text:
    A95A1730.
    KIMBRELL et al. v. CONNOR.
    (463 SE2d 376)
   Andrews, Judge.

J. A. Kimbrell and Sylvania Mobile Homes, Inc. (“Sylvania”) appeal the dismissal of their contract case.

In March 1990, the parties, who were in the business of selling mobile homes, entered into an agreement in which defendant Connor agreed to open a mobile home sales lot. The contract required Connor to pay Sylvania “25% of gross profit excluding setup, taxes and options on the sale of each mobile home . . . [and] 25% of Volumn [sic], minus rebate.” It also provided that Connor split with Sylvania the proceeds from the sales of tires and axles from the sold mobile homes and pay Sylvania 40 percent of the comprehensive insurance commissions written on the mobile homes. In return, Sylvania agreed to “make accessible” to Connor’s customers financing through First Carolina Financial Corporation (“FCFC”), “such that FCFC will not have recourse against [Connor].” The evidence concerning the actual performance of the contract is meager at best. It appears that Sylvania would enter into a security agreement with Kimbrell’s customers, although it did not own the mobile homes being purchased. Sylvania would then assign the security agreement to FCFC, listing itself as the seller.

Connor paid Sylvania commissions on 26 transactions, totaling approximately $17,400. In December 1991, however, Connor refused to accept such financing and stopped paying Sylvania. Kimbrell and Sylvania then initiated this action, alleging breach of contract and seeking specific performance and attorney fees.

Connor moved for summary judgment, arguing that the contract was unenforceable because Kimbrell fraudulently altered it and the contract contemplated an illegal act and was ambiguous. Connor also contended that the parties never had a contract or a meeting of the minds. As proof, he attested that Kimbrell verbally misrepresented the agreement, which Connor then signed without reading, and breached his promise to change the agreement to reflect the original verbal terms, which omitted the requirement that Connor pay Sylvania 25 percent of his annual gross profit. In support of his illegality argument, Connor contended that Kimbrell concealed Connor’s identity as the true owner of the mobile homes to be financed by FCFC in order to obtain additional bonuses on loans which were in fact made by Connor. Connor argued that this violated 18 USC § 1001 which criminalizes giving false information in any matter within the jurisdiction of a federal department or agency. Connor also filed an affidavit by FCFC’s assistant vice president stating that (1) Kimbrell and Sylvania had no authority to enter into an agreement to provide FCFC financing; (2) had he known of the agreement, he would have expressly disapproved it; and (3) had he known the true nature of the financed mobile home sales between Connor and Sylvania, he “most probably” would have disapproved them.

In response, Kimbrell denied altering the contract or misrepresenting its terms. He attested that Connor’s attorney drafted the contract. Kimbrell and Sylvania also countered Connor’s allegations of illegality with an affidavit by FCFC’s former marketing representative, who stated that he knew Sylvania was receiving a cut from Connor’s sales, which were processed in Sylvania’s name. He attested that this transaction was not improper because FCFC approved the contracts based upon the retail customers’ credit, Sylvania had a financial interest in the sale, and the papers were with recourse against Sylvania.

The court dismissed Connor’s motion for summary judgment as moot and dismissed the complaint on findings that the contract was void and unenforceable. It did not specifically state the grounds for this disposition. It also made findings that (1) the contract was at best an agreement to contract; (2) there was inadequate consideration; (3) the contract was vague and ambiguous; (4) there was no meeting of the minds; and (5) the contract was entered into for an illegal purpose: to conceal from the lender the true nature of the financed mobile home sales.

The trial court’s findings that the parties merely had an agreement to contract and no meeting of the minds occurred do not justify the dismissals because Kimbrell and Sylvania presented evidence disputing virtually all of Connor’s allegations about the negotiation and preparation of the agreement at issue. Medley v. Boomershine Pontiac-GMC Truck, 214 Ga. App. 795 (4) (449 SE2d 128) (1994) (issue remained to be tried because evidence must be construed in non-movant’s favor). Due to the absence of the requisite proof of “great disparity of mental ability in contracting a bargain,” the trial court’s determination that the contract was void due to inadequate consideration was error. OCGA § 23-2-2. If the agreement was vague and ambiguous, the trial court was required to apply the applicable rules of construction, and, if the ambiguities remained, present the question to the jury. Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986).

Decided October 25, 1995.

H. Lehman Franklin, Jr., for appellants.

Robert S. Lanier, Jr., John J. Czura, for appellee.

Thus, the only legally supportable basis for dismissing as moot the motion for summary judgment and dismissing the complaint was that the contract was void due to its illegality. On its face, however, the contract reflects no illegality. Contrary to Connor’s arguments, it does not require Kimbrell and Sylvania to conceal their identity. Nor does it address the method of processing the security agreements or proof of ownership documents involved in making FCFC financing “accessible” to Connor’s customers. Further, the record is not sufficiently developed to examine the parameters of Kimbrell’s relationship with FCFC or whether the contract was entered into for an illegal purpose. The evidence conflicts as to whether FCFC knew of and condoned Kimbrell and Sylvania’s method of arranging financing for Connor. Proof of FCFC’s knowledge would counter the trial court’s finding that the contract’s purpose was to conceal the true nature of the transaction from FCFC and refute claims of illegality premised on fraud or deception. Because the record is insufficient to establish as a matter of law or fact that the contract was illegal, we reverse and remand for proceedings consistent with this opinion.

Judgment reversed and case remanded.

McMurray, P. J., and Blackburn, J., concur.

       Moreover, in the trial court, Connor provided no evidence that this matter was within the jurisdiction of a federal agency, which is required to trigger the provisions of 18 USC § 1001, and Connor abandoned this argument on appeal. Instead, he claimed without discussion that Kimbrell violated unspecified subsections of the Motor Vehicle Certificate of Title Act. He also maintained that Kimbrell violated OCGA § 10-1-372 of Georgia’s Fair Business Practices Act, which generally applies to trademarks, but failed to demonstrate its application to this case. See, e.g., Baker Realty Co. v. Baker, 228 Ga. 766 (187 SE2d 850) (1972). We need not consider these arguments presented for the first time on appeal. Bennett v. Williams Elec. Constr. Co., 215 Ga. App. 423 (1) (450 SE2d 873) (1994).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A95A1810, A95A1811.
    BARTJA v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. (two cases).
    (463 SE2d 358)
   Pope, Presiding Judge.

Bartja appeals the denial of his motion for summary judgment and the grant of National Union Fire Insurance Company of Pittsburgh’s (“National Union”) motion for partial summary judgment.

This case arose when a tractor-trailer truck driven by Kevin Mc-Conico and owned by National Union’s insured, Ready Trucking, Inc. (“Ready”), collided with the rear of a van in which Bartja was riding. The van overturned; Bartja was thrown from it and received personal injuries.

Bartja initially brought this action against McConico, Ready, and National Union but later voluntarily dismissed without prejudice the former two defendants. He joined National Union pursuant to OCGA § 46-7-12 (e), alleging it was vicariously liable for McConico’s negligence and Ready’s negligent entrustment, negligent hiring, negligent retention, and negligent supervision of McConico. He sought punitive damages against both McConico and Ready on these causes of action. In its answer, National Union admitted that McConico was acting within the scope of his employment with Ready when the collision occurred.

Bartja subsequently moved for partial summary judgment on the negligence claim against McConico. National Union moved for partial summary judgment on the issues of punitive damages and negligent entrustment, hiring, retention, and supervision. The trial court denied Bartja’s motion and granted National Union’s motion. Bartja appeals from these rulings.

1. Bartja argues that the trial court erred in denying his motion for partial summary judgment on his negligence claim against Mc-Conico because National Union offered no evidence that the collision was unavoidable or unexplainable and McConico admitted his negligence. He also maintains McConico committed negligence per se by following too closely and failing to pass to the left at a safe distance as required by Georgia law.

The denial of a motion for summary judgment must be affirmed unless the entire record, construed against the movant, reveals no disputed issues of material fact and demonstrates that the movant is entitled to judgment as a matter of law. Black v. Hamilton, 133 Ga. App. 881 (212 SE2d 449) (1975). Except in very rare cases, the issue of fault in rear-end collision cases should be left to the jury. Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 451 (224 SE2d 25) (1976); see Drake v. Page, 195 Ga. App. 226, 227 (393 SE2d 89) (1990).

Genuine issues remain to be tried on the negligence claim. Mc-Conico disputes the meaning of his alleged statement to the police that he evidently fell asleep at the wheel. He later attested that he made this statement while suffering from confusion and disorientation due to head, leg, ankle, knee, and arm injuries, and National Union argues that the police officer prodded McConico into speculating that he fell asleep. The record shows that in the time just preceding the collision, McConico slept for eight hours, inspected his vehicle for fifteen minutes, drove for three hours, stopped for a fifteen-minute break, and drove for about ten minutes. McConico testified that the last thing he recalled before the collision was driving within the speed limit in the right lane with clear highway ahead. One of the van’s passengers attested that the van had been exiting the interstate when the collision occurred, but a part of it could have remained in the right lane. National Union proffered an expert opinion that the van was an impediment to the normal use of the interstate and the van had overturned in part due to the directional control of each driver involved. These disputed facts justify the trial court’s denial of summary judgment. Cf. Drake, 195 Ga. App. at 227 (liability based upon undisputed evidence that driver looked at air conditioner just prior to collision and the absence of any circumstances suggesting she could not have avoided collision had she kept a diligent lookout).

