text:
    A02A0040.
    POTTS et al. v. UAP-GA AG CHEM, INC. et al.
    (567 SE2d 316)
   Miller, Judge.

An employer falsely told an employee’s treating physician that the employee had not been exposed to toxic chemicals. Combined with the negative results of certain blood tests and the length of time the employee had already been receiving antidotal treatment, this information led the physician to lessen the toxic chemical antidote being administered to the employee, even though the employee and his family adamantly maintained that the exposure had occurred. As a result of this lack of treatment, the employee died, and his estate and widow sued the employer for fraud. The primary question on appeal is whether a jury could find that the physician’s reliance on the employer’s false statement was reasonable. We hold that a jury could so find and therefore reverse this portion of the summary judgment granted to the employer.

This is the third time this case has generated an appellate opinion. The first appeal focused on whether the employer was immune from this suit under the Workers’ Compensation Act. In Potts v. UAP-GA AG CHEM, 227 Ga. App. 841 (490 SE2d 432) (1997) (“Potts F), this Court held that the employer was immune. The Supreme Court of Georgia reversed this ruling in Potts v. UAP-GA. AG. CHEM., 270 Ga. 14 (506 SE2d 101) (1998) (“Potts II). On remand, the trial court again entered summary judgment in favor of the defendants, this time on grounds that essential elements of the asserted torts were missing. We will recount only those facts (as construed in favor of the plaintiffs) necessary to determine this appeal.

Rusty LeBlanc became ill after cleaning chemicals from applicators for his employer, UAP-GA AG CHEM, Inc. During stays at two hospitals, LeBlanc maintained to his treating physicians that the cause of his malady was the chemicals, and thus he was treated for chemical poisoning and for other possible conditions. At the second hospital, Dr. Capps administered the chemical poison antidote Atropine subcutaneously, which he discontinued after being assured by UAP’s branch manager that LeBlanc could not possibly have been exposed to any chemicals, and after receiving blood test results showing LeBlanc’s cholinesterase level to be in the normal range. (Poisoning by these chemicals would have produced abnormally low levels of cholinesterase.) Contradicting his employer’s statements, LeBlanc repeated to Dr. Capps that he had been exposed to the chemicals. The doctor kept LeBlanc on some oral antidotal drugs. LeBlanc soon died. An expert has indirectly opined that the cessation of the Atropine treatment (caused in part by the employer’s false statement that LeBlanc had not been exposed to chemicals) resulted in the death.

LeBlanc’s estate (through its administrator Potts) and his widow (on behalf of herself and LeBlanc’s minor child) brought this wrongful death and survival action against UAP and its branch manager, alleging fraud. They also sued Canaan Industries (the manufacturer of the applicators) and Dowelanco (the manufacturer of the chemicals and the party that financed UAP’s purchase of the applicators from Canaan). Plaintiffs alleged that Canaan and Dowelanco should have placed a warning on the applicators regarding the danger of cleaning off chemicals. Plaintiffs have since dismissed Canaan.

As noted above, UAP and its branch manager’s first attempt at summary judgment on grounds of workers’ compensation immunity was ultimately unsuccessful. See Potts II, supra, 270 Ga. at 17. UAP and its branch manager then moved for summary judgment on grounds that the evidence did not support a claim for fraud, which the trial court denied. Although the court certified the matter for immediate review, UAP did not pursue the appeal since plaintiffs amended their complaint at that time to add a claim for intentional infliction of emotional distress. UAP moved a third time for summary judgment, asserting that no evidence supported essential elements of either the fraud or the intentional infliction of emotional distress claim. Dowelanco also moved for summary judgment, arguing among other things that it did not supply Canaan with the applicators nor did it know of any defects in the applicators.

The trial court granted all motions for summary judgment, ending the case. In their appeal, plaintiffs assert the trial court erred in the following four respects: (1) finding as a matter of law that Dr. Capps did not exercise due diligence, (2) concluding that the “law of the case” doctrine did not foreclose reviewing the issues raised in UAP’s third motion for summary judgment, (3) holding that the branch manager’s conduct toward LeBlanc did not constitute intentional infliction of emotional distress, and (4) concluding that Dowelanco did not have a duty to warn about the applicators.

1. The fraud cause of action against UAP and its branch manager rests on the following premises. The branch manager knowingly misrepresented to Dr. Capps that there was no way LeBlanc was exposed to chemicals, and this misrepresentation was made with the intent to cause the physician to act upon this information. Reasonably relying upon this misrepresentation, Dr. Capps changed the medical treatment of LeBlanc to LeBlanc’s detriment, resulting in LeBlanc’s death. The trial court found that evidence supported all of these elements except the reasonable reliance element. The court concluded that Dr. Capps could not reasonably rely on the branch manager’s statements since they were directly contradicted by the patient LeBlanc. On appeal, UAP maintains that not only was the trial court correct in finding no reasonable reliance by Dr. Capps, but also that the claim fails since the misrepresentation was not made to LeBlanc and since LeBlanc did not rely on the statement but rather contradicted it.

The five classic elements of fraud are (1) false representation by a defendant, (2) scienter, (3) intent to induce the plaintiff to act or refrain from acting, (4) justifiable reliance by the plaintiff, and (5) resulting damage to the plaintiff. Artzner v. A & A Exterminators, 242 Ga. App. 766, 769 (1) (531 SE2d 200) (2000). However, the Supreme Court of Georgia has held that the misrepresentation need not be to the plaintiff, but may be to someone on whom the plaintiff relies. “We hold that the requirement of reliance is satisfied where ... A, having as his objective to defraud C, and knowing that C will rely upon B, fraudulently induces B to act in some manner on which C relies, and whereby A’s purpose of defrauding C is accomplished.” Florida Rock & Tank Lines v. Moore, 258 Ga. 106, 107 (4) (365 SE2d 836) (1988).

Here the misrepresentation was to LeBlanc’s physician, on whom LeBlanc was relying for treatment. Through the misrepresentation, UAP induced the physician to discount the possibility of chemical poisoning and to change LeBlanc’s treatment, on which treatment LeBlanc was relying for his physical recovery. UAP’s ultimate purpose of seeking to deny responsibility for the malady was advanced. Even though LeBlanc himself did not rely on the misrepresentation, his treating physician to whom he had entrusted his care did. Thus, UAP induced the physician “to act in some manner on which [LeBlanc] relies” {Moore, supra, 258 Ga. at 107 (4)), i.e., LeBlanc relied on his physician’s judgment in making the correct decision on how to treat him, and in giving that treatment the physician acted in reliance on UAP’s misrepresentation. Where a person (as here) is entrusted with discretion in caring for plaintiff’s interests, a misrepresentation to that person — even if the plaintiff knows it to be false — may be the basis for a fraud action where the person in reasonably relying upon the misrepresentation acts to harm plaintiff’s interests. The fact that the plaintiff tells the person that the misrepresentation is false is simply one factor in determining whether that person reasonably relied upon the misrepresentation. Whether reliance is reasonable is normally a question for the jury and should not be decided on summary judgment if there is any evidence showing the person exercised due diligence. Riviera Finance v. McBride, 221 Ga. App. 321, 323 (471 SE2d 233) (1996); see Brown v. Mann, 237 Ga. App. 247, 249-250 (1) (b) (514 SE2d 922) (1999); King v. Towns, 102 Ga. App. 895, 901 (2) (118 SE2d 121) (1960).

Here the evidence showed that at the time Dr. Capps received UAP’s false information that LeBlanc had not been exposed to chemicals, Dr. Capps had also just received some blood test results showing LeBlanc’s cholinesterase level to be within the normal range, which also discounted the possibility of chemical poisoning. Since the evidence revealed that toxic chemical experiences are normally short-lived and since LeBlanc had been receiving Atropine for three days, Dr. Capps could understandably have become less concerned about chemical poisoning, despite his patient’s claims to the contrary. A jury could find that the doctor exercised due diligence and reasonably relied on the misrepresentation in deciding to change his treatment of LeBlanc by taking him off Atropine and by not investigating the chemicals further, particularly where the doctor continued to treat LeBlanc with an oral form of a milder antidote.

Thus, the trial court erred in holding as a matter of law that Dr. Capps could not reasonably rely on the misrepresentation. Cf. Akins v. Couch, 271 Ga. 276, 278-279 (3) (b) (518 SE2d 674) (1999). We reverse summary judgment on the fraud claim against UAP and its branch manager.

2. Plaintiffs argue that the trial court should have refused to consider the third motion for summary judgment on the ground that the earlier appeal of the case had already determined that the evidence supported the elements necessary to the fraud and intentional infliction of emotional distress claims. Plaintiffs point to OCGA § 9-11-60 (h), which provides that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court. . . .”

Inasmuch as we held in Division 1 that some evidence supports the elements of the fraud claim, plaintiffs’ argument as to that claim is moot. With regard to the claim for intentional infliction of emotional distress, the argument is inapplicable since in the earlier appeal neither this Court nor the Supreme Court addressed whether evidence supported that claim (or, for that matter, the fraud claim). See Potts II, supra, 270 Ga. at 15-17; Potts I, supra, 227 Ga. App. at 844 (2). “[W]hen a new issue not previously addressed by an appellate court is properly raised . . .” in a subsequent proceeding, the law of the case rule in OCGA § 9-11-60 (h) does not preclude consideration of that issue. Lowman v. Advanced Drainage Systems, 228 Ga. App. 182, 183-184 (491 SE2d 427) (1997). Indeed, plaintiffs did not amend their complaint to include the intentional infliction of emotional distress claim until after the previous two appellate decisions, which change in evidentiary posture necessarily rendered the law of the case rule inapplicable to that claim. May v. Macioce, 200 Ga. App. 542, 544 (2) (409 SE2d 45) (1991).

3. The evidence does not support key elements of plaintiffs’ claim for intentional infliction of emotional distress. The basis for this claim is two statements: the misrepresentation to Dr. Capps about LeBlanc not being exposed to chemicals, and a statement by UAP’s branch manager to LeBlanc in the hospital that LeBlanc had no workers’ compensation claim. Neither statement meets the requisite criteria.

