text:
    A02A0410.
    P. F. MOON & COMPANY, INC. v. PAYNE et al.
    (568 SE2d 113)
   Pope, Presiding Judge.

David Payne suffered a work-related injury on March 21, 1995, while employed by Dundee Mills, Inc., which paid him workers’ compensation benefits. On March 21, 1997, Dundee Mills filed a claim under OCGA § 34-9-11.1 against P. F. Moon & Company, Inc. and Lockwood Greene Engineers, Inc. to recover the disability benefits that it paid to Payne. David and Elizabeth Payne moved to intervene on August 21, 1997, and filed a proposed complaint of intervenor plaintiffs along with their motion. Dundee Mills subsequently dismissed its claims against P. F. Moon and Lockwood Greene on September 12, 1997. The trial court then denied the Paynes’ motion to intervene, but we reversed this order in Payne v. Dundee Mills, 235 Ga. App. 514 (510 SE2d 67) (1998) {“Payne F), and remanded the case.

The Paynes filed a new complaint on October 5, 1999. This complaint tracked the claims raised in the Paynes’ proposed complaint from 1997. Both complaints included a claim for David Payne’s pain and suffering, which had not been asserted by Dundee Mills in the original complaint, as well as a claim by Elizabeth Payne for loss of consortium.

P. F. Moon .filed a motion to dismiss or in the alternative motion for partial summary judgment, which the trial court denied. After the trial court certified the matter for immediate review, P. F Moon filed an application for interlocutory appeal, which this Court granted. For reasons set forth below, we affirm.

P. F. Moon argues that (1) pain and suffering are an element of damages not included in Dundee Mill’s original complaint, and that David Payne is impermissibly attempting to inject a new issue into the existing litigation, and (2) Elizabeth Payne’s claim for loss of consortium was filed outside the four-year statute of limitation. P. F. Moon relies on the general rule that “an intervenor takes the case as he finds it and cannot inject new issues.” Undercofler v. Seaboard Air Line R. Co., 222 Ga. 822, 829 (7) (152 SE2d 878) (1966), and the following dicta from AC Corp. v. Myree, 221 Ga. App. 513, 516 (2) (471 SE2d 922) (1996):

Should an intervenor seek to litigate issues different from those already pending between the parties, to claim additional damages, or to raise additional defenses, . . . the intervenor’s ability to raise these matters would be controlled by OCGA §§ 9-11-21 and 9-11-15 (c). Such a case would involve not only “intervention” but also independent claims.

When this Court reversed the trial court in Payne I and ordered that the Paynes be allowed to intervene, the opinion relied upon the terms of OCGA § 34-9-11.1, which conferred an unconditional right of intervention. The opinion also relied upon the fact that Dundee Mills filed its complaint on the last day before the statute of limitation on David Payne’s personal injury claims expired and then later dismissed its complaint, which adversely affected Payne’s ability to have asserted timely independent claims:

It is also undisputed that the Paynes could not have moved to intervene before expiration of the statute of limitation on Mr. Payne’s tort claim because Dundee Mills did not inform Mr. Payne about its subrogation action until after it filed the action on the last day before expiration of the applicable statute of limitation. Further, there is no indication that granting the Paynes’ motion to intervene would prejudice Dundee Mills in any way and there is no proof that Dundee Mills took any steps to protect the Paynes’ interests before dismissing its suit against the contractors. Under these circumstances, and since it appears that denial of the Paynes’ motion to intervene would bar Mr. Payne’s independent tort claim against the contractors, we find that the trial court abused its discretion in denying the Paynes’ motion to intervene.

Payne I, 235 Ga. App. at 515 (1). In reaching our result here, we also rely upon the unique operation of OCGA § 34-9-11.1 and practical application of the procedural rules under the peculiar facts of this case.

1. OCGA § 34-9-11.1 (a) provides that even though an employee may recover workers’ compensation benefits, he may still have a right of action against persons, other than the employer, arising out of the circumstances under which the employee was injured. OCGA § 34-9-11.1 (b) gives employers a subrogation lien against an employee’s recovery from such third parties, and OCGA § 34-9-11.1 (c) provides that if an employee has not asserted such claims against the third party within a year, the employer may file suit to assert the employee’s claims:

If such action is not brought by the employee within one year after the date of injury, then the employer or such employer’s insurer may but is not required to assert the employee’s cause of action in tort, either in its own name or in the name of the employee. The employer or its insurer shall immediately notify the employee of its assertion of such cause of action, and the employee shall have a right to intervene. . . . [I]f the employer or insurer recovers more than the extent of its lien, then the amount in excess thereof shall be paid over to the employee.

(Emphasis supplied.)

Even though the employer is allowed to sue the third party in its own name, the statute makes clear that it is the employee’s cause of action that is being asserted. And the statute contemplates that the employer may receive a judgment for more than his subrogation lien, although any excess must be paid to the employee. It follows then that the employer could assert a claim for the employee’s pain and suffering. See AC Corp., 221 Ga. App. at 514 (where the employer’s claim included a request to recover the employee’s pain and suffering).

Accordingly, if Dundee Mills had remained in the litigation, it could have amended its complaint to add a timely claim for David Payne’s pain and suffering. An amendment to a complaint relates back to the original filing date if it asks for additional damages which arise out of the same transaction or occurrence that is the subject of the initial complaint. See Pardue Constr. Co. v. City of Toccoa, 147 Ga. App. 132,134 (5) (248 SE2d 199) (1978); OCGA § 9-11-15 (c). But unfortunately for the Paynes, by the time their right to intervene was confirmed, Dundee Mills had dismissed its own claim with prejudice and was not in a position to file an amendment asserting additional claims.

The issue remains, therefore, as to whether the Paynes, as intervenors, can stand in Dundee Mills’ shoes for purposes of amending the relief sought. Intervention is intended to allow the intervenor to protect its share of the recovery from another’s litigation. See Hulsey v. Hulsey, 212 Ga. App. 269, 270 (1) (441 SE2d 477) (1994). But due to the unique situation presented under OCGA § 34-9-11.1, an employee such as David Payne may be intervening not only to secure his interest in any recovery, but also to protect the proper prosecution of his own cause of action. And here, David Payne seeks only to add an additional damage claim arising out of the same occurrence upon which Dundee Mills’ complaint was based.

Under these circumstances, we find that the claim for pain and suffering is a claim “arising out of the conduct, transaction, or occurrence” set forth in the original complaint pursuant to OCGA § 9-11-15 (c), see, e.g., Day v. Norman, 207 Ga. App. 37 (427 SE2d 31) (1993), and may be treated as an amendment by a party plaintiff relating back to the date of the original complaint for statute of limitation purposes.

Decided June 27, 2002.

Carlock, Copeland, Semler & Stair, David F. Root, David P. Gessert, for appellant.

We believe that this holding furthers the intent of OCGA § 34-9-11.1. An employer is often in a better position to identify those third parties who may bear some responsibility for the employee’s injuries. For example, an employer has direct knowledge of the vendors and manufacturers from whom it buys its equipment and the contractors who install such equipment, while an employee may not. And where, as here, the employer waits until the last day of the limitation period to file its claim and thus to identify a potential defendant, the employee may be left without any opportunity to assert his own independent claims. The statute allows the employee to intervene to protect his interests, and our holding here ensures that he is able to pursue all relief arising from his own cause of action. Further, as we noted in Payne I, P. F. Moon was on notice within the time allowed by the statute of limitation that it would be required to defend a suit based upon the injuries occurring to David Payne; therefore, no prejudice results from our holding in this case.

Moreover, we note that the motion to intervene in this case attached the 1997 complaint listing David Payne’s claim for pain and suffering and Elizabeth Payne’s claim for loss of consortium. The motion was, in effect, not only asking for permission to become party plaintiffs, but also to pursue the listed claims. In Payne I, we held that the trial court had improperly denied the motion to intervene. Accordingly, under the law of the case, the Paynes are entitled to pursue the claims identified in 1997. See OCGA § 9-11-60 (h); Bryan v. Brown Childs Realty Co., 252 Ga. App. 502, 504 (1) (a) (556 SE2d 554) (2001).

2. The trial court also correctly held that Elizabeth Payne’s claim for loss of consortium was not time-barred. The statute of limitation on her claim is four years. OCGA § 9-3-33; see Epps v. Hin, 255 Ga. App. 370, 371 (565 SE2d 577) (2002) (“The running of the limitation period on a personal injury claim does not bar a derivative claim for loss of consortium.”). Therefore, if it had been properly allowed, the 1997 complaint would have been filed well before the expiration of the applicable four-year period. It follows that Elizabeth Payne asserted her claim in a timely manner.

Judgment affirmed.

Ruffin and Barnes, JJ, concur.

Hart & McIntyre, John C. McIntyre, Jr., Silver & Archibald, Arthur S. Archibald, for appellees.

       “Physical pain and suffering in consequence of a tort occasioning an injury to the plaintiff [are] a proper element of damages.” (Citation omitted.) Ga. Power Co. v. Braswell, 48 Ga. App. 654, 660 (4) (173 SE 763) (1934).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A02A0493.
    LIVELY et al. v. SOUTHERN HERITAGE INSURANCE COMPANY.
    (568 SE2d 98)
   Pope, Presiding Judge.

James and Jeanette Lively appeal from the trial court’s grant of summary judgment to Southern Heritage Insurance Company on their claim that Southern Heritage failed to pay benefits arising from the loss of their home due to fire.

James Lively purchased insurance from Southern Heritage for his and his wife’s home and automobiles. The application form for the homeowner’s insurance dated March 21, 1994, includes the question, “Has any insurance been declined, canceled or non-renewed (last 3 years)?” Lively’s completed application reflects a negative answer in response to that question. The application also indicates that the Livelys had no prior insurance policy on their home and no prior loss history. But, in fact, the Livelys had been refused a renewal of their homeowner’s insurance by Allstate Insurance Company due to a fire that resulted in the total destruction of their home in January 1993. And the Livelys had an earlier total fire loss on their home in 1980.

Although the homeowner’s insurance application appears to contain Lively’s signature, Lively presented expert affidavit testimony indicating that the signature on the accompanying application for automobile insurance was forged. And Lively stated in his own affidavit that he did not recall signing the two applications, nor did he recall being asked about Allstate’s refusal to renew his insurance. He did acknowledge, however, that he was aware that the homeowner’s application incorrectly indicated that he had no prior insurance on the house, but he said that the pertinent response had been filled in by the insurance agent, who had sold him a separate builder’s risk policy, and that he assumed she “knew what she was doing.”