This evidence also forecloses Bartja’s negligence per se argument. In Malcom v. Malcolm, 112 Ga. App. 151, 154 (144 SE2d 188) (1965), we found that the applicable rules of the road furnished general rules of conduct, but whether the statutory provisions were actually violated presented a jury question to be determined in light of all the attendant circumstances of the case. Here, a jury must determine whether McConico failed to exercise reasonable care by following too closely or passing at an unsafe distance. The undisputed fact that McConico struck the van in the rear is insufficient to support a finding of negligence per se. Atlanta Coca-Cola, 236 Ga. at 450 (“A leading vehicle has no absolute legal position superior to that of one following.”).

2. The trial court did not err in granting summary judgment on the negligent entrustment, hiring, retention, and supervision claims because Ready admitted liability under respondeat superior for Mc-Conico’s negligence, if any.

In cases alleging both respondeat superior and negligent entrustment against an employer for the acts of its driver where no punitive damages are sought, we have stated that a defendant employer’s admission of liability under respondeat superior establishes “the liability link from the negligence of the driver . . . rendering proof of negligent entrustment unnecessary and irrelevant.” Thomason v. Harper, 162 Ga. App. 441, 442-443 (289 SE2d 773) (1982). This rule arises from the countervailing problems inherent in protecting the employee from prejudicial evidence of his prior driving record and general character for recklessness in driving while admitting the proof necessary for the negligent entrustment case to proceed. Id. at 442. It applies where, under the case as pleaded, the employer’s liability under respondeat superior would be identical to that under the negligent entrustment theory because no punitive damages are sought on the negligent entrustment claim. Id. at 443; see Willis v. Hill, 116 Ga. App. 848 (159 SE2d 145) (1967), rev’d on other grounds, 224 Ga. 263 (161 SE2d 281) (1968). In contrast, where the employer’s liability is not the same on both claims because punitive damages are sought only on the negligent entrustment claim, the appropriate solution for avoiding the prejudice to the driver is a separate trial on the negligent entrustment issue. Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 829 (435 SE2d 54) (1993); see Chupp v. Henderson, 134 Ga. App. 808, 809 (216 SE2d 366) (1975).

We find the rule applicable to the facts in this case. Here, National Union is essentially acting as a surety for both McConico and Ready. Andrews, 262 Ga. at 476. In this procedural posture, although McConico is no longer a party, the admission of evidence of his driving record as proof of negligent entrustment could prejudice National Union’s defense of the negligence claim against McConico. Summary judgment was properly granted as to punitive damages on both the negligence claim against McConico and the negligent entrustment, hiring, retention, and supervision claims against Ready (as discussed in Division 4). Thus, in the event of a plaintiff’s verdict, Ready’s liability is the same under negligent entrustment or respondeat superior. The negligent entrustment claim against Ready is dependent on the success of the negligence claim against McConico. In the event of a verdict for McConico, the negligent entrustment claim would fail for lack of proximate cause. Thus, the evidence of McConico’s prior driving record is “unnecessary and irrelevant,” and theoretically, no issues remained to be tried on the negligent entrustment claim in order to resolve the case. Thomason v. Harper, 162 Ga. App. at 442-443. Accordingly, if the trial court granted summary judgment based upon Ready’s admission of respondeat superior liability, it was not error. Willis, 116 Ga. App. at 862.

3. Because of our holding in Division 2, it is unnecessary to consider whether material issues of fact remain to be tried on the negligent entrustment, hiring, retention, and supervision claims.

4. Bartja contends that the trial court erred in granting summary judgment on punitive damages because issues remain to be tried as to whether McConico and Ready were grossly and wantonly negligent. He argues that McConico’s prior accidents and citations and his admitted tendency to fall asleep while driving constitute evidence precluding summary judgment.

Clear and convincing evidence of a defendant’s “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences” is required to warrant the imposition of punitive damages. OCGA § 51-12-5.1 (b). Negligence, even gross negligence, is insufficient to support such an award. Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (365 SE2d 827) (1988).

Ready hired McConico in late 1991. Federal regulations required Ready to investigate McConico’s driving record for the previous three years. 49 CFR § 391.23. On his job application, McConico identified two moving violations, one in October 1987 for driving on the wrong side of the road and the other in March 1989 for disregarding a stop sign while driving his rig. McConico listed no accidents on his application. However, he stated in his affidavit that he informed Ready that he had been involved in two accidents in the seven-year period preceding his application. These moving violations both occurred in 1988. McConico received a citation after driving his rig into the rear of a Honda parked in the emergency lane and partly across the white line on Interstate 20. In addition, while driving his rig down a two-lane highway, he clipped off an oncoming van’s side mirror. McConico also testified that he lost control of his personal car when a tie end rod broke. It is undisputed that McConico committed no actions which would disqualify him as a driver under the applicable federal regulations. 49 CFR § 391.15.

The evidence of McConico’s driving record does not reveal the requisite culpability required to create a genuine issue of material fact on the propriety of punitive damages against McConico. Coker v. Culter, 208 Ga. App. 651, 652 (431 SE2d 443) (1993). Nor is there evidence that at the time of the collision McConico was speeding, traveling too fast for conditions, driving under the influence of alcohol, had an opportunity to avoid the collision, or acted with such a wilful and wanton lack of care as to entitle a jury to presume he was consciously indifferent to the consequences of his actions. See Bradford v. Xerox Corp., 216 Ga. App. 83, 84 (453 SE2d 98) (1995); cf. Tommy Roberts Trucking Co., 209 Ga. App. at 828 (evidence presented that the truck driver struck the plaintiff’s car twice and then kept pushing it down the road).

Decided October 25, 1995

Burkey & Burkey, Frederick D. Burkey, Calvin A. Rouse, Billy E. Moore, for appellant.

Dennis, Corry, Porter & Gray, William E. Gray II, Pamela J. Gray, Stephanie F. Goff, Kerry A. Quinn, for appellee.

This reasoning also applies to the independent claims against Ready. The evidence shows that Ready complied with federal regulations in hiring McConico, who was qualified to drive under those regulations. Cf. Tommy Roberts Trucking Co., 209 Ga. App. at 828. Nothing in the record indicates that Ready knew or should have known that McConico had a tendency to fall asleep at the wheel. Assuming that Ready knew of McConico’s entire driving history, the record raises no disputed issues of fact sufficient to preclude summary judgment as to punitive damages. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

Judgments affirmed.

Beasley, C. J., and Ruffin, J., concur.

       Bartja has refiled his claims against Ready in the State Court of Fulton County. That separate action is also before us on an appeal challenging the grant of Ready’s motion to transfer for improper venue. (Case Nos. A95A1781, A95A1782, A95A1783, and A95A1784.)
      As a preliminary matter, we note that a contract action against an insurer of a motor carrier on the policy itself is “ ‘cognizable as an independent suit without joinder of the motor carrier.’ [Cits.]” Employers Ins. of Wausau v. Dawson, 194 Ga. App. 247, 248 (390 SE2d 261) (1990). Thus, where an actionable injury exists at the time suit is filed, the injured party need not pursue a suit against the motor carrier in order to sue the insurer, even though “under the Motor Carrier Act, OCGA § 46-7-1 et seq., the insurance carrier is not, in reality, a separate party for purposes of liability, but, rather, is equivalent to a provider of a substitute surety bond, creating automatic liability in favor of a third party who may have a claim for damages for the negligence of the motor common carrier. [Cit.]” (Emphasis in original.) Andrews v. Yellow Freight System, 262 Ga. 476 (421 SE2d 712) (1992); Seawheels, Inc. v. Bankers &c. Co. of New York, 175 Ga. App. 528, 532 (333 SE2d 650) (1985). Accordingly, the resolution of the venue issue as to Ready does not affect the viability of this action.


author: Andrews, Judge.

text:
    A95A1570.
    A95A1727.
    NOLEN v. THE STATE. MOORE v. THE STATE.
    (463 SE2d 504)
   Andrews, Judge.

Both of these appeals concern similar claims that double jeopardy bars a subsequent criminal prosecution for the offense of driving under the influence (DUI) after an administrative license suspension hearing. In Case No. A95A1570, Nolen claims that an administrative driver’s license suspension hearing constitutes a prosecution that bars any subsequent criminal prosecution on DUI charges based on the double jeopardy prohibition against multiple prosecutions for the same offense. In Case No. A95A1727, Moore claims that a driver’s license suspension at an administrative hearing constitutes punishment and therefore bars a subsequent criminal prosecution on DUI charges based on the double jeopardy prohibition against multiple punishments. We hold in both cases that double jeopardy does not bar the subsequent criminal prosecution or punishment.

The facts in Case No. A95A1570 show that Nolen was arrested for DUI on May 28, 1994, and was issued an “Official Notice of Intent to Suspend License.” He requested and received an administrative implied consent hearing pursuant to OCGA § 40-5-67.1 to determine whether the driver’s license suspension should be sustained or rescinded. The hearing was held by the Department of Public Safety and was presided over by an administrative law judge (ALJ). At the hearing, the ALJ rescinded the license suspension. (Nothing in the record indicates why the ALJ rescinded the suspension, e.g., lack of reasonable grounds, officer failed to adequately inform of implied consent laws.) Nolen then made a motion for discharge and acquittal on the DUI charge on the theory that a criminal prosecution for violation of OCGA § 40-6-391 would violate federal and state double jeopardy provisions because it would constitute a second prosecution for the same offense. His appeal is from the denial of the motion.

