author: Smith, Presiding Judge.

text:
    A00A0442.
    TERRELL v. THE STATE.
    (536 SE2d 528)
   Smith, Presiding Judge.

Eddie Bernard Terrell was convicted on two charges of surveillance which invades the privacy of another, one count of child molestation, and one count of cruelty to children. On appeal, he challenges the sufficiency of the evidence with respect to the child molestation charge, and he contends that he was denied effective assistance of counsel. Because we are constrained to agree with Terrell that the State failed to prove an essential element of the crime of child molestation, we must reverse the judgment as to that count.

1. Terrell contends that the State failed to prove that the victim was under the age of 16 at the time of the acts alleged in the indictment and that he therefore could not have been convicted of the offense of child molestation. In particular, he argues that on the dates of child molestation alleged in the indictment, the victim was over the age of 16. This is true. The victim testified that her date of birth was June 9, 1979. She therefore turned 16 on June 9, 1995. The indictment alleged that the acts of child molestation occurred between February 1, 1996 and April 29, 1996. The victim obviously was over the age of 16 on these dates.

The State is not always restricted to proving that an offense occurred on the dates alleged in the indictment.

In proving the time of the commission of an offense the State is not, as a general rule, restricted to proof of the date alleged in the indictment, but is permitted to prove its commission on any date within the statute of limitations. Where, however, the indictment specifically alleges the date of the offense is material, the accused may be convicted only if the state’s proof corresponds to the date alleged.

(Citations and punctuation omitted.) Green v. State, 206 Ga. App. 539, 540 (1) (426 SE2d 65) (1992). Here, as in Green, the indictment did not specifically allege that the dates were material. Consequently, the State was not restricted to the dates in the indictment. But the State was nevertheless required to prove that the victim was under the age of 16, because that is an essential element of the crime of child molestation. See OCGA § 16-6-4 (a). The age of the victim on the dates the crimes were committed was very much in issue in this case.

The indictment alleged that Terrell committed child molestation by pulling up the victim’s clothes and exposing her body. To have occurred when the victim was under the age of 16, this must have happened before June 9, 1995. (As noted above, her date of birth was June 9, 1979.) The only direct evidence presented by the State showing the time period in which the alleged molestation occurred was that the alleged acts occurred in 1996. A Department of Family & Children Services investigator testified that the victim told her that in March 1996, Terrell would wake her in the mornings by pulling her bedcovers off with one hand and her gown up with the other. This evidence was clearly insufficient to enable a rational trier of fact to convict Terrell of child molestation under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Some evidence does show that the victim’s family moved into a house on “Fourth Street” in July 1994. The victim would have been 15 at that time. She acknowledged that Terrell woke her in the mornings and that Terrell would “grab the end of the nightgown and it would pull.” She stated that this activity exposed her “stomach area and below” and that “[w]hen the covers would sling off, my nightgown would slide up a little bit.” The victim testified that Terrell woke her for school when she was “younger” but not “older.” From this evidence, it is impossible to determine whether the alleged acts of child molestation occurred when the victim was 15 and living in the Fourth Street house or later when she turned 16. In fact, the transcript is not clear that these incidents even occurred in the Fourth Street house. Under this evidence, as in Staggers v. State, 119 Ga. App. 85, 86 (3) (166 SE2d 411) (1969), the State failed to prove that the victim was underage at the time of the alleged offense of child molestation. Id. at 85-86 (2). We must conclude, therefore, that the “evidence was wholly insufficient to prove the offense charged.” Id. at 86 (3). Compare Arnold v. State, 167 Ga. App. 720 (1) (307 SE2d 526) (1983) (evidence showed that victim was seven years old when alleged molestation occurred and that the alleged molestation occurred within the statute of limitation). Reversal of Terrell’s conviction on the child molestation charge is therefore required.

2. Given our holding in Division 1, Terrell’s remaining enumeration of error is moot.

Judgment reversed.

Pope, P. J., and Miller, J., concur.

On Motion for Reconsideration.

Terrell contends we incorrectly concluded that his enumeration concerning his ineffective assistance claim was moot. Assuming, without deciding, that this argument is correct, we find no basis for reversal.

To prevail on an ineffectiveness claim, an appellant must show deficient performance by counsel and a reasonable probability that but for this deficiency, the outcome of the trial would have been different. Fleming v. State, 241 Ga. App. 61, 64 (526 SE2d 91) (1999). Terrell has failed in this regard. Many of his contentions involve matters of trial strategy, which do not afford a basis for an ineffectiveness claim. See, e.g., Hayes v. State, 236 Ga. App. 617, 620 (4) (b) (512 SE2d 294) (1999). He also makes arguments on appeal that were not raised below, therefore precluding review of these arguments. See Wooden v. State, 240 Ga. App. 725, 727 (2) (b) (524 SE2d 776) (1999). Finally, even assuming that counsel was deficient in some manner, given the overwhelming evidence against Terrell with respect to the remaining counts on which he was convicted, and given the fact that the jury acquitted him on at least one count, we cannot say that a reasonable probability exists that but for counsel’s deficiency, the outcome of the trial would have been different.

Decided June 22, 2000

Reconsideration denied July 24, 2000.

Mark A. Gomez, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

Motion for reconsideration denied.

       He was acquitted on another count of cruelty to children.

       She also testified, however, that she wore panties under her nightgown.

       We note that Terrell did not appeal from his convictions on the remaining counts. Those convictions therefore stand affirmed.


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    A00A0870.
    TURNER v. THE STATE.
    (536 SE2d 814)
   SMITH, Presiding Judge.

Jack Swayne Turner was indicted by a Hall County grand jury on one count of child molestation of his granddaughter. A jury found him guilty, the trial court denied his amended motion for new trial in a lengthy and thorough order, and he appeals, making more than 16 assertions of error in 11 enumerations. Finding no error, we affirm.

1. Turner asserts the general grounds. But, taking the victim’s testimony as true, as we must, that evidence alone was sufficient to sustain the convictions. Johnson v. State, 231 Ga. App. 823 (1) (499 SE2d 145) (1998). Any questions of inconsistency or credibility were for the jury to resolve.

2. Turner contends the trial court erred in admitting evidence of a similar transaction that occurred in 1988, approximately nine years before trial. He asserts that the incident was too remote in time and that because the incident never resulted in an indictment or conviction, it is an “inescapable” conclusion that the similar transaction “never happened.” But

where similar transaction evidence has been admissible otherwise, lapses of time of 11 years and of 19 years have not demanded that the evidence was inadmissible. Further [,] the lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility. Moreover, the prior acts need not have resulted in a conviction before the acts are deemed admissible.

(Citations and punctuation omitted.) Braddock v. State, 208 Ga. App. 843, 844 (2) (432 SE2d 264) (1993). This enumeration therefore is without merit.

3. Turner also contends the trial court erred in admitting his custodial statement. Citing no authority other than Miranda itself, he contends he requested a lawyer during his interview with police. But “[i]f the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning.” Smith v. State, 231 Ga. App. 677, 682 (3) (499 SE2d 663) (1998). The interviewing investigator testified that at one point during Turner’s statement, he recalled Turner “asking me if he needed a lawyer.” In response, the investigator told Turner “if he didn’t want to talk, he didn’t have to. He could get a lawyer if he wanted to and we wouldn’t talk any more.” Turner responded that “he would go ahead and talk.” Such ambivalent statements as “I guess I need a lawyer,” “maybe I should talk to a lawyer,” and “I don’t know what to do,” are not unambiguous requests for counsel and do not require officers to stop questioning or obtain clarification before continuing. Id. Moreover, the investigator did obtain clarification from Turner before continuing the interview, and Turner expressed a desire to continue. This enumeration of error is without merit.

4. In a single enumeration of error, Turner alleges ineffective assistance of trial counsel in almost every possible respect. To prevail on a claim of ineffective assistance of counsel, it must be shown both that counsel’s performance was deficient and that but for this deficiency the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Failure to satisfy either prong of the Strickland standard is fatal to an ineffective assistance claim. Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997). In addition, a strong presumption exists that trial counsel performed within the wide range of reasonable professional assistance. Davis v. State, 238 Ga. App. 84, 89 (7) (517 SE2d 808) (1999). The trial court’s determination that Turner was afforded effective assistance of counsel will not be reversed on appeal unless it was clearly erroneous. McCant v. State, 234 Ga. App. 433, 436 (3) (506 SE2d 917) (1998).

(a) Turner first contends that his trial counsel was not prepared for trial or for a similar transactions hearing, that he performed an inadequate investigation, and that he spent an inadequate amount of time in consultation with Turner. Turner fails to point to any specific evidence in the record supporting these conclusory assertions in his brief. Court of Appeals Rule 27 (c) (3). Nevertheless, we have reviewed the evidence in the record, which shows that Turner’s counsel had been in practice for sixteen years with four or five years experience in criminal law at the time of Turner’s trial. He had conducted approximately ten felony criminal trials, including one or two child molestation cases. He filed standard criminal trial motions, including discovery motions, and received items in response from the State. He spent approximately four to five hours discussing the case with Turner prior to trial. He formulated a strategy for the trial based upon Turner’s version of events. He reviewed the facts alleged in the similar transaction and discussed them with Turner. Although trial counsel testified that Turner told him the witness had recanted, she apparently had not done so and testified at trial. Turner has failed to demonstrate either the manner in which his counsel’s assistance in preparing for trial was inadequate or the effect, if any, of the alleged inadequacies upon the verdict.

