongful possession of a mobile home in which appellee had a security interest; that the owner of the mobile home was incarcerated; and that payments amounting to $2,154.20 from August 1988 on the mobile home were past due. Appellant answered denying the allegations and counterclaimed seeking, inter alia, $850 in expenses he incurred in moving the mobile home. An order, filed August 23, 1989 in the Superior Court of Forsyth County, granted appellant’s counterclaim as to the claimed moving expenses. A typewritten paragraph in the order provided that “[a] full hearing being held on [appellee’s petition], it is the Order of this Court that a Writ of Possession shall issue to [appellee] for the aforementioned mobile home upon [appellee’s] paying to [appellant] eight hundred fifty and NO/100 ($850.00) dollars for moving expenses.” This typewritten language was marked through, and a handwritten sentence, initialed by the trial judge, provided “Writ of Possession Denied due to judgment on Counterclaim.” The word “denied” is shown handwritten across the form writ in the record. Both parties-agree that no appeal was taken from this August 23, 1989 order.

On October 23, 1989, appellee filed a second petition for writ of possession in Forsyth Superior Court. The second petition had a new case number and contained language alleging that appellee had paid appellant $850 for moving expenses “as ordered by this Court.” In all other respects, including the amount and the dates of past due installments, the second petition was identical with the first. Appellant answered and asserted the defense of res judicata. The first order in the record involving the second petition is a rule nisi filed January 2, 1990. On January 11, 1990, the matter was heard before the trial court, and the trial judge recalled that he had not liked the form of the August 1989 order as submitted and had written the word “denied” on it and the writ. The trial judge stated that the circumstances had changed because appellee had paid appellant the $850, but after pronouncing that “the Court is bound by what it ruled previously,” ordered the parties to proceed with the case.

Subsequently, in its order filed January 29, 1990, the trial court found that as to the August 23, 1989 order, “the petition was denied because the court did not feel that it had authority to issue a writ contingent on certain events happening.” Finding that the payment of the $850 rendered the action on the second petition “substantially different” from the earlier action, and noting that “the Court did not adjudicate the issue of who was entitled to possession of the mobile home” in the earlier action, the trial court held that appellee’s second petition was not barred by res judicata.

We disagree and reverse. “The doctrine of res judicata arises from a judgment of a court of competent jurisdiction as between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered. [Cit.]” Lowe Engineers v. Royal Indent. Co., 164 Ga. App. 255, 258 (297 SE2d 41) (1982). Here it is uncontroverted that the second petition involved the same parties and the same subject matter. Appellee argues the action is not barred by res judicata because the third requisite, that the former adjudication was on the merits, see Crockett v. Shafer, 166 Ga. App. 453, 454 (1) (304 SE2d 405) (1983), is not present here. The language “Writ of Possession Denied due to judgment on Counterclaim” does not support this argument. The merits of the petition (appellant’s wrongful possession of the mobile home and the existence of past due payments dating from August 1988 in the amount of $2,154.20) necessarily had to have been reached when the trial court clearly and without elaboration denied the petition for writ of possession. That judgment was neither reversed nor vacated and, as rendered by a court with jurisdiction over the case and the parties, remains binding and conclusive even if erroneous, see McRae v. Boykin, 73 Ga. App. 67, 72 (35 SE2d 548) (1945), a matter on which we intimate no opinion here.

