author: Andrews, Judge, McMurray, Presiding Judge,

text:
    A95A1378.
    PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY v. WALKER et al.
    (464 SE2d 230)
   Andrews, Judge,

The central issue before us on appeal is whether the trial court erred in denying Prudential’s motion for directed verdict. Prudential contends there was no evidence from which the jury could find that Ms. Segal had either express or implied permission to drive James Therrell’s car. We agree and reverse.

James Therrell III had temporarily loaned his son James Therrell IV (“Jimmy”) his Ford Escort so that Jimmy could transport his belongings from his home in Roswell to college at Georgia Southern University in Statesboro. Jimmy borrowed the car because he could not get everything he needed to take back into his own car. He was to take the car back to school and return with it a few weeks later on Easter weekend.

Although Jimmy knew he was not supposed to loan the car to anyone, he allowed Faith Segal to take the car and drive to Tallahassee, Florida, to be fitted for a bridesmaid’s dress. On the way to Tallahassee, Segal was involved in an accident with the Walkers.

Prudential brought this declaratory judgment action, contending that Segal was not a covered driver under Therrell’s automobile policy. The case was tried to a jury which answered a special interrogatory finding that Segal did have permission to use the car at the time of the accident. Prudential appeals, claiming that it should not be obligated to defend Segal or pay on any judgment awarded to the Walkers against her.

1. First, Prudential claims that the trial court erred in denying its motion for directed verdict because the evidence shows that Segal was not a “permissive driver” under the terms of Therrell’s insurance policy. The pertinent policy provision is as follows: “You and a resident relative are insured . . . other people are insured while using your car ... if you give them permission to use it. They must use the car in the way you intended.” The policy defines “you” and “your” to be the named insured, i.e., Therrell and his wife.

The “second permittee” doctrine provides that when a third person uses a car via another person who did have permission to use the car, this is a permissive use under the insurance policy as long as “the use falls within the scope of the permission.” (Citations omitted.) Allstate Ins. Co. v. Wood, 211 Ga. App. 662, 663 (440 SE2d 78) (1994). To determine whether the use falls within the scope of the permission, the test is: (1) whether the owner’s permission to the first permittee included the use to which the third person put the car, and (2) whether the scope of the permission the third person received from the first permittee exceeded the scope of permission given the first permittee by the owner.

Applying this test to our facts, it becomes apparent that Segal’s use of the car far exceeded the permission given by Therrell to his son. Because there was not room in Jimmy’s car for everything Jimmy wished to take back to school, Therrell allowed him to take his car to Statesboro. Jimmy was given permission only to travel to Statesboro and back to Roswell. He was not to loan the car to anybody, and he was expressly instructed not to go to Florida, Savannah, or anywhere else. Ms. Segal’s use of the car to go to Florida to be fitted for a bridesmaid’s dress falls nowhere within the parameters of this permitted use.

The applicable case law supports this conclusion. In Ga. Farm Bureau Mut. Ins. Co. v. Allstate Ins. Co., 190 Ga. App. 593 (1) (379 SE2d 619) (1989), a mother lent her car to her son’s girl friend so that the girl friend could take the son back and forth to work and “get groceries and stuff.” Id. at 594. The mother claimed she never gave her son permission to drive the car. When the son had an accident while driving the car to town to get a TV antenna, we found that this came under the generic use for which the owner had loaned the car, i.e., for the son’s benefit in going to work and running errands. Id. The facts in Transp. Ins. Co. v. Allstate Ins. Co., 208 Ga. App. 837 (432 SE2d 259) (1993) are similar. Gwendolyn Flitter’s company gave her a company car for business and personal use. A visiting friend of Flitter’s had an accident while driving this car to the grocery store to buy groceries for a dinner party Flitter was giving. We held that the use of the vehicle was within the scope of permission given to the employee since the friend was running a personal errand for the employee’s benefit. Id. at 840.

Here, Segal’s use of the car bore no relation to the purpose for which Jimmy borrowed it. He needed it to transport his belongings back to school. Jimmy was to use the car while at school and was not to take it anywhere else except back to Roswell. Accordingly, Ms. Se-gal’s use of the car to go to Florida to be fitted for a bridesmaid’s dress was not included within the use for which Therrell allowed Jimmy to take the car and also exceeded the scope of permission given by Therrell to Jimmy for the car’s use. Therefore, we find that Ms. Segal did not have James Therrell’s express or implied consent to drive his car to Florida. Accordingly, the trial court erred in denying Prudential’s motion for directed verdict.

2. Because of our holding in the first division, we need not address the remaining enumerations of error.

Judgment reversed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the judgment of reversal as it is my view that the jury was authorized to conclude that the owner of the vehicle gave a general permission to use his car over a two- or three-week period and that any prohibition on going to Florida was intended solely to get the owner’s son (as well as the car) home from college for the Easter holiday. It is undisputed that the driver had no reason to know of any restrictions placed on the car’s use by the owner. Consequently, the second permittee doctrine renders the owner’s express restriction nugatory.

Faith Joy Segal was operating a Ford Escort owned by James Therrell III when she was involved in a vehicular mishap with Alan A. Walker and Nicole G. Walker. Prudential Property & Casualty Insurance Company (“Prudential”) brought this declaratory judgment action, contending Faith Joy Segal was not a covered driver under the terms of an automobile liability insurance policy Prudential issued to James Therrell III.

James Therrell III had temporarily loaned the Escort to his son, James Therrell IV, in order to move some of James Therrell IV’s belongings from the family home in Roswell, Georgia, to Statesboro, Georgia, where James Therrell IV was attending Georgia Southern University. James Therrell IV has his own vehicle but “he couldn’t get ... all [his things] in there, so he said, ‘Can I borrow the Escort?’ ” James Therrell IV was supposed to “bring the car back to [James Therrell III] in Roswell . . . Easter weekend.” Thus, James Therrell IV would have the car “two or three weeks.” James Therrell IV was also given two gasoline credit cards and a Discover charge card. On Friday, April 9, 1993, in Statesboro, James Therrell IV met Faith Joy Segal, a friend’s roommate. Faith Joy Segal “was crying, and her mother kept calling her and telling her how much she — she was terrible, you know, that she was not going to her brother’s wedding.” It seemed to James Therrell IV that “she had no other way to get there than somebody to let her use a car.” After being assured that Faith Joy Segal would be covered by her mother’s own automobile liability policy, James Therrell IV agreed to let Faith Joy Segal take his father’s Escort for one day and drive to Tallahassee, Florida, so she could be fitted for a bridesmaid’s dress. Faith Joy Segal gave James Therrell IV $100. This sum had been given to Faith Joy Segal by her mother to apply towards the cost of a round-trip bus ticket to Tallahassee from Statesboro. James Therrell IV insisted this money was only “given as a loan which I was going to pay back to her on Monday, but it was also used as collateral because she was taking my father’s car.”

James Therrell III had a longstanding household rule about loaning property: “The rule is that we — we don’t loan the property out, because invariably when something happens, the only compensation given back is I’m sorry. . . .” He also told James Therrell IV “the car was not to go to Florida. It wasn’t to go to Savannah. It was to come here [Statesboro] and get business taken care of or whatever he had to do here, and then bring it back to Roswell.” James Therrell III was certain that he had discussed loaning the car with his son prior to this trip, because “any time that we — we had a situation like that with Jimmy [James Therrell IV] I think we always stressed the situation that, ‘Jimmy, this is not to be loaned out.’ ” James Therrell III conceded, however, that when he gave James Therrell IV “permission to use the car, that [any fatherly] admonition [s] . . . about loaning the car and don’t go to Savannah . . . were not conditions of his use. . . .” James Therrell IV knew of the family rule although in this particular instance, he did not “remember him saying, ‘Do not let anybody borrow the car.’ ” “It was mainly on cars. Do not loan a car to anyone. ... I don’t remember him saying it at that point, but, . . . I knew that I was not supposed to loan anybody that car.” James Therrell IV told Faith Joy Segal “to be very careful because [his] father basically would kill me if he knew that she had borrowed the car.” On Saturday evening, Faith Joy Segal telephoned and said, “ ‘Look, Jimmy, I’m really sorry. I’m in a hospital. I’ve wrecked your car. It’s totalled.’ ”

The case was tried before a jury which answered a special interrogatory and found “that Faith Joy Segal did have permission to drive the Therrell vehicle at the time in question.” Prudential appeals from the judgment declaring it is obliged “under its policy to provide a defense to Faith Joy Segal and to pay up to the policy limits any judgment or amounts . . . owed by [her] to Alan A. Walker and/or Nicole G. Walker.”

The denial of Prudential’s motion for directed verdict, on the issue of whether Ms. Segal was a permissive driver, is Prudential’s first enumeration of error. The Prudential policy defined an “Insured” in the following language: “You and a resident relative are insured. . . . Other people are insured while using your car ... if you give them permission to use it. They must use the car in the way you intended.” The policy elsewhere defines “you” and “your” to be the named insured, i.e., James Therrell III or his spouse. Prudential argues that Faith Joy Segal was not a permissive driver under the express terms of the policy because she did not have the permission of James Therrell III or his spouse. This contention is without merit.

