text:
    A91A1910.
    ROGERS et al. v. HURT, RICHARDSON, GARNER, TODD & CADENHEAD et al.
    (417 SE2d 29)
   Pope, Judge.

An analysis of this case requires an understanding of certain fine distinctions between two different lawsuits, the causes of action involved and the different parties involved. Plaintiffs Bob Rogers and Arthur Guilfoil were the sole shareholders of Knotts Landing, Inc. Knotts Landing was incorporated to develop a certain tract of land in Cherokee County. Defendant law firm, Hurt, Richardson, Garner, Todd & Cadenhead (“Hurt, Richardson”), represented Knotts Landing in certain legal matters, including the defense of a lawsuit for damages brought against the corporation by plaintiffs known collectively as the Goulds (the “Gould case”). Defendant E. Lewis Hansen, a partner at Hurt, Richardson, was lead counsel for Knotts Landing in the Gould case. The trial of the case resulted in a judgment against Knotts Landing in the amount of $2.75 million.

Hurt, Richardson filed suit against Knotts Landing in Cherokee County to collect unpaid legal fees incurred in the Gould case (the “Cherokee case”). In response, Knotts Landing filed a lengthy and detailed counterclaim, alleging it was damaged by the malpractice of Hurt, Richardson and Hansen in the negligent manner in which Hansen handled the Gould case. In the case giving rise to this appeal, Rogers and Guilfoil also filed suit against Hurt, Richardson and Hansen in Fulton County (the “Fulton case”), setting forth almost verbatim many of the same factual allegations contained in the Cherokee case counterclaim by Knotts Landing, including a detailed statement of the alleged negligent acts and omissions of Hansen in the Gould case.

In the amended complaint in the Fulton County case, plaintiffs Rogers and Guilfoil allege they, as individuals, were damaged by certain acts and omissions of defendants. In particular, plaintiffs allege they were injured by two transactions which are separate and distinct from the alleged negligent handling of the Gould case. First, they allege that before suit was filed against Knotts Landing in the Gould case, the plaintiffs made a contribution of capital in the corporation, in exchange for which they were to receive title in their individual capacities to 28 acres of the Knotts Landing tract. They allege Hurt, Richardson had a duty to obtain a release from the mortgagee for the 28 acres and to record deeds showing the land was conveyed to plaintiffs but that Hurt, Richardson negligently failed to take such action. Consequently, they were injured when the plaintiffs in the Gould case obtained title to the land when they enforced their judgment against Knotts Landing. Plaintiffs also allege that after the verdict was returned in the Gould case, defendant Hansen advised them they could still protect their interest in the 28 acres by transferring title to themselves from Knotts Landing. They allege they were consequently injured when the plaintiffs in the Gould case later sued them for fraud. Count I of plaintiffs’ amended complaint alleges professional negligence for damages arising out of the two transactions set forth above. Count V alleges breach of contract of employment for legal services. Counts II, III and IV allege breach of fiduciary duty, negligent entrustment and negligent supervision, respectively, concerning Hurt, Richardson’s recommendation of Hansen to plaintiffs.

Defendants filed a motion for partial summary judgment raising several arguments that were made moot by the filing of plaintiffs’ amended complaint. Defendants also argued plaintiffs’ breach of contract claim is barred by the four year statute of limitation for actions on contracts. We note, however, that the alleged failure to transfer title to the 28 acres occurred in April of 1987 and the advice to transfer assets from the corporation to plaintiffs allegedly occurred after the verdict was rendered in the Gould case in December of 1988. The complaint, which was filed in November of 1990, was thus timely as to this claim. Defendants further argued that “[t]o the extent the Complaint . . . also asserts claims by Rogers and Guilfoil for damages resulting from Hurt, Richardson’s representation of Knotts Landing in the Gould lawsuit, Rogers and Guilfoil lack standing to assert such claims. . . .” Finally defendants argued that plaintiffs have no standing to bring the claims for breach of fiduciary duty, negligent entrustment and negligent supervision and, in any event, they are barred because they are identical to claims made in the counterclaim to the Cherokee case.

Although defendants only moved for partial summary judgment and, for purposes of the motion, defendants conceded the complaint stated certain claims against defendants arising out bf an alleged (though denied) duty to the plaintiffs as individuals, the trial court granted summary judgment to defendants on all claims. The trial court found the complaint in the Fulton case arose out of the same transactions and occurrences as the counterclaim filed by Knotts Landing in the Cherokee case. As such, the trial court concluded that the complaint is an improper attempt to prosecute the same claims twice in two different forums. The trial court further found that plaintiffs have no standing to bring the complaint because the right to bring the action is exclusively that of the corporation. The trial court found that defendants had pierced the allegations of the complaint and plaintiffs failed to meet their burden of coming forward with evidence to create a genuine issue of fact. Specifically, the trial court found plaintiffs failed to show any damage arising from the manner in which the Gould case was handled by defendants and failed to show they had suffered damage from defendant Hansen’s advice to transfer assets from the corporation or any other negligence of the defendants. Plaintiffs appeal.

1. Plaintiffs first argue the trial court erred in finding plaintiffs lack standing to bring the complaint. They argue the defendants presented no evidence to pierce their allegation that an attorney-client relationship existed not only between defendants and Knotts Landing but also between defendants and the plaintiffs, in their individual capacities. The pertinent evidence of record consists of a copy of the counterclaim filed by Knotts Landing in the Cherokee case and the deposition of plaintiff Bob Rogers. It is obvious from Rogers’ testimony that he believed the corporation, Knotts Landing, was the alter ego of himself and Guilfoil. Repeatedly, he confused the acts or rights of the corporation as his own. For example, he testified that he, in his individual capacity, paid half of defendants’ legal fees because he owned half of the corporation. Thus, despite his “uncontradicted” testimony that he paid defendants’ legal fees or that certain of defendants’ services were performed for him, Rogers’ own testimony establishes that these services were actually performed for and paid by Knotts Landing. To this extent, only Knotts Landing has standing to pursue claims for malpractice or breach of contract.

Specifically, Rogers’ testimony establishes that if defendants owed a duty to obtain a release of 28 acres from the mortgagee, such duty was owed to Knotts Landing because it was in the name of Knotts Landing that the mortgagee was paid. Only after title was transferred to Knotts Landing would plaintiffs have been entitled to obtain a deed showing the land was conveyed to them from Knotts Landing in consideration for their contribution to capital. This, however, would have been a separate transaction from the obtaining of a release in favor of Knotts Landing from the mortgagee. Although Rogers testified he orally instructed Hurt, Richardson to file a quitclaim deed from Knotts Landing conveying the land to plaintiffs, he admitted all attorney fees were paid by the corporation (even though he believed that such an arrangement meant he, as half-owner, paid half the fees). Employment of the defendant attorney is the first element which must be proved in a malpractice claim. See Guillebeau v. Jenkins, 182 Ga. App. 225 (1) (355 SE2d 453) (1987). This evidence supports the conclusion that plaintiffs, individually, did not employ Hurt, Richardson and thus only the corporation had an express attorney-client relationship with defendant. To protect their individual interests, plaintiffs had a duty to hire an attorney in their individual capacities. Rogers’ deposition testimony indicates this was not done. Even though, as more fully discussed below, an attorney may owe a duty of reasonable care to one for whom he voluntarily agrees to act, we do not believe Rogers’ testimony shows plaintiffs had any right to rely on defendants to act to protect their individual interests in this transaction. In both their individual capacities and their capacities as officers of Knotts Landing, plaintiffs must have been aware that no title had been conveyed from Knotts Landing to them. Thus, they cannot claim to have relied on Hurt, Richardson to have recorded such title. Even if Hurt, Richardson breached a duty to Knotts Landing by failing to obtain a release from the mortgagee, we conclude plaintiffs have no right to damages for failure to obtain title in their own names.

2. Plaintiffs’ claim for damages sustained as a result of defendants’ advice to transfer assets from the corporation to plaintiffs should be analyzed differently, however. Even where no express attorney-client relationship exists, an attorney may be liable for negligence under the theory of voluntary agent when the attorney gratuitously undertakes to perform a legal service (or, in this case, give legal advice) to another with the other’s approval. Simmerson v. Blanks, 149 Ga. App. 478 (254 SE2d 716) (1979). Even if only the corporation was defendants’ client, it is reasonable and foreseeable that the advice to transfer assets from the corporation to plaintiffs, the individual owners of the corporation, would be relied upon by the plaintiffs, not only in their capacity as stockholders and officers in the corporation but also as individuals. The Georgia Supreme Court has held that liability for professional acts extends not only to the actual client but also to third parties who rely upon the professional’s advice in situations where the professional “ ‘was manifestly aware of the use to which the information was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly.’ ” Badische Corp. v. Caylor, 257 Ga. 131, 133 (356 SE2d 198) (1987) (involving a claim for reliance upon the report of an accountant) (quoting Robert & Co. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681 (300 SE2d 503) (1983) (involving a claim for reliance upon the report of an engineer)). If the transaction occurred as plaintiffs allege, then defendants were “manifestly aware of the use to which the information was to be put.” Id. It can hardly be said that plaintiffs were not foreseeable persons for whom the information was intended. Thus, plaintiffs have standing to bring the claim for damages allegedly sustained as a result of defendants’ negligent advice to transfer assets from the corporation to plaintiffs.