The first statement was not made to LeBlanc but to his physician. “ ‘[E]ven malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff’ [Cit.]” Lively v. McDaniel, 240 Ga. App. 132, 134 (2) (522 SE2d 711) (1999); see Jackson v. Nationwide Credit, 206 Ga. App. 810, 811 (2) (426 SE2d 630) (1992). The second statement that LeBlanc had no workers’ compensation claim does not rise to the level of outrageousness required to sustain a claim for the intentional infliction of emotional distress. “It must be emphasized that major outrage in the language or conduct complained of is essential to the tort.” (Punctuation omitted.) Bridges v. Winn-Dixie At lanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985). Thus, critical comments by an employer to its employee, even though belittling, rude, and given at a poor time when the employee is very vulnerable, do not make the employer liable for this tort. Jarrard v. United Parcel Svc., 242 Ga. App. 58, 60 (529 SE2d 144) (2000). Jarrard explained:

[T]he conduct must inherently have an element of outrageousness or extreme wrongfulness. Based on this reasoning, we have repeatedly upheld summary adjudications in favor of the defendant where the conduct had no such element, even though the defendant — who had a controlling relationship over the plaintiff — was aware of the plaintiff’s delicate mental condition at the time of the incident.

(Footnote omitted.) Id. at 61.

Here UAP’s statement that LeBlanc had no workers’ compensation claim was not inherently outrageous. Rather, such a position taken by an employer is a common everyday occurrence in the business world of negotiations, even if motivated by malice or an intent to harm plaintiff It is not enough that defendant acted with bad faith, criminal intent, malice, or even the degree of aggravation that would entitle plaintiff to punitive damages; liability for intentional infliction of emotional distress arises only where the conduct innately was extreme and outrageous. Jarrard, supra, 242 Ga. App. at 61; see Bowers v. Estep, 204 Ga. App. 615, 618 (2) (420 SE2d 336) (1992). Taking an unreasonable position that LeBlanc was not entitled to workers’ compensation and announcing that position to him while he lay in a hospital bed may have been inconsiderate, malicious, wrongheaded, and completely insensitive. It certainly should not be condoned in the business world; however, it was not inherently extreme and outrageous as is required for a claim for intentional infliction of emotional distress. See Jarrard, supra, 242 Ga. App. at 61.

The court did not err in granting summary judgment on this claim.

4. Nor did the court err in entering summary judgment on the “failure to warn” claim against Dowelanco. This claim arises when one who supplies a chattel for use by another knows or should realize that the chattel is or is likely to be dangerous for the use for which it is supplied and fails to exercise reasonable care to warn the user of its dangerous condition. Greenway v. Peabody Intl. Corp., 163 Ga. App. 698, 702 (2) (294 SE2d 541) (1982); see Chrysler Corp. v. Batten, 264 Ga. 723, 724 (1) (450 SE2d 208) (1994). Such suppliers have included manufacturers, retailers, sellers, and distributors of the chattel. See Chrysler Corp., supra, 264 Ga. at 724 (1) (manufacturers); Farmer v. Brannan Auto Parts, 231 Ga. App. 353, 354 (1) (498 SE2d 583) (1998) (distributors); Greenway, supra, 163 Ga. App. at 702 (2) (manufacturers and sellers); Beam v. Omark Indus., 143 Ga. App. 142, 145 (1) (b) (237 SE2d 607) (1977) (manufacturers and retailers). Such would not normally include financiers of the chattel, as financiers generally do not handle, possess, or inspect the product and therefore do not have the opportunity to discover any dangerous defects therein or to post a warning thereon. See Bickram v. Case I. H., 712 FSupp. 18, 22-23 (E.D. N.Y. 1989); see also Draleau v. Center Capital Corp., 49 Mass. App. Ct. 783, 787-788 (732 NE2d 929) (2000); Wynn v. Kensington Mtg. &c. Corp., 697 SW2d 47, 49 (Tex. App. 1985); see generally Anno., Products Liability: Application of Strict Liability in Tort Doctrine to Agency Merely Financing Sale or Lease-Purchase of Personal Property, 28 ALR4th 326 (2001).

Decided June 13, 2002

Reconsideration denied June 27, 2002

John M. Brown, Stephen L. Ivie, for appellants.

King & Spalding, J. Kevin Buster, Carmen R. Toledo, Gardner, Willis, Sweat & Goldsmith, Donald A. Sweat, for appellees.

Here the undisputed evidence shows that Dowelanco was a “hands off” financier. Dowelanco, which did not design or manufacture the applicators, simply provided a credit to UAP and other purchasers of Dowelanco’s chemical product, which credit could be used to purchase an applicator from Canaan. Using this credit, UAP purchased the applicators in question from Canaan directly, without Dowelanco ever touching, handling, inspecting, or possessing them. Since Dowelanco did not supply the applicators to UAP, Dowelanco was not obligated to provide UAP with any warnings about the product.

Moreover, the undisputed evidence showed that Dowelanco had no actual or constructive knowledge of any defects in the applicators. Absent such, a duty to warn did not arise. See Farmer, supra, 231 Ga. App. at 354 (1); Hester v. Human, 211 Ga. App. 351, 353 (3) (439 SE2d 50) (1993).

The trial court correctly granted summary judgment to Dowelanco on the “failure to warn” claim.

Judgment affirmed in part and reversed in part.

Blackburn, C. J., and Johnson, P. J, concur.


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A0361.
    ANDERSON v. BARROW COUNTY et al.
    (568 SE2d 68)
   Blackburn, Chief Judge.

The trial court granted summary judgment to appellee Charles Amason and partial summary judgment to appellee Barrow County. Appellant Johnny Anderson appeals, contending that the trial court erred both in finding that Amason was not personally liable and also in granting Amason and Barrow County summary judgment on his claim that they violated Barrow County’s safe driving policy. For the reasons set forth below, we affirm.

Michelle Anderson was killed on the morning of October 22, 1997, when she pulled into the path of a Barrow County rescue vehicle driven by Amason, a captain and volunteer firefighter who was responding to a two-car head-on collision. Johnny Anderson, her husband, filed a complaint against Amason, Edward Hendricks, a volunteer fireman who was riding with Amason, and Barrow County. Count 1 of the complaint alleged that Amason and Hendricks were negligent in their operation of the rescue vehicle. Count 2 alleged that Barrow County was liable under the theory of respondeat superior for the acts of Amason and Hendricks and also for its negligent training and supervision of Amason and Hendricks. Count 3 sought attorney fees and costs of litigation.

Appellees filed motions for summary judgment on May 23, 2000, to which Anderson responded in opposition. After the January 5, 2001 hearing on the motions for summary judgment, Anderson amended his complaint, for the fourth time, adding claims that appellees had violated Michelle Anderson’s constitutional rights and Barrow County’s safe driving policy. Anderson also dismissed his claims against Hendricks. In response to the fourth amended complaint, appellees filed a second motion for summary judgment on May 8, 2001; Anderson filed a brief in opposition on May 17, 2001, the same day that the trial court granted all of appellees’ motions for summary judgment on all claims except the liability of Barrow County. Barrow County had admitted that Amason’s acts, at the time of the accident, were within the scope of his official duties. After a three-day trial, a jury found in favor of Barrow County on the issue of its liability for Amason’s alleged negligence.

1. Anderson first argues that the trial court erred in finding that Amason was not personally liable and granting his motion for summary judgment. Anderson argues that the trial court failed to recognize that Amason has no official immunity for ministerial acts. Anderson’s argument is without merit.

On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in the light most favorable to the nonmoving party, demonstrates any genuine issue of material fact. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. We will affirm a grant of summary judgment if it is right for any reason.

(Footnotes omitted.) Hot Shot Express v. Assicurazioni Generali, S.P.A.

The trial court held that because Amason’s actions were within the scope of his official duties at the time of the accident, he had no personal liability. Though the trial court’s reasoning is defective, as set forth below, we affirm its grant of summary judgment because it correctly held that Amason was not personally liable. “A summary judgment right for any reason will be affirmed.” Kaylor v. Atwell.

A 1991 amendment to the Georgia Constitution provides that county employees “may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d). “In other words, public officials are immune from damages that result from their performance of discretionary functions, unless those functions were undertaken with malice or intent to cause injury.” Phillips v. Walls. In this case, Anderson does not allege that Amason acted with malice or intent to cause injury. Thus, if the damages complained of arise from discretionary actions, Amason has official immunity; if, on the other hand, the damages arise from the performance or nonperformance of ministerial duties, Amason does not have official immunity. Id. See also Schulze v. DeKalb County . We note that the Georgia Tort Claims Act has no application in this case, as it specifically excludes county employees from its coverage. See OCGA § 50-21-22 (5); Ridley v. Johns.

In Logue v. Wright, a police officer, responding to a call, caused a collision through the negligent operation of his patrol car. We held that “[t]he decision to rush to the scene of the disorder lay within [the officer’s] discretion. He exercised this discretion. The fact that he did so negligently does not place him outside the rule. To say that it did would render the rule meaningless.” Id. We find this reasoning to be equally applicable to a volunteer firefighter who has exercised his discretion in rushing to the scene of an accident. See also Gilbert v. Richardson (holding that officer was performing an official discretionary function when she rushed to back up another officer in response to an emergency call). As in both Logue and Gilbert, the decision to rush to the scene of the accident lay within Amason’s discretion and he exercised his discretion; when the accident occurred, he was performing an official discretionary function. Accordingly, since Amason was acting within the scope of his official duties and was engaged in a discretionary action, and there is no allegation of malice or intent to injure, he is protected by official immunity and was entitled to summary judgment. Harry v. Glynn County .

2. In his second enumeration of error, Anderson asserts that the trial court erred in granting Amason and Barrow County summary judgment on his claim that they violated Barrow County’s safe driving policy. We disagree.

Under Barrow County’s safe driving policy, an employee whose record contains three moving traffic convictions is prohibited from driving a county vehicle. Pointing out that Amason had three traffic convictions on his record, Anderson argued in his fourth amended complaint that Amason’s driving of the county emergency truck and Barrow County’s allowing him to do so in violation of its own safe driving policy were ministerial acts and that Amason did not, as a result, have official immunity. In response, Amason and Barrow County maintained that, because only seven years of driving history are considered in applying the policy and because all of Amason’s convictions occurred over seven years ago, there was no violation of the policy. Both arguments are irrelevant and, in light of the jury’s verdict, moot.

