author: Beasley, Judge.

text:
    A96A2390.
    STARGATE SOFTWARE INTERNATIONAL, INC. v. RUMPH et al. ORION CEM, INC. et al. v. STARGATE SOFTWARE INTERNATIONAL, INC.
    A96A2391.
    (482 SE2d 498)
   Beasley, Judge.

Stargate sued Orion, its President Rumph, and former Stargate employees McDougall, Igwebuike, Jonkers, and Haberle, alleging nine specific counts: tortious interference with Stargate’s employment contracts (naming Orion and Rumph as liable on this count); tortious interference with Stargate’s contracts with Rayonier (Orion and Rumph); breach of employment contracts (McDougall, Igwebuike, Jonkers, and Haberle); violations of the Georgia Trade Secrets Act (Orion, Rumph, McDougall, Igwebuike, and Jonkers); conversion (Orion, Rumph, and McDougall); computer theft (Orion, Rumph, and McDougall); computer trespass (Orion, Rumph, and McDougall); RICO (Orion, Rumph, and McDougall); fraud (Orion and Rumph). Stargate also sought injunctive relief (Orion) and attorney fees under OCGA § 13-6-11 (all defendants).

The court granted Orion and Rumph summary judgment on the counts of tortious interference with Stargate’s employment contracts, violations of the Georgia Trade Secrets Act, RICO, and attorney fees. It also granted Orion summary judgment as to the claim for injunctive relief, but Stargate has not appealed that ruling. The court denied Orion and Rumph summary judgment on the counts of tortious interference with Stargate’s contracts with Rayonier, conversion, computer theft and trespass, and fraud. In Case No. A96A2390, Stargate appeals the grant of partial summary judgment to Orion and Rumph. In Case No. A96A2391, Orion and Rumph appeal the denial of summary judgment on the remaining grounds. The motion for summary judgment dealt only with Orion and Rumph. No other defendants are party to this appeal.

The evidence and all inferences and conclusions arising therefrom must be construed most favorably toward Stargate, the party opposing the motion. Garmon v. Warehouse Groceries &c., 207 Ga. App. 89, 91 (1) (427 SE2d 308) (1993).

Stargate contracted with paper producer Rayonier on a number of projects to develop software to control industrial operations. In the course of performance, Stargate ran into difficulties, the nature of which is disputed but agreed by all to be at least somewhat financial. Rayonier was Stargate’s only customer. At Rayonier’s request, Star-gate discussed with Orion, another service provider with which Rayonier had an ongoing relationship, the possibility of Stargate receiving financial assistance from Orion, but no action was taken. Rayonier then gave Stargate an ultimatum: either allow Orion to provide assistance on the project such that Stargate worked through Orion, or face cessation of payments by Rayonier. Rayonier would not allow Stargate to continue the project alone. In mid-December 1994 Smith, Stargate’s Chief Executive Officer, began negotiating with Rumph, Orion’s President, for the formation of a joint venture to complete the project.

Stargate and Orion never executed a joint venture agreement. During a meeting on December 28, Rumph produced a handwritten, unsigned “eight-point plan” that indicated the focus of discussions to that date. One of those points was that Orion would hire Stargate’s employees for continuation of the project. Smith and Rumph met again the next day, and Smith was to draft language for a proposed agreement.

Also on December 29, Orion sent letters to Rayonier proposing its completion of the projects with no mention of Stargate and without disclosing this to Smith. During the period Stargate and Orion were negotiating, Orion met with Stargate employee McDougall, also without disclosing this to Smith. At some point in the last week of December, Smith suggested to Stargate’s employees that they become Orion employees and continue working on the Rayonier project at Stargate’s offices.

At Smith and Rumph’s next meeting on January 5, 1995, Star-gate presented a draft “system implementation agreement” that Orion would not accept in that form. Rumph and Smith did agree on separate transactions for Orion to rent Stargate’s Atlanta office for the month of January and for Orion to purchase certain computer equipment that had been used in Stargate’s programming efforts. Stargate owned other computers Orion did not buy.

After the meeting of January 5, Smith left the Atlanta area, returning to Stargate’s offices January 20. He discovered that all computers, not merely those sold to Orion, had been removed from the offices along with certain records and reported this as a theft to the police. Smith averred that at least one computer that had not been sold to Orion, that used by former employee Jonkers who was hired by Orion, had not been recovered or returned. Jonkers testified he took a computer from Stargate when he began working for Orion and continued to use it in Orion’s employ. There was also evidence Igwebuike had taken a Stargate machine in his capacity as an Orion employee to be able to work on the projects.

Case No. A96A2390

1. Stargate contends the court erred in granting summary judgment on the claim of tortious interference with employment contracts. The court ruled Orion and Rumph could not be liable because Orion was not a stranger to those contracts due to Stargate’s encouraging its employees to work for Orion.

“ ‘To establish a cause of action for tortious interference with existing and prospective contractual relations, a claimant must show that the defendant (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury. . . . The term malicious or maliciously means any unauthorized interference or any interference without justification or excuse.’ ” (Citation omitted.) Green v. Johnston Realty, 212 Ga. App. 656, 659-660 (4) (442 SE2d 843) (1994).

Stargate’s claim was based on the theory that Orion and Rumph induced Stargate employees to breach their contracts with Stargate. Smith testified he told Stargate employees to work for Orion on the project only because he understood an agreement would eventually be reached between Stargate and Orion. Smith’s expectation in this regard has no effect. As he told Stargate’s employees they should become Orion employees, any interference with their status as Star-gate employees by Orion or Rumph was privileged and, as a matter of law, proper. Summary judgment as to this claim was correct.

2. Stargate contends the court erred in granting Orion and Rumph summary judgment on its claim of misappropriation of trade secrets. OCGA § 10-1-763 (a). The term “trade secret” can apply to data or a program, OCGA § 10-1-761 (4), both of which Stargate claims were its trade secrets. A trade secret must also be “the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” OCGA § 10-1-761 (4) (B). Stargate asserts the software and documents it had prepared for the Rayonier projects were trade secrets and that Orion and Rumph misappropriated them through the work of former Stargate employees Orion hired and by taking computer software and program documentation.

Orion and Rumph respond that Stargate’s claims to possess trade secrets are not cognizable under the statute because Stargate did not take reasonable efforts to maintain the confidentiality of the information allegedly misappropriated. See Smith v. Mid-State Nurses, 261 Ga. 208, 209 (403 SE2d 789) (1991). Stargate contends it had employees sign agreements that included confidentiality provisions, but it put only its agreement with McDougall in the record to the trial court; the other employees signed different form agreements. Stargate argues these agreements, together with other measures such as password protection on its computer network, were reasonable efforts to protect confidentiality.

Even with such agreements, the efforts were not reasonable. Requiring employees to sign confidentiality agreements may, in some circumstances, be “sufficient to constitute a reasonable step to maintain the secrecy of information alleged to have been misappropriated,” Equifax Svcs. v. Examination Mgmt. Svcs., 216 Ga. App. 35, 40 (2) (453 SE2d 488) (1994), but that does not obtain here. Stargate did not simply suggest it's employees work for Orion and see them go to a competitor, it told them to work for Orion on the continuing Rayonier projects. Transferring the employees with such a charge necessarily gave Orion access to trade secrets. When telling its former employees to work for Orion, Stargate gave no instructions as to confidentiality of documentation on the projects. As a matter of law, given the circumstances, Stargate’s efforts were not reasonable to maintain secrecy of any trade secrets concerning the Rayonier projects.

Stargate argues that even if Orion and Rumph properly acquired trade secrets from Stargate’s employees, they still misappropriated secrets by disclosing computer source code to Rayonier and IBM, another Rayonier vendor. Stargate contends that this was done without its permission and with knowledge Stargate considered source code a trade secret, and that Orion and Rumph acquired the source code in circumstances giving rise to a duty to maintain secrecy. See OCGA § 10-1-761 (2) (B) (ii) (II). There is evidence Orion and Rumph knew that Stargate’s intention was to deliver only object code to Rayonier, not source code, but Stargate points to no evidence that Orion or Rumph actually provided source code to Rayonier or any other person. There is evidence that portions of the source code were provided to IBM, but that occurred in the fall of 1994, before Orion’s involvement. This argument fails.

3. Stargate contends its RICO claim, should have survived summary judgment because there was evidence Orion and Rumph committed two or more predicate acts of conversion, computer theft, or computer trespass. It argues these were committed by taking computers, data, and records, and then, at a separate time, using and altering them to Stargate’s injury.

The fact that elements of two crimes may have been present at two separate points in time does not create two predicate acts out of what is in reality a single transaction. Brown v. Freedman, 222 Ga. App. 213, 217-218 (3) (474 SE2d 73) (1996), does not aid Stargate. In that case there were two separate and distinct acts: improper accounting on a note and then, after a foreclosure, conversion of personal property unrelated to the note. They were not one transaction but rather joined by the common link of a single foreclosure. Star-gate’s allegations of taking and wrongful use of computer equipment and records is similar to the single transaction of Raines v. State, 219 Ga. App. 893, 894 (1) (467 SE2d 217) (1996) (sale of timber land based on false cruising reports and filing a false deed on the same transaction), and to the extended real estate scheme of Cobb v. Kennon Realty Svcs., 191 Ga. App. 740 (382 SE2d 697) (1989). There being only one transaction, the court did not err in granting summary judgment on the RICO claim.

4. Stargate enumerates as error the grant of summary judgment on Stargate’s claim for attorney fees under OCGA § 13-6-11. The court stated there was a bona fide controversy and an award was therefore not justified. Stargate contends an award can nonetheless be made.'

“ ‘ “A plaintiff may recover for bad faith concerning the transactions and dealings out of which the cause of action arose. OCGA § 13-6-11; (cits.). A bona fide controversy within the contemplation of the code section pertains solely to the issue of stubborn litigiousness or causing the plaintiff unnecessary trouble and expense. Despite the existence of a bona fide controversy as to liability, a jury may find that defendant ‘acted in the most atrocious bad faith in his dealing with the plaintiff.’ (Cits.)” [Cit.]’ [Cit.]” Southern Co. v. Hamburg, 220 Ga. App. 834, 841 (4) (470 SE2d 467) (1996). The question is whether there was “bad faith concerning the transactions and dealings out of which the cause of action arose.” Id.