It thus appears that the sole basis for appellee’s argument and the trial court’s rejection of appellant’s defense of res judicata is the trial judge’s recollection in January 1990 that he did not mean to reach the merits of the petition when he denied it in August 1989, a matter not apparent on the face of that earlier judgment. We do not agree with the trial court that it could amend or modify its August 1989 order in January 1990 by engrafting onto the earlier language denying the petition the explanation that the denial was not on the merits of the petition. It is true that “‘[a] trial court has inherent power to modify its own judgment during the term at which it was rendered, and this power may be exercised on the court’s own motion, with or without notice to the parties. [Cits.]”’ Cooley v. All The World, 247 Ga. 459, 460 (1) (276 SE2d 615) (1981). However, the terms of the Superior Court of Forsyth County begin on the second Monday in March, July, and November, OCGA § 15-6-3 (6) (B), and so the January 1990 judgment was not rendered in the same term as the August 1989 judgment. “A judgment may be revised or amended, or entered of record, nunc pro tunc, on proper motion, at a term subsequent to that at which the judgment was rendered, so as to make the judgment speak the truth of the decision that was actually rendered, or to make it conform to the verdict. However, after the expiration of the term at which a decree was entered, it is out of the power of the court to modify and revise it in any matter of substance or in any matter affecting the merits.” (Punctuation and citations omitted.) Burns v. Fedco Management Co., 168 Ga. App. 15, 16 (308 SE2d 38) (1983). Unlike the situation in Burns, the subsequent modification of the August 1989 order dramatically affected the merits in the instant case with the substantive legal effect of allowing appellee to relitigate the identical merits concluded against it in the judgment on the first petition. Accordingly, since the August 1989 order was not reversed, set aside, or otherwise vacated, the trial court was without authority to alter its judgment of August 23, 1989, in its January 29, 1990 order. See City of Cornelia v. Gunter, 227 Ga. 464 (181 SE2d 489) (1971).

2. Our holding in Division 1 renders it unnecessary for us to address appellant’s remaining enumeration of error.

Judgment reversed.

Carley, C. J., and McMurray, P. J., concur.

On Motion for Rehearing.

On motion for rehearing appellee General Electric Capital Corporation contends that we have overlooked our holding in Atlanta Truck Svc. v. Assoc. &c. Corp., 146 Ga. App. 170, 173 (2) (246 SE2d 2) (1978), and asserts that under that opinion, no ruling upon its petition for writ of possession could legally have been issued by the trial court in the August 1989 order until appellant’s claim for moving expenses had been paid, so that the denial of the writ therein was void and thus did not serve as a bar under the doctrine of res judicata to appellee’s subsequent petition for writ of possession.

Atlanta Truck Svc., supra, involved the priority .of liens on a tractor truck as between the security interest holder and the mechanic who had repaired the truck. In the order appealed from, the trial court had denied the repairman’s claim that he was entitled to dispose of the truck as an abandoned vehicle under former Ga. Code Ann. § 68-23 et seq., but had awarded him fees for storage of the truck, and then had ruled that the security interest holder was entitled to possession of the truck. This court reversed, finding that the repairman had a valid possessory lien for work done and materials furnished under former Ga. Code Ann. § 68-423a, and remanded the case for new trial so that the trial court could address the merits of the repairman’s claim and determine whether the repairman could establish'priority of his lien so as to entitle him to any sums he could prove for the repair and storage of the truck. Based on the unresolved issues involving a lien with possible priority over the security interest holder’s claim, we held that “it was illegal to grant possession of the vehicle to the security interest holder without payment of the amount due the repairman.” Id. at 173 (2).

We do not agree with appellee that Atlanta Truck Svc., supra, stands for the proposition that a trial court cannot reach the merits of a petition for writ of possession for an item until prior claims on that item, which are all before the trial court at the time of the petition, have been satisfied. Atlanta Truck Svc. does not deprive a trial court of its authority to adjudicate all claims properly before it. Contrary to appellee’s argument, we find that the holding in Atlanta Truck Sue. merely reflects that until the priority of all claims upon an item have been established and the sums due other parties as a result of prior liens on that item fully adjudicated, it is improper for a trial court to issue a possessory warrant as to that item. Atlanta Truck Sue. thus is distinguishable from the case sub judice in that: (1) in August 1989 the trial court in the case at bar had all claims on the mobile home before it and ruled on all the claims. Appellant’s claim for storage charges was rejected, appellant’s claim for moving expenses was granted, and appellee’s petition for writ of possession was denied. Under the circumstances of this case, the trial court here would have been fully authorized in August 1989 to reach the merits of appellee’s petition and grant appellee possession of the mobile home, contingent upon payment of appellant’s moving expenses. The record reflects the trial court contemplated entering such an order but then struck it, ordering instead that appellee’s petition for writ of possession be denied. (2) Unlike the repairman in Atlanta Truck Svc., supra, who appealed when his claim was denied, appellee here brought no appeal from the August 1989 order denying its claim for possession. While arguably appellee may have had a meritorious claim that the trial court improperly denied its petition for writ of possession in August 1989, appellee’s failure to appeal that order and its failure to challenge the trial court’s ruling by the appropriate method under OCGA § 9-11-60 renders the August order a valid order by a court of competent jurisdiction as between the same parties on the same issue alleged in appellee’s subsequent complaint. Although we find the trial court was fully authorized to enter the August 1989 order, we note that even assuming, for argument’s sake, that the order was void, appellee would nevertheless be required to attack the order collaterally under OCGA § 9-11-60 (a), which it uncontrovertedly has not done.