“ ‘The term “permission” is universally held to mean either express or implied permission.’ Hodges v. Ocean Acc. &c. Corp., 66 Ga. App. 431, 435 (18 SE2d 28).” Hemphill v. Home Ins. Co., 121 Ga. App. 323, 330 (2), 332 (174 SE2d 251). This Court recently applied the “second permittee doctrine” to identical policy language as was employed by Prudential and held liability coverage was afforded despite the owner’s express prohibition against consuming alcohol in the car, allowing others to consume alcohol in the car, or allowing others to drive the vehicle. “ ‘In essence, the permission to use . . . clause refers to the purpose for which the permission was given and not the [manner of] operation of the vehicle [or the identity of the driver]. Thus, where a third person utilizes a vehicle via another person who did have permission from the owner, the fact that such third person had neither express nor implied permission from the owner is irrelevant. So is the fact the third person had no license to drive or was expressly forbidden to drive by the owner. “(T)he policy only requires permission for the purpose to be served.” (Cits.) As long as the [second permittee’s] use falls within the scope of the [original] permission then it is permissive within the policy terminology.’ In this case, the relevant inquiries therefore are: (1) whether [James Therrell Ill’s] permission to the first permittee, [James Therrell IV], included using the vehicle [to run errands with school friends]; and (2) if the scope of the permission [Faith Joy Segal, the second permittee] received from [James Therrell IV, the first permittee] exceeded the permission [James Therrell IV] had from [James Therrell III, the owner].” (Emphasis omitted.) Allstate Ins. Co. v. Wood, 211 Ga. App. 662, 663 (1) (440 SE2d 78), applying Ga. Farm Bureau Mut. Ins. Co. v. Allstate Ins. Co., 190 Ga. App. 593 (1), 594 (379 SE2d 619). In the case sub judice, the undisputed fact that James Therrell III had never given Faith Joy Segal permission to use the vehicle does not address the relevant inquiry. The scope of James Therrell Ill’s permission to James Therrell IV over the two or three weeks he would have the car was to get “business taken care of or whatever he had to do . . .” and be back in Roswell over Easter weekend. This was a general permission that did not preclude a helpful gesture on behalf of a school friend. Furthermore, while it is true that James Therrell III told James Therrell IV not to take the car to Florida or Savannah, he affirmed that the purpose of his territorial restrictions “had to do with getting [James Therrell IV] home at Easter and being with [his] mother at Easter break,” because that was important to her. Accordingly, when James Therrell IV let Faith Joy Segal take the car to Florida on a weekend before the Easter weekend, the purpose of James Therrell Ill’s travel restrictions was not defeated thereby, even though that trip to Florida was arguably in defiance of James Therrell Ill’s express prohibition. Since we cannot say as a matter of law that Faith Joy Segal exceeded the scope of James Therrell Ill’s permission to his son, a jury question was presented as to the precise parameters of that scope of permission. See Ga. Farm Bureau Mut. Ins. Co. v. Allstate Ins. Co., 190 Ga. App. 593 (1), 594, supra. Compare DeWorken v. State Farm &c. Ins. Co., 151 Ga. App. 248 (259 SE2d 490). In DeWorken, “it was undisputed that both the son and the friend to whom the son loaned the [father’s] vehicle knew that no one other than the son was allowed to drive the car. . . . [This Court] held that the friend was not an insured under [that] policy because[, unlike Prudential’s policy in the case sub judice,] it ‘required that an additional insured both use and operate the vehicle with the permission of the named insured or his spouse.’ [Cit.]” (Emphasis in original.) Transp. Ins. Co. v. Allstate Ins. Co., 208 Ga. App. 837, 839 (2), 840 (432 SE2d 259) (physical precedent). In the case sub judice, Prudential admits in its brief that Faith Joy “Segal was not aware of any restriction on James [Therrell IV’s] use of his father’s car.” The absence of express permission from James Therrell III is not germane to the proper inquiry under the “second permittee doctrine.” Consequently, the trial court did not err in denying Prudential’s motion for directed verdict on the basis that Faith Joy Segal did not get permission personally from James Therrell III or his spouse. As my colleagues in the majority would nevertheless reverse that correct determination of the trial court, I respectfully dissent.

Decided November 16, 1995

Karsman, Brooks & Calloway, Ralph K. Riddle, for appellant.

Barrow, Sims, Morrow & Lee, A. Mark Lee, Thompson, Fox, Chandler, Homans & Hicks, Catherine H. Hicks, J. Converse Bright, for appellees.

I am authorized to state that Chief Judge Beasley and Judge Blackburn join in this dissent.

       The majority erroneously asserts that Faith Joy Segal’s use of the car “bore no relation to the purpose for which [James Therrell IV] borrowed [the car because he] needed it to transport his belongings back to school.” (Majority, ante, p. 86). This analysis mistakenly focuses on the subjective intent of the borrower rather than the revealed intent of the lender. Moreover, this mistaken analysis is contradicted by the testimony of the father, James Therrell III, who gave permission to his son to use the car to “get business taken care of or whatever he had to do.” (Emphasis supplied.) For all intents and purposes, the father’s car was intended by both parties to be a substitute for the son’s vehicle, with the exception that James Therrell IV was not to take the car to Florida during the Easter break. Neither father nor son anticipated that the vehicle, once unloaded of the son’s belongings, would sit parked by the side of the road, idle, empty, and unused, during the two or three weeks that James Therrell IV would remain in Statesboro before returning home for Easter.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A1741.
    COHEN v. FELDMAN.
    (464 SE2d 237)
   Beasley, Chief Judge.

Attorney Cohen appealed to the Supreme Court of Georgia from an award of attorney fees against her personally. Although the award was made in the course of a divorce action, see Ga. Const., Art. VI, Sec. VI, Par. III (6), the appeal was transferred to this Court, and we considered it an appeal from an order in a divorce case and granted discretionary review under OCGA § 5-6-35 (a) (2).

Ms. Cohen received $2,010 from her client, Mr. Feldman, which had been placed into a joint account for the payment of taxes on a business the divorcing parties owned together. Ms. Feldman was to be responsible for paying the taxes. Rather than forward the money to Ms. Feldman’s attorney, Cohen decided to place it into the court’s registry. She did not seek an order to do so from Judge Etheridge, who was presiding over the divorce proceeding, but submitted the order to Judge Daniel, Presiding Judge. Judge Daniel signed the order the same day it was presented, April 12, 1994.

The next day opposing counsel sought an immediate hearing with Judge Etheridge to vacate the order. A hearing was held that same day, April 13, and Cohen was notified by telephone. At the hearing, opposing counsel related the events leading to the hearing and stated he wished the order vacated, the money tendered to his client, a finding of contempt on the part of Cohen and her client, and an award of attorney fees. Counsel contended Cohen’s actions violated OCGA § 9-11-67 (depositing funds with the court), as well as USCR 3.3 and 4.7 (control by the assigned judge), and USCR 6.7 (procedure for emergency motions). Although Cohen stated at the hearing that she had meant no harm, she admitted she had been in Judge Etheridge’s office on April 12 but still sought the order from Judge Daniel rather than Judge Etheridge. She explained that she simply thought the presiding judge of the court was the proper person to sign the order. Judge Etheridge indicated he would vacate the order and award reasonable fees, and he directed opposing counsel to draft the order.

The following day, Judge Etheridge signed the proposed order for attorney fees of $2,250.60, first revising it to provide that Cohen herself was responsible for the fees. Cohen apparently saw only a facsimile of the original draft order shortly before it was signed. It specifically found violations of OCGA § 9-11-67 and USCR 3.3, 4.7, and 6.7, which Cohen does not dispute here.

1. Cohen contends the court had no jurisdiction to award attorney fees, but it clearly did. The verbal motion for attorney fees asked for a finding of contempt. Although the court’s order awarding fees did not use the word “contempt,” such is not always necessary and it is apparent from the order and the court’s comments at the hearing that the court considered Cohen’s actions to constitute contempt. See In re Siemon, 264 Ga. 641 (449 SE2d 832) (1994). Courts have inherent powers to impose punishments for contempt. In re Pruitt, 249 Ga. 190, 192 (2) (288 SE2d 208) (1982); see also OCGA §§ 15-1-3; 15-1-4. An order to pay attorney fees for the expenses needed to contest a matter brought about by an attorney’s contemptuous actions is an appropriate contempt sanction. See American Express Co. v. Baker, 192 Ga. App. 21, 23-24 (2) (383 SE2d 576) (1989). Additionally, the court’s award could be construed as a sua sponte award of attorney fees under OCGA § 9-15-14 (b). See In the Interest of M. A. K., 202 Ga. App. 342, 343 (1) (414 SE2d 288) (1991). Viewed either way, the court had authority to make the award.

2. Cohen also contends the court violated her procedural rights in two ways: 1) by calling a hearing without notifying her that attorney fees would be an issue or that she might be held liable personally for the fees, and 2) by denying her an opportunity to contest the necessity of the legal services provided and the reasonableness of the fees claimed for those services. The first contention has no merit. A court can pursue a contempt sanction without notice when, as here, an attorney’s conduct has disrupted the orderly administration of the court’s business. In re Sykes, 151 Ga. App. 233, 234 (1) (259 SE2d 215) (1979). Also, the language of OCGA § 9-15-14 (b) itself allows the court to assess fees sua sponte. Further, Cohen concedes committing the acts sanctioned and advances no argument why additional notice would have altered the court’s decision to make a fee award. As to her personal liability, an attorney may always expect a court to hold the attorney, as an officer of the court, liable for costs associated with improper actions in litigation.

Decided November 16, 1995.

Beverly L. Cohen, pro se.

Bodker, Ramsey & Andrews, Stephen C. Andrews, Julian A. Mack, for appellee.

Although there is no error in the court’s imposing an award for attorney fees, “[a] party opposing a claim for attorney fees has a basic right to confront and challenge testimony as to the value and need for legal services. [Cit.]” Mitcham v. Blalock, 214 Ga. App. 29, 32-33 (2) (447 SE2d 83) (1994); see also Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993); OCGA § 9-15-14 (d). The record does not show Cohen was afforded such an opportunity, and the judgment must be reversed and remanded for an evidentiary hearing to determine an amount for reasonable and necessary attorney fees.

Judgment reversed and remanded with direction.

Pope, P. J., and Ruffin, J., concur.


author: Pope, Presiding Judge.

text:
    A95A1797.
    SADEGHI v. SUAD, INC. et al.
    (464 SE2d 234)
   Pope, Presiding Judge.