(b) Turner complains that trial counsel failed to request jury instructions on the affirmative defense of accident or the State’s burden of disproving an affirmative defense. It is true that “[t]he trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge. [Cits.]” Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). But to establish an evidentiary foundation for an instruction on an affirmative defense, the defendant must admit to the crime charged. See Kelley v. State, 235 Ga. App. 177, 179 (509 SE2d 110) (1998). Here, Turner specifically denied committing the act with which he was charged, insisting that he only touched the victim on her leg or upper thigh. Trial counsel correctly concluded that this was not “a true legal accident case,” and his decision not to request inapt jury instructions was not ineffective.

(c) Turner complains that trial counsel failed to cross-examine the similar transaction witness in an effective manner, pointing to three alleged inconsistencies between her testimony and an earlier statement to police and trial counsel’s failure to introduce results of a medical examination performed over two years after the alleged incident. We agree with the trial court that trial counsel did attempt to impeach the witness with these inconsistencies, except for one instance in which her inconsistent statement at trial was more favorable to Turner. But such matters as the examination of witnesses “are grounded in matters of trial tactics and strategy and do not provide a basis for finding counsel lacking. Such tactical decisions do not equate with ineffective assistance of counsel.” (Citation and punctuation omitted.) Rutledge v. State, 237 Ga. App. 390, 392 (2) (515 SE2d 1) (1999). Finally, we have held that an inconclusive medical examination performed five or six months after an alleged incident of molestation is not relevant and forms no basis for an ineffectiveness claim. Brown v. State, 226 Ga. App. 238, 239 (486 SE2d 385) (1997). Counsel was not ineffective in his cross-examination of. the similar transaction witness.

(d) Turner next complains of trial counsel’s failure to request a jury charge on false swearing under OCGA § 24-9-85 (b), arguing that inconsistencies in the similar transaction witness’s testimony amounted to false swearing. Here, the inconsistencies were minor and in at least one instance favorable to Turner.

A request to charge must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence. A line exists between cases of impeachment (which can be any diminution of the credibility of a witness) and cases of knowing and wilful false swearing (which, when material, is perjury). The statute, accordingly, directs itself in its two parts to this division, and as to OCGA § 24-9-85 (b), it must be understood that the testimony which must be disregarded in its entirety is only that testimony which is wilfully and knowingly false. Defendant sought to contradict the testimony of the victim. There was no showing that the victim’s testimony was wilfully and knowingly false or that the testimony was such as to render the purpose to falsify manifest. The proposed charge was not proper, and the court did adequately charge on the subject of credibility of witnesses.

(Citations and punctuation omitted.) Grant v. State, 197 Ga. App. 878, 880 (2) (399 SE2d 743) (1990). Trial counsel was not deficient in his conclusion that the inconsistencies did not rise to the level of “willfully and knowingly swear [ing] falsely” so as to support a charge under OCGA § 24-9-85.

(e) Turner next contends that trial counsel was ineffective in his failure to object to the trial court’s decision to clear the courtroom during the victim’s testimony pursuant to OCGA § 17-8-54. That Code section provides in part that, in a criminal trial, “when any person under the age of 16 is testifying concerning any sex offense, the court shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians.” Turner complains that one of his adult daughters, not the mother of the victim, and her husband were improperly among those cleared from the courtroom although they were members of his “immediate family.” We assume without deciding that an adult child not living in the household of the party is a member of his “immediate family,” although the statute does not define that term. We also note that the purpose of this Code section is to protect the interest of the child witness, not the defendant, and failure to follow the statute does not violate the defendant’s rights. Martin v. State, 205 Ga. App. 591 (422 SE2d 876) (1992). But we need not reach that issue, because Turner has failed to demonstrate how the clearing of two of his relatives from the courtroom when “everybody was made to leave the courtroom who was not an officer” prejudiced his cause or resulted in a different outcome at trial.

(f) According to Turner, trial counsel was ineffective in failing to object to the State’s tendering of a photograph of the similar transaction witness at the time of the events to which she testified. But in his brief, he cites no authority and gives no reason that counsel should have objected, other than the general conclusory statement that it “was prejudicial to appellant and the prejudice far outweighed any probative value.” The photograph itself does not appear unusual, and trial counsel testified at the motion for new trial that he felt it “was just a regular photo,” that it would “be admissible upon proper foundation,” and that an objection would be “a waste of time.”

(g) Turner contends his counsel was ineffective in failing to request a jury charge under OCGA § 24-4-6, providing that the evidence, to support a conviction on circumstantial evidence, must exclude every other reasonable hypothesis save guilt. Such a charge was not required for several reasons. First, omitting a charge under this Code section is not harmful or erroneous as a matter of law when some direct evidence is presented and the jury receives a proper instruction on reasonable doubt, as was done here. Nobles v. State, 233 Ga. App. 63, 65 (5) (503 SE2d 321) (1998). Moreover, contrary to Turner’s contention, the evidence presented by the State did exclude the hypothesis asserted by Turner: that he tripped and fell in the dark and inadvertently made contact with the victim’s leg or thigh. The victim testified that she awoke to find Turner kneeling beside her bed, with his hand “up under the cover rubbing” her vaginal area repeatedly. She had to ask him to stop approximately three times before he finally stopped and left. Under these circumstances, the State’s evidence directly contradicted Turner’s contention that he inadvertently made contact with the victim’s leg or thigh as a result of a trip and fall, and a charge on OCGA § 24-4-6 was not appropriate. Trial counsel therefore was not ineffective in failing to request such an instruction.

(h) Turner also complains that counsel was ineffective in failing to request a jury charge on Miranda. But counsel is not ineffective in failing to request a Miranda instruction when the trial court has already ruled against the defendant on that issue in a pretrial Jackson-Denno hearing. Hardy v. State, 240 Ga. App. 115, 118-119 (5) (522 SE2d 711) (1999). Here, the trial court found before trial “that the defendant was advised of his rights and that he understood these rights and freely and voluntarily waived the rights and gave his statement freely and voluntarily. Therefore, the statement will be admissible at trial.” Trial counsel’s decision to forgo a jury instruction on Miranda therefore did not constitute ineffective assistance of counsel.

Decided July 5, 2000

Reconsideration denied July 24, 2000

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, Henderson & Lipscomb, David S. Lipscomb, for appellant.

Lydia J. Sartain, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.

(i) Finally, Turner asserts as ineffective assistance of counsel the failure to reserve exceptions to the trial court’s charge. But as discussed above, the exceptions asserted by Turner are without merit, and the trial court’s charge completely and adequately addressed the issues raised by the evidence. When a trial court’s charge is adequate and complete, failure to reserve exceptions is not prejudicial and does not constitute ineffective assistance of counsel. Love v. State, 214 Ga. App. 351 (447 SE2d 698) (1994).

Because the trial court’s thorough, specific, and detailed finding that Turner was not denied effective assistance of counsel was not clearly erroneous, it must be affirmed. Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

5. Turner’s enumerations of error 1, 2, 6, 8, 9, and 10 are waived, as discussed in Division 4 above, by his failure to object or to reserve exceptions to the trial court’s jury instructions. Thomas v. State, 224 Ga. App. 816, 819 (7) (482 SE2d 472) (1997). His enumeration of error 3, complaining of the trial court’s clearing of the courtroom under OCGA § 17-8-54, is also waived by failure to interpose a contemporaneous objection.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       We nevertheless review each allegation of error, as required by Felix v. State, 271 Ga. 534 (523 SE2d 1) (1999).


author: Phipps, Judge.

text:
    A00A0018.
    PINNELL v. KIGHT et al.
    (537 SE2d 170)
   Phipps, Judge.

Louise Pinnell appeals the Dodge County Superior Court’s denial of her petition for declaratory judgment and writ of mandamus in which she sought to enforce a zoning variance allowing her to place a mobile home on her property. Because it appears that proper notice was given prior to issuance of the variance and that the City of Eastman had procedures in place for obtaining a variance, we reverse the trial court’s holding that the variance was never validly issued. We remand the case for a determination whether changed circumstances justify the decision to rescind the variance after Pinnell waited five years to exercise it.

Pinnell resides in a single-family residential district in the City of Eastman. She wanted to put a mobile home behind her house so that her grandson could live there, but her property was subject to a zoning ordinance prohibiting mobile homes in single-family residential districts. On October 18, 1993, Pinnell applied for a variance from the ordinance. The application was presented to the Eastman-Dodge Planning & Zoning Board and scheduled for public hearing on November 15, 1993. At the public hearing, Pinnell stated that the mobile home was “only for her grandson to live in” and that her closest neighbor had no objection. Although members of the Board stated that a few neighbors had expressed concern about additional mobile homes being moved into the area, no one opposed Pinnell’s request. The Board unanimously approved the variance, “with the understanding that [the mobile home] is only for her grandson to live in,” and submitted its recommendation to the city council.

On November 22, the city council approved Pinnell’s variance request, “[w]ith the understanding that only her grandson (and family) can live in it. Should the family move, the variance would be reverted back to original zoning and mobile home would have to be removed from premises.” Pinnell made no attempt to exercise the variance until five years after receiving it.

Pinnell moved a mobile home onto her property in September 1998. In a letter dated October 27, 1998, James Wright, the City Manager, informed Pinnell that the Eastman City Council had voted on October 12 to rescind her variance. She was instructed to remove the mobile home from her property no later than November 26.

