text:
    A92A0925.
    JARRELL v. STATE MERIT SYSTEM OF PERSONNEL ADMINISTRATION OF GEORGIA.
    (423 SE2d 1)
   McMurray, Presiding Judge.

Plaintiff Darlene Jarrell, an Appling County teacher, is a member of the State Health Benefit Plan (“the Plan”), a self-insured plan of health care benefits operated for the benefit of certain governmental employees in the State of Georgia. The Plan is managed by defendant the State Merit System of Personnel Administration of the State of Georgia. Plaintiff’s membership in the plan included coverage for her stepdaughter, Stephanie Jarrell.

On June 10, 1989, Stephanie Jarrell, a minor, was injured in an automobile accident. She incurred medical and hospital expenses of $58,940.27. Personal injury protection benefits of $5,000 were paid for her medical bills and defendant has paid $15,341.52 of these medical expenses. Jerry Jarrell (Stephanie’s father and plaintiff’s husband), both individually and as guardian of Stephanie Jarrell’s person and property, entered into a settlement agreement with third-party insurers in compromise of his and his daughter’s claims arising from the motor vehicle collision.

Defendant has refused to make any further payment on Stephanie Jarrell’s medical bills. This refusal is predicated on the funds paid under the settlement agreement and subrogation provisions of the Plan designed to prevent the Plan duplicating any medical expense benefits that are paid by a third party for the treatment of accidental injury.

Defendant admits that if Stephanie Jarrell had not received third-party benefits for her damages from the accident then it would have paid her remaining medical bills, subject to medical necessity, applicable deductibles and co-payment, and the Plan’s usual-customary-reasonable test. It is stipulated that if defendant is liable for Stephanie Jarrell’s remaining medical bills that the total amount defendant would owe to plaintiff is $37,328.25. Plaintiff contends that the subrogation provision of the Plan is inapplicable to the circumstances in this case and appeals the denial of her motion for summary judgment and the grant of summary judgment in favor of defendant. Held:

The total amount of third-party insurance available from the motor vehicle collision was $125,000. Another person injured in the collision was paid $9,750. Jerry Jarrell was paid $1,000 for the release of his claims arising from the collision. Pursuant to a separate release, the remaining $115,250 (which was reduced by attorney fees to $76,833.33) was paid to Jerry Jarrell, in his capacity as guardian of Stephanie Jarrell, in exchange for a release of claims for damages to her.

Stephanie Jarrell was a minor at the time of the motor vehicle collision which caused her injuries. Therefore, the right to recover damages for her medical expenses was vested exclusively in her parents. Rose v. Hamilton Med. Center, 184 Ga. App. 182, 183 (361 SE2d 1). Since Stephanie Jarrell, as a minor, had no right to recover for her medical expenses, no claims for medical expenses were compromised by the release executed on her behalf by Jerry Jarrell, in his capacity as guardian. Nor were the funds received by Jerry Jarrell in his fiduciary capacity a payment of medical expenses since these funds were received in compromise of claims for the damages sustained by Stephanie Jarrell rather than by her parents.

Decided September 8, 1992

Reconsideration denied September 23, 1992

Wilkes, Johnson & Smith, Kris Knox, for appellant.

Michael J. Bowers, Attorney General, Wayne P. Yancey, Jeffrey L. Milsteen, Senior Assistant Attorneys General, Elaine S. Newell, Staff Attorney, for appellee.

Defendant relies upon representations, contained in the petition to compromise a doubtful claim of a minor submitted to the probate court, that the funds received in settlement of Stephanie Jarrell’s claims would be applied to her medical bills. However, any such use of the funds received by Jerry Jarrell in a fiduciary capacity can only be viewed as a loan from Stephanie Jarrell’s estate to her parents since it is the parents who are responsible for the medical expenses. OCGA § 19-7-2; Evans v. Caldwell, 52 Ga. App. 475, 486 (4c) (184 SE 440); Rose v. Hamilton Med. Center, 184 Ga. App. 182, 183, supra.

