text:
    A94A1577.
    BROWNING et al. v. PACCAR, INC.
    (448 SE2d 260)
   Beasley, Presiding Judge.

In June 1988, 15-year-old Thomas Browning was riding as a passenger in a 1979 Peterbilt tractor-truck designed, manufactured, and sold as new by Paccar, Inc. Frank Browning, Thomas’ uncle, was driving the Peterbilt pulling a trailer. At the same time, Jenkins was operating a pickup truck in a westerly direction on the same highway. Jenkins’ pickup truck was involved in a violent collision with the Peterbilt when Jenkins, without signaling, attempted a left turn across the path of the Peterbilt. As a result, the Peterbilt overturned on its right side and caught fire, which was fueled by the contents of the fuel tank. Thomas Browning was trapped inside the Peterbilt as fire engulfed the vehicle. He and Jenkins sustained fatal injuries.

Browning’s parents instituted this wrongful death action against Paccar and the administratrix of Jenkins’ estate, seeking a recovery against Paccar on theories of strict liability and negligence. They assert in the complaint that Paccar designed, manufactured, and sold the Peterbilt as a new product in a defective, unsafe, and unreasonably dangerous condition, in that when the Peterbilt left the control of Paccar, it was unreasonably susceptible to having its fuel system breached and fuel ignited when involved in highway collisions.

Among other things, plaintiffs charge Paccar with negligence in the configuration of the fuel and electrical systems, particularly the location of the fuel tanks and battery box in a known high-frequency impact area, outside the frame rails, unreasonably close to both occupants and ignition sources.

In his opening statement, Paccar’s attorney remarked that the Peterbilt model truck involved in this collision was first made in the late 1950’s; that at least 50,000 were made with the same fuel system, which has also been put in a newer model; that this is the only claim ever made against Peterbilt or Paccar for a post-collision fire; and that there has never been any kind of recall or government action taken against this fuel system.

Based upon his reconstruction of the accident, plaintiffs’ engineering expert, Dr. Charles Benedict, testified that the fire started because the impact of the collision drove the bumper into the left front wheel, the left front wheel into the battery box, and the battery box into the fuel tank, thereby causing the fuel tank to be punctured by the battery box and the fuel to drain out and become ignited by electrical arcing from the battery box.

However, a bystander testified on behalf of Paccar that the fire began with a flame around the transmission in the area of the engine and then spread to the fuel tank after another bystander sprayed it with a fire extinguisher. Paccar’s investigative engineer, Gilbert, testified that a fuel line to the left tank was sheared when the cab rolled over and that spilled fuel fed the fire after it started.

Paccar’s expert in automotive engineering, Noble, and its product safety manager, Riggs, both testified on the basis of the physical evidence that the battery box did not puncture the fuel tank. Noble also testified that the design of the Peterbilt fuel system was reasonably safe and wholly appropriate.

After two days’ deliberation and an “Allen” charge, the jury returned a verdict in favor of the defendant. Plaintiffs appeal the court’s entry of judgment on the verdict and denial of their motion for new trial.

1. The first claimed error is the court’s denial of plaintiffs’ motion in limine. It sought to prohibit any reference or suggestion that the product has never been recalled or that no regulatory proceeding has ever been instituted against it.

(a) First, plaintiffs rely upon a line of cases applying the general rule that in a negligence action arising from a vehicular accident, the issue before the court is the negligence or non-negligence of the defendant at the time and place of the accident, and each transaction must be ascertained by its own circumstances. Williams v. Naidu, 168 Ga. App. 539, 540 (309 SE2d 686) (1983). Unlike the defendant-physicians’ inadmissible evidence of “no prior suits” in Williams, the evidence in this case falls within an exception to this general rule which Williams recognizes as it is described in Gunthorpe v. Daniels, 150 Ga. App. 113 (1) (257 SE2d 199) (1979). That is where similar occurrences or methods of acting or transactions tend to prove some fact of the case on trial. Such other matters might show knowledge of a defect, or causation, or prior existence of a dangerous or hazardous condition, or it might rebut a contention of impossibility. Id.

Here it is alleged that the design and manufacture of the vehicle caused the injury. If what was claimed as a dangerous defect were such, it would have occurred in the thousands of identical vehicles which had been produced upon the same design and by way of the same manufacturing process as the subject vehicle. The fact that none of such vehicles had been subjected to recall and Paccar had never been subjected to regulatory action with respect to the claimed defect despite the thousands of identical vehicles in use, tends to negate the allegation that the configuration was a dangerous design. All the vehicles shared a common design and manufacture, just as the 125 turkey dinners in Carsten v. Wilkes Supermarket of Gwinnett County, 181 Ga. App. 834 (353 SE2d 922) (1987), shared a common preparation process.

In the case of the turkey dinners, the evidence that no consumers attributed illness to them except plaintiffs was deemed relevant to show defendant’s preparation of them was not negligent. Similarly, in this case of fuel and electrical system configuration on vehicles, the evidence that the customary methods for protecting the public from defective vehicles had not been instituted in connection with these vehicles was relevant to show defendant’s design and manufacture was not negligent. Admission of the evidence did not violate OCGA § 24-2-2.

(b) Plaintiffs also argue that a recall or regulatory proceeding could not have occurred, in that there are no government standards applicable to the design and manufacture of fuel systems in tractor-trucks such as the Peterbilt.

Paccar presented evidence that even though there are no federal motor vehicle safety standards directly applicable to Paccar in its manufacture of the Peterbilt, a defect in the fuel system creating a safety hazard on the highways could result in regulatory action or a forced recall.

Evidence that there has been a recall is only admissible if there is first introduced some independent proof that the particular product in question suffers from the same defect. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 286 (2) (260 SE2d 20) (1979). On the other hand, the absence of a recall is not irrelevant where, as here, the manufacturer is engaged in mass production of a vehicle over a period of many years and the claim is that each vehicle suffered from the same design defect.

2. Plaintiffs contend that the court erred in: (1) refusing to admit evidence of other litigation against Paccar, (2) refusing to admit evidence of other litigation against various of Paccar’s competitors, and (3) refusing to allow cross-examination of Riggs regarding Paccar’s knowledge of the litigation against its competitors.

Evidence of this other litigation consisted of a copy of a complaint filed by Benton against Paccar in federal district court in 1975 and copies of reported decisions, primarily by federal circuit courts of appeal, in suits by Huff against White Motor Corporation and by the Maxeys and the Sodens against Freightliner Corporation. Judgments were entered against defendants in each suit.

(a) At trial, plaintiffs sought to question their expert Benedict about whether or not a manufacturer in exercising reasonable care in designing, manufacturing, and marketing a product would follow litigation concerning competitors’ products that are similar in design. Paccar objected to Benedict’s testifying concerning litigation involving other vehicles built by other manufacturers without a showing of substantial similarity. Plaintiffs then elicited testimony from Benedict concerning the similarities between this suit and the suit against Freightliner Corporation by the Maxeys and the similarities in the design of all the manufacturers’ trucks. Paccar objected to plaintiffs’ introduction of published court decisions in cases against the other manufacturers, because the statement of facts in each opinion is skeletal and Paccar would be unable to establish through cross-examination that the other cases are in fact dissimilar.

The court refused, not incorrectly, to allow plaintiffs to prove facts through the introduction of the court opinions. “Ordinarily the reviewing court does not discuss the facts of the case, save in so far as a discussion of the facts may be necessary in the determination of questions of law.” McCullough v. State, 11 Ga. App. 612, 617 (5) (76 SE 393) (1912). “[A] judicial opinion should be admitted as substantive evidence of a similar accident only in the rarest of cases when no other form of evidence is available and then only with detailed limiting instructions.” Johnson v. Colt Indus. Operating Corp., 797 F2d 1530, 1534 (3) (10th Cir. 1986). There appears no reason that evidence of the other accidents could not have been adduced in another more complete form.

The court did allow plaintiffs to ask Benedict whether there had been complaints or litigation about defects in the outside-the-frame-rail gas tanks and designs prior to Paccar’s assembly of this truck. When the court so ruled, plaintiffs stated that this was reasonably satisfactory. Their acquiescence in this ruling deprives them of the right to complain of it on appeal. Upshaw v. Cooper, 127 Ga. App. 690, 692 (1) (194 SE2d 618) (1972).

(b) Plaintiffs also requested that they be allowed to introduce the complaint filed by Benton against Paccar to contradict the opening statement of Paccar’s attorney that this is the only claim ever made against Paccar for a post-collision fire involving a Peterbilt truck. Benton’s complaint also concerned a post-collision fire involving a Peterbilt truck. Initially, the court ruled, incorrectly, that Paccar had not opened the door to introduction of the complaint, but indicated a willingness to revisit this ruling.

In their initial cross-examination of Riggs, plaintiffs asked whether litigation against Paccar’s competitors, which challenged the safety of the generic fuel system, had ever been brought to his attention. After Paccar objected, plaintiffs stated that they wanted to cross-examine the witness concerning the Benton case. The court adhered to its ruling that the complaint proved nothing, but it stated that plaintiffs could ask the witness if he had been informed of any litigation in the industry. Consequently, there is no merit in plaintiffs’ contention that the court erred in restricting their cross-examination of Riggs concerning Paccar’s knowledge of litigation against its competitors.

(c) On subsequent re-direct examination, Paccar asked Riggs whether any claims had been filed against Paccar before 1979 for a post-crash fuel-fed fire injury or death. He responded that there had been one claim but that the allegations were dissimilar. On further cross-examination, plaintiffs elicited testimony about the facts of the Benton case as shown by the complaint. Paccar elicited further testimony from Riggs that the claim in the Benton case was not similar to the claim here. Plaintiffs then sought to introduce the complaint. However, the court would not admit it in that the jury had heard enough about it.

The court’s refusal to admit the complaint did not harm plaintiffs because they were permitted to engage in extensive cross-examination of Riggs concerning it and its contents. See Rollins, Inc. v. Tennant Co., 170 Ga. App. 641, 642 (317 SE2d 659) (1984).

3. Plaintiffs contend that the court erred in excluding various United States patents for puncture-resistant fuel tank designs.

Their expert in mechanical engineering, Patton, testified that these patents, which were filed as early as the 1940’s, represent attempts to avert post-crash fuel-fed fires and show that such fires are a recognized problem. When plaintiffs sought to admit the patents in evidence, Paccar raised a hearsay objection. The court refused to admit the patents because their introduction would require Paccar to call the patent holders as witnesses in order to engage in cross-examination, and plaintiffs had already shown by Patton’s testimony that which it sought to show through this offer of proof. For the latter reason, plaintiffs were not harmed by the court’s refusal to admit the patents themselves. See Rollins, supra.