On November 13, 1991, Sadeghi injured his back while working for Suad, Inc. From that date until December 17, 1992, he received temporary total disability benefits. On December 17, 1992, Sadeghi returned to light-duty work with a different employer, Crystal Art Lighting. He stopped working for Crystal, however, on October 14, 1993. Asserting that he was unable to find other suitable employment because of his injury, Sadeghi then filed a claim seeking recommencement of temporary total disability benefits based on a change in condition. Alternatively, he asked for permanent partial disability benefits. An administrative law judge denied Sadeghi’s claim for recommencement of temporary benefits, but awarded him permanent partial disability benefits. We granted Sadeghi’s application for discretionary appeal after the Board of Workers’ Compensation adopted the ALJ’s findings and award, and the superior court affirmed the Board’s decision.

Decided November 16, 1995.

Clements, Clark & Sweet, John F. Sweet, for appellant.

Jerome J. Stenger, for appellees.

In cases like this, the claimant has the burden of demonstrating that his inability to obtain full-time employment was proximately caused by his compensable injury. See Brown v. Ga. Power Co., 181 Ga. App. 500, 501 (1) (352 SE2d 818) (1987). In an attempt to meet this burden, Sadeghi testified that he had looked for light-duty work at over 100 places, including Suad; had . told prospective employers about his injury; and had not been hired by any of these employers. Relying on Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991), the ALJ found that Sadeghi failed to meet his burden in light of the fact that he had presented no evidence as to why any prospective employers, with the exception of Suad, had not hired him. In affirming the Board’s adoption of the ALJ’s findings and decision, the superior court also relied on Aden’s. Because of this, we are compelled to reverse the superior court’s decision based on the recent holding in Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995). There, the Supreme Court overruled Aden’s and all other cases which imposed a burden on claimants in cases like this to prove the reasons why prospective employers failed to hire them.

Although the superior court also affirmed the Board’s decision on the ground that Sadeghi failed to demonstrate that the work he had looked for was suitable, we note that the ALJ and Board did not address this issue. Moreover, we note that there is some record evidence that Sadeghi attempted to locate suitable (i.e., light-duty) employment. Consequently, because any determination on this issue is best left to the factfinder in the case, we remand the case to the superior court with the instruction that the case further be remanded to the Board and then to the ALJ for a new hearing regarding Sadeghi’s entitlement to the recommencement of temporary total disability benefits. The hearing should be consistent with this opinion and the holding in Maloney.

Judgment reversed and remanded.

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


author: Blackburn, Judge.

text:
    A95A2415.
    AUGUSTA TENNIS CLUB, INC. v. RICHMOND COUNTY.
    (464 SE2d 228)
   Blackburn, Judge.

Augusta Tennis Club, Inc. (ATC), condemnee in the underlying condemnation action appeals, asserting that the trial court erred in striking and excluding evidence of ATC’s consequential damages and in denying ATC’s motion for a new trial.

Richmond County condemned portions of three contiguous parcels of land for a road-widening project erroneously believing that ATC was the sole owner of the land. During a jury trial limited to the issue of consequential damages, Richmond County presented evidence, without objection, showing that ATC should be compensated for the takings in the amount of $5,875. In the presentation of ATC’s case, one of its two owners and president, Bill Belangia, testified that the takings would affect the value of the remainder of the two parcels on which ATC owned 46 apartments and estimated consequential damages of $84,600. Thereafter, Richmond County moved to strike Belangia’s testimony for failure to calculate consequential damages in accordance with Dept. of Transp. v. Gunnels, 175 Ga. App. 632 (334 SE2d 197) (1985), reversed on other grounds at 255 Ga. 495 (1) (340 SE2d 12) (1986), requiring, among other things, that consequential damages to the “entire” remainder be calculated following a five-step procedure. Upon the trial court’s grant of the motion to strike, Richmond County moved in limine to exclude the testimony of ATC’s expert witness on the same ground and for a directed verdict. The trial court granted these additional Richmond County motions, and, later denied ATC’s motion for a new trial.

1. ATC contends that the trial court erred by striking its evidence of consequential damages to the remainder of the tract from which the takings occurred and directing a verdict against it thereon.

“ ‘Consequential damages to “the remainder of the tract in which the taking occurs” are the only consequential damages that may be recovered in the condemnation action.’ Georgia Power Co. v. Bray, 232 Ga. 558, 560 (207 SE2d 442) (1974).” Exxon Corp. v. Dept. of Transp., 202 Ga. App. 43, 44 (413 SE2d 238) (1991). The evidence shows that the parties tried the underlying condemnation action upon the erroneous belief that Richmond County’s takings were to be from three contiguous properties in common ATC ownership, in effect, a single tract of land. However, unknown to ATC at the time of trial, it no longer owned the two parcels as to which it asserted entitlement to consequential damages. In this regard, ATC introduced a warranty deed into evidence at the hearing upon its motion for new trial which established that it had conveyed fee simple title to such parcels in 1983 to the Adiz Development Corporation (Adiz), a corporation with which it shared common ownership as well as identical officers and directors.

Decided November 16, 1995.

William A. Trotter III, for appellant.

Burnside, Wall, Daniel, Ellison & Revell, Harry D. Revell, for appellee.

Notwithstanding the fact that Adiz and ATC have common shareholders, officers, and directors, each is a legal entity “retain [ing] its separate and independent character, regardless of the ownership of its capital stock.” See Independent Gasoline Co. v. Bureau of Unemployment Compensation, 190 Ga. 613, 614 (10 SE2d 58) (1940), cert. denied, 311 U. S. 707 (1940). As such, ATC here lacked standing to pursue consequential damages as to a remainder belonging to Adiz. Exxon Corp., supra, and Mallory v. Upson County Bd. of Ed., 163 Ga. App. 377 (294 SE2d 599) (1982) (standing to contest condemnation an incident of ownership). Thus, the trial court properly excluded ATC’s evidence of consequential damages therein. Stalvey v. Varn Motors Finance Co., 56 Ga. App. 696, 697 (193 SE 627) (1937) (“ ‘It is not error to refuse to receive evidence not pertinent to the proceeding.’ [Cit.]”). Moreover, the trial court did not err in directing a verdict against ATC on the issue of consequential damages, as it was without standing to recover such damages. Mallory, supra. Accordingly, we deem this enumeration of error to be without merit.

2. In light of our disposition of Division 1, we need not reach ATC’s remaining enumeration of error.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A95A2449.
    ETIENNE v. THE STATE.
    (464 SE2d 396)
   Johnson, Judge.

Moncito Etienne appeals from his conviction of possession of cocaine with intent to distribute and the denial of his motion for new trial.

Etienne was arrested in January 1990 after a confidential informant told police that three men in a dark blue GMC Jimmy with a Florida tag were in possession of cocaine. Police were also told that the men were from Miami, and that after they were finished eating in a fast food restaurant they would be heading south on Interstate 95. Acting on this information, police identified the vehicle, waited for the men to get back en route, and then stopped them. Etienne was driving and gave police permission to search the car. Using a screwdriver found in the car, police opened a strip of molding between the windshield and the front passenger seat where they found cocaine. When asked to empty his pockets at the police station following his arrest, Etienne produced more cocaine.

1. Etienne asserts the trial judge erred in refusing to give his written request for a charge to the jury on good character. Etienne asserts that he was entitled to such a charge because good character was his principal defense and because he asserted several times during his testimony that he had a clean record. In State v. Braddy, 254 Ga. 366 (330 SE2d 338) (1985), the defendant testified that he was a church member, taught Sunday School, was an associate minister of youth at his church, and had never been charged with or convicted of a crime. This testimony was allowed as evidence of good character instead of testimony regarding his reputation in the community. The Supreme Court held that the defendant was entitled to a charge on good character after he testified regarding specific acts which he believed established his good character, holding that “[c]onduct reveals character as accurately as reputation does.” Id. at 367. Generally, “[d]irect examination to prove the character of the accused must be limited to questions concerning his general reputation in the community in which he lives. The rule in Georgia is that good character may be proved only by testimony of a witness as to the reputation of the person whose character is in issue.” Cunningham v. State, 182 Ga. App. 591 (356 SE2d 542) (1987). This evidence necessarily comes in through witnesses other than the defendant because “the law recognizes that [a defendant’s] own testimony [about his actual character] is self-serving and likely to be biased when he is testifying about it as a person accused of crime. Thus the law casts about for another source of evidence as to a person’s character. It looks to what other people, who have a basis for knowing the defendant, think his character is. It rejects the opinion of individuals because of a myriad of undetectable influences on that one person which will in all probability give a skewed perspective and a narrow view. It accepts instead the congregate opinion, the collective opinion of the many who have dealt with the defendant directly or gained knowledge of him indirectly.” Taylor v. State, 176 Ga. App. 567, 571-572 (3) (336 SE2d 832) (1985). Braddy, supra, created a second method for introducing good character evidence so as to entitle a defendant to a jury charge on good character; a defendant’s testimony regarding his own conduct. In this case, however, Etienne gave us no examples of conduct tending to prove his good character, unless we consider his declarations that he had a clean record standing alone to constitute a course of conduct exemplifying his good character. This case presents us with precisely the problem anticipated by Chief Justice Hill in his dissent in Braddy. That is, how many instances of good acts as recounted by the defendant will entitle him to a charge on good character? And further, what type of behavior constitutes such good deeds? In Chastain v. State, 200 Ga. App. 473 (408 SE2d 421) (1991), upon which Etienne relies, the defendant took the stand and testified that he had been awarded custody of his minor children, that he had never been convicted of a drug offense and had only one traffic ticket. This Court, citing Braddy, reversed the conviction because the trial court declined to give the defendant’s requested charge on good character. Did any of Chastain’s examples of good conduct really constitute valid indicia of good conduct? The award of child custody to Chastain could well have been more a reflection of the character of the mother of the children than his own. Examples of his performance as a parent would certainly have been more probative evidence of good character. We agree with Judge Andrews’ assessment of the evidence in his special concurrence; the application of Braddy to the facts of Chastain “trivializes the ‘good character’ defense.” Chastain, supra at 475.