The trial court, however, also held that plaintiffs failed to show they had been damaged as a result of the alleged negligent advice. According to the trial court, merely showing that they were sued for fraud when the suit did not result in a judgment against them does not constitute damages at law. The record shows that the plaintiffs in the Gould case dismissed their fraud suit against plaintiffs only after plaintiffs agreed to deed to them the 28 acres of land in dispute. Simply because the fraud action did not result in a judgment against plaintiffs does not mean they were not damaged as a result of the suit. If plaintiffs can show, as they allege, that they were sued as a result of following defendants’ legal advice, then the cost of defending the fraud suit would certainly be an element of their damages, whether or not the suit proceeded to trial and judgment. See First Nat. Bank &c. v. Diane, Inc., 698 P2d 5, 12 (N.M. App. 1985). Because defendants’ motion for summary judgment did not pierce the plaintiffs’ allegations concerning this claim, plaintiffs had no duty to present evidence of damages in response to the motion. Thus, the trial court erred in granting defendants summary judgment on this claim.

3. The trial court also erred in ruling defendants were entitled to summary judgment because plaintiffs “failed to show any judgment [was] obtained against Knotts Landing as a result of the negligence of [defendants] or that their negligence has directly or proximately caused damage to Plaintiffs and Plaintiffs have failed to establish any damages.” This ruling illustrates that the trial court treated the action as if it were an action on behalf of Knotts Landing for alleged negligent handling of the defense of the Gould case, which is the subject of the counterclaim by Knotts Landing in the Cherokee case. However, a careful reading of the complaint in this action shows it contains no claim on behalf of Knotts Landing for the alleged negligent defense of the Gould case. The detailed factual allegations of the complaint which refer to the Gould case merely provide the background information needed to understand the two transactions which form the basis for the claims brought by the plaintiffs in this action: defendants’ alleged failure to obtain a release of the 28 acres plaintiffs claim they purchased from Knotts Landing and defendants’ allegedly negligent advice to transfer the land from the corporation to the plaintiffs. In this respect, the holding of the trial court must be reversed because the holding could wrongly be used to establish issue estoppel in the Cherokee case pending between Hurt, Richardson and Knotts Landing.

Decided February 25, 1992

Reconsideration denied March 18, 1992

. Jones, Brown, Brennan & Eastwood, Taylor W. Jones, Rickman P. Brown, Linda R. Greer, for appellants.

Hicks, Maloof & Campbell, Robert E. Hicks, Peter J. Quist, Virginia B. Peterson, Lawrence H. Wexler, for appellees.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Cooper, J., concur.

       Defendants argued that plaintiffs’ claims for damage to reputation were barred by the applicable statute of limitation and that plaintiffs have no standing to bring a claim for diminution of stock value, but plaintiffs’ amended complaint deleted these claims.

       In fact, defendants admit in their brief that they have filed such a motion in the Cherokee case, relying upon the judgment at issue in this appeal.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A91A1501.
    WILLIAMS v. THE STATE.
    (417 SE2d 740)
   Pope, Judge.

By order dated February 21, 1992, the Supreme Court of Georgia ruled that the appellant in this case is entitled to the relief that she seeks and remanded her appeal to this court with instructions. In accordance with the order of the Supreme Court, this case is remanded to the trial court for the entry of an order granting appellant an out-of-time appeal and appellant is instructed to file, in the trial court, her notice of appeal to the Court of Appeals, pursuant to the provisions of OCGA § 5-6-37.

Remanded with instructions.

Birdsong, P. J., and Cooper, J., concur.

Decided March 18, 1992.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.


author: Beasley, Judge.

text:
    A91A1681, A91A1682.
    INTERAGENCY, INC. et al. v. DANCO FINANCIAL CORPORATION; and vice versa.
    (417 SE2d 46)
   Beasley, Judge.

This suit for conversion, misrepresentation, and violation of the Georgia Racketeer Influenced & Corrupt Organizations Act (RICO), OCGA § 16-14-1 et seq., stems from a dispute over the setting up of a travel agency. The appeal (A91A1681) and cross-appeal (A91A1682) follow a four-day jury trial which resulted in judgment for plaintiff Danco Financial Corporation.

The jury awarded $25,500 in treble damages as civil remedy for violation of RICO, see OCGA §§ 16-14-4; 16-14-6 (c), plus $11,200 in attorney fees jointly and severally against each of the defendants InterAgency, Inc., Hanner, and Misiak. Plaintiff accepted a write-off of the awarded attorney fees rather than face the new trial which had been conditionally granted. The court entered judgment for plaintiff for $25,500 and pre-judgment interest on the $8,500 of actual damages, plus costs.

In A91A1681, defendants challenge the trial of the case as a state civil RICO claim. They maintain that the admissible evidence showed that the case was merely “a simple, garden-variety, $8,500 civil dispute,” rather than the plaintiff’s portrayal, stained by illegal evidence, of a systematic defrauding of numerous victims.

In A91A1682, plaintiff challenges the write-off of attorney fees.

Case No. A91A1681

The gravamen of defendants’ challenge, although there is also a protest to a portion of the jury charge, is that the trial court allowed evidence which was improper and insufficient to establish the predicate acts required under OCGA § 16-14-3 (2) [now subsection (8)] to show a “pattern of racketeering activity.” The complaint alleged that InterAgency and its agents, Hanner and Misiak, and all of them in conspiracy with one another, conducted and participated in an enterprise through a pattern of racketeering activity as defined in QCGA § 16-4-3, by engaging in wire fraud in violation of 18 USC § 1343, mail fraud in violation of 18 USC § 1341, and theft by deception in violation of OCGA § 16-8-3. The consolidated pre-trial order which superseded the pleadings added that defendants engaged in theft by conversion under OCGA § 16-8-4.

“Georgia’s RICO act, while it has similarities to the federal RICO statute, has a number of significant differences. ‘The Georgia RICO statute is significantly broader than its federal counterpart in that OCGA § .16-14-4 (a) makes it unlawful for any person through (a pattern of racketeering activity or) proceeds derived from a pattern of racketeering activity to acquire or maintain any real property, or personal property of any nature, including money. In contrast, the federal RICO statute, 18 USC § 1962 (a), only targets investors who participate in the pattern of racketeering activity as a principal. See “Georgia Racketeer Influenced and Corrupt Organizations Act,” 20 Ga. St. B.J. 34 (1983). And, 18 USC § 1962 (b) only makes it unlawful for any person through a pattern of racketeering activity to acquire or maintain any interest in or control of an enterprise; the federal statute does not contain a proscription against the acquisition of real and personal property, including money, which is not part of the enterprise. ... 18 USC § 1962 (c), and . . . OCGA § 16-14-4 (b), are similar in that the . . . core provisions both make it unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity. In one respect, the Georgia RICO statute is narrower than the federal statute, in that OCGA § 16-14-3 (2) [now subsection (8)] defines “pattern of racketeering activity” as “at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents. ...” The federal RICO statute, of course, requires a connection between the racketeering activity and the enterprise, but it does not on its face require any interrelatedness between the predicate crimes themselves. [Cit.]’ [Cit.]” Dover v. State, 192 Ga. App. 429, 430 (1) (385 SE2d 417) (1989). “OCGA § 16-14-3 (2)_ [now subsection 8] defines ‘pattern of racketeering activity’ as engaging in ‘at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents. . . .’ The Georgia statute requires the interconnectedness not contained in the wording of its federal counterpart.” Id. at 432.

The evidence construed in favor of the verdict showed the following. Danco’s president, Profit, who also operated a telecommunications business, wanted to acquire a travel agency so that Profit’s companies could make reservations and ticket employee travel in-house. One of Profit’s employees knew of Hanner from Hanner’s prior partnership in a travel agency. Hanner was president and sole stockholder of American Marketing and Communications Corporation (AMCC). Her husband, Misiak, was president of InterAgency, Inc.

In the fall of 1988, Profit contacted Hanner about acquiring the type of “full service” travel agency he desired, one which could book hotel, airline, and cruise reservations and write tickets for personnel and also for the general public. As the result of telephone conversations between the two, Profit was mailed a brochure which outlined the travel agency that InterAgency was offering for sale.

The brochure on its face advertised the “TravelBank” dealership; as a “full service travel agency,” with the name “TravelBank” as a registered trademark of InterAgency. The brochure furnished information including the following. *TravelBank was launching a nationwide network of full service travel agencies as dealerships. ^Dealers would have a professional reservation service center, start-up assistance, ongoing expertise and sales direction. *TravelBank’s staff of well trained reservationists would book dealership customers on the lowest airline, hotel and car rental rates. *The network would provide the individual ownership incentives and advantages of a “mega-agency.” *TravelBank full service dealership was different than the franchise system by which most travel agencies expanded operations in that there was no payment of royalties and the travel agency was independently owned and operated. * TravelBank offered the opportunity to own a travel business operating at lower overhead. *TravelBank would provide increased revenues in other areas. *New advances in ticket printing technology along with Airlines Reporting Corporation (ARC) regulations permitted the placing of ticket printers in corporate accounts, allowing the dealership to compete for large local, regional or national accounts by giving clients their own ticketing. *The “reservation center” would automatically add such tickets to the dealership’s weekly report and the dealer would receive full commission for the account. *The reservation center would provide expanded service without having to hire “full-time expensive” employees. *The only cost to the dealership in this regard would be a small fee per ticket issued which fees were designed to cost less than hired staff especially in a situation of low ticket volume. *Because of TravelBank’s new technology, the purchaser could open a full service travel agency and sell all travel products including airline tickets without having to qualify for a bond or put up the cash that a bond required.

After review of the brochure, Profit believed that InterAgency could provide the type of agency he wanted. Before December 13, 1988, Profit met with both Hanner and Misiak. During the first meeting with Hanner, Profit was assured by her that he could get everything he wanted in a travel agency through InterAgency, that Hanner would make sure a full service agency was set up, and that Profit would be getting a whole company behind him rather than just one person. Hanner brought with her a draft of a proposed sales contract which repeated much that had been represented in the mailed brochure. It also stated that InterAgency was an appointed representative of certain regulatory groups including ARC and possessed ticket plates of major national and international airlines.