The issue at trial was whether Amason’s driving of the emergency vehicle was negligent and caused Michelle Anderson’s death. The jury concluded that Amason did not act negligently and that Michelle Anderson’s own act of turning into the path of the emergency vehicle was the proximate cause of her death. In the face of the jury’s verdict that Michelle Anderson’s death was not caused by Amason’s driving, Anderson cannot argue that some more remote act, i.e., violation of the safe driving policy, was the proximate cause of her death.

The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery. For this reason, before any negligence, even if proven, can be actionable, that negligence must be the proximate cause of the injuries sued upon. To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant’s conduct and the alleged injury. Conversely, no matter how negligent a party may be, if his act stands in no causal relation to the injury it is not actionable.

(Citations and punctuation omitted.) Bacon v. Mayor &c. of Savannah. The jury concluded that Amason’s actions were not the cause of Michelle Anderson’s death; a fortiori, there was no causal connection between any alleged violation of the county’s safe driving policy and her death.

Anderson also argues that Barrow County waived its sovereign immunity with respect to its violation of the safe driving policy under OCGA § 33-24-51. This contention also lacks merit and is moot.

First, any argument based on violation of the safe driving policy is irrelevant. As explained above, there is simply no causal connection between the accident and any alleged violation of that policy. The jury’s verdict that appellees are not liable also renders this argument moot. Beyond that, OCGA § 33-24-51 (a) provides that a county waives its immunity up to the amount of insurance covering its liability for injury or death “arising by reason of ownership, maintenance, operation, or use of any motor vehicle.” Even if the county’s safe driving policy was violated, that violation did not arise “by reason of ownership, maintenance, operation, or use of any motor vehicle,” but rather by failure to enforce the safe driving policy.

Finally, Anderson argues that the trial court never should have ruled on Amason’s and Barrow County’s second motion for summary judgment because it was untimely in violation of Uniform Superior Court Rule 6.2. This enumeration presents nothing for review, as USCR 6.2 simply requires a response to a motion be filed within 30 days. It does not address the filing of the motion itself. We find no error.

In granting appellees’ second motion for summary judgment, the trial court: (1) found that Anderson’s claim against Barrow County for negligent training, supervision, and entrustment was redundant as a matter of law because Barrow County had admitted that Amason’s acts were within the scope of his employment and thus could be held liable if his acts were found to be negligent; (2) found that Anderson’s claim for punitive damages could not be supported by facts from the record revealed to the court and could not be sustained against Barrow County, a public entity; and (3) rejected Anderson’s claims based on violation of Barrow County’s safe driving policy. Since the jury found that appellees were not liable for the death of Michelle Anderson, the question of whether the trial court erred in granting the second motion for summary judgment also is rendered moot.

Decided June 13, 2002

Reconsideration denied June 27, 2002

Speckhals & Cora, Trent B. Speckhals, Hector R. Cora, for appellant.

Webb, Zschunke, Miller & Dikeman, Edward A. Miller, Matthew T. Allen, Russell, Stell, Smith & McLocklin, John E. Stell, Jr., for appellees.

Moreover, at the pre-trial hearing, Amason and Barrow County indicated that they intended to file a second motion for summary judgment. Anderson objected on the ground that such a motion was untimely. The trial court indicated that orders on both of appellees’ motions for summary judgment would be issued prior to trial. Anderson did not request more time to respond to the second motion. Instead, Anderson responded to appellees’ motion, filing a brief in opposition to the second motion four days before trial. Under these circumstances, Anderson waived any defect as to the timeliness of the granting of the disputed motion for summary judgment. Mobley v. Coast House, Ltd.

Judgment affirmed.

Johnson, P. J, and Miller, J., concur.

        Hot Shot Express v. Assicurazioni Generali, S.P.A., 252 Ga. App. 372, 373 (556 SE2d 475) (2001).

        Kaylor v. Atwell, 251 Ga. App. 270, 272 (2) (553 SE2d 868) (2001).

        Phillips v. Walls, 242 Ga. App. 309, 311 (1) (529 SE2d 626) (2000).

        Schulze v. DeKalb County, 230 Ga. App. 305, 308 (496 SE2d 273) (1998).

        Ridley v. Johns, 274 Ga. 241 (552 SE2d 853) (2001).

        Logue v. Wright, 260 Ga. 206, 208 (1) (392 SE2d 235) (1990).

        Gilbert v. Richardson, 264 Ga. 744, 753 (6) (452 SE2d 476) (1994).

        Harry v. Glynn County, 269 Ga. 503, 505 (2) (501 SE2d 196) (1998).

        Bacon v. Mayor &c. of Savannah, 241 Ga. App. 211, 212-213 (525 SE2d 115) (1999).

        Mobley v. Coast House, Ltd,., 182 Ga. App. 305, 309 (355 SE2d 686) (1987).


author: Miller, Judge.

text:
    A02A0539.
    COLLINS v. BAZAN.
    (568 SE2d 72)
   Miller, Judge.

The trial court entered a permanent protective order under OCGA § 16-5-94 (d) that in part prohibited an alleged stalker from publishing or discussing with any person his former girlfriend’s private medical condition. We hold that the statute does not authorize such a prohibition and therefore reverse that portion of the order. The remainder of the order is affirmed.

Following a breakup with Jeani Bazan, Michael Collins repeatedly contacted her over her objection, leading to a consent temporary protective order that in part prohibited such contact and further prohibited him from publishing or discussing a private medical condition of Bazan with any person. Before the TPO expired, Bazan moved to have Collins held in contempt and further asked that the TPO be converted into a permanent protective order. Following a hearing, the trial court held Collins in contempt and, over objection, entered a permanent protective order that incorporated the terms of the TPO, specifically including the prohibition against publishing or discussing Bazan’s medical condition with others. Challenging only that specific prohibition, Collins on appeal argues that the prohibition violates constitutional principles concerning freedom of speech and overbroadness and further is not authorized by the controlling statute, OCGA § 16-5-94 (d).

1. In the trial court, Collins failed to raise any constitutional objections to the proposed order. “Constitutional issues not raised below are not preserved for appeal. [Cits.]” Norman v. State, 197 Ga. App. 333, 334 (3) (398 SE2d 395) (1990); see Shaw v. State, 225 Ga. App. 193, 194 (2) (483 SE2d 646) (1997); Johnson v. Hames Contracting, 208 Ga. App. 664, 666 (3) (431 SE2d 455) (1993).

2. Collins’s objection below that the prohibition exceeded the scope of the statute was well founded. The statute authorizing the permanent protective order is OCGA § 16-5-94 (d), which provides in pertinent part: “The court may grant a protective order or approve a consent agreement to bring about a cessation of conduct constituting stalking. Orders or agreements may: (1) Direct a party to refrain from such conduct; [and] (2) Order a party to refrain from harassing or interfering with the other. . . .”

Subsection (d) (1) allows a court to prohibit a party from stalking the other party. Stalking is defined as when a party “follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” OCGA § 16-5-90 (a) (1). Publishing or discussing a person’s medical condition with others obviously does not constitute following, placing under surveillance, or contacting that person.

The question therefore is whether the court’s power in subsection (d) (2) to prohibit a party from “harassing or interfering” with the other party authorizes a prohibition against publishing or discussing the other party’s medical condition with third parties. We hold it does not. In construing the stalking statutes so as to find them constitutional, the Supreme Court of Georgia in Johnson v. State, 264 Ga. 590, 592 (1) (449 SE2d 94) (1994), explained that “to the extent that the challenged statutes do proscribe communicative conduct, their restriction is clearly limited to a knowing and willful course of harassment and intimidation, which is not protected expression under the First Amendment.” (Citations and punctuation omitted; emphasis supplied.) Under the stalking statutes, harassment and intimidation refer to conduct that at a minimum places the victim in reasonable fear for her safety or the safety of her immediate family. OCGA § 16-5-90 (a) (1). Thus, under Johnson, OCGA § 16-5-94 (d) (2) can only authorize prohibiting speech that at least places the victim in reasonable fear for her safety or that of her immediate family. Here there was no evidence that publishing or discussing Bazan’s medical condition with others would threaten her or her family’s safety. This author notes that this conduct is extremely insensitive and unacceptable; however, at most knowledge of the condition would be embarrassing to Bazan. Accordingly, the court lacked authority to prohibit Collins from publishing or discussing that condition with others. That portion of the order is therefore reversed, and the remainder (which is unchallenged) is affirmed.

Decided June 13, 2002

Reconsideration denied June 27, 2002

Lohmeier & Lohmeier, Gregory J. Lohmeier, for appellant.

Spruell, Taylor & Associates, Melinda D. Taylor, for appellee.

Judgment affirmed in part and reversed in part.

Blackburn, C. J., and Johnson, P. J, concur.


text:
    A02A0581.
    TACHDJIAN et al. v. PHILLIPS.
    (568 SE2d 64)
   Miller, Judge.

The dispositive issue in this appeal is a matter of contract interpretation. The signatories to a purchase agreement dispute whether the terms expressed in a particular paragraph of their contract constituted solely a right of first refusal, or in addition, created an enforceable option to purchase certain specified realty. Finding the language at issue established only a “right of first refusal” and not an option to purchase, the trial court entered summary judgment in favor of C”. J. Phillips, the property seller. We find the contractual language at issue ambiguous and remand for further proceedings.

After several months of negotiations, Phillips entered into a “Purchase Agreement for Shares of Stock and Real Property” with two buyers, Charles M. Tachdjian and Darryl M. Connors. Tachdjian and Connors agreed to a purchase price of $1,085,000 for American Vans, Inc., a van conversion business. The agreement included an 8.66-acre parcel of land with all improvements thereon as well as Phillips’s company stock and certain business inventory, equipment, and assets.

Paragraph 18 of the purchase agreement entitled “RIGHT OF FIRST REFUSAL” forms the centerpiece of the underlying controversy. In its entirety, Paragraph 18 provides as follows:

C. J. [Phillips] grants to the buyers a right of first refusal for a period of two (2) years after the closing date on either of the following tracts of land with the improvements located thereon: (a) the home place of C. J. and Betty Phillips including their cabin and all land located adjacent to the 8.66 acres described in paragraph 1 above. For a period of ninety days from the date of closing, the price of the home place including their cabin and all land located adjacent to the 8.66 acres described in paragraph 1 shall be four hundred twenty-five thousand ($425,000) dollars, payable One Hundred Thousand Dollars ($100,000) down, and the balance amortized over 10 years, payable in equal monthly payments, plus interest at the rate of Seven Percent (7%) per annum. Thereafter the price of the property shall be negotiated between the parties; (b) five (5) acres of land, more or less, located below the company’s present complex adjoining the complex on East Jones Chapel Road. The price of the land shall be three thousand, five hundred ($3,500) dollars per acre.