Decided November 16, 1995.

Timothy L. Barton, for appellant.

In this case, there was no evidence regarding any specific good conduct and a trial court is not obligated to give a charge not authorized by the evidence. Kimble v. State, 209 Ga. App. 36, 38 (2) (432 SE2d 636) (1993). The trial court did not err in refusing to give Etienne’s requested charge on good character.

2. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence.” (Citations and punctuation omitted.) Curtis v. State, 208 Ga. App. 720, 721 (431 SE2d 719) (1993). Contrary to Etienne’s assertion that the evidence was insufficient to support his conviction, we find the evidence presented at trial sufficient to authorize the jury to find Etienne guilty of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); O’Neal v. State, 211 Ga. App. 741, 742 (1) (440 SE2d 513) (1994).

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.

W. Glenn Thomas, Jr., District Attorney, Carol L. Stokes, Assistant District Attorney, for appellee.

       In fact, Etienne had been arrested, but not convicted, twice between the time of the offense charged in this case and trial.


author: McMurray, Presiding Judge.

text:
    A95A1004.
    HENNESSEY et al. v. FROEHLICH et al.
    (464 SE2d 246)
   McMurray, Presiding Judge.

Plaintiffs William J. Hennessey, Philip A. Hennessey, Therese H. Dristas, Helen H. Frati, Mary H. Hardy, and Elizabeth M. Hennessey, and defendant Frances H. Froehlich, are the children of Mary D. Hennessey, who is deceased. Defendant offered the purported will of the parties’ mother in the Fulton County Probate Court. Under the propounded will, all of the assets of the deceased mother will pass to defendant. Plaintiffs filed a caveat to the probate on the grounds of undue influence, duress, and lack of testamentary capacity.

The probate court ordered the parties to participate in mediation during the course of which several offers and counteroffers were exchanged. After face to face negotiations produced no agreement, the parties agreed to leave their last offers open for a period of time. This action was brought to enforce an alleged agreement which plaintiffs maintain was reached when their attorney conveyed, by telephone to defendant’s attorney, the plaintiffs’ acceptance of the terms of defendant’s last offer. On opposing motions for summary judgment, the superior court granted defendant’s motion and denied the motion of the plaintiffs. Held:

We have often repeated the principle that in order to create a binding contract there must be a meeting of the minds between the parties. “No contract exists until all essential terms have been agreed to. OCGA § 13-3-2.” Bridges v. Bridges, 256 Ga. 348, 349-350 (349 SE2d 172). In the case sub judice, the superior court has concluded, as a matter of law, that there was no contract between the parties, but we do not agree.

Sometime prior to her death, the parties’ mother held the proceeds from the sale of the family home, some $75,000 or more, in a joint account with two of her children, defendant and plaintiff Dristas. Neither Dristas nor any of the other plaintiffs had knowledge that these funds had been transferred to another account which the decedent held jointly with only defendant. Upon her mother’s death, defendant assumed control of these funds as the surviving joint holder of the account. These funds are also a subject of dispute between the parties and plaintiffs maintain that their mother intended them to receive shares of this asset. The superior court order states that “[p]laintiffs have acknowledged that the disposition of claims relating to a certain $75,000 certificate of deposit (‘the CD’) was a material element of any settlement of the probate action, and it is further undisputed that the parties reached no agreement as to whether claims relating to the CD would be released or not.” But we fail to find support in the record for either part of this statement.

In regard to the superior court’s assertion that plaintiffs had acknowledged that disposition of claims relating to the CD was a material element of any settlement of the probate action, we note that while defendant’s brief contains this assertion with reference to the deposition of plaintiff William J. Hennessey, we do not find support for the assertion in the referenced testimony. Specifically, William J. Hennessey testified that appropriate resolution of the claim concerning the CD was a material issue to him, but he also stated that he believed that issue to be outside the scope of the probate proceeding. This statement is also contradicted by evidence that the subjective perception of both sides was that the CD was not part of the estate or at issue in the probate action. Furthermore, if ownership of the CD or claims in regard to the CD was an issue in the probate action, the objective terms of the alleged settlement agreement established by the evidence would clearly provide for the allocation of that asset.

“ ‘In determining if parties had the mutual assent or meeting of the minds necessary to reach agreement, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party’s manifestations of assent, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent. ... In some instances, the only conduct of the parties manifesting intent is the express language of the (purported) agreement. In other instances, the circumstances surrounding the making of the (alleged) contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement, and courts are free to consider such extrinsic evidence.’ ” (Citations omitted.) Amwest Surety Ins. Co. v. RA-LIN & Assoc., 216 Ga. App. 526, 530 (1) (455 SE2d 106).

In the case sub judice, the terms of the alleged agreement were recorded in the notes of the parties’ attorneys taken down during the course of the mediation proceeding. There was evidence that these terms included a provision that anything in the estate not specifically allocated would go to defendant. Since this provision may be viewed as expressing an objective intent which conflicts with the statement that no agreement was reached in regard to claims concerning the CD we must reject the superior court’s conclusion that such was a matter of undisputed fact.

The superior court further found that “the undisputed evidence also establishes that the parties never came to an agreement on the disposition of certain items in the estate which, although they did not carry a high monetary value, were of sentimental significance to the parties.” This is an apparent reference to that provision of the agreement established by the evidence which reserved for later determination the issue of division of photographs and mementos among the parties. The record as a whole shows that the allocation of family keepsakes was of relatively minor importance to the parties. Those of particular significance to defendant had been allocated to her. We see no reason that the reservation of division of the remainder should void an otherwise valid agreement since it is generally acceptable for a contract to leave minor details for subsequent agreement. McMurray v. Bateman, 221 Ga. 240, 253 (144 SE2d 345); Touche Ross & Co. v. DASD Corp., 162 Ga. App. 438, 440 (2) (292 SE2d 84).

We must also reject the alternative reasons stated by the superior court in support of its judgment, that the alleged agreement was unenforceable because of failure to comply with OCGA §§ 53-3-22 and 15-19-5. Contrary to the superior court’s conclusion, OCGA § 53-3-22 does not render the alleged oral agreement unenforceable because the factual circumstances in the case sub judice bring it within the holding in Beckworth v. Beckworth, 255 Ga. 241 (336 SE2d 782), that is, there being no minors or incompetents among the heirs, they were able to enter a binding agreement as to a division of the estate different than that provided in the will without any requirement for approval of the court under this statute.

Nor is OCGA § 15-19-5 applicable to the case sub judice. Any agreement was negotiated by the parties rather than their attorneys. Thompson v. Pulte Home Corp., 209 Ga. App. 558, 560 (1) (434 SE2d 89).

On appeal, defendant has argued primarily the issues decided in her favor in the superior court order granting her motion for summary judgment. While we reject the conclusions reached by the superior court, there remain a number of issues to be resolved in order to ascertain whether, under a de novo review of the evidence, the superior court erred in granting summary judgment in favor of defendant.

We should first note that most of the terms of the alleged agreement, particularly as to the allocation of the economically significant assets of the estate are uncontroverted. The record also shows one issue on which there was no agreement, the allocation of responsibility between the two sides for any future potential liability of the estate. But since there is evidence that both sides knew there were no such liabilities, we cannot say, as a matter of law, that this issue involves an essential term of the agreement. If this term is not necessary for performance of the agreement, it is not an essential term of the agreement. There is also contradictory evidence as to other terms of the agreement.

Some of the contradictions as to terms of the agreement arise from inconsistencies in the testimony of plaintiffs’ former attorney Kresky. Attempts have been made to explain a number of these inconsistencies, such as where prior statements are attributed to faulty memory or testifying without reference to notes. Since Kresky is not a party to the action giving testimony on her behalf, her testimony is not construed against her former clients on consideration of the opposing motions for summary judgment, but the contradictions do present issues of fact for a jury. English v. Crenshaw Supply Co., 193 Ga. App. 354, 359 (2) (387 SE2d 628).

Decided November 17, 1995.

Haas, Bridges, Kane & Coburn, Stephen R. Kane, Frederick A.

Johnson, for appellants. Long, Aldridge & Norman, Bruce P. Brown, for appellees.

In summary, we conclude that there are genuine issues of material fact concerning whether the parties entered into a binding settlement agreement which resolves the issues pending in the probate case. While the evidence is inconsistent on a number of issues, there is some evidence which, if accepted by a trier of fact, does provide the essential terms of an agreement between the parties. At the same time there is conflicting evidence as to what are the provisions of any such settlement agreement on a few specific issues, whether certain terms were essential to the performance of any settlement agreement, and whether there was a timely acceptance of defendant’s offer to settle. There is some evidence from which a trier of fact might determine that there had been a meeting of the minds on all essential terms of an agreement to settle the probate case, albeit the evidence does not require such a conclusion. The superior court was correct in denying plaintiffs’ motion for summary judgment but erred in granting defendant’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

Andrews and Blackburn, JJ., concur.


author: Andrews, Judge.

text:
    A95A1198.
    CC OFFICE ASSOCIATES, L.P. v. DeKALB COUNTY, GEORGIA.
    (464 SE2d 243)
   Andrews, Judge.

CC Office Associates, L.P. (“Associates”), appeals from the trial court’s grant of summary judgment to defendant DeKalb County and the denial of Associates’ motion for summary judgment on Associates’ claim for recovery of no-return and late payment penalties assessed against it for 1992 real estate taxes.

Viewed with all inferences in favor of Associates, opponent of summary judgment, the evidence showed that in November 1991, Associates purchased 30.89 acres of DeKalb County real property from FNBC Properties, Inc. (“FNBC”) of Chicago. The purchase price was $20,900,000. As required by OCGA § 48-6-1 et seq., on November 30, FNBC filed with the clerk of the superior court a PT 61, “Real Estate Transaction Declaration” reflecting the payment of the real estate transfer tax.