A jury could decide that Orion and Rumph acted with bad faith. “ ‘It is well established as the law of this state that every intentional tort invokes a species of bad faith and entitles a person so wronged to recover the expenses of litigation including attorney fees.’ [Cit.] Moreover, bad faith is a question for the jury to be determined from consideration of the facts and circumstances in the case. [Cit.]” Hayden v. Sigari, 220 Ga. App. 6, 12 (10) (467 SE2d 590) (1996). The court denied summary judgment as to Stargate’s claims of conversion, computer theft, and computer trespass. As these intentional torts remained for the jury’s consideration, the claim for attorney fees rooted in bad faith concerning those actions should have also been left for the jury. It was premature, and thus error, to grant summary judgment on this issue altogether.

Case No. A96A2391

5. Orion and Rumph enumerate as error the denial of summary judgment on Stargate’s claim of tortious interference with its contract with Rayonier. As noted in Division 1, two elements of a claim of tortious interference with contractual relations are that the defendant “ ‘(1) acted improperly and without privilege, [and] (2) purposely and with malice with the intent to injure. . . . The term malicious or maliciously means any unauthorized interference or any interference without justification or excuse.’ ” (Citation omitted.) Green, supra at 659-660 (4). Orion and Rumph argue the evidence does not show any such malicious or improper action, only the natural course of events once Stargate began cooperating with Orion on the future course of the Rayonier project, at Rayonier’s insistence.

Although Orion became involved in Stargate’s business relationship with Rayonier at Rayonier’s insistence, there is no evidence that any privilege granted thereby included a right to supplant Stargate as sole provider of the programming services. The only evidence is that any privilege Orion was given to participate in the contract between Stargate and Rayonier was to do so as a joint venturer. We cannot say as a matter of law that the privilege extended to a complete supplanting of Stargate’s role in the projects. Nor did the specific privilege Stargate gave to “interfere” in the employment contracts, see Division 1, extend to supplanting Stargate. As there was no total privilege, a jury could find Orion, and its president Rumph, acted “without justification or excuse,” id., and therefore with malice, in arranging to step in for Stargate as the sole vendor on the Rayonier project while still engaged in negotiations with Stargate on the formation of a joint venture.

6. Next is whether the court erred in denying summary judgment on Stargate’s computer theft and trespass claims. Stargate alleged that Orion and Rumph committed computer theft by taking and using Stargate’s computers with the intention of taking, appropriating, obtaining, and converting Stargate property. OCGA § 16-9-93 (a), (g). It also alleged they committed computer trespass by using Stargate computers with the intention of interrupting, damaging, or destroying Stargate’s computer programs or data. OCGA § 16-9-93 (b), (g). Both claims relate to computers not sold to Orion but nonetheless taken from the Stargate offices after January 5. There was evidence that those computers returned no longer had retrievable data and that at least one computer was not returned.

Orion and Rumph contend summary judgment was appropriate because for each tort to lie, the computer use must be done “with knowledge that such use is without authority.” OCGA § 16-9-93 (a), (b). While there is evidence that Stargate authorized its employees to work for Orion, there is also evidence Stargate did not authorize Orion to access computers it did not purchase. Orion and Rumph argue that under the circumstances of Orion’s hiring Stargate’s employees it was reasonable to believe it had authority to use any necessary computers. But Orion had negotiated a separate agreement for the purchase of specific computers and then used and removed several other computers not covered by the sale agreement. We cannot conclude as a matter of law that Orion and Rumph’s use of the nonpurchased computers was reasonable. A jury must decide whether Orion and Rumph had knowledge that such use was without authority.

7. The penultimate question is whether the court erred in denying summary judgment to Orion and Rumph on the claim for conversion of personalty. There is evidence that not all personal property taken from Stargate offices has been returned. Appellants urge Star-gate must make a demand for the return of such personal property before a conversion action can lie because it allowed use of its computers wherever Orion might choose, making the resulting use “authorized,” and that no demand has been made. See Kornegay v. Thompson, 157 Ga. App. 558, 559 (1) (278 SE2d 140) (1981). As held in Division 6, it cannot be said as a matter of law that Orion and Rumph were authorized to use, or remove, Stargate computers.

8. Finally, Orion and Rumph enumerate as error the court’s denial of summary judgment on Stargate’s claim for fraud. Stargate contends that Orion and Rumph’s failure to disclose facts concerning communications with Rayonier and McDougall during the negotiations between Stargate and Orion was fraudulent. “An obligation to disclose must exist before a party may be held liable for fraud based upon the concealment of material facts. [Cit.]” William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 631 (1) (a) (466 SE2d 872) (1995). Stargate contends that an obligation to reveal these material facts arose from a requirement that Orion negotiate in good faith with Stargate.

There is an implied duty of good faith and fair dealing which accompanies every contract and “requires both parties to a contract to perform their promises and provide such cooperation as is required for the other party’s performance. [Cit.]” Ihesiaba v. Pelletier, 214 Ga. App. 721, 724 (2) (448 SE2d 920) (1994). That obligation does not apply where, as here, there is no contract and therefore no implied agreement that the parties will cooperate with one another. Stargate does not cite any authority for the proposition that there is an obligation to reveal matters material to a negotiation that never results in a contract, and we find none.

Further, any positive representation Orion or Rumph made concerning an expectation of Orion entering a joint venture agreement cannot serve as the basis for a fraud claim. “ ‘ “ ‘Misrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence. And where the representation consists of general commendations or mere expressions of opinion, hope, expectation and the like . . . the party to whom it is made is not justified in relying upon it and assuming it to be true; he is bound to make inquiry and examination for himself so as to ascertain the truth.’ (Cit.)” (Cits.)’ [Cit.]” (Emphasis omitted.) Condon v. Kunse, 208 Ga. App. 856, 857-858 (1) (432 SE2d 266) (1993). Stargate was not justified in relying upon any representation of Orion or Rumph’s hope and expectation to reach an agreement in the future. Orion and Rumph should have been granted summary judgment on this claim.

Decided February 26, 1997.

Gerry, Friend & Sapronov, William D. Friend, Mari Myer, for Stargate Software International, Inc.

Knapp & Street, Halsey G. Knapp, Jr., Lisa E. Chang, for Rumph and Orion Cem, Inc.

Judgments affirmed in part and reversed in part.

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

       The court ruled the evidence showed no contract between Stargate and Orion was ever formed, a ruling neither side enumerates as error.

       There is no suggestion that Rumph has any liability on any count except for actions he took in his role as Orion’s President.

       Orion and Rumph do not argue that Rayonier had a right under its contract with Star-gate to terminate Stargate as the vendor. None of the parties has arranged for any contract between Rayonier and Stargate to be made part of the record on appeal.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A96A2502.
    GUINN v. THE STATE.
    (482 SE2d 480)
   Ruffin, Judge.

Fred Glenn Guinn appeals from his conviction for driving under the influence of alcohol. For reasons which follow, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows the following. Between 11:30 and 11:50 p.m. on February 19, 1994, Officer Kiker spotted Guinn’s car traveling approximately 75-80 mph in a 55-mph speed zone. Kiker moved behind Guinn, who continued to travel 75-80 mph. As Kiker followed him, Guinn failed to stay in his lane, twice allowing the two left tires of his vehicle to move over the lane line. Kiker turned on his blue lights in an attempt to stop Guinn. Guinn did not stop, however, and approximately three-tenths of a mile later, Kiker also turned on his siren. According to Kiker, Guinn continued for approximately another mile before stopping. '

Kiker approached Guinn’s car and saw Guinn stumble towards oncoming traffic while attempting to exit the vehicle. As Kiker assisted Guinn back into the car, he detected a strong odor of alcohol about Guinn’s person and noted that “[h]e had bloodshot eyes, his face was flushed, and his speech was also slow.” Suspecting that Guinn was under the influence of alcohol, Kiker asked him to go to the rear of the car so that Kiker could administer various field sobriety tests. Guinn again exited the car unsteadily, and Kiker helped him to the rear of the vehicle. Before commencing the tests, Kiker asked Guinn whether he had any impairments or injuries to his legs or eyes. Guinn replied “no.”

Kiker first administered the horizontal gaze nystagmus test by asking Guinn to track the movement of an ink pen with only his eyes. Based on Guinn’s performance, Kiker believed that Guinn was under the influence of alcohol and that further field tests should be administered. Kiker next instructed Guinn on the walk-and-turn test, but Guinn was unable to keep his balance during the instructions. Kiker then asked Guinn to perform the one-leg stand test. Guinn could not complete that test or successfully perform the alphabet test. In addition, Guinn tested positive for alcohol on the alco-sensor. According to Kiker, Guinn also stated that he had his last alcoholic drink approximately three minutes before Kiker stopped him.

Based on Guinn’s appearance, performance on the field sobriety tests, and driving conduct, Kiker concluded that Guinn was under the influence of alcohol and was a less safe driver. Officer Clark, who reported to the scene and transported Guinn to the police station, similarly concluded that based on his contact with Guinn and Guinn’s demeanor and appearance, Guinn was under the influence of alcohol to the extent that he would be a less safe driver.

1. In his first enumeration of error, Guinn argues that the trial court erred in allowing the State to introduce evidence of prior convictions for DUI offenses in 1988 and 1989. We disagree.

(a) Guinn first claims that the State improperly offered this similar transaction evidence only to show his “general bad character.” “As a general rule, in a criminal trial evidence of other criminal acts by the defendant is inadmissible as it tends to place the defendant’s character into evidence. However, provided the State proves the defendant was the perpetrator of the prior act and there is sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter, testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct.” (Citations and punctuation omitted.) Blane v. State, 195 Ga. App. 504 (1) (393 SE2d 759) (1990). On appeal, Guinn does not dispute that the State proved he was the perpetrator of the prior acts.

At a similar transaction hearing held before trial, the State proffered certified copies of the prior convictions and outlined the following similarities between those offenses and this case. The prosecutor stated that the 1989 case involved speeding and, as in this case, the two prior offenses involved a failure to maintain lane. All three offenses occurred during the late night to early morning hours, and in each case Guinn could not keep his balance without assistance or complete the field sobriety tests. Furthermore, in each of the three cases Guinn admitted that he had been drinking alcohol.

The State further asserted that the prior transactions “go to show [Guinn’s] course of conduct and the bent of mind.” Drawing a connection between the two prior offenses and this case, the State argued that “the similar connection between these two is you have these two DUIs. You know the defendant was intoxicated, and you have the exact same manifestations in those prior DUIs tending toward his intoxication as you have in this case.” Agreeing, the trial court found that the probative value of the prior offenses outweighed their prejudicial effect and concluded that the State could introduce them “to show that the reason [Guinn] could not complete the tests was due to intoxication, as it has been on two previous occasions.”