Decided June 21, 1990

Rehearing denied July 13, 1990 — Cert, applied for.

Harry M. Moseley, for appellant.

Thompson & Slaglees, Scott A. Schweber, for appellee.


text:
    A90A0084.
    HUDGINS v. BAWTINHIMER et al.
    (395 SE2d 909)
   Pope, Judge.

Appellant William B. Hudgins brought suit against appellees CPC Parkwood Hospital, Dr. Gary G. Bawtinhimer, Dr. David C. Cook and Dr. William I. Wieland, alleging false imprisonment, intentional infliction of emotional distress and breach of contract and RICO against CPC as a result of his involuntary commitment pursuant to court order of October 1, 1986, to CPC Parkwood Hospital for evaluation and treatment of drug dependency. Hudgins was released by order of the DeKalb Probate Court on October 23, 1986, when CPC Parkwood’s petition pursuant to Chapter 3 of Title 37 of the Official Code of Georgia Annotated was dismissed. Dr. Bawtinhimer, Dr. Cook and Dr. Wieland each examined and evaluated Hudgins and recommended that Hudgins be involuntarily detained for treatment. The trial court granted Dr. Bawtinhimer’s motion for summary judgment and the motions to dismiss for insufficient service of process made by Dr. Cook and Dr. Wieland.

1. Because Hudgins has the right to directly appeal the grant of summary judgment to Dr. Bawtinhimer, OCGA § 9-11-56 (h), he also has the right to have this court review rulings of the trial court otherwise not directly appealable. Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980); Seaboard Coast Line R. v. Mobil Chem. Co., 172 Ga. App. 543 (1) (323 SE2d 849) (1984). Thus, we have jurisdiction to consider his enumerations of error concerning Dr. Cook, Dr. Wieland and certain discovery issues.

2. The trial court granted summary judgment to Dr. Bawtinhimer, one of the psychiatrists who evaluated Hudgins and recommended that his involuntary commitment be continued, on the basis that Hudgins had presented no evidence that the procedure followed was defective and that the trial court found the process followed by Dr. Bawtinhimer was valid. In Williams v. Smith, 179 Ga. App. 712 (2) (348 SE2d 50) (1986), this court discussed in detail what is required to be shown by a plaintiff to sustain a false imprisonment claim in the context of an involuntary commitment for drug dependency. The trial court correctly applied the holding of Williams: “Where one is taken into custody pursuant to a procedurally valid certificate of a physician [or a court order as set out in OCGA § 37-3-41 (b)] authorizing involuntary mental treatment, the resulting detention is not ‘unlawful.’ ” Williams, supra at 716. “An action for false imprisonment will lie where a person is unlawfully detained under a void process, or under no process at all, and cannot be maintained where the process is valid, no matter how corrupt may be the motives of the person suing out the process or how unfounded the imprisonment may be. [Cit.]” (Punctuation omitted.) Williams, supra at 714.

By his affidavit based on his personal knowledge, Dr. Bawtinhimer showed that he complied with the provisions of the law in his examination and evaluation of Hudgins and that he acted in good faith. In opposition, Hudgins relies on the certified copy of the order of the probate court dismissing the petition for involuntary commitment. The order reads in its entirety: “This matter came on for hearing on the petition of CPC Parkwood Hospital pursuant to Georgia Code Ch. 37-3. Upon the motion of the respondent, William Hudgins, the petition was dismissed.” From this, coupled with language from a certified copy of the brief filed in the probate court in support of the motion that resulted in the order set out above, Hudgins argues that he has adduced evidence that the process used to involuntarily commit him was grossly defective and void. Hudgins points to the case of Sigmon v. Womack, 158 Ga. App. 47 (2) (279 SE2d 254) (1981), for the proposition that “an order ‘upon the motion’ specifies, without more, the reasons upon which the order was decided.” We disagree. In Division 2 of Sigmon, the court merely explained that when a trial court denies a motion for new trial, the statutory requirement that it specify the grounds for the decision is satisfied by stating in the order that the motion for new trial is denied upon the grounds enumerated in the motion. We do not agree that Sigmon means that when a court’s order is silent on the reason for its action, it necessarily follows that the court adopted whole the arguments advanced in the brief in support of the prevailing side. It is clear from the statutory scheme of involuntary commitment that the court might find the petition should be dismissed for reasons other than defective or void process, including a finding that involuntary treatment is not needed. See OCGA §§ 37-7-81 and 37-7-81.1. For these reasons, the trial court correctly found the order of the probate court was not res judicata on the issue of the validity of the process used.