After the fire at issue, which occurred on October 14, 1997, Southern Heritage began processing the Livelys’ claim, but ultimately denied coverage after the Livelys filed their complaint in this case. Southern Heritage subsequently moved for summary judgment on the Livelys’ claim, asserting that the homeowner’s policy was void due to material misrepresentations in the application. In support of this motion, Southern Heritage presented the affidavit of the underwriter for the Livelys’ insurance application stating that she would not have approved the policy if she had known of the prior fire losses and the nonrenewal. The trial court granted Southern Heritage’s motion.

1. The Livelys first assert that the trial court erred in granting the motion because they submitted' an expert affidavit stating that under certain circumstances, an insurance company may issue a policy even where an insured has prior losses and nonrenewals. They assert that this affidavit directly contradicts that of Southern Heritage’s underwriter, thus raising an issue of fact. We agree.

To void the Livelys’ insurance policy, Southern Heritage must demonstrate both that the Livelys made false representations and that the misrepresentations were material from the view of a prudent insurer:

In order to void a policy of insurance for a misrepresentation in the application, the insurer must show that the representation was false and that it was material in that it changed the nature, extent, or character of the risk. A material misrepresentation is one that would influence a prudent insurer in determining whether or not to accept the risk, or in fixing a different amount of premium in the event of such acceptance.

(Citations and punctuation omitted; emphasis supplied.) Jackson Nat. Life Ins. Co. v. Snead, 231 Ga. App. 406, 410 (3) (b) (499 SE2d 173) (1998). See also OCGA § 33-24-7. This standard has been interpreted to be an objective one. See Woods v. Independent Fire Ins. Co., 749 F2d 1493, 1497 (11th Cir. 1985). Thus the issue of materiality is ordinarily a question for the jury, unless the evidence excludes every reasonable inference except that it was material, in which case it becomes a question of law for the court. Snead, 231 Ga. App. at 410 (3) (b).

Here, there is no question that the application contained false representations, but the testimony is contradicted as to whether a prudent insurer would have issued the policy even with notice of the Livelys’ prior losses and insurance history. The affidavit submitted by Southern Heritage’s underwriter does not set forth any bright-line company policies stating that coverage is denied if a prior nonrenewal or prior losses exist. Rather, it contains only the underwriter’s blanket statements that she would not have issued the policy if she had known of the Livelys’ prior history. The Livelys’ expert’s affidavit counters that prior nonrenewals and losses do not automatically preclude coverage, but rather notes that insurance companies will consider a number of factors in determining whether to extend coverage.

These conflicting affidavits present a jury question on the issue of whether the false statements in the Livelys’ application would be material to a prudent insurer. See Snead, 231 Ga. App. at 410 (3) (b); United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 236-237 (248 SE2d 635) (1978). Compare Graphic Arts Mut. Ins. Co. v. Pritchett, 220 Ga. App. 430, 432-433 (2) (469 SE2d 199) (1995); Taylor v. Ga. Intl. Life Ins. Co., 207 Ga. App. 341, 343 (427 SE2d 833) (1993); Davis v. John Hancock Mut. Life Ins. Co., 202 Ga. App. 3, 5 (1) (413 SE2d 224) (1991) (no jury issue where defendant underwriter’s testimony as to materiality was uncontradicted).

2. The Livelys further assert that Southern Heritage is estopped from taking the position that the policy is void due to misrepresentations in the application because the company has never refunded any of the premiums paid by the Livelys.

In an early decision, our Supreme Court determined that it is not a prerequisite for an insurance company to return an insured’s premiums in order to assert the defense that an insurance contract is void due to fraud in the inducement. Columbian Nat. Life Ins. Co. v. Mulkey, 146 Ga. 267, hn. 2 (91 SE 106) (1916). But the Court qualified this holding by noting that an insurance company could be estopped from asserting the defense if it did not act promptly, upon learning of the fraud, to rescind the contract but instead treated it as valid and enforceable:

Of course we do not mean to hold that an insurance company might not be estopped from setting up fraud practiced upon it in the procurement of the policy, if it should appear that after the discovery of such fraud the company did not promptly move to have the contract of insurance rescinded, but treated it as valid and binding and continued to receive the premiums thereon.

Id. at 272 (2).

And subsequent appellate decisions have determined that the failure to return premiums is a factor to be considered in determining whether an insurance company has waived the defense by treating the policy as an enforceable contract. See, e.g., Thompson v. Permanent Gen. Assurance Corp., 238 Ga. App. 450, 452 (519 SE2d 249) (1999); Florida Intl. Indem. Co. v. Osgood, 233 Ga. App. 111, 115 (1) (503 SE2d 371) (1998); Haugseth v. Cotton States Mut. Ins. Co., 192 Ga. App. 853, 855 (386 SE2d 725) (1989). For example, one decision states that “[a]fter learning of a misrepresentation in the application, an insurer waives the defense that the misrepresentation voided the policy if it treats the policy as valid and binding and retains the insured’s premiums as earned.” Thompson v. Permanent Gen. Assurance Corp., 238 Ga. App. at 452.

Here, the Livelys’ policy provided that the entire contract would be void “if whether before or after a loss, an ‘insured’ has: (A) [intentionally concealed or misrepresented any material fact or circumstances; (B) [e]ngaged in fraudulent conduct; or (C) [m]ade false statements; relating to this insurance.” But fraud does not automatically void a contract; rather, it renders it voidable at the election of the injured party. OCGA § 13-5-5. Therefore, “[i]f a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise, he cannot avoid or rescind such contract.” (Citations and punctuation omitted.) Haugseth v. Cotton States Mut. Ins. Co., 192 Ga. App. at 855.

The evidence shows that Southern Heritage learned of the misrepresentations in the application in October 1997 shortly after the fire occurred, but it did not take the position that the policy was void as a result of those misrepresentations until after suit was filed one year later in October 1998. In the interim, Southern Heritage continued to investigate the Livelys’ claim, while purporting to reserve all defenses. During its investigation, Southern Heritage asked the Livelys to provide extensive documentation to support their claim, and at one point (at a time when the Livelys were not represented by counsel) the insurance company relied upon the policy to urge the Livelys to send the requested documents: “I shall again ask you to please . . . provide the records and documents we ask for. . . . Please refer to your policy, pages 9 to 12, Section One-Conditions, which states you must provide these records and documents.” And it is undisputed that Southern Heritage has not returned any premiums paid by the Livelys.

While Southern Heritage asserts that its actions were part of a necessary investigation to avoid possible bad faith liability, the Livelys assert that the insurance company was simply hoping to string them along until the one-year contractual limitation period expired on their claim. We believe that the record presents genuine issues of material fact as to whether Southern Heritage waived its defense that the policy is void, and thus summary judgment in favor of the insurance company was improper.

We are not persuaded by Southern Heritage’s argument that the decision in Massachusetts Bay Ins. Co. v. Hall, 196 Ga. App. 349 (395 SE2d 851) (1990), dictates a different result. In that case, the insurer contended that the insured had committed fraud in a proof of claim, not in the initial application. This Court found that under the circumstances, the insurer was not required to return the premium because the fraud arose due to “some action or inaction on the part of the insured in connection with a claim occurring during the policy’s life.” Id. at 352 (2) (a). In other words, the insurer was not, as Southern Heritage is here, asserting that the entire policy was void; rather it asserted that the insured’s right to recover for that claim was void. Under those circumstances, the Court found that the insurer had earned the premiums because it had assumed the risk of coverage of all legitimate claims. Id. at 351-352 (2) (a). But in this case, Southern Heritage is contending that it has no liability for any of the Livelys’ claims, even if they are legitimate. Accordingly, the Hall case is distinguishable from cases such as this one dealing with fraud in the insurance application, as the panel in that case recognized. Id. at 352 (2) (a).

3. The Livelys also assert that Southern Heritage’s renewal of the insurance policy corrected the misrepresentations contained in the application. We find no merit in this argument.

The policy was renewed in April 1997 because the agent who originally handled the Livelys’ insurance no longer represented the company. The renewed policy was in effect at the time of the fire. The parties apparently continued to rely upon the application submitted in 1994 for the renewal. By the time of the renewal in 1997, more than three years had passed since the Livelys had been denied a renewal of their Allstate policy. Therefore, in 1997, the Livelys could truthfully have given a negative response to the application’s question as to whether their insurance had been nonrenewed in the past three years.

Even assuming, however, without deciding, that a prior misrepresentation could somehow be rectified by the passage of time, we note that the application still states that the Livelys had no prior insurance and no loss history in response to questions containing no time restrictions. Therefore, even under the Livelys’ renewal theory, misrepresentations remain.

4. The Livelys next contend that the trial court failed to construe the evidence of the forgery of the automobile policy in their favor. They assert that the forgery on that application raises questions regarding the legitimacy of the homeowner’s application because the two were submitted together for coverage under a unified policy number. Although the Livelys’ handwriting expert testified that the signature on the automobile application was a forgery, he opined that the signature on the homeowner’s application was “probably” that of James Lively. In addition, while James Lively did not recall being questioned about nonrenewal, he admits that he was aware that application submitted on his behalf incorrectly reflected that he had no prior insurance on the property, although he asserts that he relied upon his agent’s expertise to respond to that question.

Decided June 27, 2002

Mazursky & Dunaway, Randall A. Constantine, Albert H. Dallas, Robert E. Richardson, for appellants.

Mabry & McClelland, Robert M. Darroch, Gino L. Montoya, for appellee.

As we have already determined that the trial court erred in granting summary judgment on the Livelys’ claims, we do not find it necessary to address the specific arguments raised in this enumeration, but simply note that the trier of fact will have to address any conflicts in the evidence regarding the misrepresentations.

Judgment reversed.

Ruffin and Barnes, JJ, concur.

