text:
    A92A0449.
    WOJCIK v. LEWIS.
    (419 SE2d 135)
   Beasley, Judge.

Plaintiff Wojcik appeals from a verdict directed in favor of defendant Lewis in a suit for breach of contract.

Lewis was chairman of the board of directors and stockholder of Uniglobe Southeast Travel, Inc. (“Uniglobe SE”), a Georgia corporation, which was a franchise covering a number of southern states of a travel agency business named Uniglobe International, Inc. Through a mutual friend in Ohio, Lewis met Wojcik and after discussions offered him the job of regional president of the Uniglobe Southeast territory. After additional negotiations Wojcik accepted Lewis’ offer and drew up a document captioned “LETTER OF UNDERSTANDING between Morris Lewis III & William L. Wojcik.”

The Letter of Understanding listed the matters that Lewis and Wojcik had discussed pertaining to Lewis’ desire to have Wojcik become regional president of Uniglobe SE. It provided for compensation; automobile; moving expenses; down payment for a house to be loaned by Lewis; the assistance of Lewis in obtaining home financing from his banking contacts; and the authority to run the business so long as Wojcik did not act .in a manner detrimental to the best interests, good name, reputation or well being of Lewis or the business.

The last paragraph set forth the terms of the agreement as being “for a period of not less than three years.” It added: “The conditions of the Letter of Understanding shall be able to be changed by mutual consent between the parties of William L. Wojcik and Morris Lewis III. In the unlikely event William L. Wojcik gives cause to Morris Lewis III to desire to terminate this agreement, then such cause shall be brought to the attention of Uniglobe International and they shall act as arbitrator between both William L. Wojcik and Morris Lewis III.” The letter was signed by both men on June 20, 1987. No written employment contract with the corporation was entered into.

Wojcik sued on July 15, 1988, asserting that Lewis wrongfully breached the contract represented by the Letter of Understanding in unilaterally terminating his employment and failing to honor its terms during the course of his employment. His trial testimony showed that he began working for Uniglobe SE on a full-time basis in September of 1987, but almost immediately began having problems with Lewis due to his interference with day-to-day affairs which affected the performance and morale of the other employees and forced Wojcik to spend a disproportionate amount of time trying to rectify. Although attempts were made to restore the discretion and authority Wojcik needed to operate the business, Lewis resumed his constant interference. On May 13, 1988, Lewis fired Wojcik effective immediately and ordered-him not to discuss the circumstances of the firing or to have any further contact with anyone at Uniglobe SE.

Lewis moved for summary judgment and later for directed verdict on the grounds that (1) the Letter of Understanding was an incomplete and therefore unenforceable contract; (2) the agreement was terminable at will because it was for an indefinite period of “not less than three years”; (3) the arbitration provision in the agreement had been satisfied, which authorized him to terminate Wojcik because the conditions of the agreement had been fulfilled; and (4) he had acted as an agent for a disclosed nonparty corporation, thereby relieving him of any personal liability under the letter.

The court ascertained that from the letter it was clear Wojcik knew he was going to work as the president and an employee of Uniglobe SE; that all of his salary was paid to him on a corporate bank account of Uniglobe SE; that Uniglobe SE’s name was on his office door; and that Lewis had loaned Wojcik $34,800 to be used as a down payment on a house in Atlanta. The court concluded as a matter of law that where it is clear and undisputed that a contracting party such as Wojcik knows that he was contracting to provide services for a corporation, there are no issues of fact for a jury to determine as to whether a corporation, rather than an individual agent, is liable for any alleged breach of the contract; and that under the circumstances there were no issues of fact precluding the conclusion that the agent, Lewis, was not liable.

Wojcik contends that the court erroneously directed a verdict on the basis that Lewis acted as an agent for a nonparty corporation, thereby relieving him of personal liability for breach of the Letter of Understanding.

1. Lewis contends that even if there was a valid contract of employment, it was unenforceable because the period of employment was for an indefinite period of time and therefore terminable at will by either party. While this is a true statement of the law, OCGA § 34-7-1, it is not controlling. The contract specified that the term of Wojcik’s employment was to be “for a period of not less than three years,” and his testimony showed that had he not been guaranteed this length of time to try to turn the business around he would not have agreed to give up his employment in Ohio and relocate to Atlanta. The line of cases cited by Lewis involves situations where “[i]n [the] absence of a controlling contract between the parties, employment for an indefinite period — a ‘permanent job’ — is terminable at the will of either party, and a discharge in such circumstances affords no cause of action for breach of contract. [Cits.]” Land v. Delta Air Lines, 130 Ga. App. 231 (203 SE2d 316) (1973). The time from the commencement of Wojcik’s employment until the end of three years is a certain period of time, Wojcik was terminated before the end of that period, and he did not claim any rights beyond that period.

We adhere to the legal principle espoused in Milton v. Bank of Newborn, 30 Ga. App. 55, 58 (116 SE 861) (1923): “ ‘ “The parties to a contract which is wholly executory have a right to the maintenance of the contractual relations up to the time for performance, as well as to a performance of the contract when due.” ’ ” As recently explained in Barker v. CTC Sales Corp., 199 Ga. App. 742, 743 (1) (406 SE2d 88) (1991), “Milton involved a contract of employment for a specific and definite term, and thus in Milton the employee’s discharge because of the employer’s insolvency prior to the expiration of that term was actionable.” Accord Marshall v. W. E. Marshall Co., 189 Ga. App. 510 (1) (376 SE2d 393) (1988), where a contract for a one-year period was held not to become terminable at will until after the expiration of that period. Wojcik was not foreclosed from bringing an action on the contract.

2. OCGA § 10-6-87, the agency statute upon which Lewis and the trial court relied, recites: “Where the agency is known and the credit is not expressly given to the agent, he shall not be personally responsible upon the contract. The question to whom the credit is given is a question of fact to be decided by the jury under the circumstances in each case.” It appears that the court did not consider the second sentence of the statute and the cases applying it.

“[A]n agent who makes a contract without disclosing that he is acting as an agent or without identifying his principal, or an agent who makes a contract with the express or implied understanding with the other party that he is binding himself individually, will become individually liable on the contract. ... If the agent would avoid personal liability, the duty is on him to disclose his principal, and the agent is individually liable if he fails to disclose his agency and the identity of his principal. [Cits.] Whether or not the fact of the agency and the identity of the principal were disclosed or known to the other contracting party is a question of fact which may be shown by direct or circumstantial evidence. [Cit.] And to relieve himself of personal liability the agent ordinarily has the burden of proving by direct or circumstantial evidence the fact of agency as well as knowledge thereof by the opposite party. [Cit.] The contract may, depending upon the facts and circumstances, be .impliedly one with the agent in his individual capacity. What was the understanding of both parties is a question of fact to be decided by the jury under the circumstances of each case. [Cits.]” Chambliss v. Hall, 113 Ga. App. 96, 99 (2) (147 SE2d 334) (1966).

As in Whitlock v. PKW Supply Co., 154 Ga. App. 573, 574 (1) (269 SE2d 36) (1980), so here: “ ‘ “Where an agent wishes to avoid personal liability, the duty is on him to disclose his agency, and not on the party with whom he deals to discover it.” ’ [Cits.] The fact that [Wojcik] was aware of the existence of [Uniglobe SE] was not sufficient to relieve [Lewis] of personal liability as an agent of a disclosed principal. The use of a trade name is not necessarily a sufficient disclosure of the identity of the principal and the fact of agency so as to protect the agent against personal liability. [Cit.] Even if the principal here were disclosed, the intention of the parties as to who will be bound where the principal is disclosed is usually a question of fact for a jury. [Cit.]”

The primary reason for directing the verdict was the trial court’s finding that Lewis was representing the disclosed principal, Uniglobe SE, when he hired Wojcik. However, there was evidence to show that Lewis contracted with Wojcik personally and not as an agent for Uniglobe SE. The language of the Letter of Understanding supports Wojcik’s position that Lewis was acting individually in asking him to work for the corporation. It states that its contents were discussed, understood and agreed upon between Lewis and Wojcik and that it was Lewis’ desire to hire him, not that of the corporation through its board of directors. The corporate name is mentioned only to describe the territory which Wojcik was employed to oversee. Wojcik’s salary was paid by the corporation, but Lewis personally expedited the financing for Wojcik’s residence and loaned him the money for a down payment. The letter was signed by Lewis individually, without any designation of his capacity or other descriptive title.

Decided May 20, 1992.

Doffermyre, Shields & Canfield, Everette Doffermyre, Jr., Kelly & Hunter, Robert J. Hunter, for appellant.

Land, McKnight, Newlin & Cohen, Robert H. McKnight, Jr., for appellee.

“ ‘An agent may expressly contract on his own credit, and be bound, even though his principal be known.’ [Cit.] Ordinarily it is a question of fact for a jury under the circumstances of each case whether credit is expressly given to the agent. [Cits.]” Brown & Huseby, Inc. v. Chrietzberg, 242 Ga. 232, 234 (3) (248 SE2d 631) (1978). The Letter of Understanding embodying the contract allowed an inference that Lewis was acting on behalf of Uniglobe SE, “or an inference that it was the intention of [Wojcik] and [Lewis] that [Lewis] was to be bound individually on the contract. [Cit.] But this evidence did not demand a finding that either of these inferences was the true fact. A trade name may be used under such circumstances that agency will be sufficiently disclosed; but the use of a trade name is not per se a sufficient disclosure but raises a question of fact to be determined by the fact-finding tribunal. [Cits.]” Chambliss, supra at 100.

The evidence did not demand a verdict for either the plaintiff or the defendant, so a directed verdict should not have been granted. Stone v. Allen, 201 Ga. App. 842 (1) (412 SE2d 605) (1991). “It is clear that the trier of fact should determine whether . . . [the job offer] was extended [by] the agent in his own right or [by] the principal on whose behalf the agent was acting.” Yarbrough & Co. v. Travis Pruitt & Assoc., 130 Ga. App. 49, 50 (202 SE2d 227) (1973).