Hudgins argues the trial court improperly considered medical records that were privileged, confidential, included hearsay and were not certified in connection with Dr. Bawtinhimer’s motion for summary judgment and therefore it was error to grant the motion. However, this issue is completely pretermitted because exclusive of the medical records is Dr. Bawtinhimer’s personal recollection as given in his affidavit. As shown above, this evidence is sufficient to show compliance with the involuntary commitment process. At issue in this case is not the correctness of the medical diagnosis made by the doctors involved, but rather whether the procedure used was valid. Although Hudgins argues many points regarding what he perceives to be the bad motives of the doctors and hospital (primarily that the commitment was done to gain revenue from Hudgins’ insurance company), none of this is relevant to the issue of false imprisonment. As more fully discussed in Williams, supra, such conduct might support an action for malicious use of process, id. at 714, but is completely irrelevant to the issue of false imprisonment. The grant of summary judgment to Dr. Bawtinhimer was proper.

3. Hudgins argues the trial court erred in dismissing the complaint against Dr. Cook for insufficient process. The record shows the complaint was filed on October 13, 1988. Service was not attempted until November 21, 1988, more than 30 days after the statute of limitation had run. The record shows service was attempted by leaving a copy of the summons and complaint with Dr. Cook’s office manager, who was not a registered or authorized agent for process. Dr. Cook was not personally served until March 6, 1989. The trial court found that the November 21, 1988 service on the office manager was not valid and that Dr. Cook put Hudgins on notice of the alleged insufficiency of service in his answer filed on December 20, 1988, and again on February 2, 1989 in his motion to dismiss. The trial court ruled that Hudgins was guilty of laches and was not diligent in his efforts to perfect service so as to have the late service of March 6, 1989 relate back to the filing of the complaint*

We affirm. Hudgins argues that service on the office manager should be good service on Dr. Cook because Dr. Cook was on the premises at the time. We disagree. In a similar case, the Supreme Court held that leaving a summons and complaint with an employee who was not an agent for service of the person intended to be served did not meet the clear requirements of OCGA § 9-11-4 (d) (7) and that the statute means exactly what it says. Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989). Hudgins attempts to distinguish Bible on the basis that the defendant in that case was not on the premises. Aside from the fact that nothing in the opinion in Bible states whether or not the defendant was there at the time service was made, the holding of the Supreme Court is clear that service must be by the method prescribed by the statute; in this case, personal service. It matters not that Dr. Cook may have received notice of the suit. Service in the manner prescribed is necessary. Bible, supra at 419.

4. Hudgins argues the trial court erred in dismissing his complaint against Dr. Wieland for insufficiency of service. Hudgins first attempted service on Dr. Wieland at the hospital on October 17, 1988, but service was returned “non-est.” Sometime later, Hudgins’ counsel called Dr. Wieland’s home number and spoke to a woman there who gave him an address. Believing the address to be in Fulton County, counsel had service attempted by second original, but, it too was returned “non-est.” Twenty-eight days passed before counsel made an agreement with counsel for the hospital, who thought he might also represent Dr. Wieland, to see if he could arrange for acknowledgment of service. This was accomplished on January 3, 1989, with the filing of his answer. The trial court, after hearing argument and considering the evidence, found Hudgins had not exercised due diligence.

“As we held in Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360) [(1975)]: ‘the correct test must be whether the plaintiff showed that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.’ The trial judge must determine, exercising a legal discretion, whether the plaintiff was diligent in his efforts. [Cits.]

Decided July 13, 1990.