That PT 61 was signed by the agent of FNBC in Section G, labeled “Seller Certification.” It listed the property as 30.89 acres in District 18, Land Lot 189. No sub lot or block was listed in the space provided. The estimated fair market value was listed as $20,900,000. The form did not contain any affirmation or signature by anyone from Associates.

The issue here is whether the PT 61 complied with OCGA § 48-5-15 (d) so as to serve as a return of real property. At the time of this incident OCGA § 48-5-15 provided: “(a) All improved and unimproved real property in this state which is subject to taxation shall be returned in person or by mail by the person owning the real property or by his agent or attorney to the tax receiver or tax commissioner of the county where the real property is located, (b) If the real property has a district, number, and section designation, the tax receiver or tax commissioner shall require the person making a return of the reeil property to return it by district, number, and section designation. . . . (c) No tax receiver or tax commissioner shall receive any return of real property which does not designate the real property as provided in this Code section. . . . (d) The filing of a real estate transfer tax form in conjunction with the payment of the real estate transfer tax required under Article 1 of Chapter 6 of this title containing the information otherwise required for a return of real property under this Code section shall serve as a return of such real property under this Code section ” (Emphasis supplied.)

The time for filing real property tax returns for the 1992 tax year in DeKalb County expired on March 1, 1992. The first installment of taxes owed was due on July 1 and delinquent after August 15, 1992. Associates did not pay the first installment until October 9, 1992. No return, other than the PT 61, was filed on this property.

As concluded by the trial court, the PT 61 suffered from several failures which precluded that court and this one from concluding that it could serve as the required tax return.

Decided November 17, 1995.

Branch, Pike & Ganz, Frank O. Brown, Jr., for appellant.

First, OCGA § 48-5-15 requires that the person “owning the real property or by his agent” return the property. As set out above, the only person who signed the PT 61 was the seller. Further, OCGA § 48-5-19 requires that a statutory oath be subscribed by the person making the return, i.e., the owner or his agent. No such oath or valid subscription of the owner is contained on the PT 61. Harvey v. Kidney Ctr. &c., 213 Ga. App. 319, 320 (444 SE2d 590) (1994); D’Zesati v. Poole, 174 Ga. App. 142, 143 (329 SE2d 280) (1985); Gruber v. Fulton County, 111 Ga. App. 71, 73 (1) (140 SE2d 552) (1965). Without such an oath, the return is not complete. McLendon v. Dunlap Hardware, 3 Ga. App. 206, 210 (1) (59 SE 718) (1907).

Further, it was not disputed by Associates that land in DeKalb County is separated into six districts containing 900 land lots. These land lots contain a total of 178,000 parcels of property. Land Lot 189, in which these three parcels were located, contained 115 parcels. The section numbers of the three parcels were not contained on the PT 61, only the district and land lot. “To accomplish the proper collection of taxes, the General Assembly has established a taxing scheme calling for all property to be returned with specificity. [Cits.] . . . The reason for these rules is obvious: if local tax officials do not know of certain property, they cannot undertake to see that it is properly and fairly taxed. [Cit.]” Ga. Marble Co. v. Whitlock, 260 Ga. 350, 354 (1) (392 SE2d 881) (1990).

While the General Assembly did, for a short period, allow the real estate transfer tax form to serve as a return, that form must first contain all information required by the Code section. That the information may fulfill the transfer tax statute is not sufficient. “[T]he Real Estate Transfer Tax is not a property tax; it is an excise tax on transactions involving the sale of property. It is paid by the transferor each time he sells a parcel of real estate for the privilege of selling that particular property. The amount of the tax is based on the sales price of the property; it is not a tax on the property as such, as is the ad valorem tax which is charged against the owner of the property or against the specific property. [Cit.]” City of Columbus v. Ronald A. Edwards Constr. Co., 155 Ga. App. 502, 503 (271 SE2d 643) (1980). See Higdon v. Gates, 238 Ga. 105, 107 (231 SE2d 345) (1976).

The grant of summary judgment to DeKalb County was proper. We need not consider the remaining arguments of Associates.

Judgment affirmed.

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

Jonathan A. Weintraub, Joan F. Roach, Lisa F. Stuckey, for appellee.

       The trial court entered final judgment as to these two categories of penalty. The issue of excess tax remains pending below.

       Subsection (d) was added by Ga. L. 1991, p. 1110, § 1, applicable to all taxable years beginning January 1, 1991. By Ga. L. 1992, p. 1643, § 1, subsection (d) was repealed effective July 1, 1992.


author: McMurray, Presiding Judge. Andrews, Judge, Smith, Judge,

text:
    A95A1641.
    A95A1642.
    HOLBROOK et al. v. EXECUTIVE CONFERENCE CENTER, INC. et al. EXECUTIVE CONFERENCE CENTER, INC. v. HOLBROOK et al.
    (464 SE2d 398)
   McMurray, Presiding Judge.

Plaintiffs Alfred Holbrook and Carolyn Holbrook, individually and as parents and next friends of Alfred Holbrook II, a minor, brought this tort action against defendants Executive Conference Center, Inc. (“Executive”), as well as the Dayton (Ohio) Public Schools a/k/a Dayton Public School District (“Dayton Public Schools”), the Dayton Board of Education, and Leroi M. Hall (collectively “the Ohio defendants”), after the 13-year-old Alfred Holbrook II nearly drowned when he was found “at the bottom of the deep end” in a swimming pool “owned and operated ... on the premises . . .” of Executive’s conference center in Fulton County, Georgia. Alfred Holbrook II was a guest of Executive while “participating in a school band trip organized, sponsored and supervised by the Defendants, Dayton Public Schools and Dayton Board of Education.” At the time Alfred Holbrook II entered the shallow end, the swimming pool “was in violation of the applicable Fulton County Health Department Code, including but not limited to § 30-2-9-6.” Executive was further negligent in the maintenance and operation of the pool “in that the break line between the shallow end of the pool and the deep end of the pool was inadequately differentiated and/or marked.” According to the amended complaint, defendant Leroi M. Hall “negligently failed to properly supervise the minor Plaintiff and failed to exercise reasonable care for the safety of the minor Plaintiff.”

Executive admitted that Alfred Holbrook II was its guest on August 31, 1991, but denied the material allegations of negligence, asserting that it “adequately instructed and warned Plaintiff Alfred Holbrook II of any alleged risks associated with the use of the pool in question.” In the joint answer of the Ohio defendants, the Dayton Public Schools and the Dayton Board of Education admitted that defendant “Leroi M. Hall, at all times relevant herein, was acting as the agent and/or employee of the defendant Dayton Public Schools,” but each denied all allegations of negligence or liability.

After a period of discovery, Executive filed a motion for summary judgment, arguing that plaintiffs “cannot establish a prima facie case of negligence.” The Ohio defendants filed their own joint motion for summary judgment, arguing that the 13-year-old Alfred Holbrook II “assumed the risk of injury.” In support of the various contentions, the following evidence was adduced: Alfred Holbrook II “had basic swimming skills.” He was not afraid of the water. When he entered the shallow end of Executive’s pool, no lifeguard was in attendance, and “there was no life line suspended across the water in the pool.” He “had no plan or intention to swim into the deep end of the pool.” It is not Alfred Holbrook II’s “usual practice or habit while swimming to swim past a life line or into the deep end.” At no time did he “voluntarily enter the deep end of the pool.” His only plan was to swim across the width of the pool, “staying in the shallow end.” Alfred Holbrook II knew to look for “a line across or [to] look to the side and see numbers on the side that say how deep it is” to determine the shallow end from the deep end. He does not know how he came to be found floating face down in the deep end but “remember [s] walking [in waist-high water] over toward the other side of the pool[, . . . i.e.,] the other side of the shallow part, [but does not] remember anything after that.” However, Alfred Holbrook II expressly deposed that he “did not experience an asthma attack or any asthmatic symptoms” while in the pool or at any time that morning.

At all pertinent times, the pool safety provisions of the Fulton County Health Code required a qualified attendant trained in pool operation and first aid “to be on duty at or near the poolside at all times when a pool is open to use by bathers [, . . . with the] authority to enforce all rules of safety and sanitation.” Fulton County Code Section 30-2-9-20. Section 30-2-9-6 (3) requires that life lines “shall be installed across the pool along the slope-break,” denoting the end of the shallow area and the descent into the deep end. Moreover, Section 30-2-9-6 (3) further requires “[permanent easily readable depth markings (minimum four-inch-high numbers) indicated in feet [to be] visible from both inside and outside the pool ... on both interior sides of the pool above normal water level ... (a) at the shallow end (b) at the slope break and (c) at the deep end.” Photographs of Executive’s pool (drained) show the absence of such interior depth markings. Jerry Kerce, an Environmental Health Specialist IV for the Fulton County Health Department and responsible for enforcement of Fulton County pool safety provisions, deposed that the presence of a life line suspended across the pool at all times during its use “is an absolute requirement.” He explained the presence of the life line “to designate the slope break [is] important not only as a visible separation of the shallow end from the deep end, but also to warn swimmers where the slope break in the pool is located.” Since the “slope of the floor of the pool can alter as much as four times the depth from the shallow end as compared to the deeper end[,] ... a life line is an essential warning to any swimmer, adult or child, of the dramatic change in depth. . . . The life line is also important because a swimmer may grab onto the life line if surprised by the change in depth.” A swimming pool in Fulton County which has “depths in excess of five feet and does not have a life line installed in the pool is in violation of the Fulton County Health Code,” which violation constitutes a misdemeanor. For purposes of Executive’s motion, counsel stipulated that there was no life line across the pool “marking off the division between the shallow and deep end of the pool[;] . . . that there were no markings on the bottom of the pool which would indicate where the slope to the deep end begins [; and that the lack of a life line] was negligence per se because there is a Fulton County ordinance requiring such.”