       We note that Mulkey was decided under the Georgia Code as it existed in 1916. At the time, the insurance statutes provided that “Every application for insurance must be made in the utmost good faith, and the representations contained in such application are considered as covenanted to be true by the applicant.” (Punctuation omitted; emphasis supplied.) Mulkey, 146 Ga. at 268 (2), quoting Section 2479 of the 1910 Code. In contrast, the current version of the statute provides, “All statements and descriptions in any application for an insurance policy . . . by or in behalf of the insured . . . shall be deemed to be representations and not warranties.” OCGA § 33-24-7 (a). The Supreme Court of Georgia has not addressed the issue before us under the current version of the statute.

       The record indicates that on October 12,1998, two days before the contractual limitation period was due to expire, Southern Heritage sent the Livelys a letter indicating that the limitation period contained in the policy would apply to their claim.


text:
    A02A0733.
    ENVIROMEDIATION SERVICES, LLC v. BOATWRIGHT et al.
    (568 SE2d 117)
   Pope, Presiding Judge.

After a jury trial which resulted in a $1 million verdict against it, Enviromediation Services, LLC appeals. For the following reasons, we affirm.

This case arose on June 22, 1998, when Alonzo Harris drove a dump truck across the centerline of Highway 140 in Cherokee County and collided with several vehicles. The collision caused the deaths of John Gordon Boatwright, Misty Dawn Boatwright, and Terri Ann Lamanac. Several other people were injured in the accident, including John Gordon Boatwright, Jr. and James Roy Gordon Boatwright. Following the accident, Harris fled the scene and was apprehended a short distance down the road.

Based on the accident, Ruth Lillian Boatwright, individually and on behalf of the estate of John Gordon Boatwright, Sr., and four other plaintiffs sued Harris, Prince Construction Company, and Enviromediation Services. Plaintiffs later amended their complaint to include GBI Construction Company as a defendant.

The following facts concerning the accident were undisputed at trial. The parties agreed that on the date of the accident, Harris’ immediate employer was Prince Construction Company. Harris had reported for work to Prince Construction Company’s place of business on the morning of the accident, and David Prince, one of Prince Construction Company’s employees, told Harris to report to a job site at Cherokee County High School, which was undergoing renovations. Harris went to the site; he was hauling a load of debris away from the construction site immediately before the accident. Sandra Prince d/b/a Prince Construction Company admitted that Harris was one of its regular employees at the time of the wreck, and that she was liable for his negligence.

It was also undisputed at trial that GBI Construction Company was the general contractor for the renovation of Cherokee County High School. Enviromediation was a subcontractor for the demolition and asbestos removal on that project. Enviromediation had hired Prince Construction Company to help with debris removal. The general contract for GBI’s construction project and the Enviromediation subcontract were admitted as exhibits at trial.

At trial the parties specifically stipulated to Harris’ and Prince’s liability. The court instructed the jury that the only question for resolution at trial was whether GBI or Enviromediation, or both, was liable to the plaintiffs.

After hearing the evidence, the jury returned a verdict finding that only Enviromediation was liable. Accordingly, judgment against Enviromediation was entered for $1 million. Here, Enviromediation appeals, raising two enumerations of error.

In both enumerations of error, Enviromediation argues that the trial court erred in denying its motion for a directed verdict at the conclusion of the plaintiffs’ case and again at the conclusion of all of the evidence, because Harris was not its employee or agent at the time of the accident. Enviromediation contends that for the jury to impose liability, it was necessary that Harris have been under its immediate direction and control and that the evidence was uncontradicted that after Harris left the Cherokee County High School job site, it did not exercise control over him. In support of its argument that there was no basis for its liability, Enviromediation details various testimony which it contends showed that it did not have the requisite control over Harris.

In response, plaintiffs argue that there was a question of material fact as to whether Harris was an agent both of Enviromediation and of Prince. They cite testimony which they say established that Enviromediation directed and controlled various aspects of Harris’ work, making him an agent of both companies.

There was ample evidence at trial regarding the respective responsibilities of Enviromediation and of GBI. William Prince, an overseer at Prince Construction Company, testified that Tom Smith of Enviromediation called him on Friday and requested that Prince Construction Company supply three trucks for the project at Cherokee County High School the next Monday. Prince Construction Company, which had previously had minimal dealings with Enviromediation, was to be paid $65 per hour per truck. After receiving this money, Prince would then pay its drivers for their work. There was no written contract between Enviromediation and Prince.

As agreed to by Enviromediation and Prince, the Prince drivers reported to Cherokee County High School at 7:30 a.m. on June 22, 1998. They reported to Enviromediation’s supervisor Smith, who then instructed them about which debris — concrete, metal, wood — to load into which truck and how to back their trucks into the loading area. Smith decided how heavily the trucks were to be loaded and then required the drivers to put a tarp on their loads because of a GBI requirement. Enviromediation decided that the debris would be taken to the Chadwick Road landfill, and Smith gave the drivers the directions as to the particular route to take. Smith also instructed the drivers to use the Enviromediation account at the landfill. After the driver dumped each load of debris, he was given a “load ticket”; these tickets were delivered to Enviromediation at the end of the day.

There was testimony that if Smith did not like the way the Prince drivers were doing something, Smith had the right to send them home. Nonetheless, Prince retained the ultimate decision as to whether to keep or fire a driver.

Chris Scott, one of the three drivers Prince sent to Cherokee County High School on the accident date, also testified at trial. He stated that he reported to Smith on that date and was told to take his load to Chadwick Road landfill where he got a dump ticket, charging the load to Enviromediation’s account. This ticket was to be turned in to Smith at the end of the day. Scott testified that Smith and another Prince driver had an argument that day about how the other driver was loading his truck. Scott testified that Smith told the other Prince driver that he would get that driver fired. When Smith was asked about this argument, he stated that the argument concerned the driver’s maneuvering the truck and that Smith told the driver to back in straighter or he “was going to cut him off and send him home.”

Harris also testified at trial. He stated that Smith gave him directions to the Chadwick Road landfill and that Harris picked up the dump tickets for the loads. Harris testified that the collision occurred on his fourth trip to the landfill that day. Harris stated that once he left the job site, Smith did not give him further instructions.

Based on the evidence presented at trial, we conclude that the trial court did not err in denying Enviromediation’s motion for directed verdict. In Slater v. Canal Wood Corp. &c., 178 Ga. App. 877, 878 (1) (345 SE2d 71) (1986), this court enunciated considerations which are determinative to our present inquiry:

The chief test to be applied in determining whether a person is employed as a servant or as an independent contractor has long been and continues to be whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right merely to require certain definite results in conformity with the contract. . . . The Restatement, Second, Torts § 414 states the rule thusly: “One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” See OCGA § 51-2-5 (5). Although the relationship between an alleged master and servant is generally a question of fact to be decided by a jury, there are cases presenting factual situations wherein this issue has been decided as a matter of law.

(Citations and punctuation omitted.) See also Yow v. Fed. Paper Bd. Co., 216 Ga. App. 652, 654 (2) (455 SE2d 372) (1995).

OCGA § 51-2-4 provides that an employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer. Some exceptions to this rule are laid out in OCGA § 51-2-5, subsection (5) of which provides that an employer is liable for the negligence of a contractor: “[i]f the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference.”

Because Prince’s liability was stipulated to, the issue of whether Prince was also an agent for GBI and/or Enviromediation presented the question of whether Harris was an agent for both companies. Thus, the trial court instructed the jury that “a person may be an agent or employee of more than one employer.” See generally Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 876 (1) (311 SE2d 193) (1983). In this case the test regarding whether both employers were liable involved the question of GBI’s and Enviromediation’s control over Harris. See, e.g., Hotel Storage v. Fesler, 120 Ga. App. 672, 675 (2) (172 SE2d 174) (1969) (although “one ordinarily cannot be the servant of both a general master and a temporary master, it may be found that there was a dual agency and that the employee in question was the servant of both the general and the special employer because the purpose and business of each [were] being furthered and each had some control over the activity which occasioned the injury”) (punctuation omitted).

Decided June 27, 2002

Lokey & Smith, Malcolm Smith, Kevin A. Doyle, Carlock, Copeland, Semler & Stair, Dennis G. Lovell, Jr., for appellant.

Here, there was evidence that Enviromediation exercised sufficient control of the manner, method, and means of the execution of Harris’ work to create a jury issue regarding its liability. See, e.g., Davis v. Beasley Timber Co., 241 Ga. App. 706, 708 (1) (527 SE2d 221) (1999); compare Jacobs v. Thomson Oak Flooring, 250 Ga. App. 56, 57 (1) (550 SE2d 465) (2001). There was evidence that Enviromediation controlled the manner in which the drivers loaded their trucks to carry the loads to the landfill; it decided which landfill to use and specifically directed Prince’s employees to the landfill; it controlled the logistics of the load tickets for each trip the driver made to the landfill; and it decided whether a particular driver could participate in the job or not. There was also evidence that Enviromediation had sole control over the materials to be loaded in Harris’ truck; that Enviromediation directed how the Prince employees backed into the loading area; and that Enviromediation decided how heavily each truck was to be loaded and made sure that the drivers “tarped” their loads. Moreover, after each load of debris was dumped at the landfill, the “load tickets” were delivered to Enviromediation. This evidence indicated that there was at least a factual issue regarding whether Harris was an agent of Enviromediation at the time of the accident, and the trial court did not err in denying its motions for directed verdict.

Judgment affirmed.

Ruffin and Barnes, JJ, concur.

Gambrell & Stolz, Irwin W. Stolz, Jr., Linda A. Klein, Gene F. Cantrell, Thomas W. Malone, Stuart B. Houck, for appellees.

       The other plaintiffs were John Gordon Boatwright, Jr., a minor, by and through his mother and guardian Ruth Lillian Boatwright; James Roy Gordon Boatwright, a minor, by and through the guardian of his property, Kimberly Prance Hamrick; Kimberly Prance Hamrick, on behalf of the estate of Misty Dawn Boatwright, deceased; and Jackie Wayne Lamanac, individually and as administrator of the estate of Terri Ann Lamanac, deceased.


author: Ruffin, Judge.

text:
    A02A0782.
    WILLIAMS et al. v. FLINTKOTE COMPANY et al.
    (568 SE2d 106)
   Ruffin, Judge.