We find no error in the trial court’s decision. Rather than injecting evidence of bad character, the prior convictions were admissible to show course of conduct and bent of mind in this case. As we recently determined, “[s]imilar transaction evidence can be introduced to prove bent of mind when there exists some logical connection between the similar transaction evidence and the charged offense so that the similar transaction evidence tends to establish the charged offense. [Cit.] Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the perpetrator has the bent of mind ‘to get behind the wheel of a vehicle when it’s less safe for him to do so.’ ” Fields v. State, 223 Ga. App. 569, 571 (2) (479 SE2d 393) (1996). “A prior act of driving while [under the influence] would, regardless of any slight variance of circumstances, be relevant to prove bent of mind or course of conduct.” Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992).

We reject Guinn’s further claim that the trial court erred in admitting the prior transactions because they occurred approximately five and six years before the instant offense. As we have previously found, “ ‘(w)here “similar transaction” evidence has been admissible otherwise, lapses of time of 11 years (Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985)) and of 19 years (Cooper v. State, 173 Ga. App. 254, 255 (325 SE2d 877) (1985)) have not demanded that the evidence was inadmissible.’ [Cit.]” Braddock v. State, 208 Ga. App. 843, 844 (2) (432 SE2d 264) (1993). We find no grounds for excluding this evidence based on a lapse of time.

The trial court properly concluded that the two prior offenses were logically connected to the instant offense and relevant to establish Guinn’s course of conduct and bent of mind in this case. Accordingly, the evidence was admissible. See Okross v. State, 210 Ga. App. 132, 133 (2) (435 SE2d 454) (1993).

(b) Guinn also argues that the State failed to timely and properly file and serve notice of its intent to use similar transaction evidence, as required by the Uniform Superior Court Rules.

Pursuant to Uniform Superior Court Rule (“USCR”) 31.1, notice of the State’s intention to present similar transaction evidence must be given and filed at least ten days before trial, unless the time is shortened or lengthened by the judge. Such notice “shall be in writing, served upon the defendant’s counsel, and shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice.” IJSCR 31.3 (B).

The record shows that the State served its notice of intent to present similar transaction evidence on November 28, 1994, and filed the notice on November 29, 1994. For both prior offenses, the notice indicated the date, charge, county, and witnesses involved. The State attached to this notice a copy of the 1989 traffic citation and Guinn’s corresponding guilty plea, as well as a copy of the traffic citation, accusation, and nolo contendere plea relating to the 1988 offense. Subsequently, on January 12, 1995, the State provided Guinn with addresses for two of the three witnesses listed in its initial notice and indicated that it was trying to locate the third witness. The trial of this case commenced on March 20, 1995.

We find that the State fully complied with USCR 31.3 well over ten days before trial. Accordingly, this argument has no merit.

2. In his second enumeration, Guinn argues that the trial court improperly admitted evidence of his positive alco-sensor reading without a proper foundation. We disagree.

In Ronskowsky v. State, 190 Ga. App. 147, 148 (2) (378 SE2d 185) (1989), we found that the State laid a proper foundation for introducing an alco-sensor test when “[p]rior to resting its case, [it] introduced into evidence a document certifying that the device at issue had been approved for use in Georgia by the GBI’s Division of Forensic Sciences.” As in Ronskowsky, the record reveals that before resting, the State presented a document certifying that the type of alcosensor used in this case was approved by the GBI. The trial court admitted that document as a court exhibit.

Given this certification, we find that the State presented a proper foundation for the alco-sensor test. Guinn argues that the alco-sensor device at issue was not approved by the federal government and thus the results should not have been admitted. Federal approval, however, need not be shown to lay a foundation for the test. The State need show only “that the device is of a design approved by the [GBI’s Division of Forensic Sciences]. . . .” Turrentine v. State, 176 Ga. App. 145, 146 (1) (335 SE2d 630) (1985). Accordingly, this enumeration of error has no merit.

Judgment affirmed.

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

Decided February 26, 1997

William C. Head, for appellant.

Benjamin F. Smith, Jr., Solicitor, Cindi L. T. Yeager, Barry E. Morgan, Assistant Solicitors, for appellee.


author: Eldridge, Judge.

text:
    A97A0022.
    COASTAL PLAINS TRUCKING COMPANY v. THOMAS COUNTY FEDERAL SAVINGS & LOAN ASSOCIATION.
    (482 SE2d 493)
   Eldridge, Judge.

Appellee, Thomas County Federal Savings & Loan Association, brought suit against appellant and Buck Durrance (“Durrance”) to collect payment for a check it cashed on which appellant was the maker, and Durrance was the payee and the endorser. Appellant appeals from the trial court’s grant of summary judgment in favor of appellee on both appellee’s claim against appellant and on appellant’s counterclaim.

On May 22, 1995, appellant made and issued a check drawn on its account at Southwest Georgia Bank that was made payable to Durrance in the amount of $3,000. The check was given to Durrance in payment for a trailer. Durrance properly endorsed the check and presented the same for payment to appellee on May 24, 1995. Appellee cashed the check and gave Durrance the sum of $3,000. Of such sum, $2,075 was given to Durrance in cash and $925 was deposited, at his direction, into the checking account of his wife.

After issuing its check to Durrance, appellant found that the individual from whom Durrance had stated appellant could obtain a Bill of Sale or a signed Certificate of Title was a fictitious person, and that the title to the trailer had been transferred to someone in the state of Florida. Max H. Wilson, President of appellant, went to Southwest Georgia Bank on May 25, 1995, and signed a stop payment order. When the check was sent by appellee through the Federal Reserve Bank System for payment, it was returned to appellee unpaid with the notation on the face of the check that payment was stopped, and the check was accompanied by a “Returned Check Status.”

Upon learning that a stop payment order had been placed on the check, Thomas County Federal Savings & Loan placed a hold on the checking account of Durrance’s wife and was able to recover $300 from the account. Durrance’s wife voluntarily repaid an additional $625 to Thomas County Federal Savings & Loan, leaving the sum of $2,075 owing on the check, which was the amount of cash given to Durrance on presentation of the check.

Appellant’s sole enumeration of error is that it was error for the trial court to grant summary judgment to appellee on the ground that no responsive pleadings were filed within 30 days as provided by Uniform Superior Court Rule 6.2, and without considering appellant’s brief and affidavits filed in opposition to appellee’s summary judgment.

Appellee filed its motion for summary judgment on February 2, 1996. Attached to the front of such motion was a notice of motion addressed to Rodney L. Allen as attorney for appellant stating that the motion for summary judgment would come on for a hearing on March 19,1996, at 9:30 a.m. or as soon thereafter as counsel could be heard. Appellant filed its responsive brief and affidavits on March 14, 1996, five days prior to the scheduled hearing. On the day the hearing was scheduled, the parties waived any right they had to oral argument and requested the court to decide appellee’s motion on the pleadings and briefs of the parties. The trial court entered its order on the motion for summary judgment on April 9, 1996, and within the order stated “it appearing to the [cjourt that no responsive pleadings were filed within thirty days as provided by Uniform Superior Court Rule 6.2; and it appearing therefore that plaintiff [appellee] is entitled to a judgment against Coastal Plains Trucking Co. [appellant] in its complaint as a matter of law, and further that plaintiff is entitled to a judgment in its favor as a matter of law on the counterclaim of Coastal Plains Trucking Co. against plaintiff. . . .”

USCR 6.2 requires a party opposing a motion to “file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion” unless otherwise ordered by the court. However, to the extent that this rule conflicts with substantive law, it must yield to substantive law. Russell v. Russell, 257 Ga. 177 (356 SE2d 884) (1987); Walton v. Datry, 185 Ga. App. 88 (363 SE2d 295) (1987). In fact, effective September 19, 1986, the preamble to the Uniform Superior Court Rules was amended to provide as follows: “[i]t is not the intention, nor shall it be the effect, of these rules to conflict with the Constitution or substantive law, either per se or in individual actions and these rules shall be so construed and in case of conflict shall yield to substantive law.” OCGA § 9-11-56 (c) allows the adverse party to a motion for summary judgment to serve opposing affidavits prior to the day of the hearing. Therefore, if a motion for summary judgment is set for oral argument, USCR 6.2 would yield to OCGA § 9-11-56 (c), and the opposing party would have until the day prior to the date that the motion is calendared for a hearing to file opposing affidavits. USCR 6.2 would control only on motions for summary judgment when there has not been a request for oral argument, and such motion was to be considered by briefs from its inception.

However, OCGA § 9-11-56 (c) provides no authority for responsive material other than affidavits to be filed outside the 30-day period prescribed in USCR 6.2, and the trial court would not have to consider appellant’s brief. Winchester v. Sun Valley-Atlanta Assoc., 206 Ga. App. 140 (424 SE2d 85) (1992); see Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64 (374 SE2d 785) (1988).

Appellee alleges that even if the trial court failed to consider appellant’s affidavits, that such failure was harmless as neither of the affidavits filed by appellants states any facts that would not entitle appellee to the grant of summary judgment. “On appeals from the grant of summary judgment, it is this court’s function to examine the record de novo and determine whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains.” Ga. Farm Bureau &c. Ins. Co. v. Shook, 215 Ga. App. 66, 68 (449 SE2d 658) (1994); Dixie Diners Atlanta v. Gwinnett Fed. Bank, FSB, 211 Ga. App. 364 (439 SE2d 53) (1993); Lewis v. Rickenbaker, 174 Ga. App. 371 (330 SE2d 140) (1985).

“To prevail at summary judgment under OCGA § 9-11-56, the moving party [appellee] must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In addition to presenting affirmative evidence to support their claim, appellee, as plaintiff, also has the burden of piercing the appellant’s affirmative defenses. Fletcher v. Ford, 189 Ga. App. 665 (377 SE2d 206) (1988); Olympic Dev. Group v. American Druggists’ Ins. Co., 175 Ga. App. 425 (333 SE2d 622) (1985); Peppers v. Siefferman, 153 Ga. App. 206 (265 SE2d 26) (1980). “If the moving party [appellee] discharges this burden, the nonmoving party [appellant] cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp., supra at 491.