4. Plaintiffs contend that the court erred in refusing to allow them to cross-examine Riggs regarding Paccar’s failure to supplement its discovery responses after Riggs knew that he intended to materially change his deposition testimony.

If Paccar breached its duty to inform plaintiffs of Riggs’ changed testimony prior to trial by supplementing its discovery responses and if this prejudiced plaintiffs in presentation of their case, the authorized sanction was a postponement or mistrial. White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (5) (417 SE2d 383) (1992). Plaintiffs did not request such relief, although the court afforded an opportunity to seek some resolution. They thoroughly cross-examined Riggs concerning the conflict between his trial and deposition testimony. No error appears. See Morrison v. Dept. of Transp., 166 Ga. App. 144, 147 (1) (303 SE2d 501) (1983).

5. Plaintiffs contend that the court erred in refusing to admit certain exhibits and allow them to be considered by the jury during its deliberations although these exhibits were used in evidence.

The exhibits consisted of a multi-page diagram and a computerized animation videotape prepared by Benedict to show his reconstruction of the accident. The jury viewed this diagram and videotape when they were used by Benedict to illustrate his testimony. It is not error to exclude such demonstrative evidence from the jury room. McClure v. State, 163 Ga. App. 236, 238 (3) (293 SE2d 496) (1982).

6. Plaintiffs contend that the court erred in excluding a videotape of an exemplar accident.

This videotape was of an accident involving an International Harvester truck in which angular steps hanging down from the cab penetrated its fuel tank. Plaintiffs offered this videotape to show that when one of these generic fuel systems is involved in a frontal collision, the fuel tanks are driven backward. In the accident involving the International Harvester, both the right and left fuel tanks were damaged, but only the left fuel tank leaked fuel. Plaintiffs asserted that there was no fire because the battery box was not side-mounted next to the fuel tank outside the frame rails but rather behind the cab and therefore there was no electrical problem that caused the fuel to ignite. The purpose was to show a safe alternative and to confirm that the Peterbilt design was foreseeably defective. The court ruled that Benedict could testify to these things but that plaintiffs could not show the videotape.

Admissibility of evidence is a matter which rests largely in the sound discretion of the trial court. Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 338 (4) (319 SE2d 470) (1984). It was not an abuse of discretion to disallow the playing of the videotape depicting a dissimilar product (battery elsewhere), to prove a different result from a similar occurrence, particularly when testimony established the same facts.

7. Plaintiffs contend that the court erred in refusing to give its request to charge on a manufacturer’s duty regarding production of a vehicle with a crashworthy design.

The trial court instructed the jury on the requested legal principle but omitted from the charge those portions of the request which contained argumentative statements of fact. We find no error. See Smith v. Odom, 194 Ga. App. 615 (2) (391 SE2d 453) (1990); Southern R. Co. v. Oliver, 177 Ga. App. 729, 731 (1) (341 SE2d 270) (1986).

8. Plaintiffs contend that the court erred in refusing to charge the jury that a manufacturer cannot limit or exclude its liability for producing a defective product which causes injury by giving the purchaser a choice between optional features.

In support of this request to charge, plaintiffs cited paragraph (3) of subsection (b) of OCGA § 51-1-11. Paragraph (1) imposes “strict liability” upon the manufacturers of new personal property for injury to persons and property irrespective of privity. Ellis v. Rich’s, Inc., 233 Ga. 573, 577 (212 SE2d 373) (1975). Paragraph (3) states that “[a] manufacturer may not exclude or limit the operation of this subsection.” Paccar did not seek to do this. Although Paccar’s attorney did remark in his opening statement that purchasers of Peterbilt trucks have a number of options as to the location of the battery box, and Riggs did testify that the purchaser can have the battery box moved to any number of places depending on the use to which the truck is to be put, Paccar’s defense was that the location in this instance is not defective, unsafe, or unreasonably dangerous. It has not sought to exclude or limit the operation of OCGA § 51-1-11 (b). The request to charge was not adjusted to the evidence or to the theory of the case.

Moreover, it combined argumentative facts with a legal principle, as did the request to charge reviewed in Division 7, supra.

9. Plaintiffs contend that the court erred in refusing to give their request to charge the jury that if a product cannot be made reasonably safe but it is nevertheless desirable that the product be manufactured and distributed because of its utility, it is the duty of the manufacturer to appropriately warn of any dangerous condition which is likely to be encountered.

At trial, plaintiffs cited only federal authority in support of this request. On appeal, they rely upon Center Chem. Co. v. Parzini, 234 Ga. 868 (218 SE2d 580) (1975) and Pepper v. Selig Chem. Indus., 161 Ga. App. 548 (288 SE2d 693) (1982). Center Chem. recognizes that “[m]any products can not be made completely safe for use and some can not be made safe at all. However, such products may be useful and desirable. If they are properly prepared, manufactured, packaged and accompanied with adequate warnings and instructions, they can not be said to be defective.” 234 Ga. at 870 (4). Pepper recognizes that a manufacturer may be strictly liable for any defect in the product which is the proximate cause of the product user’s injury and that a manufacturer’s failure to warn of the dangers in using a product may constitute a defect. 161 Ga. App. at 550 (3).

Decided August 23, 1994.

William S. Stone, Foy R. Devine, for appellants.

Neely & Player, Edgar A. Neely, Jr., Richard B. North, Jr., for appellee.

The gravamen of the complaint in this case is that the Peterbilt’s fuel and electrical systems should have been configured differently in order to be reasonably safe, not that the systems could not be made reasonably safe. In addition, it does not appear from the evidence that Paccar’s failure to warn of the dangers in using the Peterbilt could be considered the proximate cause of Browning’s death. Thus, this theory of recovery was not sustained by the evidence.

10. The court did not abuse its discretion in denying plaintiffs’ motion for new trial on the general grounds. Kendrick v. Kendrick, 218 Ga. 460 (1) (128 SE2d 496) (1962).

11. The court’s direction of a verdict in favor of Paccar on the issue of punitive damages is moot because the jury returned a verdict in favor of Paccar on the issue of liability. Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 155 (1) (342 SE2d 352) (1986).

Judgment affirmed.

Andrews and Johnson, JJ., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A94A0923.
    KRELL v. NATIONAL MORTGAGE CORPORATION.
    (448 SE2d 248)
   Andrews, Judge.

National Mortgage Corporation (National) held mortgages over Krell’s residence and a separate rental property owned by Krell. Both mortgages were insured by the United States Department of Housing & Urban Development (HUD) under the National Housing Act (12 USC § 1701 et seq.). See 12 USC § 1709.

Krell defaulted on both mortgages by failing to make timely monthly payments. National refused to accept Krell’s tender of partial payment on amounts due, insisting that payment be made on each mortgage for the full amount of the monthly payments due plus late charges. The mortgages continued in default without payments for approximately one year. After National instituted foreclosure proceedings, Krell filed for protection under Chapter 13 of the United States Bankruptcy Code. Krell subsequently made lump sum full payments bringing both mortgages current and stopping the foreclosure proceedings.

Krell instituted two actions against National (one for each mortgage) on the basis that National’s refusal to accept partial payments violated HUD regulations controlling mortgage servicing responsibilities for federally insured mortgages (see 24 CFR § 203.500 et seq.) and was an unfair or deceptive practice in the conduct of consumer transactions in violation of the Georgia Fair Business Practices Act (Georgia Act) (OCGA § 10-1-390 et seq.) or the Tennessee Consumer Protection Act of 1977 (Tennessee Act) (Tenn. Code Ann. § 47-18-101 et seq.). Krell appeals from the trial court’s grant of summary judgment in favor of National in both actions.

For purposes of reviewing the grant of summary judgment, we will assume, without deciding, that National violated HUD regulations promulgated pursuant to the National Housing Act requiring acceptance of partial payments by a mortgagor. See 24 CFR § 203.556. Nevertheless, we conclude that “the National Housing Act and the regulations promulgated thereunder deal only with the regulations between the mortgagee and the government, and give the mortgagor no claim to duty owed nor remedy for failure to follow.” Roberts v. Cameron-Brown Co., 556 F2d 356, 360 (5th Cir. 1977). Accordingly, Krell had no private cause of action against National for violation of the HUD regulations and the trial court properly granted summary judgment in favor of National on this claim. Id.; see Kingston Square Tenants Assn. v. Tuskegee Gardens, Ltd., 792 FSupp. 1566, 1573 (S.D. Fla. 1992); Fed. Nat. Mortgage Assoc. v. Prior, 381 NW2d 558 (Wis. App. 1985).

For the same reason, the trial court also properly granted summary judgment on Krell’s remaining assertions that violation of the HUD regulations supported claims under the Georgia Act or the Tennessee Act. Even assuming, arguendo, that the Georgia Act would apply to a mortgage transaction of this type (see Whisenant v. Fulton Fed. Sav. &c. Assn., 200 Ga. App. 31, 34 (406 SE2d 793) (1991), Krell’s action cannot be based solely on a claim that National violated the HUD regulations. Roberts, supra. As to the Tennessee Act, assuming, without deciding, that the Georgia rule of lex loci delicti would justify application of the Tennessee Act to the actions taken by National in Memphis, Krell has not provided any evidence of, nor have we found, any Tennessee case addressing this issue showing that Tennessee law differs from our determination that violation of the HUD regulations does not support a private cause of action against National. Accordingly, for purposes of this appeal, the law of Tennessee will be presumed to be the same as Georgia law. Aetna Cas. &c. v. Westinghouse Elec. Co., 176 Ga. App. 748, 753 (337 SE2d 390) (1985); Yates v. Lowe, 179 Ga. App. 888 (348 SE2d 113) (1986).

Decided August 15, 1994

Reconsideration denied August 25, 1994

Mark L. Krell, pro se.

Webb, Tanner & Powell, Anthony O. L. Powell, R. Jack Wilson, Steven A. Pickens, for appellee.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

       National was located in Memphis, Tennessee, where Krell alleges that the refusal to accept partial payments occurred.

       Appellee’s motion to dismiss the appeal is denied. Appellee’s motion to strike documents attached to appellant’s brief is rendered moot. Appellant’s counter-motions to appel-lee’s motions are rendered moot.


text:
    A94A1413.
    TALTON et al. v. PERIMETER PLACE ASSOCIATES, L. P.
    (448 SE2d 241)
   Andrews, Judge.