The “plain language” explanation of the subrogation provision at issue states: “The Health Plan will no longer pay benefits which have the effect of duplicating benefits paid to a member from a third-party source — personal injury coverage, for example, or a policy of liability insurance. . . .” (Emphasis supplied.) Under the definition stated in the Plan booklet the term “member” is limited to “an eligible employee or teacher who has joined the [Plan] and is paying the proper premiums for coverage.” While some or all of the $1,000 payment received by Jerry Jarrell may have been in exchange for a release of his claim for medical expenses, there is no suggestion in the record that Jerry Jarrell is a member of the Plan. Nor is Stephanie Jarrell a member of the Plan. She, as an enrolled eligible dependent of a member, “is called a ‘covered dependent’ or ‘enrolled dependent’ ” in the Plan documents. There is no suggestion that any third-party benefits were paid to plaintiff, the only member of the Plan in the Jarrell household. Thus, the language upon which defendant relies is inapplicable to the facts of this case.

It follows that the superior court erred in granting defendant’s motion for summary judgment and in denying plaintiff’s motion for summary judgment. Upon remand, the superior court is directed to enter a judgment in favor of plaintiff in the principal amount of $37,328.25.

Judgment reversed with direction.

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


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A92A0962.
    BOOKOUT v. THE STATE.
    (423 SE2d 7)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of aggravated sodomy, aggravated child molestation and cruelty to children. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant enumerates the general grounds as to his convictions for aggravated sodomy and aggravated child molestation.

Pursuant to OCGA § 24-3-16, several witnesses testified to statements made to them by the five-year-old victim. These statements attributed to the victim were descriptive of appellant’s commission of the acts of aggravated sodomy and aggravated child molestation alleged in the indictment. The State did not call the victim as a witness. However, the victim was available to testify and appellant did not request that the trial court cause the victim to be called as a witness. See Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987).

“By its terms, [OCGA § 24-3-16] allows the prosecution to satisfy its burden of proof under certain circumstances by introducing the alleged victim’s hearsay declarations without putting the victim on the stand.” Sosebee v. State, supra at 299. “The law requires only that the child be available to testify; it does not require the child to corroborate the hearsay testimony. [Cit.]” Jones v. State, 200 Ga. App. 103 (407 SE2d 85) (1991). Construing the evidence most strongly against appellant, it was sufficient to authorize a rational trior of fact to find proof of his guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. There was no error in the trial court’s admission of “other transactions” evidence. “The rule allowing similar transaction evidence ‘has been most liberally extended in the area of sexual offenses,’ [cit.]; and this court has held that the ‘sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible.’ [Cits.]” Jackson v. State, 198 Ga. App. 447, 448 (1) (402 SE2d 279) (1991). “[I]n sexually oriented offenses, evidence of prior acts is admissible to show lustful disposition. . . .” Jones v. State, 172 Ga. App. 347, 348 (2) (323 SE2d 174) (1984).

Judgments affirmed.

Pope and Johnson, JJ., concur.

Decided September 8, 1992

Reconsideration denied September 23, 1992

Charles G. Wright, Jr., for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Michael R. McCarthy, Assistant District Attorney, for appellee.


text:
    A92A0982.
    MARSHALL v. THE STATE.
    (422 SE2d 677)
    Decided September 8, 1992
    Reconsideration denied September 23, 1992.

      Charles R. Sheppard, for appellant.

      Michael C. Eubanks, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellee.
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of sale of cocaine, sale of quinine, and giving a false name to an officer. The trial court entered judgments of conviction and sentences on the jury’s verdicts on October 31, 1990. Appellant filed a motion for new trial on November 27, 1990. On November 15, 1991, however, appellant “dismissed” his motion for new trial and filed his notice of appeal on the same date.