In Case No. A95A1727, Moore was arrested for failure to maintain lane, driving under the influence of alcohol or drugs, and driving with an illegal blood alcohol level. Moore submitted to a breathalyzer test, and her blood alcohol concentration registered at 0.13 grams. Pursuant to OCGA § 40-5-67.1, the Georgia Department of Public Safety notified Moore that her license would be suspended due to her blood alcohol concentration of 0.10 grams or more. Moore requested and received a hearing on the license suspension at which her driver’s license was suspended for a minimum of three years. Moore subsequently moved for dismissal of the criminal charges claiming that federal double jeopardy provisions barred multiple punishment for the same offense. She appeals from the denial of the motion.

The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The Georgia Constitution also contains a double jeopardy clause which provides that “[n]o person shall be put in jeopardy of life or liberty more than once for the same offense.” Ga. Const. 1983, Art. I, Sec. I, Par. XVIII. Further, OCGA §§ 16-1-6, 16-1-7, and 16-1-8 also provide limitations on multiple prosecutions, convictions, and punishments for the same criminal conduct. Stone v. State, 166 Ga. App. 245 (304 SE2d 94) (1983).

Double jeopardy protects against three types of abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U. S. 711, 717 (89 SC 2072, 2076, 23 LE2d 656, 664-665) (1969). Nolen contends that the administrative license suspension hearing involved the same conduct and the same issues as would a criminal prosecution on DUI charges, and therefore, such prosecution is barred by the double jeopardy prohibition against multiple prosecutions. Moore contends that a criminal prosecution against her on the DUI charges would amount to an attempt by the State to punish her a second time for the same offense and would therefore violate the double jeopardy prohibition against multiple punishments.

Traditionally, an administrative hearing could not constitute a prosecution for the purpose of double jeopardy analysis because it was not a criminal proceeding (Alexander v. State, 129 Ga. App. 395, 397-398 (199 SE2d 918) (1973)), nor have administrative sanctions been considered punishment for the purposes of double jeopardy. Coates v. Seay, 239 Ga. 635 (238 SE2d 422) (1977); Middlebrook v. Allen, 234 Ga. 481, 482 (216 SE2d 331) (1975). However, recent United States Supreme Court decisions recognize that an administrative proceeding may invoke double jeopardy protections. Dept. of Revenue of Montana v. Kurth Ranch, 511 U. S. _ (114 SC 1937, 128 LE2d 767) (1994); United States v. Halper, 490 U. S. 435 (109 SC 1892, 104 LE2d 487) (1989). An administrative sanction may constitute punishment for the purposes of double jeopardy if the purpose of the sanction is not remedial but instead serves the goals of retribution or deterrence. Kurth Ranch, supra; Halper, supra. In Kurth Ranch, supra, the Supreme Court held that a civil proceeding imposing an excessive tax on defendants for possession of illegal drugs after they were convicted on criminal drug charges constituted the “functional equivalent of a successive criminal prosecution” that placed defendants “in jeopardy a second time for the same offense.” Kurth Ranch, supra, 128 LE2d at 782. Thus, circumstances may arise in which an administrative hearing constitutes a prosecution for double jeopardy purposes and thus bars any subsequent criminal prosecution based on the same issues and conduct.

To determine whether a civil proceeding constitutes a prosecution for the purposes of double jeopardy, the potential sanction involved must be penal rather than remedial. That is, it must serve to punish the defendant. “[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment.” Halper, supra, 104 LE2d at 502. However, the decision in Halper does not mandate that a civil sanction that incidentally serves a punishment purpose constitutes punishment for double jeopardy purposes. As the Supreme Court acknowledged in Halper, supra, from the defendant’s perspective “even remedial sanctions carry the sting of punishment.” Halper, supra, 104 LE2d at 501, n. 7. “This[, however,] is not to say that whether a sanction constitutes punishment must be determined from the defendant’s perspective.” Id. The Georgia Supreme Court has held that “[t]he fact that a statute designed primarily to serve remedial purposes incidentally serves the purpose of punishment as well does not mean that the statute results in punishment for double jeopardy purposes.” (Citation and punctuation omitted.) Moser v. Richmond County Bd. of Commrs., 263 Ga. 63, 64 (428 SE2d 71) (1993). In Moser, the Court established a list of factors to consider in determining whether a civil sanction is punishment for double jeopardy purposes. “Among the factors to consider are whether the sanction involves an affirmative disability or restraint, has been regarded historically as punishment, requires a finding of scienter, promotes retribution and deterrence as the goals of punishment, is rationally connected to an alternative purpose, and appears excessive when compared to the alternative purpose.” Moser, supra at 64. Applying these factors, we conclude that the administrative license suspension hearing does not involve punishment for double jeopardy purposes.

While the suspension of a driver’s license may arguably be characterized as an affirmative restraint, it does not require a finding of scienter, and “it is actually the revocation of a privilege voluntarily granted, a traditional attribute of a remedial action.” (Citation and punctuation omitted.) Id.; Nelson v. State, 87 Ga. App. 644, 648 (75 SE2d 39) (1953); OCGA §§ 40-1-1 (24) (B); 40-5-1 (16) and (17). Moreover, the purpose of the license suspension hearing is clearly remedial. “The State of Georgia considers dangerous and negligent drivers to be a direct and immediate threat to the welfare and safety of the general public, and it is in the best interests of the citizens of Georgia immediately to remove such drivers from the highways of this state.” OCGA § 40-5-57. There can be no doubt that drivers with a blood alcohol level in excess of 0.10 grams pose a “direct and immediate threat to the welfare and safety of the general public.” OCGA § 40-5-55. The purpose of the driver’s license suspension hearing is to provide a quick, informal procedure to remove dangerous drivers from Georgia’s roadways and thereby protect public safety. The motorist is not jailed or fined as a result of the suspension but merely temporarily loses the privilege of driving on Georgia’s highways. An administrative suspension of a driver’s license is not comparable to the civil forfeiture of a property right, which has been found to constitute punishment. United States v. $405,089.23 U.S. Currency, 33 F3d 1210 (1994). In Georgia, a driver’s license is not an absolute right but rather is a privilege that may be revoked for cause. “[T]he right to continue the operation and to keep the license to drive is dependent upon the manner in which the licensee exercises this right. The right is not absolute, but is a privilege. . . . [W]hile it cannot be revoked without reason, it can be constitutionally revoked or suspended for any cause having to do with public safety.” Nelson, supra at 648. Because the purpose of the administrative license suspension is to protect public safety, and the deterrent effect is only incidental, we find that the sanction is clearly remedial.

Decided October 2, 1995

Reconsideration denied October 26, 1995

Bruce F. Morriss, Daniel Shim, for appellant (case no. A95A1570).

J. Guy Sharpe, for appellant (case no. A95A1727).

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Rosanna M. Szabo, Assistant Solicitors, for appellee (case no. A95A1570).

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Mark A. Basurto, Aurieanne Sneed, Assistant Solicitors, for appellee (case no. A95A1727).

Robert W. Chestney, Kenneth W. Mauldin, amici curiae.

Accordingly, the suspension of a driver’s license at an administrative hearing is not punishment, nor is the hearing a prosecution, for the purposes of double jeopardy. We find no error in the denial of Nolen’s motion for discharge and acquittal on the basis of double jeopardy in Case No. A95A1570, and no error in the denial of Moore’s motion to dismiss on the basis of double jeopardy in Case No. A95A1727.

Judgments affirmed.

Beasley, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur.

       These two cases are being decided by the whole court pursuant to OCGA § 15-3-1 (c) (2) and (3).


author: Birdsong, Presiding Judge.

text:
    A95A1794.
    TREADWELL v. TREADWELL.
    (463 SE2d 497)
   Birdsong, Presiding Judge.

James R. Treadwell appeals the jury verdict and judgment against him in the suit of his half-sister, Jamie Treadwell, for breach of fiduciary duty and conversion of funds. Treadwell was the oldest son by a previous marriage of the parties’ father, James T. Treadwell. Jamie is the daughter of James T. Treadwell’s second wife. At the time of her father’s death in 1977, Jamie Treadwell was 11 years old; her mother and father were estranged and Jamie lived with her father. Mr. Treadwell procured a $10,000 life insurance policy and made Jamie the sole beneficiary, designating that if she was not 21 when he died, the proceeds “shall be paid to James Robert Treadwell, son, as trustee for the support of said daughter.”

The insurance proceeds were paid by check made out to “JAMES R. TREADWELL, TRUSTEE FOR THE USE AND BENEFIT OF JAMIE TREADWELL, A MINOR.” After her father died, Jamie lived with her mother, at times receiving charity. In 1989 after she reached majority and unsuccessfully appealed to her half-brother James for $500 to buy a car, she retained legal counsel. Her attorney wrote to Treadwell and referred to documents the attorney had previously sent to Treadwell, including a copy of a 1977 letter from the insurance company confirming that payment was made to Treadwell “for the use and benefit of Jamie Treadwell,” and including a copy of that cancelled check. The attorney’s letter referred to Miss Tread-well’s intention “to recover the trust funds that are rightfully hers along with interest on those funds, and any profits which may have been earned therewith.”