Pinnell was later told to complete an application for a moving permit, which she evidently should have obtained before moving the mobile home onto her property. She completed the application, and it was presented to the city council for approval. On March 8, 1999, the Eastman City Council considered and denied the application.

On April 7, 1999, Pinnell filed a petition for declaratory judgment and writ of mandamus against the city building inspector and the City of Eastman, seeking to enforce the variance granted in 1993 and to require the building inspector to grant Pinnell’s application for a moving permit. After conducting a hearing on Pinnell’s petition, the trial court denied her requested relief. The court determined that the Eastman City Council had not had authority to issue the 1993 variance because the city code lacked adequate procedures for obtaining a variance.

Pinnell appeals and asserts eight repetitive and somewhat confusing enumerations of error. We will consider all errors that are apparent from the notice of appeal, the record, and the enumerations of error.

1. Pinnell claims that the zoning ordinance prohibiting mobile homes in R-1 or single-family residential districts is unconstitutional based on Cannon v. Coweta County . To challenge the constitutionality of a zoning ordinance, the issue must first be raised before the local governing body to provide that body the chance to amend the ordinance to bring it within constitutional limits. It does not appear that Pinnell raised this issue before the Eastman City Council. As a result, the issue is not properly before us.

2. The trial court concluded that the City of Eastman’s failure to adopt an ordinance setting forth the procedure for obtaining a variance resulted in a failure to comply with proper notice procedures. Pinnell challenges the court’s conclusion that the 1993 variance was not properly granted.

The record reveals that a sign was posted on Pinnell’s property for several weeks prior to the hearing on the variance application, that a public hearing was conducted, and that no one opposed the application. In addition, the application itself set out the procedures for obtaining a variance, which included advertisement in the local newspaper, the posting of a sign on the subject property prior to the hearing, and a public hearing. We therefore reverse the trial court’s determination that the variance was invalid based on improper notice or lack of procedures.

The trial court also found that the factors most commonly considered in granting a variance, such as unnecessary hardship, were not present, and that because Pinnell failed to move the mobile home onto her property for five years, she had not detrimentally relied on the variance. But the question is not whether unnecessary hardship or detrimental reliance has been shown. Nor does the mere passage of time invalidate the variance.

Decided July 11, 2000

Reconsideration denied July 25, 2000.

Harrison & Llop, Steven M. Harrison, for appellant.

Harrison & Wall, Milton Harrison, for appellees.

The Eastman City Code defines variance as a “deviation from the terms of the ordinance that are not contrary to the public interest.” The trial court should have reviewed the city council’s decision under this standard to determine if it was supported by any evidence. Because the trial court is bound by the facts presented to the city council, we need not remand the case for application of the any evidence standard. We find the record supports the 1993 decision of the city council.

Pinnell’s failure to exercise the variance for five years does not mean that the right to the variance has been lost, so long as circumstances remain the same. We remand the case to the trial court to determine if changed circumstances, such as a change in the facts and circumstances justifying the variance or a change in neighborhood conditions such that exercising the variance would affect its basic character, justify the city council’s 1998 decision to rescind the variance.

Judgment reversed and case remanded.

Johnson, C. J., and Mikell, J., concur.

       The building inspector is responsible for issuing moving permits after they are approved by the city council.

       OCGA § 5-6-48 (f).

       260 Ga. 56 (389 SE2d 329) (1990) (zoning ordinance restricting manufactured homes to manufactured home parks held unconstitutional).

        Moon v. Cobb County, 256 Ga. 539 (350 SE2d 461) (1986); see also Emory Univ. v. Levitas, 260 Ga. 894, 900 (3) (401 SE2d 691) (1991) (a constitutional challenge in a zoning context cannot be raised for the first time in superior court).

       See OCGA § 36-66-5 (c) (policies and procedures for conducting hearings on zoning decisions may be included in and adopted as part of local zoning ordinance).

        Emory Univ., supra at 896-898 (1).

       Id. at 898.

       Rathkopf & Rathkopf, The Law of Zoning & Planning, § 38.07 [2].

       Id.


text:
    A00A0556.
    KING v. ANGLIN et al.
    (535 SE2d 535)
   Phipps, Judge.

Charles N. King IV appeals the judgment for the defendants in his negligence suit against John Anglin and Baytree Marketing Services, Inc. The issue is whether the evidence supported the court’s charge on assumption of the risk. We find that it did not, and therefore, we reverse.

In March 1992, King visited John and Sheila Anglin at a farm outside London, Kentucky. The morning after King’s arrival, King and John Anglin undertook to clean a horse run-in shed in a barn. The shed was similar to but larger than a normal horse stall. It was open at one end and allowed horses to enter to obtain shelter.

Using a shovel and a pitchfork, King and Anglin loaded manure into a van which belonged to Anglin’s employer, Baytree Marketing Services. When they had a sizeable load, Anglin drove the van away, dumped the load and returned. This occurred several times.

After the two had loaded the van again, Anglin told King that he was going to move the van. King understood Anglin to mean that he was going to drive the van away and dump the load. King stood behind the van, facing it but looking over his shoulder at the work that remained to be done. Anglin started the van. King heard the van start but did not look toward it because he expected it to go forward. Instead the van traveled backward and knocked King to the ground. King suffered a fractured spine.

“ When there is any evidence, however slight,, upon a particular issue, it is not error for the court to charge the law in relation to that issue.’ [Cit.]” ‘Assumption of risk assumes that the actor, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.’ [Cit.]”

Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities. ... In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.

Here, there is no evidence that King knew that the van would be driven backward toward him or that he consented to relieve Anglin of a duty to exercise ordinary care in driving the van. Without such evidence, a charge on assumption of the risk was not proper.

Although Anglin testified that he had had nothing to drink the morning of the incident, he argues that the charge was warranted because King stood behind the van in the tightly confined area of the run-in shed despite knowing that Anglin was under the influence of alcohol. But there is no evidence that King knew Anglin was intoxicated and chose to stand behind the van despite such knowledge. King testified that Anglin had been drinking alcohol before they began cleaning the run-in shed but also testified that he would not have stood behind the van if he had perceived Anglin to be intoxicated.

Decided June 9, 2000

Reconsideration denied July 25, 2000.

Dreger & McClelland, Troy R. McClelland III, Nicholas J. Pieschel, for appellant.

Hall, Booth, Smith & Slover, Jack G. Slover, Jr., Sharon D. King, Robert S. Register, for appellees.

Anglin also argues that this case is analogous to Henderson v. Lowe’s Home Centers. There, a store patron was found to have assumed the risk of tripping over a cable that was used to block travel routes and to secure merchandise displayed outside the store. Henderson is distinguishable, however, because there was evidence that the patron knew the cables were being used in that manner before she attempted to walk between articles of merchandise outside the store.

Because it was not authorized by the evidence, the charge on assumption of the risk was erroneous in this case, and we cannot say that it was harmless. “[T]he evidence did not demand a defendant’s verdict, and the jury may well have returned that verdict because it erroneously believed that [King] was barred from recovery due to his assumption of the risk.” For these reasons, we reverse the judgment of the trial court.

Judgment reversed.

Johnson, C. J., and Mikell, J., concur.

        Evans v. Dept. of Transp., 226 Ga. App. 74, 75 (2) (485 SE2d 243) (1997).

        Jimenez v. Morgan Drive Away, 238 Ga. App. 638, 639 (1) (519 SE2d 722) (1999).

         (Citations, punctuation and emphasis omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996).

       See id.; Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824-825 (4) (409 SE2d 524) (1991).

       234 Ga. App. 573 (507 SE2d 159) (1998).

       Id. at 573-574.

        Vaughn, 266 Ga. at 866.


author: Miller, Judge.

text:
    A00A0695.
    RAINTREE TRUCKING COMPANY, INC. v. FIRST AMERICAN INSURANCE COMPANY.
    (534 SE2d 459)
   Miller, Judge.

The issue on appeal is the effect of a “Form E” certificate of insurance filed with the Texas Railroad Commission. The certificate represented that First American Insurance Company insured Rain-tree Trucking Company for damages caused by Raintree’s trucks; in fact, Raintree had no insurance from First American, but only from Commonwealth General Insurance Company, which has since been placed in receivership. First American refused to pay a Texas judgment entered against Raintree for property damages caused by one of its trucks, and so Raintree filed the present Georgia action against First American to recover for having satisfied the judgment. We hold that representations contained in Form E certificates are not intended to benefit the motor carrier but to benefit those injured by the carrier (i.e., the traveling public), and therefore in a dispute with the insured, an insurance company is not estopped from denying coverage where no insurance contract exists.

As of June 1992, Commonwealth insured Raintree and filed the requisite federal certificate with the then Interstate Commerce Commission to reflect that coverage. Commonwealth experienced' problems regarding its qualifications to file the correlating state certificate (Form E) with the Texas Railroad Commission, and so in March 1993, Commonwealth entered into an indemnity or “fronting agreement” with First American, which agreement allowed Commonwealth to file Form E certificates in the name of First American as of February 1, 1993. Under this arrangement, the Form E certificates showed that First American insured Commonwealth clients, when in fact Commonwealth did. Commonwealth indemnified First American for any liability First American incurred as a result of filing the Form E certificates. Based on this agreement, Commonwealth filed a Form E with the Texas Railroad Commission in April 1993 (amended in May 1993), certifying that as of June 1992 First American was the liability insurer of Raintree.