During negotiations for the purchase, Danco gave an $8,500 check to InterAgency in November to be held in escrow until such time as any sales agreement was finalized. Pursuant to request to return Danco’s check, Hanner, expressly on behalf of InterAgency, sent Profit a 30-day post-dated check in the same amount. An accompanying letter from Hanner stated that the check was in exchange for the Danco check of the same amount, “the set-up fee of your networked, full service travel agency”; to return the Danco check “out of hand with the Sales Agreement could cause adjustments and possible risks to obtaining . . . designation in the agreed-upon time frame”; if Danco decided not to proceed with the sales agreement after reviewing it and further conversation, the $8,500 would be refunded with no obligation on either side; the sales agreement would be forthcoming and attached was a list of the major terms to be acted on at that time; the dealership plan was an excellent one for Danco, allowing full profit at lowest cost on the travel arrangements for Danco and others who might be handled; the $8,500 payment was substantially lower than any other means of entering the agency business.

On December 20, Profit notified Hanner in writing that upon review of the final sales agreement it was found “onerous” and not as previously represented in meetings and draft documents; the postdated check for $8,500 had been received; the amount was to have been escrowed until finalization of the sales agreement and was not to have been used for any purpose until such was accomplished; Danco was cancelling its letter of intent and depositing the post-dated check; and Hanner was to notify her bank to clear the check.

Defendants stopped payment on their check and despite demand did not return Danco’s $8,500.

A certificate from the United States Patent and Trademark Office showed that the service mark “TRAVELBANK” had been registered to a major commercial airline in 1986 for a term of 20 years. Documents from the Office of the Georgia Secretary of State reflected that the service mark “Travel Bank” had been registered to another entity in 1984 for a renewable ten-year period.

In its regulatory capacity, ARC acted as a clearinghouse for airline ticketing monies collected and paid. Contrary to the representations in the mailed sales brochure and draft documents, InterAgency itself did not have a contract with the ARC nor was it authorized to operate under ARC auspices. Only AMCC, a corporation unknown to Danco and which was not a branch of InterAgency, had any affiliation with ARC to obtain ARC accreditation. The type of “full service agency” set-up promised by InterAgency did not meet with ARC rules and regulations.

Danco learned of subsequent similar overtures made by Inter-Agency to other prospective travel agency purchasers. Two of them, Whitten and Austin-Hashimoto, testified at trial. Each had received in the mail brochures and documents making representations which were in substance those made to and relied on by Profit. Influenced by such representations, each entered into purchase contracts for dealerships with InterAgency and paid fees to the company. Neither felt that he or she had received the full service travel agency and services promised by InterAgency.

One of the plaintiff’s trial exhibits was a letter from ARC to Hanner informing that AMCC’s application for ARC accreditation for Whitten’s proposed operation had been disapproved. One express reason for the disapproval was material misrepresentations or inaccuracies in the application which included such as AMCC’s representation of the status of the proposed operation as a branch office location rather than the separate legal entity which it was. Another reason was that on May 3, 1988, the State of Georgia had administratively dissolved AMCC due to delinquency in submitting annual reports, the dissolution rendering AMCC’s status with ARC, including its ability to submit applications for branch office approval, under review.

1. In enumerations of error three and four, defendants contend the trial court erred in admitting evidence of their transactions with Whitten and Austin-Hashimoto as predicate acts under RICO. They argue inadmissibility because (a) the acts were not set forth either in an original pleading, in a supplementary pleading as provided for in OCGA § 9-11-15 (d), or in the pre-trial order; (b) the acts occurred subsequent to the filing of the action and thus, could not be “predicate” acts; (c) the acts did not demonstrate any injury or harm to plaintiff.

(a) Pleading of acts. Defendants first raised the sufficiency of the pleadings in this regard in their motion for new trial. This is not generally the proper vehicle for contesting the sufficiency of an opponent’s pleadings in civil actions. See Johnson v. Cleveland, 131 Ga. App. 560, 561 (2) (a) (206 SE2d 704) (1974). When appropriate, civil RlCO claims are subject to the procedural requirements of other types of civil cases. See, e.g., Durham v. Business Mgmt. Assoc., 847 F2d 1505 (11th Cir. 1988). By their own admission, defendants did not move for a more definite statement. See OCGA § 9-11-12 (e). Nor did they move for judgment on the pleadings, to dismiss the suit, or for summary judgment on grounds of insufficiency.

Assuming that defendants are not procedurally barred from now raising the alleged insufficiency, the complaints fail substantively.

Even if the specific transactions with Whitten and AustinHashimoto were not outlined in the complaint or pre-trial order, the type of prohibited conduct allegedly involved was. See statement of facts, supra. Plaintiff’s pleadings did not fail to state a claim under the state RICO statute. See State of Ga. v. Shearson Lehman Bros., 188 Ga. App. 120, 121 (2) (372 SE2d 276) (1988), following the reasoning in Caldwell v. State, 253 Ga. 400 (321 SE2d 704) (1984).

Nor can defendants, contrary to their assertions, successfully claim lack of notice of or opportunity to defend the Whitten and Austin-Hashimoto transactions.

First, both Whitten and Austin-Hashimoto (denominated as Ms. Laura Austin) were named in the consolidated pre-trial order as potential plaintiff’s witnesses, giving defendants notice that such individuals were expected to testify. It behooved them to investigate the nature of their testimony. This is especially true inasmuch as they were defending against a RICO claim, which by its very nature often requires proof of dealings with individuals and entities not named as parties to the suit on trial.

Second, any claim of unfair surprise is erased by statements of defendants’ own trial counsel. In objecting to Whitten and AustinHashimoto’s imminent testimony, defense counsel stated, “even though they haven’t testified yet, I believe I understand what they are going to testify as to, and I know that everything they will testify as to is improper.”

Third, the record discloses that defendants had notice in advance of trial of plaintiff’s intention to introduce evidence of defendants’ business dealings with these third parties. (1) There is an undisputed post-trial affidavit from plaintiff’s counsel which relates circumstances showing that defendants’ counsel had full knowledge of testimony by the two witnesses well prior to trial, including that defense counsel argued the inadmissibility of the testimony approximately two months prior to trial during an in-chambers settlement conference. See OCGA § 5-6-41 (f). (2) If such affidavit is disregarded for procedural defect, as defendants now urge, the trial transcript itself reflects defense counsel’s pre-trial knowledge. Just prior to the start of trial and during preliminary matters, plaintiff’s counsel attempted to raise with the court the issue of the alleged “similar activities.” The exchange makes clear that defendants’ counsel had engaged in an in-chambers discussion about the issue with the judge handling the case at that time.

(b) Time of acts. First, it should be noted that the Georgia RICO statute allows for the introduction of after conduct as predicate acts by not imposing the added burden on plaintiff of showing like conduct before the incidents charged as a RICO violation. Dover, supra at 432 (1).

Second, contrary to defendants’ assertions, plaintiff presented evidence that the transactions with Whitten and Austin-Hashimoto transpired before the filing of this action on July 26, 1989. AustinHashimoto testified that she received InterAgency’s brochures and documents in April and May of 1989. Her written agreement to purchase a dealership was executed on July 6, 1989. It was admitted as an exhibit without objection. Whitten testified that he received the brochures on which he relied in purchasing the dealership in May 1989 and formulated the deal in discussions with Hanner and Misiak in May and June 1989.

Lastly, even accepting arguendo defendants’ premise that at least one of the transactions occurred subsequent to the filing of Danco’s suit, evidence of it was not barred merely because it was later in time. The RICO cause of action is based upon a pattern of activity, with the pattern consisting of two or more acts, i.e., predicate acts. By definition, the incident on trial would constitute one of the acts upon which the cause of action is predicated. OCGA §§ 16-14-6 (c); 16-14-4 (a). “ ‘Pattern of racketeering activity’ means engaging in at least two incidents. . . .” OCGA § 16-14-3 (2) [now subsection (8)]. Only one of the third party transactions was needed as the second predicate act. A third similar incident transpiring after filing of the action on trial, even if not qualifying as predicate act, would be admissible as relevant to confirm and amplify the pattern of the alleged racketeering activity and to show its intentional continuation beyond the time the defendants knew of the allegations.

(c) Lack of harm to plaintiff. While it is certain that a plaintiff in a civil RICO suit must show an injury by reason of a violation of OCGA § 16-14-4, see OCGA § 16-14-6 (c), there is no requirement that plaintiff suffer direct harm from each and every alleged predicate act introduced to show a pattern of racketeering activity. The direct involvement with plaintiff is not the interrelatedness or “interconnectedness” required by the Georgia statute. Dover, supra at 432 (1); see also, e.g., Shearson Lehman Bros., supra at (2). It is the “pattern” which must be shown, OCGA §§ 16-14-6 (c); 16-14-4 (a); 16-14-3 (2) (now (8)), not that plaintiff was injured by each incident of which the pattern was comprised.

2. In enumerations of error seven and eight, defendants contend the plaintiff failed to proffer evidence of the requisite elements of theft by deception or theft by conversion as an integral part of defendants’ alleged RICO activity, so that the trial court erred in allowing the jury to consider the crimes as predicate acts. They assert a complete absence of evidence of conversion and, as to deception, no evidence that funds were personally obtained and used for anything other than a proper purpose.

(a) Theft by deception. Although the apparent defense at trial was that defendants retained the $8,500 for precontractual services provided to Danco and/or to offset ticket costs incurred by Danco employees, there was ample evidence from which the jury could have concluded that defendants had no legitimate claim to the funds. See statement of facts, supra. Furthermore, even though the $8,500 check was initially to be placed in a corporate trust account, there was substantial evidence that because of defendants’ close identity of interest, they each, jointly and severally, directly profited from the funds. Statement of facts, supra; Compare Robinson v. State, 198 Ga. App. 431 (401 SE2d 621) (1991).