“As [appellant] voluntarily abandoned his motion for new trial and there is no order of the court disposing of the motion nor any order granting an extension of time or a delayed appeal, there is no extension beyond the 30 days permitted after entry of the judgment. Therefore the appeal must be dismissed for failure to timely file [a] notice of appeal.” Taylor v. State, 173 Ga. App. 745 (327 SE2d 860) (1985). Compare Ailion v. Wade, 190 Ga. App. 151, 153 (2) (378 SE2d 507) (1989).

Appeal dismissed.

Pope and Johnson, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A92A0995.
    FALAGAN et al. v. GEORGIA POWER COMPANY.
    (422 SE2d 563)
   McMurray, Presiding Judge.

Plaintiff Louis Falagan was injured while working for Brock & Blevins, Inc., an independent contractor, during a maintenance and repair outage on a power generating unit at defendant Georgia Power Company’s Plant Branch. Louis Falagan and his wife, Shannon Falagan, filed this action alleging that the injuries were the result of defendant’s negligence. Upon consideration of defendant’s motion for summary judgment, the superior court concluded that defendant was the statutory employer of plaintiff Louis Falagan under OCGA § 34-9-8 and was therefore immune from tort liability for his injury pursuant to OCGA § 34-9-11. Plaintiffs appeal the grant of summary judgment in favor of defendant. Held:

The criteria by which a statutory employer may be identified has been stated in several recent cases. See Fennell v. Max Rittenbaum, Inc., 199 Ga. App. 619, 620 (405 SE2d 546); Whitehead v. CHP, Ltd., 192 Ga. App. 417, 418 (385 SE2d 124); and Wright v. M. D. Hodges Enterprises, 183 Ga. App. 632, 633 (359 SE2d 700). In the case sub judice, we are concerned with only one of the two prongs of this test. “ Tf . . . the owner is not “merely in possession or control of the premises” but is actively involved in the enterprise in which the employee was injured, then the circumstances of the particular case should determine whether the owner is a statutory employer of the injured employee.’ [Wright v. M. D. Hodges Enterprises, 183 Ga. App. 632, 633, supra].Fennell v. Max Rittenbaum, Inc., 199 Ga. App. 619, 620 (2), supra.

The evidence shows that an outage of a power generating unit is a massive project scheduled at intervals of one or more years and involves the participation of large numbers of defendant’s employees. Additionally, several outside contractors perform much of the outage work. Defendant’s employees plan, schedule and coordinate the efforts of defendant’s workers and contractors. Defendant provides much of the materials, parts, and tools utilized during an outage. The outage at issue required the services of more than ten contractors including Louis Falagan’s employer which was responsible for retubing a condenser. Under this evidence, defendant was more than the project owner, it supervised and actively participated in the completion of the overall project. Fennell v. Max Rittenbaum, Inc., 199 Ga. App. 619, 620, supra; Winn-Dixie Atlanta, Inc. v. Couch, 193 Ga. App. 352 (387 SE2d 590); Whitehead v. CHP, Ltd., 192 Ga. App. 417, 418, supra; Wright v. M. D. Hodge Enterprises, 183 Ga. App. 632, 633, supra. The fact that plaintiff Louis Falagan’s employer was an independent contractor does not preclude a conclusion that defendant was his statutory employer. Wright Associates v. Rieder, 247 Ga. 496 (277 SE2d 41).

Plaintiffs contend that an affidavit of James A. Lightfoot, an engineer employed by defendant, offered in support of defendant’s motion for summary judgment contradicts his prior sworn testimony and should not have been considered by the superior court. We have reviewed both the affidavit and the transcript of the earlier deposition, and examined each of the instances of contradictions suggested by plaintiffs and find no inconsistency material to the issues in this case. Thus application of the “contradictory testimony rule” will not require the elimination of any portion of Lightfoot’s affidavit essential to the grant of defendant’s motion for summary judgment. See in this regard Battle v. Sandy Springs Assoc., 198 Ga. App. 584, 585 (402 SE2d 336).