Meanwhile, in September 1992, a driver operating a Raintree truck caused an accident in Texas, resulting in property damage to a vehicle owned by Davidson Oil. Davidson Oil filed suit against Rain-tree in July 1993. Commonwealth went into receivership, and so Raintree demanded that First American provide coverage and defense for the action. First American eventually declined. In 1996, a Texas jury awarded Davidson Oil $46,646 against Raintree, which judgment Raintree satisfied.

Raintree sued First American in Georgia to obtain reimbursement, arguing that although there was no insurance policy between First American and Raintree, the April/May 1993 Form E certificates filed with the Texas Railroad Commission estopped First American from denying coverage to Raintree and thus obligated First American to reimburse Raintree for payment of the judgment. First American countered that Form E certificates were not for the benefit of the insured but for the sole benefit of those who may have a cause of action for damages for the negligence of the motor common carrier. The trial court agreed and granted summary judgment to First American. Raintree appeals, contending that the court erred in finding no fact issue on the question of whether First American was estopped from denying coverage, or on the question of whether Rain-tree was a third-party beneficiary of the fronting agreement.

1. The first issue is what law we should apply in answering these questions as to the estoppel effect of a Form E certificate filed in Texas. No party has pled or proved the law of any other state, including Texas. “Where no statute of the foreign State is pleaded, it will be presumed that the common law prevails in such State.” This is the common law as codified by the Georgia legislature or interpreted by the courts of Georgia.

2. Raintree contends that First American is estopped to deny the express statement in the Form E certificate that First American issued a liability policy to Raintree. Georgia common law is clear that “estoppel cannot create a contract of insurance coverage where none existed when the loss occurred.” Unless there is evidence that a contract of insurance coverage existed between First American and Raintree on the date of the accident, Raintree’s estoppel argument must fail.

Raintree argues that the Form E certificate filed pursuant to the fronting agreement between First American and Commonwealth created a retroactive contract of insurance coverage. As between Rdintree and First American, this argument fails. The insurance coverage reflected in such legally mandated certificates “is not for the benefit of the insured (motor common carrier) but for the sole benefit of those who may have a cause of action for damages for the negligence of the motor common carrier.” As stated so aptly by the Wisconsin Supreme Court regarding Form E certificates required by similar Wisconsin law, “[t]he policy of the statute is to assure recoverable compensation to members of the public injured by common carriers, not to allow an insured to reap the benefits of liability insurance coverage for which the insured has not paid.” As to members of the motoring public and their property injured by the negligent common carrier, the public filings obligate the named insurance company to make sure they are recompensed to the specified limits; but as to the negligent common carrier, the insurance company’s obligations are determined by the terms of the insurance policy.

The Form E certificate created no contract of insurance between First American and Raintree, and for this reason, estoppel could not create such a contract as between these parties. Moreover, even if estoppel could create an insurance policy where none existed, estoppel would not apply here, because “estoppel requires justifiable reliance on the opposing party’s representations or conduct and a change in position to one’s detriment.” First American’s delay in denying coverage creates no estoppel. The purpose of the Form E certificate is to protect the public, not Raintree; therefore, Raintree could not reasonably rely on the certificate for protection.

In granting summary judgment, the trial court correctly refused to apply estoppel.

3. The trial court also correctly refused to apply the doctrine of third-party beneficiary. Raintree contends that it was a third-party beneficiary to the fronting agreement between First American and Commonwealth, in which First American agreed to file the Form E certificates. Thus, claims Raintree, because the agreement’s purpose was to ensure Commonwealth’s clients were covered, Raintree should be able to sue under that agreement to require First American to cover Raintree.

This argument fails for two independent reasons. First, the concept of the “third-party beneficiary” doctrine is to allow a third party to sue to enforce the agreement. OCGA § 9-2-20 (b) provides that “[t]he beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” Here the fronting agreement provided that in compensation for First American filing certificates of insurance with various state authorities, Commonwealth would indemnify First American for any liability arising out of such filings. In compliance with that agreement, First American allowed the Form E certificate to be filed in its name with the Texas Railroad Commission. Thus, First American complied with its obligations as provided in the fronting agreement. There is no basis for a third party to sue to enforce that agreement, as the agreement has been performed.

Second, even if there were a breach, Raintree would have no standing to sue for that breach. That claim belongs to Commonwealth in the first instance (and now, its receiver). For a third party to have standing to sue, “it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient.” The intent must appear from the face of the contract, as when the promisor engages to render some performance to a third person.

The fronting agreement in this case is itself styled as an indemnity agreement and makes no reference to Raintree or to any insureds of Commonwealth. Commonwealth (Raintree’s insurer) remains responsible for the adjustment and payment of all claims. There is no promise that, if Commonwealth becomes insolvent, First American will assume Commonwealth’s obligations to its insureds. First American makes no promise to render performance to Raintree, but promises only to file Automobile Liability and Cargo certificates of insurance with various state authorities for Commonwealth. Thus, nowhere does it clearly appear that the agreement was intended by the parties to be for Raintree’s benefit. Moreover, to the extent the agreement was intended to benefit Raintree, the benefit was to allow Raintree to operate in Texas by providing minimum liability coverage to members of the motoring public and not to require First American to reimburse it for damages it negligently caused.

Decided April 28, 2000

Motion for reconsideration withdrawn July 25, 2000.

Hall, Bloch, Garland & Meyer, John E. Hall, Jr., John F. Kennedy, for appellant.

Dennis, Corry & Porter, Ronald R. Coleman, Jr., John D. Dixon, for appellee.

Chambers, Mabry, McClelland & Brooks, Wilbur C. Brooks, amicus curiae.

The court did not err in granting First American summary judgment.

Judgment affirmed.

Pope, P. J., and Smith, P. J., concur.

       (Citation and punctuation omitted.) Avnet, Inc. v. Wyle Laboratories, 263 Ga. 615, 621 (3) (437 SE2d 302) (1993).

        Leavell v. Bank of Commerce, 169 Ga. App. 626 (2) (314 SE2d 678) (1984).

       (Citations and punctuation omitted.) Protective Life Ins. Co. v. Robinson, 193 Ga. App. 316, 317 (1) (387 SE2d 603) (1989); see Atkinson v. American Agency Life Ins. Co., 165 Ga. App. 102, 105 (2) (299 SE2d 600) (1983).

       (Citation and punctuation omitted.) Ross v. Stephens, 269 Ga. 266, 267 (496 SE2d 705) (1998); see OCGA § 46-7-12 (a); Guinn Transp. v. Canal Ins. Co., 234 Ga. App. 235, 236 (2) (507 SE2d 144) (1998) (statute requiring common carrier to show financial responsibility is to protect public against injury proximately caused by common carrier); Farley v. Continental Ins. Co., 150 Ga. App. 389, 391 (258 SE2d 8) (1979) (the act requiring such insurance “did not have as its purpose protecting the insured from loss, but did have in mind the protection of the public against carrier-inflicted injuries”); see generally Great American Indem. Co. v. Vickers, 183 Ga. 233, 235 (188 SE 24) (1936) (insurance for protection of public against injuries proximately caused by negligence of motor carrier).

        Rural Mut. Ins. Co. v. Peterson, 134 Wis.2d 165 (395 NW2d 776, 781 (I)) (1986); see White v. Excalibur Ins. Co., 599 F2d 50, 54 (IV) (5th Cir. 1979) (Georgia statute required insurance for protection oí the public, not for protection of common carrier employees); Prickett v. Hawkeye-Security Ins. Co., 282 F2d 294, 298 (10th Cir. 1960) (interpreting Kansas law) (such insurance intended to assure compensation to injured members of the public, not “to fix rights as between the insurance carrier and the operator of an insured motor vehicle whose negligence gave rise to” the injury).

       See Ross, supra, 269 Ga. at 268; see also Southeastern Stages v. Gen. Ins. Co., 151 Ga. App. 487, 490 (2) (A) (260 SE2d 399) (1979) (although injured plaintiff may recover from insurer, insurer not necessarily required to reimburse the common carrier which failed to comply with conditions precedent of the policy).

        Robinson, supra, 193 Ga. App. at 317 (1).

       (Citation, punctuation and footnote omitted.) Bibb County v. Ga. Power Co., 241 Ga. App. 131, 137 (4) (525 SE2d 136) (1999).

       See Robinson, supra, 193 Ga. App. at 318 (1).

       See, e.g., Consolidated Systems v. Allstate Ins. Co., 411 F2d 157, 163 (5th Cir. 1969).

       See, e.g., Miree v. United States, 242 Ga. 126, 135 (3) (249 SE2d 573) (1978).

       (Citations and punctuation omitted.) Scott v. Mamari Corp., 242 Ga. App. 455, 457 (1) (530 SE2d 208) (2000); see OCGA § 9-2-20 (b).

        Mamari Corp., supra, 242 Ga. App. at 457 (1); see Plantation Pipe Line Co. v. 3-D Excavators, 160 Ga. App. 756, 757 (287 SE2d 102) (1981).


text:
    A00A0862.
    TUCKER MATERIALS (GEORGIA), INC. v. DEVITO CONTRACTING & SUPPLY, INC. et al.
    (535 SE2d 858)
   Phipps, Judge.

Tucker Materials (Georgia), Inc. sued on a payment bond issued by Ulico Casualty Company for Devito Contracting & Supply, Inc. Tucker appeals the grant of summary judgment to Ulico and the denial of summary judgment to itself. Because we find that Tucker’s action was time-barred by a limitation provision in the payment bond, we affirm.