Theft by deception, OCGA § 16-8-3, is committed when a person “obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” Except as to matters having no pecuniary significance and except as to exaggeration by statements unlikely to deceive ordinary persons in the group addressed, a person deceives if he intentionally, “(1) Creates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false; (2) Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed: ... (5) Promises performance of services which he does not intend to perform or knows will not be performed.” Plaintiff produced evidence which authorized the finding that defendants deceived plaintiff in each of these three ways. Statement of facts, supra. There was evidence of similar conduct with regard to Whitten and Austin-Hashimoto.

(b) Theft by conversion. “A person commits the offense . . . when, having lawfully obtained funds or other property of another including, but not limited to, leased or rented personal property, under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation. This . . . applies whether the application or disposition is to be made from the funds or property of another or from the accused’s own funds or property in equivalent amount when the agreement contemplates that the accused may deal with the funds or property of another as his own.” OCGA § 16-8-4 (a).

If the jury accepted defendants’ assertions that they did not materially misrepresent to Danco their product and services, i.e., the promised travel agency, and thus initially obtained the $8,500 lawfully, plaintiff’s evidence authorized the conclusion that defendants later knowingly misapplied the money to their own use. This is also true in regard to the third party instances.

3. In enumerations of error five and six, defendants contend that the trial court erred in admitting purported predicate acts involving mail fraud since there was no evidence that the mailings were made for the purpose of executing a scheme, nor was there any evidence of specific intent and/or contemplated harm on the part of appellants as required by the federal mail fraud statute, 18 USC § 1341. The argument is that in order to constitute mail fraud, the. use of the mails must be an integral part of the activity in question and not merely incidental as in this case.

It is unnecessary to address whether or not the evidence justified consideration of mail fraud as a predicate act, because there was evidence of other predicate acts of theft by deception and/or theft by conversion in support of the RICO claim. See Division 2, supra. Even in a criminal RICO prosecution, it is not required that the State prove all predicate offenses alleged; it must only prove two beyond a reasonable doubt. See Bethune v. State, 198 Ga. App. 490, 491 (1) (402 SE2d 276) (1991), citing Brown v. State, 191 Ga. App. 76, 77 (381 SE2d 101) (1989).

However, assuming without deciding that federal violation of mail fraud is included by reference in the Georgia RICO statute (defendants do not pursue the issue in this appeal), defendants’ evidentiary argument fails. See Dover, supra, in which consideration of the question of statutory inclusion was waived for failure to raise the issue below. See Shearson Lehman Bros., supra, in which the defendants were alleged to have committed federal mail fraud and in which the alleged crimes including mail fraud were deemed to fall under the list of predicate offenses in the state RICO statute.

The mail fraud statute provides in relevant part: “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years or both.” 18 USC § 1341.

“The elements of the offense of mail fraud under [the statute] are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme. It is not necessary that the scheme contemplate the use of the mails as an essential element. [Cit.]” Pereira v. United States, 347 U. S. 1, 8 (74 SC 358, 98 LE 435) (1954).

There was evidence presented by plaintiff that defendants did contemplate and in fact utilize the mails as a primary vehicle for distributing the publications which contained inaccurate representations to promote the sales of the travel dealerships.

4. Contrary to defendants’ enumerations of error one, two, and eleven, and for the reasons outlined in Divisions 1, 2, and 3, supra, the trial court did not err in refusing to grant defendants directed verdicts, judgments notwithstanding the verdicts, or a new trial based on the alleged failure of plaintiff to prove its RICO claim.

5. In enumeration of error nine, defendants contend the court erred in giving instruction to the jury concerning what they here denominate as the “collectibility of the judgment.” Defendants complain that certain statements were unresponsive and prejudicial by implying that a verdict in plaintiff’s favor would be proper and by unnecessarily focusing the jury’s attention on the question of collectibility of a judgment from a particular defendant rather than continuing to focus the jury on the merits of the case and the question of liability of each of the defendants, if any.

After beginning deliberations, the jury asked the court: “If we find against the defendants, is there a separate amount awarded against each or is the amount inclusive for all three or any of the three?” (The verdict form provided three separate choices for each of the three defendants.) The court read the question to the parties’ attorneys and received the views of both counsel, which were essentially in agreement. Plaintiff’s counsel recommended a re-charge on joint and several liability because the defendants could be found to have differing liabilities. Defendants’ counsel merely reiterated that each defendant was separate and could have differing liability or none.

The jury was returned to the courtroom and instructed that there was a separate verdict form for each defendant; the verdict as to each defendant should be for that defendant without regard to the other two defendants necessarily; the jury could find for one and not for the other two; the jury could find for one on one count and another one on a different count and not for the third; if a finding was made against one of the defendants, then damages were to be awarded according to the court’s instruction; there had to be a separate finding of liability, if any, as to each defendant.

The jury asked the follow-up question: “If for example, then we find that all three defendants are guilty, does that mean that, for example, on the RICO statutes if we were to find that, that it would be $36,000 three times or would that be an inclusive figure for all three defendants if we were to find that?”

The court responded to the hypothetical by stating that the jury was to calculate the liability for each defendant and that the jury was not to divide the amount of liability among defendants. To explain what such a verdict would mean so that the jury would be able to express its intention, the court then stated the following to which defendants object: “In collection, it can only be collected once but it is a joint and several liability if you find them liable under the same count. Now, if you found two defendants liable under different counts, you can find that also.” The jury interposed: “But the most then that conceivably can be paid for everything would be that $36,000 figure.” The court answered with the further objected-to statement: “The plaintiff could not — the plaintiff gets only one collection but he gets to choose who he collects from if the same award is made against more than one defendant.” This colloquy apparently satisfied the jury’s understanding, as no further questions were asked.

Defense counsel did not clearly articulate at trial the complaint made here, which complaint is set out in the first paragraph of this division. Counsel asked that the court tell the jury to disregard the instruction “about the collection procedures which is not in evidence” because it was “lethal” and “highly destructive” to defendants.

Defendants’ objection was arguably inadequate to preserve the complaints now made, for failing to provide the trial court with any legal basis so that the court could make an informed ruling. See F.A.F. Motor Cars v. Childers, 181 Ga. App. 821, 822 (2) (354 SE2d 6) (1987), applying the test in Christiansen v. Robertson, 237 Ga. 711 (229 SE2d 472) (1976).

Assuming the objection preserved the present complaints, they are meritless. The focus was necessarily on the permissible amount and allocation of an award, since that was the jury’s concern. The jury was grappling with the legal concept of joint and several liability. It sought enlightenment on the meaning of the verdict in this regard. The court was obligated to explain, and the explanation it gave was not faulty. The court simply conveyed to the jury the effect which the application of joint and several liability would have on their 9-options verdict.

It was the jury, not the court, which prompted focus on the subject of damages, and that fact, especially when considered together with the entire charge, does not support an implication that the court indicated that the judgment should be in favor of plaintiff. The instruction did not encourage the jury to return a verdict for an inflated amount of damages.

Even if it could have resulted in a verdict which was based on the jury’s opinion as to the financial wherewithal of one or less than all of appellants to pay a judgment rather than upon each appellant’s own individual liability, it obviously did not, since a joint and several verdict was returned against all appellants. “It is axiomatic that to authorize reversal of a judgment there must be shown not only error ([cit.]), but harmful error, and the burden is upon the one claiming error to prove it. [Cit.] [Appellants have] not done so here, so the . . . charge . . . cannot be cause for reversal. [Cit.]” Plyler v. Smith 193 Ga. App. 114 (1) (386 SE2d 881) (1989).

6. Contrary to defendants’ contentions in enumerations of error ten and twelve and for the reasons outlined in Divisions 1 through 4, inclusive, the trial court did not err in entering the judgment of treble damages for plaintiff.

Case No. A91A1682

Plaintiff contends the trial court erred in holding that its trial counsel’s statement to the jury regarding the amount of attorney fees and other expenses of litigation incurred by plaintiff was insufficient to support the jury’s award in this regard, thereby conditionally granting defendants’ motion for new trial.

The threshold question is jurisdiction. Can the plaintiff cross-appeal its accepted remittitur of attorney fees?

The answer appears in Sparks v. Aetna Ins. Co., 62 Ga. 198 (1879): “Where a new trial is awarded, unless the plaintiff shall write off a part of the recovery, and the plaintiff voluntarily does so, reserving, however, the right to a bill of exceptions to this court, such voluntary act on the part of the plaintiff will estop her from complaining about that which she did at her own election. She must either refuse to write off part of the verdict, and bring the whole case here for review, or acquiesce in the judgment and take what that judgment accords her.” As in the instant case, Sparks was a cross-appeal. See Aetna Ins. Co. v. Sparks, 62 Ga. 187 (1879).

The Court summarized the Sparks ruling in Central of Ga. R. Co. v. Perkerson, 112 Ga. 923, 940 (4) (38 SE 365) (1901): “This court held that the plaintiff could not except to a judgment with which she had voluntarily complied.” The same principle was applied in Anderson v. Sapp, 135 Ga. 204, 205 (2) (69 SE 181) (1910), which also involved a cross-appeal: “Where a successful litigant voluntarily writes off a part of his recovery, he can not complain of the action of the court in requiring him to reduce his verdict as a condition of refusing a new trial.”