Appellee claims it is a holder in due course of the check made and issued on May 22, 1995, by appellant and is entitled to recover the amount remaining due on such check of $2,075. As a holder in due course, appellee would not be subject to the defenses that appellant might have against Durrance. Pursuant to OCGA § 11-4-209, a bank which has given value to the extent that it has a security interest in an item becomes a holder in due course, provided that the bank otherwise complies with the requirements of OCGA § 11-3-302 on what constitutes a holder in due course. OCGA § 11-3-302 (1) defines a holder in due course as “a holder who takes the instrument: (a) [f|or value; and (b) [i]n good faith; and (c) [w]ithout notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.” This Court has held, that when a bank meets the foregoing requirements, takes a check which it deposits and credits to a depositor’s account, and allows the depositor to draw against the check, the bank becomes a holder in due course for the value of the check up to the amount withdrawn. Dempsey v. Etowah Bank, 204 Ga. App. 49 (418 SE2d 418) (1992); Pike v. First Nat. Bank &c., 99 Ga. App. 598 (109 SE2d 620) (1959) (decided under former Code 1933, § 14-502); Southern Fruit Distrib. v. Citizens Bank &c., 44 Ga. App. 832 (163 SE 261) (1932) (decided under former Code 1933, § 14-502).

Appellee has shown by the affidavits of Jerry F. Hancock, President of appellee, and Beverly Carnage, a teller of appellee, that the check made by appellant was complete and regular on its face; that appellee paid the check in good faith; that appellee gave value for the check before it was overdue without notice of any dishonor or any infirmity in the instrument or defect in the title of the person negotiating it; and that the sum of $2,075, which was the sum given to Durrance in cash on presentation of the check for payment, remains owing on the check. Furthermore, appellee’s interrogatory asked “[i]f you contend that any agent, employee or officer of plaintiff [appellee] had knowledge of defenses existing against the payment of the check which is subject of this complaint, which knowledge would prevent plaintiff from being a holder in due course of the check, please state the name, address and telephone number of each person having such knowledge, the fact constituting such knowledge, and the date and time the person learned or acquired such knowledge”; appellant responded by stating “unknown to defendant Coastal Plains Trucking Co. at this time.” This answer to the interrogatory was never supplemented and is additional evidence that appellant had no defense to appellee’s status as a holder in due course.

Furthermore, Hancock in his affidavit states that Buck Durrance is one and the same person as Herman T. Durrance and that Herman T. Durrance has an installment loan and a mortgage loan, along with his wife, at Thomas County Federal Savings & Loan Association. Hancock goes on to state that Durrance is well known at such bank. Carnage further states that Durrance presented the check to her, and the transaction occurred solely between her and Durrance; she states that she was not given any direction by any officer or employee of the bank regarding the payment of the check.

Viewing this evidence in the light most favorable to the appellant, appellee has discharged its burden of proving that appellee is a holder in due course of the check and has pierced the appellant’s affirmative defense of fraud. The burden now shifts to appellant to point to specific evidence giving rise to a triable issue.

In opposition to appellee’s motion for summary judgment appellant submitted the affidavit of Penny W. Parker, a dispatcher employed by appellant, and the affidavit of Max H. Wilson, the President of appellant. Parker stated in her affidavit that she prepared and delivered the check to Durrance; that when she attempted to contact Nancy Smith, who Durrance had told her could provide the Bill of Sale or a signed Certificate of Title, she found out that Nancy Smith was a fictitious person, and after calling the Georgia Department of Motor Vehicles in Atlanta, Georgia, Parker found that the title had been transferred to someone in the state of Florida. Wilson stated in his affidavit that once he was informed by Parker that the company would not be able to obtain a good title to the trailer that it had purchased from Durrance, he went to the local office of Southwest Georgia Bank upon which the check delivered to Durrance had been drawn, and personally signed a stop payment order on Thursday, May 25, 1995. This was the day after the check had been presented to appellee.

Such evidence fails to meet appellant’s burden of showing that a triable issue exists. Such affidavits merely show the defenses appellant may have against Durrance or one who is not a holder in due course, and do not show any of the defenses to which a holder in due course would be subject under OCGA § 11-3-305 (2). Appellee is entitled to a grant of summary judgment on its claim. Appellant’s counterclaim for attorney fees, expenses of litigation, and lost time in defending the lawsuit cannot survive once it has been determined that appellee is entitled to recover as a matter of law on its claim; therefore, the trial court’s grant of summary judgment on the counterclaim was proper. Failure of the trial court in not considering appellant’s affidavit in opposition to the motion for summary judgment was harmless error.

Decided February 26, 1997.

Rodney L. Allen, for appellant.

Alexander & Vann, John T. Holt, for appellee.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Ruffin, J, concurs in judgment only.

       There is conflict in the evidence as to the exact day Durrance presented the check to appellee for payment. Appellee alleges in its complaint that the check was presented for payment on May 24, 1995. However, in the affidavits appellee submitted in support of its motion for summary judgment both Jerry Hancock, Senior Vice President of appellee, and Beverly Carnage, who is a teller with appellee, state that the check was presented on May 22, 1995. Appellant submitted the affidavit of Penny W. Parker, who is a dispatcher for appellant, in opposition to appellee’s motion for summary judgment in which she states it was presented to appellee on May 25,1995; her testimony is not based on her actual knowledge of the events, but on what she believes is evident from the back of the cancelled check. However, the back of the check, which has been submitted as evidence, clearly shows that the date of May 24, 1995, appears within the stamp of Thomas County Federal Savings & Loan.

       Since the incident in the case sub judice occurred prior to the enactment of Ga. L. 1996, p. 1306, § 3, this Court has referred in this opinion to the applicable Code sections as they appeared prior to this enactment.


author: Birdsong, Presiding Judge.

text:
    A96A1632.
    HARMON v. THE STATE.
    (482 SE2d 730)
   Birdsong, Presiding Judge.

Louise S. Harmon appeals her conviction of driving under the influence of alcohol. Harmon contends the trial court erred by denying her motion for mistrial after the trial court conducted an in chambers voir dire of a prospective juror who then was dismissed for cause and released out of the presence of Harmon and her counsel. Harmon further contends the trial court made several erroneous rulings regarding admission of evidence: by denying her motion for mistrial after the prosecutor asked her, in front of the jury, if she would retake the intoxilyzer test; by admitting copies of her first DUI test results and intoxilyzer certificates of inspection when the State failed to comply with OCGA § 17-16-23 by producing copies of these documents before trial; by denying Harmon’s motion in limine seeking to exclude a copy of a videotape because the audio on the tape was not working; and also by allowing a witness to testify who was not listed on the State’s witness list.

A police officer testified that he stopped Harmon because she was speeding and driving erratically, and testified that at the time Harmon’s eyes appeared glassy, watery, and blood-shot, and the officer could detect the odor of alcohol. The officer saw a six-pack of beer on the front floorboard of the car which had some bottles removed.

When the officer conducted a field sobriety test, he noticed Harmon’s speech was slurred and her words were mumbled. Based upon Harmon’s performance on the field sobriety test, the officer concluded she was a less safe driver and placed Harmon under arrest for driving under the influence. Harmon was given a breath test on an Intoxilyzer 5000 and at first the results were inconclusive because of an inadequate breath sample. Harmon was again tested after she used an asthma inhaler and the results showed .120 and .112. Harmon was subsequently convicted of driving under the influence, and this appeal followed. Held'.

1. The transcript shows that after a potential juror stated that he had more that one previous DUI and other DUI charges were pending against him, the trial judge requested and received, in Harmon’s presence, the consent of Harmon’s counsel to conduct further questioning of the potential juror in the judge’s chambers. At some point, the trial judge concluded that the juror should be excused and dismissed the potential juror from further participation in the case without Harmon, her counsel, or the prosecutor being present. Later, when the parties returned to the courtroom, the trial judge advised the parties of what the court had done. Although Harmon and her counsel made no objection then, later, after the jury had been selected, Harmon made a motion for a mistrial. At this point, the trial court stated on the record what apparently transpired at an unrecorded bench conference: After the State expressed reservations about the potential juror serving and the juror also stated his concern, the trial court asked defense counsel for any comment and received none. Then, with the consent of both sides, the court discussed the matter further with the potential juror in chambers. The trial court further related that when everyone returned to court after a recess, the trial judge advised them that she had excused the potential juror and Harmon made no comment or objection.

Under our law, the defendant and the defense counsel have the right to be present at every stage of the proceedings (Ga. Const. 1983, Art. I, Sec. I, Par. XII; Wilson v. State, 212 Ga. 73, 74 (90 SE2d 557)), including the selection of the jury. Allen v. State, 199 Ga. App. 365 (405 SE2d 94). This right, however, may be waived by defendant personally, or by defendant’s counsel if counsel does so in defendant’s presence, or with the defendant’s express authority, or if the defendant later acquiesces in counsel’s waiver. Wilson, supra at 77-78; Parker v. State, 220 Ga. App. 303, 311-312 (469 SE2d 410). Although a reversal is frequently required when a defendant is not present at every stage of the proceedings, because of Harmon’s action, we do not find that result is warranted in this case.

Pretermitting whether Harmon actually consented to the procedures used by her conduct or whether the trial court was lulled into believing that Harmon had consented to the procedures used in this case (see Sullens v. State, 239 Ga. 766, 767 (238 SE2d 864); Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420)), it is apparent from the record that by her conduct after learning of the trial court’s actions Harmon waived any potential error. Harmon was advised when the trial court returned to the courtroom that the potential juror had been excused, yet made no objection until further voir dire was conducted and the jury was selected and sworn. Then Harmon finally moved for a mistrial.

Under these facts, any error in the procedures used by the trial court was waived. A motion for mistrial must be promptly made as soon as the party is aware of the matter giving rise to the motion. See Perkins v. State, 212 Ga. App. 225, 227 (441 SE2d 511); Worley v. State, 201 Ga. App. 704, 705 (411 SE2d 760). Rather than immediately objecting to the procedures used by the trial court when the potential juror could have been recalled, examined further by Harmon and the State, and the trial court could have considered any challenge in her presence, Harmon elected to wait until the potential juror had departed and the jury was sworn. At this point it was too late to object. See OCGA § 15-12-167; State v. Sparks, 257 Ga. 97, 98 (355 SE2d 658); Harris v. State, 212 Ga. App. 120 (441 SE2d 255). As one cannot complain of trial procedures used by the trial court which her own trial tactics or conduct procured or aided in causing (Williams v. State, 205 Ga. App. 445, 446 (422 SE2d 309)), this enumeration of error is without merit.