The closing occurred on November 30, 1998, and Tachdjian and Connors purchased the stock and assets of American Vans including the 8.66 acres that contained the manufacturing compound. On February 10, 1999, within 90 days of the closing date, Tachdjian and Connors through counsel notified Phillips of their intent to “exercise their option” under Paragraph 18 (a) of the purchase agreement. By certified letter counsel for Tachdjian and Connors notified Phillips of their intent to exercise the option to purchase Phillips’s home, cabin, and land adjacent to the 8.66 acres previously purchased. Phillips refused to convey the property described in subsection (a) of Paragraph 18 of-the purchase agreement. Instead, about five days after the notice letter, on February 15, 1999, Phillips filed suit against Tachdjian and Connors, alleging certain contract breaches. Tachdjian and Connors answered and counterclaimed. As required by the contract, the disputed issues were submitted to nonbinding mediation.

After mediation, the only issue remaining was the enforceability of Paragraph 18 of the purchase agreement, which formed the basis of Count 4 of Tachdjian and Connors’s counterclaim. Count 4 sought specific performance of Paragraph 18 (a) on the exercise of the option for sale of the home place. As to that count, Tachdjian and Connors filed for summary judgment, and Phillips sought judgment on the pleadings. Tachdjian and Connors submitted their own affidavits. Tachdjian testified that Phillips’s offer to sell the house, cabin, and lake acreage was “to sweeten the deal.” According to Tachdjian, the parties’ negotiations for the business included negotiations for the home place property. Attached to his affidavit were copies of facsimiles and correspondence exchanged with Phillips. Tachdjian testified that the 90-day option to purchase the home place “was an important part of the consideration given to me and Darryl Connors in order to induce us to purchase the [business and assets] for the price we paid.” Connors testified to the same. According to Connors, during negotiations Phillips agreed to the 90-day option to buy the property for $425,000 and reiterated the same during the closing.

By affidavit, Phillips disputed that he had agreed to a 90-day purchase option. Phillips testified that “[b]y the time Mr. Tachdjian, Mr. Connors and I signed the Purchase Agreement on November 2 . and 13,1998, as part of the negotiations, I had dropped the sale price of my business and my wife, Betty Phillips, had decided she did not want to sell our house.” Phillips testified, “[s]o in the Purchase Agreement I only gave Mr. Tachdjian and Mr. Connors the right of first refusal to buy my house.”

The trial court denied Tachdjian and Connors’s motion for summary judgment and awarded summary judgment to Phillips. The trial court decided as a matter of law that “Paragraph 18 of the agreement between the parties established a ‘right of first refusal’ and not an option to purchase.” Noting that all other issues had been settled through mediation, and finding that no material issues of fact remained for jury resolution, the trial court entered summary judgment in favor of Phillips. This appeal followed.

Tachdjian and Connors contend that the trial court erred in ruling as a matter of law that the language in Paragraph 18 did not constitute an option to purchase real estate. They further assert that the trial court erred in granting summary judgment to Phillips by ruling as a matter of law that the language in Paragraph 18 was a right of first refusal.

On appeal, this Court reviews questions of law de novo. Sagon Motorhomes v. Southtrust Bank &c., 225 Ga. App. 348, 349 (484 SE2d 21) (1997). The trial court must decide if the contract language is ambiguous; if it is, the trial court must apply the applicable rules of construction. Gram Corp. v. Wilkinson, 210 Ga. App. 680 (1) (437 SE2d 341) (1993). OCGA § 13-2-2 sets forth the rules for interpreting contracts generally. “The existence or non-existence of an ambiguity is itself a question of law for the court.” Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (2) (381 SE2d 322) (1989). A word or phrase is ambiguous when it is of uncertain meaning and may be fairly understood in more ways than one. Id. “In extreme cases of ambiguity, where the instrument as it stands is without meaning, words may be supplied.” OCGA § 13-2-2 (6). If after applying the statutory rules for construing a contract, we determine that an ambiguity still remains, we remand the matter to allow a jury to resolve the ambiguity. Nobel Lodging v. Holiday Hospitality Franchising, 249 Ga. App. 497, 498 (1) (548 SE2d 481) (2001). With these rules in mind, we examine the contractual provisions in dispute.

By definition, a “right of first refusal” means “[the] [r]ight to meet terms of [a] proposed contract before it is executed; e.g. right to have [the] first opportunity to purchase real estate when such becomes available, or [the] right to meet any other offer.” Black’s Law Dictionary (6th ed. 1990). An option, however, is defined as “a contract by which the owner of property agrees with another that the latter shall have the right to buy the owner’s property at a fixed price, within a certain time, and on agreed terms and conditions.” (Citations omitted.) Mattox v. West, 194 Ga. 310, 314 (1) (21 SE2d 428) (1942). An option requires: (1) an agreement conferring a right to buy, (2) certain described property, (3) within a fixed period of time, and (4) at a stated price. Brown v. Mathis, 201 Ga. 740, 745 (41 SE2d 137) (1947).

Even assuming without deciding that the first sentence in Paragraph 18 as well as subparagraph (b) grants a right of first refusal for two years, the meaning of the balance of the paragraph remains for interpretation. Subparagraph (a) provides as follows: “[f]or a period of ninety days from the date of closing, the price of the home place including the cabin and all land located adjacent to the 8.66 acres . . . shall be four hundred twenty-five thousand ($425,000) dollars, payable . . . $100,000 down, and the balance amortized over 10 years . . . at. . . Seven Percent (7%) per annum.” (Punctuation omitted; emphasis supplied.) Subparagraph (a) continues: “[<thereafter the price of the property shall be negotiated between the parties.” (Emphasis supplied.)

Subparagraph (a) of Paragraph 18 appears to contain all of the elements of an option: (1) an agreement by the owner, Phillips, giving a right to the buyers, Tachdjian and Connors, (2) to the property described as the home place, i.e., the property immediately adjacent to the 8.66 acres of the business property, (3) within the fixed time of 90 days of November 30, 1998, and (4) at the agreed terms of a price of $425,000, a $100,000 down payment, with the balance amortized over ten years at seven percent. See Brown, supra, 201 Ga. at 745. Nevertheless, Paragraph 18 does not state that Phillips grants Tachdjian and Connors an unqualified right to buy or confers upon them the right to purchase the described property on the terms and conditions provided. Rather, it states that “C. J. [Phillips] grants the buyers a right of first refusal,” which implies that they have the right to buy the property only if it is offered for sale to others. While the missing unqualified option language may be inferred, the absence of such language leaves the meaning ambiguous, particularly since the paragraph does not state how any such option would be exercised.

Notwithstanding Phillips’s claim to the contrary, the peculiar phrasing at issue also lacks the language ordinarily used to create a “right of first refusal,” because it makes no mention of an offer by a third party, the property owner’s decision to sell, or any triggering event. See Hamil v. Stanford, 264 Ga. 801 (1) (449 SE2d 118) (1994) (right of first refusal if and when the home was put up for sale); Hewatt v. Leppert, 259 Ga. 112-113 (376 SE2d 883) (1989) (right of first refusal to match the conditions of a third party’s “acceptable offer”); Hornsby v. Holt, 257 Ga. 341, 343 (2) (359 SE2d 646) (1987) (right of first refusal only if owner of property elected to sell the land).

“In Georgia, the law makes clear that if a right of first refusal is to be complete, the parties must supply the triggering term by agreement that informs the parties when such right is operative.” Booker v. Hall, 248 Ga. App. 639, 642 (1) (a) (548 SE2d 391) (2001). Here, although the subparagraph specifies when this so-called “right of first refusal” will expire, it fails to specify how such right would be triggered. Compare Bridges v. City of Moultrie, 210 Ga. App. 697, 698 (437 SE2d 368) (1993) (right of first refusal to purchase parcel in the event railroad or its successors ceased to operate a railroad on the adjoining tracks); see Oglethorpe Power Corp. v. Hartwell Energy Ltd. Partnership, 244 Ga. App. 859, 860 (537 SE2d 372) (2000) (right of first refusal in the event that the partnership or one of its affiliates desired to sell a “transfer interest”). But, while subparagraph (a) specifies the price, describes the property, requires a down payment of $100,000, and provides the terms for financing the purchase, if Phillips had no intention whatsoever of selling the property, as he testified, such specificity may be nonsensical, unless perhaps such was to be the purchase price if he decided to offer the property for sale during the 90-day period.

“The law favors a construction that will uphold the contract as a whole, and the whole contract should be looked to in arriving at the construction of any part.” (Footnote omitted.) Thornton v. Kumar, 240 Ga. App. 897, 898-899 (525 SE2d 735) (1999). It is axiomatic that “[w]e should avoid any construction that renders portions of the contract language meaningless.” (Footnote omitted.) Deep Six v. Aberna thy, 246 Ga. App. 71, 74 (2) (538 SE2d 886) (2000). Here, the language at issue in Paragraph 18 is ambiguous and open to more than one interpretation regarding Tachdjian and Connors’s rights to purchase the home place property. See Thornton, supra, 240 Ga. App. at 898-899. Although Phillips testified that he did not understand Paragraph 18 (a) to mean that he had granted an enforceable 90-day purchase option to the buyers, Tachdjian and Connors testified that they had the contrary understanding. While parol evidence is admissible to explain ambiguities, the question as to what was intended here is an issue of fact for the jury to resolve. Sharple v. AirTouch Cellular &c., 250 Ga. App. 216, 218 (551 SE2d 87) (2001). Upon remand, in the event the jury should determine that Tachdjian and Connors obtained a 90-day option, then the trial court must enforce such option according to the terms of the agreement. Hasty v. Health Svc. Centers, 258 Ga. 625, 626 (373 SE2d 356) (1988) (holder of option can compel unwilling party to sell property). If the jury finds that the parties intended a right of first refusal (to be triggered by Phillips offering the property for sale), then Phillips must prevail.