Thus Georgia retains the general rule at common law, that a plaintiff cannot accept a remittitur and then appeal the entry of the lesser judgment. Many jurisdictions have modified this to allow a plaintiff to accept the lesser in the interest of ending the dispute and the case without forfeiting the right to cross-appeal the issue of defendant’s entitlement to the reduction in the event the defendant appeals. See 16 ALR3d 1327-1337 and the annotations therein. Such would also serve judicial economy because if defendant chooses to accept the lesser judgment agreed upon by plaintiff rather than appeal the denial of the motion for new trial, the case is at an end. A second trial, which might result if the denied motion is appealed and reversed, would be avoided.

Decided March 18, 1992.

Gambrell, Clarke, Anderson & Stolz, Robert D. Feagin, John K. Saunders, for appellants.

John S. Parker, Kilpatrick & Cody, Matthew H. Patton, for appellee.

The reasoning is well stated in Plesko v. Milwaukee, 19 Wis.2d 210 (7) (120 NW2d 130, 137 [7,8]) (1963): “The objective underlying the . . . procedure for granting an option to accept judgment for a reduced amount of damages in lieu of having a new trial, where the damages awarded by the jury are determined by the trial court to be excessive, is to avoid the delay and expense of an appeal or a new trial. In most situations, it is likely that the party will accept judgment for such reduced damages rather than undergo the expense, delay, and uncertainty of result of an appeal or new trial. Nevertheless, if a party found liable to pay damages appeals the judgment resulting from the other party’s accepting such reduced damages, this objective has been negatived. When plaintiff is forced to undergo an appeal by the action of an opposing party, after plaintiff has accepted judgment for such reduced damages, it seems unfair to prevent his having a review of the trial court’s determination leading to the reduction in damages, especially if plaintiff has accepted same only to avoid the delay and expense attending an appeal. Furthermore, the [modified] rule . . . may to some extent discourage appeals by the party held liable because the possibility that the party who has accepted judgment for the reduced damages may prevail on his motion for review and have the jury’s verdict reinstated.”

The law in Georgia being otherwise, the cross-appeal is affirmed.

Judgment in Case No. A91A1681 for treble damages affirmed. Judgment in Case No. A91A1682 of remittitur of attorney fees affirmed.

Johnson, J., concurs. Carley, P. J., concurs in the judgment only.


text:
    A91A1811.
    WEIR et al. v. McGILL et al.
    (417 SE2d 57)
   Pope, Judge.

Charles G. Weir and Isadora G. Weir brought suit against Curtis McGill and McGill Builders, Inc., alleging in their amended complaint claims for fraud, simple negligence, gross negligence, breach of contract, and breach of warranty arising from their purchase of a newly constructed home. By orders dated April 30, 1991, the trial court denied defendants’ motion to dismiss plaintiffs’ amended complaint, denied McGill Builders, Inc.’s motion for summary judgment, and granted McGill’s motion for summary judgment. Plaintiffs appeal the grant of summary judgment to McGill.

1. Plaintiffs argue the trial court erred in granting McGill’s motion for summary judgment because a genuine issue of fact exists as to McGill’s personal liability on their claim for fraud.

It is well settled that actionable fraud cannot be predicated upon promises to perform some act in the future or mere failure to perform promises made, unless such promises were made with a present intention not to perform or where the promisor knows the future event will not take place. Dronzek v. Vaughn, 191 Ga. App. 468 (4) (382 SE2d 188) (1989). The record is devoid of any evidence which would suggest that McGill fraudulently induced plaintiffs to consummate the sale of their home by promising at the time of closing to complete certain repairs in the home without a present intent to do so. Hence, plaintiffs failed to meet their duty of showing that a genuine issue of fact remained for resolution by a jury as to McGill’s individual liability for fraud. Lively v. Garnick, 160 Ga. App. 591 (3) (287 SE2d 553) (1981); Lamas v. Baldwin, 140 Ga. App. 37 (1) (230 SE2d 13) (1976). Thus, the trial court did not err in granting summary judgment to McGill on plaintiffs’ fraud claim.

2. Plaintiffs also argue the trial court erred in granting McGill’s motion for summary judgment because a sufficient basis exists for a jury to decide that McGill Builders, Inc. was the alter ego of Curtis McGill.

“To establish a basis for disregarding the corporate entity on the ground that the corporation is a mere alter ego of an individual, ‘it must be shown that the stockholders’ disregard of the corporate entity made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist; and (that) to adhere to the doctrine of corporate entity would promote injustice or protect fraud. (Cits.)’ . . . [Cit.]” Marett v. Professional Ins. Careers, 201 Ga. App. 178, 180 (1) (b) (410 SE2d 373) (1991).

In this instance there is no evidence that McGill disregarded the corporate form or commingled personal and corporate assets. Instead, the record reveals that all documents pertaining to the construction and sale of the plaintiffs’ home were executed by McGill as president of McGill Builders, Inc., and all funds regarding the sale of the plaintiffs’ home were payable to the corporation. No evidence was produced which would have indicated that McGill Builders, Inc. was undercapitalized or insolvent, or that such unity of interest and ownership existed between McGill and McGill Builders, Inc., that their separate personalities ceased to exist. The only admissible evidence presented by plaintiffs in support of their alter ego claim was McGill’s deposition testimony indicating certain vehicles titled in McGill’s individual name were used by McGill Builders, Inc. in its construction business. This testimony alone was insufficient to raise a question of fact for the jury regarding plaintiffs’ alter ego claim. Accordingly, the trial court did not err in granting summary judgment to McGill on this ground. See Hester Enterprises, Inc. v. Narvais, 198 Ga. App. 580 (1) (402 SE2d 333) (1991); Earnest v. Merck, 183 Ga. App. 271 (358 SE2d 661) (1987).

3. Plaintiffs next argue the trial court erred in granting McGill’s motion for summary judgment because genuine issues of fact remain as to McGill’s personal liability on plaintiffs’ claims for simple and gross negligence. Plaintiffs contend that sufficient evidence was presented from which a jury could determine that McGill specifically directed or participated in the negligent acts set forth in their amended complaint.

“A corporate officer ‘who takes part in the commission of a tort by the corporation is personally liable therefor, but an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or co-operated therein (or if he disregarded the corporate form so as to authorize piercing of the corporate veil).’. . . [Cit.]” Fussell v. Jones, 198 Ga. App. 399 (1) (401 SE2d 593) (1991). See also Lincoln Land Co. v. Palfery, 130 Ga. App. 407, 411 (1) (a) (203 SE2d 597) (1973).

In support of their claim that McGill specifically directed or personally participated in the negligent construction of their home, plaintiffs refer to the affidavit of Isadora G. Weir filed in opposition to McGill’s motion for summary judgment in which she states she saw McGill personally perform landscaping work and operate earth-moving equipment on the property; the deposition testimony of McGill in which he states that he graded the plaintiffs’ property, “redid” the whole yard, and failed to compact the backfilled soil along the foundation of the house; and an admission in judicio made in McGill’s brief filed in support of his motion for summary judgment in which it is admitted that McGill performed landscaping work for McGill Builders, Inc. as a subcontractor and using his own equipment.

“On motion for summary judgment, all doubts as to evidence and the benefit of any conflict are to be indulged in favor of the opposing party and construed against the movant. [Cit.]” Barlow v. Orkin Exterminating Co., 196 Ga. App. 822, 823 (397 SE2d 170) (1990). In our view, the record reveals sufficient evidence to create a genuine issue of material fact as to whether McGill could be personally liable in negligence based upon his specific direction of and participation in the negligent acts set forth in plaintiffs’ amended complaint. See Smith v. Hawks, 182 Ga. App. 379 (4) (355 SE2d 669) (1987); cf. Fussell v. Jones, supra. Accordingly, the trial court erred in granting summary judgment to McGill on plaintiffs’ negligence claims.

4. Lastly, plaintiffs contend the trial court committed reversible error by granting McGill’s motion for summary judgment without conducting an oral hearing or providing plaintiffs an opportunity to submit briefs in response thereto.

After having been served with notice of defendants’ motions, counsel for plaintiffs wrote a letter to the judge to whom the case was assigned, objecting to defendants’ motions on grounds of timeliness. In a follow-up telephone conversation, the judge apparently agreed that he would stipulate a time by which plaintiffs’ written response to the motions should be filed, if the judge later determined defendants’ motions to have been timely filed. In reliance upon these communications, plaintiffs failed to file responses to the defendants’ motions.

After the case was reassigned to another judge, plaintiffs’ counsel, by letter, brought to the attention of the new judge the pendency of defendants’ motions, the nature of plaintiffs’ objection to them, and the previous judge’s decision regarding his consideration of the motions. However, without any further notice to plaintiffs, the trial court entered orders on April 30, 1991, granting, inter alia, McGill’s motion for summary judgment. After plaintiffs’ counsel raised an objection to the trial court’s orders, plaintiffs were granted permission to file a motion to reconsider and vacate the April 30, 1991 orders, along with supporting briefs, affidavits, and depositions. On June 6, 1991, after consideration of the entire record, the trial court entered an order denying plaintiffs’ motion to reconsider and vacate and reaffirming the previous grant of summary judgment to McGill.

Citing OCGA § 9-11-56 (c), Smith v. Conley, 152 Ga. App. 589 (263 SE2d 453) (1979), and other cases decided prior to the enactment of the Uniform State Court Rules, plaintiffs contend the trial court committed reversible error by failing to provide plaintiffs with an opportunity for oral argument on defendants’ motions. However, since the enactment of the Uniform State Court Rules in 1985, the courts of this state have conclusively determined that a trial court is authorized to decide a motion without first providing the parties an opportunity for an oral hearing. Kelley v. First Franklin Fin. Corp., 256 Ga. 622, 623 (351 SE2d 443) (1987); Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734, 738 (1) (350 SE2d 265) (1986). Under Rule 6.2 of the Uniform State Court Rules, a party opposing a motion has 30 days after service of the motion to file a response, and under Rule 6.3 a motion may be decided without benefit of an oral hearing unless a written request for a hearing has been made by either party. Spikes v. Citizens State Bank, 179 Ga. App. 479 (1) (347 SE2d 310) (1986). Thus, whether oral argument is to be held after a motion is filed is within the power of the parties, not the discretion of the trial court. Dallas Blue Haven Pools v. Taslimi, supra at 738.