Decided September 8, 1992

Reconsideration denied September 23, 1992

Middleton & Anderson, Eugene C. Brooks IV, Dickens & Associates, Gordon L. Dickens, Jr., for appellants.

Jones, Cork & Miller, H. Jerome Strickland, H. J. Strickland, Jr., for appellee.

Judgment affirmed.

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


text:
    A92A1145.
    BUSBEE v. THE STATE.
    (423 SE2d 3)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of criminal trespass. She appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

Appellant enumerates as error the trial court’s failure to give three jury instructions, including an unrequested instruction on the defense of alibi. In its original brief, the State summarily conceded that the failure to give the unrequested charge on alibi was reversible error and declined to address the merits of appellant’s two remaining enumerations of error. However, appellant’s two remaining enumerations of error related to the jury charge and were, therefore, obviously likely to recur at the retrial that the State had otherwise conceded was mandated. Accordingly, this court ordered the State to file a supplemental brief addressing those two remaining enumerations. In neither its original nor its supplemental brief did the State ever apprise the court that the right to enumerate any error in the trial court’s jury charge had clearly been waived by appellant. “In order to avoid waiver, if[, as here,] the trial court inquires if there are objections to the charge, counsel must state his objections or follow the procedure ... of reserving the right to object on motion for new trial or on appeal. Here defense counsel neither objected nor reserved the right to later object, and under such circumstances, the defendant has waived the right to raise the issue [of error in the charge] on appeal.” Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980).

Decided September 8, 1992

Reconsideration denied September 23, 1992

L. David Wolfe & Associates, Susan E. Teaster, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.

Moreover, even absent waiver, none of appellant’s enumerations would have merit. Contrary to the State’s summary concession, it was clearly not error to fail to give an unrequested charge on alibi. Rivers v. State, 250 Ga. 288, 299 (8) (298 SE2d 10) (1982); Thomas v. State, 176 Ga. App. 53, 55 (4) (335 SE2d 135) (1985); Johnson v. State, 174 Ga. App. 751, 752 (2) (330 SE2d 925) (1985). The circumstances of this case did not demand a finding that any of the State’s witnesses wilfully and knowingly testified falsely and it was, therefore, not error to fail to give an unrequested charge on OCGA § 24-9-85 (b). Fugitt v. State, 256 Ga. 292, 298 (6) (348 SE2d 451) (1986); Warnock v. State, 195 Ga. App. 537, 538 (1) (394 SE2d 382) (1990). Likewise, it was not error to fail to give an unrequested charge on impeachment. Kelly v. State, 189 Ga. App. 67 (2) (375 SE2d 81) (1988).

Accordingly, notwithstanding the State’s summary concession regarding the failure to give the unrequested charge on alibi, it is clear that the trial court did not err and that appellant’s judgment of conviction must be affirmed.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A1182.
    EKOKOTU v. PIZZA HUT, INC. et al.
    (422 SE2d 903)
   McMurray, Presiding Judge.

After his employment as an assistant manager for appellee Pizza Hut, Inc. (“Pizza Hut”), was terminated, appellant Sunny O. Ekokotu instituted an action against the corporation and two supervisors, appellees Doug Wong and Rick Ledford, for conspiracy to fabricate false charges of sexual harassment, libel, tortious interference with his employment and causing him severe mental and physical anguish. Appellees moved for and were granted summary judgment on all counts, from which Ekokotu appeals.

The undisputed evidence shows that appellant had difficulties fulfilling his responsibilities as an assistant manager of a Pizza Hut restaurant in Tucker, Georgia. On one occasion, appellant argued with an employee under his supervision in the presence of customers. He referred to the employee as a “bitch” during the argument. On February 14, 1990, appellant received notice from his supervisor, Manager Rick Ledford, warning appellant that use of such profane language in the presence of customers “is a termination offense [and that] any further action of this type . . . will result in . . . termination.”