The trial court denied Executive’s motion for summary judgment but granted that of the Ohio defendants. In Case No. A95A1641, plaintiffs appeal from the grant of summary judgment to the Ohio defendants. In Case No. A95A1642, Executive cross-appeals from the denial of its motion for summary judgment. Held-.

Case No. A95A1641

1. Plaintiffs contend the trial court erred in concluding that Alfred Holbrook II assumed the risk of injury as a matter of law. We do not reach the merits of this question. It appears that the grant of summary judgment to the Ohio defendants was correct, regardless of any factual question as to proximate cause. These defendants enjoy sovereign and official immunity under the authority of Art. I, Sec. II, Par. IX, subsection (d) of the Georgia Constitution of 1983 as amended, which is extended to them as a matter of comity. See Univ. of Iowa Press v. Urrea, 211 Ga. App. 564, 565 (2), 567 (440 SE2d 203).

“[Supervision and control of students by teachers is a discretionary function. Guthrie v. Irons, 211 Ga. App. 502, 504-507 (439 SE2d 732) (1993); [cits.].” Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 297 (454 SE2d 149). In the case sub judice, there are no allegations of wilfulness, malice, or corruption. “ ‘The record in the present case is utterly devoid of any conduct by ([Leroi M. Hall]) which could remotely be construed as being sufficient to lift the shield that protects public officers acting colore officii.’ Partain v. Maddox, 131 Ga. App. 778, 785 (206 SE2d 618) (1974).” McDay v. City of Atlanta, 204 Ga. App. 621 (1), 622 (420 SE2d 75). Since Leroi M. Hall, in his official capacity as an agent for the Dayton Public Schools and the Dayton Board of Education, was “performing discretionary functions when the [near drowning] occurred, [each Ohio defendant is] immune from personal liability under subsection (d) of the 1991 amendment [to Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution].” Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 297, supra. A judgment which is correct for any reason must be affirmed. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673); Amwest Surety Ins. Co. v. RA-LIN & Assoc., 216 Ga. App. 526, 529 (1), 531 (455 SE2d 106).

Case No. A95A1642

2. Executive enumerates the denial of its motion for summary judgment, contending plaintiffs failed to establish a prima facie case of negligence because they cannot make an affirmative showing of causation. Specifically, Executive argues there is no evidence “that the alleged absence of a ‘life line’ in the swimming pool or alleged negligent operation of the swimming pool contributed in any way to the alleged injury.”

In the case sub judice, Executive’s undisputed noncompliance with the Fulton County ordinance requiring the presence of a qualified attendant trained in first aid, requiring a life line as the demarcation of the shallow end from the deep end, and requiring permanent interior markings of the pool’s depth “constituted negligence per se as relied on by the plaintiff[s]. [Cits.]” Northwestern &c. Ins. Co. v. McGivern, 132 Ga. App. 297, 301 (2) (208 SE2d 258). Accord Walker v. Daniels, 200 Ga. App. 150, 153 (1), 155 (407 SE2d 70). “Where a statute provides a general rule of conduct, although only amounting to a requirement to exercise ordinary care, the violation thereof is negligence as a matter of law, or negligence per se, whereas in the absence of such specific statute the jury is left to determine whether such conduct constitutes negligence. Hollomon v. Hopson, 45 Ga. App. 762 (3) (166 SE 45).” Teague v. Keith, 214 Ga. 853 (1), 854 (108 SE2d 489). Nevertheless, “even when negligence per se has been shown, proximate cause must still be proved. [Cits.]” Central Anesthesia Assoc., P. C. v. Worthy, 254 Ga. 728, 731 (2), 733 (333 SE2d 829). “[I]n order for a violation of a statute to be negligence per se, it is sufficient if the violation is capable of having a causal connection with the injury and damage inflicted. [Cit.] It is not essential that the injury inevitably flow from the violation.” Central Anesthesia Assoc., P. C. v. Worthy, 254 Ga. 728, 731 (2), 733, fn. 3, supra.

The Fulton County ordinance in the case sub judice requiring the presence of a qualified attendant near Executive’s pool, requiring a life line, and requiring the display of highly visible depth markings on the interior of the pool is intended to prevent precisely the type of accidental near drowning as sustained by Executive’s invitee, Alfred Holbrook II. Such safety statutes “create a duty, the breach of which is inextricable from the proximate cause of the damage.” Central Anesthesia Assoc., P. C. v. Worthy, 254 Ga. 728, 731 (2), 733, supra. Even though in the case sub judice there is no direct evidence as to just how Alfred Holbrook II came to be floating face down in the deep end of Executive’s pool when his last conscious intent was simply to wade from one side of the shallow end to the other, the jury would be authorized to infer that his near drowning would not have happened but for Executive’s noncompliance with the applicable pool safety regulations. This circumstantial evidence of causation is sufficient to present a jury question. Walker v. Daniels, 200 Ga. App. 150, 155 (2), 157, supra.

Nevertheless, Executive argues that Alfred Holbrook II’s own testimony that he was aware of the location of the deep and that he was aware at all times that no life line was present in the pool establishes his equal or superior knowledge, such that any “recovery is barred as a matter of law and the [trial court’s order denying summary judgment] should be reversed.” However, this contention is controlled adversely to Executive. The “jury would not be precluded from finding that the absence of the [statutorily mandated] safety equipment was the proximate cause of the [minor’s injuries] merely because [he] entered the water voluntarily. The purpose of the [ordinance in the case sub judice] is clearly to protect any [invitee bather] who might suddenly have need of a life [line], regardless of whether he or she enters the water voluntarily or involuntarily.” Alexander v. Harnick, 142 Ga. App. 816, 817 (2) (237 SE2d 221). “[I]t is as much the function of a [properly positioned life line] to rescue bathers in trouble . . . as it is to keep bathers from getting into a drowning condition.” Ward v. City of Millen, 162 Ga. App. 148, 150 (290 SE2d 342). The 13-year-old Alfred Holbrook II’s awareness of the physical circumstances does not necessarily establish the minor’s complete appreciation of any attendant risk of harm, especially since the mandated safety features go to notice of possible danger. “ ‘ “(K)nowledge of defect” should not be confused with “knowledge of danger.” ’ Firestone Svc. Stores v. Gillen, 58 Ga. App. 782, 787 (199 SE 853) (1938).” Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812, 813 (1), 814 (318 SE2d 235). The trial court correctly denied Executive’s motion for summary judgment.

Judgment affirmed in the main appeal and also in the cross-appeal.

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

Andrews, Judge,

dissenting.

Because I find that the Holbrooks cannot show that Executive’s negligence was the proximate cause of Alfred Holbrook’s accident, I must respectfully dissent.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

“On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Citation and punctuation omitted; emphasis supplied.) Nelson v. Polk County Historical Society, 216 Ga. App. 756, 757 (456 SE2d 93) (1995), quoting Prosser and Keaton on Torts (5th ed. 1984), p. 269, § 41.

Further, there are no disputed issues of fact to go to a jury. It is undisputed that the last time anyone saw Alfred, he was in the shallow end of the pool. No one heard him cry for help. No one saw him again until he was found unconscious in the deep end. Alfred himself says that the last thing he remembers was wading across the shallow end of the pool. In addition, the Holbrooks stress that at no time did Alfred go toward the deep end of the pool.

The speculations on which the plaintiffs rely are not sufficient to form a basis for the conclusion that Executive’s negligence more likely than not was responsible for the accident. To deny summary judgment to Executive in this case would be to hold that since Executive cannot show that its negligence was not responsible for the accident, this case must go to trial. However, the Holbrooks will bear the burden of proof at trial and even if they get a favorable verdict, they “will not be able to sustain it by a single fact, for it will be based on sheer speculation.” Ware County v. Medlock, 192 Ga. App. 542, 550 (385 SE2d 429) (1989) (Birdsong, J., dissenting).

In upholding the trial court’s denial of Executive’s motion for summary judgment, the majority appears to be applying the doctrine of res ipsa loquitur. However, plaintiffs do not claim, and the facts are not consistent with, res ipsa loquitur. This court, in finding that res ipsa loquitur did not apply in similar circumstances where a boy drowned and was found in the deep end of the pool, held that “drowning is not an occurrence that is within itself sufficient to indicate that it must have been brought about by negligence on the part of someone. It is just as likely to happen as the result of accident, which is negligence of no one.” Y.M.C.A. v. Bailey, 112 Ga. App. 684, 693 (146 SE2d 324) (1965).

A different result is not required by Walker v. Daniels, 200 Ga. App. 150 (407 SE2d 70) (1991), cited by the majority. The issue in that case was not how the deceased came to drown, but rather the inattentiveness of the lifeguard and whether the victim could have been rescued if “due diligence had been exerted.” Walker, supra at 156.

Accordingly, for the reasons discussed above, I would find that the trial court erred in denying Executive’s motion for summary judgment.

I am authorized to state that Presiding Judge Birdsong and Judge Smith join in this dissent.

Smith, Judge,

dissenting.

I join Judge Andrews’ dissent, but I also believe there are other reasons to disagree with the majority.

There is no evidence that any act of negligence caused Alfred Holbrook’s near drowning. There has been no explanation regarding how or why he ended up at the bottom of the pool in the deep end. The majority focuses on the lack of a life line at the slope break. Even if the line was required by Fulton County, however, there is no evidence that the lack of one caused the near drowning. In fact, Holbrook admitted that even though the line was not inside the pool, he knew where the deep end was located. Moreover, when he entered the pool, he had no concern about avoiding the deep end. He “wasn’t even thinking about it.” Also, there is no evidence that Alfred Holbrook was unable to swim.