Decided March 18, 1992.

Michael A. Dailey, for appellants.

Charles A. Mullinax, for appellees.

Since the record in this case reveals neither party requested an oral hearing by rule nisi or other proper procedure, we find it was not error for the trial court to grant McGill’s motion for summary judgment without first hearing oral argument.

Furthermore, any error which may have been committed by the trial court’s failure to allow plaintiffs to respond to defendants’ motions prior to its entering its orders dated April 30, 1991, was not reversible error. “ ‘To warrant reversal, alleged error must be harmful. (Cit.)’ [Cit.]” Mitchell v. Southern Gen. Ins. Co., 194 Ga. App. 218, 220 (4) (390 SE2d 79) (1990). Because plaintiffs were ultimately afforded an opportunity to submit briefs, affidavits and depositions in opposition to defendants’ motions, all of which were considered by the trial court prior to its affirming its grant of summary judgment to McGill, any error committed by the trial court could not have harmed plaintiffs. See, e.g., Premium Distrib. Co. v. Nat. Distrib. Co., 157 Ga. App. 666 (2) (278 SE2d 468) (1981).

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A91A1969.
    FOSTER v. COHEN et al.
    (417 SE2d 61)
   Johnson, Judge.

This case arises from an action for professional negligence, and involves allegations that a criminal defense attorney was negligent in the manner in which he handled the representation of Frederick Foster leading up to his plea of guilty to the charge of trafficking in cocaine. Foster was indicted in May 1985 for trafficking in cocaine under OCGA § 16-13-31. On December 13, 1985, he entered a negotiated guilty plea and was sentenced to 20 years, to serve 12 years in prison, with the balance to be probated. In the interim, between Foster’s indictment and his plea, the Georgia legislature substantially amended OCGA § 16-13-31, effective July 1, 1985, to provide for an increased penalty for trafficking in cocaine and a change in the quality of the cocaine required for a conviction. No savings clause was included in the amended version of the statute. While under the revised version of OCGA § 16-13-31, Foster’s conduct as evidenced by the facts to which he pled guilty would not have amounted to trafficking in cocaine, he did admit to facts which would have warranted a conviction on the charge of simple possession of cocaine, at the very least. It would, perhaps, even rise to the level of possession of cocaine with intent to distribute. In any event, it is clear that the appellant, having admitted possession of cocaine at the time he entered his plea, committed a crime under the laws of this State. Possession with intent to distribute cocaine carries a maximum sentence of 30 years for a first conviction and life imprisonment for subsequent convictions. See OCGA § 16-13-30 (d). Simple possession of cocaine carries maximum sentences of 15 years for a first conviction and 30 years for subsequent convictions. See OCGA § 16-13-30 (c). The appellant was in violation of at least one of these statutes and, upon a conviction of the least serious of the two crimes and as a result of his prior convictions for drug use, he was subject to incarceration for a period of 30 years by the trial court. The sentence actually imposed, 20 years, to serve 12 years in prison, was well within the range authorized for simple possession.

Three cases came before this Court and the Supreme Court of Georgia raising the issue of whether those prosecutions which had begun and were based upon the pre-amendment wording of OCGA § 16-13-31, but which had not become final by July 1, 1985, were abated. Approximately two-and-one-half years after the appellant’s conviction and after a great deal of vacillating between the Courts, the Supreme Court finally resolved the issue in 1988 in Bassett v. Lemacks, 258 Ga. 367 (370 SE2d 146) (1988). As a result of the holding in Bassett, the appellant obtained relief from his imprisonment on November 23, 1988 on a Writ of Habeas Corpus.

Four years and seven days after appellant’s conviction, he filed the subject action for legal malpractice contending that the attorney who represented him at the time he entered his plea was negligent in not realizing and informing him of the effect the amended statute would have on the outcome of his case.

At the outset it would appear that given the state of uncertainty in this Court and the Supreme Court of Georgia regarding the status of persons situated similarly to Foster in his underlying criminal case, it could hardly be expected that one could hold an attorney liable for failing to anticipate at the time Foster entered his plea the future resolutions of this legal dilemma and their bearing upon a particular case. Accordingly, the trial court very nearly could have, sua sponte, granted summary judgment to the appellees. We need not reach that issue, however, as the trial court correctly found that this action was barred by the applicable statute of limitations, and granted the appellees’ motion to dismiss. We affirm.

1. An action for legal malpractice is subject to a four-year statute of limitation which begins to run from the date of the attorney’s alleged negligent or unskillful act. Ekern v. Westmoreland, 181 Ga. App. 741 (353 SE2d 571) (1987); see also OCGA § 9-3-26. The accrual of the right of action in the case at bar occurred on December 13, 1985, the day that the appellant entered his plea, and the statute of limitation expired on December 12, 1989. Seven days thereafter, on December 19, 1989, Foster filed his complaint. Clearly, the appellant’s action was commenced after the applicable statute of limitation had expired.

Foster contends, however, that the applicable statute of limitation was effectively tolled, pursuant to OCGA § 9-3-90, as a result of his alleged mental incapacity.

OCGA § 9-3-90 (a) provides, in pertinent part, as follows: “persons who are legally incompetent because of . . . mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.” (Emphasis supplied.) Foster alleges that he is of the group protected by the above-cited statute because he was mentally incapacitated, and, therefore, incompetent to manage his affairs, for approximately three-and-one-half years from the date of his arrest in May 1985.

Foster contends that the nature of his mental illness was one of neurosis, psychosis, and chronic undifferentiated schizophrenia for which he was treated with Thorazine. He further contends that his mental circumstance precluded him from entering a valid plea and, therefore, the applicable statute of limitation was effectively tolled.

We reject the appellant’s argument. The transcript of the appellant’s plea indicates that by his own admission, he was not taking medication at the time his plea was tendered, that he fully understood the charges in the indictment, that he fully understood the impact of entering a guilty plea, and that he offered his plea freely and voluntarily. The record also reveals that the trial judge took the constitutionally and statutorily required measures to insure that Foster was sufficiently competent to enter a valid plea.

“ ‘Admissions which have been acted on by others, are conclusive against the party making them, in all cases, between him and the person whose conduct he has thus influenced. In such cases, the party is estopped, on grounds of public policy and good faith, from repudiating his own representations.’ ” (Emphasis in original.) Virginia Highland Assoc. v. Allen, 174 Ga. App. 706, 708 (330 SE2d 892) (1985). In the instant action, Foster held himself out to both his counsel and to the court as being competent and represented that he had the mental capacity to enter his plea. Such representations were relied on by his counsel and the Court. Under these circumstances, Foster is precluded from later using a claim of mental incapacity to toll the statute of limitation.

Decided March 18, 1992.

Emerson Carey, Jr., for appellant.

Darryl B. Cohen & Associates, Marsha L. Sutherland, for appellees.

The burden was on Foster to prove the incapacity which he alleged tolled the running of the statute. The trial court, as evidenced by its order, carefully considered Foster’s claim and found it wanting.

There being no sufficient evidence before the trial court to make the determination that Foster was incompetent at the time that he entered his plea, the appellant’s argument that the statute of limitation was effectively tolled as a result of his alleged mental incapacity fails. The applicable statute of limitation in this case expired prior to the filing of Foster’s complaint and therefore, the trial court was correct in granting the appellees’ motion to dismiss.

2. In light of the foregoing holding, the remaining enumerations of error need not be addressed.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A0258.
    BABB et al. v. COOK.
    (417 SE2d 63)
   McMurray, Presiding Judge.

On May 24, 1990, Merrell D. Babb and Patricia Babb (plaintiffs) filed a personal injury and loss of consortium complaint against Fred B. Cook III (defendant) and alleged that defendant is a resident of the State of Louisiana and that defendant negligently drove a car into plaintiffs’ automobile in Hall County, Georgia, on August 9, 1988. On May 24, 1990, a return of service was entered certifying that defendant was served via publication pursuant to OCGA § 9-11-4 (e) (1).

On December 17, 1990, an answer was filed asserting the statute of limitation, improper service, lack of venue and lack of personal jurisdiction. On May 23, 1991, an acknowledgment of service was filed on defendant’s behalf, reserving “any defenses which are available to defendant relating to service, jurisdiction, the statute of limitations, or any other procedural or substantive issue.” (The acknowledgment of service was purportedly executed on December 13, 1990.) Defendant filed a motion for summary judgment, asserting lack of personal jurisdiction, improper service and expiration of the statute of limitation. The trial court granted defendant’s motion for summary judgment based on expiration of the statute of limitation. This appeal followed. Held:

1. Plaintiffs contend the trial court erred in granting summary judgment on their loss of consortium claims.

The statute of limitation on any claim for loss of consortium is four years. OCGA § 9-3-33. It is undisputed that the collision which gave rise to the case sub judice occurred on August 9, 1988. Consequently, the statute of limitation has. not yet expired on plaintiffs’ loss of consortium claims. It follows that the trial court erred in granting defendant’s motion for summary judgment on the loss of consortium claims based on expiration of the statute of limitation.

2. Plaintiffs contend that genuine issues of material fact remain on the issue of whether defendant’s attorney orally acknowledged service on plaintiff Patricia Babb’s personal injury claim before expiration of the two-year statute of limitation. Plaintiffs also contend that genuine issues of material fact remain on the issue of whether defendant’s attorney fraudulently induced plaintiffs’ 'attorney not to serve defendant with process before expiration of the applicable statute of limitation.