On December 9, 1992, plaintiffs/appellants Johnnie and Edford Taitón filed suit against Perimeter Place Associates for injuries Johnnie Taitón claimed to have received when she fell from a bench at the defendant’s Perimeter Place Shopping Center on August 29, 1991. The injuries occurred when the bench Taitón sat on tipped on its end, causing her to fall on the sidewalk. Talton’s husband, Edford, sued for loss of consortium.

On September 15, 1993, Perimeter Place filed a motion for summary judgment arguing that it had no superior knowledge of the allegedly defective condition of the bench. With the motion, Perimeter Place filed the affidavit of Francis Lott, who was the general partner and managing agent of Perimeter Place and partner in Lott Properties. Lott stated that on the date of the incident, the shopping center was managed by Lott Properties. Lott recalled that the subject bench was placed at the shopping center around June 1991, by a company named Quick Sign. The bench displayed various advertisements on it and Quick Sign paid no compensation for its placement. Lott stated that between the time the bench was placed at Perimeter Place and Talton’s accident, neither Perimeter Place nor Lott Properties received notice of any problems with the bench or accidents involving it. He stated that because no notice was received of problems with the bench, no inspection of the bench was conducted.

The trial court granted Perimeter Place’s motion and the Taltons appeal. In two enumerations of error, they claim that the trial court erred in granting summary judgment and determining first that Perimeter Place met its duty of inspecting the premises and secondly, that Perimeter Place lacked constructive knowledge of the bench’s defects so as to alert it to inspect the bench. In support of their position they cite several cases including, Begin v. Ga. Championship Wrestling, 172 Ga. App. 293 (322 SE2d 737) (1984); Barksdale v. Nuwar, 203 Ga. App. 184 (416 SE2d 546) (1992); and Thompson v. Regency Mall Assoc., 209 Ga. App. 1 (432 SE2d 230) (1993).

The Taltons also rely on Lott’s deposition testimony in which he stated that he was responsible for maintenance of the common areas of the shopping center. To that end, he inspected the premises by walking the sidewalk, driving through the parking lot and talking to the tenants about once a week. Lott stated that although he had not been notified of any defects with, or accidents caused by the bench, he concluded after the subject incident that the design of the bench combined with Mrs. Talton’s weight caused the accident. Lott testified: “[t]he legs of the bench are simply too close to the center of the bench; they’re not on the end. They’re quite a distance from the end of the bench and as such someone sitting on the end of the bench could very well just make it act like a seesaw.” He stated that this condition would be obvious to an observer.

The deposition of Mrs. Taitón is included in the materials before us. In it, she stated that the bench “looked like a nice bench” to her, that it looked like all other benches, and therefore she sat on it. She did not examine the bench before sitting down. When she sat on one end of it, the bench tilted up and she slid off onto the sidewalk. Mrs. Taitón stated that at the time of the incident, she weighed approximately 260 pounds.

“An occupier of premises is under a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. An invitee enters upon the premises under an implied representation, or assurance, that the land has been prepared and made ready and safe for his reception. . . . An occupier of land is ordinarily allowed a reasonable time to exercise care in inspecting and keeping the premises in a safe condition. However, an occupier is under no duty to continuously patrol the premises to discover defects.

“The invitee also must exercise ordinary care for her safety and must by the same degree of care avoid the effect of the proprietor’s negligence after it became apparent, or in the exercise of ordinary care should have learned of the defect.” (Citations and punctuation omitted.) Begin, supra at 294; see generally Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980).

Decided August 12, 1994

Reconsideration denied August 25, 1994.

Hughes & Hobby, David T. Hobby, John T. Croley, Jr., for appellants.

Long, Weinberg, Ansley & Wheeler, Quinton S. Seay, for appel-lee.

In the instant case, there was no evidence that Perimeter Place ever received notice that the benches were unsafe, nor was there any evidence of prior accidents. It is undisputed that Perimeter Place lacked actual knowledge of the alleged hazard. Thus, the issue becomes whether Perimeter Place had superior constructive knowledge of the defect. Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) (1991). “[P]laintiff’s sole avenue of possible recovery is one in which constructive knowledge on the part of defendant is premised upon defendant’s failure to exercise reasonable care in inspecting and keeping the premises in a safe condition.” (Punctuation omitted.) Id. at 453.

Again, we conclude that Perimeter Place breached no duty by failing to discover the alleged defect. Prior to the accident here, there was no reason for Perimeter Place to suspect that there was any problem with the bench. There is no evidence that Perimeter Place failed to exercise reasonable care in inspecting and keeping the premises in a safe condition. “A landowner is not an insurer of an invitee’s safety.” (Punctuation omitted.) Barksdale, supra at 185. Thus, despite the fact that the acts of negligence alleged here are of design, we find that “[ordinary diligence, under such circumstances and the facts of this case, did not require an inspection where appellee had no reason to think an inspection was necessary.” Wilkerson v. Charles W. Bell & Assoc., 205 Ga. App. 779, 780 (423 SE2d 711) (1992); see generally Young v. Wal-Mart Stores, 209 Ga. App. 199 (433 SE2d 121) (1993). The trial court did not err in granting the motion for summary judgment.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

       Appellee asserts here that the Taltons have filed a products liability action against the manufacturer of the bench, though there is no evidence in the record before us to support this assertion.


author: Beasley, Presiding Judge.

text:
    A94A0009.
    SMITH v. DEPARTMENT OF HUMAN RESOURCES et al.
    (448 SE2d 372)
   Beasley, Presiding Judge.

In January 1992, Smith filed a petition against the Georgia Department of Human Resources (“DHR”)» the State Personnel Board, and the Employees’ Retirement System of Georgia. Plaintiff filed the petition pursuant to the Declaratory Judgment Act (OCGA § 9-4-1 et seq.), the Administrative Procedure Act (OCGA § 50-13-10), and the law governing the Employees’ Retirement System (OCGA § 47-2-1 et seq.).

Plaintiff is employed by the DHR. She became a Senior Court Service Worker but was assigned the responsibilities of a Community Detention Worker in Hall County. For a period ending in April 1990, she performed the duties of District II Contract Service Coordinator. In August 1991, the DHR entered a reduction in force plan pursuant to a budget cut by the state legislature. Plaintiff asserts that as a result of this plan, the position of District II Contract Service Coordinator was eliminated on paper, but in actuality her position as Community Detention Worker in Hall County was eliminated, and she was reassigned to a position as an intake officer in Barrow County in November 1991. Her appeal of her reassignment was denied by the State Personnel Board.

Plaintiff seeks to be restored to her position as Community Detention Worker in Hall County or in the alternative to be declared involuntarily separated from her employment as being reassigned to a position not reasonably compatible to her previously assigned position as contemplated by OCGA § 47-2-123 (h) (2) (B).

The State Personnel Board and DHR moved to dismiss. The State Personnel Board argued that it is excluded from the coverage of the Administrative Procedure Act under OCGA § 50-13-2 (1). The DHR argued that although it is not excluded from coverage, personnel matters are excluded under OCGA § 50-13-2 (6) (H). Both of these defendants argued that a declaratory judgment action will not lie here since the rights of the parties have accrued in that plaintiff’s job reassignment has already taken place, and plaintiff faces no risk of taking future undirected action. State Health Planning Agency v. Coastal Empire Rehab. Hosp., 261 Ga. 832 (412 SE2d 532) (1992); Dept. of Corrections v. Brown, 198 Ga. App. 862 (403 SE2d 452) (1991). The Employees’ Retirement System moved to dismiss on other grounds. The trial court granted defendants’ motions to dismiss on the grounds asserted by the DHR and State Personnel Board.

Plaintiff filed a notice of appeal in the Georgia Supreme Court on the ground that she is seeking equitable relief. Finding no equitable issues involved in this appeal, the Supreme Court transferred the appeal to this court. We then dismissed the appeal due to plaintiffs failure to follow application requirements for appeals from judgments of the superior court reviewing decisions of state or local administrative agencies. OCGA § 5-6-35 (a) (1). The Supreme Court granted plaintiff’s application for certiorari and remanded the appeal to this court for consideration in light of the overruling of State Farm Mut. Auto. Ins. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39) (1989), in Martin v. Williams, 263 Ga. 707 (438 SE2d 353) (1994).

1. In Martin, appellants filed a motion styled as both a motion for new trial and a motion to set aside the judgment. The denial of a motion for new trial is directly appealable under OCGA § 5-6-34 (a). The denial of a motion to set aside a judgment has to be appealed under the application requirements of OCGA § 5-6-35. OCGA § 5-6-35 (a) (8). Citing Yancey, we dismissed the entire appeal because of appellants’ failure to follow the application requirements.

The Supreme Court reversed. In Division 2 of its opinion, the Court held that Yancey “only stands for the proposition that if a party is appealing directly from a denial of a motion for new trial, the party may not add to that appeal issues relating to a denial of a motion to set aside a judgment that, standing alone, would be subject to the application requirements of [OCGA] § 5-6-35.” Id. at 708-709. However, in Division 3, the Court overruled Yancey as being in conflict with other Supreme Court decisions liberally construing OCGA § 5-6-34 (d) so as to permit an order that is not directly appealable by itself to be appealed along with a separate, directly appealable order.

2. Under Martin’s overruling of Yancey, plaintiff may appeal the denial of her request for a declaratory judgment and, under OCGA § 5-6-34 (d), add to that appeal issues relating to other rulings which may affect the proceedings below without regard to whether they are appealable standing alone.

Plaintiff’s only contention is that the trial court erred in dismissing her claim for declaratory relief. She argues that the trial court has in effect ruled that by reason of her taking the new position, any questions for declaratory judgment are moot. She states that this case is not moot, since there exists an actual controversy as to whether she has been involuntarily separated.

Plaintiff has mischaracterized the court’s order. The court did not rule that this case is moot but instead that a declaratory judgment action will not lie since the rights of the parties have accrued and plaintiff faces no risk of taking future undirected action. Since plaintiff does not challenge this ruling, we reject her contention that the court erred in dismissing her request for declaratory relief. See Dept. of Corrections v. Brown, supra.

Alford v. Pub. Svc. Comm., 262 Ga. 386 (418 SE2d 13) (1992), relied upon by plaintiff, is distinguishable in that the aggrieved state employee petitioned for writ of mandamus and damages rather than for a declaratory judgment.