Joyce and Carlton Williams sued the Flintkote Company (“Flintkote”), GAF Corporation (“GAF”), and numerous other corporations for negligence, strict liability, and breach of warranty, alleging that Mrs. Williams suffered injury from exposure to asbestos-containing products sold or distributed by the defendants. Following discovery, Flintkote and GAF moved for summary judgment, which the trial court granted. The Williamses now appeal. For reasons that follow, we affirm the trial court’s ruling with respect to Flintkote, but dismiss the Williamses’ appeal as to GAF.

1. Submissions from the parties reveal that GAF sought Chapter 11 bankruptcy protection on January 5, 2001, after the Williamses filed their notice of appeal. Accordingly, further proceedings against GAF are stayed by operation of 11 USC § 362, and we must dismiss this appeal without prejudice as to GAF. The Williamses may file a new notice of appeal relating to GAF within 30 days after the bankruptcy court lifts its stay.

2. In two enumerations of error, the Williamses argue that the trial court erred in granting Flintkote’s summary judgment motion. Summary judgment is appropriate when no genuine issues of material fact remain and the evidence, construed in the light most favorable to the nonmoving party, warrants judgment as a matter of law. We review the trial court’s grant of summary judgment de novo.

(a) Viewed favorably to the Williamses, the record shows that Mrs. Williams worked as a sewing machine operator and terry cloth inspector at the Muscogee/Field Crest Cannon Textile Plant (“Muscogee plant”) from 1960 to 1963. She also worked as a sewing machine operator at the Opelika Manufacturing Plant (“Opelika plant”) from approximately 1965 to 1975. The record further shows that the Muscogee plant employed Mr. Williams as a loom mechanic from 1959 to 1966 and 1969 to 1995.

In December 1999, Mrs. Williams was diagnosed with mesotheliorna, a type of cancer. She and her husband subsequently sued Flintkote and 29 other corporations, asserting that their asbestos products caused her condition. The Williamses alleged exposure to these products in two ways. First, they claimed that Mrs. Williams “worked in the vicinity of [the defendants’] products” at the Muscogee and Opelika plants. Second, they asserted that “[Mrs. Williams] was exposed by washing the work clothes of her husband . . . , who also worked in the vicinity of [the defendants’] products” at the Muscogee plant.

Flintkote moved for summary judgment, arguing the record lacked evidence that Mrs. Williams was exposed to an asbestos product that it manufactured or distributed. The trial court agreed and granted Flintkote’s motion. We find no error.

To avoid summary judgment, the Williamses needed to present evidence that Flintkote’s asbestos-containing product was used at the Muscogee and/or Opelika plants and that Mr. or Mrs. Williams “ ‘was in proximity to that product at the time it was being used.’ ” At their depositions, the Williamses could not recall working around any product associated with Flintkote. In fact, neither had heard of Flintkote. An asbestos plaintiff, however, may also meet her burden of proof by offering the testimony of a co-worker “ ‘who can identify [the] plaintiff by name as having worked with or around a particular defendant’s asbestos-containing products.’ ”

Relying on this proof method, the Williamses presented the testimony of Walter White, who performed or supervised pipe insulation work at the Opelika plant between 1968 and 1975 and at the Muscogee plant from 1959 to 1966 and 1969 to 1975. The parties dispute whether the evidence supports any inference that White had contact with Mrs. Williams or her husband, worked anywhere near them, or knew anything about their working conditions at the plants. Yet, even assuming that the Williamses can show a sufficient connection with White, his testimony does not require reversal.

White testified that he used or witnessed others using various asbestos products at the Muscogee and Opelika plants. Specifically, White recalled seeing at the plants asbestos materials manufactured by Kaylo, Caltemp, Cal-sil, BEH, Pabco, Phillip Carey, Armstrong, Owens Corning, GAF, and Ruberoid. The Williamses, however, presented no evidence linking these materials or manufacturers with Flintkote.

Questioned directly about Flintkote products, White testified that he used Flintkote “mastics” — a semi-liquid protective coating often applied to pipes — at the Muscogee and Opelika plants. But he could not remember the name of these mastics, where they were used in the plants, or if they contained asbestos. Furthermore, White could not recall whether any other Flintkote products were used at these plants. He also testified that he utilized mastics manufactured by different companies at the Muscogee and Opelika plants.

The record shows that the Muscogee plant had multiple stories, and, although built on only one floor, the Opelika plant “was pretty large.” Asked generally where in the plants he used the many products identified during his deposition, White stated, “[a] 11 over the — everywhere. All floors.” He further testified that he worked with all of the asbestos products in the Muscogee plant basement, where Mrs. Williams worked. As noted above, however, White could not recall where the Flintkote mastics were applied, and he did not characterize those mastics as asbestos products.

White’s testimony provides no insight into where, within the Muscogee and Opelika plants, he utilized the Flintkote mastics. His broad statement that he used the many products mentioned in his deposition, which were manufactured or distributed by numerous companies, “all over” the plants does not suffice. And, by his own testimony, White’s more specific recollection that he used asbestos-containing products in the Muscogee basement does not apply to the Flintkote mastics.

“Although [the Williamses are] entitled to the benefit of all reasonable inferences to be drawn from the evidence, such inferences ‘cannot be based on mere conjecture or possibility or upon evidence which is too uncertain or speculative.’ ” Any conclusion that White or other workers used the Flintkote mastics “ ‘in proximity to’ ” Mr. or Mrs. Williams would be mere speculation. At most, White’s testimony shows that Flintkote mastics were applied somewhere within two large manufacturing plants. Because no evidence tied Mrs. Williams or her husband to this Flintkote product or its use, the trial court properly awarded Flintkote summary judgment.

(b) The Williamses also argue that, in granting summary judgment, the trial court improperly relied on the Eleventh Circuit’s decision in Blackston v. Shook & Fletcher Insulation Co. Although the written summary judgment order does not refer to Blackston, the trial court stated at the summary judgment hearing that “the evidence in this case is precisely the type of speculative . . . evidence that the Blackston [case] fits for motion for summary judgment.”

Interpreting Georgia law, the Blackston court found that an asbestos claimant must “show that he was exposed to defendant’s asbestos-containing product by working with or in close proximity to the product.” The court also “rejected] the argument that [it] should create a judicial presumption that a plaintiff was exposed to the asbestos in a defendant’s products by simply showing that he worked at a job site at a time when the defendant’s asbestos-containing products were used.”

The Williamses claim that the trial court should not have relied on Blackston and that we should adopt the presumption Blackston rejected. In Hoffman v. AC&S, Inc., however, we cited Blackston with approval. Furthermore, we determined that, to survive summary judgment, an asbestos plaintiff must present evidence that the defendant’s asbestos-containing product was used at the job site and that he or she was in proximity to that product during its use. The presumption suggested by the Williamses runs counter to these Hoffman proof requirements, which support summary judgment in this case. Accordingly, we find no error in the trial court’s ruling.

3. Finally, Flintkote has moved to strike from the appellate record affidavits submitted by Mr. and Mrs. Williams, which seek to establish a connection or relationship between themselves and White. In Division 2 (a), however, we assumed that the Williamses had shown a sufficient connection with White, but still found summary judgment appropriate. Regardless of whether the trial court properly included these affidavits in the record, Flintkote is entitled to summary judgment. Flintkote’s motion to strike, therefore, is dismissed as moot.

Summary judgment in favor of the Flintkote Company affirmed. Appeal of judgment relating to GAF Corporation dismissed with instructions.

Pope, P. J., and Barnes, J., concur.

Decided June 27, 2002

Gregory, Christy & Maniklal, Hardy Gregory, Jr., Mark F. Dehler, Michael E. Perez, for appellants.

Swift, Currie, McGhee & Hiers, Anandhi S. Rajan, Mary D. Owens, Smith & Moore, Edward M. Newsom, for appellees.

       See Hoffman v. AC&S, Inc., 248 Ga. App. 608 (1) (548 SE2d 379) (2001).

       See id.

       See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Hoffman, supra at 610 (2).

       See Hoffman, supra.

       Id. at 611 (2).

       Id.

       Id. at 610 (2).

       Id. at 611 (2).

       The Williamses have pointed to no evidence that the Flintkote mastics actually contained asbestos. Flintkote, however, did not seek summary judgment on this ground. Rather, its argument focused on whether the Williamses had shown any exposure to a Flintkote product. In responding to Flintkote’s motion, therefore, the Williamses did not need to present evidence that the Flintkote mastics contained asbestos. See Graff v. McReynolds & Assoc. &c., 248 Ga. App. 26, 27 (1) (545 SE2d 159) (2001) (“ ‘The issues that must be rebutted on motion for summary judgment are those raised by the motion.’ ”).

       See Hoffman, supra at 612 (summary judgment for asbestos manufacturer appropriate; plaintiff presented no evidence that defendant’s product contained asbestos, witness did not know where the product was used at job site, and witness did not know when it was used); cf. John Crane, Inc. v. Wommack, 227 Ga. App. 538, 541 (2) (c), (d) (489 SE2d 527) (1997) (trial court properly denied asbestos manufacturer’s directed verdict motion because asbestos claimant presented evidence that he used defendant’s asbestos product at job site and was exposed to a substantial amount of respirable asbestos fibers).

       764 F2d 1480 (11th Cir. 1985).

       Id. at 1481; see also id. at 1482-1484 (discussing Georgia law).

       Id. at 1481.

       See Hoffman, supra at 611.

       See id.


author: Andrews, Presiding Judge.

text:
    A02A0471.
    BROWN v. THE STATE.
    (568 SE2d 62)
   Andrews, Presiding Judge.

Jeremiah Brown appeals from the judgment entered after a jury found him guilty of voluntary manslaughter and aggravated assault. Brown asserts several enumerations of error, among which is a claim that the trial court erred in denying his Batson challenge by finding that the State exercised its peremptory jury strikes in a racially neutral manner. After reviewing the record, we conclude that the State had a discriminatory purpose in striking one of the jurors and reverse.

1. In his first enumeration of error, Brown claims the trial court erred in denying his objection under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), to the State’s strike of an African-American venireman. Under Batson, “a prosecutor may not strike a black juror solely because of his race, nor may he strike on the basis of an assumption which arises ‘solely from the jurors’ race,’ nor may he strike ‘to exclude . . . veniremen from the petit jury on account of their race.’ ” Gamble v. State, 257 Ga. 325-326 (357 SE2d 792) (1987).

The evaluation of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent.