Within six days Treadwell gave this response by letter: “The apparent confusion is the fact that there were two 10,000 dollar insurance policies on my father. His instructions to me were as follows: ‘the proceeds from my life insurance policies, after settlement of my debts and obligations’ be given to Jamie. However, one of the policies had been cancelled for lack of payment, and the other policy proceeds hardly covered my father’s debts. After his death, I discovered that my father had another daughter, by a woman living in Gainesville, Georgia. The other daughter, Tina, was living in near poverty with a small child. I used the remainder of my father’s funds plus funds of my own to provide care for his older daughter and grandchild. I am sending you a check for 10,000 dollars to settle any claim that Jamie thinks she has. ... If this is satisfactory, send me a release form. If this is not satisfactory, return the check. Regards, [Signed] JR Tread-well.”

Jamie Treadwell’s attorney sent Treadwell a letter by both certified mail and regular U. S. mail, stating that Treadwell’s check “satisfies our demand for the trust principal, and unless we hear otherwise within five (5) days, we will presume that no bona fide dispute or controversy exists with respect to this principal amount and [will] deposit the check into our trust account. . . . [T]his payment is not accepted in satisfaction of all of Jamie’s claims. . . . Ms. Treadwell is willing to settle for [interest of 13 percent over 12 years]. ... If this entire amount is paid within ten days she will forego her claims [including for] punitive damages . . . attorneys fees and costs. [Otherwise] our client will take her rightful grievances to the appropriate court.”

Receiving no answer, Miss Treadwell’s attorney deposited the check after endorsing this statement on the back: “With reservation of all our rights and without prejudice.”

When the lawsuit was filed, James R. Treadwell lived in Fulton County, Georgia. At trial he testified he lived in Colorado where he had put together a real estate development. Although the $10,000 insurance check was made payable to “JAMES R. TREADWELL, TRUSTEE FOR THE USE AND BENEFIT OF JAMIE TREAD-WELL, A MINOR,” he testified he did not see this language when he cashed the check. Under cross-examination, however, he testified he was “aware of the check made payable to [him] as trustee for the benefit of Jamie.” He testified he thought he was supposed to use the proceeds from the insurance to pay his father’s debts and then “take the balance and put it in a trust for Jamie.” He also testified he thought the $10,000 that was to go to Jamie was from an insurance policy that was cancelled and that he had never received any such proceeds. As for the $10,000 he received, after he paid his father’s debts there was only $1,500 left, so he gave this to his father’s illegitimate daughter Tina, who had seen her father only once, whom Mr. Treadwell did not mention in his will, and whom it took Tread-well five years to find after his father’s death. During that time, he did not call his sister Jamie and did not know whether she was living on welfare. He testified he knew Jamie was a very special person to his father and that he should have given the $1,500 to Jamie. When he got the demand letter from Jamie’s attorney in 1989, he realized he had made a mistake so he sent $10,000. The reason he did not send interest was that, as he figured, if he had invested Jamie’s money in stocks or real estate during those 12 years, he would have lost every dime.

Treadwell’s motion for directed verdict on grounds of accord and satisfaction was denied. The jury awarded Jamie Treadwell $13,471 plus $4,500 attorney fees. The trial court denied Treadwell’s motion for judgment n.o.v., and he appeals. Held:

1. Treadwell contends his tender of $10,000 and Jamie Tread-well’s acceptance of it constituted accord and satisfaction under OCGA § 13-4-103 (b), because there was a bona fide dispute as to the amount “if any” of his debt to Miss Treadwell, he tendered an amount less than the amount claimed on the condition of receiving a full release, and she accepted the check on those terms. This assertion is incorrect. Jamie Treadwell did not accept Treadwell’s check on his terms. She accepted it only as satisfaction of “our demand for the trust principal, and unless we hear otherwise ... we will presume that no bona fide dispute or controversy exists with respect to this principal amount [but] not ... in satisfaction of all of Jamie’s claims.” (Emphasis supplied.)

OCGA § 13-4-103 (b) provides that acceptance by a creditor of a conditional payment less than the amount owed “shall not constitute an accord and satisfaction unless: (1) A bona fide dispute or controversy exists as to the amount due; or (2) Such payment is made pursuant to an independent agreement between the creditor and debtor that such payment shall satisfy the debt.” Under this statute, where there is no bona fide controversy or “independent agreement,” the creditor’s acceptance of checks with notice of conditions does not as a matter of law constitute an accord and satisfaction. Franklin v. Cummings, 181 Ga. App. 755 (353 SE2d 626). OCGA § 13-4-103 (b) is a codification of the holding in Sylvania Elec. Prods. v. Elec. Wholesalers, 198 Ga. 870 (1) (33 SE2d 5), that “In the absence of an independent agreement by a creditor that the acceptance of an amount less than the indebtedness will be taken, or is taken, in full satisfaction thereof, the mere acceptance of a check for a less sum than the amount of [the debt] . . . with notice that it is in full satisfaction of the debt, will not amount to an accord and satisfaction unless there existed previously to the tender a bona fide dispute by the debtor as to the correctness of the amount of the debt.” (Emphasis supplied.) This holding was disapproved in Rivers v. Cole Corp., 209 Ga. 406, 408 (73 SE2d 196), but the enactment of OCGA § 13-4-103 (b) obviated the holding in Rivers and elevated the holding in Sylvania Elec. Prods, to the applicable statutory law with regard to accord and satisfaction. Sunbelt Life Ins. Co. v. Bank of Alapaha, 176 Ga. App. 628, 630 (337 SE2d 410).

To constitute accord and satisfaction by payment of less than the amount due under OCGA § 13-4-103 (b) (1), the dispute between the parties must be bona fide; the bona fide dispute must be a dispute “between the parties” and not one “confined to the mind of the sender of the check” (Sunbelt Life Ins. Co. at 631); and the bona fide dispute between the parties must have existed previously to the debtor’s tender of an amount less than the sum demanded. Id. Or, accord and satisfaction by acceptance of a sum less than the amount of the debt occurs where there is an “independent agreement” between the parties that such payment shall satisfy the debt. OCGA § 13-4-103 (b) (2); Sylvania Elec. Prods., supra.

(a) There was no bona fide dispute in this case. There is no dispute that the $10,000 check proceeds should have been Miss Tread-well’s, according to both the designation of beneficiary on the insurance policy and the payee statement on the insurance check. Treadwell’s equivocal testimony (see Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680); Douglas v. Sumner, 213 Ga. 82 (3) (97 SE2d 122)) shows he knew when he got the insurance check that it was intended for Jamie; or he should have known it by reading the check when he cashed it, and at the very least he realized, after receiving her attorney’s demands, that the $10,000 he received as Trustee for Jamie Treadwell should have gone to Jamie Treadwell. His only dispute is his contention that, in his mind, he thought he was doing what his father wanted by paying debts and giving the remainder to his father’s illegitimate daughter. Since Miss Treadwell, via trust to James R. Treadwell, was the recipient designated on the face of the insurance check, this is not a bona fide dispute. Treadwell’s only other “dispute” was a question in his mind whether he should pay Miss Treadwell interest on the $10,000 during the 12 years he withheld it from her; he concluded he did not owe interest because he did not have any, and because if he had invested the money he would have lost it all. This is not rational, much less a bona fide dispute. Moreover, these “disputes” were only in Tread-well’s mind; they did not exist between the parties, and they did not exist previous to Treadwell’s tender of $10,000.

(b) Nor was there an “independent agreement” between debtor and creditor that payment of the lesser sum satisfied the debt. Cases cited by Treadwell for his contention that mere acceptance of the check constituted accord and satisfaction were cases in which the creditor — unlike Jamie Treadwell — did not protest the payment of the smaller sum. Habachy v. Ga. Health Group, 207 Ga. App. 288 (427 SE2d 808); Wood Brothers Constr. Co. v. Simons-Eastern Co., 193 Ga. App. 874 (389 SE2d 382); Chrietzberg v. Kristopher Woods, 162 Ga. App. 517 (292 SE2d 100). In a nutshell, Treadwell’s demand that Jamie Treadwell must either issue a full release or return the $10,000 check was an extortionate demand to which she was not required to accede.

The evidence well supports the verdict. Therefore Treadwell could not have been entitled to directed verdict or judgment n.o.v. under OCGA § 9-11-50.

2. The trial court did not err in refusing to charge the jury that Jamie’s acceptance of the money coupled with knowledge that it was tendered in full settlement of the disputed claim amounted to accord and satisfaction, even if the creditor protests.

3. The trial court did not commit reversible error in recharging the jury as to accord and satisfaction 30 minutes after the jury requested a charge on accord and satisfaction.

4. The trial court did not err in refusing on request to send the written charges to the jury. “Anderson v. State, 262 Ga. 26, 28 (3) (a) (413 SE2d 732) authorizes but does not mandate that the trial court give a written copy of the charges to the jury.” Brewton v. State, 216 Ga. App. 346, 350 (454 SE2d 558). That the trial court erroneously told the jury that the law did not allow written charges to be submitted to them did not cause harm.