Decided August 15, 1994

Reconsideration denied August 26, 1994 —

Macklyn A. Smith, Sr., for appellant.

Michael J. Bowers, Attorney General, Wayne P. Yancey, Susan L. Rutherford, Jeffrey L. Milsteen, Senior Assistant Attorneys General, for appellees.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A1366.
    GILBERT/ROBINSON, INC. v. MEYERS.
    (448 SE2d 246)
   Beasley, Presiding Judge.

Employer Gilbert/Robinson, Inc. d/b/a Chequers, Ltd. and its insurer, Lumbermens Mutual Casualty Company were granted discretionary appeal from an order of the superior court reversing an award of the State Board of Workers’ Compensation which award failed to continue benefits to former employee/claimant Meyers, and remanding the case for a further factual finding. In controversy is that portion of the ALJ award as adopted by the Board dealing with any benefits due Meyers governed by the holdings in Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991) and Euco Plastics v. Burton, 200 Ga. App. 121 (407 SE2d 60) (1991).

The ALJ held a hearing to determine all issues regarding an injury allegedly sustained by Meyers on March 3, 1989, or in the alternative a change in condition entitling Meyers to resumption of temporary partial disability benefits for an injury sustained by him on January 14, 1991. The 1989 claim was found to be time-barred and is not at issue. The ALJ determined the following with regard to the 1991 injury.

On January 14, 1991, Meyers was performing his job duties as head chef at Chequers, Ltd. when he slipped and landed on his back and left wrist. Because of the injury, surgery was performed on Meyers’ left wrist on February 28. On June 17, surgery was performed on Meyers’ right upper extremity and right wrist. After injuring his left wrist on March 3, 1989, Meyers, who was ordinarily left-hand dominant, had to switch to dominant use of his right hand because of the pain in his left hand. Chefs work is hand-intensive and involves the lifting of significant weight. The switch aggravated an old injury to the right wrist, which thus also was compensable.

On February 4, 1991, Meyers was removed as head chef at Che-quers and the company did not make any other serious job offer to him. Meyers went to work for a reduced income as a food salesman for another company on November 4, 1991 but was terminated on February 4, 1992 for “lack of production.” As of the date of the hearing on January 13, 1993, there was no medical evidence of record that Meyers had been pronounced able to return to his normal work as a head chef.

The ALJ further determined that after Meyers was terminated as a food salesman he had been drawing unemployment benefits and “he has not sought other employment.” The ALJ concluded that the facts of Meyers’ case placed him squarely within the holdings of Aden’s and Evco and that Meyers was entitled to temporary partial disability benefits under OCGA § 34-9-262 only for the period of his employment as a food salesman at a reduced income, i.e., from November 4, 1991 to February 4, 1992.

On appeal of the award, as adopted by the Board, the superior court reversed the decision as to the duration of temporary partial disability benefits and remanded for a factual finding as to whether Meyers’ termination from his job as a food salesman was related to his compensable disability. The court concluded that certain findings of fact pointed to Meyers’ continual loss of earnings due to the disability caused by his compensable injury, that the fact that Meyers was drawing unemployment compensation did not necessarily mean that he was not seeking suitable work, and thus, that the findings of fact did not lead to the conclusion that Meyers’ temporary partial benefits should have ceased when his last job ceased.

It was error to reverse the award and remand the case for a further factual finding.

Although Aden’s and Evco involved the question of the resumption of total disability benefits under OCGA § 34-9-261, the controlling principle is equally applicable in this case, in which temporary partial disability benefits under OCGA § 34-9-262 are at issue. “When an employee who has received a disabling injury returns to work and is discharged for a cause unrelated to the injury, he is not entitled to compensation as a matter of law; nor is he denied compensation as a matter of law. [Cit.] In seeking a resumption of benefits, the burden is on the employee to show that, ‘after his termination for cause, “his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury.” (Cit.)’ [Cit.]” Evco, supra at 122. See also Aden’s at 220.

There was no necessity to remand the case for a further finding as to the cause of Meyers’ termination from the subsequent employer. There was the undisputed finding that Meyers lost the employment because he did not produce enough as a salesman. Whether or not the lack of production was due in part or in whole to any compensable disability during this period of employment is not determinative of his right to resumption of benefits following the termination. As in Evco, where the employee claimed her failure to report for work, which led to her termination, stemmed from her inability to perform her work due to her compensable injury, the focus here is the question of a compensable disability after the termination of subsequent employment which inhibits other work. The ALJ specifically found that Meyers did not attempt to get other employment. The finding that Meyers was drawing unemployment benefits does not preclude the finding regarding his efforts, in the absence of any other evidence about the collection of unemployment benefits.

Decided August 15, 1994

Reconsideration denied August 26, 1994 —

Swift, Currie, McGhee & Hiers, Robert R. Potter, Leigh L. Jones, for appellant.

Ronald L. Hilley, for appellee.

Murphy, Murphy & Garner, Stephen E. Garner, amicus curiae.

Meyers failed to meet his burden of proving a change in condition entitling him to a resumption of benefits.

Judgment reversed.

Andrews and Johnson, JJ., concur.


author: Blackburn, Judge.

text:
    A94A1438.
    COLLINS v. LUNDA CONSTRUCTION COMPANY.
    (448 SE2d 236)
   Blackburn, Judge.

We granted the interlocutory application of Marcus Collins, Sr., Georgia’s Revenue Commissioner, for appellate review of the Superior Court of Fulton County’s grant of appellee Lunda Construction Company’s motion for partial summary judgment in this action for the refund of local taxes.

The record before us shows that Lunda Construction Company (“Lunda”), a Wisconsin highway construction contractor, performed construction work in Fulton County in 1984, 1985, 1986, and 1987, pursuant to construction contracts with the Georgia Department of Transportation (“GDOT”). It is undisputed that Lunda was not engaged in any other work in Fulton County and Lunda was only present in Fulton County because of its contracts with the State. On June 30, 1989, the Georgia Department of Revenue, on behalf of Fulton County, assessed Lunda with MARTA sales and use taxes and local option taxes in the amount of $25,943.69 for the taxable period of May 1, 1984, through April 30, 1987, on account of equipment Lunda utilized in Fulton County for work on the GDOT projects, and assessed penalties and interest on these unpaid taxes. In December 1989, Lunda paid the assessed taxes, expressly reserving the right to later seek a refund.

When Fulton County failed to respond to Lunda’s June 8, 1990, petition for a refund, Lunda commenced the instant action against Fulton County, asserting that OCGA § 50-17-29 (e) prohibited the assessment of MARTA and local taxes on the use of the equipment on the GDOT project. Pursuant to motions filed by Fulton County and Collins, the trial court dismissed Fulton County from the action and effectively substituted Collins for Fulton County as the proper party. Both parties subsequently moved for summary judgment.

Following a hearing, the trial court, relying upon this court’s decision in Lunda Constr. Co. v. Clayton County, 201 Ga. App. 106 (410 SE2d 446) (1991), found that Collins had illegally assessed taxes, interest, and penalties, against Lunda for its use of equipment on the GDOT projects in violation of OCGA § 50-17-29 (e), which specifically prohibits the assessment of “any” taxes on the performance of state contracts. The court concluded that Lunda was entitled to a refund as a matter of law because the phrase “any tax or assessment” contained in the statute included local sales and use taxes and MARTA taxes. We agree.

“OCGA § 50-17-29 (e) provides, in the first part: No city, county, municipality, or other political subdivision of this state shall impose any tax, assessment, levy, license fee, or other fee upon any contractors or subcontractors as a condition to or result of the performance of a contract, work, or services by such contractors or subcontractors in connection with any project being constructed, repaired, remodeled, enlarged, serviced, or destroyed for, or on behalf of, the state or any of its agencies, boards, bureaus, commissions, and authorities.” (Punctuation omitted.) Lunda, supra at 106-107. “There is no lack of clarity or ambiguity in this language.” Id. at 107. The statute plainly prohibits the imposition of any tax, assessment, levy, license fee, or other fee upon contractors based upon the performance of a contract, work, or services for a state agency. Id. Accordingly, we conclude that our decision in Lunda Constr. Co. is controlling, and Lunda was entitled to a refund as a matter of law. Consequently, the trial court did not err in granting Lunda’s motion for partial summary judgment and denying Collins’ motion for summary judgment.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

Decided August 4, 1994

Reconsideration denied August 26, 1994 —

Michael J. Bowers, Attorney General, Daniel M. Formby, David A. Runnion, Senior Assistant Attorneys General, for appellant.

Griffin, Cochrane & Marshall, W. Henry Parkman, Craig A. Courville, for appellee.


text:
    A94A1836.
    ABE ENGINEERING, INC. v. FULTON COUNTY BOARD OF EDUCATION.
    (448 SE2d 221)
   Blackburn, Judge.

This is an appeal from the trial court’s grant of summary judgment in favor of the appellee, Fulton County Board of Education a/k/a Fulton County School District, hereinafter referred to as FCBE.

FCBE entered into a contract with Williams Construction Company for the construction of Sandtown Elementary School, and Williams subsequently entered into a separate and independent agreement with the appellant, Abe Engineering, Inc., to perform pre-grading and utilities work on the project. Prior to the commencement of the work on the project, Williams obtained a payment bond with Travelers Indemnity Company pursuant to OCGA §§ 13-10-1 and 36-82-101. A dispute later arose between Abe and Williams concerning the payment for work performed pursuant to the subcontract agreement and Abe notified FCBE of this dispute. The matter proceeded to arbitration, and in June 1992, Abe was awarded $134,944.33 against Williams. However, in July 1991, based upon Williams’ representation and FCBE’s verification of the completion of the work on the school, FCBE made final payment to Williams for the work performed on the project. Williams has since closed its Columbus, Georgia, operations and is allegedly insolvent.

On September 17, 1992, Abe filed suit against Travelers for payment pursuant to the terms of the payment bond, and the record shows that this action is presently pending. Abe, through its president Dhiru Parekh, pro se, commenced the instant action on June 9, 1993, against FCBE based upon FCBE’s failure to satisfy the arbitration award entered against Williams.

1. In its first enumeration of error, Abe maintains that the trial court erred in denying his motion for an extension of time in which to respond to FCBE’s motion for summary judgment. We disagree.