In January 1997, Devito entered a contract with Ramesh Patel to build the Lawrenceville Best Western Hotel. Tucker supplied construction materials for the project to Devito on open account.

To insure performance and payment of laborers, materialmen and equipment suppliers, Devito procured a performance bond and a payment bond from Ulico. The payment bond specified that suits or actions on it must be filed within one year “from the date ... on which the last labor or service was performed by anyone under the Construction Contract.”

In September 1997, Devito and Patel became embroiled in a payment dispute, and on September 26, Devito ceased working on the project. After Devito left, Patel hired other contractors to complete the project. A certificate of occupancy was issued for the hotel on December 29, 1997.

Tucker asserts that Devito failed to pay a balance of $15,672.97 for construction materials advanced for the project. On December 18, 1998, Tucker sued Devito and Ulico for the principal and interest on Devito’s account balance. Devito did not timely file an answer, and a default judgment was entered against it. Ulico answered and later moved for summary judgment on the ground that Tucker’s suit was filed outside the one-year period prescribed in the payment bond. Tucker moved for summary judgment on the ground that its suit was timely because it was filed within one year of the date the last work orders were completed. The trial court denied summary judgment to Tucker and granted summary judgment to Ulico, finding that Tucker’s suit was filed too late to meet the limit set by the payment bond.

We agree. Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The construction of a contract is peculiarly well suited for disposition by summary judgment because, in the absence of an ambiguity in terms, it is a question of law for the court. An ambiguity exists only if after the application of the pertinent rules of interpretation, it remains uncertain which of two or more possible meanings the parties intended. “[N]o construction is required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation. [Cit.]”

The cardinal rule of contract construction is to ascertain the intent of the parties. “Words in an insurance contract must be given their usual, ordinary, and common meaning. [Cit.]” And “[i]n contrast to the general rule that policies of insurance are construed strictly against the insurer, the obligation of a surety is construed strictly in the surety’s favor. [Cits.]”

The payment bond specified, “[n]o suit or action shall be commenced by a Claimant under this Bond . . . after the expiration of one year from the date ... on which the last labor or service was performed by anyone under the Construction Contract.”

The payment bond specifically defined the “Construction Contract” as “[t]he agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto.” The signature page identified Patel as the owner and Devito as the contractor. The statement of General Conditions for the Contract specified, “The Contract Documents shall not be construed to create a contractual relationship of any kind . . . between any persons or entities other than the Owner and Contractor.” Thus the plain language of the executed documents leads to only one reasonable interpretation of the limitation provision. Suits or actions on the payment bond had to be brought within one year of the date Devito or anyone affiliated with Devito performed work under the contract between Devito and Patel.

Decided June 20, 2000

Reconsideration denied July 25, 2000

It would be incongruent with the purpose of the payment bond to interpret it to stipulate that the limitation period extended until one year after entities not affiliated with Devito completed work on the project. Devito procured the payment bond to insure payment of the laborers, materialmen and suppliers that it hired. Ulico issued the payment bond to cover only Devito. It was not intended to cover the payment obligations of any other contractor.

Tucker argues that the phrase “anyone under the Construction Contract” should be read broadly to include anyone hired by Patel to complete the work originally contracted to Devito because the contract gave Patel the right to hire others to complete the work in the event Devito defaulted. But the contractual provisions cited by Tucker do not refer specifically to a right of the owner to complete the project in the event of default by the contractor; instead, they articulate a general right of the owner to complete portions of the work himself or to contract portions of it to entities other than Devito.

Even acknowledging the general right of an owner to complete a project in the event of contractor default, we are not led to Tucker’s desired reading of the limitation provision. To the extent that other entities were hired to complete work that was originally contracted to Devito, they were governed by their own agreements or contracts with Patel. They did not become parties to the contract between Devito and Patel.

With respect to the limitation provision, the two material issues of fact are undisputed. Devito withdrew its workers from the project on September 26, 1997, and Tucker did not file its action until more than a year after that date. The court correctly determined as a matter of law that Tucker’s suit against Ulico was time-barred. Hence, the grant of summary judgment to Ulico and the denial of summary judgment to Tucker were proper.

Judgment affirmed.

Johnson, C. J., and Mikell, J., concur.

Rachelson & White, Ira L. Rachelson, John T. Lueder, for appellant.

Porter & Barrett, Brenda K. Orrison, for appellees.

       OCGA § 9-11-56 (c).

        Castellana v. Conyers Toyota, 200 Ga. App. 161, 165 (2) (407 SE2d 64) (1991).

        Crooks v. Crim, 159 Ga. App. 745, 748 (285 SE2d 84) (1981).

         Id.

       OCGA § 13-2-3.

        Bold Corp. v. Nat. Union Fire Ins. Co. &c., 216 Ga. App. 382, 383-384 (1) (454 SE2d 582) (1995).

        R. J. Griffin & Co. v. Continental Ins. Co., 230 Ga. App. 822, 823 (497 SE2d 586) (1998).


author: Johnson, Chief Judge.

text:
    A00A0918.
    WILLIAMSON et al. v. ABELLERA et al.
    (537 SE2d 130)
   Johnson, Chief Judge.

Elaine Williamson and her mother, Lucille Morris, sued attorney Ronald Abellera and his employer, the law firm of Blackburn, Walther & Sloan, LLC, for legal malpractice. The trial court granted Abellera and the law firm summary judgment on the ground that there was an unforeseeable intervening act between their actions and the injury. Because the record contains evidence that the intervening act could reasonably have been foreseen, summary judgment was not appropriate, and therefore, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

The record reveals that on May 12, 1997, Williamson and Morris agreed to sell certain real property. The purchaser financed the property through a mortgage lender. Blackburn, Walther & Sloan represented the lender, and Abellera was the closing attorney.

During the closing on June 6, 1997, Williamson received a check in the amount of $209,010.11. After the parties to the transaction had signed the closing documents, a conversation ensued in the conference room regarding the payment of capital gains taxes. The purchaser, the purchaser’s fiancé, the purchaser’s real estate agent, Williamson, Morris, Williamson and Morris’ real estate agent, and Abellera were in the room, and Abellera stated that a tax-free like-kind exchange of property, pursuant to section 1031 of the Internal Revenue Code, could be done if the parties were willing to resign documents. Everyone agreed to do so, and Abellera handed Williamson a letter and brochure from Section 1031 Services, Inc. The material described the company as an “Exchange Facilitator” and “Licensed Escrow” and named James Gideon as the company’s president. Abellera told Williamson, “you can call him.”

On June 9, 1997, Williamson called Section 1031 Services and spoke with a person who identified himself as James Gideon. Gideon defined a section 1031 exchange, explained that Section 1031 Services could serve as the facilitator of such an exchange, and assured her that her money would be safe in a trust account at Wachovia Bank. Williamson and Morris decided to proceed with an exchange and to use Section 1031 Services as the facilitator.

Abellera soon received a package from Gideon that included an exchange agreement, an escrow agreement, instructions to complete the documents, and instructions to wire funds to a bank account used by Section 1031 Services. Accompanying the package was a cover letter that indicated that Section 1031 Services was an “Exchange Facilitator” and a “Licensed Escrow” and that Gideon possessed a juris doctorate degree. Abellera prepared the exchange forms and new closing documents that reflected that the sellers desired a section 1031 exchange.

On June 16, Williamson went to the law firm, returned the $209,010.11 check, and signed the necessary documents, including the escrow agreement that provided that Williamson and Morris would deposit funds with Section 1031 Services to effect the exchange, which funds Section 1031 Services would hold in escrow in its account at Wachovia. Abellera later mailed documents to Morris and to the purchaser for their signatures and wired the proceeds to Section 1031 Services’ account on July 17, 1997. When Williamson later reported to Abellera that she was repeatedly unable to contact Gideon, Abellera sent a fax to “James Gideon or anyone at Section 1031 Services,” stating ‘Your phone is disconnected and one of our sellers that used your services is extremely worried. Please call me. . . .” Abellera never received a response. Shortly thereafter, Williamson and Morris discovered that Gideon had fled the country, taking their funds, along with the funds from several other victims.

Williamson and Morris sued Abellera and Blackburn, Walther & Sloan, alleging that an attorney-client relationship existed and that they breached the duty of care by, after the original purchase and sale agreement had closed, providing legal advice to effect a section 1031 exchange, recommending Gideon and Section 1031 Services, and rendering legal services that resulted in their loss. Abellera and Blackburn, Walther & Sloan moved for summary judgment on the grounds that no attorney-client relationship existed and that Gideon’s theft of the funds was an intervening criminal act. The trial court granted summary judgment, ruling

there may be a jury issue as to whether or not an attorney-client relationship existed between the parties. However, construing the facts most favorably to the Plaintiffs, and even assuming that there was an attorney-client relationship between the parties, this Court finds that as a matter of law, any negligence of the Defendants was not the proximate cause of the Plaintiffs’ damages, due to an intervening criminal act.

Williamson and Morris appeal.

1. Williamson and Morris contend that the trial court erred in granting summary judgment, arguing that there was evidence of an attorney-client relationship and of a breach of the professional duty of care. Although the motion for summary judgment raised the issue of whether an attorney-client relationship existed, the trial court did not rule on that issue. Consequently, that issue is not properly before this Court, and we cannot consider it.

2. Williamson and Morris contend that the trial court erred in finding that Abellera and Blackburn, Walther & Sloan were not the proximate cause of their damages due to an intervening criminal act.