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A92A0562.
    TRANSUS, INC. v. FLECK.
    (418 SE2d 817)
   Beasley, Judge.

Employer/self-insurer Transus, Inc. was granted discretionary appeal from the superior court’s affirmance of an award by the State Board of Workers’ Compensation, reversing an award by the ALJ which permitted Transus to recover lump sum advance payments made to employee/claimant Fleck by reducing Fleck’s weekly income benefits. See OCGA § 34-9-222 (b).

In 1985, Fleck sustained compensable injuries while employed with Transus and began receiving compensation, including temporary total disability benefits. In 1987, Fleck petitioned the Board for a $5,000 advance. On June 10, 1987, the Board approved Fleck’s application and directed that Transus take “credit for the advance upon determination of permanent partial disability by reducing the period during which those benefits are to be paid.” Later that year, Fleck sought and was granted another advance. A December 9 award authorized Transus to pay Fleck a $10,000 lump sum advance, again with Transus to take credit by reducing the period of payment of permanent partial disability benefits.

In 1988, Transus became aware of certain medical and rehabilitative determinations that Fleck was permanently and totally disabled, so that there would be no permanent partial disability rating. It moved for reduction of the employee’s weekly benefits in order to recover the monies advanced. Following a hearing before an ALJ at which most of the evidence was by stipulation, including that Fleck was totally disabled and unlikely ever to return to work, the ALJ determined that the proper way for Transus to recoup the advances was to reduce the amount of weekly benefits inasmuch as it would be difficult to project Fleck’s life span, and thus, to suspend benefits by reducing the period of payment. The ALJ directed that the income benefits be reduced by $50 per week in order for Transus to recoup the advances made under OCGA § 34-9-222 (b).

Fleck appealed. The Board found that a review of its file showed that no appeal was taken from the June 10 and December 9 awards and that neither award made any provision for an alternative method of repayment in the event that permanent partial disability would not become payable. It concluded that the awards were res judicata with respect to the method of repayment of the advances, so that the employer/self-insurer was not entitled to recover the amount advanced by reducing the amount of weekly benefits payable for total disability. It further concluded that the case did not present a question of change in condition as contemplated by OCGA § 34-9-104 inasmuch as the employee was totally disabled at the time the awards were issued in 1987.

Transus challenges each item as well as the Board’s major findings and the Board’s procedure in reviewing its files. However, the gravamen of the appeal is the Board’s ultimate determination that the advances could only be recovered in the manner expressly stated in the advance awards.

Preliminarily, the record raises a significant question of waiver by Fleck. Neither at the hearing on Transus’ motion before the ALJ nor in submitted brief, did Fleck raise any defense of res judicata or that he had not sustained any change of condition as defined in OCGA § 34-9-104 (a). Nor was any specific or articulable objection made to the propriety of consideration of Transus’ motion or of the motion itself. It was only at the conclusion of the short hearing, during testimony of Fleck’s counsel on the question of attorney fees, did counsel mention without elaboration that Transus’ motion was “improper.” In fact, at the close of the earlier portion of the hearing dealing with the merits of the motion, Fleck’s counsel stated, “we have no problem with any of what was done here.” See Maryland Cas. Co. v. Smith, 122 Ga. App. 262 (176 SE2d 666) (1970), which involved a claimant’s failure to raise objection at the hearing stage.

Assuming issues of res judicata and no change of condition were properly preserved for consideration by the Board, and assuming further it was procedurally appropriate for the Board to consult its files which were not formally in evidence, the Board’s findings were not supported by the evidence, and its conclusion to deny Transus recoupment by reduction of the paid weekly income benefits was contrary to law. See OCGA § 34-9-105 (c).

First, the undisputed evidence belies the finding that Fleck did not undergo a change in condition as contemplated by OCGA § 34-9-104 (a). Following Fleck’s injury and thereafter, Fleck was being paid total income benefits, which had not been determined to be of permanent duration. That is, he was being paid for temporary total disability. It was stipulated by both sides that at the time of the hearing before the ALJ, Fleck was totally disabled and likely never to return to.work, i.e., permanently disabled. In fact, a medical opinion about Fleck’s then condition, submitted without dispute to the ALJ, stated, “[a]s a practicable matter [Fleck] is totally disabled and his disability is permanent.”

The Board’s substantive finding of res judicata on the method of repayment is legally unsupported. The doctrine of res judicata applies only to matters actually in issue or which could have been put in issue. See Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 345 (2) (270 SE2d 883) (1980). There is no evidence that the question of Fleck’s permanent total disability could have been addressed at the time of the advances. Moreover, the language in the awards that recovery be by reduction of permanent partial disability merely re-fleeted the then anticipated means of repayment. It was not itself a substantive bar to recoupment if the employee’s anticipated disability status did not materialize. To conclude otherwise would work an injustice on the employer/self-insurer who has provided additional assistance to claimant by virtue of the advances. Moreover, such a conclusion is not consistent with the purpose and spirit of OCGA § 34-9-222 (b).

Decided May 20, 1992.

Robert L. Kiser, for appellant.

S. Lee Storesund, for appellee.

The Board award refusing Transus recovery of the paid lump sum advances by reduction of Fleck’s temporary total disability weekly benefits was not supported by the evidence and was contrary to law. The superior court erred in denying Transus’ appeal and affirming such award. See OCGA § 34-9-105 (c). The judgment is reversed and the case remanded for proceedings consistent herewith.

Judgment reversed and case remanded.

Birdsong, P. J., and Andrews, J., concur.


author: Carley, Presiding Judge.

text:
    A92A0372.
    COOPER v. CREWS.
    (418 SE2d 642)
   Carley, Presiding Judge.

Appellant-plaintiff brought this tort action, seeking to recover for personal injuries allegedly sustained in a vehicular collision. The case was brought to trial before a jury and, after appellant had rested, appellee-defendant moved for a directed verdict. Appellee’s motion was granted and appellant appeals from the judgment that was entered thereon by the trial court.

1. Appellee’s motion for a directed verdict was predicated upon appellant’s purported failure to adduce any evidence of a “serious injury.”

Under the former, but herein applicable, provisions of the Georgia Motor Vehicle Accident Reparations Act, one, such as appellee, who was insured in conformity with its requirements was exempt from liability to pay damages for non-economic loss unless the injury was a serious injury as defined in paragraph (13) of former OCGA § 33-34-2. Therefore, a “serious injury” constituted the so-called “threshold” requirement which must have been met in order for appellant to recover for non-economic loss such as pain and suffering. “Serious injury” meant “an accidental bodily injury which resulted in death, a fractured bone, permanent disfigurement, dismemberment, permanent loss of a bodily function, permanent partial or total loss of sight or hearing, injury resulting in reasonably incurred medical expenses exceeding $500.00, or injury resulting in disability for not less than 10 consecutive days.” (Emphasis supplied.) Former OCGA § 33-34-2 (13). See also Hill v. All Seasons Florist, 201 Ga. App. 870 (1) (412 SE2d 619) (1991).

Decided May 21, 1992.

Guy E. Davis, Jr., for appellant.

Eason, Kennedy & Associates, Richard B. Eason, Jr., for appellee.

Construing appellant’s own testimony most favorably for her, she had suffered a “serious injury” in the form of a disability which commenced almost immediately after the collision and continued for some six weeks thereafter. See Pruitt v. Tyler, 181 Ga. App. 174, 176 (2) (351 SE2d 539) (1986); Carolina Cas. Ins. Co. v. Davalos, 154 Ga. App. 776, 777 (1) (269 SE2d 897) (1980), rev’d on other grounds, 246 Ga. 746 (272 SE2d 702) (1980). See also Jordan v. Smoot, 191 Ga. App, 74 (1) (380 SE2d 714) (1989). Compare Logan v. Smith, 165 Ga. App. 66 (299 SE2d 137) (1983); Griffin v. L. & N. R. Co., 159 Ga. App. 598 (284 SE2d 101) (1981). Compare also Eberhart v. Morris Brown College, 181 Ga. App. 516, 517 (1) (352 SE2d 832) (1987). The evidence did not demand a finding that, as the result of the collision, appellant had suffered a “serious .injury” in the form of a disability and the jury would have been authorized to find that, notwithstanding appellant’s own testimony, she had not. See Hansen v. White, 190 Ga. App. 596 (1) (379 SE2d 536) (1989). However, the evidence likewise did not demand a finding that, as the result of the collision, appellant had not suffered a “serious injury” in the form of a disability and the jury would have been authorized to find that, based upon appellant’s testimony, she had. Accordingly, the trial court erred in granting appellee’s motion for a directed verdict.

2. Appellant’s remaining enumerations of error are moot.

Judgment reversed.

Pope and Johnson, JJ., concur.


text:
    A92A0416.
    DEPARTMENT OF TRANSPORTATION v. ULTIMA-TRIMBLE, LTD.
    (418 SE2d 820)
   Carley, Presiding Judge.

Pursuant to OCGA § 32-3-1 et seq., appellant-condemnor took property belonging to appellee-condemnee and paid estimated compensation into the registry of the court. Condemnee appealed and the issue of just and adequate compensation was tried before a jury. Condemnor appeals from the judgment entered by the trial court on the jury’s verdict.

1. Some two years before the instant taking, condemnee had apparently donated a portion of its property to condemnor. On direct examination, condemnee’s president made reference to this. At one point, he testified that condemnee had been “forced ... to donate to [condemnor]” and, shortly thereafter, he testified that condemnee had been “coerced to donate ... to [condemnor]. . . .” Condemnor then moved for a mistrial outside the presence of the jury, predicating its motion upon both references to the previous donation. Compare Bell v. State, 159 Ga. App. 621, 622 (3) (284 SE2d 639) (1981). In its motion, condemnor specifically urged that the testimony by condemnee’s president as to the previous donation was irrelevant and that for condemnee’s president “to interject those statements and the way they were put, [‘]forced[’] and [‘]coerced,[’] . . . could do nothing but prejudice this jury. . . .” Compare McCormick v. State, 152 Ga. App. 14, 15 (2) (262 SE2d 173) (1979) (non-specific objection). The trial court neither granted condemnor’s motion, nor gave immediate curative instructions upon the return of the jury. Outside the presence of the jury, the trial court merely instructed that condemnee’s president was “to cease using those kinds of words” and indicated that it would “give sufficient curative instructions at the conclusion of this trial. . . .” The trial court’s failure to grant condemnor’s motion for mistrial is enumerated as error.