Under OCGA § 9-11-6, a trial court has the discretion to extend the time period in which a party may respond to a motion for summary judgment upon a showing of good cause. “ ‘Broad discretion is vested in the trial court to determine whether “good cause” exists and what constitutes “good cause.” (Cit.)’ [Cit.] The determination of ‘good cause’ is within the sound discretion of the trial court, and we will not reverse a decision of the trial court unless such discretion [wa]s manifestly abused. [Cit.]” Piedmont Hosp. v. Draper, 205 Ga. App. 160, 163 (421 SE2d 543) (1992).

In the case sub judice, Abe sought an extension to obtain additional information not directly relevant to the issues presented in FCBE’s motion for summary judgment. Considering the basis for Abe’s motion for an extension of time in addition to Abe’s simultaneous filing of a response to the motion for summary judgment along with the motion for an extension, rendering the later motion moot, we cannot say that the trial court manifestly abused its discretion in denying the motion.

2. We further agree with the trial court that FCBE was entitled to summary judgment on Abe’s claim for payment of the arbitration award entered against Williams. “ ‘A county is not liable to suit for any cause of action unless made so by statute.’ OCGA § 36-1-4.” DeKalb County v. J & A Pipeline Co., 263 Ga. 645, 646 (437 SE2d 327) (1993). Under OCGA § 36-82-102, a public body is not liable to a subcontractor for labor, skills, tools, machinery, or materials used under a public works contract unless the public body fails to accept a payment bond or security deposit from the general contractor pursuant to OCGA §§ 36-82-101 and 13-10-1. J & A Pipeline, supra. If the public body obtains a payment bond from the general contractor that is presented to, approved by, and filed with the appropriate county official, and the bond on its face purports to be for the use and protection of materialmen and subcontractors, any direct action of a subcontractor must fail. Id. Georgia courts have held that boards of education are public boards within the meaning of OCGA § 36-82-101. See Consolidated Elec. Supply v. Bishop Contracting Co., 205 Ga. App. 674 (423 SE2d 415) (1992).

In this case, it is undisputed that the FCBE accepted a payment bond from Williams pursuant to OCGA §§ 36-82-101 and 13-10-1 on the construction of the elementary school. In addition, there is no question that the payment bond in issue met the statutory requirements of OCGA § 36-82-102 and was approved by and filed with the appropriate official. Contrary to Abe’s assertions, FCBE was not required by statute to obtain an additional payment bond from Williams pending the outcome of the arbitration proceeding on Abe’s payment dispute with Williams. Inasmuch as FCBE complied with the requirements of OCGA § 36-82-102, it cannot be held liable for Abe’s claim for payment based upon work performed under FCBE’s construction contract with Williams. Accordingly, summary adjudication in its favor was warranted.

Decided July 28, 1994

Reconsideration denied August 26, 1994 —

Dhiru V. Parekh, pro se.

Sutherland, Asbill & Brennan, William R. Wildman, Charles T. Lester, Jr., for appellee.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Birdsong, Presiding Judge.

text:
    A94A1856.
    HENRY v. GULF INSURANCE COMPANY.
    (448 SE2d 230)
   Birdsong, Presiding Judge.

Larry D. Henry appeals the grant of summary judgment to Gulf Insurance Company on whether its application for personal injury protection (“PIP”) coverage contained “adequate boldface type” and whether a new policy of PIP insurance was later issued. He also appeals the denial of his motion for summary judgment on the same issues.

Henry, a pedestrian at the time, was injured while crossing a street when he was hit by a drunk driver. Gulf Insurance is the automobile insurance carrier of Henry’s brother and Henry was a resident of his brother’s home at the time of his injury. Although Gulf Insurance paid $5,000 in basic PIP benefits, Henry asserts that he is entitled to the maximum optional PIP benefits because he claims that Gulf Insurance’s application for PIP coverage did not satisfy the requirements of former OCGA § 33-34-5 (b). Additionally, Henry asserts that in the event his brother’s original application was sufficient, a second application was insufficient, and, therefore, he is entitled to claim the optional benefits under that application. Held:

1. Although former OCGA § 33-34-5 (b) has been repealed, it is applicable to this litigation because it was in effect at the time of Henry’s injury. This Code section provides: “Each initial application for a new policy of motor vehicle liability insurance sold in this state after November 1, 1982, shall contain a statement in boldface type signed by the applicant indicating that the optional coverages listed in subsection (a) of this Code section have been explained to the applicant.” If the application does not satisfy the requirements of this section, the optional coverage has not been rejected effectively and an insured may later claim the optional coverage by tendering the necessary premium. See Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (300 SE2d 673).

Decided August 2, 1994

Reconsideration denied August 26, 1994.

B. Samuel Engram, Jr., for appellant.

Carter & Ansley, Burke B. Johnson, Thomas E. Magill, for ap-pellee.

The issue presented is whether Gulf Insurance’s application meets the boldface type requirements. Boldface type is “that print which exhibits a face sufficiently heavy in appearance to cause it to be more conspicuous than the print which surrounds it.” Southern Guaranty Ins. Co. v. Goddard, 259 Ga. 257, 258 (379 SE2d 778).

Examination of the application in the record (see Appendix) shows that it contains the proper acknowledgment, but the application does not satisfy former OCGA § 33-34-5 (b) because the type used is not more conspicuous than the print which surrounds it. Instead, although the acknowledgment is printed in all capital letters, the acknowledgment is virtually surrounded with other type of similar size, ink density, and/or thickness so that what might have otherwise been conspicuous is lost in the type that surrounds it. Id.

Accordingly, the trial court erred by granting summary judgment to Gulf Insurance Company on this issue and also erred by denying Henry’s motion.

2. In view of our disposition in Division 1, Henry’s contention concerning the subsequent application is moot.

Judgment reversed.

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

Appendix


author: Johnson, Judge.

text:
    A93A0416.
    MIXON v. CITY OF WARNER ROBINS et al.
    (448 SE2d 377)
    Decided August 26, 1994.

      Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., O’Neal, Brown & Sizemore, Manley F. Brown, Carl A. Veline, Jr., for appellant.

      Jones, Cork & Miller, Charles L. Ruffin, David A. Pope, Warren C. Grice, for appellees.
   Johnson, Judge.

1. In Division 1 of Mixon v. City of Warner Robins, 209 Ga. App. 414 (434 SE2d 71) (1993), we affirmed the trial court’s grant of the City of Warner Robins and Officer Jeffrey Dumont’s motion for summary judgment. The Supreme Court granted certiorari and reversed our decision. Mixon v. City of Warner Robins, 264 Ga. 385 (444 SE2d 761) (1994). Accordingly, Division 1 of this court’s original judgment is vacated and the judgment of the Supreme Court is made the judgment of this court.

2. In our original decision we declined to reach the merits of appellant’s second enumeration of error regarding a discovery issue. In its opinion, the Supreme Court remanded the case to us for consideration of that issue. The trial court determined, after an in camera review, that an internal investigation file generated after the accident was “material prepared by the City of Warner Robins in anticipation of litigation” and Dumont’s personnel file did not contain any information which would lead to the discovery of admissible evidence. Absent abuse, “[an] appellate court will not interfere with the trial court’s exercise of its discretion and ‘ “(t)his policy is applicable to a trial judge’s exercise of the broad discretion granted to him under the discovery provisions of the Civil Practice Act.” ’ [Cit.]” Boykin v. Preferred Risk Ins. Co., 164 Ga. App. 485 (297 SE2d 496) (1982). See Irvin v. Macon Tel. Pub. Co., 253 Ga. 43 (316 SE2d 449) (1984); Athens Observer v. Anderson, 245 Ga. 63 (263 SE2d 128) (1980). We have reviewed the files at issue, which are part of the record on appeal, and conclude that the trial court did not abuse its discretion in denying the motion to compel.

Judgment affirmed in part and reversed in part.

Blackburn and Smith, JJ., concur.


author: Per curiam.

text:
    A93A0456.
    FREEMAN et al. v. PIEDMONT HOSPITAL et al.
    (448 SE2d 378)
    Decided August 26, 1994.

      Jerry B. Hatcher, for appellants.

      Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, M. B. Satcher III, for appellees.
   Per curiam.

In Freeman v. Piedmont Hosp., 209 Ga. App. 845 (434 SE2d 764) (1993), this court upheld the denial of a motion to compel discovery, finding that the material sought was privileged under OCGA § 31-7-133 (a). However, in Freeman v. Piedmont Hosp., 264 Ga. 343 (444 SE2d 796) (1994), the Supreme Court reversed our affirmance and remanded the case with direction that the case be further remanded to the trial court for reconsideration of the motion to compel. Accordingly, the judgment of the Supreme Court is made the judgment of this court, and the case is remanded to the trial court to reconsider the motion to compel in light of the Supreme Court’s decision in Freeman v. Piedmont Hosp., supra.

Judgment reversed and remanded with direction.

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


text:
    A94A1042.
    MANSFIELD v. THE STATE.
    (448 SE2d 490)
   Blackburn, Judge.

Everett Darryl Mansfield appeals his conviction by a jury of five counts of cruelty to children. On appeal, Mansfield contends that the trial court erred in denying his motion for a new trial.

1. In his first enumeration of error, Mansfield asserts that the trial court erred in failing to give a charge, as requested, on the law of accident, in that it was his sole defense and was supported by the evidence.

OCGA § 16-2-2 provides that “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” The defense of accident is an affirmative defense. Parks v. State, 234 Ga. 579 (4) (216 SE2d 804) (1975). “The essence of the defense of accident is that the defendant’s act is not intentional.” (Citations and punctuation omitted.) Metts v. State, 210 Ga. App. 197, 198 (435 SE2d 525) (1993).

The facts of the present case do not warrant a charge on accident. Mansfield’s defense as to some of the injuries was that the child fell off a bunk bed, as to other injuries, Mansfield had no knowledge of their origin. “[T]here is nothing to indicate that [Mansfield] himself did anything by accident or mistake.” Sampson v. State, 165 Ga. App. 833, 834 (303 SE2d 77) (1983). See also Fain v. State, 165 Ga. App. 188 (3) (300 SE2d 197) (1983); Grubbs v. State, 167 Ga. App. 365 (2) (306 SE2d 334) (1983).

Decided August 26, 1994.

Yvonne A. Twyman-Williams, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assis tant District Attorney, for appellee.