Thomas v. State, 274 Ga. 156, 161 (549 SE2d 359) (2001). “The trial court’s findings are, of course, entitled to great deference, Batson, supra, 106 SC at 1724 (fn. 21), and will be affirmed unless clearly erroneous.” (Punctuation omitted.) Gamble, supra at 327 (5).

In this case, the venire panel was 43 percent African-American and 57 percent white. The State used four of its five peremptory strikes on African-Americans. The trial court ruled that Brown had made a prima facie showing of racial discrimination and asked the prosecutor to state her reasons for striking the prospective juror. First, the prosecutor said that she decided to strike the juror because he had lived in the area where the crime in this case occurred. The prospective juror stated during voir dire that he moved his family out of the area because it was such a high crime area. Also, the prosecutor said that the juror, “when asked about the system being prejudiced against one based on race, he said, yes, it was. And I said, well, what do you base that opinion on? [Answer:] Living in America. So he has [sic] a black man, already indicates that he believes the system is unfair toward blacks. And in this case the defendant is black. That was a great concern to the state.” The prosecutor went on to state: “And when you talk about a person feeling the system is racially prejudiced, you’re not talking about racially prejudiced to a victim, you’re talking about racially prejudiced to the person who is on trial or against the person who is on trial [,] who in this case is a black male, which is the same race and gender of the party that we struck.” The prosecutor stated that a belief that the system was unfair to blacks was “particularly relevant when the party who is saying the system is prejudiced based on race is the same race as the defendant. That’s when it becomes an issue, your honor.”

Brown claims that this last statement by the prosecutor shows that the prosecutor was basing this peremptory strike on the race of the prospective juror. We agree.

As previously stated, a prosecutor may not strike an African-American juror on the basis of an assumption which arises solely from the juror’s race. Gamble, supra at 326. Here, the prosecutor clearly stated that the juror’s race was “particularly relevant” to her decision because the juror and defendant were both black.

The State argues that a distrust of the criminal justice system provides a race-neutral reason for striking the juror. That does not change the analysis. “[T]he ultimate issue in resolving a Batson challenge is not whether the prosecutor’s stated reason for the strike is a good reason, but whether it is a pretext for racial discrimination.” Ridley v. State, 235 Ga. App. 591, 595 (510 SE2d 113) (1998). We need look no further than the prosecutor’s own explanation to determine that a “discriminatory purpose” was involved in her decision. Duren v. Missouri, 439 U. S. 357, 368, n. 26 (99 SC 664, 58 LE2d 579) (1979); Gamble, supra at 326.

Thus, the prosecutor was unable to satisfy the second step of the Batson analysis, that of providing a race-neutral reason for the strike. It follows that the trial court erred in ruling that Brown had not shown discriminatory intent and in overruling Brown’s Batson challenge. Accordingly, the judgment is reversed.

Decided June 10, 2002

Reconsideration denied June 28, 2002

Monique D. Moyse, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Christopher M. Quinn, Assistant District Attorneys, for appellee.

2. Because the evidence meets the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), this case may be retried before a properly selected jury. Gamble, supra at 330.

3. Brown’s remaining enumerations have been considered and are found to be without merit or to present circumstances unlikely to recur upon retrial.

Judgment reversed.

Phipps and Mikell, JJ., concur.


text:
    A02A0077, A02A0716.
    AUKERMAN et al. v. WITMER; and vice versa.
    (568 SE2d 123)
   Ruffin, Judge.

James Witmer sued his former employer, A. C. Aukerman Company (“ACAC”), and Arlie Aukerman for breach of a stock purchase agreement, breach of an implied covenant of good faith and fair dealing, and litigation expenses. In response, ACAC asserted several counterclaims, including misappropriation of trade secrets and breach of fiduciary duties. Aukerman and ACAC subsequently moved for summary judgment on Witmer’s claims, and Witmer filed a cross-motion, seeking summary judgment on ACAC’s misappropriation of trade secrets and breach of fiduciary duty claims.

The trial court granted the parties’ cross-motions for summary judgment. In Case No. A02A0716, Witmer challenges the trial court’s grant of summary judgment to Aukerman and ACAC on his breach of contract, good faith, and litigation expense claims. In Case No. A02A0077, ACAC appeals the trial court’s ruling relating to its counterclaims. For reasons that follow, we affirm the trial court’s decision in Case No. A02A0716, and we affirm in part and reverse in part the judgment in Case No. A02A0077.

Case No. A02A0716

1. Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. On appeal, we review the trial court’s grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party.

Viewed in this manner, the evidence shows that Aukerman is the majority shareholder and chairman of the board of ACAC, a construction company that specializes in building concrete median barrier walls separating roadways. Witmer, a CPA, worked for ACAC from 1983 to August 2000, making day-to-day management decisions, drafting construction bids, preparing tax returns, and reviewing the comptroller’s accounting methods. During his 17-year employment at ACAC, Witmer served as vice president, chief executive officer, and corporate director.

In late 1999, Aukerman, Witmer, and Aukerman’s son, David, began discussing Aukerman’s retirement and sale of the business. The three orally agreed in December 1999 that Witmer and David, ACAC’s president, would purchase Aukerman’s stock in the company for $1 million “net,” meaning $1 million after taxes relating to the sale. They did not discuss a “per share” purchase price for the stock. Instead, Witmer calculated the share price that would produce $1 million net and arrived at $260 per share.

Witmer subsequently drafted a “Stock Option Agreement,” dated January 1, 2000, which gave Witmer and David the option to purchase from Aukerman 4,988 shares in ACAC for $260 per share over a five-year period. According to Witmer’s complaint, this document “reflected in part [the parties’] oral agreement.” At deposition, Witmer explained that the “Stock Option Agreement” did not require him to purchase the shares; it simply gave him a purchase option. In addition, it provided that, beginning January 1, 2000, Witmer and David would make all decisions regarding employee bonuses. Although Witmer thought this document was the “final agreement” between the parties, it was never signed, and Aukerman specifically objected to being excluded from the employee bonus decisions.

After drafting the January 1, 2000 “Stock Option Agreement,” Witmer continued discussing with Aukerman how to handle the tax consequences of the stock purchase. In January or February 2000, they considered altering the transaction structure so that Aukerman’s $1 million payment would result from a combination of stock purchase price and ACAC company profits. Under this structure, Witmer and David would pay Aukerman $156.25 per share. According to Witmer,

We had talked about the best way tax-wise to handle this transaction. . . . Mr. Aukerman was going to get his million dollars net. That was our agreement, and we felt like this split between . . . profits and purchase of stock would be an acceptable way to do it and give him a reasonable amount for his stock and save a few dollars [in] taxes.

In a May 11, 2000 fax to Aukerman’s attorney, Witmer confirmed that the parties had “revised [the agreement] to be a combination of stock and . . . profits” and that they would “revise [the] stock option agreement to reflect the $156.25/share.” Witmer testified, however, that the parties planned to use this structure only if Aukerman could successfully buy out another stockholder, Ron Magner.

According to Witmer’s complaint, he and Aukerman decided in March 2000 that Aukerman’s attorney should put their “agreement” in writing. The attorney forwarded a copy of this proposed written agreement, entitled “Agreement for Purchase and Sale of Stock,” to Witmer and Aukerman in May 2000. Rather than granting Witmer and David a stock purchase option, this document obligated them to pay Aukerman specified amounts over a five-year period in exchange for 4,988 shares of stock. Several other provisions in the May 2000 draft also differed from the “Stock Option Agreement” Witmer prepared in January 2000. Asked whether he was willing to sign the May 2000 document, Witmer responded: “We had one item in here that none of the three of us agreed to, and that’s in the event that we didn’t pay [Aukerman] the last dime of this agreement that [all of the stock] would go back to him.”

The parties did not sign the agreement drafted by Aukerman’s attorney. Aukerman subsequently indicated that, even after the buyout, he expected ACAC to pay his personal income taxes, as it apparently had always done. Witmer grew concerned that ACAC could not afford to pay these taxes, and, in July 2000, the parties met with CPA Fred Sheats to develop an answer to the tax questions that still plagued the buyout. Sheats suggested a solution, which Aukerman rejected.

Following this meeting, Aukerman informed Witmer that he would not discuss the buyout again until after the upcoming presidential election, which, Aukerman thought, might impact the tax situation. Witmer, however, decided that Aukerman “had no intention of living up to the [purchase] agreement” and resigned in August 2000. Witmer filed suit two months later, alleging that Aukerman and ACAC had breached the December 1999 oral agreement relating to the buyout.

In granting Aukerman and ACAC summary judgment on this count, the trial court concluded, among other things, that the alleged oral agreement was too indefinite to be enforced. We find no error.

Under Georgia law, “ ‘a contract does not exist unless the parties agree on all material terms. A contract cannot be enforced if its terms are incomplete, vague, indefinite or uncertain.’ ” Thus, “[a] court will not enforce an agreement where it is left to ascertain the intention of the parties by conjecture.” An indefinite contract, however, “may . . . acquire more precision and become enforceable because of the subsequent words or actions of the parties.”

Describing the oral agreement, Witmer testified: “I agreed that we would pay Mr. Aukerman a million dollars net. That was our agreement, and however we were to accomplish that, [Aukerman] had no problem with [the share price], and [the share price] was not a factor to me. He would get a million net.” On appeal, Witmer similarly characterizes the “essential agreement” as follows: “the shares would be sold for $1 million, net of Mr. Aukerman’s taxes on the sale.” Like the trial court, we cannot find this “essential agreement” sufficiently definite to be enforceable.

The record shows that, after December 1999, the parties continued to negotiate many terms and conditions materially affecting the agreement. For example, the parties — or at least Witmer — initially contemplated a stock option arrangement that did not obligate Witmer or David to purchase any particular number of Aukerman’s shares. When Aukerman’s lawyer reduced the sales agreement to writing in May 2000, however, the stock purchase option had been replaced by a straight purchase arrangement requiring Witmer and David to buy 4,988 stock shares over a five-year period. Asked whether he had any objections to the May 2000 draft, Witmer raised no complaint about this change.

Thus, although the parties’ “essential agreement” may have anticipated that Aukerman would sell 4,988 shares of stock for $1 million net of taxes, it did not clearly provide whether the transaction would be structured as a purchase contract or an option contract. Furthermore, the option arrangement outlined in the January 1, 2000 draft, which Witmer contends reflects the December 1999 oral agreement, might not have accomplished the ultimate goal of this transaction — purchasing Aukerman’s shares for $1 million net. Witmer clearly testified that he and David were not required to buy all 4,988 shares involved in the option. Unless they purchased all 4.988 shares for $260 each, however, the total purchase price would not equal $1 million after taxes.