On or about March 14, 1990, appellant left work after arguments with employees under his supervision. After these incidents, an unpleasant telephone conversation between appellant and Manager Rick Ledford resulted in Manager Ledford informing appellant that his management skills were deficient and that he could resign or be involuntarily terminated.

Three female employees under appellant’s supervision submitted statements dated March 22, 1990, accusing appellant of sexual harassment. Manager Rick Ledford investigated the complaints, interviewing several employees and reporting findings substantiating the female employees’ claims. Manager Ledford made the following conclusions in a report to his supervisor, Pizza Hut District Manager Doug Wong, and Pizza Hut Regional Personnel Manager Kathleen Parrish: “I talked to no one who was even partially supportive of [appellant]. The sexual situation is just the tip of the iceberg. All employees openly discussed his lack of management ability and the fact if [appellant] went away; he would not be missed at all. I am very confident that termination for unprofessional conduct is the only way to handle this problem. I am thankful that it was caught when it was; and sorry that it was not discovered sooner. A lot of good employees have left because of [appellant].”

District Manager Wong reviewed the investigation reports regarding appellant’s “case” and reported the results of the investigation “only to [his] supervisors within Pizza Hut, Inc.” It was determined that termination of appellant’s employment with Pizza Hut was necessary.

The trial court granted summary judgment to the defendants on all issues, finding as a matter of law (1) that there was no publication of any libelous material and no evidence demonstrating any malice on the part of the defendants as to the alleged publication; (2) that there was no publication of any alleged slanderous comment concerning appellant and any such comment was made without the authority of Pizza Hut and/or Wong; (3) that there was insufficient evidence to maintain an action for conspiracy to defame against the defendants; (4) that appellant was not wrongfully discharged because he was an employee at will and was terminated according to Pizza Hut’s policies and the results of the defendants’ investigation into his alleged sexual harassment of his female co-workers; and (5) that there was no basis for appellant’s claim of negligent infliction of emotional distress because he suffered no physical injury and failed to prove that the defendants defamed him. Held:

1. In order to recover in an action for libel the plaintiff must prove publication of the libelous matter. OCGA § 51-5-1 (b). Even assuming that the written statements or documents containing allegations of sexual harassment were seen by the persons appellant claims saw these charges or that the contents constituted “libelous mater,” there was no evidence here that this information was published. All of these persons were employees of Pizza Hut. “ ‘It is well settled that a communication made by one corporate agent to another is not publication in the legal sense. See Kurtz v. Williams, 188 Ga. App. 14, 15 (371 SE2d 878) (1988). Publication of allegedly defamatory information in the course of an employer’s investigation of an employee’s job performance, when made to persons in authority, is not “publication” within the meaning of the law. (Cits.)’ [Cits.] Here, the record is devoid of any evidence that the [sexual harassment investigation document's were] shown to anyone who did not, by virtue of his [or her] job, need to be informed of all the factors involved in the decision to terminate [appellant].” Lepard v. Robb, 201 Ga. App. 41, 42-43 (1) (410 SE2d 160) (1991). Accord Green v. Sun Trust Banks, 197 Ga. App. 804 (4) (399 SE2d 712) (1990); Sigmon v. Womack, 158 Ga. App. 47 (1) (279 SE2d 254) (1981).

“[This] exception to the publication rule is not a conditional defense destroyed by proof of malice, but rather, an element of the tort of slander or libel. Whether the communication was made maliciously and with knowledge of falsity is immaterial when there has been no publication, for without publication, there is no libel or slander. [Cits.]” Kurtz v. Williams, 188 Ga. App. 14, 16 (371 SE2d 878) (1988). Insofar as the allegations of slander are concerned, there was absolutely no evidence that Pizza Hut directed or authorized its employees to speak the words in question. “ ‘[A] corporation is not liable for the slanderous utterances of an agent acting within the scope of his employment, unless it affirmatively appears that the agent was expressly directed or authorized to slander the plaintiff.’ [Cit.]” Mulherin v. Globe Oil Co., 173 Ga. App. 790 (1), 791 (328 SE2d 406) (1985).