As condemnor urged in the trial court, the testimony by condemnee’s president was both irrelevant and prejudicial. The previous donation by condemnee obviously has no relevance to the determination of the amount of just and adequate compensation for the property taken in the instant proceeding and references by condemnee’s president to that previous donation as having been “forced” and “coerced” implies that condemnor had acted in bad faith. “The inadmissible evidence undoubtedly [could have] caused the jury to infer that [condemnor] was somehow guilty of pre-taking bad faith, and that such bad faith should be given consideration in the determination of the value of the property on the date of actual taking.” Department of Transp. v. Petkas, 189 Ga. App. 633, 638-639 (5) (377 SE2d 166) (1988). See also Antique Center of Roswell v. City of Roswell, 196 Ga. App. 894, 895 (4) (397 SE2d 146) (1990); Cobb County v. Sevani, 196 Ga. App. 247, 249 (395 SE2d 572) (1990).

Despite the prejudice and irrelevancy of the testimony, the trial court neither granted condemnor’s motion nor gave immediate curative instructions that the testimony was to be disregarded by the jury. “Under the facts of this case it was the duty of the trial court to exercise its discretion by either granting the motion for mistrial or by taking proper corrective measures to disabuse the minds of the jurors of the prejudicial testimony. [Cits.]” (Emphasis in original.) Bell v. State, supra at 623 (3).

At the conclusion of the trial, the trial court did include in its jury charge an instruction to the effect that the jury was not to concern itself “with the right and the necessity of the taking. [Condemnor’s] actions in acquiring this property [were] proper and correct, and [the jury] should not give consideration in [its] deliberations as to whether or not [condemner’s] actions were unnecessary, were inappropriate, or were in some degree improper. A claim for damage resulting from unnecessary and inappropriate or improper actions that might have been taken by [condemnor] prior to the date of taking would be the basis of a separate claim or case, not this case, not this claim.” This charge may constitute a correct statement of the law. However, condemnor’s motion for mistrial invoked an evidentiary ruling by the trial court. The jury may have been correctly charged as to the general law, but it was never correctly instructed as to the specific inadmissibility of the irrelevant and prejudicial testimony of condemnee’s president. Having correctly instructed condemnee’s president to “cease using those kinds of words” in his subsequent testimony, the trial court, upon the return of the jury, should have immediately instructed it that the previous testimony wherein condemnee’s president had used “those kinds of words” was to be given no consideration. By failing to do so, the trial court “admitted such testimony into evidence.” Joiner v. Joiner, 225 Ga. 699, 701 (2) (171 SE2d 297) (1969). Because it was never specifically informed that the testimony of condemnee’s president was not to be considered, the jury may well have concluded that the trial court’s general charge on the law must not relate to that testimony and that the trial court’s general charge on the law did not, therefore, serve to preclude that testimony from being given consideration.

Condemnor’s motion invoked a discretionary evidentiary ruling by the trial court. The record demonstrates that the trial court erroneously failed to exercise its discretion. We cannot say that the error was harmless. Accordingly, the judgment must be reversed and a new trial held.

2. Condemnor enumerates as error the trial court’s failure to grant another motion for mistrial which was also predicated upon purported irrelevant and prejudicial testimony by condemnee’s president. However, we need not address the merits of this enumeration, since a reoccurrence at retrial is unlikely.

Judgment reversed.

Pope and Johnson, JJ., concur.

Decided May 21, 1992.

Michael J. Bowers, Attorney General, J. Matthew Dwyer, Jr., William W. White, for appellant.

Peek & Whaley, J. Corbett Peek, Jr., James G. Peek, for appellee.


text:
    A92A0460.
    THE STATE v. WESTMORELAND.
    (418 SE2d 822)
   Carley, Presiding Judge.

After appellee had been indicted for possession of cocaine, he filed a pre-trial motion to suppress. The trial court conducted a hearing on appellee’s motion and found the following facts: While appellee and several others were standing together in a public area, they were observed by a uniformed officer who was driving a marked patrol car. The officer had no articulable suspicion that appellee was engaged in any criminal activity. However, the officer nevertheless stopped his patrol car and, upon approaching the group, asked if appellee would consent to be searched. Appellee did not immediately consent, but asked if the officer had a search warrant. In response to this inquiry, the officer told appellee that he did not need a search warrant. Thereafter, appellee allowed a search of his person to be conducted by the officer. This search resulted in the discovery of the cocaine for which appellee was indicted. On these facts, the trial court granted appellee’s motion and the State appeals.

1. The trial court based its ruling on two conclusions, the first of which was “that no articulable suspicion being present, the officer was not authorized to ask for consent to search.” This is erroneous. The existence of an “articulable suspicion” is necessary to support the non-consensual seizure of an individual and an ensuing limited frisk for weapons. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). It is clear, however, that merely approaching an individual and requesting that he give his consent for a search does not constitute a seizure and need not be supported by an articulable suspicion. “[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, [cits.]; ask to examine the individual’s identification, [cits.]; and request consent to search . . . , [cit.] — as long as the police do not convey a message that compliance with their requests is required.” Florida v. Bostick, 501 U. S. _, _ (111 SC 2382, 115 LE2d 389, 398) (1991).

Accordingly, the validity of a warrantless consent search is ultimately dependent upon whether the officer’s conduct during the encounter was such as to demonstrate the effectuation of a non-consensu'al “seizure,” not upon whether the initiation of the encounter had been authorized by the officer’s possession of an “articulable suspicion.” “[I]t [is] clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ [cit.], the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” Florida v. Bostick, supra at 398. “[T]he existence of an articulable suspicion would have to be shown if the State had been seeking to uphold the search as the non-consensual product of an initial seizure of appellee. However, the State was not seeking to do so. It was the State’s position that the search was the consensual product of a mere verbal encounter which had involved no initial seizure of appellee and which need not have been supported by the existence of an articulable suspicion.” (Emphasis in original.) State v. Akinsonwon, 200 Ga. App. 287-288 (407 SE2d 434) (1991). Thus, the trial court erred insofar as it predicated the grant of appellee’s motion upon the lack of an “articulable suspicion” to initiate the encounter.

2. If the trial court’s ruling had been based solely upon its erroneous conclusion that an articulable suspicion must exist to initiate the encounter, we would reverse and remand for the entry of a new order. See State v. Akinsonwon, supra. As noted, however, the trial court based its ruling upon two conclusions, the second of which was that appellee’s “consent to [the] search has not been clearly demonstrated. . . . What has been demonstrated is a mere acquiescence to [the] authority that was asserted by the police officer.” This demonstrates a proper focus by the trial court upon whether the encounter as conducted by the officer had constituted a non-consensual “seizure” of appellee. Accordingly, the grant of appellee’s motion must be affirmed if this conclusion that appellee had not consented, but had merely acquiesced in the officer’s authority is supported by the facts as found by the trial court.

“[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street. . . .” Florida v. Bostick, supra at 401-402. Here, as in Florida v. Bostick, supra at 396, a uniformed officer “walked up to [appellee] on the [street], asked him a few questions, and asked if [he] could search [appellee]. As we have explained, no seizure occurs when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search. . . — so long as the officers do not convey a message that compliance with their requests is required. Here, the facts recited by the [trial] [c]ourt indicate that the [officer] did not point [a gun] at [appellee] or otherwise threaten him. . . .”

Decided May 21, 1992.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellant.

Bobby E. Farmer, for appellee.

However, here, unlike Florida v. Bostick, supra at _, the officer did not “specifically [advise appellee] that he could refuse consent.” To the contrary, when appellee asked if the officer had a search warrant, the officer replied that he did not need a search warrant. Technically, this response was not totally false. The officer would need no search warrant if appellee gave his consent. From appellee’s perspective, however, this response may not have been totally true. There being no exigent circumstances, the officer would need a search warrant unless appellee gave his consent. Appellee’s testimony demonstrates that he had construed the officer’s response in the coercive sense. According to appellee, he had not consented but had acquiesced in the search only because the officer had stated that he “didn’t need a warrant to search.”

This testimony supports the trial court’s conclusion that the cocaine was the inadmissible product of a non-consensual “seizure” by the officer rather than the admissible product of appellee’s consent to be searched. Although there is no requirement “that a defendant knows he has a right to refuse consent, such knowledge is one factor to be considered in assessing voluntariness. [Cit.] . . . When evidence exists to show . . . that a defendant believed he must consent[,] such evidence weighs heavily against a finding that consent was voluntarily given. And when that belief stems directly from misrepresentations by government agents, however innocently made, we deem the consent even more questionable. United States v. Molt, 589 F2d 1247, 1251-1252 (5) (3d Cir. 1978). Accordingly, the trial court’s grant of appellee’s motion to suppress must be affirmed.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0650.
    ADAMS v. MOFFATT et al.
    (419 SE2d 318)
   Beasley, Judge.

Adams sued Park Lane Limited, the owner of the apartment complex at which she resided, and Moffatt, resident manager of the complex, for damage to personalty. It was alleged that Moffatt, without permission and in Adams’ absence, entered Adams’ apartment and poured bleach or some other chemical substance on Adams’ clothes, causing $11,298 in damages. The four-count complaint sought recovery under theories of Moffatt’s trespass upon the leasehold and the personalty and Park Lane’s negligent employment of Moffatt. Adams contended that defendants’ actions were wilful, intentional, and malicious, authorizing punitive damages.