S. Lee Storesund, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Davis S. Thomson, Hart & Sullivan, Rush S. Smith, Jr., Brynda S. Rodriguez, Long, Weinberg, Ansley & Wheeler, Robert D. Roll, Glenn E. Kushel, Diane M. Janulis, for appellees.

“Here the trial judge heard argument and considered the affidavits filed. Based thereon he found, in his discretion, that defendant’s motion should be granted. Although excuses were offered, we can not hold that the plaintiff was diligent, as a matter of law.” Webb v. Murphy, 142 Ga. App. 649, 650 (236 SE2d 840) (1977) (dismissal affirmed on twenty-five-day delay in perfecting service).

5. Hudgins argues the trial court erred in denying his motion to compel discovery against CPC Parkwood and in granting a protective order to non-party Charter Peachford Hospital. Hudgins has not identified the specific discovery requests at issue, but instead refers only to the trial court’s order denying the discovery. It appears the requests seek information relating to CPC Parkwood’s decision to confer staff privileges on Dr. Cook and Dr. Bawtinhimer. The requests of non-party Charter Peachford Hospital apparently seek information on its billing practices and insurance reimbursement. Hudgins’ theory of recovery in his RICO claim is that CPC Parkwood engaged in the practice of admitting patients just to get insurance money. However, the only basis for this pointed out in the record is a newspaper article discussing insurance abuse in the psychiatric care field. The trial court’s order denied the requests on the basis that the material sought is privileged and confidential. Having examined the record before us, we question, in addition, the relevance of the material sought. “ ‘In such interlocutory rulings of the trial court as the sustaining or overruling of objections to interrogatories and decisions as to whether answers are or are not sufficient, this court will reverse only upon a showing of a clear abuse of discretion.’ [Cits.]” Smith v. Bass, 131 Ga. App. 557, 559 (206 SE2d 541) (1974). We discern no such abuse here.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


author: Carley, Chief Judge.

text:
    A90A0460.
    DAVIS v. THE STATE.
    (396 SE2d 301)
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of kidnapping, aggravated sodomy, reckless conduct by an HIV infected person, attempted aggravated sodomy and attempted reckless conduct by an HIV infected person. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

Decided July 13, 1990.

William H. Newton III, for appellant.

Stephen F. Lanier, District Attorney, Fred R. Simpson, Assis tant District Attorney, for appellee.

1. Appellant enumerates the general grounds as to attempted aggravated sodomy and attempted reckless conduct by an HIV infected person. "[A]ppellant’s statements to the victim [as well as his failure to disclose that he was an HIV infected person] and his actions in the [vehicle into which he had forced the victim] indicate that appellant was attempting [aggravated sodomy and reckless conduct by an HIV infected person]. Thus, we find the evidence sufficient to meet the requirements of Jackson V. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) and to support appellant’s conviction of these two offenses.” Helton v. State, 166 Ga. App. 662, 663 (1) (305 SE2d 592) (1983). See also Garmon v. State, 192 Ga. App. 250 (384 SE2d 278) (1989).

2. The trial court’s admission into evidence of certain sexual devices seized from appellant’s vehicle pursuant to his consent at the time of his arrest is also enumerated as error..

“These exhibits [, normally associated with homosexual activity,] were properly admitted as they may have a tendency to show defendant’s bent of mind toward the [homo] sexual activity with which he was charged. [Cits.]” Wilcoxen v. State, 162 Ga. App. 800, 801 (1) (292 SE2d 905) (1982). “Where sexual crimes are tried, exhibits having a tendency to show bent of mind towards sexual activity are generally admissible. [Cits.] . . . Under the broad discretion of the trial court, the admission of the evidence clearly was not error. [Cit.]” Worth v. State, 183 Ga. App. 68, 69-70 (1) (358 SE2d 251) (1987). See also Watson v. State, 147 Ga. App. 847, 850 (4) (250 SE2d 540) (1978).

Moreover, even if the exhibits did not reflect upon the guilt or innocence of appellant, they were found in his vehicle and were thus in his control at or near the time of arrest. Accordingly, the exhibits were admissible as circumstances connected with appellant’s arrest. See Hale v. State, 159 Ga. App. 563 (1) (284 SE2d 68) (1981); Reese v. State, 145 Ga. App. 453, 457 (4) (243 SE2d 650) (1978).