2. Harmon also alleges the trial court erred by denying her motion for mistrial after the prosecutor asked her, in front of the jury, if she would retake the intoxilyzer test after she used her asthma inhaler. Harmon’s argument is based on her conclusion that the prosecutor was not permitted to ask this question. We disagree. Harmon, an intensive care respiratory therapist and certified pulmonary function technologist, testified that because she had used her asthma inhaler before the second test, those results were somehow invalid. In response, the prosecutor asked her if she would be willing to demonstrate to the jury that using an inhaler would result in false positive results. Although as Harmon argues there are a variety of reasons why she might not wish to take a retest, these reasons do not prohibit the asking of the question, and the prosecutor was not prohibited from, in effect, asking Harmon whether she believed her testimony enough to submit to another test. As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536). As we find no abuse of discretion based on these facts, this enumeration of error is without merit.

3. Harmon also contends the trial court erred by admitting copies of her first DUI test results and intoxilyzer certificates of inspection because the State violated OCGA § 17-16-23 by not providing her copies of these documents before trial as she requested.

(a) OCGA § 17-16-23 (b) requires the State, upon proper request, to provide a defendant with “a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal.” By its terms, this section defines “written scientific reports” as including, “but is not limited to, reports from the Division of Forensic Sciences of the Georgia Bureau of Investigation; an autopsy report by the coroner of a county or by a private pathologist; blood alcohol test results done by a law enforcement agency or a private physician; and similar types of reports that would be used as scientific evidence by the prosecution in its case-in-chief or in rebuttal against the defendant.” OCGA § 17-16-23 (a). Nevertheless, the term “scientific reports” has not been so broadly interpreted to include all reports of a general scientific nature. See State v. Mulkey, 252 Ga. 201, 202-205 (312 SE2d 601). In Mulkey, our Supreme Court construed “written scientific reports” under former OCGA § 17-7-211, which contains the same terms as OCGA § 17-16-23, to mean written scientific reports of “tests which generally are carried out during the course of the investigation of a crime.” Mulkey, supra at 203. The court found that the General Assembly’s purpose in enacting § 17-7-211 was to ensure the integrity of these reports by “giving the defendant a pre-trial opportunity to evaluate and verify scientific reports which will be introduced at trial,” and thus facilitate “the truth-seeking function of the trier of fact.” Mulkey, supra at 204. Applying this rationale, the Supreme Court found that a blood-grouping test used when a defendant donated blood “was not the type of investigation-generated written scientific report subject to the discovery provision of OCGA § 17-7-211.” White v. State, 263 Ga. 94, 98 (428 SE2d 789). As nothing in the legislative history of OCGA § 17-16-23 suggests that we should give the same language used in this Code section a different interpretation from that given to the former OCGA § 17-7-211 (see 11 Ga. St. L. Rev. 137-156), we conclude that the certificate of inspection required by OCGA § 40-6-392 (f) is not a written scientific report within the meaning of OCGA § 17-16-23 (a). The certificates required by OCGA § 40-6-392 (f) are not “tests which generally are carried out during the course of the investigation of a crime” (Mulkey, supra at 203), and, therefore, the certificates are “not the type of investigation-generated written scientific report subject to the discovery provision of OCGA § 17-7-211.” See White v. State, supra at 98. Instead, these inspections are conducted without regard to the investigation of any particular crime or case, but are done to assure that the breath-testing instruments are periodically inspected, tested, and standardized, and that all the electronic and operating components are properly attached and are in good working order. See OCGA § 40-6-392 (a) (1) (A). Accordingly, the trial court did not err in allowing the certificate of inspection to be introduced even though it was not provided to Harmon before trial.

(b) Although we find that the results of Harmon’s first blood test are specifically included within the terms of OCGA § 17-16-23 (a) and thus should have been provided to Harmon under OCGA § 17-16-23 (b), we also find that any error was harmless because the report merely showed an inadequate breath sample and was consistent with Harmon’s theory of her case.

Decided February 27, 1997.

Novy, James & Vaughan, Eugene Novy, Deborah M. Vaughan, for appellant.

Ralph T. Bowden, Jr., Solicitor, Michele T. McCutcheon, W. Cliff Howard, Assistant Solicitors, for appellee.

4. Harmon alleges the trial court erred by denying her motion in limine seeking to exclude a copy of a videotape because the audio on the tape was not working and the officer testified that the video camera did not always “zoom” as he would have liked and thus did not always show the complete scene. We find no error. There is no contention that the absence of sound in any way affected the visual images on the tape or that the zooming problems rendered the video an inaccurate portrayal of what took place. Accordingly, we find that the videotape was properly admitted. Freeman v. State, 216 Ga. App. 319, 321 (454 SE2d 196); Harper v. State, 213 Ga. App. 444, 447 (445 SE2d 303).

5. Although Harmon accurately states that the trial court allowed a witness to testify, over Harmon’s objection, who was not listed on the State’s witness list, the record shows that this witness was an expert witness who was called to rebut Harmon’s testimony concerning the operation of the Intoxilyzer 5000. As this requirement does not apply to rebuttal witnesses, there was no error. Gibbons v. State, 248 Ga. 858, 865 (286 SE2d 717); Rowell v. State, 176 Ga. App. 309, 310 (335 SE2d 689).

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Judge.

text:
    A96A1979.
    SHERWIN-WILLIAMS COMPANY et al. v. ESCUADRA.
    (482 SE2d 505)
   Blackburn, Judge.

This appeal addresses whether the sole proprietor of a business which operates as a subcontractor may be considered an “employee” of the subcontractor for purposes of the workers’ compensation statutory employer provisions of OCGA § 34-9-8. Felipe Escuadra worked as a subcontractor and independent contractor for Sherwin-Williams. He was injured on the job. A carpet layer, Escuadra had his own trucks and tools and “three or four employees.” He believed his sole proprietorship had workers’ compensation coverage, as SherwinWilliams required of its subcontractors, but it appears his insurance agent never paid for the coverage and absconded with his premiums. In an effort to obtain injury benefits from Sherwin-Williams pursuant to OCGA § 34-9-8 and its statutory employer provisions, Felipe claimed he was an “employee” of a subcontractor who was unable to pay benefits. The administrative law judge (ALJ) and the appellate division of the State Board of Workers’ Compensation determined he was not an “employee” and denied his claim. The superior court reversed and held he was an “employee” for purposes of receiving compensation pursuant to OCGA § 34-9-8. The question presented us is whether, as a matter of law, Escuadra is an “employee” of his unincorporated sole proprietorship for purposes of OCGA § 34-9-8. Under the facts herein involved, we answer that question in the negative and reverse the superior court’s judgment.

The ALJ and appellate division found Escuadra to be an independent contractor, and neither party contests that finding on appeal. Normally, an independent contractor is not entitled to workers’ compensation benefits from his principal. See, e.g., RBF Holding Co. v. Williamson, 260 Ga. 526 (397 SE2d 440) (1990). An exception to this rule is OCGA § 34-9-8 (a), which provides that “[a] principal . . . shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.” (Emphasis supplied.) This statutory employer provision, designed “to ensure that employees in construction and other industries are covered by workers’ compensation,” allows the subcontractor’s employees to seek benefits from their employer’s principal when the subcontractor defaults in his obligations to them. Wright Assoc. v. Rieder, 247 Ga. 496, 499 (277 SE2d 41) (1981). It also encourages the principal to require subcontractors to carry workers’ compensation insurance for the subcontractors’ employees. Id.

The ALJ and appellate division rejected Escuadra’s claim that he was an “employee” of a subcontractor under OCGA § 34-9-8 because Escuadra himself was the subcontractor. The superior court reversed that finding, and we are called on to determine if it erred in so ruling. “When reviewing the decisions of the Board and ALJ, the superior court sits as an appellate body and is bound by the any evidence standard of review.” L. C. P. Chemicals v. Strickland, 221 Ga. App. 742, 743 (472 SE2d 471) (1996). A superior court reviewing a workers’ compensation appeal must construe the evidence in the light most favorable to the prevailing party and make every presumption in favor of upholding the award. Chandler v. Hancock Builders, 205 Ga. App. 303, 304 (422 SE2d 206) (1992).

In reversing the ALJ and appellate division, the superior court reasoned that nothing in the Workers’ Compensation Act prohibited it from finding that a person can be an employer and employee at the same time. However, this interpretation conflicts with OCGA § 34-9-1 (2), which defines an “employee” as “every person in the service of another” (Emphasis supplied.) Interpreting that definition, we have held that a partner is not normally an employee of his partnership because the relationship of a partner to his business is “not consistent” with the relationship of employer and employee. Scoggins v. Aetna Cas. &c. Co., 139 Ga. App. 805, 807 (229 SE2d 683) (1976). In Simpkins v. Unigard Mut. Ins. Co., 130 Ga. App. 535, 539 (2) (203 SE2d 742) (1974), we touched on the issue in this case: “As is provided in [OCGA § 34-9-8 (a)] the general contractor would be liable for compensation to the employees of his subcontractors. Nothing is therein said concerning subcontractors themselves.” This precedent, combined with the plain definition of “employee” as one in the service of another, militates against our considering a subcontractor also to be an employee of his sole proprietorship. Simpkins did not involve OCGA § 34-9-2.2.

OCGA § 34-9-2.2 allows a sole proprietor who provides workers’ compensation coverage for his employees to elect to be included as an employee under that coverage. This statute, requiring the employer to affirmatively elect coverage makes clear the legislature’s intention that a sole proprietor would not otherwise be considered an employee of his own business. Miller v. Ga. Ports Auth., 266 Ga. 586, 587 (470 SE2d 426) (1996) (statutes concérning same subject must be construed together to ascertain legislature’s intent). Thus, we conclude that a sole-proprietor subcontractor should not ordinarily be considered both employer and employee for purposes of OCGA § 34-9-8’s statutory employer provisions.