Decided June 12, 2002

Reconsideration denied June 27, 2002

Graham & Associates, Victor Y. Johnson, Alan M. Alexander, Jr. , for appellants.

Barry L. Fitzpatrick, for appellee.

Judgment reversed and case remanded with direction.

Blackburn, C. J., and Johnson, P. J., concur.


text:
    A02A0695.
    CORNELIUS et al. v. NUVELL FINANCIAL SERVICES CORPORATION et al.
    (568 SE2d 82)
   Miller, Judge.

James and Brenda Cornelius, plaintiffs below and formerly husband and wife, appeal the trial court’s order (1) granting summary judgment to Nuvell Financial Services Corporation, Georgia Recovery, Inc., and Associates Recovery, Inc., and (2) denying a motion for a default judgment against K&B Unlimited Services, Inc. They contend that the trial court erred in finding no genuine issue as to any material fact with respect to their claim that defendants committed tortious acts against plaintiffs by unsuccessfully seeking to repossess a certain vehicle. Discerning no error, we affirm.

In August 1996, Brenda and her son entered into a retail installment contract and security agreement with an automobile dealer providing for the sale of a new car in exchange for a trade-in, down payment, and 60 monthly payments. Nuvell serviced the contract. When the account became 62 days past due, Nuvell hired a company to repossess the vehicle. After that attempt at repossession was unsuccessful, Nuvell hired K&B to repossess the vehicle. K&B was likewise unsuccessful, leading to Nuvell’s hiring Associates Recovery, which was also unsuccessful. The vehicle remains in James Cornelius’s possession to this day.

During their attempts to repossess the vehicle, the recovery companies all unsuccessfully attempted to persuade the Cornelius family to disclose the whereabouts of the vehicle. Unhappy with these attempts, plaintiffs brought suit against Nuvell, Georgia Recovery (whose role in the attempted repossessions is unclear), Associates Recovery, and K&B, alleging breach of contract, false efforts to repossess, and harassing conduct by the defendants.

1. Appellants argue that the defendants breached the financing agreement and thereby also committed a “quasi tort.” As we discern no facts supporting this claim, we disagree.

Plaintiffs submitted no evidence sufficient to create a jury issue on this first claim. See Hansen v. Cooper, 253 Ga. App. 533, 535 (559 SE2d 740) (2002). Nothing in Brenda’s or James’s affidavit testimony suggests a factual basis for a claim of either breach of contract or any “quasi tort.” In Brenda’s deposition, she simply states that the contract was breached in that the defendants allegedly knew that her husband James, not she, was responsible for making the payments and that they harassed her nevertheless. She apparently had the understanding with James and their son that James would make the payments, which understanding she claims to have passed on to the defendants.

Inasmuch as this understanding conflicts with the express terms of the contract (which obligate her to make the payments), no breach of contract or tort claim could arise therefrom. Indeed, the contract states that “[a]ny change in the terms of this contract must be in writing and signed by the Creditor. No oral changes are binding.” Nor does she assert the creditor agreed to any changes.

The plaintiffs’ evidence is insufficient to create a jury issue as to whether Nuvell — or any defendant — breached the contract or committed a “quasi tort” under the contract. Accordingly, we hold that the trial court did not err in granting summary judgment to defendants on this claim.

2. The complaint also alleged that defendants committed tortious acts against plaintiffs by (a) falsely seeking to repossess the vehicle, and (b) threatening plaintiffs with arrest despite the fact that the vehicle was not in the possession of the particular party at the house at the time the threats were made.

(a) The false repossession claim rests on the defendants’ trying to repossess property from Brenda that she “did not have.” No cause of action exists under Georgia law for such efforts, particularly where Brenda was the obligor on the financing agreement.

(b) With respect to the other allegation, former OCGA § 11-9-503 (revised and renumbered, effective July 1, 2001, as OCGA § 11-9-609) provides that, unless otherwise agreed, a secured party may after default take possession of the collateral without judicial process if that can be done without breach of the peace. Here the contract expressly provided that upon default, the creditor could repossess the vehicle. Accordingly, the question becomes whether the plaintiffs produced evidence sufficient to create a jury issue on any breach of the peace by the defendants.

Hopkins v. First Union Bank &c., 193 Ga. App. 109, 110 (1) (387 SE2d 144) (1989), defines “breach of the peace” in this context:

A breach of the peace may consist of either actual physical force or constructive force, such as threats of violence or intimidation to compel the submission of a debtor against his will to the appropriation of what he construes to be his property. Thus, for example a threat of violence or an act likely to produce violence may constitute such a breach. Moreover, under our criminal law, abusive and insulting language [“fighting words”] constitutes a breach of the peace if there is an accompanying incitement to immediate violence. We further agree with most courts which find a breach of peace by any creditor who repossesses over the unequivocal oral protest of the defaulting debtor.

(Citations and punctuation omitted; emphasis in original.) See also Deavers v. Standridge, 144 Ga. App. 673, 675 (1) (242 SE2d 331) (1978).

Here Brenda testified that defendants (a) threatened her with “great trouble against me and my family, especially that they would obtain a criminal warrant and have me, James Cornelius, and other members of my family arrested and confined in a penal institution” and (b) verbally abused her by making frequent “rude” phone calls to her and demanding to know where the vehicle was located. (Emphasis in original.) She complained that at one point they briefly blocked her driveway to find the vehicle, but conceded that they moved at her request. James testified that he also received threatening telephone calls, including that the caller “was going to lock people up.”

Since no violence or undue intimidation was threatened or committed, and no repossession even occurred, the foregoing evidence was insufficient to create a jury issue as to breach of the peace under the standards of Hopkins and Beavers. The trial court did not err in granting summary judgment on this claim.

Decided June 13, 2002

Reconsideration denied June 27, 2002.

Brenda F. Cornelius, pro se.

James Cornelius, pro se.

McLanahan & Comolli, John M. Comolli, Kenney & Solomon, Thomas S. Kenney, Hicks, Casey & Barber, Ann V. Holmes, Richard C. Foster, Levine & Block, Stephen H. Block, Bebra Warren, McCullough & Payne, John G. McCullough, for appellees.

3. Finally, James and Brenda contend that the trial court erred in denying their motion for a default judgment against K&B. James admitted at the hearing on the defendants’ motions for summary judgment that he attempted service on K&B merely by serving the Secretary of State. This is improper without a showing of inability to serve one of the corporate representatives specified in OCGA § 9-11-4 (e) (1). Accordingly, we hold that the trial court did not err in denying the motion for a default judgment against K&B.

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.


author: Mikell, Judge.

text:
    A02A0727.
    JOHNSON et al. v. AURORA LOAN SERVICES, INC.
    (568 SE2d 84)
   Mikell, Judge.

In this appeal, we affirm the order granting a writ of possession to Aurora Loan Services, Inc. because the appellants have failed to carry their burden of proving error.

1. We first address Aurora’s motion to dismiss this appeal. Contrary to Aurora’s assertion, appellants have properly invoked this Court’s jurisdiction. The record contains an appealable order, namely, the writ of possession entered on October 9, 2001. Moreover, appellants’ notice of appeal was timely filed within seven days after the writ was entered. See OCGA § 44-7-56. Accordingly, Aurora’s motion to dismiss is denied.

2. Appellants argue that the writ of possession should be dismissed. However, their pro se appellate brief contains no enumeration of errors, legal argument, or citation of authorities. Nor does the brief challenge any ruling of the trial court. Appellants merely recount certain facts leading to the foreclosure of their home. Since we are a court of law for the correction of legal errors committed by the trial court, appellants’ factual assertions present nothing for review. Lowe v. Brook Property, 241 Ga. App. 840 (528 SE2d 284) (2000). Moreover, while a hearing was held on appellants’ motion for an emergency stay of foreclosure, appellants failed to provide this Court with a transcript of the proceedings. The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, we must assume that the trial court’s judgment below was correct and affirm. Floyd v. Glover, 251 Ga. App. 168 (554 SE2d 207) (2001).

Decided June 13, 2002

Reconsideration denied June 27,2002

Christopher J. McFadden, for appellants.

Isaac W. Johnson, pro se.

Campbell, Martin & Manley, David B. Manley III, Richard C. Taylor, for appellee.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       See OCGA § 5-6-40; Court of Appeals Rules 22 (a) and 27.

       Appellants’ attachments to their brief cannot be considered. Attachments to the briefs do not constitute evidence and are insufficient to establish facts. Hall County School Dist. v. C. Robert Beals & Assoc., 231 Ga. App. 492, 493 (498 SE2d 72) (1998).


author: Pope, Presiding Judge.

text:
    A02A0072.
    RAZA v. SWISS SUPPLY DIRECT, INC. et al.
    (568 SE2d 102)
   Pope, Presiding Judge.

The trial court granted partial summary judgment to plaintiff Swiss Supply Direct, Inc. and against defendant Ali Raza. For the following reasons, we affirm the court’s grant of partial summary judgment, but we reverse the court’s dismissal of Raza’s counterclaim against Swiss Supply.

Swiss Supply is a Florida business which sells rare watches and jewelry to dealers and to the general public. The president of Swiss Supply is Melvyn Franks. On December 22, 1999, Franks went to defendant Raza’s house in Georgia to deliver various watches and jewelry. The men agreed that the price for the items would be $227,250. Franks prepared two invoices to reflect this agreement; both documents were signed by Raza and Franks.

Raza took the watches and jewelry and gave two checks, payable to Swiss Supply, to Franks. The checks, dated December 22, 1999, totaled $227,250. Within 30 days of receiving the checks, Franks tried to negotiate both and they were dishonored.

Initially Raza admitted that he owed the money for the watches and jewelry. The record contains three letters in which Raza acknowledged the debt. Furthermore, Franks initiated criminal proceedings against Raza, and in sworn testimony from the criminal case, Raza conceded that he owed the money and that he planned to pay it back.

On August 28, 2000, when Raza had not repaid the money after more than eight months, Swiss Supply sued him in five counts, including breach of contract and fraud. In essence Franks claimed that Raza had given him worthless checks and that he had consistently failed to make good on his promises to repay him. Raza filed a counterclaim, seeking his attorney fees under OCGA § 13-6-11 for defending the action. Raza admitted receiving the watches and jewelry from Franks, but claimed that Franks had agreed to hold the checks until he sold the jewelry. Raza claimed that the jewelry was stolen from him and that he had told Franks that it would be necessary for him to sell property in order to repay the debt.