Moreover, the parties discussed three different pricing structures for this “essential agreement”: (1) the December 1999 oral agreement and Witmer’s January 1, 2000 draft contemplated a $260 per share price, giving Aukerman $1 million plus an additional $296,880 to defray taxes on the sale; (2) the parties also considered a $156.25 per share price, with the remaining purchase price to be paid from corporate profits; and (3) the May 2000 draft agreement required Witmer and David to pay Aukerman $1 million cash for 4.988 shares (a $200.48 share price) and provided that ACAC would indemnify Aukerman for taxes incurred through the sale.

These price structures incorporated disparate per-share prices, as well as differing levels of participation by ACAC. And although Witmer testified that the $156.25 per share/profits structure was available only if Aukerman could successfully buy out Magner’s corporate shares, he offered no explanation as to when the parties anticipated using the $260 per share price versus the $200.48 per share price. Citing Rhyne v. Garfield, Witmer argues that a sales contract can incorporate alternative forms of payment. Nothing in the record, however, indicates that the parties intended the third price structure to be an alternative to the first two, as opposed to a replacement.

The ever-changing price structure also illustrates the parties’ difficulty in resolving the tax issues and deciding whether taxes relating to the sale should be paid directly by ACAC or included in the per-share purchase price. As Witmer admits, the parties continued to negotiate how best to handle the tax consequences — an issue that obviously concerned Aukerman — well after December 1999.

Thus, even if the parties settled on an overall purchase price for Aukerman’s shares in December 1999, they never agreed on the structure of that sales transaction. In short, the record does not establish “with reasonable certainty what the parties intended to do in this agreement.” Their underlying purpose was the sale of the business through a stock transfer. We have been left to guess, however, about fundamental components of that transaction, such as the pricing structure, tax treatment, and whether the parties intended an option agreement or a straight purchase. Accordingly, the trial court did not err in finding this agreement vague, uncertain, and too indefinite to be enforceable.

We note that Witmer contends he partially performed his obligations under the agreement in December 1999, when he credited $37,500 from his 1999 bonus to Aukerman’s “receivables account” at ACAC. Witmer viewed this transfer as an advance to Aukerman for stock that Aukerman would sell him in 2000. “[A]n objection of indefiniteness may be obviated by performance on the part of one party and the acceptance of the performance by the other.” Performance, however, cannot supply the necessary definiteness if the contract is so vague and uncertain that the court cannot determine what the parties agreed upon and whether there has been any performance of that agreement.

As discussed above, regardless of whether the parties generally agreed that Witmer and David would purchase Aukerman’s stock for $1 million net of taxes, they never settled on a structure for that transaction, leaving us in the dark as to how they intended this sale to proceed. Witmer’s decision to transfer $37,500 to Aukerman for a future stock purchase does not resolve the uncertainties surrounding the agreement, such as whether it would be treated as a stock option or a straight purchase, what the share price would be, and how the parties would pay the taxes associated with the sale. Under these circumstances, Witmer’s part performance did not cure the deficiencies plaguing the agreement.

Similarly, the parties’ actions after December 1999 lend no “precision” to the agreement. Even if, as Witmer claims, Aukerman reduced his role in the company after December 1999, Witmer increased his responsibility at that point, and Aukerman told Witmer he had received a “ ‘good deal,’ ” this conduct does not render the agreement enforceable. Key terms of the December 1999 agreement remained wholly uncertain and under negotiation. The trial court, therefore, properly granted Aukerman and ACAC summary judgment on Witmer’s breach of contract claim.

2. Witmer also argues that the trial court erroneously granted Aukerman and ACAC summary judgment on his claims that they breached an implied covenant of good faith in the December 1999 agreement and are liable to him for litigation expenses. Witmer admits, however, that these claims depend on the enforceability of the December 1999 agreement. As we found that agreement unenforceable, the trial court properly awarded Aukerman and ACAC summary judgment on these claims.

Case No. A02A0077

In its cross-appeal, ACAC challenges the trial court’s decision granting Witmer summary judgment on its trade secrets and breach of fiduciary duty claims. As discussed below, we affirm the ruling relating to trade secrets, but reverse the trial court’s judgment as to breach of fiduciary duty.

3. Viewed favorably to ACAC, the record shows that, in October 2000, Witmer began working as an independent contractor for Pittman Construction Company, a local general contractor. Although Pittman had not built concrete median barriers since the 1980s, it had recently obtained a median barrier job and the company’s owners wanted to “get[ ] into barrier.” Witmer subsequently helped Pittman bid for and obtain a barrier job for which ACAC also bid. At his deposition, Witmer recalled discussing with Pittman various information that ACAC factored into its bids, such as labor costs, travel costs, the amount of production ACAC expected for certain types of barriers, and profit margins.

Based on this testimony, ACAC argues that questions of fact remain as to whether Witmer misappropriated ACAC’s confidential financial data relating to its bidding process. According to ACAC, such “financial data” constitutes a protected trade secret under OCGA § 10-1-761 (4).

The record shows, however, that this “financial data” trade secret argument differs from the arguments ACAC raised below. At the summary judgment stage, ACAC focused its arguments on “the Company’s entire process of constructing, and bidding on the construction of, concrete median barrier walls, as a whole (collectively, the ‘Company Process’ or the ‘Process’). . . , which the Company has developed.” Although ACAC discussed bidding as part of that overall process, the “Company Process” was the alleged trade secret ACAC sought to preserve. Throughout its motion, ACAC consistently referred to protecting the “Company Process” as a whole. As ACAC argued, “the entire Company Process, as a unified whole, gives the Company a competitive advantage and is a protectible trade secret.”

Various forms of information can qualify as a trade secret under OCGA § 10-1-761 (4), “including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public.” ACAC’s arguments below focused on the process that it had developed, not on financial data. The company did not contend that particular components of its bids — such as labor costs, profit margins, travel costs, and production rates — qualified as “financial data” entitled to trade secret protection. Instead, it complained that Witmer had disclosed aspects of the company’s bidding process, itself an integral part of the overall “Company Process.”

ACAC concentrated below on branding its overall process as a trade secret. When that effort failed, it changed tactics and now seeks to characterize individual components of that process as protectible “financial data” under OCGA § 10-1-761. This court, however, “will not consider arguments neither raised nor ruled on in the trial court and that are asserted for the first time on appeal.” A party cannot abandon an issue in the lower court and then argue that issue on appeal. And the record shows that ACAC did not raise or request a ruling on this “financial data” trade secret below.

Apparently aware that it asserted a different trade secret argument in the trial court, ACAC claims that, under Dental One Assoc, v. JKR Realty Assoc. a party may challenge a summary judgment award based on new arguments not raised below. ACAC, however, reads Dental One much too broadly. In that case, the Supreme Court addressed the evidentiary burden facing a party moving for summary judgment and determined that if the movant fails to meet that initial burden, the nonmovant can “urge the record’s lack of evidence in that regard as a reason for reversing the grant of summary judgment, even if [the nonmovant] did not ‘object’ on that precise basis in the trial court.”

ACAC’s trade secret argument does not fall within Dental One. On appeal, ACAC does not simply argue that Witmer failed to meet his initial evidentiary burden of “demonstrating] by reference to evidence in the record that there is an absence of evidence to support at least one essential element of [ACAC’s] case.” Instead, it alleges a new financial trade secret not addressed by the parties or the court on summary judgment. Accordingly, ACAC has waived this argument for appeal.

Decided June 28, 2002.

Chamberlain, Hrdlicka, White, Williams & Martin, Eric C. White, James L. Paul, for appellants.

4. Finally, ACAC argues that the trial court erroneously granted Witmer summary judgment on its breach of fiduciary duty claim. We agree.

The record shows that, following Witmer’s departure, ACAC hired a forensic accountant to examine its financial records. According to this accountant, Witmer engaged in “unauthorized and unlawful accounting practices” while employed at ACAC, including using company funds to pay for personal bills. At his deposition, Witmer admitted that he decided to “run [certain repair costs for his son’s car] through the company” in March 2000. He asserted that David approved these charges and that he planned to pay the company back for the expenses at the end of the year. Witmer, however, never paid the company back, and David testified that he did not know about or approve this use of company funds.

“ ‘[Corporate officers and directors have a fiduciary relationship to the corporation and its shareholders and must act in good faith.’ ” This duty of good faith prohibits a fiduciary “ ‘from appropriating for himself the assets and property of the corporation.’ ” ACAC presented evidence that Witmer, a corporate officer and director, used corporate funds without authorization to pay personal bills. This evidence raises a question of fact as to whether Witmer breached a fiduciary duty owed to ACAC. Accordingly, the trial court erred in granting Witmer summary judgment on this claim.

Judgment affirmed in part and reversed in part in Case No. A02A0077. Judgment affirmed in Case No. A02A0716. Pope, P. J., and Barnes, J., concur.

Gambrell & Stolz, Gary A. Barnes, Nancy E. Gordon, Decker & Hallman, Robert D. Feagin, Webb, Lindsey, Collins, Jones & Wade, James H. Webb, Jr., for appellee.

       Witmer also alleged claims for specific performance, tortious interference with contractual relations, and negligent infliction of emotional distress. Those claims, however, are not at issue in these appeals, and it appears that Witmer withdrew his specific performance and emotional distress claims below.

       Witmer also moved for summary judgment on two other counterclaims that are not at issue in these appeals.

       For ease of discussion, we address these appeals in reverse order.

         See Burns v. Dees, 252 Ga. App. 598, 599 (557 SE2d 32) (2001).

       See id.

       (Citation omitted.) Id. at 601-602.

       Id. at 602.

        Sanders v. Commercial Cas. Ins. Co., 226 Ga. App. 119, 121 (1) (485 SE2d 264) (1997).

       236 Ga. 694, 695 (225 SE2d 43) (1976).

        Burns, supra at 604.

       See id. at 604-605; cf. Pacrim Assoc. v. Turner Home Entertainment, 235 Ga. App. 761, 764-765 (1) (510 SE2d 52) (1998) (verbal agreement sufficient for court to determine terms and conditions on which parties intended to bind themselves).