Both defendants moved for summary judgment. In an order entered on October 17, 1990, the trial court granted Park Lane summary judgment on all issues and dismissed with prejudice all claims against it. There was no entry of a final judgment as to Park Lane pursuant to OCGA § 9-11-54 (b). In the same order, the court denied Moffatt’s motion for summary judgment. At that time, plaintiff did not appeal the summary judgment and dismissal in favor of Park Lane.

On November 19, Park Lane moved for the imposition of litigation costs and attorney fees under OCGA § 9-15-14 (a) & (b). The court granted the motion on February 20, 1991, finding that plaintiff and her counsel had asserted claims against Park Lane with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim and that the claim lacked substantial justification. It awarded Park Lane the requested $8,000, jointly and severally against Adams and her attorney.

The case against remaining defendant Moffatt went to trial, during which the court granted Moffatt’s motion for a mistrial. Moffatt also moved for dismissal with prejudice. On June 5, the trial court entered an order memorializing its grant of mistrial but dismissed the suit without prejudice and ordered that, upon further hearing, the court would consider an award of attorney fees to Moffatt.

On July 5, Adams filed a notice of appeal “from the judgment entered in this action on February 20, 1991,” awarding attorney fees. An amendment to the notice of appeal was filed on July 23, in which Adams states that she is appealing “from the summary judgment entered in this action on October 20, 1990.” Adams does not challenge the grant of mistrial or the dismissal without prejudice of the claim against Moffatt. Although it is not shown by the record in this case, she says she refiled the original complaint on November 27, 1991, pursuant to OCGA § 9-2-61 (a).

1. Jurisdiction.

Park Lane moves to dismiss the appeal on the bases that the notice of appeal pertaining to the motion for summary judgment was not timely and that the appeal of the OCGA § 9-15-14 award must be sought through an application for discretionary appeal.

In her amended notice of appeal, Adams seeks review of the grant of summary judgment to Park Lane in addition to the award under OCGA § 9-15-14. “The entry of a judgment as to one or more but fewer than all of the claims or parties is not a final judgment under [OCGA § 5-6-34 (a)] and lacks res judicata effect unless the trial court makes an express direction for the entry of the final judgment and a determination that no just reason for delaying the finality of the judgment exists. [OCGA § 9-11-54 (b)]; [Cits.] If the trial court does certify that the judgment is final and ripe for review under [OCGA § 9-11-54 (b)], the time for appeal begins to run. . . .

“But [OCGA § 9-11-56 (h)] also gives a losing party the right to a direct appeal from an order granting summary judgment on any issue or as to any party even though the judgment is not final under [OCGA § 5-6-34 (a)] or [OCGA § 9-11-54 (b)]____[OCGA § 9-11-56 (h)] is an exception to the finality rule which is for the benefit of the losing party. The party against whom summary judgment was granted may appeal either after the grant of summary judgment or after the rendition of the final judgment. Therefore, when the losing party appeals after the rendition of the final judgment, the grant of summary judgment is still subject to appellate review.” Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (248 SE2d 641) (1978).

Since the trial court did not certify as final under OCGA § 9-11-54 (b), the summary judgment and dismissal of claims in favor of Park Lane, Adams did not have to appeal the ruling at the time it was rendered. She instead could elect to wait for final judgment in the case and file a timely notice of appeal from such final judgment. She did so by filing a timely notice of appeal after the final judgment, which was the June 5 order granting the mistrial as to remaining defendant Moffatt and dismissing the suit against her without prejudice.

As to the appealability of the OCGA § 9-15-14 award, “a judgment awarding attorney fees and costs of litigation pursuant to OCGA § 9-15-14 may be reviewed on direct appeal, when it is appealed as part of a judgment that is directly appealable.” Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 526 (4) (a) (360 SE2d 566) (1987). Otherwise, such an award must be appealed by application pursuant to OCGA § 5-6-35 (a) (10). Martin v. Outz, 257 Ga. 211 (357 SE2d 91) (1987). Inasmuch as the grant of summary judgment and dismissal in favor of Park Lane is directly appealable, the OCGA § 9-15-14 award may be reviewed as well.

Park Lane’s motion to dismiss the appeal is denied. See Stancil v. Gwinnett County, 259 Ga. 507, 508 (384 SE2d 666) (1989).

2. Summary judgment and dismissal in favor of Park Lane.

The sole theory of recovery advanced against Park Lane was its alleged negligent hiring or employment of Moffatt. “An examination of the cases dealing with negligent hiring reveals that in each instance, at the very least the tortious act occurred during the tortfeasor’s working hours or the employee was acting under color of employment. [Cits.]” Lear Siegler, Inc. v. Stegall, 184 Ga. App. 27, 28 (360 SE2d 619) (1987). Plaintiff alleged that Moffatt entered her apartment and poured the substance on her clothes sometime between 11:00 p.m. on June 4 and 1:30 a.m. on June 5. The undisputed evidence is that Moffatt’s duty hours as general manager of Park Lane were from 9:00 a.m. to approximately 6:00 p.m. with a break for lunch, and that on June 4, Moffatt left the management office at approximately 8:00 p.m. and was off duty from then until the following morning.

Even if the alleged tortious act was done during Moffatt’s working hours or under color of her employment because of the special landlord-tenant relationship, see Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 234 (1) (378 SE2d 857) (1989), the claim of negligent hiring still fails as a matter of law.

“The standard in negligent hiring cases is whether ‘the hirer knew, or in the exercise of ordinary care should have known, that the servant was incompetent and that the incompetency resulted in damage to the party to whom the servant was hired.’ [Cits.]” Cherry v. Kelly Svcs., 171 Ga. App. 235, 236 (2) (319 SE2d 463) (1984).

The record establishes the following. As of June 1, 1990, Moffatt had been employed by Park Lane as general manager for approximately 11 years. To be hired as general manager of Park Lane, an individual must have a minimum of a high school education, supply appropriate references, have a stable prior employment, be of high personal character and integrity, and, in the judgment of management, be able to deal with a large number of diverse personalities under frequently tense situations involving such matters as physical plant problems, neighbor problems, late rental payment situations and the like. Moffatt graduated high school, attended college, and has been a member of the Institute of Real Estate Management since 1982. Moffatt is a certified property manager by The Institute of Real Estate Management. To become a Certified Property Manager (CPM), there must be a minimum of five years experience in managing over four hundred apartment units or a combination of square footage of that many units and the completion of three courses, among other things. A CPM is a prestigious designation within the property management field. Moffatt had never been arrested or convicted of any criminal offense.

Park Lane’s uncontroverted evidence that Moffatt was professionally competent to be its general manager eviscerated the claim of negligent hiring and mandated judgment in favor of Park Lane as a matter of law. See Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991), as to the burden on the summary judgment movant.

Decided May 6, 1992.

Mary P. Schildmeyer, for appellant.

William M. Warner, James E. Gilson, for appellees.

3. The OCGA § 9-15-14 award.

“Pursuant to subsection (e) of OCGA § 9-15-14, a claim for reasonable and necessary attorney fees and expenses of litigation to punish or deter litigation abuses must be brought ‘within 45 days after the final disposition of the (underlying) action.’ ” Abrahamsen v. McDonald’s Corp., 197 Ga. App. 624, 625 (1) (398 SE2d 861) (1990).

The motion for fees and expenses was filed and it was granted prior to the dismissal without prejudice on June 5. The court was not authorized, timewise, to enter an award of fees under OCGA § 9-15-14 and the premature award must be reversed. Id.

4. Park Lane’s motion for frivolous appeal damages pursuant to OCGA § 5-6-6 is denied.

Judgment of grant of summary judgment and dismissal with prejudice affirmed. Judgment of OCGA § 9-15-14 award reversed.

Birdsong, P. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A92A0279.
    PIPPINS v. THE STATE.
    (419 SE2d 28)
   Andrews, Judge.

Pippins was convicted in the Probate Court of Upson County of driving under the influence. He appealed to the Superior Court pursuant to OCGA § 40-13-28, where his conviction was affirmed. In appealing to this Court, Pippins claims the Superior Court erred by failing to reverse his conviction on the basis of the five enumerations of error he raised below and now asserts in the present appeal.

1. Pippins claims that because the judge before whom he was tried in Probate Court was not a lawyer, due process requires that he be accorded the right to a de novo review of his conviction before a judge who is a lawyer. Since the appeal to the Superior Court pursuant to OCGA § 40-13-28 was not a de novo review, but rather a review of asserted errors under general appellate principles, he claims this procedure violates due process and requires that the Superior Court judgment be reversed. See Walton v. State, 261 Ga. 392, 394 (405 SE2d 29) (1991). As the State points out, the record is devoid of any evidence that the Probate Court judge was not a lawyer. Where error is asserted, the burden is on the appellant to support his claim in the record, or an affirmance as to that issue will result. Morris v. Hodge, 152 Ga. App. 815, 816-817 (264 SE2d 482) (1979). Moreover, the Supreme Court noted in Walton, in the context of an appeal from Probate Court to Superior Court, that “[a] review of the record from a court without a law-trained judge has been held to satisfy due process. . . .” Walton, supra at 394 n. 5.

2. In his second enumeration, Pippins asserts that his conviction should have been reversed because the Probate Court erroneously denied his motion to suppress the fruits of his arrest based on his claim that the arrest was illegal. Pippins filed a written motion to suppress prior to trial. There was no hearing or ruling on the motion prior to trial. Pretrial colloquy between the Court and defense counsel indicates that defense counsel elected not to pursue the motion prior to trial, and reserved the right to raise the motion, if necessary, during the course of the bench trial. Thereafter, the State presented the testimony of the arresting officer. The Court struck portions of the officer’s testimony based on defense objection; however, the following testimony was admitted without objection: Police officers were conducting a highway roadblock to check vehicles just inside the county line between Upson and Taylor Counties. The officer, a member of the Georgia State Patrol, observed a vehicle approach the highway from a side road in front of the roadblock. The vehicle sat at the intersection for several minutes before going back down the side road away from the highway. After unsuccessfully attempting to follow the vehicle down the side road, the officer returned to the roadblock. About five minutes later, the same vehicle came out of the side road, and turned down the highway away from the roadblock. The officer followed the vehicle a short distance across the county line, and stopped it in Taylor County. The officer observed that Pippins, who was driving the vehicle, was unsteady, had glassy eyes, and a strong odor of alcohol about his person. The officer placed Pippins under arrest for driving under the influence. Pippins was advised of his implied consent rights. Through the officer who administered the test, the State also laid a foundation for admission of the intoximeter test given to Pippins after his arrest. See OCGA § 40-6-392. The test measured Pippins’ blood-alcohol content to be .20 percent.