In December 2000, Raza filed a motion for leave to amend his answer and counterclaim and to add Franks and Rebecca Nachlas, the owners and operators of Swiss Supply, as additional parties, asserting claims of malicious prosecution, intentional infliction of emotional distress and Racketeer Influenced and Corrupt Organizations (RICO) Act violations. With the motion, Raza filed his proposed recast answer and counterclaim. On January 25, 2001, the court granted Raza’s motion to file the pleading.

Swiss Supply filed its motion for partial summary judgment as to the $227,250, plus interest, which it claimed Raza owed. It also sought summary judgment on Raza’s counterclaim. Included with the materials which Swiss Supply filed was Franks’ affidavit in which he denied that there had been an agreement, as Raza claimed, that Franks wait to cash the checks.

On February 2, 2001, Raza filed his amended, recast and consolidated answer and counterclaim, claiming that he was entitled to receive damages from “the plaintiffs” for malicious prosecution, intentional infliction of emotional distress and civil RICO violations. On February 21, 2001, he amended the counterclaim again and specifically stated that Swiss Supply was jointly and severally liable for the claims in that pleading. The court granted Swiss Supply’s motion for partial summary judgment on March 6, 2001.

1. In his first enumeration of error, Raza claims that the court erred in granting summary judgment because certain oral agreements regarding the checks were admissible and because he was not a holder in due course under the Uniform Commercial Code. Raza claims that the arrangement was a “consignment deal” and that he gave the checks to Franks as good faith collateral. As the trial court determined, these arguments lack merit.

Pretermitting the issues addressed in Mason v. Blayton, 119 Ga. App. 203, 205 (166 SE2d 601) (1969), Raza has admitted under oath that he owed the money, and the trial court correctly construed this contradictory testimony against him. As stated above, the record contains one letter from Raza in which he promises to repay Franks and two more letters in which he outlines the terms of his plan for repayment. In fact, in Raza’s affidavit filed in this case, he does not dispute the payment, but argues that Franks was to hold the checks until January 15, 2000. The superior court did not err in rejecting Raza’s arguments and entering summary judgment in Swiss Supply’s favor.

2. Secondly, Raza argues that the court erred in determining that no counterclaim remained pending against Swiss Supply after the grant of the motion for summary judgment. The court concluded that Raza’s claims for malicious prosecution, intentional infliction of emotional distress and RICO violations were made solely against Franks and Nachlas and not against Swiss Supply, and that the only claim that remained pending against Swiss Supply was for reasonable attorney fees. In the absence of the underlying substantive action, the court reasoned, it was also necessary to grant summary judgment on this claim. Here, Raza argues that his amended, recast and consolidated answer and counterclaim alleged that all of the acts were done by the individuals as agents of the corporate defendant, and that all the claims were asserted jointly and severally against all of the defendants.

On this point, we agree with Raza. A review of the record shows that the court allowed Raza to file an amended, recast and consolidated answer and counterclaim and that he filed this pleading on February 2, 2001, asserting his new claims. In the answer portion of the pleading Raza generally asserted that he was entitled to receive damages from “the plaintiffs” for malicious prosecution, intentional infliction of emotional distress, consequential damages and civil RICO violations. He referred to the “wrongful and illegal acts” which the “Plaintiff and Mr. Franks and Ms. Nachlas” had perpetrated against him and claimed that he was entitled to a set-off of the amount he originally owed and to additional awards of money damages. He also alleged that he was entitled to punitive damages from “the Plaintiff, Mr. Franks and Ms. Nachlas.” He further asserted that “the Plaintiff, Mr. Franks and Ms. Nachlas” acted in bad faith and were stubbornly litigious against him and that he was entitled to recover from them the expenses of his litigation and reasonable attorney fees.

In the counterclaim portion of the pleading, Raza claimed that defendants Franks and Nachlas were officers and owners of Swiss Supply and that Swiss Supply had submitted itself to the court’s jurisdiction by bringing the action. Raza then set forth several pages of the particular actions of Franks and Nachlas which he claimed entitled him to relief. Raza then alleged again that the “defendants” maliciously prosecuted him, caused him to suffer severe emotional distress and to incur substantial attorney fees. He incorporated in the counterclaim the allegations contained in the answer portion and then set forth his claims of damages, including those for punitive damages arising from alleged violations of the Georgia RICO Act. He then set forth a prayer for relief against the “Defendants in Counterclaim,” alleging damages for each of the torts he claimed were committed against him.

“Insofar as general rules of pleading are concerned, a counterclaim stands upon the same footing as an original claim.” Grant v. Fourth Nat. Bank &c., 229 Ga. 855, 859 (1) (194 SE2d 913) (1972). To this end, OCGA § 9-11-8 (a) (2) provides:

any pleading which sets forth a claim for relief, whether an original claim, counterclaim, a cross-claim, or a third-party claim, shall contain: (A) A short and plain statement of the claims showing that the pleader is entitled to relief; and (B) A demand for judgment for the relief to which the pleader deems himself entitled.

With respect to the broad construction of pleadings, OCGA § 9-11-8 (f) states: “[a]ll pleadings shall be so construed as to do substantial justice.” And in reviewing the sufficiency of this notice pleading

the rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in her favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.

(Citation and punctuation omitted.) Corley v. Lewis, 221 Ga. App. 540, 542 (472 SE2d 109) (1996).

Using these rules of construction, we conclude that the trial court erred in dismissing Raza’s counterclaim on the basis that he had failed to assert claims against Swiss Supply.

Decided June 27, 2002.

Lynwood D. Jordan, Jr., for appellant.

Banks, Stubbs, Neville & Cunat, John R. Neville, for appellees.

Because of our conclusion, we also find that the trial court’s decision regarding Raza’s claim for attorney fees under OCGA § 13-6-11 was incorrect. See Steele v. Russell, 262 Ga. 651 (2) (424 SE2d 272) (1993) (“[t]hese damages are available to a defendant only where the defendant has brought a counterclaim asserting a claim for relief wholly independent of any assertion as to plaintiff’s bad faith, litigiousness, and/or harassment in bringing the underlying action”).

Of course, our determination here signifies nothing regarding the merit of Raza’s claims. And, despite our conclusion that the court erred in concluding that Raza had no viable counterclaim against Swiss Supply, this outcome does not affect the propriety or finality of the court’s entry of partial summary judgment on Swiss Supply’s motion. See OCGA §§ 9-11-54 (b); 9-11-13 (i); Coxwell Tractor &c. Sales v. Burgess, 192 Ga. App. 663, 664 (2) (385 SE2d 753) (1989).

Judgment affirmed in part and reversed in part.

Ruffin and Barnes, JJ., concur.

       In reaching this conclusion, we do not analyze the sufficiency of Raza’s claim after he filed his “First Amendment to Recast and Consolidated Answer and Counterclaims of Defendant.” See generally Feifer v. Reliance Kitchens, USA, 189 Ga. App. 653, 654 (4) (377 SE2d 28) (1988); Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 393 (3) (469 SE2d 469) (1996).


author: Ruffin, Judge.

text:
    A02A0208.
    SPOONER v. CITY OF CAMILLA. SPOONER et al. v. CITY OF CAMILLA.
    A02A0209.
    (568 SE2d 109)
   Ruffin, Judge.

Thirteen-year-old Ronald Butler drowned in a body of water located on property owned by the City of Camilla. Susie Spooner, temporary administratrix of the estate, sued the City on behalf of Ronald. In a separate action, Roy Walker, Ronald’s father, brought a wrongful death suit against the City. The City moved for summary judgment in both actions, which the trial court granted. In Case No. A02A0208, Spooner appeals. In Case No. A02A0209, Walker appeals. As Spooner and Walker (collectively the “appellants”) raise identical issues, we have consolidated the cases on appeal. For reasons that follow, we affirm.

1. Before addressing the merits of the appeals, we first address appellants’ violations of this Court’s rules. The attorneys for Spooner and Walker filed two identical briefs, alleging fourteen enumerations of error. Pursuant to Court of Appeals Rule 27 (c) (1), the sequence of arguments in the briefs should follow the order of the enumerations of error and be numbered accordingly. Here, however, the appellants’ briefs contain only three argument sections, which bear no resemblance to the errors as enumerated.

“Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court.” By ignoring our rules, appellants’ lawyers have made our task infinitely more difficult. Moreover, counsel have done a disservice to their clients by creating a risk that arguments will be deemed unsupported and, therefore, abandoned. Nonetheless, we will, to the best of our ability, attempt to discern those arguments that have been supported with argument and citation of authority.

2. On appeal of a trial court’s grant of summary judgment, we conduct a de novo review. In so doing, “we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.” We will affirm if the evidence demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.

Viewed in this light, the evidence demonstrates that the City acquired approximately 30 acres of land for industrial development. The land contained a pond and a pecan grove. The City also leased out part of the land for farming. At some point in the mid-1990s, the City began excavating dirt from the site for use in various building projects, which created a pit that filled with water.

On June 23, 1998, 13-year-old Ronald was playing with several boys, including his brother, Roger Walker. Spooner, Ronald’s aunt and guardian, testified that the boys “wanted to go to the pool. I had talked a whole hour with them concerning swimming that morning. I said T would let [Roger] and Little Eric go because [you] can swim, but Ronald [does] not know how.’ ” According to Spooner, Ronald knew he could not swim and was present when she told the boys not to go to the pool.

Later that day, while the boys were riding their bikes, Ronald announced that he wanted to learn how to swim. Ronald, who was following the other boys as they cycled past the dirt road leading to the mining pit, veered away from the boys and headed toward the pit. The boys followed Ronald, yelling at him: “Don’t jump in.” As Ronald neared the mining pit, he left his bike and jumped into the water-filled pit. Unable to swim, he drowned. Although the other boys tried to save Ronald, they could not.

Spooner, as administratrix of Ronald’s estate, sued the City, alleging that the “artificial pondsite” posed an unreasonable risk of harm to young children. According to the complaint, the City was liable for failing to erect any barricades or post any warning signs to prevent such accidents. In a separate action, Roy Walker alleged the City was liable for creating a nuisance and for failing to erect any barricades or warning signs.