2. In his second enumeration of error, Mansfield contends the trial court erred in failing to grant his motion for mistrial after the State elicited testimony of a similar transaction. A witness for the State testified that the victim had suffered a broken leg a few months prior to the present broken leg. Upon Mansfield’s motion for a mistrial, the court gave curative instructions by which the jury was informed that such evidence was inadmissible, should not be considered, and that the jury was to consider only the testimony regarding the actions contained in the indictment. No exception was taken to the curative instructions nor did Mansfield renew his motion for a mistrial.

Mansfield’s failure to except to the curative instructions or renew timely his motion for mistrial precludes our review of this issue. See Tuggle v. State, 211 Ga. App. 854, 856 (440 SE2d 740) (1994).

3. Mansfield’s third enumeration is without merit, as the trial court did give a proper jury charge on circumstantial evidence.

4. In his fourth enumeration of error, Mansfield contends that the trial court erred in allowing the Senior Casework Supervisor with the Bartow County Department of Family & Children Services to testify as an expert. This witness testified as to her extensive training and nineteen-and-one-half years’ experience in protective services.

“It is within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular art, science or profession as to entitle him to be an expert. To qualify as an expert, generally all that is required is that a person must have been educated in a particular skill or profession; his special knowledge may be derived from experience as well as study.” (Citations and punctuation omitted.) Robinson v. State, 203 Ga. App. 759, 761 (417 SE2d 404) (1992). We find no abuse of the trial court’s discretion, as its ruling is supported by the evidence.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A1108.
    HIGHTOWER v. CENTURY 21 FARISH REALTY.
    (448 SE2d 271)
   Birdsong, Presiding Judge.

A. Derrell Hightower appeals the trial court’s grant of summary judgment to Century 21 Farish Realty (“Farish Realty”).

Several years after Hightower purchased a lake-front lot from a third party with Farish Realty as the seller’s agent he learned he could not put a septic tank on the lot. Hightower then sued Farish Realty asserting a claim of fraud in that, according to Hightower, Farish Realty represented he could build a septic tank on the lot. He also asserted that he would not have purchased the lot if he had known he could not build a septic tank. Farish Realty contends, however, that Hightower cannot recover because he signed a sales contract that stated he had not relied upon any representations by Farish Realty, because no negligent representations were made, and because High-tower failed to exercise reasonable diligence by ascertaining whether a septic tank could be installed before buying the property.

The record shows that at a family outing Hightower asked his sister-in-law, a sales agent for Farish Realty, if she could show him a lot on a lake where a retirement home could be built. Later, the sister-in-law showed them the particular lake-front lot involved in this appeal. During a visit to the lot, the sister-in-law told Hightower that a septic tank would be needed on the lot. The record is clear, however, that no one represented to Hightower that a septic tank could be installed on the lot. Although Hightower apparently spoke to the seller about the lot prior to the sale, personally walked the lot several times, caused a survey to be run, and had a title search conducted, he did not test the soil to determine whether a septic tank could be installed. He maintains, however, he saw neighboring lots had septic tanks.

Hightower signed a contract to purchase the lot on August 1, 1987. The contract specifically provided that the purchaser had the right to inspect, examine, test, and survey the property, and also provided that the purchaser acknowledged that he had not relied upon any advice or representations by Farish Realty “relative to the legal and tax consequences of this contract, in the sale of the premises, the purchase and ownership of the premises, the structural condition of the premises, the operating condition of the electrical, heating, air conditioning, plumbing, water heating systems and appliances of the premises, the availability of utilities to the premises or the investment potential or resale value of the premises. Seller and purchaser both acknowledging that if such matters have been of concern to them, they have sought and obtained independent advice relative thereto.” The contract also provided: “This contract constitutes the sole and entire agreement between the parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties to this agreement. No representation, promise, or inducement not included in this contract shall be binding upon any party hereto.”

In May 1992, Hightower applied for a building permit for his retirement home, but was told that he first must obtain a septic tank permit. When he applied for the septic tank permit, his application was denied. Thereafter, in July 1992, Hightower filed this action alleging fraud and seeking compensatory damages, punitive damages, and attorney fees. Before filing his action for fraud, Hightower did not attempt to rescind the contract and his complaint did not seek rescission. It was not until March 1993, that Hightower attempted to rescind the contract. Then, on May 11, 1993, Hightower filed an amended complaint alleging counts of negligent misrepresentation and professional negligence.

After Farish Realty moved for summary judgment, the trial court granted summary judgment to Farish Realty on the counts of the complaint and amended complaint because the trial court found that Hightower was bound by the terms of the contract, including the disclaimer quoted above, which precluded his reliance upon any representations made by Farish Realty. Later, however, the trial court vacated the grant of summary judgment on the counts alleged in the amended complaint. Farish Realty’s subsequent motion for summary judgment on these claims was granted as the trial court found that the claim for professional negligence was barred by the statute of limitation and the negligent misrepresentation claim was barred because of the disclaimer in the contract.

Hightower appeals. He contends the trial court erred by granting summary judgment to Farish Realty on his negligence claim, by ruling as a matter of law that Hightower failed to exercise due diligence, and by ruling that the disclaimer provision in the contract prevented Hightower from asserting reliance on the alleged misrepresentation. Held:

1. Hightower’s contention that he is not bound by the disclaimer in the contract is without merit. A purchaser claiming he was fraudulently induced to enter a sales contract has an election of remedies: (1) promptly after discovering the fraud he may rescind the contract and sue in tort for recovery of the purchase price and for any additional damages resulting from the alleged fraud; or (2) he may affirm the contract and sue for damages resulting from the fraud. This second suit, however, is not one for breach of contract, but one in tort. As these suits involve affirmance of the contract, the defrauded party may keep the benefits of the contract and still maintain an action for damages suffered because of the fraud. Although the action is in tort, it is based on the affirmance of the contract and seeks damages resulting from fraud arising from the contract. Because the allegedly defrauded party elected to affirm the contract, that party is bound by the contract’s terms and is subject to any defenses which may be based on the contract. Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74-75 (441 SE2d 421).

Under the facts of this case, including Hightower’s failure to attempt rescission before filing his complaint and amended complaint, the trial court did not err by holding that this is a case in which Hightower sought to affirm the contract and recover damages resulting from the alleged fraud. OCGA § 13-4-60; Ben Farmer Realty Co. v. Woodard, supra; Nexus Svcs. v. Manning Tronics, 201 Ga. App. 255, 256 (410 SE2d 810). Consequently, Hightower is bound by the terms of the contract, especially the provision disclaiming that High-tower relied upon representations by Farish Realty.

2. Hightower’s contention that the trial court erred by holding as a matter of law that he had not exercised due diligence is also without merit. The record shows that Hightower was aware a septic tank would be necessary, but he took no action to determine whether a septic tank could be installed on the property. A jury issue might exist if Hightower had taken any action to determine whether a septic tank could be installed, but the evidence shows he took no such action. The trial court did not err by ruling as a matter of law that he did not exercise due diligence. In any event the disclaimer clause in the contract prevented Hightower from asserting reliance on the alleged misrepresentations. Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790 (359 SE2d 920). Hightower’s attempt to distinguish the Guernsey Petroleum Corp. decision as a fraud case rather than a case involving negligent misrepresentation is unavailing. The same principles apply to both fraud and negligent misrepresentation cases. Robert &c. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681 (300 SE2d 503); American Legion v. Foote & Davies, 193 Ga. App. 225, 227 (387 SE2d 380).

Further, while Hightower asserts that his sister-in-law negligently represented falsely that he could install a septic tank on the lot, the evidence, by his own admission, does not support this claim. Instead, the evidence shows that Hightower was told that he “would” need a septic tank. Consequently, the affidavit from Hightower’s expert asserting that Hightower would be more likely to rely upon representations from relatives is without probative value. Further, rather than inducing reliance that a septic tank could be installed, the statement that a septic tank would be necessary could only heighten High-tower’s awareness for the need for a septic tank. Thus, Hightower’s contention that a house could be built on the lot cannot be separated from his sister-in-law’s statement that a septic tank would be necessary. Moreover, Hightower’s admission demonstrates that there is no factual basis for his contention that there was a misrepresentation.

Decided August 26, 1994.

Gary P. Bunch, for appellant.

Lefco & Blumenthal, Stanley M. Lefco, Tisinger, Tisinger, Vance & Greer, C. David Mecklin, Jr., Michael T. Camp, for appel-lee.

3. Farish Realty’s motion for imposition of a penalty under Court of Appeals Rule 26 is denied.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A1114.
    THE STATE v. LAVELL.
    (448 SE2d 270)
   Johnson, Judge.

Colleen Lavell was accused of driving under the influence of alcohol, possession of an altered driver’s license, possession by consumption of alcohol by a minor, and operating an automobile with improper equipment. Lavell filed a motion to suppress claiming the state lacked probable cause to stop her car. During the hearing on Lavell’s motion, the state called several witnesses who testified as to the events following the arrest, but was unable to present any witnesses to the actual stop of Lavell’s car because the arresting officer died prior to the hearing. The state also offered the deceased officer’s arrest report, but the trial court ruled it inadmissible. The court granted Lavell’s motion to suppress based upon the inadmissibility of the police report and the state’s resulting failure to carry its burden of establishing probable cause for the stop.

Pretermitting the issue of whether the motion to suppress was properly granted is whether this court has jurisdiction. Lavell contends we lack jurisdiction because the state is not authorized to appeal the grant of a motion to suppress where, as here, the trial court’s ruling is based upon general evidentiary rules. We agree. OCGA § 5-7-1 (a) (4) authorizes the state to directly appeal the grant of a motion to suppress whenever the trial court’s exclusion of evidence is based upon its determination that the state unlawfully obtained the evidence. State v. Frye, 205 Ga. App. 508 (1) (422 SE2d 915) (1992). However, the statute does not authorize an appeal by the state when the exclusion of evidence is based upon some general rule of evidence. State v. Brown, 185 Ga. App. 701 (365 SE2d 865) (1988). Our examination of the record reveals the trial court’s grant of the motion to suppress was based upon rules against the admission of hearsay. It is apparent from the transcript the focus of the hearing was whether the report should be admitted pursuant to one of the exceptions to the hearsay rule. In addition, it is clear from the court’s order the decision to suppress was based upon the inadmissibility of the police report. The fact the order was one involving general rules of evidence is further borne out by the issues the state raises in its brief on appeal. All three enumerations of error involve hearsay issues. “If the trial court’s ruling in this case were directly appealable by the State [under] OCGA § 5-7-1 [(a)] (4), it would necessarily follow that any and all adverse pre-trial evidentiary rulings in criminal cases would be directly appealable by the State.” Id. at 702. Because the state has no authority to bring this appeal, the appeal must be dismissed. See State v. McKenna, 199 Ga. App. 206, 207 (404 SE2d 278) (1991); see also Brooks v. State, 206 Ga. App. 485, 489 (3) (425 SE2d 911) (1992).