By electing not to pursue the motion to suppress prior to trial, and failing to thereafter raise it or otherwise object to the evidence sought to be excluded, the defendant waived any objection to the evidence on grounds that it was the fruit of an illegal arrest. See Hawes v. State, 240 Ga. 327, 333 (240 SE2d 833) (1977) (failure to interpose a timely motion to suppress constitutes a waiver of the constitutional issue in question).

3. The arresting officer testified that he read Pippins his implied consent rights under OCGA § 40-6-392 from a card he carried for that purpose. This was sufficient to constitute a prima facie showing that the State informed the defendant of his implied consent rights. Snelling v. State, 176 Ga. App. 192, 193 (335 SE2d 475) (1985). Pippins did not rebut this showing, and there was no error in the admission of the test results.

Decided April 6, 1992

Reconsideration denied May 7, 1992

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Eric D. Hearn, Patricia A. Buttaro, for appellant.

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

4. In his fourth and fifth enumerations, Pippins claims error in the denial of his motion for a directed verdict of acquittal. The evidence admitted was sufficient to support denial of the motion, and for a rational trier of fact to conclude that the defendant was guilty beyond a reasonable doubt of the charged offense. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see OCGA § 17-9-1.

As to Pippins’ claim that venue was in Taylor County, where he was arrested, evidence that the officer spotted Pippins driving in Up-son County and followed him across the county line to make the arrest is sufficient to establish venue in Upson County beyond a reasonable doubt. See OCGA § 17-2-2 (b), (e), and (h).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A92A0731.
    In the Interest of K. L. L., a child.
    (419 SE2d 312)
   McMurray, Presiding Judge.

K. L. L., born October 12, 1972, was accused in five delinquency petitions of three separate delinquent acts which, if committed by an adult, would be the crimes of child molestation and two separate delinquent acts which, if committed by an adult, would be the crimes of aggravated child molestation. The State filed a motion to transfer the delinquency petitions to the superior court for prosecution and a hearing was conducted pursuant to OCGA § 15-11-39 to determine whether the transfers should be made. The juvenile court later entered an order and found reasonable grounds to believe the allegations of two delinquency petitions accusing K. L. L. of separate delinquent acts which, if committed by an adult, would be the crimes of child molestation and aggravated child molestation. More specifically, the juvenile court found, in pertinent part, that K. L. L. was 15 years of age when he committed the alleged delinquent acts; that K. L. L. is now over 17 years of age and that he is not amenable to treatment in the juvenile system “primarily because of his age. . . .” In the same order, the juvenile court held that it had no jurisdiction to act on two of the delinquency petitions because K. L. L. was over 17 years of age at the time of the alleged criminal acts. The juvenile court stated in the order that it would not “take any action . . .” on the remaining delinquency petitions, finding insufficient evidence for a determination of the juvenile court’s jurisdiction. This appeal followed. Held:

1. In his brief, K. L. L. contends the trial court erred in dismissing two of the delinquency petitions and refusing to act on the other delinquency petition, arguing that the juvenile court has exclusive original jurisdiction over the delinquent acts charged in these petitions. K. L. L. also contends in his brief that he was not properly notified of the time, place and purpose of the hearing on the State’s motion to transfer. These contentions present nothing for appellate review as they were not properly enumerated as error. Martinez-Rodriguez v. State, 195 Ga. App. 491, 492 (2) (393 SE2d 748).

2. In his sole enumeration, K. L. L. contends the juvenile court erred in transferring his “case” to the superior court, arguing that insufficient evidence exists to support the juvenile court’s findings. K. L. L. also argues that his age should not have been a factor in determining that the petitions be transferred to the superior court for prosecution.

A juvenile court is vested with broad discretion in determining whether reasonable grounds exist for transferring a delinquency petition to the appropriate court for prosecution of a crime or public offense. OCGA § 15-11-39 (a). “The juvenile court does not abuse its discretion where there is evidence in support of the transfer. In the Interest of J. J. S., 246 Ga. 617 (272 SE2d 294).” D. T. R. v. State of Ga., 174 Ga. App. 695, 697 (331 SE2d 70). In the case sub judice, the juvenile court entered detailed findings of fact and conclusions of law in accordance with OCGA § 15-11-39 (a) before transferring two of the delinquency petitions filed against K. L. L. to the superior court for prosecution. These findings were supported, in part, by the victim’s mother’s testimony that the victim informed her that defendant had sexually molested him. Further, a Family & Children Services’ investigation revealed that K. L. L. had been sexually molesting the victim and the victim’s sisters since K. L. L. was at least 15 years of age. This evidence amply supports the juvenile court’s finding that reasonable grounds exist to believe that K. L. L. committed delinquent acts which, if committed by an adult, would be the crimes of child molestation and aggravated child molestation as alleged in the delinquency petitions transferred to the superior court for prosecution. Further, evidence that defendant has committed delinquent acts which, if committed by an adult, would be the crimes of child molestation and aggravated child molestation against several young victims since he was at least 15 years of age; evidence that K. L. L. committed delinquent acts which, if committed by an adult, would be the crimes of child molestation and aggravated child molestation against the victim when K. L. L. was 15 years of age; and, evidence that K. L. L. is not committable to an institution for the mentally retarded or mentally ill and evidence that K. L. L. is now over 19 years of age and is not amenable to care, treatment or supervision in the juvenile system, supports the juvenile court’s transfer of the two delinquency petitions to the superior court. OCGA § 15-11-39 (a) (3). See In the Interest of T. M., 195 Ga. App. 342, 343 (393 SE2d 448).

Decided April 21, 1992

Reconsideration denied May 8, 1992

Greene & Greene, Barry B. Greene, for appellant.

Darrell E. Wilson, District Attorney, Brett W. Ladd, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The record reveals a five count indictment from the Superior Court of Bartow County charging K. L. L. with three counts of child molestation and two counts of aggravated child molestation. This indictment was returned on February 8, 1991, and it appears to be based on the same allegations which form the basis of the delinquency petitions in the case sub judice.


author: Sognier, Chief Judge.

text:
    A92A0642.
    PRIDGEN v. AUTO-OWNERS INSURANCE COMPANY et al.
    (419 SE2d 99)
   Sognier, Chief Judge.

L.D. Pridgen d/b/a Pridgen Chiropractic filed suit against Auto-Owners Insurance Company to recover no-fault benefits for chiropractic treatment furnished to Auto-Owners’ insured, Leonard Flemming, following Flemming’s involvement in an automobile accident and assignment of benefits to Pridgen. Auto-Owners filed a third-party complaint against Flemming. The trial court granted Auto-Owners’ motion to dismiss Pridgen’s complaint on the ground that suit was barred by the statute of limitation, and Pridgen appeals.

It is undisputed that this suit was filed more than six years after the accident in question occurred. The parties agree that the applicable statute of limitation is OCGA § 9-3-24, which provides, in pertinent part, that “[a]ll actions upon . . . simple contracts in writing shall be brought within six years after the same become due and payable.” Appellant contends, however, that the trial court erred by granting the motion to dismiss because the statute of limitation did not begin to run until appellee Auto-Owners (hereinafter appellee) dishonored the assignment of benefits executed by Flemming in favor appellant. We do not agree.

Decided May 11, 1992.

Harry L. Trauffer, for appellant.

Young, Clyatt, Turner, Thagard & Hoffman, James B. Thagard, William A. Turner, Jr., for appellees.

“The statute of limitation begins to run on any given claim on the date the claim accrues — in other words, on the date that suit on the claim can first be brought. ‘When the question is raised as to whether an action is barred by a statute of limitations, the true test to determine when the cause of action accrued is “to ascertain the time when the plaintiff could first have maintained his action to a successful result.”’ [Cit.]” Hoffman v. Ins. Co., 241 Ga. 328, 329 (245 SE2d 287) (1978). The statute of limitation began running on the date of the accident for any claim Flemming might have for no-fault benefits against appellee, as that is when he first could have maintained an action against it. Bryant v. Allstate Ins. Co., 254 Ga. 328, 331 (326 SE2d 753) (1985); Childs v. Armour Food Co., 175 Ga. App. 455, 456 (1) (333 SE2d 377) (1985). Since it is well-established that an “assignee has no more rights under the contract than the assignor would have in dealings with the other contracting party,” Algernon Blair, Inc. v. Nat. Surety Corp., 222 Ga. 672, 673 (151 SE2d 724) (1966), and that an assignee takes the assignment subject to defenses against the assignor, Healey v. Morgan, 135 Ga. App. 915 (219 SE2d 628) (1975), it follows that appellee was entitled to assert the bar of statute of limitation as a defense against appellant as well.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0019.
    McKINNNEY v. THE STATE.
    (419 SE2d 339)
   Andrews, Judge.

In count one of his indictment, McKinney was charged with first degree homicide by vehicle (OCGA § 40-6-393 (a)) by causing the death of another while violating OCGA § 40-6-390 (reckless driving), and OCGA § 40-6-391 (a) (2) (driving under the influence of marijuana). In three additional counts, he was also separately indicted for driving under the influence, reckless driving, and driving on the wrong side of the road (OCGA § 40-6-40 (a)). After the trial court instructed the jury on the lesser included offense of second degree homicide by vehicle (OCGA § 40-6-393 (b)), McKinney was found not guilty of first degree vehicular homicide, and guilty of second degree vehicular homicide, driving under the influence, reckless driving, and driving on the wrong side of the road. The record reflects the trial court did not sentence the defendant for the offense of driving on the wrong side of the road, which was a lesser included offense of vehicular homicide in the second degree. Rank v. State, 179 Ga. App. 28, 29-30 (345 SE2d 75) (1986); McNabb v. State, 180 Ga. App. 723, 725 (350 SE2d 314) (1986).