As noted above, however, pursuant to OCGA § 34-9-2.2, a sole proprietor may elect to be treated as an employee under his business’ workers’ compensation coverage if he is actively engaged in the operation of the business and if he notifies his insurer of his election to be treated as an employee. Once he makes that election, the subcontractor is “entitled to the employee benefits . . . prescribed in this chapter.” Id. See, e.g., Subsequent Injury Trust Fund v. Lumley Drywall, 200 Ga. App. 703, 705 (409 SE2d 254) (1991) (sole proprietor who elects to be an “employee” of his business is entitled to benefits from Subsequent Injury Trust Fund as prescribed by the Act). Under OCGA § 34-9-8, when a subcontractor is unable to pay workers’ compensation benefits, his principal “stands in the place of the subcontractor as to any employee of the subcontractor.” Williams v. Lumbermens Mut. Cas. Co., 164 Ga. App. 435, 437 (2) (297 SE2d 345) (1982). Therefore, where a subcontractor has obtained workers’ compensation coverage for his employees and has properly notified his insurer of his election to be treated as an employee, he should also be treated as an employee for purposes of OCGA § 34-9-8 during the period his election is effective. Escuadra contends our interpretation denies him equal protection of the law because it discriminates against persons who conduct their business as sole proprietors rather than as a corporation. Even if this argument had merit, the right of a sole proprietor to elect to be treated as an employee pursuant tp OCGA § 34-9-2.2 eliminates any such concerns. See Peters v. Kevin Moody Constr. Co., 223 Ga. App. 133 (476 SE2d 772) (1996).

Decided February 27, 1997.

Drew, Eckl & Farnham, John G. Blackmon, Jr., Marion M. Handley, for appellants..

Robert E. Bourne, C. Edgar Gilliam, Jr., for appellee.

In this case, the ALJ determined Escuadra was not an “employee.” Although the record contains a certificate naming Escuadra as the insured under a workers’ compensation policy, nothing in the record indicates that Escuadra notified his agent or insurer of his election to be treated as an employee under that coverage. Nor is there any evidence showing Escuadra paid an additional premium so that he would be covered individually and in addition to his employees. Under the circumstances, therefore, we find the ALJ and Board’s determination that Escuadra was not an “employee” to be supported by the evidence. See King v. James King Cleaners &c., 199 Ga. App. 796, 797-798 (405 SE2d 909) (1991). We reverse the judgment of the superior court with direction to affirm the award of the appellate division.

Judgment reversed.

Birdsong, P. J., and Beasley, J., concur.


author: Smith, Judge.

text:
    A97A0218.
    ATHENS COUNTRY CLUB, INC. v. JACKSON.
    (481 SE2d 904)
   Smith, Judge.

Jean Jackson brought suit against Athens Country Club, Inc. to recover damages for the theft of her fur coat. The trial court denied the club’s motion for summary judgment, and we granted its application for interlocutory appeal. We now reverse.

The evidence of record shows that Jackson, who was a member, attended a charity ball at the club. The ball was an annual event, and Jackson had attended it at least ten times. Jackson testified on her deposition that at the previous balls at the club a cloakroom attendant was present, and upon leaving a coat with the attendant she was handed a ticket. On this occasion, Jackson did not see a cloakroom attendant; she observed many other coats hanging in the cloakroom and simply hung her coat there as well. She did not see any tickets, and she did not receive one. At the end of the evening, when she went to retrieve her coat from the cloakroom, it was missing.

The club’s general manager stated in an affidavit that he handled the planning arrangements for the ball and that at no time did anyone from the planning committee of the charity request that a cloakroom attendant be provided. He testified that if an attendant had been requested one would have been provided, for a fee. Neither he nor Jackson was aware of any previous instances in which coats had been stolen from the cloakroom. Members of the charity’s planning committee stated in affidavits that a cloakroom attendant had been provided at previous balls at the club without a separate request or charge, and they assumed such an attendant would be provided as it had been in the past.

In its order, the trial court correctly stated the general standard of care: the club was not an insurer of its invitees’ safety but was bound to exercise ordinary care to protect them from risks of which it had superior knowledge. Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 392 (3) (394 SE2d 345) (1990). Moreover, even if negligence on the part of the club were shown, it would be insulated from liability if the loss of Jackson’s coat was the proximate result of an intervening and unforeseeable criminal act by a third party. Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 876 (3) (392 SE2d 535) (1990). The court concluded that the club had no reasonable grounds for apprehending that Jackson’s coat would be stolen from its cloakroom.

Notwithstanding this conclusion, the court denied the club’s motion for summary judgment on the basis that genuine issues of material fact existed as to whether the club’s past actions in providing cloakroom attendants “heightened” its standard of care, and whether the club’s actions “misled [Jackson] into the belief that the danger had been removed or deprived [her] of the possibility of help from other sources.” We agree with the club that this ruling was error.

First, no evidence was presented that an attendant had been provided in the past for safety reasons. On the contrary, the only evidence on this point indicated that the attendant was provided for the convenience, rather than the safety, of the ball’s attendees. But even characterizing the provision of an attendant as a safety measure, the fact that the club provided some safety measures in the past would not heighten its standard of care. J. C. Penney Co. v. Spivey, 215 Ga. App. 680, 683 (2) (452 SE2d 191) (1994).

Second, even if the past actions of the club misled Jackson into thinking that an attendant would be provided, those actions were not the proximate cause of her loss because she had an opportunity to avoid any risk attributable to an unattended cloakroom. Jackson may have been misled by the club’s prior actions into wearing her coat to the club for the ball. But it is apparent that once she arrived at the club and saw the unattended cloakroom and the absence of tickets, she knew, or should have known, that no attendant was provided. She left her valuable coat in the cloakroom knowing that it was unattended; she assumed the risk of theft. See Joel Properties v. Reed, 203 Ga. App. 257, 259 (2) (416 SE2d 570) (1992). She therefore cannot recover for the consequences of that risk. The club’s motion for summary judgment should have been granted.

Decided February 27, 1997.

Shivers, Johnson & Wilson, Eleanor L. Martel, for appellant.

W. Glover Housman, Jr., for appellee.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.


text:
    A97A0492.
    GEORGIA SUBSEQUENT INJURY TRUST FUND v. CONSOLIDATED FREIGHTWAYS, INC.
    (482 SE2d 508)
   Blackburn, Judge.

We granted Georgia Subsequent Injury Trust Fund’s (Fund) application for discretionary appeal to review the trial court’s application of the time limitations found in OCGA § 34-9-362 (a) to the facts of this case. As the facts indicate that Consolidated Freight-ways, Inc. (Consolidated) filed its claim for reimbursement from the Fund outside the time limitations provided in OCGA § 34-9-362 (a), we reverse the trial court.

The facts have been stipulated to by the parties. The claimant sustained a compensable accidental injury on June 11, 1990. The employer, Consolidated, accepted the June 11, 1990, back injury as a compensable injury under the Workers’ Compensation Act (Act) and began paying the claimant the maximum amount allowable for total disability under the Act. The claimant first received medical treatment for his neck in November 1990. On December 20, 1990, the claimant requested a hearing to determine the compensability of a neck injury arising out of the June 11,1990 incident. On December 4, 1991, the Administrative Law Judge determined that Consolidated was responsible for payment of medical expenses related to claimant’s neck, as they also arose out of the June 11, 1990, incident. This award was affirmed by the State Board of Workers’ Compensation (Board) on May 13, 1992. Consolidated filed its notice of claim with the Fund on April 29, 1992.

OCGA § 34-9-362 (a) provides: “An employer or insurer shall notify the administrator of the fund of any possible claim against the fund as soon as practicable, but in no event later than 78 calendar weeks following the injury or the payment of an amount equivalent to 78 weeks of income or death benefits, whichever occurs last.”

Decided February 27, 1997

Michael J. Bowers, Attorney General, Brenda H. Cole, Deputy Attorney General, Clyde L. Reese, Debra A. Golybieski, Assistant Attorneys General, Harrison & Llop, Rita J. Llop, for appellant.

Swift, Currie, McGhee & Hiers, Michael H. Friedman, Mark J. Goodman, for appellee.

The trial court determined that Consolidated’s claim was timely filed because it was filed within 78 weeks of the Board’s determination on May 13, 1992, regarding the claimant’s neck injury. The trial court reasoned that as OCGA § 34-9-360 (e) required evidence of payment of weekly income benefits or an award of the Board as a prerequisite to reimbursement from the Fund, Consolidated had 78 weeks from the date of the Board’s ruling to make a timely claim. We cannot agree. Making a timely claim to the Fund and obtaining reimbursement from the Fund are distinguishable functions. OCGA § 34-9-360 (e) has nothing to do with making a timely claim to the Fund, but instead, sets forth the prerequisites for obtaining reimbursement from the Fund.

OCGA § 34-9-362 (a) governs the timeliness of a claim and it mandates that “any possible claim” (emphasis supplied) be filed no later than 78 weeks from the injury or payment of 78 weeks worth of income benefits. As the injury clearly occurred more than 78 weeks before Consolidated filed its claim with the Fund, it is not entitled to reimbursement unless it had not paid 78 weeks worth of income benefits to the claimant with respect to this injury. Consolidated began paying full income benefits to claimant on June 22, 1990, and it had paid over 78 weeks worth of income benefits prior to filing its claim with the Fund. The claimant’s claim for medical benefits for injury to his neck does not affect the payment of maximum income benefits which claimant was already receiving for the same incident. Therefore, Consolidated’s attempt to separate payment of income benefits for claimant’s claim of injury to his neck from the benefits paid for injury to his back must fail. See cf. Ga. &c. Trust Fund v. ITT-Rayonier, 198 Ga. App. 467 (402 SE2d 54) (1991) (employer barred from recovery from the Fund where claim made after the payment of 78 weeks of income benefits).

Judgment reversed.

Pope, P. J., and Johnson, J, concur.


text:
    A97A0538.
    ANTEC CORPORATION v. POPCORN CHANNEL, L.P.
    (482 SE2d 509)
   Blackburn, Judge.

Antee Corporation (Antee) appeals the trial court’s order granting Popcorn Channel, L.P.’s (Popcorn’s) motion to dismiss Antec’s complaint based upon the forum selection clauses contained in the contracts which form the basis of the allegations in Antec’s complaint.

The parties entered into agreements entitled “Development and Integration Agreement” (Development Agreement) and “Antee Digital Video Sales Agreement” (Sales Agreement). After disputes arose, the present action was filed. Popcorn answered the complaint, asserted counterclaims, and filed a motion to dismiss based upon improper venue and lack of personal jurisdiction. The Development Agreement provides, in pertinent part, that “[t]he construction and interpretation of this Agreement shall at all times and in all respects be governed by the laws of the state of New York not including its conflict and choice of laws provisions. The parties agree to submit to the personal and exclusive jurisdiction and venue of the courts of the state of New York.” The Sales Agreement contains a similar provision which states: “These terms and conditions shall be governed by and interpreted in accordance with the laws of the State of New York, excluding its choice of laws rules. The parties hereby agree that any dispute regarding the interpretation or validity of, or otherwise arising out of, these terms and conditions, or relating to the Products sold or licensed hereunder shall be subject to the exclusive jurisdiction of the New York state and Federal courts.”