        Sanders, supra at 121.

       See Burns, supra at 602; Lemming v. Morgan, 228 Ga. App. 763, 765 (1) (492 SE2d 742) (1997); Jackson v. Williams, 209 Ga. App. 640, 643 (1) (434 SE2d 98) (1993).

       See Burns, supra at 603-604; Lemming, supra; Jackson, supra.

       See Sanders, supra.

       See Burns, supra at 599.

       (Emphasis supplied.)

       (Emphasis supplied.)

       (Punctuation omitted.) Pfeiffer v. Dept. of Transp., 250 Ga. App. 643, 647 (3) (551 SE2d 58) (2001).

       See Assn. Svcs. v. Smith, 249 Ga. App. 629, 632 (1) (549 SE2d 454) (2001); see also Boggs v. Madison County, 240 Ga. App. 849, 852 (524 SE2d 252) (1999) (“ ‘An appellant cannot travel on one ground below, find the wind blowing in another direction, change tack, and head elsewhere on appeal.’ ”).

       269 Ga. 616 (501 SE2d 497) (1998).

       Id. at 618 (1).

        Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

       See Pfeiffer, supra.

        Paul v. Destito, 250 Ga. App. 631, 635 (1) (550 SE2d 739) (2001).

        GLW Intl. Corp. v. Yao, 243 Ga. App. 38, 42 (3) (c) (532 SE2d 151) (2000).

       See id.

       On appeal and below, ACAC asserted that Witmer also breached his fiduciary duties to the corporation in other ways. Because we have determined that factual questions remain as to whether Witmer improperly used corporate funds to pay personal expenses, rendering summary judgment on ACAC’s fiduciary duty claim inappropriate, we need not reach ACAC’s other fiduciary duty arguments. See Jackson v. Ford, 252 Ga. App. 304, 311 (2) (b) (555 SE2d 143) (2001).


author: Smith, Presiding Judge.

text:
    A02A0008.
    BOONE v. THE STATE.
    (568 SE2d 91)
   Smith, Presiding Judge.

Walter Lee Boone, Jr. was charged by accusation with driving under the influence, impeding the traffic flow, and driving while his license was suspended. Boone was tried in the City Court of Atlanta where a jury acquitted him of the first two charges but determined that he was guilty of driving with a suspended license. The trial court imposed a twelve-month sentence but probated all but ten days of confinement and required Boone to pay $1,203. Following the denial of his motion for new trial, Boone filed this pro se appeal. Boone contends the trial court erred in denying his motion to suppress, motion for new trial, and motion for directed verdict. He claims that he did not receive notice or a hearing concerning the license suspension. He argues that the trial court failed to charge the jury about notice of suspension and asserts that his trial counsel rendered ineffective assistance. Last, he contends that he was subjected to multiple punishments for the same crime. Because we find no merit in any of these contentions, we affirm.

When viewed in the light most favorable to the verdict, the evidence shows that Officer Adam M. Wright noticed that a car had stopped in its lane of travel about 20 yards short of an intersection. The driver, later determined to be Boone, stopped to talk with someone who eventually got in the car. The traffic light completed two full cycles before Boone’s car advanced. Traffic traveling in the same direction was forced to merge into one lane to go around Boone’s car. After Boone finally proceeded through the light, Officer Wright initiated a traffic stop. Boone was unable to produce his driver’s license or proof of insurance. Instead, with some reluctance, Boone provided his name and date of birth to Wright. Using that information, Wright learned that Boone’s license was suspended. Noting Boone’s bloodshot eyes, muffled speech, and his fumbling with a wallet, and detecting “a strong odor of alcoholic beverage upon his breath,” Wright suspected Boone might be under the influence of alcohol. Wright asked Boone to perform some field sobriety tests. Boone, who had been arrested seven months earlier, on February 4, 2000, and charged with DUI, declined, saying, “I’m not going to take these tests because I know the drill; you’re going to take me down anyway.” Boone refused all testing and was arrested.

. After a hearing, the trial court determined that Officer Wright’s actions were not arbitrary or harassing. Noting that the officer probably had a responsibility to conduct a traffic stop, the trial court found that he acted reasonably in doing so. The trial court also determined that the State satisfied the criteria for offering similar transaction evidence and agreed to allow evidence about two prior arrests of Boone for DUI.

One similar occurrence took place on February 4, 2000. On that occasion, Lieutenant Michael Nemard watched a car go up and over a concrete lane partition that flattened a tire, and he investigated immediately. Boone was the driver of the car. Noticing obvious signs of intoxication, Nemard summoned assistance to conduct field sobriety testing of Boone. The test results led to Boone’s arrest for DUI. This incident from February 4, 2000, resulted in a one-year suspension of Boone’s license. A copy of a report of Boone’s driving history, from which that DUI charge was redacted, was admitted in evidence. Investigator K. D. Daniels testified that Boone had been served personally with notice of the suspension of his driver’s license on February 4, 2000. According to Exhibit 2, the length of the suspension was one year. Daniels testified that the report did not reflect a reinstatement date.

The other similar incident occurred in September 1999, a year before the events here. After committing several traffic violations, Boone was stopped. When Boone failed field sobriety testing, the responding officer arrested Boone for driving under the influence. Because Boone was acquitted of DUI in the case now before us, the additional details of the September 1999 incident are not relevant. In this case, no evidence showed that Boone’s license was reinstated subsequent to its suspension in February 2000, and the jury convicted Boone of driving while his license was suspended.

1. Boone contends that the trial court erred in failing to grant his motion to suppress, motion for new trial, and/or motion for directed verdict. Boone, however, has failed to address the latter two motions in his brief, so they are deemed abandoned under Court of Appeals Rule 27 (c) (2). As to the motion to suppress, Boone alleges that “the officer’s motives were not forthright and that his actions were unreasonable and harassing which is proved by his overall conduct.” He argues that the officer “obviously totally abused the power entrusted in him” and acted unreasonably in the circumstances relating to the stop.

When reviewing a trial court’s decision on a motion to suppress, we construe the evidence most favorably toward upholding the court’s findings and judgment. Stewart v. State, 236 Ga. App. 888 (513 SE2d 778) (1999). Absent an abuse of discretion, the trial court’s order on a motion to suppress will not be disturbed. Hatcher v. State, 219 Ga. App. 82, 84 (464 SE2d 236) (1995). As a general rule, “[a] police officer who has specific, articulable facts that give rise to a reasonable suspicion of criminal conduct may stop an automobile to investigate — a founded suspicion is all that is necessary, some basis from which the court can determine that the stop was not arbitrary or harassing.” (Footnote omitted.) Tomlin v. State, 242 Ga. App. 405, 406-407 (530 SE2d 27) (2000). Here, the arresting officer testified that he saw Boone driving a car that was impeding the flow of traffic and that he watched cars being forced “to merge into the left-hand lane to proceed past him.” Boone’s subsequent acquittal for that traffic offense has no bearing on whether the officer had reasonable suspicion of unlawful conduct at the time that he instituted the traffic stop. See Hicks v. State, 221 Ga. App. 735, 739 (3) (472 SE2d 474) (1996). The trial court did not abuse its discretion in denying the motion to suppress. See Hatcher, supra.

2. Boone asserts that “the trial court erred in failing to prove that the appellant received actual or legal notice of a suspension.” Apparently, Boone means to say that the State failed to prove that he received notice of the suspension of his license.

To establish the offense of driving with a suspended license, the State must show: (1) that the defendant was driving, (2) that his license was suspended, and (3) that the defendant had received actual or legal notice of the suspension. See OCGA § 40-5-121; Arnold v. State, 189 Ga. App. 900 (1) (377 SE2d 918) (1989). Here, those three requirements were met. When the law enforcement officer stopped the car, Boone was driving it. At the time of the traffic stop, Boone’s license was under suspension. An investigator testified that Boone was personally served with notice of that suspension. This evidence was sufficient to sustain Boone’s conviction for driving with a suspended license. Id.

3. Boone contends the trial court erred in refusing to give his requested charge on notice of suspension. Boone requested this charge: “One of the elements of driving while one’s license is suspended is notice to the defendant of action of suspension of the license. Absent proof of actual legal notice to the defendant, a conviction for that offense cannot be sustained.” Boone theorizes that “the jury would have rendered a verdict of not guilty had they been properly charged and if they were correctly informed of the law and the procedure outlined in OCGA § 40-5-67.1.”

“In order for the trial court’s failure to give a requested instruction to constitute reversible error, the refused request must be a correct statement of law that is pertinent and material to an issue in the case and not substantially covered by the charge actually given.” (Citations and punctuation omitted.) Carter v. State, 263 Ga. 401, 403 (4) (435 SE2d 42) (1993). Here, the trial court’s charge was full and fair and substantially covered all the legal principles relevant to the determination of guilt. Having reviewed the jury instructions as a whole, we find no error. See Buckalew v. State, 249 Ga. App. 134, 138 (4) (547 SE2d 355) (2001).

Decided June 20, 2002

Reconsideration denied July 1, 2002

4. Although Boone complains that he did not receive an administrative hearing for his suspended license, we cannot address issues raised for the first time on appeal. See McDaniel v. State, 221 Ga. App. 43, 46-47 (1) (470 SE2d 719) (1996). “ £[T]his is a court for correction of errors of law committed by the trial court where proper exception is taken.’ ” Colley v. State, 225 Ga. App. 198, 201 (3) (483 SE2d 355) (1997). Whether an administrative hearing took place subsequent to Boone’s earlier arrest “would have no bearing on whether or not he was driving under the influence of alcohol,” impeding the traffic flow, or driving with a suspended license in this case. Wyatt v. State, 179 Ga. App. 327, 328 (1) (346 SE2d 387) (1986).

5. Boone claims that his trial counsel was ineffective, but he failed to raise the issue of ineffectiveness in his motion for new trial. By not raising the issue at the earliest practicable moment, Boone waived appeal of the issue. Howard v. State, 233 Ga. App. 724, 730 (7) (505 SE2d 768) (1998).

6. Boone contends that multiple punishments are being imposed for the same offense. He claims that the administrative license suspension resulted from a February 4, 2000 DUI charge that had not been adjudicated. He asserts that “the monumental and overwhelm - ing error here is that the appellant is charged with driving on a suspended license when it has not been determined whether the license should have been suspended initially.”