5. Treadwell contends the trial court erred in refusing to grant him a continuance on the day of trial, November 30, 1992, because his attorney asserted that the regularly sitting trial judge agreed at a previous hearing on November 1 that the trial would not be held until after the new year and after a motion to dismiss had been heard, and because his attorney showed that Treadwell was “snowed in” in Colorado and did not have notice of the trial. Treadwell’s counsel’s assertions are without substance and without support in the record. There is a procedure for certification in the record of “what Judge Cummings said on November 1st” (see OCGA § 5-6-41) and Tread-well’s counsel has not followed that procedure; therefore we will not accept those assertions. The supplemental record does not contain supporting documents which Treadwell’s counsel asserted it would contain. We do not take evidence from outside the record or from the parties’ briefs, and we do not adopt facts which are not supported by the record. Farmer v. State, 216 Ga. App. 515, 522 (455 SE2d 297). Nothing in the record supports Treadwell’s counsel’s assertions of fact as to what the regularly-sitting judge said; nothing supports counsel’s assertions as to a motion to dismiss. The record shows that the calendar gave notice of trial nearly a month before trial, and Treadwell had ample time to return to Georgia for it. Moreover, Treadwell did arrive during trial, and was able to testify in full. The trial court did not err in refusing a continuance.

Decided August 17, 1995

Reconsideration denied October 26, 1995

The Outlaw Firm, Shelby A. Outlaw, Scott M. Kaye, for appellant.

Schrade & Richardson, Melody H. Richardson, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A1987.
    FORD v. DOVE et al.
    (463 SE2d 351)
   Birdsong, Presiding Judge.

Appellant/defendant William C. Ford, M. D. was granted an interlocutory review of the order of the superior court denying his motion for partial summary judgment.

On March 5, 1993, appellee/plaintiff Hester Dove, as administratrix of the estate of Robert L. Dove and as deceased’s surviving spouse, filed suit for medical malpractice; the complaint alleged one cause of action on behalf of the estate and a wrongful death claim on behalf of appellee surviving spouse. Appellee asserts that appellant misdiagnosed deceased’s kidney cancer (initial misdiagnosis being some four years prior to the filing of suit) and therefore had engaged in medical negligence in his treatment of deceased. Appellant answered denying the claims and filed a motion for partial summary judgment as to the estate claims on the ground that suit was barred by expiration of the applicable statute of limitation; the motion was denied.

The expert affidavit filed in support of the complaint asserts appellant was negligent, inter alia, on March 6, 1989, in failing to take an x-ray of Mr. Dove’s kidney “to rule out kidney cancer at the time occult blood in urine was first noted with associated lower back pain” and in negligently failing to take any follow-up urinalysis for two years after the occult blood was first noticed in Mr. Dove’s urine. It is also opined in the expert’s affidavit that “the failure of Dr. Ford to exercise the [requisite] standard of care in treating Mr. Dove ... directly and proximately caused Mr. Dove to die as a result of a metastasized cancerous left kidney tumor which could have been removed without complications had a timely diagnosis been made.” (Emphasis supplied.) Appellant’s sole enumeration is that the trial court erred in denying appellant’s motion for partial summary judgment as to the estate claims based upon the running of the statute of limitation, as appellee filed suit more than two years after the date on which appellee contends the symptoms of kidney cancer were physically manifested to the deceased. Held:

1. The applicable summary judgment standard where appellant is the movant/defendant is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). However, where the party opposing the motion presents contradictory testimony for which no reasonable explanation is provided, the contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) applies. Appellees/plaintiffs presented the medical opinion of their expert in affidavit form that, on March 6, 1989, the deceased’s cancer had not metastasized and was curable if timely treated and that the cancer did not metastasize until a period of months or even more than a year from that date. However, the medical expert gave unexplained contradictory testimony by way of deposition admitting that he could not make an assessment of the size and extent of the deceased’s tumor in March 1989 and that he did not know when the tumor started. He further conceded that there was no way to assess the size of the cancer in 1989 when the deceased was found to have an abnormal urinalysis and that he did not know if there was any nodal involvement or distant seeding at that time. This deposition testimony contradicts the opinion expressed in the expert’s affidavit that the deceased’s cancer had not metastasized and was curable on March 6, 1989. Applying the rule of Prophecy Corp., supra, we conclude that the viable evidence at best establishes that a tumor of unknown size and indeterminable extent existed in the deceased in March 1989.

2. We decline to apply the continuous tort theory in this case so as, in essence, to extend the date when the statute of limitation under OCGA § 9-3-71 (a) would commence to run; “application of such a theory would appear to thwart the intent of the legislature in amending OCGA § 9-3-71 (a) in 1985.” Crawford v. Spencer, 217 Ga. App. 446, 449 (3) (457 SE2d 711). We further decline to adopt any theory of “continuous treatment” as a vehicle for judicially legislating a change to the applicable statute of limitation. Id.

3. OCGA § 9-3-71 (a) requires that a medical malpractice action must be brought within two years after the date on which an injury arising from a negligent or wrongful act or omission occurred. See Crowe v. Humana, 263 Ga. 833 (1) (439 SE2d 654). “[initiating the period of limitation in a medical malpractice action when the alleged negligence is first discovered would be contrary to the plain language of §§ 9-3-71 and 9-3-73.” Id. at 834. As a general rule, in most misdiagnosis cases, “ ‘the injury begins immediately upon the misdiagnosis due to the pain, suffering, or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis’ ”; thus, the fact that the patient did not know the medical cause of his suffering does not affect the applicability of OCGA § 9-3-71 (a) (Frankel v. Clark, 213 Ga. App. 222, 223 (444 SE2d 147)). However, an exception to the general rule was created in Whitaker v. Zirkle, 188 Ga. App. 706 (374 SE2d 106) where, after misdiagnosis of the presence of cancer in a mole on Mrs. Zirkle’s back, no additional symptoms were manifested until some seven years after the initial misdiagnosis, which was shortly before the cancer was properly diagnosed and after metastasis had occurred of cancerous cells which remained at the site of the removed mole. In Whitaker, supra at 708, it was held: “Plaintiffs do not allege the misdiagnosis caused Mrs. Zirkle to have cancer; the basis of plaintiffs’ claims is that she had cancer all along. The injury complained of is the subsequent metastasis of cancerous cells which remained at the site where the mole was removed. The subsequent metastasis allegedly would not have occurred if the cancer had been properly diagnosed and treated at the time of the original biopsy. When an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered. [Cit.] Expert testimony submitted by plaintiffs creates an issue as to whether the melanoma which was present in 1978 was localized and unmetastasized. If so, then plaintiff’s injury — the subsequent metastasis — occurred at some later date and was first discovered in 1985.” The holding in Whitaker, supra, was criticized by the majority in the en banc case of Jones v. Lamon, 206 Ga. App. 842, 846 (1) (426 SE2d 657), as concluding without any analysis, that the date an injury occurs under OCGA § 9-3-71 (a) is the date the injury is discovered; however, the majority found it unnecessary in view of the facts before it to resolve the apparent discrepancy between Whitaker and the plain language of the statute. See also Stone v. Radiology Svcs., 206 Ga. App. 851 (426 SE2d 663).

Likewise, we need not resolve this apparent discrepancy in the case at bar; Whitaker, supra, is factually distinguishable on at least two separate and critical grounds. First, unlike Whitaker, there exists no viable evidence in this case, after the rule of Prophecy Corp. has been applied, which establishes that the cancer had not already metastasized in March 1989. Secondly, in Whitaker, the plaintiff suffered no further symptoms of the cancer until shortly before it was properly diagnosed some seven years after the initial misdiagnosis; no similar fact pattern exists in this case.

Although not directly in point factually, we find the precedent of Jones, supra, persuasive in the disposition of this case. The record establishes that the deceased’s injury occurred and had physically manifested itself to him at least four months before March 8, 1991; the kidney cancer was ultimately diagnosed by another doctor on March 9, 1991. This is established, without contradiction, by the forthright deposition testimony of deceased’s wife, Mrs. Dove. This evidence establishes that the deceased’s injury had occurred and he had physically manifested symptoms of kidney cancer more than two years before suit was filed. Compare Jones, supra at 846 (1). Any subjective belief deceased may have harbored that his suffering stemmed from arthritis or some other cause unrelated to appellant’s alleged negligence does not change the fact that his injury occurred at least four months before March 8, 1991. Id. The fact that the deceased did not know the medical cause of his suffering did not affect the application of OCGA § 9-3-71 (a) when the evidence of record, including appellee’s admission in judicio in the pleadings, established that his injury had occurred and had physically manifested itself to him several months before March 1991. Henry v. Med. Center, 216 Ga. App. 893, 894 (2) (456 SE2d 216); compare Frankel, supra, citing Zechmann v. Thigpen, 210 Ga. App. 726, 728 (3) (437 SE2d 475). “A subjective belief that symptoms were due to some other cause unrelated to the alleged negligence does not change the point at which the injury occurred.” Bryant v. Crider, 209 Ga. App. 623, 626 (3) (434 SE2d 161).

Accordingly, we conclude the applicable statute of limitation had expired in this case, and appellant was entitled to partial summary judgment as to the estate claims.

Judgment reversed.

Johnson and Smith, JJ., concur.

Decided October 12, 1995

Reconsideration denied October 26, 1995

Blasingame, Burch, Garrard & Bryant, Gary B. Blasingame, J. Ralph Beaird, Amy L. King, Milton F. Eisenberg II, for appellant.