There is no evidence, in my opinion, creating a factual issue regarding causation. “An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjec ture or possibility.” (Citations and punctuation omitted; emphasis supplied.) Moore v. Winn-Dixie Stores, 216 Ga. App. 72 (454 SE2d 532) (1995). The Holbrooks simply offered no explanation regarding causation in response to appellant’s motion for summary judgment. Because the Holbrooks have not pointed to evidence of causation beyond mere conjecture or possibility, I would reverse the trial court’s ruling.

Decided November 17, 1995

Appelbaum & LaRoss, Diane F. LaRoss, for appellants.

Powell, Goldstein, Frazer & Murphy, Joseph D. Wargo, Richard C. Mitchell, for appellees.

I am authorized to state that Presiding Judge Birdsong and Judge Andrews join in this dissent.

       It should be noted that there is no requirement that there be a lifeguard on duty at the pool. The Fulton County Health Code section quoted in the majority’s opinion merely requires that: “A qualified attendant should be on duty at or near the poolside at all times when a pool is open to use by bathers and shall be available during all department pool inspections.” Fulton County Code Section 30-2-9-20.


text:
    A95A1694.
    BETHEA v. JOINT CITY-COUNTY BOARD OF TAX ASSESSORS.
    (464 SE2d 37)
   McMurray, Presiding Judge.

In 1993, the Joint City-County Board of Tax Assessors (“the Tax Assessors”) assigned values to property in Fulton County, Georgia, based upon a method of valuation which embraces location as a primary element of value. Specifically, the Tax Assessors divided the county into 900 tax districts, segregating areas based upon “natural boundary lines” as well as “economic boundaries,” i.e., borders drawn via contrasting areas with significant differences between the average sales price of realty. The value of any parcel was then calculated based, in large part, on the average value of land (per square foot) in the parcel’s district. This method of mass-appraisal was employed in arriving at an assessed value for Caroline Y. Bethea’s residential parcel. Upon appeal, however, the Board of Equalization reduced the Tax Assessors’ appraisal of Bethea’s property by slightly over $78,000. Bethea then sought review before the superior court, claiming that the “[f]air market value of the property is less than that set by the Board of Equalization [and that the] valuation of the property is not uniform or equalized with similar properties.”

After a bench trial, the superior court further reduced Bethea’s ad valorem tax assessment by slightly over $37,000, but rejected Bethea’s claim that “[t]he valuation of [her] property is not uniform or equalized with similar properties.” This appeal followed. Held:

1. Bethea contends the trial court erred in finding that her property was equalized with similar property in other tax districts. Bethea reasons that “[t]o determine whether a particular piece of property, or properties similarly situated, have been taxed uniformly one must and should look to similar parcels within the territory[,] i.e., Fulton County, and determine whether the valuations are the same.” This argument is without merit.

Decided November 17, 1995.

Freeman & Hawkins, Jack N. Sibley, for appellant.

Stefani R. Lacour, Monica E. Ewing, for appellee.

In Thomas County Bd. of Tax Assessors v. Balfour Land Co., 214 Ga. App. 181 (446 SE2d 745), this Court approved the county tax assessors’ method of dividing the county into zones so as to realistically include location as a factor of value. The basis of this holding was evidence indicating that the zones were not “arbitrarily fixed, but were drawn from a detailed analysis of property sales throughout the county.” Id. at 182. In the case sub judice, the Tax Assessors not only demonstrated that Fulton County’s tax districts are based upon a detailed analysis of property sales throughout the county, but that the average sales price of property in Bethea’s tax district is conspicuously greater than the average sales price of property in an adjoining tax district, which is considered by locals to be part of the same urban neighborhood. Under these circumstances, we cannot say the trial court erred in rejecting Bethea’s claim that “[t]he valuation of [her] property is not uniform or equalized with similar properties.”

2. In light of our holding in Division 1, it is unnecessary to consider Bethea’s second enumeration of error.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2525.
    HOWE v. GROOVER.
    (464 SE2d 240)
   Blackburn, Judge.

Frances C. Howe appeals the trial court’s grant of defendant Venus M. Groover’s motion to dismiss Howe’s complaint based upon the expiration of the applicable statute of limitation. Plaintiff contends the doctrines of estoppel and waiver preclude the defendant from relying on the expiration of the statute of limitation. The undisputed facts show that plaintiffs personal injury action arose out of an automobile collision which occurred on August 4, 1992, and that she did not file her complaint until September 15, 1994, 42 days beyond the expiration of the applicable statute of limitation. After hearing oral argument on the defendant’s motion to dismiss, Judge Kenneth Kilpatrick entered a well-reasoned order which we now adopt as the opinion of this Court.

OCGA § 9-3-33 clearly provides that an action for injuries to the person must be brought within two years after the right of action accrues. In this case, despite admitting that her complaint was filed more than two years after the action accrued, plaintiff contends defendant should be estopped to assert the statute of limitation as a defense due to actions of defendant’s insurer, Allstate, before the statute had run, and that defendant has waived the statute of limitation due to actions of Allstate after the two-year period had expired. More specifically, plaintiff contends that Allstate led her to believe through settlement negotiations that her claim would be paid without a suit, and therefore, defendant should be barred from asserting the statute of limitation as a defense.

In support of her position, plaintiff cites Stanley v. Sterling Mut. Life Ins. Co., 12 Ga. App. 475 (77 SE 664) (1913); Knights of the Ku Klux Klan v. Fidelity &c. Co. of Maryland, 47 Ga. App. 12 (169 SE 514) (1933); and Nee v. State Farm Fire &c. Co., 142 Ga. App. 744 (236 SE2d 880) (1977), which are just a few among many in a line of cases which have consistently held that “ ‘where the insurer, by its acts in negotiating for a settlement, has led the policyholder to believe that he will be paid without suit, the insurer cannot take advantage of a provision in the policy which requires the action to be brought in a certain time.’ ” Nee v. State Farm Fire &c. Co., supra at 746; see also Suntrust Mtg. v. Ga. Farm &c. Ins. Co., 203 Ga. App. 40 (416 SE2d 322) (1992); Lynn v. Ga. Farm &c. Ins. Co., 189 Ga. App. 209 (375 SE2d 259) (1988); Ga. Farm &c. Ins. Co. v. Nolan, 180 Ga. App. 28 (348 SE2d 554) (1986); Commercial Union Ins. Co. v. F. R. P. Co., 172 Ga. App. 244 (322 SE2d 915) (1984); Lee v. Safeco Ins. Co., 144 Ga. App. 519 (241 SE2d 627) (1978). Plaintiff believes these cases control the present case, and she argues that they stand for the proposition that when an insurer, during settlement negotiations, leads a party to believe that a claim will be paid by the insurer without a suit, the insurer is prohibited from asserting the statute of limitation as a defense, or at the very least a jury question on the issue exists.

The factual scenario which exists in each case cited above involves an insurer negotiating claims against it by its own insured and the issue of whether the insurer, through its actions in the negotiations, has waived the insured’s obligation to comply with contractual limitation periods in the insurance policy. The facts presented in these cases differ significantly from those of the present case. First, in the case sub judice, plaintiff Howe’s settlement negotiations were not with her own insurer regarding a claim directly against the insurer, but rather, plaintiff’s negotiations were with defendant’s insurer regarding her claim against defendant. Second, the cases cited by plaintiff all involve the issue of whether the insurer had waived a provision in the insurance contract which required the action to be brought in a certain time, whereas, in this case, the issue raised by plaintiff is whether defendant is prohibited from asserting the statute of limitation as a defense.

Plaintiff has not cited and this Court’s research has not uncovered a single appellate opinion in Georgia which extends the holdings in Nee v. State Farm Fire &c. Co., supra, and the other cases in that line to a set of facts in which negotiations between an insurance company and a third party resulted in a waiver of the statute of limitation to the insurer’s own insured. In fact, in Alexander v. Searcy, 204 Ga. App. 454 (419 SE2d 738) (1992), we indicated that the holdings in cases such as Nee v. State Farm Fire &c. Co., supra, do not extend to factual situations in which the automobile liability insurance carrier is not a party to the personal injury suit. In Alexander, the plaintiff filed suit four days before the statute of limitation ran, but failed to serve the defendant. Id. at 455. At the hearing on defendant’s motion to dismiss, plaintiff’s counsel argued that any delay in service of process was excusable because he was lulled by ongoing negotiations with defendant’s automobile insurance carrier into believing plaintiff’s claim would be settled without going to trial. Id. at 455. The trial court agreed and denied the defendant’s motion to dismiss. Id. at 456. This Court reversed and found that because the defendant’s automobile liability insurance carrier was not a party to the action, the case was not analogous to and therefore not controlled by cases such as Brown v. Nationwide Ins. Co., 167 Ga. App. 84 (306 SE2d 62) (1983) and Commercial Union Ins. Co. v. F. R. P. Co., supra, which held that the conduct of an insurer in continuing to negotiate claims against it by its own insured could result in a waiver by the insurer of the insured’s obligation to comply with contractual limitation periods in the insurance policy where the insured reasonably relied on the conduct. Alexander v. Searcy, supra at 456. In light of Alexander, supra; Nee v. State Farm Fire &c. Co., supra, and the other cases in that line are inapposite as to the case sub judice.

The present case is analogous to and controlled by Drohan v. Carriage Carpet Mills, 175 Ga. App. 717 (334 SE2d 219) (1985). In Drohan, the plaintiff brought an action to recover for injuries she sustained in a collision, but she failed to file suit within the two-year limitation period set out in OCGA § 9-3-33. Id. at 717. In response to the defendant’s motion to dismiss, the plaintiff argued that she delayed filing suit as a result of certain representations made to her by an agent of the defendant’s insurer to the effect that the insurer intended to settle her claim. Id. Affirming the trial court’s grant of the defendant’s motion to dismiss, we held that any representations made to the plaintiff by defendant’s insurer to the effect that the insurer intended to settle her claim would not, even if true, constitute such fraud as would toll the running of the statute of limitation. Id. See also Beasley v. Parks, 204 Ga. App. 482, 483 (420 SE2d 3) (1992) (holding that mere settlement negotiations do not excuse a plaintiff from the requirement of perfecting service of process). Similarly, in the present case, the settlement negotiations between plaintiff Howe or her counsel and defendant Groover’s insurer did not excuse plaintiff from filing her suit within the two-year period required by OCGA § 9-3-33.