The City moved for summary judgment on both actions. In both cases, the trial court issued virtually identical orders granting summary judgment in favor of the City. Specifically, the trial court concluded that: (1) Ronald assumed the risk; (2) the appellants failed to establish the pit was a public nuisance; (3) the City’s negligence, if any, was not the proximate cause of Ronald’s death; (4) the City breached no duty; and (5) the claim was barred by the Recreational Property Act.

(a) Negligence. On appeal, Spooner and Walker contend the trial court erred in finding, as a matter of law, that Ronald assumed the risk by juiftping into the mining pit, knowing that he could not swim. They contend that, given Ronald’s age, whether he appreciated the risks involved was a jury issue. We disagree.

To establish assumption of the risk, the City must show that: “(1) [Ronald] had . . . actual knowledge of the danger; (2) he understood and appreciated the risks associated with the danger; and (3) he voluntarily exposed himself to the danger.” Here, the undisputed evidence shows that Ronald knew the pit was filled with water and that he could not swim, yet he chose to jump into the water. In so doing, he assumed the risk.

Appellants argue that, as a child under the age of 14, Ronald cannot have assumed the risk as a matter of law. It is true that, as a general rule, assumption of the risk is a jury issue. In plain and palpable cases, however, the issue may be decided as a matter of law, even if the case involves a child under the age of 14. “As to a child between the ages of seven and fourteen, there is no presumption that the child did or did not exercise due care or does or does not have sufficient capacity to recognize danger or to observe due care.” Rather, “these issues hinge on the circumstances.” But there is no legal “bar to applying assumption of the risk, as a matter of law, to the conduct of a child between these ages when the evidence shows that the danger was obvious, that the child knew of the danger and was able to appreciate the risks associated with it, and the child voluntarily chose to run the risk.”

As mentioned above, Ronald voluntarily jumped into a body of water despite knowing he could not swim. “[T]he dangers associated with fire, falling from heights, and from water are said to be normally understood by young children absent other factors creating additional risks of harm.” The appellants assert that Ronald should not be charged with such knowledge because he was “slow in school.” However, there is no evidence to support appellants’ implicit contention that 13-year-old Ronald was so “slow” that he could not grasp the inherent danger of water, which is generally understood even by very young children. To the contrary, Spooner characterized him as an “intelligent,” “perfectly normal boy,” who was capable of understanding what he was told. It follows that Ronald was capable of appreciating the risks associated with jumping into water, especially after having been told that very day that he could not go to the pool because he could not swim.

Appellants suggest that a jury issue exists because this was not a natural pond, but a man-made mining pit of an unknown depth. This distinction does not alter the result. The fact that the water-filled pit resulted from an excavation does not obviate the fact that it was a body of water. “The artificial character of the water hazard has no bearing on liability or nonliability.” Moreover, the fact that such artificial pond has a deep hole or is muddy does not change the analysis.

Under these circumstances, the trial court did not err in concluding that Ronald assumed the risk as a matter of law. And assumption of the risk serves as a complete defense to a claim of negligence. It follows that the appellants’ remaining enumerations of error relating to their negligence claims are moot.

(b) Nuisance. Appellants contend that the trial court erred in granting summary judgment on their, nuisance claim. It is well settled “that [a] municipal corporation, like any other individual or private corporation, may be held liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or municipal function.” Although the existence of a nuisance is generally a question of fact, under some scenarios, a court can determine as a matter of law that no nuisance exists.

Georgia courts have long held that “[t]he attractive nuisance doctrine does not apply to ponds or other water hazards.” And landowners, as a general rule, are “under no obligation to erect barriers or take other precautions to prevent [children] from being injured thereby.” Here, however, appellants argue that the mining pit was not an attractive nuisance, but a general nuisance. Under this theory, a municipality may be liable for nuisance if the following three conditions are met: (1) the defect or degree of misfeasance rose to a level exceeding that of mere negligence; (2) the act or misfeasance was of some duration and continuous or regularly repetitious; and (3) the City failed to act within a reasonable time after knowledge of the defect or dangerous condition.

Appellants assert that all three criteria have been met. Pretermitting whether the first two have been met, we find the third has not been met as a matter of law. The crux of appellants’ complaint is that the City knew of this water-filled hazard, yet failed to erect some kind of barricade or warning signs. However, as set forth in the attractive nuisance doctrine, landowners are permitted to maintain ponds — either natural or artificial — on their property without erecting fences or barricades. Thus, the City had no duty to act in the manner suggested by the appellants, and it cannot be held liable for failing to do so. It follows that the trial court did not err in granting summary judgment in favor of the City on appellants’ nuisance claim.

Decided June 27, 2002.

Yearout, Myers & Traylor, W. P. Traylor III, Robert M. Margeson III, for appellants.

Alexander & Vann, William C. Sanders, for appellee.

The appellants argue that the City had a legal duty to “put up fencing and warning signs” because the pit was the result of surface mining and that the City’s failure to do so was negligence per se. According to the appellants, both state and federal law requires the City to obtain a permit and erect barriers around such mining pits. The appellants cite to OCGA § 12-4-75, which sets forth the requirements for obtaining mining permits, but does not require either fencing or warning signs around mines. In further support of their argument, the appellants point to the deposition of their expert, who testified that he read “[v]arious rules and regulations” and spoke to certain public officials before determining that the law requires that mines be barricaded. However, the appellants cite no specific statute, rule, or regulation that imposes a duty to either warn of or barricade mines. And the expert’s testimony that such rule exists is hearsay, which lacks probative value. Accordingly, appellants’ negligence per se argument fails.

3. In view of our holding in Divisions 1 and 2, appellants’ remaining arguments are rendered moot.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       Evidently, Ronald lived with the Spooners, who are listed as parties to the wrongful death action. However, the Spooners were not Ronald’s adoptive parents, and the trial court granted the City’s motion for summary judgment on their claims in the wrongful death action. See OCGA § 19-7-1 (c) (2) (B). Accordingly, notwithstanding the caption, Walker is the only plaintiff in the wrongful death claim.

       (Punctuation omitted.) Bennett v. Moody, 225 Ga. App. 95, 96 (483 SE2d 350) (1997).

       See Thompson v. City of Fitzgerald, 248 Ga. App. 725 (548 SE2d 368) (2001).

        Herron v. Hollis, 248 Ga. App. 194, 195 (546 SE2d 17) (2001).

       See Thompson, supra.

       See OCGA § 51-3-20 et seq.

        Sayed v. Azizullah, 238 Ga. App. 642, 644 (519 SE2d 732) (1999).

       See id. at 645.

       See Stewart v. Harvard, 239 Ga. App. 388, 396 (4) (b) (520 SE2d 752) (1999).

       See id. at 396-397 (4) (b).

       Id.

       Id. at 397 (4) (b).

       Id.

       (Emphasis omitted.) Id. at 392 (2). See also McCall v. McCallie, 48 Ga. App. 99, 100 (1) (171 SE 843) (1933) (“The danger from fire or water is one that even young children may be said to apprehend.”).

       Appellants also cite to the affidavit of one of Ronald’s teachers, who testified that Ronald “was emotionally immature to the point that he more than likely could not appreciate and recognize the danger of jumping into the mining pit swimming hole where he drowned.” The City moved to strike the affidavit, asserting that it constituted a conclusion of ultimate fact, and the trial court granted the motion on this basis. Although the appellants enumerate this ruling as error, they provide no argument as to how the trial court erred in its reasoning. Rather, they simply make conclusory allegations in a footnote that the trial court erred because the expert had a basis for his opinion. Thus, this claim of error has been abandoned. See Price v. State, 240 Ga. App. 37, 40 (4) (522 SE2d 543) (1999) (issue abandoned where appellants provide only conclusory allegations).

       See McCall, supra.

       (Punctuation omitted.) Montega Corp. v. Grooms, 128 Ga. App. 333, 338 (7) (196 SE2d 459) (1973).

       See McCall, supra (deep); Montega Corp., supra (muddy).

       See Sayed, supra at 644.

       (Punctuation omitted.) City of Bowman v. Gunnells, 243 Ga. 809, 810 (1) (256 SE2d 782) (1979).

       Id. at 811 (2).

        Fickling v. City Council of Augusta, 110 Ga. App. 330, 332 (138 SE2d 437) (1964). See also Adams v. Atlanta Faith Mem. Church, 191 Ga. App. 215, 216 (381 SE2d 397) (1989) (“There is a consistent line of Georgia cases in which ponds have been held not to be ‘attractive nuisances’ as a matter of law.”).

        McCall, supra.

       See City of Bowman, supra.

       See McCall, supra.

       See Results Oriented v. Crawford, 245 Ga. App. 432, 439 (1) (c) (538 SE2d 73) (2000).

       Moreover, under the definition of surface mining contained in OCGA § 12-4-72 (15), many man-made ponds could potentially come within such regulation. As the law clearly permits property owners to maintain ponds on their property without erecting fences or barricades, to impose a duty on the City under the guise of mining regulations would be the worst sort of bootstrapping.


text:
    A02A0311.
    THE STATE v. WARREN.
    (568 SE2d 120)
   Pope, Presiding Judge.

Harold Glenn Warren was charged with driving under the influence and failure to maintain lane. The trial court granted his motion to suppress, and the State appeals.

Rockdale County Sheriff Jeff Wigington testified at the suppression hearing about the events leading up to the traffic stop. Sheriff Wigington testified that on the date in question he and his family were traveling west on Highway 138. He was driving a Ford Expedition, which was provided to him by the county and which was equipped with blue lights, sirens and radios. Sheriff Wigington testified that he was traveling in the right lane of a multi-lane highway and that the lane to his left which ran in the same direction was clearly marked as ending so that the traffic traveling in that lane was required to merge into the right lane. Sheriff Wigington testified he noticed a car traveling in that lane which appeared to be attempting to overtake him, but that the car ran out of room when the lane ended and that he had to brake and pull over to the right to allow the car sufficient room to move over into the right lane. Sheriff Wigington testified that at that point he turned on his blue lights and stopped the car, which was driven by Warren, for moving over improperly into his lane. Sheriff Wigington testified that after he stopped Warren he detected the odor of alcohol on Warren’s breath, and although Warren initially denied he had been drinking, he subsequently admitted he had consumed a "couple” of drinks. Sheriff Wigington then radioed for a unit to be sent out to assess Warren for DUI, and Warren was subsequently charged with both DUI and failure to maintain lane.