Decided August 26, 1994.

Ben F. Smith, Jr., Solicitor, Barry E. Morgan, Mark A. Basurto, Assistant Solicitors, for appellant.

Hesmer & Manning, Jane P. Manning, for appellee.

Appeal dismissed.

Beasley, P. J., and Andrews, J., concur.


text:
    A94A1252.
    MORRIS et al. v. WILLIAMS et al.
    (448 SE2d 267)
   Birdsong, Presiding Judge.

Barney Morris and Daryl Washington sued Welton S. Williams in a shareholder’s derivative action, alleging that Williams abused and commingled the funds of the corporation formed by the parties. Morris and Washington each contributed $15,000 to the capital funds. Williams, with 64.7 percent of stock issued, was majority shareholder and chief executive officer. The trial court denied appellants Morris’ and Washington’s motions for directed verdict. The jury returned a verdict against them and the trial court denied their motions for new trial. Held'.

1. Appellants contend the trial court erred in permitting Williams, over objection, to testify that he was personally responsible for leases for office space and computers and that it was corporate practice to pay for automobile expenses. This evidence was relevant to the issues raised by appellants and it was not prejudicial. As to any point of law, appellants cite no legal authority. See Court of Appeals Rule 15 (c) (3).

2. Appellants contend the trial court erred in charging the jury that “those powers inherent in the office of president [of the corporation include] . . . the apparent powers which the corporation permits him to exercise without objection.”

Appellee Williams contends the charge is the law, as it was said in Garmany v. Lawton, 124 Ga. 876 (1) (53 SE 669) that when there is no board of directors or the directors are inactive and the executive officer discharges its duties, and the shareholders by direct act or acquiescence invest the executive officer with the powers and functions of the board of directors as a continuous and permanent arrangement, his acts are valid as “against the corporation, or a creditor,” even though they may not have been authorized by formal vote.

The concept stated in Garmany is not the same thing as “apparent powers.” “Apparent authority” is an agency concept which refers to an agent’s authority as it is apparent to third parties. Apparent authority is that which the principal’s conduct leads a third party reasonably to believe the agent has; it creates an estoppel allowing third parties to bind a principal to the agent’s acts on account of the principal’s conduct, reasonably construed by third parties acting in innocent reliance thereon. See Addley v. Beizer, 205 Ga. App. 714, 717-719 (423 SE2d 398). Where there were no manifestations of authority by the principal to a third party, apparent authority is not in issue. Id. quoting Trust Co. of Ga. v. Nationwide Moving &c. Co., 235 Ga. 229, 232 (219 SE2d 162). It is incorrect to suggest that, as between the president and his principal (the corporation), the acts which he seems to exercise without objection are within his “apparent powers.” As between himself and the corporation he has no “apparent” authority. A corporate officer has only such actual, implied, or inherent powers as the law gives him or as may arise out of special circumstances arising out of the conduct of the principal, that is, the corporation. See Addley at 718.

The charge was therefore imprecise, but the statement about “apparent” powers was harmless inadvertence. In its entirety, the charge was correct. See Cordova v. State, 191 Ga. App. 297 (3) (381 SE2d 436). The trial court corrected any possible misimpression by repeatedly referring only to the president’s “inherent” powers, and by charging that an officer cannot go beyond his actual authority and inherent power to do acts “which were not intended by the [corporation] . . . unless the directors and officers allowed them to do it.”

3. Appellants contend the trial court erred in charging that Williams could be found to have authority by acquiescence, as there was no evidence appellants acquiesced in his “self-dealing” with corporate funds. This enumeration is without merit. There was evidence that appellants failed to object to Williams’ acts; that the corporation leased and maintained vehicles for appellants as well as a used Mercedes for Williams; that the parties met regularly and discussed corporate business; that appellants were aware of expenditures and had access to the corporate checkbook; and that all parties received loans from the corporation and other benefits similar to those Williams gave himself. Moreover, the charge correctly states that the evidence on the point of acquiescence was disputed. The fact that the charge may not apply to every act of Williams did not make it inappropriate. See Adams v. State, 193 Ga. App. 628 (388 SE2d 747).

Decided August 26, 1994.

Robert H. McDonnell, for appellants.

Anthony M. Thomasson, for appellees.

4. Appellants contend a jury charge as to shareholders’ duty to act promptly to obtain redress was legal error. This argument is not supported by legal authority and is deemed abandoned. Court of Appeals Rule 15 (c) (3).

5. Appellants contend evidence of the adverse effect on the corporation of their work after they left its employment was irrelevant. Appellants earlier allowed such evidence and they cannot later complain of it. See Steverson v. Hosp. Auth. of Ware County, 129 Ga. App. 510, 514 (199 SE2d 881). Moreover, the evidence was relevant to Williams’ counterclaim.

6. Appellants contend the trial court erred in refusing to direct a verdict in their favor at the close of the evidence. A directed verdict can be granted only where there is no conflict in the evidence as to any material issue and the evidence introduced with all reasonable deductions therefrom demands that particular verdict. OCGA § 9-11-50 (a); Truck Parts &c. v. Rutledge, 211 Ga. App. 166 (2) (438 SE2d 404). A denial of directed verdict cannot have been error where a jury has rendered a verdict in favor of the opposite party and there is competent evidence to support it. The jury is the final arbiter of the facts and the verdict is construed in the light most favorable to upholding the jury’s verdict. Hill v. Rodriguez, 208 Ga. App. 108 (1) (429 SE2d 682). As the verdict is supported by some evidence, it must be upheld. Although the evidence was disputed, the jury reconciled the evidence in Williams’ favor and this verdict is supported.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A1427.
    McKERLEY v. THE STATE.
    (448 SE2d 85)
   Birdsong, Presiding Judge.

William McKerley appeals an order to pay restitution. He contends the restitution awarded violates the prohibition against double jeopardy. McKerley further contends the trial court erred both by ordering restitution based upon speculation and hearsay and by failing to consider his ability to pay.

The record shows that McKerley pleaded guilty to criminal damage in the first degree by fire in that he burned down a trailer. The prosecution originally estimated, based on the reports of the arson investigation, that the damages were $11,000; the evidence introduced at a later restitution hearing showed that as a result of his actions the victims lost everything they possessed from family photographs to the appliances in the trailer.

During the hearing on McKerley’s plea, the assistant district attorney advised McKerley that, “I’m going to recommend to the Judge that he impose a condition of restitution, but you have asked if you could have a restitution hearing, if you request it, later on down the road, and we have agreed to that, so I’ve included a provision that you may have a restitution hearing, if it’s requested.” Later in the hearing, the trial court stated: “And you will have to pay applicable restitution, although the amount is as yet to be specifically determined; and if you’re in disagreement with it when it is, you can have a hearing on it.” McKerley’s sentence, however, included a provision that he would pay restitution in an estimated amount of $11,000 and a further provision that McKerley could have a restitution hearing if he requested. After he so requested, a full hearing was conducted during which the victims testified and were cross-examined about the damages they suffered. By the time of the hearing, McKerley had paid approximately $1,400 of the restitution ordered. Subsequently, the trial court 'ordered that $22,500 in restitution be paid and established a payment schedule. McKerley now contests that order. Held:

1. In Harris v. State, 261 Ga. 859, 860-861 (413 SE2d 439), our Supreme Court held that restitution is punishment when ordered as part of a criminal sentence. Consequently, the Supreme Court also held that “the trial court cannot increase the amount of restitution after the defendant begins serving a sentence absent the defendant’s consent.” Id.

Except for the fact that in this appeal McKerley requested the hearing to challenge the amount of restitution to be paid, the facts closely track those in Harris. In Harris, based on a stipulation between parties, the trial court initially set restitution at $600 and on the request of the victim, the restitution was increased to $2,296. The Supreme Court in Harris held that this was an impermissible increase in punishment. Id.

In this appeal, based upon the State’s estimate, the trial court set restitution at $11,000 with the proviso that, if he wished, McKerley could request a hearing to contest that amount. Absent a request from McKerley, however, the trial court’s sentence was that Mc-Kerley would pay $11,000 as restitution. Even though the $11,000 was expressed as an estimate, McKerley was ordered to pay that amount and according to the transcript had paid $1,400 by the date of the hearing. Under these facts it cannot be said that the trial court had not fixed a definite amount of restitution or that the subsequent hearing was for the purpose of determining the amount of restitution. This was not a case in which the trial court deferred the amount of restitution to be imposed subject to a later hearing. See Harris at 861, n. 1. Further, even if the effect of this sentence had been in doubt, as to this matter, “ ‘ “(i)f there is any doubt as to the effect of a criminal sentence the defendant will be given the benefit of such doubt.” ’ ” Grant v. State, 195 Ga. App. 463, 464 (2) (393 SE2d 737).

Accordingly, once the trial court established the amount of restitution and McKerley began serving his sentence, the amount of restitution could not be increased. Id. Further, although McKerley requested the hearing to challenge the amount of restitution imposed, McKerley did not assent to reconsideration for purposes of circumventing the due process safeguards of Harris, supra. Indeed, the procedures originally used to set the restitution amount were deficient in that the trial court failed to conduct a hearing and enter specific written findings. See Bridges v. State, 208 Ga. App. 555, 556 (431 SE2d 164). Since a hearing was conducted later and written findings entered, a remand for those purposes is not required in this case. Nevertheless, the order of the trial court increasing the amount of restitution must be reversed and the case remanded so that the trial court may impose no more than $11,000 in restitution. Although this amount is less than the damages the victims may have suffered, the amount of the victims’ damages is but one of the factors to be considered in determining the amount of restitution. Harris, supra at 860. Moreover, the victims are not deprived of existing civil remedies by accepting restitution in a criminal case.

We caution again, if the information necessary to determine an appropriate amount for restitution is not available, the proper procedure is to indicate that restitution will be awarded and defer the hearing on restitution until that information is available, as expressly provided in Harris, supra at 861, n. 1.

2. In view of our disposition in Division 1, McKerley’s other enumerations of error are moot.

Judgment reversed and case remanded.

Blackburn and Ruffin, JJ., concur.

Decided August 26, 1994.