[Generally, an independent, intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury superseding any negligence of the defendant unless the intervening criminal act is a reasonably foreseeable consequence of the defendant’s negligent act.

Williamson and Morris argue that the absconding of their funds was a foreseeable consequence of Abellera’s advising them to use a facilitator about whom he knew nothing.

In the exchange that was anticipated here, Section 1031 Services was to serve as the facilitator and would hold over $200,000 of Williamson and Morris’ funds. Among the dangers of entrusting property to another is the risk of theft. Thus, it is reasonably foreseeable that such funds might be lost if the attorney fails to exercise ordinary care, skill, and diligence in selecting or recommending a facilitator for that role.

It is uncontroverted that Abellera made no efforts to ascertain or verify the identity, credentials, or trustworthiness of Gideon or Section 1031 Services. Abellera and Blackburn, Walther & Sloan do not dispute that they had no prior history with Gideon or Section 1031 Services, other than Abellera’s receipt of the solicitation letter and brochure that Abellera assumed was mailed to him as part of a mass mailing to members of the real estate section of the Georgia bar.

Decided July 7, 2000

Reconsideration denied July 25, 2000

Crowley, Appel, Starkey & Holbrook, Carl A. Crowley III, James L. Ford, Sr., for appellants.

Abellera and Blackburn, Walther & Sloan assert that there is no evidence in the record that Gideon’s propensity to steal Williamson and Morris’ money was known or reasonably available. But Williamson and Morris’ expert witness stated in his affidavit that Abellera’s failure to investigate Gideon and Section 1031 Services prevented him from discovering that “Gideon” was an alias, that Gideon had only recently arrived in the local area, that Gideon was not a holder of a juris doctorate degree, that neither Gideon nor Section 1031 Services was a “licensed escrow” agent, that neither Gideon nor Section 1031 Services had ever established a trust account at Wachovia Bank, and that Section 1031 Services had been incorporated for less than one year before Abellera received the company’s brochure.

We therefore reject Abellera and Blackburn, Walther & Sloan’s argument that Gideon’s conduct constituted an unforeseeable intervening act that broke the causal connection between their negligence and the injury.

[I]f the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.

Because the record contains evidence that Abellera and Blackburn, Walther & Sloan might have reasonably foreseen that the nature and character of their acts and omissions could result in injury, the trial court erred in ruling, as a matter of law, that those acts and omissions were not proximate causes of the injury due to an intervening act.

Judgment reversed.

Smith, P. J., and Phipps, J., concur.

Troutman Sanders, Daniel S. Reinhardt, William M. Droze, for appellees.

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Devins v. Leafmore Forest Condo. Assn. &c., 200 Ga. App. 158, 159 (3) (407 SE2d 76) (1991).

        Tucker Fed. Sav. &c. Assn. v. Balogh, 228 Ga. App. 482, 484 (491 SE2d 915) (1997); see also Coleman v. Atlanta Obstetrics &c. Group, 194 Ga. App. 508, 510 (1) (390 SE2d 856) (1990).

       (Citation and punctuation omitted.) Id. at 511 (1).

       See Schernekau v. McNabb, 220 Ga. App. 772, 773 (470 SE2d 296) (1996) (proximate cause is properly reserved for the jury and can only be appropriately addressed on summary judgment in plain and indisputable cases).


text:
    A00A1175.
    TREJO v. THE STATE.
    (537 SE2d 755)
   Phipps, Judge.

Raul Trejo was convicted of the statutory rape and child molestation of a 12-year-old girl. In this appeal, Trejo contends that the trial court erred in allowing his confession into evidence, and he challenges the sufficiency of the evidence presented against him. Having considered these purported errors and found they lack merit, we affirm.

On appeal, the evidence must be considered in a light most favorable to the verdict, and Trejo no longer enjoys the presumption of innocence. The evidence, when viewed in that manner, established that Trejo was living with the victim’s family on weekends. One Saturday, Trejo volunteered to stay home to do car repairs while other members of the household went to a laundromat. The victim remained behind to babysit her three-year-old cousin. While the others were away, Trejo sexually assaulted the victim. Nearly immediately afterward, the girl phoned her best friend who advised her to call the police. The victim testified that she did not do so because she was too scared. Several days later, she told her cousin, also age 12, that something had happened and she might be pregnant.

Shortly thereafter, the victim approached a school guidance counselor, Regina Wright, for help. Based on the girl’s recounting of the sexual assault by Trejo, Wright contacted Marjorie Wells, an investigator with the Department of Family & Children Services. Wells then obtained police assistance. Wells and Detective Rick Posey conducted a videotaped interview of the victim, and other members of the victim’s family were questioned as well.

The gist of the victim’s account was that while she was in the living room watching cartoons with the three-year-old, Trejo came inside from working on her mother’s car and forcibly dragged or pulled her into a bedroom. After locking the door, Trejo removed her clothes, pushed her down onto the bed, and despite her repeated pleas to stop, raped her. Afterward, Trejo told her not to tell anyone because he planned to marry her aunt.

After other family members provided the same recounting of their activities and whereabouts for the Saturday in question, an investigator invited Trejo to come to the police station for questioning. According to an investigator, no one had apprised Trejo of the details of the victim’s allegations before Trejo provided a taped statement. Initially, Trejo denied the occurrence of any improper conduct. But later Trejo blurted out, “I didn’t do nothing that day they went to the laundry.” Later, he admitted attempting to have sex with the victim but claimed that she had been the instigator and that he had stopped when she said he was hurting her.

1. Trejo contends that the trial court erred in admitting his confession. Trejo claims that by using threats, deceit, and offers of assistance, the detectives improperly induced him to confess. He maintains that his confession was not made freely and voluntarily because he was told that he was “in serious trouble” and was “going to get convicted of rape.”

In ruling that a defendant’s custodial statement is admissible, a trial court must, upon consideration of the totality of the circumstances, be satisfied by a preponderance of evidence that the statement was freely and voluntarily given. Assuming arguendo that the officers lied to Trejo in an effort to elicit incriminating comments, the use of trickery does not render a confession inadmissible so long as the means used are not calculated to procure an untrue statement. Unless clearly erroneous, a trial court’s factual findings and determinations of credibility relating to the admissibility of a confession will be upheld on appeal.

At the Jackson-Denno hearing, the evidence established that Trejo voluntarily came to the police department to discuss certain allegations being made about him. Before being questioned, Trejo was formally advised of his constitutional rights. A completed waiver of rights form signed and initialed by Trejo was entered in evidence. After Trejo waived his rights, Posey and Scroggins jointly interviewed him. Posey denied making any promises or threats. The interview, which was tape recorded, lasted 20 minutes.

At the conclusion of the Jackson-Denno hearing, the trial court found that Trejo had been advised of his rights and had voluntarily waived them. Although noting that some of the language used by one detective “may not have been the best,” the court determined that Trejo had been neither threatened nor coerced. Because the trial court’s findings are not clearly erroneous, we affirm.

Decided July 25, 2000.

Brian M. House, for appellant.

Herbert E. Franklin, Jr., District Attorney, John L. O’Dell, Assistant District Attorney, for appellee.

2. Trejo claims that the evidence was insufficient to sustain his conviction for statutory rape. We disagree.

To sustain a statutory rape conviction, the requisite quantum of corroboration of a victim’s testimony is slight evidence so long as such evidence tends to prove the incident occurred as alleged. Here, the victim testified in considerable detail about her ordeal and described how she had repeatedly resisted Trejo’s efforts to subdue her. The victim promptly reported to a friend what had happened to her. Other witnesses confirmed material portions of the victim’s account. The jury listened to the taped interview and heard Trejo’s own inculpatory revelations that he had engaged in consensual sex with the 12-year-old girl but had stopped after she said it was hurting her. Taken as a whole, this evidence was sufficient to corroborate the victim’s testimony and to sustain the statutory rape conviction within the meaning of Jackson v. Virginia.

3. Trejo contends that without his confession, which unfairly prejudiced him, the evidence was not sufficient to sustain his conviction for child molestation.

Notwithstanding Trejo’s contention to the contrary, when Miranda warnings are properly given and the person in custody voluntarily gives a statement to police without invoking his right to remain silent or requesting an attorney, he has effectively waived his rights and such evidence may be used against him. Having considered the evidence in the light most favorable to the conviction, we find it was sufficient to show beyond a reasonable doubt that Trejo committed the offense of child molestation.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

        O’Hara v. State, 241 Ga. App. 855, 856 (528 SE2d 296) (2000).

        Farley v. State, 234 Ga. App. 742, 743 (507 SE2d 504) (1998).

        DeYoung v. State, 268 Ga. 780, 789 (8) (493 SE2d 157) (1997).

        Peebles v. State, 260 Ga. 165, 166 (4) (391 SE2d 639) (1990).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        DeYoung, supra, 268 Ga. at 789 (8); Moore v. State, 207 Ga. App. 802, 803 (430 SE2d 115) (1993).

        Davis v. State, 204 Ga. App. 657 (1) (420 SE2d 349) (1992); see Simpson v. State, 234 Ga. App. 729, 730-731 (2) (507 SE2d 860) (1998); OCGA § 16-6-3 (a).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Turner v. State, 223 Ga. App. 448, 450 (2) (477 SE2d 847) (1996).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Moore, supra, 207 Ga. App. 802.

        Turner, supra, 223 Ga. App. at 449 (1).


text:
    A00A0446.
    HOLLOWAY v. STATE FARM FIRE & CASUALTY COMPANY.
    (537 SE2d 121)
   Johnson, Chief Judge.