Double jeopardy protects against a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. Locklear v. State, 244 Ga. App. 10, 11 (534 SE2d 575) (2000). The suspension of Boone’s driver’s license was an administrative procedure and did not constitute punishment or prosecution. Miles v. Kemp, 233 Ga. App. 850, 852 (506 SE2d 141) (1998). Boone suffered no harm that resulted from the “prosecutorial power of the State.” Locklear, supra at 12. Because a driver’s license is a privilege and not an absolute right, that privilege may be revoked or suspended for cause. Nolen v. State, 218 Ga. App. 819, 822 (463 SE2d 504) (1995). Double jeopardy concerns did not arise. Id. at 823.

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

Walter L. Boone, Jr., pro se.

Joseph J. Drolet, Solicitor-General, Richard R. Burris, Assistant Solicitor-General, for appellee.


text:
    A02A0434.
    WAGA-TV, INC. et al. v. YANG.
    (568 SE2d 58)
   Smith, Presiding Judge.

We granted the employer’s application for discretionary appeal in this workers’ compensation case to consider the superior court’s application of Smith v. Lockheed-Ga. Co., 185 Ga. App. 869 (366 SE2d 178) (1988). Here, the superior court relied upon Smith to reverse the finding of the administrative law judge and the Appellate Division of the State Board of Workers’ Compensation that James Yang had undergone a change of condition from total disability to temporary partial disability. Because we conclude that Smith does not apply to the facts presented here, we reverse.

Yang was a cameraman for WAGA-TV. In December 1986, he was knocked down by two high school football players while filming a game. This incident damaged Yang’s hip replacement dating from 1974 and resulted in surgery to install a new hip prosthesis. Yang returned to work at WAGA on a limited basis while receiving temporary partial disability benefits. In 1991, Yang’s position at WAGA was eliminated, and he was laid off along with several other people. At that time, the employer voluntarily increased Yang’s payments to temporary total disability.

As soon as he was laid off from WAGA, Yang began work for his own production company, Yang Communications, while continuing to receive temporary total disability payments. Yang Communications is wholly owned by Yang. He is its president, and his wife is the only other person who has worked for the corporation.

It appears undisputed that Yang has been working very actively on behalf of his corporation. While his wife has been involved in keeping the books, Yang has performed all other work for Yang Communications, including videotaping, photography, and post-production work for various films and commercials. He has traveled all over the world, including Taiwan, Panama, Canada, and Guatemala, on the corporation’s business. It is undisputed that this work has generated substantial gross revenues, with customers paying up to $15,000 for a single project. Yang also sold subscriptions and wrote stories for a magazine, Pacific Times, in amounts ranging from $500 to $1,000 per month, and sold advertising in the magazine. The employer’s expert testified that over $526,000 passed through Yang’s personal accounts between 1991 and the hearing in 1998. Yang’s testimony was contradictory regarding whether he or the corporation made money in 1993. At the hearing, however, he denied that the corporation made money, contending that he was still putting money back into the business and borrowing money to “make it grow.” WAGA points out that it offered vocational rehabilitation assistance to Yang in 1993, but Yang objected and refused assistance because, as Yang testified, “I had the company going on strongly.”

This litigation began when WAGA and its insurer, Travelers Indemnity, filed a petition alleging a change in Yang’s condition for the better. After a hearing, the ALJ issued findings of fact and conclusions of law. He found that the original 1986 accident was a compensable on-the-job accident and injury. After making findings of fact regarding Yang’s work and earnings with his corporation, the ALJ concluded that Yang was not totally disabled and had in fact been working since 1991. However, he also concluded that Yang had not received any actual income from the corporation but was going “into the hole” in order to keep it going. The ALJ found that Yang was entitled to temporary partial rather than total disability benefits because he had “returned to work.” But because of the “extenuating circumstances” presented by the facts, the ALJ did not order Yang to repay the difference between the partial and total benefit payments. Instead, the ALJ designated that amount as a credit for any disability benefits that might be payable in the future. The appellate division accepted the ALJ’s findings of fact, making only two apparently minor clerical amendments.

The superior court, however, concluded on the basis of Smith, supra, that Yang’s failure to receive any net income demanded a finding of no change in his condition from total disability. The superior court reasoned that operating an unprofitable business did not constitute a change of condition for the better. It therefore found that Yang remained totally disabled and was entitled to continue to receive benefits for total disability and reversed the appellate division’s holding that Yang was no longer totally disabled, affirming the decision otherwise. This appeal followed.

“[T]he term ‘change in condition’ means a change in the wage-earning capacity, physical condition, or status of an employee . . . which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee . . . was last established by award or otherwise.” OCGA § 34-9-104 (a) (1). This language is a substantial change from the earlier version of this Code section, Ga. Code Ann. § 114-709 (Ga. L. 1968, p. 3, § 5), which defined a “change in condition” as “solely an economic change in condition occasioned by the employee’s return or ability to return to work for the same or any other employer; or inability to work or continue to work for the same or any other employer, which inability is proximately caused by the accidental injury.” See Maloney v. Gordon County Farms, 265 Ga. 825, 826-827 (462 SE2d 606) (1995). It is presumed that, in changing the language of this Code section to delete this language, the legislature intended to remove this provision and to change the effect of the statute. See Ga. Mental Health Institute v. Brady, 263 Ga. 591, 592-593 (2) (a) (436 SE2d 219) (1993). The legislature therefore deliberately and explicitly expanded the definition of “change of condition” to include wage-earning capacity.

“Temporary total disability” is compensated as provided in OCGA § 34-9-261. “Temporary partial disability” is provided for in OCGA § 34-9-262, “where the disability to work resulting from the injury is partial in character but temporary in quality.” The cases dealing with temporary partial disability recognize that this condition is judged by the employee’s capacity for work, as provided in the statute itself, not his actual working status: “The employer is not liable for wage loss when there is no diminution of earning capacity.” Wal-Mart Stores v. Harris, 234 Ga. App. 401, 402 (506 SE2d 908) (1998) (refusal of employment governed by OCGA § 34-9-240 (a)).

According to the statutory scheme, the ability to earn — not the propensity to earn — controls the issue presented in this appeal. Under the statutory language the legislature plainly intended a claimant’s benefits to be reduced in these circumstances to an amount which [he] is “able” to earn. It is not reasonable to conclude the claimant is able to earn nothing because [he] is earning nothing.

Mountainside Med. Center v. Tanner, 225 Ga. App. 722, 723 (484 SE2d 706) (1997).

The decision in Smith, supra, is not inconsistent with the holdings in Wal-Mart and Mountainside. Rather, the superior court misapplied Smith here because the facts presented there differ substantially from those surrounding Yang’s injury. Smith injured his knee in 1982, and his employer paid benefits for temporary total disability. In 1985 he operated “a ceramics shop from which he had received revenues but no actual net income.” Smith, supra, 185 Ga. App. at 869. In 1986, his employer sought a change in condition hearing. The ALJ found that, retroactive to the beginning of his ceramics business, Smith was entitled to temporary partial disability payments rather than temporary total disability payments. Id. The appellate division affirmed, but the superior court reversed, holding that because the “ceramic [s] business had produced ‘gross revenues greater than his average weekly wage at the time of the subject employment injury,’ ” Smith had undergone a change from temporary total disability to no disability. Id. This court reversed the superior court, holding that “the board acted properly in calculating the appellant’s entitlement to further disability benefits on the basis of his net rather than his gross business earnings.” Id. at 870.

Smith therefore addressed the improper use of gross earnings to disprove disability entirely, rather than the use of net earnings to argue total rather than partial disability, as Yang attempts to do here. The board’s holding that Smith was partially rather than totally disabled was never challenged, because he was actually working although not producing income. His net income was used to calculate the amount of his disability payments, not the nature and extent of his disability.

Here, Yang’s “wage-earning capacity” within the meaning of OCGA § 34-9-104 (a) (1) clearly has changed. Like Smith, he is actually working although the corporation for which he works is not presently producing income, and like Smith, his disability therefore is partial rather than total. Yang’s choice to pursue a start-up venture of his own company and forgo personal income in order to reinvest his earnings into the company and his refusal of rehabilitation assistance in anticipation of his company’s success do not alter the fact that his capacity for remunerative employment has been substantially demonstrated by his extensive travel, work, and other activities on behalf of his company. These decisions do, however, affect the calculation of his benefits and whether he underwent a change of condition for the better, as the ALJ correctly concluded.

The superior court is substantially limited in its power to overturn the decision of the board. OCGA § 34-9-105 (c) (l)-(5). “Absent a legal error, review by a superior court is confined to a determination of whether any evidence supported the decision of the appellate division.” (Footnote omitted.) McCarty v. Delta Pride, 247 Ga. App. 734, 736 (1) (a) (545 SE2d 117) (2001). The board’s decision that Yang’s condition had changed from total to partial disability is supported by some evidence, and it therefore should have been affirmed by the superior court.

Decided May 31, 2002 —

Reconsideration dismissed July 1, 2002 and reconsideration denied November 14, 2002

Hamilton, Westby, Antonowich & Anderson, Andrew J. Hamilton, Eric S. Proser, for appellants.

Clements & Sweet, John E Sweet, for appellee.

Judgment reversed.

Eldridge and Ellington, JJ, concur.

       As Yang acknowledges, his date of accident precedes the 1992 amendments to the Workers’ Compensation Act regarding automatic conversion of benefits to temporary partial disability and the 400-week maximum for temporary total disability benefits, and absent appellants’ petition he “would still be on temporary total disability benefits with no maximum number of weeks.”

       This former Code section was stricken in its entirety and the current language substituted by Ga. L. 1978, pp. 2220, 2233, § 13. While the Code section subsequently has been modified and reenacted, the operative definition remains essentially the same as that enacted in 1978.

       No indication appears in Smith that the ceramics shop was incorporated; the opinion suggests instead that Smith directly received revenues but no net income from operating the business. The involvement of a corporation in the case before us substantially changes the meaning of both revenue and income; as the ALJ observed, “there is some evidence of some benefit flowing to Mr. Yang, as at times he had living expenses paid by the corporation.” But we need not reach that issue, as Smith is inapplicable here for other reasons.