Robert C. Koski, for appellees.


author: McMurray, Presiding Judge.

text:
    A95A0899.
    FLOYD COUNTY GRAND JURY v. DEPARTMENT OF FAMILY & CHILDREN SERVICES.
    (463 SE2d 519)
   McMurray, Presiding Judge.

On December 14, 1994, appellant Floyd County Grand Jury issued and served subpoenas on seven employees of the Floyd County Department of Family & Children Services (“DFACS”) commanding their appearance before the grand jury on December 15, 1994. An eighth subpoena was issued but not timely served. DFACS and the employees filed a motion to quash the subpoenas, alleging the subpoenas were improper and beyond the scope of a grand jury’s powers. The appellant maintained that the subpoenas were issued pursuant to its authority to conduct civil inspections and investigations of county offices under OCGA § 15-12-71 (b) (2) and conceded that no criminal matter was involved. The parties agreed that the issues before the trial court were whether DFACS is a county or state office for purposes of OCGA § 15-12-71 (b) (2) and whether the appellant is authorized to subpoena state employees in regard to a civil investigation under this statute.

The only witness to testify at a hearing on the motion to quash was the acting Floyd County Finance Director, Kelly Roberts. Ms. Roberts testified that Floyd County gives DFACS a grant of “$125,000 a year ... for administration, emergency relief, and child welfare.” She confirmed that the annual grant “does not cover salaries of [DFACS] employees.” Ms. Roberts further testified, “I believe it is something [the county] choose [s] to do. The Board of Commissioners votes on [the grant] every year.” She confirmed that “the county has no control over [the] money” given to DFACS and she is “not . . . aware of’ any part of the DFACS operation that comes under county control. Ms. Roberts also testified the county issues grants to other agencies, including the Coosa Valley Mental Health Center (a state agency).

Following the hearing, the superior court entered an order quashing the subpoenas and relieving the witnesses from any obligation thereunder. The superior court found that the subpoenas were defective in form; that there was no proposed bill of indictment for which witnesses may be summoned; that DFACS is a state agency; and that no appropriate oath is provided for the witnesses even if DFACS were a county agency, making the subpoenas a “nullity.” This appeal followed. Held:

1. The appellant’s fourth enumeration and the dispositive issue in the case sub judice, is whether the superior court erred in ruling that DFACS is not a “county office” for purposes of OCGA § 15-12-71 (b) (2). OCGA § 15-12-71 (b) (2) states: “[T]he grand jury shall, whenever deemed necessary by eight or more of its members, appoint a committee of its members to inspect or investigate any county office or county public building or any public authority of the county or the office of any county officer, any court or court official of the county, the county board of education, or the county school superintendent or any of the records, accounts, property, or operations of any of the foregoing.” The appellant contends that the plain meaning of the terms used in OCGA § 15-12-71 (b) (2) and in the statutes creating and defining county departments of family and children services (OCGA §§ 49-1-1; 49-3-1), along with the county’s annual financial contribution to DFACS and DFACS’s significant impact on county operations leads to the conclusion that DFACS is a county office for purposes of OCGA § 15-12-71 (b) (2). But DFACS asserts that it is an “instrumentality of the state and as such is not subject to the appellant’s investigative powers [under OCGA § 15-12-71 (b) (2)].”

The Georgia law creating and defining county departments of family and children services indicates that these departments are instrumentalities of the Department of Human Resources (DHR), a state agency, independent of the county, and no evidence has been presented to the contrary. The DHR was created by virtue of state law (OCGA § 49-2-1) as a state institution (OCGA § 49-2-5) to administer all categories of public assistance (OCGA §§ 49-2-6; 49-4-3 (b)) under the Georgia Public Assistance Act of 1965 (OCGA § 49-4-1 et seq.), including administration and supervision of public assistance provided by county departments (OCGA § 49-2-6 (a)). Each county department of family and children services was also created by state law (OCGA § 49-3-1 (a)), and “[sjubject to the rules and regulations of the Board of Human Resources, [each] county department shall be charged with the administration of all forms of public assistance in [that] county . . . and such other welfare activities as shall be delegated to it by the Department of Human Resources or by the county commissioners. . . .” OCGA § 49-3-6.

Not only are county departments of family and children services under the supervision of DHR, a state agency, but Georgia law suggests that DFACS employees are state employees. First, “[t]he commissioner [of the DHR] is designated as the appointing authority for the [county director of each county].” OCGA § 49-3-3 (a). Second, “[t]he county department staff . . . shall be appointed pursuant to the rules and regulations of the Department of Human Resources and the State Merit System of Personnel Administration and subject to the approval of the commissioner of [DHR].” OCGA § 49-3-4 (a). Third, “[t]he salaries of the members of the staff shall be fixed by the county board in conformity with the salary schedule prescribed by the Department of Human Resources.” OCGA § 49-3-4 (b). Finally, “[t]he [DHR] commissioner shall have power to transfer from one county to another or from one district to another any employee of a county department.” OCGA § 49-3-4 (c).

Further, funding for the county departments of family and children services is derived from federal and state funds made available to them by the DHR. OCGA §§ 49-2-5; 49-4-17. The appellant contends that Floyd County’s contribution of $125,000 per year to DFACS for “administration, emergency relief and child welfare” is indicative of DFACS being a “county” office. No county, however, is statutorily required to participate in “the cost of such public assistance or in the cost of administration thereof,” and therefore, any contribution by Floyd County to DFACS is voluntary. OCGA § 49-4-17.

While we find no Georgia decisions which address the specific issue presented by this case, there are a number of decisions holding county departments of family and children services to be instrumentalities of the state for other purposes. See Horne v. Skelton, 152 Ga. App. 654, 655 (1) (263 SE2d 528) (county department of family and children services found to be an instrumentality of the state when power to appoint county director by the commissioner of DHR involved); Employees Retirement System of Ga. v. Baughman, 241 Ga. 339 (245 SE2d 282) (DFACS employees are state employees for the purpose of determining retirement benefits); and Ga. Dept. of Human Resources v. Demory, 138 Ga. App. 888 (227 SE2d 788) (DFACS determined to be a state instrumentality distinct from Hall County Board of Health, a county instrumentality, for purposes of workers’ compensation). Also see Bendiburg v. Dempsey, 707 FSupp. 1318 (N.D. Ga. 1989) (DFACS is instrumentality of the state for the purpose of Eleventh Amendment immunity). The appellant argues that these decisions holding county departments of family and children services to be a state instrumentality involve “narrow and unrelated issue [s] of law” and should not be found to control in this case. While these cases are not directly controlling, they are persuasive and, therefore, properly considered.

In light of the factors discussed herein, we conclude that county departments of family and children services, including Floyd County DFACS, are state rather than county offices for purposes of OCGA § 15-12-71 (b) (2) and, as state offices, are not subject to the grand jury’s power of inspection and investigation under this statute. And not only are grand juries without power to inspect and investigate state offices under OCGA § 15-12-71 (b) (2), but they lack power to perform civil investigations of state offices under any other statute. Without statutory authority, a witness can be commanded to appear before a grand jury only if there is “some pleading, either in the form of a bill of indictment or a special presentment, charging a named person with a specified offense . . .,” and appellant concedes there is no criminal investigation pending in this matter. Switzer v. State, 7 Ga. App. 7, 9 (1) (65 SE 1079). Consequently, the trial court properly quashed the subpoenas.

Decided October 26, 1995.

Stephen F. Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, James P. Orr, for appellee.

2. Appellant’s remaining enumerations of error are without merit. The third enumeration contends a grand jury may subpoena state-paid employees of county offices under OCGA § 15-12-71 (c), but since we have concluded DFACS is a state office for purposes of OCGA § 15-12-71 (b) (2), the presumed factual predicate of this issue is incorrect. Further, we need not decide whether the subpoenas were defective in form or invalid per se since appellant has no power to conduct a civil investigation of DFACS or issue subpoenas to compel attendance of witnesses in connection with such an investigation. Finally, the appellant’s fifth enumeration incorporates the argument submitted in support of the fourth enumeration which has already been considered.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1214.
    HOSLEY v. COMPUTER TRANSPORT OF GEORGIA, INC. et al.
    (463 SE2d 526)
   McMurray, Presiding Judge.

This is a wrongful death action brought by plaintiff Hosley, as administrator of the estates of his sister Barbara Wilson and her illegitimate minor son, Al-Sufi Hosley, against three defendants. In Hosley v. Davidson, 211 Ga. App. 529 (439 SE2d 742), this Court affirmed the grant of defendant Davidson’s motion to strike plaintiff’s response to defendants’ motions for summary judgment and affirmed the grant of defendant Davidson’s motion for summary judgment on the wrongful death claim. (The grant of Davidson’s motion for summary judgment on claims for funeral and burial expenses was reversed.) The present appeal is taken from the grant of motions to strike and for summary judgment (except as to plaintiff’s claims for funeral and burial expenses) submitted by the two remaining defendants, Computer Transport of Georgia, Inc. (“Computer Transport”) and North-brook Property & Casualty Insurance Company (“Northbrook”), on the same grounds as the similar motions of defendant Davidson. The primary issues presented on this appeal involve procedural matters. Held:

1. Davidson’s motion to strike plaintiff’s response to his motion for summary judgment was filed on November 19, 1992, the date of the hearing on the defendants’ motions, including the motions of all three defendants for summary judgment, but prior to the time of that hearing. Later that day, Computer Transport and Northbrook filed their written motion to strike plaintiff’s response to their motions for summary judgment.