1. McKinney claims the evidence was insufficient to sustain a conviction for second degree vehicular homicide. OCGA § 40-6-393 (a) and (b) establish first and second degree violations of the offense of homicide by vehicle. “The act of causing the death of another by commission of a traffic violation is necessary to constitute the crime in either case.” Rank, supra at 29. Causing the death of another by commission of the more serious traffic offenses set out in OCGA § 40-6-393 (a) constitutes the basis for a conviction of first degree vehicular homicide. Causing the death of another by a traffic violation other than those enumerated in subsection (a) of the statute is defined as second degree vehicular homicide in OCGA § 40-6-393 (b). Thus, by definition, neither driving under the influence nor reckless driving, both of which are enumerated in subsection (a) of the statute, can act as the underlying traffic offense for a conviction of second degree vehicular homicide. As a matter of law, vehicular homicide in the second degree is a lesser included offense of first degree vehicular homicide. Givens v. State, 184 Ga. App. 498, 500 (361 SE2d 830) (1987). A defendant indicted for first degree vehicular homicide may be found guilty of second degree vehicular homicide without giving rise to an unauthorized amendment of the indictment, especially where, as here, the indictment alleges the defendant’s commission of a traffic offense not enumerated in subsection (a) of the statute (driving on the wrong side of the road) as a separate count. Hayles v. State, 180 Ga. App. 860, 861 (350 SE2d 793) (1986).

Viewed in favor of the verdict, the evidence shows that on September 11,1989, at approximately 8:00 p.m. McKinney, who was driving his car, was following a car driven by his sister, Tina Profitt, along a wet, winding, two-lane mountain road. In an attempt to get his sister to stop her car, McKinney repeatedly pulled alongside Profitt’s car in the on-coming lane of traffic, and bumped her car. When a car approached from the opposite direction, McKinney would pull back behind Profitt’s car. McKinney was following closely behind his sister when they approached a curve in the road. Both cars were traveling in excess of the posted speed limit for negotiating the curve. A truck was coming around the curve in its proper lane from the opposite direction. The truck driver testified that as he came around the curve, he saw two cars, one following behind the other, coming at him head-on in his lane of traffic. The lead car, driven by Profitt, hit the truck head-on in the center of the on-coming traffic lane. McKinney’s car, which did not impact with Profitt’s car in the accident, subsequently crashed into the truck just over the centerline of the road alongside his sister’s car. Tina Profitt died as a result of injuries she sustained in the accident.

In order to sustain the conviction for second degree vehicular homicide, the evidence must be sufficient to prove beyond a reasonable doubt that McKinney’s commission of a traffic offense (other than an offense reserved for first degree vehicular homicide) was the proximate cause of Tina Profitt’s death. Hood v. State, 193 Ga. App. 701, 702 (389 SE2d 264) (1989); Johnson v. State, 170 Ga. App. 433, 434 (317 SE2d 213) (1984). To support the conviction for second degree vehicular homicide, the State relied primarily on evidence proving that McKinney violated OCGA § 40-6-40 (a) by driving on the wrong side of the road. Prior to the fatal accident, the evidence shows that, by driving on the wrong side of the road alongside Profitt’s car, McKinney was guilty of a grossly irresponsible and potentially deadly traffic violation. However, the evidence also shows that when the cars entered the curve, and when the impact occurred, both cars were in the wrong lane, and McKinney’s car was traveling behind Profitt’s. There was also evidence that, at the time of the accident, McKinney was speeding and following too closely. Nevertheless, given the position of the cars prior to the fatal accident, and given that McKinney’s car did not impact with Profitt’s car in the accident, there is no direct evidence sufficient to establish that McKinney’s commission of any traffic offense was the proximate cause of Profitt’s death. An argument could be made, based on circumstantial evidence, that McKinney’s traffic offenses prior to and leading up to the accident created conditions which proximately caused the accident and resulting death. To sustain a conviction based solely on circumstantial evidence, “the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference beyond a reasonable doubt, of guilt.” (Punctuation and emphasis omitted.) Davis v. State, 187 Ga. App. 517, 521-522 (370 SE2d 779) (1988). The circumstantial evidence here fails to exclude the reasonable inference that the accident and resulting death occurred because Tina Profitt drove her car into the wrong lane of traffic on the curve and into the path of the oncoming truck. Accordingly, the evidence was insufficient to sustain the conviction for vehicular homicide in the second degree, and the judgment and sentence for that offense must be reversed. We need not address McKinney’s remaining enumeration of error with respect to the vehicular homicide verdict.

Decided May 22, 1992.

Thompson, Fox, Jolliff, Chandler & Homans, David A. Fox, for appellant.

Michael H. Crawford, District Attorney, George N. Guest, Assistant District Attorney, for appellee.

2. McKinney argues that the trial court erred by admitting evidence of his blood test results because the State did not establish a chain of custody. The record shows blood was drawn from McKinney at a hospital on the night of the accident in the presence of a police officer. The blood was sealed, in the officer’s presence, in two test tubes and labeled with the defendant’s name. The officer took the sealed blood and gave it to another officer who, on the same night, mailed it to the State Crime Laboratory in Atlanta. The sealed and labeled blood arrived by mail at the State Crime Laboratory, where it tested positive for the presence of marijuana. The chain of custody was sufficiently established to permit introduction of the test results. Rucker v. State, 250 Ga. 371, 373 (297 SE2d 481) (1982); Billingsley v. State, 183 Ga. 850, 852 (360 SE2d 451) (1987).

3. McKinney claims that evidence of the blood test results should have been excluded because the state failed to comply with the requirements of OCGA § 17-7-211 with respect to scientific reports. He does not contend that the State failed to timely give him a copy of the blood test report, nor does he claim that the State presented evidence of test results not contained in the written report. Compare Durden v. State, 187 Ga. App. 154 (369 SE2d 764) (1988). He claims he was harmed because the test used by the State, which demonstrated the presence of marijuana in a range of 25-50 nanograms of THC metabolites per milliliter of blood, was not as accurate as other tests which could have been used to more precisely state the level within the range. There was no violation of OCGA § 17-7-211 by the test untilized. The statutory objective is to give the defendant access to “written scientific reports . . . which will be introduced in whole or in part against the defendant. . . .” OCGA § 17-7-211. The state complied with this requirement. There was no claim that the test used, or the manner in which it was conducted, violated any of the requirements of OCGA § 40-6-392.

Judgment affirmed in part and reversed in part.

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


author: Johnson, Judge.

text:
    A92A0097.
    DUDLEY v. THE STATE.
    (419 SE2d 138)
   Johnson, Judge.

Robert Dudley was convicted by a jury of three counts of serious injury by vehicle and one count of driving under the influence of drugs. The trial court merged the four counts into two counts of serious injury by vehicle and sentenced Dudley to serve five years imprisonment on each count. Dudley appeals his conviction and the denial of his motion for new trial. We affirm.

1. In his first enumeration of error, Dudley contends that there was insufficient evidence in the record to support the jury’s verdict. This enumeration is without merit.

At trial, evidence was presented by expert witnesses showing that a person under the influence of cocaine to the extent found in the system of Dudley would be a “less safe” driver. Evidence was produced indicating the adverse physical and psychological effects of cocaine in the system. A jury could have inferred from the evidence presented that such adverse effects on Dudley’s psyche and body could have rendered him a “less safe” driver. Considering the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Dudley guilty of serious injury by vehicle beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Dudley further contends that the trial court erred in admitting into evidence a videotape depicting the rehabilitation of one of the victims. Dudley contends that the State failed to lay a proper foundation for the admittance of the videotape into evidence and that the videotape was inflammatory and unduly prejudicial.

The trial transcript reveals that Dudley failed to object on the basis of improper foundation for the admittance of the videotape into evidence and, therefore, waived his right to have this court consider that issue on appeal. Grounds enumerated as error but not raised during trial may not be raised for the first time on appeal. Hoover v. State, 198 Ga. App. 481, 482 (402 SE2d 92) (1991).

Dudley also asserts that the videotape admitted into evidence was irrelevant, unduly prejudicial and inflammatory. Any evidence is relevant which logically tends to prove or disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. Guest v. State, 155 Ga. App. 374 (270 SE2d 904) (1980). To prosecute an accused for serious injury by vehicle (OCGA § 40-6-394), it must be shown that the defendant caused “bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any mem-

Decided May 22, 1992.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Fran Shoenthal, George Guise, Assistant District Attorneys, for appellee.

ber thereof useless through the violation of Code section 40-6-390 or 40-6-391 . . .” OCGA § 40-6-394. We find that the videotape was relevant and had probative value in that it illustrated for the jury the extent of one of the victim’s injuries.

Accordingly, the jury’s verdict shall not be disturbed.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0185.
    WILLIAMS v. WILLIS.
    (419 SE2d 139)
   Johnson, Judge.

Willis brought suit against Williams on a promissory note in the State Court of Cobb County. Using the Cobb County address furnished by Willis’ attorney, the sheriff made six unsuccessful attempts to serve Williams in Cobb County. A special agent was appointed by the court upon motion of the plaintiff, a new address was provided, and Williams was served at the new address on June 10, 1988. The record makes it clear, and appellee does not dispute, that the new address was Williams’ personal residence and was located in DeKalb County.