Plaintiffs’ former attorney deposed that she initially represented plaintiffs, filing a complaint on their behalf and sending a courtesy copy of the “Complaint, Interrogatories, Interest Demand Letter, and a Motion for Service by Publication . . .’’to defendant’s insurance carrier. She further deposed that defendant’s attorney later telephoned and informed her that he was representing the insurance company and defendant. Plaintiffs’ former attorney also deposed that defendant’s attorney informed her that he did not know defendant’s whereabouts; that service by publication was not appropriate and that he would acknowledge service on defendant’s behalf, before expiration of the statute of limitation. Plaintiffs’ former attorney deposed that defendant’s attorney assured her on several occasions before and after expiration of the statute of limitation that he would acknowledge service on defendant’s behalf; that defendant’s attorney did not acknowledge service on defendant’s behalf before expiration of the statute of limitation and that, when defendant’s attorney did acknowledge service after expiration of the statute of limitation, he inappropriately reserved “any defenses which are available to defendant relating to service, jurisdiction, the statute of limitations, or any other procedural or substantive issue.”

“If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” OCGA § 9-3-96. However, fraud will not toll the statute of limitation where an injured party fails to exercise ordinary care and diligence in protecting his substantive rights. See Shipman v. Horizon Corp., 245 Ga. 808 (267 SE2d 244).

The appropriate method for serving a nonresident motorist is prescribed in OCGA § 40-12-2. The requirements of this Code section are in derogation of the common law and must be strictly construed and fully complied with before a court of this State may obtain jurisdiction over a nonresident motorist. Cheek v. Norton, 106 Ga. App. 280, 283 (126 SE2d 816). In the case sub judice, it appears that plaintiffs could have served defendant under OCGA § 40-12-2 long before expiration of the two-year statute of limitation. Further, it is undisputed that plaintiffs inappropriately served defendant via publication under OCGA § 9-11-4 (e) (1). See National Surety Corp. v. Hernandez, 120 Ga. App. 307, 308 (170 SE2d 318). In fact, the record shows that plaintiffs never attempted service under OCGA § 40-12-2 either before or after expiration of the personal injury statute of limitation.

The two-year statute of limitation on plaintiffs’ personal injury claims expired on August 10, 1990. See OCGA §§ 9-3-33; 1-3-1 (d) (3). Defendant’s attorney purportedly acknowledged service on defendant’s behalf on December 13, 1990, over four months after expiration of the statute of limitation. Further, this acknowledgment of service was not filed with the trial court until May 23, 1991. Nonetheless, plaintiffs insist defendant’s attorney’s alleged deceitful conduct tolled the two-year statute of limitation. We do not agree.

“Failure to exercise reasonable diligence to discover the fraud may be excused [only] where a relationship of trust and confidence exists between the parties. Kirkley v. Sharp, 98 Ga. 484 (25 SE 562) (1896); Bennett v. Bird, 139 Ga. 25 (76 SE 568) (1912).” Shipman v. Horizon Corp., 245 Ga. 808, supra. In the case sub judice, while there is a claim by plaintiffs that defendant’s attorney may have acted inappropriately under the Canons of Ethics of the State Bar of Georgia, no relationship of trust and confidence existed between plaintiffs’ former attorney and defendant’s attorney which relieved plaintiffs of the burden of notifying defendant of the lawsuit they filed against defendant in a foreign state.

Plaintiffs had a duty to either serve defendant within the applicable statute of limitation or act diligently in serving defendant (if service is more than five days after filing of the complaint) after expiration of the statute of limitation. Bible v. Hughes, 146 Ga. App. 769 (2), 770 (247 SE2d 584). “In this determination the trial court hearing the motion to dismiss is vested with a discretion to determine the cause of the delay; if it is attributable to the plaintiff and the court dismisses the complaint this court will not intervene. Webb v. Murphy, 142 Ga. App. 649 (236 SE2d 840) (1977). The diligence exercised by the plaintiff describes the true test. Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360) (1975).” Bible v. Hughes, 146 Ga. App. 769 (2), 770, supra. Under these circumstances of the case sub judice, we find no abuse of discretion in finding that plaintiffs failed to act diligently in serving defendant before and after expiration of the statute of limitation. Consequently, the trial court did not err in granting defendant’s motion for summary judgment on plaintiffs’ personal injury claims based on an expiration of the two-year statute of limitation.

Decided March 18, 1992.

McGinn, Webb & Warner, James H. Webb, Jr., Richard P. Lindsey, for appellants.

Harper, Waldon & Craig, Russell D. Waldon, for appellee.

Judgment affirmed in part and reversed in part.

Sognier, C. J., and Cooper, J., concur.


author: Sognier, Chief Judge.

text:
    A91A1736.
    TEAL v. THE STATE.
    (417 SE2d 666)
   Sognier, Chief Judge.

Nathan Teal directly appeals from the denial of his plea of double jeopardy. See Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982).

The two indictments at issue arose out of disputes between appellant and his former wife, Elsie Teal, concerning his visitation rights and child support obligations. On February 27, 1990, appellant was indicted for child abandonment; trespass at Ms. Teal’s home on September 24, 1988; simple battery of his son; possession of a firearm by a convicted felon; and battery of police officer Rob Whaley. The latter three offenses alleged in the indictment arose on December 10, 1989, when Ms. Teal called police for assistance because she thought appellant was trying to break into her home, and police officers arrived and arrested appellant. When the case was called for trial on February 27, 1991, the prosecutor dismissed the charge of battery against the son, and the parties and the court agreed to sever the firearm possession and abandonment charges. Appellant next entered a guilty plea to the abandonment charge, and the State then called the trespass charge for trial. The jury found appellant guilty of trespass, and a judgment was entered but appellant was not sentenced. The State contends in its brief that the charge of battery against Officer Whaley also was severed from the other charges, while appellant maintains evidence was presented to the jury on the battery charge but no verdict was rendered.

On March 3, 1991, four days after the verdict was rendered on the trespass charge, a second indictment was returned against appellant for offenses alleged to have arisen during or shortly after the same December 1989 altercation as the latter three counts of the 1990 indictment. Appellant was charged with a felony count of obstructing Officer Whaley and resisting arrest; possession of a firearm by a convicted felon; three counts of trespass at Ms. Teal’s home; and being a recidivist. Appellant filed a plea of double jeopardy based on the 1990 indictment and ensuing trial. The trial court rejected his plea, but did hold that the plea as to the trespass counts was not frivolous and that appellant could proceed with an appeal. The State subsequently severed the obstruction charge, and appellant was tried and convicted on the firearm possession charge in the 1991 indictment and sentenced as a recidivist.

Appellant contends any trial on the 1991 indictment was barred by the substantive aspect of the double jeopardy rule because the evidence needed to prove the offenses charged in the 1991 indictment was used up in the proof of the first trespass charge and by the procedural aspect of double jeopardy in that the offenses charged in the 1991 indictment arose out of the same conduct and were known to the prosecutor at the time of the first prosecution.

1. The substantive aspect of double jeopardy precludes multiple convictions or punishments for crimes arising from the same criminal conduct. State v. Estevez, 232 Ga. 316, 317 (1) (206 SE2d 475) (1974). This limitation, which is codified at OCGA § 16-1-7 (a), precludes conviction or punishment for more than one crime if one is included in the other as a matter of law or fact. Estevez, supra at 319-320; see OCGA § 16-1-6. Here, although evidence relating to the charges in the 1991 indictment was adduced during the trial on the trespass charge in the 1990 indictment, none of that evidence was actually used up in the proof of that charge because it involved an incident in September 1988 rather than the December 1989 altercation. Thus, the charges in the 1991 indictment were not included in the 1988 trespass charge for which appellant was convicted as a matter of fact. See Talley v. State, 164 Ga. App. 150, 153 (7) (296 SE2d 173) (1982); compare Estevez, supra at 320 (1). Nor was any offense in the 1991 indictment included in the 1988 trespass charge, the crime actually prosecuted in the 1990 indictment as a matter of law, for each of the charges in the 1991 indictment involved a crime and public interest separate from the 1988 trespass. See id. Accordingly, we find appellant’s claim of substantive double jeopardy to be without merit.

2. The procedural aspect of the double jeopardy rule prohibits multiple prosecutions arising from the same conduct. Id. at 317 (1); see OCGA §§ 16-1-7 (b); 16-1-8 (b); see also McCannon v. State, 252 Ga. 515 (315 SE2d 413) (1984). The statutory provisions at issue here are OCGA § 16-1-7 (b), which provides that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution [unless the trial court grants a severance pursuant to subsection (c)],” and OCGA § 16-1-8 (b), the applicable portion of which states that “[a] prosecution is barred if the accused was formerly prosecuted for a different crime ... if such former prosecution: (1) [r]esulted in either a conviction or an acquittal and the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution, [or] is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge).” See McCannon, supra at 517, n. 3. A crime “should have been charged” within the meaning of OCGA § 16-1-8 (b) (1) if it falls within the scope of OCGA § 16-1-7 (b). McCannon, supra at 517-518. These statutory limitations are triggered only after a defendant has been placed in jeopardy — i.e., when a defendant, “in a court of competent jurisdiction with a sufficient indictment, . . . has been arraigned, has pled and a jury has been impaneled and sworn.” (Punctuation and citations omitted.) Geckles v. State, 177 Ga. App. 70, 71-72 (1) (b) (338 SE2d 473) (1985).