1. Antee contends that the trial court erred in enforcing the venue selection provisions of the contracts. We cannot agree.

In Harry S. Peterson Co. v. Nat. Union Fire Ins. Co., 209 Ga. App. 585, 589-591 (434 SE2d 778) (1993), we adopted the United States Supreme Court’s analysis in The Bremen v. Zapata Off-Shore Co., 407 U. S. 1, 10 (92 SC 1907, 32 LE2d 513) (1972), wherein it determined that forum selection contract clauses “are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances.” (Punctuation omitted.) Harry S. Peterson Co., supra at 590.

Again in Brinson v. Martin, 220 Ga. App. 638 (469 SE2d 537) (1996), we upheld a forum selection clause which provided that the “exclusive venue for the pursuit of any legal proceeding or remedy arising out of [the] contract shall be Douglas County, Nebraska.” We held that “where no Georgia law specifically governs venue, and where more than one state and its citizens are involved, such clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances.” (Punctuation omitted.) Id.

Antee argues that Harry S. Peterson Co., supra, and Brinson, supra, should not apply because whereas Georgia did not have a strong interest in determining those cases, such interest is present in its action against Popcorn. Antee has not shown why it is unreasonable to enforce the contract provisions in this case, but merely relies upon Georgia’s purported interest in determining the case.

Antee argues that the contracts were negotiated, signed, and substantially performed in Georgia, making litigation in New York inconvenient. However, as discussed in The Bremen, supra at 16, the parties were aware of these considerations when they agreed to exclusive venue in New York. Antee makes no claims that its agreements with Popcorn were adhesion contracts, and there is nothing in the record which indicates any disparity of bargaining positions. See Brinson, supra at 639-640. The trial court did not err in holding that Antec’s claims must be litigated in the New York action.

2. In its second enumeration of error, Antee contends that the trial court erred in dismissing its entire amended complaint as several of the causes of action are not based on the contracts containing the forum selection clauses.

Decided February 27, 1997.

Arnall, Golden & Gregory, Timothy E. Bixler, Stephen M. Dorvee, Scott E. Taylor, for appellant.

The trial court relied on Brinson, supra, in dismissing Antec’s entire complaint. Therein, Brinson filed suit against his former employer for breach of contract and invasion of privacy and against four co-employees for interference with economic relations and unjust enrichment. Id. at 638. We determined that the forum selection clause required that the action be brought in Nebraska, and we affirmed the dismissal of Brinson’s entire complaint. We determined that “because the claims against the other defendants arose directly or indirectly from a single contract connecting the plaintiffs with all the defendants, the other defendants were transaction participants entitled to rely on the forum selection clause.” Id. at 640.

This analysis, however, does not support dismissal of Antec’s claims which do not arise out of the Development or Sales Agreements. Nor can we say on the evidence in the record before us that a decision on Antec’s claims for breach of a Visiontel Software license, breach of an installation and maintenance agreement, and breach of confidentiality and misappropriation of proprietary information and trade secrets would result in “varying decisions, inconsistent with the administration of justice.” (Punctuation omitted.) Id. at 641. To the extent it becomes apparent, as these claims are developed through discovery, that they arise out of the Development or Sales Agreements, they must be dismissed. However, absent such a finding, the trial court erred in dismissing Counts 3 through 5 of Antec’s amended complaint.

3. In its third enumeration of error, Antee contends Popcorn’s assertion of a counterclaim waived any right to rely on the forum selection clause. Popcorn’s counterclaims clearly arise out of the contracts disputed in Antec’s complaint and are compulsory counterclaims. In Riggio v. Lawson, 204 Ga. App. 774, 775 (420 SE2d 613) (1992), we determined that the assertion of a compulsory “counterclaim did not serve as a waiver of the defense of lack of personal jurisdiction.” This enumeration is without merit.

4. Antec’s fourth enumeration of error is cumulative of its previous arguments and raises nothing not previously considered.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Johnson, J., concur.

Long, Aldridge & Norman, Bruce P. Brown, Steven P. Smith, for appellee.

       Antee is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business in Norcross, Georgia. Popcorn is a limited partnership also organized under the laws of the State of Delaware. Popcorn’s principal place of business is New York, New York.

       Popcorn also filed an action in the Supreme Court of New York, in which Antee answered and counterclaimed.


text:
    A96A2158.
    BROWN v. DeKALB MEDICAL CENTER.
    (482 SE2d 511)
   Blackburn, Judge.

This medical malpractice claim by Natalie Brown, the executor of Christine Riley’s estate, sought damages for injuries stemming from bedsores Riley allegedly suffered while a patient at DeKalb Medical’s nursing home. The trial court directed a verdict in DeKalb’s favor on the issue of punitive damages. After a jury returned a $165,000 verdict of compensatory damages for the estate, the court granted DeKalb a j.n.o.v. Riley’s executor, Brown, appeals on behalf of the estate. “[I]n reviewing a [j.n.o.v.], an appellate court must view the evidence in the light most favorable to the party who secured the jury verdict.” Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569, 570 (398 SE2d 16) (1990).

In April 1992, Riley spent a month in DeKalb’s “skilled nursing facility” after she suffered a stroke. On admission, she was noted to suffer from bedsores on her bottom. One day after she left the nursing home, according to Brown and to a home health care nurse who examined her, she exhibited “blood blisters” on the heels of her feet. Although the home health care nurse described these blisters as “intact” and stated they could have formed in a 24-hour period, Brown testified these sores were “open” and “bloody.” Riley’s expert witness, a nurse skilled in caring for and preventing pressure sores, stated that in her opinion, these sores formed while Riley was at DeKalb’s nursing home. Some of the sores apparently healed, and Riley later developed other ulcerated sores on her left foot and lower left leg. In December 1992, a physician concluded that because of poor blood circulation in Riley’s left leg, the ulcers, including a large ulcer on her left heel, were unlikely to heal; therefore, he amputated her left leg below the knee.

Riley’s nursing expert testified as to measures which “could be taken to prevent [a patient] from developing pressure sores,” including the use of a special mattress, elevation of the patient’s feet, and turning the patient every two hours. She also stated the “general practice” is to inspect a patient’s skin during each shift. The expert stated she was familiar with the standard of care applicable to nurses in nursing homes in preventing and treating pressure sores. Because Riley’s medical records did not reflect that these measures had been consistently followed, the expert concluded, DeKalb Medical breached the standard of care in its duty to prevent and treat Riley’s pressure sores.

1. We first address the trial court’s direction of judgment for DeKalb on its liability to Riley. A grant of j.n.o.v. is allowed only where there is no conflict as to any material issue and the evidence introduced, including all reasonable deductions from that evidence, is such that only one reasonable conclusion may be drawn as to the proper judgment. Goggin v. Goldman, 209 Ga. App. 251, 252 (433 SE2d 85) (1993). “Where there is ‘some evidence,’ or ‘any evidence’ supporting the respondent’s assertions, disputed issues are created which are for the jury’s resolution.” (Citation and punctuation omitted.) Jones v. Abel, 209 Ga. App. 889, 890 (434 SE2d 822) (1993). To support a claim for medical malpractice, Brown was required to show: 1) the nursing home breached a duty to Riley by failing to exercise the proper degree of skill and care and 2) the breach proximately caused injury to Riley Hawkins v. Greenberg, 166 Ga. App. 574, 575 (304 SE2d 922) (1983).

The trial court properly directed judgment for DeKalb as to Brown’s claim for damages resulting from the bedsore on her sacral area. She presented no evidence, other than mere speculation, showing this ulcer developed while Riley was in DeKalb’s care. Her expert testified this ulcer became no worse during Riley’s stay at DeKalb and, therefore, DeKalb had properly cared for that ulcer. Because Brown presented no evidence to rebut the presumption that DeKalb properly treated this problem, Riley’s estate could not recover for this injury. See Slack v. Moorhead, 152 Ga. App. 68, 71 (262 SE2d 186) (1979) (presumption that medical professionals exercise due care).

But the evidence, however slim, did create a jury question as to whether DeKalb’s professional negligence caused the pressure sores on Riley’s left and right heels. Although the DeKalb nurses presented circumstantial evidence that they followed the routine measures needed to prevent these pressure sores, their evidence also indicates no pressure sores were documented when Riley was discharged from the hospital. Because Riley’s expert was allowed to opine, without objection, that the pressure sores developed in the hospital, the probative value of the nurses’ circumstantial evidence that Riley suffered no pressure sores was for the jury. See Thomas v. Newnan Hosp., 185 Ga. App. 764, 768 (365 SE2d 859) (1988) (testimony as to one’s uniform and routine habit is circumstantial evidence that one complied with the habit on the day in question). This conflicting evidence allowed the jury to infer the pressure sores on Riley’s heels developed while she was in DeKalb’s care.

Although Riley’s expert did not use the magic words, “the standard of care requires,” she did state, however unartfully, the parameters of the standard of care applicable to DeKalb’s treatment and the method in which DeKalb deviated from that standard. See Jackson v. Gershon, 251 Ga. 577, 579 (308 SE2d 164) (1983); see also Messex v. Lynch, 255 Ga. 208 (336 SE2d 755) (1985). Riley’s expert testified that patients with poor circulation such as Riley do not develop pressure sores if adequate nursing care is given. See Kapsch v. Stowers, 209 Ga. App. 767 (1) (434 SE2d 539) (1993) (opinion sufficient which stated a medical complication was preventable and should never occur). She stated she was familiar with the standard of care for nursing homes, and opined that based on the records she reviewed, which did not mention whether Riley’s feet were examined for sores, DeKalb had breached its standard of care in preventing Riley from developing this problem. The fact that her testimony is based only on the records goes to its credibility, not its admissibility. See Flowers v. Armstrong, 202 Ga. App. 467, 469 (414 SE2d 672) (1991).