In his answer to Willis’ complaint, Williams asserted as his first defense that “(v)enue is improper in the State Court of Cobb County, as defendant is a lawful resident of DeKalb County,” thus properly raising the defense of improper venue. Neither Willis nor Williams sought a ruling from the trial court on the venue question at this early stage; rather, the parties proceeded with discovery. The period for completion of discovery was extended by consent order on five occasions, the last of which was on April 25, 1990. Pursuant to this order, discovery was extended to August 27, 1990. It is therefore clear from the record that many months passed with the case still pending in Cobb County and with neither party seeking a ruling from the court on the venue question.

Willis filed a motion for summary judgment. A hearing was scheduled for April 8, 1991 on the motion for summary judgment. Williams’ counsel began his presentation at that hearing by announcing that Williams had raised the defense of improper venue in his answer, and that he wished to make an oral motion to transfer the case to the State Court of DeKalb County. The trial court allowed him to make his motion to transfer prior to hearing arguments on the motion for summary judgment, and Willis was allowed to respond. The trial court then proceeded with the hearing on Willis’ summary judgment motion. At the conclusion of the hearing, the trial court announced that both motions were being taken under advisement. Having considered both motions overnight, the trial court entered an order on April 9 granting Willis’ motion for summary judgment and declaring Williams’ motion to transfer moot. We reverse.

Willis contends that Williams waived his objection to venue by proceeding with the case, and points specifically to the five consent orders extending the time for completion of discovery as instances where Williams voluntarily submitted to venue in Cobb County. It is true that litigants may waive constitutional and legal rights by their conduct as well as expressly. See Jordan v. Flynt, 240 Ga. 359, 366 (240 SE2d 858) (1977). As to the defense of improper venue, Williams could have waived it by not raising it in his answer. Harbin Enterprises v. Sysco Corp., 195 Ga. App. 694, 695 (394 SE2d 618) (1990); see also OCGA § 9-11-12 (h) (1) (B). He could have waived it expressly, either in writing or in open court, even, after he had properly raised it in his answer. See generally Empire Forest Prods. v. Gillis, 184 Ga. App. 542, 543 (362 SE2d 77) (1987). Or, he could have waived it by his conduct had he done nothing to elicit a ruling from the court on the venue question prior to the entry of judgment or the commencement of trial. Taylor v. Career Concepts, 184 Ga. App. 551, 552-553 (362 SE2d 128) (1987). However, a properly raised defense of improper venue is not waived implicitly by allowing the litigation to proceed over a lengthy period of time, nor is it waived implicitly by entering into consent orders extending discovery.

For litigants situated as Williams was in the trial court, we recognize that the better practice is to seek a ruling on the venue question early in the process. There is much to be said for Willis’ contention that it is unfair for a defendant to allow the case to proceed for such a long time before insisting on a ruling. However, we remind litigants in Willis’ situation that it is not only the party asserting the defense of improper venue who can seek a ruling. At any time during the pendency of this case, Willis could have brought to the trial court’s attention by motion that the venue defense had been raised by the defendant in his answer and using that vehicle could have sought an order requiring the defendant to either expressly waive the venue defense or proceed to address it by motion so that the court could rule one way or the other before the parties or the court had further invested their time and resources.

Because Williams properly raised the defense and properly sought the transfer of the case prior to any ruling on the motion for summary judgment, he was entitled to have the merits of the venue question decided prior to the ruling on the merits of the motion for summary judgment. Thus the trial court erred by declaring the motion to transfer moot, and the motion for summary judgment was prematurely granted. The judgment is reversed with direction that the trial court consider the merits of the motion to transfer and enter an order thereon prior to any further consideration of the motion for summary judgment.

Decided May 22, 1992.

H. Michael Dever, R. Andrew Fernandez, for appellant.

Davis, Matthews & Quigley, Ron L. Quigley, for appellee.

In view of our holding on the venue question, it is not necessary to consider the appellant’s remaining enumerations of error.

Judgment reversed with direction.

Carley, P. J., and Pope, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A0325.
    CANTRELL v. THE STATE.
    (419 SE2d 141)
   Birdsong, Presiding Judge.

Sherry Cantrell was convicted of possession of cocaine with intent to distribute and possession of a firearm by a convicted felon. She contends the evidence is insufficient to sustain the convictions.

A warrant was obtained to search an apartment at 999 Cooley Drive in Gainesville, upon the affidavit of Detective Spillers to the effect that a reliable informant reported he had observed at that address a quantity of cocaine which was being offered for sale to numerous persons. The warrant authorized a search of the person of Sherry Cantrell at those premises. At about 12:00 or 1:00 a.m. on January 27, 1990, officers entered the very small one-bedroom apartment. Co-defendant Doug Cantrell was on the sofa in the living room with two other males. Within 30 seconds or so, Spillers saw appellant Sherry Cantrell standing at the bedroom doorway. He saw her discard something on the floor, and on inspection of that floor area, he found the corner of a plastic bag which contained cocaine. Under the bed were found a similar bag of cocaine and a shoe box containing 12 similar packets of cocaine and $190 in tens and twenties. The cocaine amounted to 15.4 grams. In the dresser drawers in the bedroom were found three more plastic bag corners, and in a drawer with female clothing was found a .25 caliber semi-automatic Raven handgun. No contraband was found on appellant’s person, but one of two keys which fit the apartment doors was found on her, and female clothing, makeup and jewelry were found in the bedroom. Two .25 caliber bullets were found on Doug Cantrell’s person.

The co-defendants testified they are cousins, that Sherry Cantrell did not live at the apartment, and that it was leased to Doug Cantrell but once or twice appellant had made the rent payment for him. Doug Cantrell testified he came home alone that night and fell asleep on the sofa, and he did not know that appellant or anyone else was in the apartment until the police woke him. Appellant denied that the clothes in the bedroom were hers. Spillers testified that he had seen Sherry Cantrell on other occasions at this residence.

Appellant argues that aside from the bag of cocaine she was seen discarding on the floor, the evidence fails to show she was in either actual or constructive possession of the other contraband and at best shows there were several individuals in the apartment who had equal access and opportunity to commit the crimes, and that the evidence raises the presumption that the contraband belonged solely to the apartment lessee, Doug Cantrell. See Mobley v. State, 190 Ga. App. 771 (380 SE2d 290); Blankenship v. State, 135 Ga. App. 482 (218 SE2d 157); and Gee v. State, 121 Ga. App. 41 (172 SE2d 480).

In the first place, it is, under all the evidence in the case, not correct to say the jury could make no reasonable inference connecting appellant’s possession of the bag of cocaine she was seen discarding, to the remainder of the cocaine found under the bed in the same room. The evidence authorized the jury to conclude appellant was in joint possession of the premises with Doug Cantrell. The presumption which appellant contends would attribute possession of the cocaine to the lessee Doug Cantrell is a permissive and not a required presumption. Mobley, supra at 772; Knighton v. State, 248 Ga. 199, 200 (2) fn. 1 (282 SE2d 102). As was held in Mobley at 773, the totality of the evidence in this case was such as to be inculpatory of. appellant Sherry Cantrell without being exculpatory of Doug Cantrell because the jury was authorized to find that they had shared non-exclusive and joint possession of the drugs and of the firearm. The evidence inculpates appellant with possession of the cocaine in the small bedroom where she evidently lived. See similarly McKelvey v. State, 185 Ga. App. 855, 857 (366 SE2d 231). The equal access rule which appellant invokes (Gee, supra; Blankenship, supra) applies for the most part to areas which are open, notorious and easily accessible to other persons. The contraband was found in a bedroom in areas where accessibility was that of the occupants of the bedroom and not others. See McKelvey, supra at 857; see Wells v. State, 196 Ga. App. 133, 134 (395 SE2d 296). Likewise, the jury was authorized to find appellant to be in constructive possession of the gun found in the dresser drawer with female clothing; inasmuch as she had a prior conviction for aggravated assault, the jury was authorized to find her in possession of a firearm as a convicted felon. The totality of evidence in the case is sufficient to authorize a rational trier of fact to find appellant’s guilt of both charges beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided May 22, 1992.

Summer & Summer, Daniel A. Summer, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, C. David Turk III, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A0489.
    FAMBLE et al. v. STATE FARM INSURANCE COMPANY.
    (419 SE2d 143)
   Birdsong, Presiding Judge.

Appellants Famble appeal the order of the superior court granting appellee State Farm Insurance Company’s petition for declaratory judgment and entering summary judgment in favor of appellee.

Fernando Rodriguez owned a pickup truck; insurance coverage was provided pursuant to the terms of a policy issued in the state of Texas by State Farm. Rodriguez loaned the truck to George Garcia but instructed him that no one else was to drive it. Aureliano Ramirez drove the truck while it was on loan to Garcia and was involved in two automobile collisions, one of which apparently resulted in the death of Ursula Famble. Following the accident, State Farm obtained a reservation of rights from Rodriguez, regarding the issue whether Ramirez was a permissive user of the truck at the time of the incidents. Appellants Famble filed suit against Ramirez and Rodriguez in state court. State Farm filed a petition for declaratory judgment in superior court naming appellants Famble, Ramirez, Rodriguez, and one Gladys M. Lajes as party defendants. Appellants/defendants Famble filed an answer and defendant Rodriguez both answered and filed a counterclaim. State Farm supplemented its petition by filing as exhibits an affidavit of Rodriguez and a copy of the insurance policy. The superior court in its final order granted summary judgment to State Farm. In this order, the superior court concluded that “since there are no genuine issues of material fact regarding the permissive usé issue, this court finds that State Farm does not have any coverage liability as provided for by terms in Paragraph A.8 on Page 5 of the policy.” Held:

1. OCGA § 9-4-1 provides that the purpose of the statutory provisions pertaining, to declaratory judgments (Title 9, Chapter 4, OCGA) is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and that these provisions are to be “liberally construed and administered.” Thus in declaratory judgment actions, our courts are bound to consider the expressed purpose of our declaratory judgment statutes and to construe and administer these statutes liberally so as to accomplish this underlying statutory purpose.