In the case at bar, it is undisputed that the crimes charged in the 1991 indictment were known to the prosecutor at the time the first prosecution was commenced. Indeed, at the hearing on appellant’s plea of double jeopardy, the prosecutor acknowledged that her goal had been to ensure that appellant was incarcerated so that he could not harass Ms. Teal, and that she (the prosecutor) had held off on indicting appellant on additional charges until she learned what sentence he received on the charges in the first indictment. In addition, all the offenses charged in both indictments fell within the jurisdiction of a single court. Thus, the remaining questions are whether the various charges in the 1991 indictment arose from the same conduct or transaction as the charges in the 1990 indictment so that the 1991 charges “should have been charged” in the 1990 indictment, and if so, whether appellant was placed in jeopardy as to the 1990 charges.

The evidence adduced at the trial of the trespass charge in the 1990 indictment established that after appellant trespassed at Ms. Teal’s home in September 1988, a warrant was issued for his arrest. On the morning of December 10, 1989, Ms. Teal telephoned police because she heard appellant attempting to break into her house. Officer Whaley responded to her call, found appellant at the scene in possession of a shotgun, and arrested him on the 1988 warrant. Officer Whaley took appellant to jail, and as he was moving appellant into a cell, appellant became belligerent and kicked him.

(a) The firearm possession charges in each indictment were identical. There is no double jeopardy bar, however, for the charge was severed from the trial of the 1990 indictment, see OCGA § 16-1-7 (b), (c), and thus appellant was not placed in jeopardy as to that charge. The pendency of a former indictment for the same offense does not provide a ground for a plea of double jeopardy because even if an accused has been arraigned and has entered a plea, the accused is not placed in jeopardy until a jury is impanelled and sworn. Geckles, supra at 71 (1) (a). Consequently, the subsequent trial on the firearm possession charge in the 1991 indictment did not subject appellant to repeated prosecution. See Cochran v. State, 176 Ga. App. 58, 60 (335 SE2d 165) (1985).

(b) We do not agree with appellant that the 1991 trespass charges arose from the same conduct as the 1990 battery charge. Although they occurred on the same day, the battery charge was based on events that occurred after the alleged trespass was completed and took place at a later time and a different location. Boyette v. State, 172 Ga. App. 683, 684 (1) (324 SE2d 540) (1984). Evidence of the battery could be presented without presenting evidence of the trespass and vice versa. Id. Accordingly, regardless of the disposition of the 1990 battery charge, appellant was not twice placed in jeopardy as to the trespass charges. See Harrell v. State, 196 Ga. App. 101-102, 103 (2) (395 SE2d 598) (1990).

(c) The 1990 battery charge and the 1991 obstruction and resisting arrest charge, however, did arise from the same incident — i.e., appellant’s behavior toward Officer Whaley after his arrest. Although they are separate and distinct offenses, they arose out of the same continuous course of conduct, and thus were part of the same transaction. See McCrary v. State, 171 Ga. App. 585, 587 (320 SE2d 567) (1984), aff’d, 253 Ga. 747 (325 SE2d 151) (1985). Consequently, we must determine whether appellant was placed in jeopardy as to the 1990 battery charge.

Appellant and the State disagree about the disposition of the battery charge during the trial of the 1990 indictment. The State contends the charge was severed from the prosecution of the 1990 indictment at appellant’s request and thus no jury was impanelled and sworn to hear the charge. Conversely, appellant contends the State’s case on the charge was presented to the jury but for some reason no verdict was rendered.

Decided March 4, 1992

Reconsideration denied March 19, 1992

Alden W. Snead, J. M. Raffauf, for appellant.

David McDade, District Attorney, Lois W. Gerstenberger, Assis tant District Attorney, for appellee.

Our careful review of the trial transcript reveals that after extensive discussion, a severance was agreed upon only as to the firearm possession and abandonment charges, and the parties agreed the trespass and battery charges would be tried together. After this discussion concluded, the State called the abandonment charge for trial and appellant entered a plea. Despite the earlier agreement, the prosecutor then called the criminal trespass charge only and a jury was selected and sworn. The State was allowed to present evidence concerning appellant’s behavior toward Officer Whaley as evidence of the facts and circumstances surrounding the arrest over appellant’s objections that such evidence was not relevant to the trespass charge.

We conclude that although the 1990 battery charge was not severed, neither was it tried before a jury. The transcript clearly shows that the State called and presented its case on the trespass charge only. Appellant’s contention that evidence was presented on the battery charge but no verdict was reached is not supported by the record, as appellant’s colloquies with the court concerning his objection to the admission of evidence regarding his behavior after the arrest show that he understood only the trespass charge was being tried before the jury. See Waters v. State, 177 Ga. App. 374, 376 (1) (339 SE2d 608) (1985). Even if the State failed to call the battery case out of confusion over which charges had been severed, appellant nonetheless was not placed in jeopardy because no jury was sworn to hear the charge and no final disposition of the charge was made. Accord Geckles, supra at 70-71 (1) (a) (defendant not placed in jeopardy where prior indictment on same offense “[apparently” was not tried); Buford v. State, 162 Ga. App. 498, 500 (6) (291 SE2d 256) (1982) (no double jeopardy bar where first trial on charge ended in mistrial and charge was not called in subsequent trial on other charges). Compare Wilson v. State, 167 Ga. App. 421 (306 SE2d 704) (1983) (inadvertent entry of final order did place defendant in jeopardy because the order declared a “final disposition” of the case). Since appellant was not placed in former jeopardy as to the same conduct made the basis for the 1991 obstruction and resisting arrest charges, his plea in bar properly was denied.

Judgment affirmed.

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


text:
    A91A2022, A91A2023.
    DEPARTMENT OF CORRECTIONS v. FINNEY; and vice versa.
    (416 SE2d 805)
   Sognier, Chief Judge.

Sheila Finney filed a complaint before the Georgia Office of Fair Employment Practices (OFEP) pursuant to OCGA § 45-19-36 (b) alleging race discrimination by her employer, the Department of Corrections (DOC), in a disciplinary action. After an administrative hearing, a special master found discrimination and ordered reinstatement with back pay. The special master awarded Finney “reasonable attorney fees,” and later entered an award of attorney fees in a specific monetary amount. Pursuant to OCGA § 45-19-39, DOC appealed the administrative decision to the Superior Court of Baldwin County, which affirmed the special master’s award in all particulars except the amount of attorney fees awarded, finding that an excessive hourly rate had been used. The superior court remanded the case to the special master for a final determination of the amount of attorney fees. After final decision by the special master on the attorney fees issue, in which the special master reduced the hourly rate applied, thus decreasing the attorney fees award, DOC again appealed to the superior court, which affirmed the award. We granted DOC’s application for leave to appeal that portion of the decision below awarding attorney fees. Finney then filed a cross-appeal challenging the hourly rate used to determine the amount of attorney fees awarded.

1. In the main appeal, DOC challenges the superior court’s award of attorney fees to Finney on several grounds. We need address only one, as it is dispositive. DOC contends that the attorney fees award violates the Fair Employment Practices Act of 1978 (the Act), OCGA § 45-19-20 et seq., because Finney’s attorney had entered into a contract with OFEP under which he agreed to represent Finney in return for a reduced hourly rate of compensation to be paid by OFEP. We agree and reverse.

Among the general purposes of the Act is the provision “for execution within public employment in [this] state of the policies embodied in Title VII of the federal Civil Rights Act of 1964 ... as amended by” other federal employment discrimination statutes, OCGA § 45-19-21 (a) (1), and we agree with Finney that in construing the Act reference to federal decisions interpreting Title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.) is appropriate. Department of Human Resources v. Montgomery, 248 Ga. 465, 467 (2) (a) (284 SE2d 263) (1981). The provision for recovery of attorney fees under Title VII has been construed as an integral part of the enforcement scheme in order to maximize the rights secured by Title VII, see Albemarle Paper Co. v. Moody, 422 U. S. 405, 415 (95 SC 2362, 45 LE2d 280) (1975), and accordingly, although the general rule in this state is that attorney fees are not recoverable by a prevailing litigant unless specifically authorized by statute or contract, see Johnson v. G. A. B. Business Svcs., 170 Ga. App. 686 (1) (318 SE2d 78) (1984), this court has held that a special master may award attorney fees to a prevailing complainant in an action brought under the Act. Kilmark v. Bd. of Regents, 175 Ga. App. 857, 870 (5) (334 SE2d 890) (1985).

Decided March 4, 1992

Reconsideration denied March 19, 1992

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Terry L. Long, Assistant Attorney General, for appellant.

Nevertheless, we find that an award of attorney fees was inappropriate in this case. OCGA § 45-19-27 (3) authorizes the administrator of OFEP to appoint “employees and agents to represent complainants at special master hearings as provided in [OCGA § ] 45-19-37.” OCGA § 45-19-37 (i) provides that in such hearings a complainant may utilize the services of such an appointee or “may retain at [her] own expense private counsel to represent [her].” We construe these provisions as indicating our legislature’s desire to implement the policy of the federal acts by ensuring in one of two ways, but not both, that complainants under the Act will have adequate representation. In this case, Finney chose the former alternative; her attorney was provided to her by OFEP and was compensated under a contract executed by OFEP and the attorney. Finney did not retain private counsel either by paying a retainer fee or entering into a contingent fee arrangement, thereby factually distinguishing Blanchard v. Bergeron, 489 U. S. 87 (109 SC 939, 103 LE2d 67) (1989), cited by Finney (attorney fees awardable under 42 USC § 1988 not limited to amount in contingent fee contract). Accordingly, as her rights under the Act were maximized by the provision to her of counsel by OFEP at no charge to her, she was not entitled to the benefits extended under the other available alternative, i.e., an award of attorney fees.

2. Our holding in Division 1 renders moot Finney’s contention in her cross-appeal concerning the hourly rate used to calculate the attorney fees award.

Judgment reversed in Case No. A91A2022. Appeal dismissed in Case No. A91A2023.

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

Stroup & Coleman, Robert H. Stroup, for appellee.