The DeKalb nurses testified they followed all their usual procedures and did not document any bedsores on Riley’s heel because none existed. But because other witnesses contradicted the assertion that there were no bedsores on Riley’s heels, the jury was entitled to reject DeKalb’s testimony and to infer the records upon which the expert based her opinion indicated the actual treatment given. See Kapsch, supra at 769 (circumstantial evidence may be used to prove the facts on which the expert relies). Because the standard of review requires us to construe the evidence and all inferences from the evidence strongly in Brown’s favor, we must conclude that the evidence allowed the jury to find Riley developed pressure sores in the nursing home, and that the expert testimony allowed the jury to find the nursing home negligently failed to prevent the sores from forming on her heel. See Austin v. Kaufman, 203 Ga. App. 704, 706 (417 SE2d 660) (1992).

Although the expert provided evidence which would allow the jury to infer that inadequate treatment caused these pressure sores, the jury was given no sufficient causal connection between DeKalb’s medical records documentation practices and any injury. It is the inadequate provision of care, not the failure to describe in detail the care given, that is alleged to have caused Riley’s bedsores. Thus, to the extent Brown claimed damages on the theory of inadequate documentation, the trial court properly directed judgment for DeKalb on that theory. See McQuaig v. McLaughlin, 211 Ga. App. 723, 726-727 (1) (b) (440 SE2d 499) (1994) (directed verdict proper where alleged negligence not causally related to injury); Beatty v. Morgan, 170 Ga. App. 661, 663 (2) (317 SE2d 662) (1984) (no causal connection shown between injury and failure to maintain records).

Based on the evidence presented, the jury could also infer that Riley’s ultimate injury, the amputation of her leg, resulted from DeKalb’s negligence, and that this complication was a foreseeable result of its negligence. See Coleman, supra at 570.

Decided February 28, 1997

James W. Howard, for appellant.

Sullivan, Hall, Booth & Smith, Timothy H. Bendin, Lyndy C. Stewart, for appellee.

2. The trial court properly directed a verdict on the issue of punitive damages, however. The evidence Brown presented, while enough to allow the jury to find DeKalb provided negligent care, was far from the clear and convincing evidence of an entire want of care required to support a verdict for punitive damages. See Roseberry v. Brooks, 218 Ga. App. 202, 209-210 (4) (461 SE2d 262) (1995).

3. The trial court’s order reflects that upon any reversal of its judgment in this case, DeKalb shall be entitled to a new trial. This procedure is proper pursuant to OCGA § 9-11-50 (c) (1). The trial court’s reasons for its ruling included its determination that the verdict was strongly against the weight of the evidence, a proper ground for the grant of a new trial. OCGA § 5-5-21. Where, as here, the facts do not demand a verdict for either party, an appellate court will not interfere with a trial court’s first grant of a new trial. Lister v. Scriver, 216 Ga. App. 741, 747 (2) (456 SE2d 83) (1995); OCGA § 5-5-50. Therefore, this case is reversed for a new trial on the remaining issues.

Judgment affirmed in part, reversed in part, and remanded for new trial.

Birdsong, P. J., and Beasley, J., concur.


text:
    A97A0353.
    DAUGHENBAUGH v. THE STATE.
    (482 SE2d 517)
   Blackburn, Judge.

Robert Daughenbaugh appeals the trial court’s denial of his motion to dismiss the indictment against him based on the State’s failure to grant him a speedy trial, as guaranteed by the Sixth Amendment of the United States Constitution. The DeKalb County indictment charged him with murder, felony murder, possession of a firearm by a convicted felon, and arson in connection with the 1990 murder of Thomas Kidwell. After the trial court denied the motion, it held a bench trial on stipulated facts and convicted Daughenbaugh of the lesser included offense of conspiracy to murder and of possession of a firearm by a convicted felon. The remaining charges were dead-docketed.

Daughenbaugh was a fugitive at the time of the 1990 crime, having escaped from a Kentucky prison while serving a 41-year sentence for manslaughter, burglary, attempted arson, and theft. He turned himself in to Kentucky authorities in January 1991. In February 1991, Daughenbaugh learned he and several others had been indicted by a Fulton County grand jury for the Kidwell murder. In May 1991, Daughenbaugh was transported to Georgia to serve as a witness in the trial of three of the Kidwell defendants but did not testify. Because he had outstanding Kentucky charges connected with his escape, Kentucky authorities would not release him to be tried with those other defendants even though he had waived jurisdiction. In August 1991, Daughenbaugh was sentenced to an additional six years in a Kentucky prison for his escape.

Between 1991 and 1993, both Fulton County and federal authorities considered prosecuting the case. The federal authorities took over the prosecution from Fulton County but then declined to proceed. In 1993, after a key witness decided to cooperate with prosecutors and offered new evidence, authorities determined proper venue of the case was in DeKalb County and not Fulton County, and the case was transferred there. DeKalb County first indicted Daughenbaugh in August 1993.

Daughenbaugh testified that in 1991, after being indicted by Fulton County, he tried to seek disposal of the case under the provisions of the Interstate Agreement on Detainers (OCGA § 42-6-20) but the detainer previously on file had been dismissed. He also prepared but did not file several documents demanding a speedy trial. In April 1994, Daughenbaugh learned he had been indicted for the murder along with William W. Shields in DeKalb County. Shields was tried and convicted in June 1994. During that same month, it appears Daughenbaugh filed his first demand for speedy trial. In November 1994, Daughenbaugh learned DeKalb County had filed a detainer against him, which gave notice to Kentucky authorities that it sought to prosecute him.

Apparently in response to DeKalb County’s notice of detainer, Daughenbaugh testified that in March 1995 he filed a motion pro se to dismiss for violation of his speedy trial rights which the record reflects was not filed until May 1995. In January 1996, Daughenbaugh filed a request to dispose of these charges under authority of the Interstate Agreement on Detainers. He was tried in June 1996, with the parties entering as stipulated evidence the transcript of the Shields trial held in 1994, which included testimony implicating Daughenbaugh.

Daughenbaugh’s claim that his right to a speedy trial was violated is reviewed under the factors outlined by the Supreme Court in Barker v. Wingo, 407 U. S. 514, 530 (92 SC 2182, 33 LE2d 101) (1972) to determine whether the trial court abused its discretion in denying the motion. Burns v. State, 265 Ga. 763, 764 (462 SE2d 622) (1995). The four factors in the balancing test are: (1) length of delay; (2) reason for delay; (3) defendant’s assertion of rights; and (4) prejudice to defendant. Barker, supra at 530.

Length of Delay. As Daughenbaugh was originally indicted in 1991 and was not tried until 1996, the delay is sufficient to trigger a threshold presumption of prejudice. See Brown v. State, 264 Ga. 803, 805 (2) (450 SE2d 821) (1994). The effect of delay on the court’s determination increases with the length of delay; however, mere delay is not, by itself, sufficient to find a violation. Doggett v. United States, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992). See also Obiozor v. State, 213 Ga. App. 523, 524 (2) (445 SE2d 553) (1994).

Reason for Delay. Because some of the delay in prosecuting this case is unexplained, this factor is construed against the State. See Brown, supra. However, the record shows that a significant portion of the delay is attributable to jurisdictional and venue questions which arose between federal, Fulton County, and DeKalb County authorities. Venue in DeKalb County was not apparent until 1993, when a witness came forward with more information about the murder. While these questions took time to resolve, the resulting delay is understandable. See Haisman v. State, 242 Ga. 896, 898 (252 SE2d 397) (1979) (delay justified where attributed to necessary further investigation); Vick v. State, 211 Ga. App. 735, 738 (3) (b) (440 SE2d 508) (1994) (delay caused by logistical difficulties arising from multijurisdictional prosecutions); see also Doggett, supra at 656 (“pretrial delay is often both inevitable and wholly justifiable”). Furthermore, a portion of the delay resulted from Daughenbaugh’s confinement by Kentucky authorities and their refusal to release him for trial in 1991 because of pending charges. See Obiozor, supra at 525 (finding defendant’s confinement by federal authorities a factor in delay attributable to him). Thus, this factor does not weigh heavily against the State.

Assertion of Rights. Daughenbaugh did not assert his speedy trial rights until he filed a demand for trial in June 1994. He attributes his failure to assert his rights earlier to the action of Fulton County authorities in removing the detainer against him. However, the record clearly shows that Daughenbaugh knew of the Fulton County indictment against him in 1991 but did not diligently assert his right to a speedy trial even though he was aware of that right. Therefore, we do not construe this factor strongly in his favor. See Doggett, supra (if defendant knows of charges, failure to assert rights will be weighed heavily against him). The delay between June 1994 and the time of trial was not excessive.

Prejudice to Defendant. The court’s consideration of prejudice extends to concerns of: (1) oppressive pretrial incarceration; (2) the anxiety caused by delay; and (3) the possibility the defendant’s case will be impaired by the passage of time. Brown, supra at 804-805, citing Barker, supra at 532. In light of the long Kentucky sentence he was serving, Daughenbaugh produced no evidence of pretrial incarceration attributable to the State’s delay and only minimal evidence of additional anxiety caused thereby. See Vick, supra at 738.

Decided February 28, 1997

Virginia W. Tinkler, for appellant.

J. Tom Morgan, District Attorney, Thomas S. Clegg, Desiree S. Peagler, Assistant District Attorneys, for appellee.

As to the most important factor, impairment of the defendant’s ability to defend himself, see Doggett, supra, the record shows the delay caused minimal harm, if any, to Daughenbaugh’s defense. The only witnesses he contends were lost by the passage of time were two character witnesses — his mother and a minister — who died before trial. While witness Lori Wilt changed her testimony, that change did not result from delay. The parties stipulated that the only evidence bearing on Daughenbaugh’s commission of the crime was the transcript of the Shields trial held in June 1994. Thus, any delay after Daughenbaugh filed his first demand for trial in June 1994 could not have resulted in prejudice to his case. See Haisman, supra at 899 (2) (finding that items of evidence that were lost did not prejudice defendant).

Balancing these factors pursuant to Barker, supra at 533, we find that while the delay in Daughenbaugh’s trial is partially attributable to the State, the complex nature of the crime and Daughenbaugh’s own failure to assert his rights also contributed significantly to the delay. Furthermore, it is apparent that no delay impaired Daughenbaugh’s ability to defend himself. Under these circumstances, the trial court did not abuse its discretion in ruling that the State had not violated Daughenbaugh’s Sixth Amendment right to speedy trial. See Barker, supra at 534.

Judgment affirmed.

Pope, P. J., and Beasley, J, concur. Johnson, J., not participating.