2. Appellants assert the trial court erred by rendering an advisory opinion on a petition for declaratory judgment, by granting the petition for declaratory judgment when the rights of the parties have already accrued, and by granting a petition for declaratory judgment when appellee was not faced with any future undirected action that would jeopardize its rights.

“ ‘ “Actions or opinions are denominated ‘advisory’ when there is an insufficient interest in the plaintiff or defendant to justify judicial determination, where the judgment sought would not constitute specific relief to a litigant or affect legal relations or where, by reason of inadequacy of parties defendant, the judgment could not be sufficiently conclusive.” ’ ” Pilgrim v. First Nat. Bank, 235 Ga. 172, 174 (219 SE2d 135); accord Cook v. Sikes, 210 Ga. 722, 726 (82 SE2d 641). Applying this test, we find State Farm did not seek an advisory opinion by means of declaratory judgment. The declaratory judgment sought would provide specific relief to litigant State Farm and would directly affect legal relations between State Farm and defendants Ramirez and Rodriguez, within the meaning of Pilgrim, supra, and Cook, supra, and additionally, indirectly affect State Farm’s legal relations with appellants/defendants Famble.

Appellants argue, inter alia, that State Farm has not been exposed to uncertainty with regard to its duty to defend its insured. The record discloses there exists a pending action which could possibly expose State Farm to uncertainty with regard to its duty to defend its insured, particularly in view of State Farm’s timely reservation of rights (State Farm &c. Ins. Co. v. Allstate Ins. Co., 132 Ga. App. 332 (208 SE2d 170)), and also as to the scope of policy coverage (see Nationwide Mut. Ins. Co. v. Peek, 112 Ga. App. 260, 263 (145 SE2d 50); compare Shield Ins. Co. v. Hutchins, 149 Ga. App. 742 (2) (256 SE2d 108)). “An insurer can readily show that it is in a position of insecurity and uncertainty when faced with the dilemma of providing and paying for a defense of its insured in a tort action as required under the liability policy or of denying coverage and thus losing the opportunity to protect its interest in the tort case.” (Emphasis supplied.) Jenkins & Miller, Ga. Auto. Ins. Law, § 7-4. Chastain v. U. S. Fid. &c. Co., 190 Ga. App. 215 (378 SE2d 397) is factually distinguishable.

“ ‘ “ ‘The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. . . . [I]ts purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole.’ ” ’ ” Chastain v. U. S. Fid. &c. Co., supra at 216-217 (1). OCGA § 9-4-2 pertinently provides: “(a) In cases of actual controversy, the respective superior courts of this state shall have power, upon petition . . . to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed . . . (b) In addition to the cases specified in subsection (a) . . . the respective superior courts of this state shall have power, upon petition ... to declare rights and other legal relations of any interested party petitioning for the declaration, whether or not further relief is or could be prayed, in any civil case in which it appears to the court that the ends of justice require that the declaration should be made. . . .”

“The inclusion of subsection (b) makes the Georgia Declaratory Judgment Act ‘much broader in scope and more comprehensive in its jurisdiction of justiciable controversies’ than the declaratory judgment acts of many other states. [Cit.] However, the presence in the declaratory judgment action of a party with an interest in the controversy adverse to that of the petitioner is necessary under either subsection (a) or (b) [Cits.] ‘For a controversy to justify the making of a declaration, it must include a right claimed by one party and denied by the other, and not merely a question as to the abstract meaning or validity of a statute.’ ” (Emphasis supplied.) Pangle v. Gossett, 261 Ga. 307, 308 (404 SE2d 561). But, “[o]nly ‘where no party to the proceeding has an interest in the controversy adverse to that of the petitioner’ is there a complete absence of a justiciable controversy.” Cawthon v. Waco Fire &c. Ins. Co., 190 Ga. App. 797, 799 (1) (380 SE2d 327).

In determining whether a party is present in the declaratory judgment action with an interest adverse to petitioner, as required by a liberal construction of OCGA § 9-4-2 (b), a court may consider the totality of the circumstances reflected in the record before it, including the pleadings filed by the parties to the declaratory judgment action. State Farm entered a reservation of rights with its insured Rodriguez; clearly the insurer and the insured’s interest are adverse regarding whether State Farm does or does not have a right to decline to defend the pending suit brought by appellants Famble against the insured and Ramirez. See State Farm &c. Ins. Co. v. Allstate Ins. Co., supra (trial court properly denied motion to dismiss declaratory judgment on the ground of lack of justiciable issue where insurer was defending under a reservation of rights); but compare McCraney v. Fire &c. Ins. Co., 182 Ga. App. 895, 896 (357 SE2d 327) (appellant failed to avail itself of “the proper and safe course of action” of entering upon a defense under a reservation of rights and then proceeding to seek a declaratory judgment). In fact, in his counterclaim Rodriguez avers “he is owed a defense, under the terms and provisions of the insurance agreement with State Farm.” Additionally, we are not oblivious to the interest that appellants Famble have in this declaratory judgment action, which is obviously adverse to the interest State Farm has in establishing that appellant Ramirez was a person excluded as a “covered person” under the policy, in order to retain a source for satisfaction of any judgment which might be ultimately obtained against Ramirez in their pending civil suit. And, of course, defendant Ramirez would have an interest adverse to State Farm in regard to whether he is a “covered person” under the policy issued to Rodriguez and whether, as such, he too is entitled to be defended by State Farm.

We find that a justiciable controversy existed in this case, that the insurance company adequately demonstrated a need for a decision that would control its future actions, and that, within the meaning of OCGA § 9-4-2 (b), the ends of justice required that the declaratory judgment petitioned for by State Farm should have been made. Compare Atlanta Cas. Co. v. Fountain, 262 Ga. 16 (413 SE2d 450); Strickland v. Ga. Cas. &c. Co., 224 Ga. 487, 488 (1) (162 SE2d 421); see generally, Ga. Auto. Ins. Law, supra at § 7-2, p. 40. All of appellants’ assertions in support of its first, second, and third enumerations of error are without merit.

3. State Farm has not engaged in improper forum shopping merely by filing a petition in superior court for declaratory judgment; in fact, State Farm is not a party to the personal injury action brought by appellants in state court and the question of its coverage is not directly in issue there. Smith v. State Farm &c. Ins. Co., 122 Ga. App. 430, 431-432 (1) (177 SE2d 195). Additionally, “[s]uits for declaratory judgment by an automobile insurance carrier seeking to determine questions of coverage with respect to pending tort actions have been approved in numerous instances by the Supreme Court.” Id. at 432 (1); compare Coleman v. Dairyland Ins. Co., 130 Ga. App. 228 (202 SE2d 698).

4. Appellants assert the trial court erred in treating appellee’s petition for declaratory judgment as a motion for summary judgment. On April 23, 1991, State Farm’s “Plaintiff’s Supplement to its Petition for Declaratory Judgment” was filed, accompanied by a certificate of service on opposing counsel bearing the same date. The record reveals that the “Notice of Filing of Affidavit of (Defendant) Fernando Rodriguez,” filed on October 1, 1991, expressly refers to “pending motions for summary judgment.” Further, the trial court’s order, filed October 10, 1991, on its face reflects that it considered and granted “State Farm’s Motion for Summary Judgment.” Appellants’ notice of appeal pertinently provides that “transcript of evidence and proceedings will not be filed for inclusion in the record on appeal.”

A motion to dismiss, if otherwise timely, can be made orally at a hearing, for example, at a hearing for temporary relief. Royston v. Royston, 236 Ga. 648, 649 (225 SE2d 41). However, the trial court would be required to set a date for another hearing on the motion at least 30 days from the time the motion was made (OCGA § 9-11-56 (c)), unless such notice and opportunity to respond are waived. Compare Royston, supra at 649 with Peppers v. Elder, 248 Ga. 136 (281 SE2d 582). In the absence of the hearing transcripts, it cannot be determined from the posture of this record whether an oral motion for summary judgment was made and whether appellants were provided the requisite notice and opportunity or waived the same. The record before us on appeal reflects that State Farm did make some type of motion for summary judgment and that the parties were provided with some amount of notice and opportunity to respond. Even assuming arguendo State Farm failed to make an oral motion for summary judgment at a hearing, “it is well-settled that summary judgment can be granted [sua sponte by the trial court] to a non-moving party provided the grant is proper in all other respects. As a general rule, if [, as in this case,] the record demands such a judgment, it would be proper. However, care should, of course, be taken by the trial court to determine that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried, and that the party for whom summary judgment is rendered is entitled thereto as a matter of law. The crucial point is to insure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.” (Citations and punctuation omitted; emphasis supplied.) Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 170 (1) (390 SE2d 257).

Appellants’ notice of appeal reveals that they elected not to provide this court with transcripts of hearings. Without examining these hearings, this court cannot determine that error has been committed as asserted by appellants. Appellants have the burden of showing error affirmatively by the record. Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688). “Defendant[ ] expressly designated no transcript of the evidence to be filed. [Cit.] Where appellants choose to omit the transcript, and it is necessary for a review of the claimed error, they have failed to meet their burden of showing error. In such case, this court will assume the evidence sufficient and affirm.” Hunnicutt v. Hunnicutt, 182 Ga. App. 578, 579 (356 SE2d 679); accord Smith v. Smith, 223 Ga. 795 (2) (158 SE2d 679); Nodvin v. West, 197 Ga. App. 92, 97 (3 c) (397 SE2d 581); Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 51 (3) (397 SE2d 466). Also, the trial court could have used OCGA § 9-11-56 and Uniform Superior Court Rule 6 and reached the same result.

Decided May 22, 1992.

Sage Brown & Associates, Sage Brown, for appellants.

Kent & Rackett, A. Martin Kent, William 0. Williamson III, Herndon, Chestnut, Rosenblum & Ashby, Thomas R. Herndon, Simon & Booth, William M. Simon, for appellee.

Accordingly, we affirm the trial court’s grant of summary judgment to State Farm on the applicability of paragraph A.8 on page 5 of the policy.

Judgment affirmed.

Beasley and Andrews, JJ., concur.