Warren filed a motion to suppress, arguing that the stop was improper because Sheriff Wigington did not have an articulable suspicion of specific criminal wrongdoing to authorize the stop. The trial court agreed and made the following findings pertinent to this appeal: “[I]t is clear that the Defendant was in the process of passing the Sheriff at a time when the lane was about to end, and that there was sufficient space to enter the right continuous lane without hitting the Sheriff’s vehicle. Due to his observant driving, the Sheriff braked slightly to give Defendant additional room. The mere fact that the Sheriff had to brake does not create a violation of the above statutes, but rather acknowledges his obligation to allow a vehicle passing in the left lane to overtake his vehicle. Even if the continuous right lane had the right of way, the Defendant had sufficient room to enter the right lane without striking the Sheriff’s vehicle. The Defendant’s lane change did not create a risk to the Sheriff or his passengers. Since the defendant committed no traffic offense, the Court must consider whether the acts committed constitute suspicion of criminal activity. No evidence was presented that the Sheriff suspected a drunken driver or that the Defendant’s actions constituted reckless driving or otherwise. Therefore, the Court has no reason to conclude that he was stopped for any reason other than a traffic offense.”

Generally, when an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. (Citation and punctuation omitted.) Castillo v. State, 232 Ga. App. 354, 355-356 (502 SE2d 261) (1998). [However,] [w]here, as in this case, the evidence at the suppression hearing was uncontroverted, and there was no question regarding the credibility of witnesses, we review the trial court’s ruling on the motion to suppress to ensure that there was a substantial basis for it. The trial court’s application of the law to the undisputed facts is subject to de novo review. (Citations, punctuation and footnotes omitted.) State v. Bute, 250 Ga. App. 479 (552 SE2d 465) (2001).

(Punctuation omitted.) State v. Simmons, 255 Ga. App. 336-337 (565 SE2d 549) (2002).

The State argues that the trial court erred by failing to consider whether Warren’s driving violated OCGA § 40-6-48 (1). That section provides, “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” In this case Warren was required to move from his lane of travel, which was clearly marked as ending, into the continuous lane where Sheriff Wigington was traveling. It was thus Warren’s obligation to ensure that the lane change could be made with safety. See also OCGA § 40-6-42 (1) (concerning overtaking and passing of vehicles).

Decided June 27, 2002.

The only witness to testify about the lane change was Sheriff Wigington, who testified on direct examination that Warren “ran out of room, basically came over in my lane anyway. I [Wigington] braked and pulled over to the right . . and on cross-examination that he had to “hit the brakes and pull over to avoid a collision.” Although the trial court does not appear to have specifically rejected this testimony as not credible, it interpreted this testimony to find that there was sufficient room for Warren to enter the lane and that Sheriff Wigington only had to “brake slightly.” Because Sheriff Wigington was the only witness to testify about the events leading up to the stop,

there was no conflict in the evidence for the trial court to resolve. Thus, as a matter of credibility, even if the trial court chose to disbelieve the police officer’s testimony, the court was presented with no evidence by which to establish [a different] version of events. . . . Disbelief of a witness’ testimony as to certain facts does not, by itself, factually establish the opposite conclusion so as to serve as proof thereof. A fact is not proved unless it is established.

(Citations, punctuation and emphasis omitted.) State v. Gillette, 236 Ga. App. 571, 574 (512 SE2d 399) (1999). There was no evidence presented at the motion hearing to authorize the finding that Sheriff Wigington only braked slightly and that there was sufficient room for Warren to safely move over into the right lane without causing a collision even if the sheriff had not braked or moved over. This factual finding was clearly erroneous, and the resulting conclusion that Warren had committed no traffic offense authorizing the stop was likewise in error. It follows that the trial court erred by granting the motion to suppress. Id.; State v. Maddox, 252 Ga. App. 414 (556 SE2d 501) (2001). Compare State v. Aguirre, 229 Ga. App. 736 (494 SE2d 576) (1997) (trial court authorized to reject officer’s opinions and subjective interpretations and to find not credible officer’s testimony on why the defendant was stopped).

Judgment reversed.

Ruffin and Barnes, JJ, concur in judgment only.

Richard R. Read, Solicitor-General, Robert D. James, Jr., Assistant Solicitor-General, for appellant.

Walker & Waldrop, Michael S. Waldrop, for appellee.


text:
    A02A0339.
    THE STATE v. THOMPSON.
    (569 SE2d 254)
   Pope, Presiding Judge.

The state appeals the trial court’s order granting a motion to suppress filed by Lawrence Edward Thompson. We affirm.

In reviewing the grant or denial of a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment of the trial court. Pilkenton v. State, 254 Ga. App. 127 (561 SE2d 462) (2002). “[T]he factual findings of the trial court will not be disturbed unless they are clearly erroneous. However, the application of the law to the facts is subject to de novo review.” (Footnotes omitted.) Smith v. State, 245 Ga. App. 613, 615 (538 SE2d 517) (2000). Here, the facts are undisputed, and our review is de novo.

On November 2, 2000, two officers with the Douglasville Police Department observed a blue car traveling in the center lane of Interstate 20 swerve over into the right lane, causing another vehicle to move over. As the officers began to follow the car, they observed the car cross over into the right lane and then back over to the left approximately three to four times. The officers then initiated a traffic stop and identified Thompson as the driver of the car.

One of the officers requested Thompson’s license and insurance information, and as the officer took the information he observed that Thompson’s hands were trembling. The officer also noticed a “real strong” odor of either detergent or air freshener when he spoke with Thompson through the car window, but he observed no detergents or similar items in the car. The officer further observed that when Thompson responded to questions, he would not maintain eye contact and his voice was broken, almost quivering. When the officer asked Thompson why he was so nervous, he replied that police made him nervous. After Thompson was issued a warning citation for the traffic violation, the officer returned his license and insurance information.

Afterward the officer continued talking to Thompson and specifically asked whether he was transporting any narcotics, stolen guns or property, or other items. When the officer questioned him about marijuana in particular, he observed that Thompson’s demeanor changed and he became more defensive. The officer then asked for consent to search the car, but Thompson declined to give it. This exchange lasted approximately three to four minutes.

At the hearing on the motion to suppress, the officer stated that 95 percent of the people stopped by police do not shake like Thompson did that day. The officer testified that the failure to make eye contact and the quivering voice gave him the impression that Thompson was worried and nervous about something other than the traffic stop. He also said that in his experience as a narcotics investigator he had seen people on numerous occasions use air fresheners, detergent, or dryer sheets to mask the smell of marijuana.

Based upon these factors, the officer called in a drug dog to do an open air sniff around the car. The drug dog arrived approximately 20 minutes later. When the dog alerted, the officers searched the car and discovered a package under the backseat. The package was wrapped in Saran wrap, dryer sheets, and liquid detergent. The package smelled strongly of detergent. Inside the package, the officers discovered 4.9 ounces of marijuana.

In ruling upon Thompson’s motion to suppress, the trial court found, and we agree, that the initial stop in this case was valid. The court also ruled that the facts of this case did not provide a basis for the officer’s further questioning and the subsequent search. The trial court stated that it was “not prepared [to hold] that merely because an officer sniffs something during the [course] of a traffic stop he is authorized to initiate further detention in order to bring a drug dog to the scene.”

After an initial traffic stop is complete, an officer is required to have a reasonable suspicion of criminal conduct before proceeding with an additional investigation:

An officer must have reasonable suspicion of criminal conduct before conducting additional questioning and searching a vehicle once a normal traffic stop has ended and the officer has told the motorists they are free to go. To meet the reasonable suspicion standard, an officer’s investigation during a traffic stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Although this suspicion need not meet the standard of probable cause, it must be more than mere caprice or a hunch or an inclination.

(Citation omitted.) Berry v. State, 248 Ga. App. 874, 881-882 (4) (547 SE2d 664) (2001).

To determine whether a reasonable articulable suspicion exists, courts must look to the totality of the circumstances. “Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” State v. Ledford, 247 Ga. App. 412, 415 (1) (b) (543 SE2d 107) (2000). Among the circumstances for the court to analyze are “objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers.” (Punctuation omitted.) State v. Causey, 246 Ga. App. 829, 832 (1) (b) (540 SE2d 696) (2000), quoting United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).

Decided June 27, 2002.

David McDade, District Attorney, Pamela D. Brophy, Assistant District Attorney, for appellant.

Dan N. Winn, for appellee.

Here, the officer observed that Thompson was extraordinarily nervous and that his behavior became defensive when marijuana was mentioned. “But nervousness alone is not sufficient to establish reasonable suspicion to detain and investigate for illicit drug activity.” (Footnote omitted.) Gonzales v. State, 255 Ga. App. 149, 150 (564 SE2d 552) (2002). The only other factor noted by the officer was a strong smell of laundry detergent or dryer sheets. Although laundry detergent and dryer sheets can be used to mask the odor of an illegal substance, they are themselves legal substances that can be used for a legal purpose and thus do not justify the officer’s further detention of Thompson under the facts of this case. Cf. Bius v. State, 254 Ga. App. 634 (563 SE2d 527) (2002); Berry v. State, 248 Ga. App. at 880 (3) (cases holding that although a drive-out tag can be evidence of criminal activity, such as a stolen car or a violation of the registration laws, the presence of a drive-out tag alone is not sufficient to authorize a traffic stop); L. B. B., III v. State of Ga., 129 Ga. App. 163 (198 SE2d 895) (1973) (“A cigarette paper is legal and gives no cause to arrest and search.”).

Accordingly, we cannot say that the trial court erred in granting Thompson’s motion to suppress.

Judgment affirmed.

Ruffin and Barnes, JJ, concur.

       But see Commonwealth v. Rogers, 741 A2d 813, 817 (Pa. Super. Ct. 1999) (nervousness, incomplete and admittedly fictitious paperwork for vehicle, along with open boxes of laundry detergent and fabric softener sufficient to justify further investigation); United States v. Pollington, 98 F3d 341 (8th Cir. 1996) (odor of laundry detergent, fact that officer did not believe defendants’ story about borrowing a motor home to take a trip across several states, and nervousness sufficient to support detention).