Within a few days after the motion hearing, the state court filed an order granting Davidson’s motion to strike and an order granting Davidson’s motion for summary judgment. These orders were appealed resulting in the earlier decision in this case which was handed down on December 3, 1993. On June 24, 1994, the state court entered orders granting the motions to strike and for summary judgment of Computer Transport and Northbrook.

In his first enumeration of error, plaintiff maintains that the state court erred in granting the motion to strike of Computer Transport and Northbrook because the motion to strike was untimely in that it was submitted only after the close of the motion hearing on November 19, 1992. We do find support for a general proposition that a motion to strike must be timely or the objection is waived. There is also authority that timeliness is measured by whether the objections are raised prior to oral arguments. This line of thought seems to control challenges based on defective form or content of the material sought to be stricken. Bradbury v. Mead Corp., Mead Prods. Div., 174 Ga. App. 601 (1), 602 (330 SE2d 801).

The answer is less clear where, as in the case sub judice, the objection raised in the motion to strike is to the timeliness of the matter sought to be stricken. It should be apparent, as under the circumstances of the case sub judice, that where a pleading is filed and served only minutes or hours prior to a hearing that it is harsh to require that a motion to strike be submitted in the remaining interval before the hearing. Practical necessity must permit some latitude from the general rule under these circumstances subject to the judicial discretion of the trial court. Crucet v. Bovis, Kyle & Burch, 180 Ga. App. 765 (350 SE2d 322) affirming the striking of an affidavit in opposition to a motion for summary judgment filed on the hearing date and where the motion to strike was filed approximately a week later would appear to approve, at least implicitly, of this view. Applying this line of thought to the issue posed in the case sub judice, we find no abuse of discretion in the state court’s considering the motion submitted by Computer Transport and Northbrook to strike plaintiff’s response to their motion for summary judgment. Under the circumstances of the case sub judice, the state court was authorized to conclude that the filing of the written motion to strike after the motion hearing did not amount to a waiver of the objections contained therein, particularly since the motion to strike was filed in response to plaintiff’s response to defendants’ motion for summary judgment which was filed earlier the same day.

2. Plaintiff’s next enumeration of error complains of the state court’s granting the motions to strike and for summary judgment submitted by Computer Transport and Northbrook without first conducting any further oral hearing. Insofar as plaintiff was entitled to oral argument on defendants’ motion for summary judgment pursuant to OCGA § 9-11-56 and Uniform State Court Rule 6.3, such was satisfied by the hearing conducted on November 19, 1992.

In regard to the motion to strike, submitted by Computer Transport and Northbrook, there was a procedural change during the interval in which the motion was pending. Uniform State Court Rule 6.3, which at the time of the filing of the motion to strike on November 19, 1992, provided for oral argument upon written request on any motion, was amended to limit the right to oral argument on written request to motions for summary judgment. (The amendment did not change the provision for oral hearing on motions for new trial and motions for judgment n.o.v.)

When the state court entered its order granting the motion to strike submitted by Computer Transport and Northbrook on June 24, 1994, there was no longer a provision in Uniform State Court Rule 6.3 requiring compliance with plaintiff’s request for an oral argument on the motion to strike. The change of the rule being entirely procedural in nature, plaintiff has no vested rights arising from the earlier wording of the rule and was subject to the new provisions of the rule from the effective date of the amendment. Archie v. Scott, 190 Ga. App. 145, 146 (2) (378 SE2d 182); Ballard v. Frey, 179 Ga. App. 455, 458-459 (2) (346 SE2d 893).

3. Plaintiff also maintains that the trial court erred in dismissing his claims as not having been brought by the proper party within the statute of limitation without holding a hearing pursuant to OCGA § 9-11-12 (d) as timely requested. In support of this enumeration, plaintiff again argues that he is entitled to a hearing under the former language of Uniform State Court Rule 6.3, an argument we have already rejected in Division 2 of this opinion.

Decided October 26, 1995.

Daryl V. Yokely, for appellant.

Fain, Major & Wiley, Donald M. Fain, David W. Williams, Kim M. Jackson, Thomas E. Brennan, Long, Weinberg, Ansley & Wheeler, Quinton S. Seay, for appellees.

Plaintiff also repeats his argument that the state court in granting summary judgment in favor of Computer Transport and North-brook used an improper procedural vehicle by which to adjudicate this case. We rejected this argument in the earlier appeal, Hosley v. Davidson, 211 Ga. App. 529, 533 (3), supra, and find no substantial difference in the circumstances which would give this argument merit in the present appeal.

Insofar as plaintiff relies on his request for a hearing on the defense of defendants Computer Transport and Northbrook under OCGA § 9-11-12 (b), it appears such would only afford an opportunity to argue once more the issues which were covered at the summary judgment hearing. Plaintiff having been afforded the opportunity to orally argue against the motion for summary judgment of Computer Transport and Northbrook at the hearing on November 19, 1992, is not entitled to further oral hearings.

4. In the final enumeration of error, plaintiff contends that the statute of limitation defense was waived by the failure of Computer Transport and Northbrook to raise this issue in their answers. The statute of limitation defense as an affirmative defense may be waived if not properly raised. Generally, it should be raised in a party’s initial pleading, but it is not required that a plea of the statute of limitation be raised prior to a time when the evidence discloses that the matter is barred. House v. Echota Cotton Mills, 129 Ga. App. 350, 352 (2) (199 SE2d 585). In the case sub judice, the period of the statute of limitation did not expire until months after the filing of the defendants’ answers. Only then did it become appropriate for the defendants Computer Transport and Northbrook to assert this issue which they did via their motion for summary judgment. Although he argues otherwise, there is no evidence that plaintiff was misled or surprised by the statute of limitation defense. Plaintiff had a fair opportunity to present evidence or amend his complaint in response but failed to do so in a timely manner. The purpose of the pleading requirements with regard to affirmative defenses was satisfied under the circumstances shown in the record on appeal. Brown v. Moseley, 175 Ga. App. 282, 283 (1) (333 SE2d 162).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Smith, Judge.

text:
    A95A1686.
    SMITH v. TRANSAMERICA INSURANCE COMPANY.
    (463 SE2d 711)
   Smith, Judge.

This appeal involves the ancient common-law device of vouchment and its survival in modern practice in statutory form. OCGA § 9-10-13. We are asked to determine the scope of that statute’s effect upon a subsequent claim against the vouchee. We conclude that the effects of a vouchment under OCGA § 9-10-13 are limited to those explicitly provided by the statute, and we affirm the trial court’s decision granting summary judgment in favor of the vouchee.

Smith, an insurance agent, was sued in Fulton County by a former customer and its employees after a medical insurance policy he procured failed to pay the employees’ medical claims. Smith notified his errors and omissions insurer, Transamerica, which denied coverage on the basis of the insolvency exclusion in its policy. Smith then sent a letter to Transamerica vouching it into the Fulton County action pursuant to OCGA § 9-10-13. It does not appear from the record that Transamerica filed pleadings, defended, or otherwise participated in the Fulton County action as a vouchee. The trial court in the Fulton County action entered findings of fact and conclusions of law, granting summary judgment to the plaintiffs and finding Smith liable for plaintiffs’ damages.

Smith then filed this action against Transamerica in the State Court of DeKalb County, seeking coverage under the errors and omissions policy, bad faith penalties, and attorney fees. Both Smith and Transamerica moved for summary judgment. In a thorough and well-reasoned order, the trial court denied Smith’s motion and granted summary judgment in favor of Transamerica on the basis of the insolvency exclusion. From this order, Smith appeals.

In three related enumerations of error, Smith contends the trial court erred in allowing Transamerica to litigate the issue of its liability under the errors and omissions policy. According to Smith, the vouchment foreclosed the relitigation of any issue addressed by the findings of fact and conclusions of law in the Fulton County action, which he contends determined by implication the issue of Transamerica’s liability to Smith. Smith argues that because the court found the failure of reinsurance through Smith’s negligence was the proximate cause of the plaintiffs’ losses, that finding is conclusive as to the reason for the underlying loss, and therefore, the insolvency exclusion does not apply. This argument assumes, however, that the trial court in the Fulton County action considered a multitude of issues that were never presented for decision, including the terms of coverage and exclusions under the Transamerica policy or the policy of reinsurance. Moreover, even if we assume that the Fulton County trial court made a sub silentio determination of Transamerica’s liability under the policy without ever expressly so holding, Smith’s argument misstates the function and effect of the vouchment statute.