2. Since we have held there was no proof of libel or slander, it follows that appellant has likewise failed to prove a conspiracy to defame him. “Conclusory allegations by the plaintiff of conspiracy, malice, and defamation, are insufficient — in the absence of substantiating fact or circumstances, to raise a material issue for trial.” Morton v. Stewart, 153 Ga. App. 636, 643 (2) (b) (266 SE2d 230) (1980).

3. Appellant was an employee at will who was terminated after a proper investigation conducted by his supervisors. An employee hired at will and without contract cannot bring an action against his employer for wrongful discharge, as the employer with or without cause and regardless of its motives may discharge the employee without liability. Borden v. Johnson, 196 Ga. App. 288, 289 (1) (395 SE2d 628) (1990).

4. Admitting that he did not suffer any physical injury so as to be entitled to recover damages for mental and emotional distress, appellant now argues that he should recover on the theory of a “voluntary and malicious act” by the defendants in damaging his reputation. However, in order to sustain a claim for intentional infliction of emotional distress, appellant was “required to put forth evidence that defendants’ behavior was wilful and wanton or intentionally directed to harm [him]; that these actions were such as would naturally humiliate, embarrass, frighten, or outrage [him]; and that the conduct caused mental suffering or wounded feelings or emotional upset or distress. [Cit.]” Green v. Sun Trust Banks, 197 Ga. App. 804, supra at 810, 811. There was no evidence that the conduct of the defendants approached that level of outrageousness.

5. Appellant insists that the trial court erred in failing to grant his motion to add party defendants so that his suit could have proceeded against “the right parties.” His position that these individuals were indispensable parties ignores the fact that the judge found there was insufficient evidence to support his allegations, so once summary judgment was granted as to the named defendants the motion to add new parties became moot. Moreover, in his motion appellant asserted that these individuals were a part of the conspiracy to defame him, which would make them joint tortfeasors with the named defendants, and “joint tortfeasors are not indispensable parties in an action against one of them, because their liability is both joint and several. [Cit.]” Freeman v. Low X-Ray Corp., 130 Ga. App. 856, 857 (204 SE2d 803) (1974). Thus, had relief been warranted it could have been afforded absent the additional parties. First Bank & Trust Co. v. Ins. Svc. Assn., 154 Ga. App. 697, 698 (2) (269 SE2d 527) (1980).

6. Appellant complains that the trial court should have drawn its own order rather than sign the one tendered by the defendants, which he considers to be filled with “glaring erroneous conclusions of law,” but he has produced no authority that this practice is improper or invalid. Indeed, while appellant refers in his brief to numerous errors both of fact and law made by the trial court, he cites to no competent evidence of record in support thereof. A defendant may prevail on its motion for summary judgment “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Accord Mauldin v. Weinstock, 201 Ga. App. 514 (411 SE2d 370) (1991); Sullenberger v. Grand Union Co., 201 Ga. App. 194 (410 SE2d 381) (1991). Since appellant failed to do so, summary judgment in favor of the defendants was correctly granted.

Decided September 9, 1992

Reconsideration denied September 23, 1992

Sunny O. Ekokotu, pro se.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, David R. Hughes, for appellees.

Judgment affirmed.

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


text:
    A92A1322.
    HOSSAIN v. TOHME.
    (423 SE2d 4)
   McMurray, Presiding Judge.

On August 2, 1990, plaintiff, Mohammed Hossain, brought suit against defendant, John Joseph Tohme, in the State Court of Fulton County. He alleged that he suffered personal injuries in an October 26, 1988, automobile collision as a direct and proximate result of defendant’s negligence. An attempt was made to serve defendant with a copy of the complaint and summons at a house on Regency Road in Atlanta on September 10, 1990; however, it appears that service was not perfected at that time because the marshal’s entry of service recites that defendant “moved to Calif.” Plaintiff’s uninsured motorist carrier, Allstate Insurance Company (“Allstate”), was served by second original on October 4, 1990, and it timely filed an answer to the complaint denying liability.