At the outset, we note that although the facts in this case seem to raise a number of other issues, the sole issue submitted for our consideration on appeal is whether State Farm Fire & Casualty Company is obligated to pay prejudgment interest on a loss claim.

When several of Bob Holloway’s oriental mgs sustained water damage and others were stolen, he submitted claims to his insurer, State Farm. State Farm would not pay for the losses, so Holloway sued. After a trial before a special master, Holloway was awarded damages for his losses but was denied prejudgment interest. Because damages for Holloway’s water damage claim were not liquidated, the trial court did not err in denying an award of prejudgment interest on that claim. However, inasmuch as Holloway’s theft claim was for liquidated damages, and a party is entitled to prejudgment interest where damages are liquidated, the trial court erred in not awarding prejudgment interest on that claim. Thus, we affirm in part, reverse in part, and remand for issuance of an award for prejudgment interest on the theft claim.

On August 21, 1991, Holloway’s basement flooded, and some of his oriental rugs were damaged. On September 16, 1991, Holloway’s basement flooded again, and more of the rugs were damaged. After both incidents, Holloway had the damaged rugs professionally dried and treated to prevent color bleeding, rot, and mildew. And in both cases, technicians documented the extent of the damage to each rug. The rugs were returned to Holloway in early October 1991. In 1992, State Farm sent an appraiser to inspect the rugs for damage; he concluded that 13 of the 20 rugs were not damaged. By 1995, Holloway noticed that the rugs had mildewed and rotted. He then discarded 19 of the 20 rugs that are the subject of his water damage claim.

On the day of the first basement flooding, Holloway requested that State Farm insure some duck prints and other items under a personal articles floater (PAF) policy, and State Farm did so. The PAF policy insures certain personal property at the values stated in the policy declarations, rather than the replacement cost value or actual cash value. The next day, Holloway advised State Farm that he wanted to insure some rugs under a PAF policy, and on September 10, after he submitted appraisals for the rugs, State Farm prepared an endorsement to Holloway’s August 21,1991 PAF policy, insuring a total of 25 rugs in the amount of $257,125. After backdating the endorsement application to August 21, 1991, and marking it “binding,” State Farm’s agent mailed the endorsement to State Farm’s underwriting department. Upon that department’s review of Holloway’s records, State Farm mailed notice to Holloway on October 3 of cancellation of the PAF policy effective October 16, 1991.

On October 11, 1991, Holloway submitted a proof of loss statement, seeking $256,750 for the damaged rugs. On December 4, he submitted another proof of loss statement for $21,000, claiming that five additional rugs insured under the PAF policy were stolen from his home.

When State Farm would not pay for his losses, Holloway sued. The trial court referred the case to a special master to enter findings of fact and conclusions of law. The special master found that Holloway was entitled to recover under the PAF policy for the five stolen rugs and the eighteen water-damaged rugs, awarding him $21,250 and $227,125, respectively. The special master arrived at these totals by adding the coverage amounts predetermined by the policy. After determining that Holloway’s claims were for unliquidated damages and that he had discretion to award prejudgment interest, the special master declined to make such an award. The trial court adopted the special master’s report and entered the special master’s judgment as the judgment of the court. Holloway appeals.

1. Holloway contends that his claims qualified as liquidated damages under OCGA § 7-4-15 and that he was, therefore, entitled to prejudgment interest. He claims that the trial court erroneously adopted the special master’s determination that his claim was for unliquidated damages.

(a) As an initial matter, State Farm points out that Holloway did not demand prejudgment interest under OCGA § 7-4-15 in his complaint or amended complaint. Although a general prayer for relief was included in Holloway’s complaint, the record indicates that Holloway made no demand for prejudgment interest until his proposed findings of fact and law and, at that time, he made demand for prejudgment interest only under OCGA § 13-6-13, governing prejudgment interest for unliquidated damages.

But even where there is no express prayer, a trial court is authorized to grant appropriate relief, provided the propriety of the relief has been litigated and the opposing party has had an opportunity to assert defenses relevant to the relief. When issues are tried without objection, they are properly before the court whether or not they were included in the pleadings. The record reveals that the parties agreed to submit the issue of prejudgment interest to the special master. Where a party agrees to the manner in which his rights shall be submitted for determination, he will not be permitted to complain on appeal. Thus, in this case, Holloway’s failure to include a prayer for prejudgment interest does not preclude its recovery.

(b) “A claim is unliquidated when there is a bona fide contention as to the amount owing. A liquidated claim is an amount certain and fixed, either by the act and agreement of the parties or by operation of law; a sum which cannot be changed by the proof.” The word “liquidated” as used in OCGA § 7-4-15 means “settled, acknowledged, or agreed.”

State Farm concedes that, effective August 21, 1991, it bound coverage for rugs under a PAF policy. Holloway points to a portion of the policy’s loss payment section, “We will pay you ... 60 days after we receive your proof of loss . . .” and argues that because the policy specifies both the amount that is due and the date on which it is due, his claims were for liquidated damages.

But the loss payment section provides:

We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable 60 days after we receive your proof of loss and: a. we reach agreement with you; b. there is an entry of final judgment; or c. there is a filing of an appraisal award with us.

Further, the policy expressly provides that “[State Farm has] the option of repairing or replacing the lost or damaged property.”

Holloway has not shown that there was a filing of an appraisal award with State Farm or that he reached an agreement with State Farm regarding his losses. Rather, State Farm disputed that the rugs were stolen and that the remaining rugs were damaged to the extent claimed.

Regarding the water damage claim, State Farm retained a rug expert who, after inspecting the rugs, disagreed with the extent of water damage Holloway claimed occurred. “In a suit on a property damage insurance policy . . . , where liability is not disputed but where the amount of damage is disputed, the amount is unliquidated.” Here, because there was a bona fide dispute between the parties as to the extent of water damage that was not resolved until trial, it was only after entry of the judgment that the claim became liquidated.

Regarding the theft claim, State Farm disputed liability, presenting evidence that the rugs had not been stolen. But the special master found otherwise. “[W]hen the only issue contested by the insurer is the existence of coverage and not the amount of the claim then the claim is properly considered liquidated.” One of State Farm’s agents testified that personal property insured under State Farm’s PAF policies is insured on an “agreed value” basis, in that the amount of insurance shown for each scheduled item is the agreed value for that item in the event of a total loss. Thus, because Holloway’s theft claim was for total losses and the PAF policy predetermined such coverage amounts, his theft claim was for liquidated damages. The fact that State Farm disputed liability at trial did not convert the claim into a claim for an uncertain and, therefore, unliquidated amount.

2. Holloway contends that the trial court erred in adopting the special master’s determination that he had discretion as to whether to award prejudgment interest on items covered in the PAF policy and in denying him interest. An award of prejudgment interest for liquidated damages is mandatory rather than discretionary and is awarded as a matter of law.

Because the trial court correctly determined that Holloway’s water damage claim was for unliquidated damages, it therefore had discretion in awarding prejudgment interest. But because Holloway’s theft claim was for liquidated damages, the trial court was required to award prejudgment interest on that claim. We reverse and remand this case for the trial court to enter a judgment for prejudgment interest on the theft portion of Holloway’s award.

Decided July 7, 2000

Reconsideration denied July 26, 2000

Glenville Haldi, for appellant.

Swift, Currie, McGhee & Hiers, Mark T. Dietrichs, Paul J. Coburn, Erik S. Rodriguez, for appellee.

3. “Within 20 days after [a special master’s] report is filed and notice is given to the parties, either party may file exceptions to be classified separately as ‘exception of law’ and ‘exceptions of fact.’ ” In this case, the trial court entered a final judgment on the same day that the special master filed his findings of fact and conclusions of law. Holloway contends that the trial court erred in doing so. But because of our rulings in Divisions 1 and 2 and because Holloway concedes that he had no other exception, reversal on this basis is not required.

Judgment affirmed in part, reversed in part and remanded.

Phipps and Mikell, JJ, concur.

        Church v. Darch, 268 Ga. 237, 238 (2) (486 SE2d 344) (1997); OCGA § 9-11-54 (c) (1).

       See id.; Bowers v. Howell, 203 Ga. App. 636, 637-638 (1) (417 SE2d 392) (1992).

        T & R Custom v. Liberty Mut. Ins. Co., 227 Ga. App. 144, 147 (4) (488 SE2d 705) (1997); Le Twigge, Ltd. v. Wammock & Co., 187 Ga. App. 446, 448 (370 SE2d 631) (1988).

       (Citations and punctuation omitted.) Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 219 (6) (b) (489 SE2d 329) (1997).

       (Citations omitted.) Kent v. Brown, 238 Ga. App. 607, 616 (518 SE2d 737) (1999).

        Braner v. Southern Trust Ins. Co., 255 Ga. 117, 119 (1) (335 SE2d 547) (1985); compare Nat. Fire Ins. Co. v. Thompson, 51 Ga. App. 625, 627 (3) (181 SE 101) (1935) (a claim for the face amount of a fire insurance policy on a dwelling is deemed to be fixed, certain, and determined under the contract, so as to authorize interest where the loss was admittedly total, and the insurance company neither prior to nor in the suit on the policy in any way questioned the amount but based its sole defense on an alleged forfeiture of the policy by breaches of its conditions); Intl. Indem. Co. v. Terrell, 178 Ga. App. 570, 571 (2) (344 SE2d 239) (1986) (where insurance company tendered amount demanded by insured, it could not then argue that the amount of the claim was in dispute and that the claim was therefore unliquidated); Valiant Ins. Co. v. Birdsong, 665 FSupp. 918 (M.D. Ga. 1987) (prejudgment interest was appropriate where the amount was at all times certain and fixed and there had been no dispute over whether the sums paid to insured were excessive or in any other way inappropriate).