OCGA § 9-10-13 provides: “Where a defendant may have a remedy over against another person and vouches him into court by giving notice of the pendency of the action, the judgment rendered therein shall be conclusive upon the person vouched, as to the amount and right of the plaintiff to recover.” This Court and the Supreme Court have consistently interpreted this language to mean precisely what it says. “By the terms of the quoted Code section, when a person against whom a defendant has in fact a remedy over has been thus vouched, and such remedy over has been actually established by aliunde proof, the vouchee thereby is bound by the previous judgment establishing the liability of the original defendant and the amount thereof. . . . But the mere avouchment of a third person by a defendant to a suit, under the claim of a remedy over against him, and the failure of the vouchee to respond, does not adjudicate the validity of such claim of the voucher against his vouchee. The previous judgment does not determine whether the voucher’s claim over against the vouchee was in fact good or bad. [Cits.] The underlying purpose of the rule which permits the vouching of another into court to defend a suit, where the defendant claims that the vouchee would in turn be responsible to him for any recovery had, is to conclude the vouchee upon the question of the voucher’s liability to the original plaintiff and the amount of such liability; thus leaving for future determination only the one other question as to whether or not the vouchee is in fact liable over to the vouching defendant.” (Emphasis supplied.) Southern R. Co. v. Acme Fast Freight, 193 Ga. 598, 600-601 (19 SE2d 286) (1942). “[T]he fact of the defendant’s liability to the plaintiff and the amount of that liability are matters binding upon the vouchee; the vouchee’s liability to the defendant cannot be determined in this action but a separate action must be filed by the defendant to determine whether the vouchee is liable to the defendant. [Cits.] The vouchee is not a party defendant [cits.] as he is in third-party practice under CPA Rule 14. Although he may defend for his own sake against the defendant’s liability to the plaintiff, no judgment is rendered against [the vouchee].” (Emphasis supplied.) Hardee v. Allied Steel Buildings, 182 Ga. App. 587 (1) (356 SE2d 682) (1987). In fact, the provisions of the Civil Practice Act regarding third-party practice have largely superseded the vouchment procedure, precisely because it cannot bind a vouchee to liability to the defendant. Hardee, 182 Ga. App. at 588.

Decided October 26, 1995

Schreeder, Wheeler & Flint, Lawrence S. Burnat, Debbie A. Wilson, for appellant.

Webb, Carlock, Copeland, Semler & Stair, John W. Sandifer, David F. Root, for appellee.

Smith insists that Transamerica’s decision not to litigate as a vouchee constitutes an estoppel and is conclusive as to all findings of fact and conclusions of law in the Fulton County action, relying on language from the Hardee decision to the effect that “if the vouchee objects to the vouchment [it] can ignore it, but [it] does so at [its] peril because the statute makes the judgment binding on [it], and by the facts may reflect [its] own liability to the defendant. Southern R. Co., supra, p. 601.” Hardee, 182 Ga. App. at 588. Smith misinterprets Hardee. The Supreme Court in Southern makes it abundantly clear that a vouchee’s liability could theoretically be established in the first action only by the vouchee’s conduct, which “by his own pleading or his actual procedure in his conduct of the [first] case necessarily establishes his own liability over to the original defendant.” Southern R. Co., 193 Ga. at 601. In other words, a binding admission in judicio could conceivably be made under some set of facts by the vouchee in responding to the vouchment, but nothing is established by refusal to participate as a vouchee, other than the statutory consequences specifically provided by OCGA § 9-10-13.

Under these circumstances, Smith’s contention that Transamerica is bound by all the findings and conclusions of the court in the Fulton County action is without merit. Transamerica is bound by the finding of Smith’s liability to the insured and the amount of that liability, nothing more. Consequently, the trial court did not err in considering the terms of the errors and omissions policy in granting summary judgment to Transamerica.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       Smith does not enumerate any error in the trial court’s interpretation of the policy exclusion itself as a matter of law or fact.

       It is perhaps significant that the findings of fact and conclusions of law never mention either Transamerica or its policy of insurance.


text:
    A95A1785.
    KEMP v. THE STATE.
    (463 SE2d 385)
   McMurray, Presiding Judge.

Defendant was indicted along with co-defendant Anthony Bernard Joiner, a/k/a Altoma Dekle, for selling cocaine in violation of Georgia’s Controlled Substances Act and was later tried separately before a jury. At trial, Special Agent Woodrow Boyd of the Georgia Bureau of Investigation (“GBI”) testified that, while working undercover on December 29, 1993, he went to a trailer with a “confidential source” and purchased $460 worth of cocaine from defendant. The special agent testified that the “confidential source” and co-defendant Joiner were present during the illegal drug transaction and that co-defendant Joiner assisted in negotiating the deal. Defendant refuted this proof, testifying that Special Agent Boyd falsely accused him of committing the crime charged because he refused to act as a “confidential source.”

Special Agent Boyd admitted that he acquired a warrant for defendant’s arrest (almost four months after commission of the crime charged) when defendant refused “the option to cooperate” as a “confidential source,” but he denied falsely accusing defendant of committing the crime charged. The special agent explained that he executed the arrest warrant on April 20, 1994, when other law enforcement officers moved in on defendant’s trailer to execute a search warrant that was based on the report of an unrelated drug transaction. Investigator John Durden of the Emanuel County Sheriff’s Office testified that he initiated the raid; that he observed defendant withdraw into the trailer just before the raid and that, moments later, he caught defendant and co-defendant Joiner scrambling from a “toilet” that had “just [been] flushed.” The investigator testified that he seized a bag of marijuana from the “just flushed” toilet and that another officer discovered “a plastic bag which contained [a] white powdery and white rock-like substance, and ... a .380 semi-automatic pistol.” According to Investigator Durden, these items were found on the ground outside the trailer, just below the window of the bathroom where he found the marijuana.

Defendant was found guilty of selling cocaine to Special Agent Boyd on December 29, 1993. This appeal followed the denial of defendant’s motion for new trial. Held-.

1. In four enumerations of error, defendant contends the trial court erred in overruling his motions (asserted at trial) to reveal the identity of the “confidential source.”

Although defendant was aware before trial of Special Agent Boyd’s claim that a “confidential source” accompanied him during the undercover drug-buy on December 29, 1993, he did not file a pretrial motion to reveal the identity of the “confidential source.” Defendant instead waited until trial (during the cross-examination of Special Agent Boyd and after the close of the State’s case) to assert motions to reveal the identity of the “confidential source.” And then defendant did not request an in camera determination of the matter as prescribed in Moore v. State, 187 Ga. App. 387, 388 (2), 392 (370 SE2d 511). Under these circumstances, defendant waived his right to complain of prejudice because of the State’s failure to reveal the identity of the “confidential source.” Mosely v. State, 217 Ga. App. 507, 508 (2) (458 SE2d 165). See State v. Sears, 202 Ga. App. 352, 353 (4) (414 SE2d 494).

2. Defendant contends the trial court erred in prohibiting him from commenting, during closing argument, on the State’s failure to introduce testimony of two witnesses at trial, i.e., a “federal agent” and the “confidential source.” This contention is without merit. Defendant “has failed to demonstrate why the general rule of Wilson v. Zant, 249 Ga. 373, 384 (4) (290 SE2d 442) (1977), which precludes such comments, should not be applied.” Roper v. State, 251 Ga. 95, 98 (6) (303 SE2d 103).

3. Next, defendant contends the trial court erred in allowing the State to introduce, as a similar transaction or occurrence, proof of the police raid that preceded his arrest on April 20, 1994.

The April 20, 1994, raid occurred less than four months after the incident which forms the basis of the crime charged; both incidents occurred in the late afternoon at defendant’s trailer; the separate occurrences involved violations of Georgia’s Controlled Substances Act; defendant and co-defendant Joiner were present during both transactions and both times defendant was either in actual or constructive possession of quantities of cocaine. “Under the circumstances, we find the evidence of similarity sufficient. Accordingly, as there was compliance with Williams v. State, [261 Ga. 640, 642 (2) (b) (409 SE2d 649)] and Stephens v. State, 261 Ga. 467, 468-469 (405 SE2d 483), and the trial court’s ruling was not clearly erroneous, there was no error in admitting this similar transaction evidence. Mitchell v. State, 206 Ga. App. 672, 673 (426 SE2d 171).” Riden v. State, 213 Ga. App. 17, 18 (2) (443 SE2d 865).

Defendant further alleges that the circumstances preceding his arrest were improperly admitted as similar transaction evidence because he was acquitted of all criminal charges stemming from this incident. See Salcedo v. State, 258 Ga. 870 (376 SE2d 360). While it is undisputed that the police raid at defendant’s trailer on April 20, 1994, formed the basis of a separate indictment under which defendant was charged (in pertinent part) for possession of marijuana with intent to distribute and possession of cocaine with intent to distribute, the record in the case sub judice does not indicate that defendant has been acquitted of these offenses. See Rhodes v. State, 193 Ga. App. 28 (1), 29 (386 SE2d 857). The record only includes a handwritten document that was purportedly “[F]iled in open court this 12th day of April 1995,” which provides as follows: “We the jury, according to the evidence presented by the State, we find the defendant, Gregory Bernard Kemp, innocent of all charges on this 12th day of April, 1995 . . . FOREPERSON [signature].” Assuming this document evidences defendant’s acquittal of the charges stemming from the police raid on April 20, 1994, the State would not have been es-topped in presenting the April 20, 1994, incident as a similar transaction or occurrence upon trial of the case sub judice (on October 24, 25 and 26, 1994) since defendant’s purported acquittal on April 12, 1995, came after his conviction for selling cocaine to Special Agent Boyd on December 29, 1993. See Harmon v. State, 259 Ga. 444, 445 (4) (383 SE2d 874).

Decided October 26, 1995.

W. W. Larsen, Jr., for appellant.

Richard A. Malone, District Attorney, for appellee.

4. The Supreme Court’s holding in Brown v. State, 264 Ga. 48 (441 SE2d 235), eliminates defendant’s contentions that the trial court erred in instructing the jury on criminal intent and conflicts in testimony. Id. at 49 (3), 50 (3) (b) and (c), supra.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.