Subsequently, plaintiff learned that defendant was attending the University of California at Los Angeles and asked the marshal’s office to make another attempt to serve defendant. On November 7, 1990, a deputy marshal completed an entry of service showing that defendant was served by leaving a copy of the complaint and summons with his mother at the Regency Road address. Eight days later, defendant answered the complaint, denied liability, and set forth, inter alia, insufficiency of service of process and statute of limitation defenses. In addition, defendant moved to dismiss, or, in the alternative, for summary judgment on the ground that plaintiff failed to perfect service upon defendant and plaintiff’s action was barred by the statute of limitation. Allstate moved to dismiss, or, in the alternative, for summary judgment, too. Via a certificate of coverage, it demonstrated that on October 26, 1988, the date of the accident, defendant was covered by an automobile policy issued by State Farm Mutual Automobile Insurance Company, and that, therefore, defendant was not an uninsured motorist.

On January 29, 1991, the trial judge dismissed plaintiff’s action against defendant. Two days later, however, plaintiff obtained an order from another judge specially appointing an agent for service of process. Then, on February 7, 1991, the County of Los Angeles Sheriff’s Department left a copy of the complaint and summons with Christine Tohme, defendant’s sister, at defendant’s residence in Burbank, California.

Defendant renewed his motion to dismiss, or, in the alternative, for summary judgment. Following a hearing on May 21, 1991, the State Court of Fulton County dismissed plaintiff’s action against defendant and Allstate. Plaintiff appeals. Held:

1. OCGA § 9-11-4 (c) provides, in pertinent part: “When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.” “This proviso applies as well to service made outside the state pursuant to the Long Arm Statute. [OCGA § 9-10-94.] ‘In any case, the correct test (is) whether the plaintiff showed that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible. There, of course, will be situations where despite all the diligence of the plaintiff, service cannot be obtained within 5 days and before the expiration of the statute of limitation. A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be.’ Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360) (1975); Hutchins v. Hunter, 135 Ga. App. 40 (3) (217 SE2d 375) (1975); Hilton v. Maddox, Bishop, Hayton &c., Inc., 125 Ga. App. 423 (188 SE2d 167) (1972). The plaintiff has the burden of showing lack of fault. Scoggins v. State Farm &c. Ins. Co., 156 Ga. App. 408 (274 SE2d 775) (1980); Bible v. Hughes, 146 Ga. App. 769 (3) (247 SE2d 584) (1978).” Smith v. Griggs, 164 Ga. App. 15, 17 (2), 18 (296 SE2d 87). Ordinarily, “[t]he determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” Forsyth v. Brazil, 169 Ga. App. 438, 439 (313 SE2d 138) (1984).

Decided September 8, 1992

Reconsideration denied September 23, 1992

Morris L. Richman, for appellant.

Downey, Cleveland, Parker, Williams & Davis, William S. All-red, J. Calhoun Harris, Jr., Fain, Major & Wiley, Christopher E. Penna, for appellee.

In the case sub judice, plaintiff’s efforts to serve defendant were “ ‘intermittent and wholly ineffective.’ ” Shears v. Harris, 196 Ga. App. 61, 62 (395 SE2d 300). Plaintiff made no attempts to have defendant served until September 10, 1990 — more than five weeks after the complaint was filed. Moreover, plaintiff made no serious efforts to serve defendant until the complaint was dismissed on January 29, 1991 — more than three months after the expiration of the statute of limitation. It cannot be said, therefore, that the trial court abused its discretion in finding that plaintiff failed to exercise due diligence in perfecting service upon defendant. The trial court did not err in granting defendant’s motion to dismiss, or, in the alternative, motion for summary judgment.

2. Because service was not perfected upon defendant within the statute of limitation, the “condition precedent to obtaining judgment against [Allstate] cannot be accomplished. . . .” It follows that the trial court did not err in granting Allstate’s motion to dismiss, or, in the alternative, for summary judgment.