Judgments affirmed.

McMurray, P. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A90A0660.
    SOUTHERN ENVIRONMENTAL GROUP, INC. v. ROSEBUD LANDSCAPE GARDENERS, INC. et al.
    (395 SE2d 913)
   Beasley, Judge.

Southern Environmental Group, Inc. (Southern) was granted permission to appeal the dismissal of garnishment against a sum held by garnishees, the Adamses, and owed by them for landscaping services. The garnishees paid the money into the court registry.

The court, sitting without a jury, made but one finding of fact and conclusion of law and dismissed the garnishment. No further findings were requested by Southern initially, nor was their absence objected to after entry of the order. OCGA § 9-11-52. Thus, the following applies as we review the court’s finding that T. W. Flowers, Inc., was not shown to be the alter ego of Rosebud, Inc.: “Whether or not the corporate entity should be disregarded depends on the particular circumstances and is a matter properly for the finder of fact. [Cits.] The findings of a judge acting as a jury will not be disturbed if there is any evidence to support the [findings.]” Southern Keyboards v. Wagnon Constr. &c. Co., 163 Ga. App. 590, 592 (295 SE2d 558) (1982).

The supportive evidence shows that Rosebud Landscape Gardeners, Inc. (Rosebud, Inc.) was incorporated by T. W. Flowers in 1985 for the purposes of doing residential and commercial landscaping and maintenance. He was the 100 percent shareholder and director. The attorney who incorporated the company served as its secretary.

Due to drought conditions and other business problems, Rosebud, Inc., began to experience severe financial problems, resulting in numerous judgments against it, including one entered in September 1988 in the amount of $24,945.25 for Southern. Because of these problems, Flowers considered bankruptcy, but it was advised that forming a new corporation was an option. Rosebud, Inc., ceased doing business in late 1988, although the corporation was never formally dissolved.

T. W. Flowers, Inc. (Flowers, Inc.) was formed on December 19, 1988, with three shareholders. The same attorney prepared the corporate documents. Flowers owned 70 percent; Fred Roddy, a friend, owned 15 percent; and Lois Lee, an employee of Rosebud, Inc., and Flowers, Inc., owned the remaining 15 percent. Three directors named in the articles of incorporation were Flowers, Lee, and Thomas Alexander. Alexander was an employee of Rosebud, Inc., who initially was to invest in Flowers, Inc. He dropped out of the stock purchase but he remained a named director.

On January 3, 1989, a Purchase and Assumption Agreement was entered into by Rosebud, Inc., and Flowers, Inc., in which Flowers, Inc., agreed to pay $114,309.25 for certain assets of Rosebud, Inc., including all job equipment, office equipment and supplies, good will, two accounts receivable, signs, and a perpetual license to operate as “Rosebud Landscape Gardeners.” This included Rosebud, Inc.’s logo containing “Rosebud Landscape Gardeners.” Flowers, Inc., also agreed to assume certain debts of Rosebud, Inc. The debts assumed did not include Southern’s but consisted of the tax liabilities and all loans which had been personally guaranteed by Flowers. Assumption of these debts, with $8,000 cash, totalled the purchase price.

Employees of Rosebud, Inc., were advised at a meeting that it was ceasing doing business and that a new corporation would be taking over. They were all carried over to Flowers, Inc., and were given credit for their vacation time accrued with Rosebud, Inc. New tax forms were filled out for them.

Separate bank accounts were set up for Flowers, Inc., and there was no evidence that the respective accounts were ever commingled. The maintenance contracts of Rosebud, Inc., were assigned to Flowers, Inc. The logo of Rosebud, Inc., which read “Rosebud Landscape Gardeners,” was used by Flowers, Inc.

The telephone number remained the same and the account remained in Flowers’ individual name, as it had from the start of his landscaping business. The bill was paid, however, with Flowers, Inc., checks, as it had earlier been paid with Rosebud, Inc., checks. The utility accounts remained in Flowers’ individual name and were similarly paid. The premises from which both corporations operated were owned by Flowers individually and were leased sequentially to Rosebud, Inc., then Flowers, Inc.