Jill L. Anderson, Elizabeth A. Geoffroy, for appellant.

David McDade, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellee.


text:
    A94A2167.
    JOHNSON v. THE STATE.
    (448 SE2d 274)
   Blackburn, Judge.

Following a trial by jury, the appellant, Lewis Leon Johnson, Jr., was found guilty of two counts of child molestation and was acquitted of three counts of child molestation. His motion for new trial was denied by the trial court and this appeal followed. In his sole enumeration of error, Johnson contends that the evidence was insufficient to support the verdict. We disagree and affirm his convictions.

The evidence viewed in the light most favorable to the verdict shows that in March 1993, Johnson resided in his home with his former live-in girl friend and her nine-year-old daughter, one of the molestation victims. Both victims testified that while they were home alone with Johnson, Johnson played a videotape depicting his girl friend having sexual intercourse with another man. During the movie, Johnson and his girl friend’s daughter were naked and the other victim was partially clothed. Johnson’s former girl friend testified that when she returned home unexpectedly, the two victims ran into a bedroom closet to get their clothing while Johnson pulled a blanket up to his waist. Johnson was unclad above the waist. Although Johnson admitted making the sexually explicit videotape, he denied showing the videotape to the victims.

Johnson argues that his conviction was not warranted because the victims’ testimony at trial was inconsistent with their prior statements concerning the incident, and his former girl friend’s testimony was tainted based upon past disputes between the two. However, Johnson’s “argument addresses itself to the credibility of the witnesses, which is a matter within the province of the jury. While the jury can and must weigh and analyze the evidence, an appellate court is restricted to determining whether or not there is sufficient evidence to support the verdict of guilty.” (Citations and punctuation omitted.) Robinson v. State, 204 Ga. App. 637 (419 SE2d 926) (1992). Viewing the evidence produced at trial under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we believe there was ample evidence for any rational trier of fact to find Johnson guilty beyond a reasonable doubt of the offenses for which he was convicted. Robinson, supra.

Decided August 26, 1994.

William R. Thompson, Jr., for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A1062.
    C. W. MATTHEWS CONTRACTING COMPANY, INC. v. COLLINS et al.
    (448 SE2d 234)
   Blackburn, Judge.

We granted the discretionary application of C. W. Matthews Contracting Company, Inc. (“Matthews”), to determine whether OCGA § 50-17-29 (e) prohibits the imposition of local option, Metropolitan Atlanta Rapid Transit Authority (“MARTA”), and special county sales taxes on contractors as a result of the performance of a contract, work, or services for the State of Georgia.

Matthews, a Georgia corporation engaged in highway and bridge construction, contracted with the Georgia Department of Transportation (“GDOT”) for the construction of various highway projects from November 1, 1988, through November 20, 1991. During this period, Matthews paid over $350,000 in local option, MARTA, and special county sales taxes in connection with its performance of the GDOT contracts, and these local taxes were collected by Collins as commissioner of the State Department of Revenue (“the department”). See OCGA § 48-8-87.

On January 17, 1992, relying upon OCGA § 50-17-29 (e) and pursuant to OCGA § 48-2-35, Matthews filed written claims for refund of all taxes paid during the period of December 1,1988, through November 30, 1991, and Collins denied these claims. Pursuant to OCGA § 48-2-35 (b) (4), Matthews commenced the instant action against Collins and the State Department of Revenue seeking a refund of the local taxes plus interest. Following a hearing on December 9, 1992, the trial court denied Matthews’ motion for partial summary judgment and granted Collins and the department’s cross-motion for summary judgment. The court concluded that the exemption contained in OCGA § 50-17-29 (e) does not apply to local option, MARTA, or special county sales taxes, and therefore Matthews was not entitled to summary judgment as a matter of law.

In C. W. Matthews Contracting Co. v. Collins, 210 Ga. App. 1 (435 SE2d 221) (1993), we dismissed Matthews’ direct appeal based upon its failure to file an application for discretionary appeal as provided in OCGA § 5-6-35 (a) (1). When the case was returned to the trial court, Matthews moved to set aside the trial court’s December 9, 1992, order, asserting that the trial court failed to properly notify the company of its decision on the motions as required under OCGA § 15-6-21 (c). On December 2, 1993, the trial court set aside its December 9, 1992, order and re-entered the order to provide Matthews with proper notice of its decision. The present appeal involves the trial court’s December 2, 1993, order.

In three separate enumerations of error, Matthews asserts that the trial court erred in denying its motion for partial summary judgment, erred in granting Collins and the department’s motion for summary judgment, and erred in finding that OCGA § 50-17-29 (e) does not apply to local option, MARTA, or special county sales taxes assessed against contractors performing work for the State of Georgia. We agree.

“OCGA § 50-17-29 (e) provides, in the first part: ‘No city, county, municipality, or other political subdivision of this state shall impose any tax, assessment, levy, license fee, or other fee upon any contractors or subcontractors as a condition to or result of the performance of a contract, work, or services by such contractors or subcontractors in connection with any project being constructed, repaired, remodeled, enlarged, serviced, or destroyed for, or on behalf of, the state or any of its agencies, boards, bureaus, commissions, and authorities. . . .’ There is no lack of clarity or ambiguity in this language. It plainly prohibits the imposition of ‘any tax, assessment, levy, license fee, or other fee’ upon contractors ‘as a . . . result of the performance of a contract, work, or services in connection with any project being constructed (etc.) for, or on behalf of, the state or any of its agencies. . . .’” (Punctuation omitted.) Lunda Constr. Co. v. Clayton County, 201 Ga. App. 106, 107 (410 SE2d 446) (1991). In Lunda Constr. Co. at 107, we recognized the legislature’s intent in enacting this statute “to prohibit a county or municipality from taxing any property used by a contractor on a state project. . . .”

Although Collins and the department assert that the statute is not applicable to local sales and use tax, relying upon Opinion 80-76 of the Attorney General of Georgia, published on June 23, 1980, “opinions of the Attorney General are not binding upon this court, even where applicable to the issues before us.” Williams v. State, 162 Ga. App. 415, 418 (1) (291 SE2d 732) (1982). Moreover, the distinction espoused by the Attorney General in the opinion between taxes on person and property in comparison to taxes on transactions is not determinative in light of the clear language contained within the statute which specifically prohibits a city, county, municipality, or other political subdivision from imposing any tax upon a contractor as a result of the performance of work for the state or any of its agencies. As we stated in Lunda Constr. Co., supra, the language of OCGA § 50-17-29 (e) is plain and susceptible of but one natural and reasonable construction.

Decided August 4, 1994

Reconsideration denied August 29, 1994 —

Schreeder, Wheeler & Flint, David H. Flint, Laura R. Champion, for appellant.

Michael J. Bowers, Attorney General, Daniel M. Formby, David A. Runnion, Senior Assistant Attorneys General, for appellees.

Based upon the language contained in OCGA § 50-17-29 (e) and our decision in Lunda Constr. Co., supra, we conclude that the phrase “any tax” includes the local option, MARTA, and special county sales taxes which were assessed against Matthews on work performed in connection with its contracts with GDOT. Accordingly, the trial court erred in granting summary judgment in favor of Collins and the department and in denying partial summary judgment to Matthews in his action for a refund based upon the illegal assessment of taxes.

Judgment reversed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A1675.
    BREEZE v. COLUMBUS BANK & TRUST COMPANY.
    (448 SE2d 276)
   Birdsong, Presiding Judge.

Thomas R. Breeze appeals the judgment of the superior court confirming a foreclosure sale under power by Columbus Bank & Trust Company (“CB&T”). Breeze contends the confirmation was not authorized because CB&T did not give timely notice of the sale to the court in accordance with OCGA § 44-14-161. Held;

The record shows that after proper notice and advertisement, a foreclosure sale was conducted on May 3, 1993. Thereafter, pursuant to the motion of Breeze’s bankruptcy trustee, the bankruptcy Breeze had earlier filed was dismissed on August 20,1993. The superior court was advised of the foreclosure sale by letter dated August 31, 1993, and this report of sale was acknowledged on September 8, 1993. Subsequently, the application for confirmation of the foreclosure sale filed on September 21, 1993, was granted on March 3, 1994. The order confirming the sale recited that the court had considered “the arguments presented by counsel, the pleadings of record, and documents to be considered in connection therewith”; among other findings not relevant here, the court specifically found that a “proper and timely report of the foreclosure sale was made to the court by the plaintiff sufficient to satisfy Georgia law, including OCGA § 44-14-161.” In accordance with those findings, the trial court confirmed the sale and authorized an action seeking a deficiency judgment.

Decided August 29, 1994.

Westmoreland, Patterson & Moseley, Bradley G. Pyles, Kirby R. Moore, for appellant.

Page & Scrantom, James C. Clark, Jr., for appellee.

Breeze contends the trial court’s finding regarding the timeliness of the report of sale was erroneous because the sale was not reported within 30 days of the foreclosure sale as required by OCGA § 44-14-161. Although it is obvious the sale was not reported within 30 days of the foreclosure sale, under the circumstances of this case that is not significant. Breeze had earlier filed for bankruptcy and invoked the automatic stay of proceedings contained in 11 USC § 362 (a). As a result CB&T was prevented from foreclosing on Breeze’s property; the foreclosure sale was conducted pursuant to a stipulation between the parties which was approved by the bankruptcy court. This approval, however, extended only to foreclosing on CB&T’s security interest in the property, and did not extend to other proceedings. Therefore, the stay remained in effect for other purposes. Although filing the bankruptcy entitled Breeze to the protections of 11 USC § 362 (a), the filing, however, also implicated 11 USC § 108 (c). This section tolls the running of periods of limitation which would otherwise expire during the period of a stay in bankruptcy until 30 days after the termination of the stay. Therefore, as the automatic stay was in effect when the foreclosure sale was held, the 30-day period provided for in OCGA § 44-14-161 did not begin to run until 30 days after the bankruptcy was dismissed. See State Farm &c. Co. v. Harris, 207 Ga. App. 8, 9 (427 SE2d 1). Breeze’s arguments based upon a strict application of the 30-day time limit in OCGA § 44-14-161 are therefore without merit.

Accordingly, the trial court did not err in concluding that the sale was properly and timely reported in accordance with OCGA § 44-14-161, and as the findings of the court were not clearly erroneous, the judgment below must be affirmed. Government Nat. Mtg. Assoc. v. Belue, 201 Ga. App. 661, 662 (411 SE2d 894).

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.