       See Firemen’s Ins. Co. v. Oliver, 182 Ga. 212, 213 (184 SE 858) (1936).

        Enfinger v. Intl. Indem. Co., 257 Ga. 385 (359 SE2d 884) (1987).

       See generally Recordex Corp. v. Southeastern Metal Products, 147 Ga. App. 79 (1) (248 SE2d 159) (1978).

        Rivergate Corp. v. Atlanta Indoor Advertising Concepts, 210 Ga. App. 501, 503 (3) (436 SE2d 697) (1993).

       See Division 1, supra.

       See OCGA § 13-6-13.

       See Division 1, supra.

       OCGA § 9-7-14 (a).


text:
    A00A0658.
    MEDDERS v. SMITH et al.
    (537 SE2d 153)
   Phipps, Judge.

Glen Medders suffered an injury as he worked for a construction subcontractor. His claim for workers’ compensation benefits named an immediate employer and several statutory employers. The administrative law judge entered an award against only the immediate employer, and Medders appealed to the appellate division of the State Board of Workers’ Compensation.

The appellate division affirmed the ALJ’s award against the immediate employer and found that one of the statutory employers was equitably estopped from denying coverage. That decision was appealed by Medders and that employer to the superior court.

The superior court reversed the appellate division’s finding as to the statutory employer, and we granted Medders’s application for discretionary appeal.

Medders worked for James Smith, a subcontractor hired by Paul Conaway to frame four speculative houses in a subdivision. Conaway had entered into an oral agreement with the subdivision developer, Wendall Kessler, who also owned the four lots. The agreement provided for Conaway to oversee the construction of the houses in exchange for a weekly salary and a possible share in the profits when each house sold. Conaway also oversaw the building of speculative houses for Conaway, Inc., a company owned by his wife.

On May 7, 1997, Medders was injured on the job. He brought a claim for workers’ compensation benefits against James Smith d/b/a James Smith Construction, Conaway, Conaway, Inc., and Kessler, individually and d/b/a Cabinets Plus. Medders claimed that Smith Construction was his immediate employer and that all other defendants were his statutory employers. He also claimed that Conaway and Kessler were liable based on the doctrine of equitable estoppel and that Kessler was further liable under partnership and joint venture law. Smith did not have workers’ compensation insurance coverage.

The ALJ entered an award only against James Smith d/b/a James Smith Construction Company, finding that Conaway, Inc. was not involved in building the house where Medders was injured. Because Conaway and Kessler had fewer than three full-time employees, the ALJ found that they were not subject to the Workers’ Compensation Act and therefore could not be deemed statutory employers. The ALJ also found that Medders had failed to prove that Conaway and Kessler are equitably estopped from denying coverage. The appellate division affirmed the ALJ’s award except that it reversed the decision as to Conaway, determining that Conaway was equitably estopped from denying coverage. Medders and Conaway appealed to the superior court, which affirmed all aspects of the appellate division’s award, except for the award on the issue of equitable estoppel.

1. Medders contends that the superior court erroneously reversed the appellate division’s finding that Conaway is equitably estopped from denying coverage.

A party asserting estoppel must establish

(1) conduct amounting to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; [and] (3) knowledge, actual or constructive, of the real facts; and, as to the party claiming the estoppel: (1) lack of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such a character as to change his position prejudicially.

It is undisputed that after the completion of the first of the four houses, Conaway and Smith orally agreed that Smith would not charge for extras, such as cathedral ceilings, fireplaces, and chimneys, and in exchange Conaway would provide workers’ compensation coverage for Smith’s employees. Thereafter Smith received no compensation for the extras. Medders testified that he overheard this oral agreement between Conaway and Smith. Medders also testified that Conaway and Smith told him that he was covered under workers’ compensation insurance. He claims that because of their representations, he continued to frame houses for Smith. But no workers’ compensation insurance was purchased.

The ALJ denied coverage to Medders as to Conaway, finding that he had proved all of the elements of equitable estoppel except that he took some action which changed his position prejudicially. The ALJ found that after Medders overheard the conversation, he did not change his position, but rather, he continued to perform the same job he had performed before he heard the conversation. The appellate division reversed the ALJ’s decision, finding that Medders’s decision to continue working for Smith prejudiced his position. The superior court reversed the appellate division and reinstated the ALJ’s decision as to Conaway’s liability, concluding that although there was evidence that Medders overheard Conaway agreeing to provide workers’ compensation coverage, there was no evidence in the record to support a finding that Medders changed his position prejudicially in reliance on that statement.

On appeal of an award or denial of workers’ compensation benefits, the superior court may not substitute its findings for the appellate division’s findings of fact, and when sitting as an appellate body, it is bound by the “any evidence” standard of review and is not authorized to substitute its judgment as to the weight of the evidence or the credibility of the witnesses.

Conaway argues that because Medders continued to frame houses after hearing Conaway’s statement to Smith, he took no action that prejudiced his position. But contrary to the superior court’s ruling, the appellate division could infer from Medders’s testimony that he made an affirmative decision to continue to work for Smith in reliance on Conaway’s statements regarding coverage. The appellate division is a factfinder, and as such, it is authorized to draw a different inference from that of the ALJ. But neither the superior court nor this Court has any authority to substitute itself as a factfinding body in lieu of the appellate division. Further, the superior court is not permitted to substitute its own inferences and deductions for those of the appellate division merely because it deems its own conclusions more reasonable. Whether Medders took some action to change his position prejudicially was a question of fact for the ALJ, and then for the appellate division, which decided the question adversely to Conaway. Even if the appellate division’s reweighing of the evidence resulted in a conclusion different from that of the ALJ, the superior court must affirm the appellate division if there is any evidence to support its conclusion. Because the record contains some evidence that supports the appellate division’s finding that Medders’s decision to continue working for Smith prejudiced his position, the superior court erred in reversing the appellate division on this issue.

2. Medders contends that Kessler also is liable based on equitable estoppel. Kessler testified that he never discussed the matter with Smith. He testified that when Conaway communicated the contemplated agreement with Smith to him, he left it up to Conaway to decide whether to accept the construction upgrades and purchase workers’ compensation insurance because “[the costs] would reduce [Conaway’s] profits.” The appellate division decided that Kessler had played no role in the workers’ compensation matter. Because there is some evidence to support the appellate division’s decision, the superior court did not err in affirming it.

3. Medders contends that the superior court erred in finding that Conaway, Inc. was not liable to him. Medders argues that “Conaway and Conaway, Inc. are one and the same.”

The appellate division found that Conaway, Inc. was not the contractor of the house where Medders was injured and that Conaway, Inc. otherwise had no interest in any of the four houses subcontracted to Smith for framing. Carolyn Conaway, as sole owner of Conaway, Inc., Kessler, and the bank’s agent who closed the construction loan all testified that Conaway, Inc. played no part in the financing or the constructing of the four houses. Because there is evidence in the record that demonstrates that there was no connection between Conaway, Inc. and Conaway’s four-house project, the superior court did not err in affirming the appellate division’s ruling.

4. Medders maintains that Conaway and Kessler’s business arrangement was either a partnership or a joint venture and, therefore, Conaway’s agreement with Smith also bound Kessler. “[O]ne partner in a joint venture may be liable for the workers’ compensation benefits of the other joint venturer’s employees.” Here, neither the ALJ nor the appellate division reached the merits of Medders’s argument that Conaway and Kessler were partners or joint venturers. Because the issues of whether a partnership or joint venture existed and whether Conaway’s agreement with Smith fiirther bound Kessler are best left to the factfinder, we remand the case to the superior court with the instruction that the case further be remanded to the appellate division and then to the ALJ for further findings of fact and conclusions of law relative to whether Kessler is liable based on partnership or joint venture law.

Decided July 11, 2000

Reconsideration denied July 26, 2000

Zipperer & Lorberbaum, Ralph R. Lorberbaum, for appellant.

Barrow & Sims, Charles W Barrow, Callaway, Neville & Brinson, William J. Neville, Jr., Hunter, Lewis & Brannon, Charles W. Brannon, Jr., for appellees.

Judgment affirmed in part and reversed in part and case remanded with direction.

Johnson, C. J., and Mikell, J., concur.

       Pursuant to an agreement of the parties, the ALJ dismissed Cabinets Plus.

       See OCGA § 34-9-2 (a).

       (Citation and punctuation omitted.) Horne v. Exum, 204 Ga. App. 337, 338 (419 SE2d 147) (1992).

        Owens-Brockway Packaging v. Hathorn, 227 Ga. App. 110, 111 (488 SE2d 495) (1997).

       Id.; Southwire Co. v. Molden, 223 Ga. App. 389, 390 (477 SE2d 646) (1996).

        Coleman v. Argonaut Ins. Co., 135 Ga. App. 182 (217 SE2d 439) (1975).

        Hathorn, supra, 227 Ga. App. at 111.

         Seckinger & Co. v. Foreman, 252 Ga. 540, 541 (2) (314 SE2d 891) (1984).

       See Sadeghi v. Suad, Inc., 219 Ga. App. 92, 93 (464 SE2d 234) (1995).