The Adamses had done business with Rosebud, Inc., in 1986 and 1987. In midsummer of 1989, they entered into a landscape contract with Flowers, Inc. “d/b/a Rosebud Landscape Gardeners.” It was a payment pursuant to this contract that was garnished. Named as a defendant in the garnishment action was “Rosebud Landscape Gardeners, Inc. a/k/a and d/b/a T. W. Flowers, Inc.”

In response to the garnishment, Rosebud, Inc., filed its traverse pursuant to OCGA §§ 18-4-65 & 18-4-93, alleging that the garnishment affidavit was untrue in that the Adamses owed nothing to Rosebud, Inc., it having ceased doing business in December 1988. Flowers, Inc., filed a claim to the money, based on its contract with the Adamses.

1. Southern contends, in its first enumeration, that the judge, sitting as trier of fact, “abused his discretion” in finding that the two corporations were not one and the same for purposes of the garnishment. As discussed above, we consider only whether the evidence demanded a finding that Flowers, Inc., was the alter ego of Rosebud, Inc., in effect that the corporate structures of the two companies should be disregarded.

“[T]he cardinal rule of corporate law is that the corporation possesses a legal existence separate and apart from that of its officers, employees, shareholders, and directors. [Cit.]” Kilsheimer v. State, 250 Ga. 549, 550 (299 SE2d 733) (1983).

We are unable to find a case directly dealing with two corporations, one of which sells its assets to another, which are sought to be held “alter egos” of each other so that the latter corporation is held responsible for a judgment against the former.

The alter ego and piercing corporate veil theories are generally used for the purpose of impressing an individual with debts incurred by the corporation. “Where the courts have disregarded the corporate entity because the corporation is the mere alter ego or business conduit of a person, it has generally been on the idea that the corporate entity has been used as a subterfuge and to observe it would be to work an injustice. ‘To establish the alter ego doctrine it must be shown that the stockholders’ disregard of the corporate entity made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist; and to adhere to the doctrine of corporate entity would promote injustice or protect fraud.’ [Cit.]” (Emphasis supplied.) Farmers Warehouse &c. v. Collins, 220 Ga. 141, 150 (2d) (137 SE2d 619) (1964). See, e.g., Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 844 (2a) (392 SE2d 37); Stewart Brothers v. Allen, 189 Ga. App. 816 (1) (377 SE2d 724) (1989); Amason v. Whitehead, 186 Ga. App. 320, 321 (367 SE2d 107) (1988); Stillman v. Tempo Carpets, 174 Ga. App. 66 (1) (329 SE2d 197) (1985).

This case involves only technical compliance with the garnishment statute, which is a special statutory proceeding, strictly pursued, to allow a creditor to seize a debtor’s funds in the possession of a third person. See Mull v. Mull, 167 Ga. App. 687, 688 (1) (307 SE2d 675) (1983); Anderson v. Ledbetter-Johnson Contractors, 62 Ga. App. 732 (2) (9 SE2d 860) (1940). It was not a suit against Rosebud, Inc., for fraudulent conveyance of the assets of Rosebud, Inc., to Flowers, Inc. Nor did Southern attempt to enjoin that transfer, as far as the record shows. OCGA § 18-2-22.

The court was not persuaded that the preponderance of evidence melded the two separate corporations. We cannot reweigh the evidence but are bound to uphold the court’s decision because there is evidence that the corporate fiction was maintained. Stillman v. Tempo Carpets, supra; Jenkins v. Judith Sans Int’l, 175 Ga. App. 171 (1) (332 SE2d 687) (1985); Northwest Preferred, Ltd. v. Williams, 184 Ga. App. 145 (2) (360 SE2d 910) (1987) (physical precedent).

Decided July 13, 1990.

W. Courtney LaFon, Beverly J. Hall, for appellant.

Thomas T. Tate, Huddleston & Medori, Eugene A. Medori, Jr., for appellee.

Myrna V. Adams, pro se.

Beau Adams, pro se.

2. Southern argues that the court failed to consider the existence and relevance of fraud. However, the pages pointed to do not support this allegation. There was admissible testimony concerning the purpose of the transfer. The questions to which objections were sustained, however, asked not for factual bases upon which the witness could have based an opinion, but attempted to elicit the state of Flowers’ mind without any such factual bases. The objections were properly sustained.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.