Finally, even if the present case was controlled by Nee v. State Farm Fire &c. Co., supra, and the other cases in that line, which held that where the insurer, by its acts in negotiating for a settlement, has led the policyholder to believe that he will be paid without a suit, the insurer cannot take advantage of a provision in the policy which requires the action to be brought in a certain time, plaintiff’s contentions would still fail. “To conclude that the policy limitations have been waived or estopped, there must be an affirmative promise or other act waiving the limitation; or an actual or constructive fraud leading the insured to believe the limitation time would be enlarged, or lulling him into the security of actually thinking the claim would in fact be paid without suit.” Bowers v. Safeco Ins. Co. of America, 187 Ga. App. 229, 230 (369 SE2d 547) (1988). “Mere negotiation will not waive the limitation.” Id. at 230. In this case, plaintiff has submitted affidavits of her attorney Daniel F. Patrick and investigator Miron Toth along with medical records and correspondence between defendant’s insurer, Allstate, and plaintiff’s counsel. However, there is nothing in the record which suggests defendant’s insurer by affirmative promise or any other act waived the statute of limitation, nor is there any evidence that defendant’s insurer did anything, other than merely negotiate, to lull plaintiff into believing she would be paid without having to file her suit within the statute of limitation. Furthermore, plaintiff’s counsel candidly admits the date upon which the statute of limitation would expire was incorrectly entered into the firm’s case management program as August 4, 1995, rather than August 4, 1994. For these reasons, plaintiff’s failure to file her complaint before the statute of limitation expired was not the fault of defendant’s insurer, but rather it is attributable to no one but plaintiff, and therefore, plaintiff would not prevail under Nee v. State Farm Fire &c. Co., supra, even if applicable.

Decided November 17, 1995.

Oliver, Duckworth, Sparger & Winkle, G. Robert Oliver, for appellant.

Clifton Lee & Associates, Betty L. Bush, John A. Allen, for appellee.

The trial court correctly dismissed plaintiff’s complaint due to the expiration of the statute of limitation.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       Both Brown v. Nationwide Ins. Co., supra and Commercial Union Ins. Co. v. F. R. P. Co., supra, are in accord with Nee v. State Farm Fire &c. Co., supra.

       It appears the mistake regarding the statute of limitation resulted from plaintiff looking to South Carolina’s three-year limitation as opposed to Georgia’s two-year limitation.


text:
    A95A2804.
    YANCEY v. THE STATE.
    (464 SE2d 245)
   Blackburn, Judge.

Eric Yancey appeals his conviction of two counts of armed robbery. Yancey was tried with a co-defendant who is not involved in this appeal. In Yancey’s two enumerations of error, he contends the trial court abused its discretion by failing to continue the trial against him upon his absence therefrom.

The record is clear that on the second day of trial, Yancey was present but was suffering from the effects of his voluntary ingestion of an overdose of Tylenol which required several interruptions of the trial. After several interruptions within the first hour, the trial court adjourned the trial for the day and ordered Yancey, who was free on bond, to seek medical attention. Yancey’s counsel agreed with the adjournment stating, “[w]e have no other choice I feel.” Later that day, Yancey was admitted to the hospital and diagnosed with a Tylenol overdose. Yancey was not present at trial the next morning, and his counsel objected to the continuation of the trial in his absence on the ground that he was a necessary witness. The trial court determined that Yancey’s absence from court was voluntary due to his ingestion of an overdose of Tylenol. On appeal, Yancey argues that the trial court violated his federal and state constitutional right to confront the witnesses called against him.

Yancey’s right of confrontation and his right to testify are rights which are waived by his voluntary absence from the trial. See Taylor v. United States, 414 U. S. 17 (94 SC 194, 38 LE2d 174) (1973); Byrd v. Ricketts, 233 Ga. 779, 780 (213 SE2d 610) (1975). Furthermore, “[t]he burden of determining the cause of the defendant’s absence was on his counsel, not on the trial judge.” Smith v. State, 139 Ga. App. 515, 517 (228 SE2d 705) (1976).

Decided November 17, 1995.

Carla J. Friend, for appellant.

Lewis R. Slaton, District Attorney, William F. Riley, Jr., Charles E. Rogers II, Rebecca A. Keel, Assistant District Attorneys, for appellee.

In the present case, Yancey’s counsel presented the court with a document signed by Yancey’s doctor in which the doctor stated that Yancey was presently hospitalized in the intensive care unit for a Tylenol overdose. The doctor further stated that the hospitalization was indefinite and the discharge date and prognosis were unknown. Yancey’s counsel stated that Yancey did not take the Tylenol with the purpose of absenting himself from the trial, but that Yancey had an upset stomach and a headache and took the Tylenol for these ailments. Therefore, he argued that Yancey’s absence was not voluntary. We cannot agree.

All the evidence presented on this issue indicated that Yancey voluntarily took enough Tylenol to rise to toxic levels in his blood thereby causing his hospitalization. His purpose for taking the Tylenol is not in issue. The purpose of the defendant’s ingestion of medication was not in issue in Brown v. State, 199 Ga. App. 856 (2) (406 SE2d 516) (1991), where the defendant, who was suffering from flu-like symptoms, took medication he received from a friend. After the defendant was absent from his trial, he testified at the sentencing hearing that the medication “caused him to sleep until late in the afternoon [on] the day of trial.” Id. at 857. Therein we determined that the defendant had voluntarily absented himself after jeopardy had attached. Id. The present case is indistinguishable.

The trial court did not abuse its discretion in denying Yancey’s counsel’s motion for continuance upon Yancey’s absence from trial caused by his voluntary ingestion of an overdose of Tylenol.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A95A2829.
    PET CARE PROFESSIONAL CENTER, INC. v. BELLSOUTH ADVERTISING & PUBLISHING CORPORATION.
    (464 SE2d 249)
   Blackburn, Judge.

BellSouth Advertising & Publishing Corporation (BAPCO) brought the underlying action for breach of contract, or, alternatively, in quantum meruit to recover sums due for advertising in its Yellow Pages and reasonable attorney fees. Appellant, Pet Care Professional Center, Inc. (Pet Care) answered, denying the material allegations of the complaint and asserting, among other things, that it had no contract with BAPCO. Subsequently, the trial court granted BAPCO’s motion for summary judgment, and this appeal followed.

The claim asserted in this action is based upon a contract entered into by Denise Schon King to advertise a business denominated the Pet Care Professional Center (Center) in the Atlanta Yellow Pages. Center operated as a business partnership with King and three other individuals.

Approximately one month after the contract was signed, the partners, less King who was not invited to participate, incorporated Pet Care. Thereafter, Pet Care refused payment of $13,984.58 for advertising BAPCO provided Center, its predecessor partnership.

1. Pet Care contends that the trial court erred in granting BAPCO’s motion for summary judgment in the absence of undisputed facts establishing Pet Care as the successor-in-interest to the Center partnership. Citing Davis v. Concord Commercial Corp., 209 Ga. App. 595 (434 SE2d 571) (1993) and Ney-Copeland & Assoc. v. Tag Poly Bags, 154 Ga. App. 256, 257 (267 SE2d 862) (1980), Pet Care argues that complete identity of ownership is required if a corporation is to be deemed a successor-in-interest to a predecessor entity. We disagree.

“Where, after one half of the capital stock of a corporation, which belongs to one person, who owns the entire capital stock, is acquired by new stockholders, and all the new stockholders apply for articles of incorporation and become incorporated for the same objects and purposes under a charter creating a new corporation having in effect the same name, which takes over the entire assets and business of the old corporation as well as its stockholders, who become stockholders of the new corporation, and operates the new corporation in the same place and in the same manner in which the old corporation was operated, and becomes liable for the debts of the old corporation, the new corporation, by reason of such identity of name, objects, assets, and stockholders, is but a continuance of the old corporation, and the new corporation is liable for the debts and obligations of the old corporation.” Johnson-Battle Lumber Co. v. Emanuel Lumber Co., 33 Ga. App. 517 (126 SE 861) (1924). “In Georgia, the common law continuation theory has been applied where there was some identity of ownership. [Cits.]” (Emphasis supplied.) Bullington v. Union Tool Corp., 254 Ga. 283, 284 (328 SE2d 726) (1985); Cilurso v. Premier Crown Corp., 769 FSupp. 372, 374 (M.D. Ga. 1991). Moreover, the continuation theory has been held applicable in situations where, as here, the purchasing corporation succeeds to the assets of a business partnership. Ney-Copeland, supra.

It is uncontroverted that Pet Care incorporated for the purpose of continuing “a pet care business” and that the assets of the two entities did not change. Both businesses employed substantially the same names, operated from the same location, and used the same telephone service and accounts. Three of Center’s four partners became stockholders in Pet Care. Although less than a complete identity of ownership between Center and Pet Care resulted, only some identity of ownership was required. See Bullington, supra; Cilurso, supra.

Decided November 17, 1995.

Heidi A. Honis, for appellant.

Strongwater & Cherniak, Jay L. Strongwater, Leeza R. Cherniak, for appellee.

It is likewise uncontroverted that Center contracted for advertising services from BAPCO and that it later received such services in the amount of $13,984.58. Under these circumstances, the trial court did not err in determining that Pet Care was the successor-in-interest to Center and liable for all its debts and obligations. Accordingly, summary judgment on this ground was proper.

2. In light of our disposition of Division 1, we do not reach Pet Care’s remaining enumerations of error.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.