Judgment affirmed.

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


text:
    A92A1450.
    COPELIN v. RUSSELL.
    (423 SE2d 6)
   Carley, Presiding Judge.

Appellant-plaintiff’s husband was seriously injured in an automobile collision. Suit was filed against appellee-defendant, with appellant’s husband seeking to recover for his injuries and appellant seeking to recover for loss of consortium. Liability was admitted and the issue of damages was tried before a jury. The jury returned a substantial verdict for appellant’s husband, but awarded appellant nothing on her loss of consortium claim. Appellant’s motion for new trial was denied and she appeals from the denial of that motion.

Decided September 8, 1992

Reconsideration denied September 23, 1992

Eichelberger & Perrotta, James A. Eichelberger, Joseph D. Perrotta, for appellant.

MacDougald & Hendon, Daniel MacDougald III, Wyman Z. Hendon, Jr., for appellee.

Citing Nelson & Budd, Inc. v. Brunson, 173 Ga. App. 856, 859 (6) (328 SE2d 746) (1985) and Burnett v. Dosier, 144 Ga. App. 443, 444 (2) (241 SE2d 319) (1978), appellant urges that the verdict on her consortium claim is erroneously inconsistent with the substantial verdict returned in favor of her husband.

“[B]efore making any determination that the [spouse] is entitled to recover the jury must determine whether the consortium has, in fact, been lost and, if so, whether the cause of the loss was such as to give rise to liability on the part of the defendants.” Hightower v. Landrum, 109 Ga. App. 510, 514 (4) (136 SE2d 425) (1964). In Nelson & Budd, Inc., supra at 859 (6), “the spouse . . . presented unrefuted evidence as to loss of consortium.” In Burnett, supra at 444 (2), the spouse was “entitled to a new trial on the issue of damages [because] her evidence as to loss of consortium was uncontradicted. [Cits.]” In the instant case, however, the evidence as to appellant’s consortium claim was not unrefuted and uncontradicted. Assuming that the evidence demanded a finding that appellant had lost the consortium of her husband, the evidence did not demand a finding that the cause of that loss was the automobile collision for which appellee had admitted liability. The evidence would authorize a finding that appellant and her husband had a troubled marriage for personal reasons which pre-existed the automobile collision and which were in no way attributable thereto. Accordingly, the jury was authorized to find that the automobile collision was not the proximate cause of any loss of consortium claimed by appellant. “[I]n view of the evidence produced at trial, we find that the verdicts rendered are not inconsistent. The evidence on the consortium issue was not uncontradicted, and the jurors were free to evaluate the witnesses, the testimony and the evidence produced to determine if the appellant . . . was damaged due to loss of consortium [attributable to appellee’s negligence in causing the automobile collision]. . . . The jury could have determined that appellant . . . suffered no compensable damage for loss of consortium.” Gurly v. Hinson, 194 Ga. App. 673, 675 (9) (391 SE2d 483) (1990). It follows that the trial court correctly denied appellant’s motion for a new trial.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A1573.
    HENDERSON et al. v. STATE OF GEORGIA.
    (422 SE2d 666)
   McMurray, Presiding Judge.

This is a case of first impression. At issue, is the interpretation to be given to the language setting forth the time requirement in OCGA § 16-13-49 (o) (5). The trial court denied appellants’ motion to dismiss this condemnation proceeding, ruling that the time requirement set forth in OCGA § 16-13-49 (o) (5) is directory.

On September 13, 1991, the district attorney brought an in rem condemnation proceeding against property seized in a drug raid. Appellants filed answers to the complaint on October 17, 1991. The trial court held a hearing without a jury on February 26, 1992. Because the hearing was not held within 60 days after service of the complaint, appellants moved to dismiss the proceeding. The trial court denied the motion and ordered that certain property be forfeited to the State. This appeal followed. Held:

OCGA § 16-13-49 (o) (5) provides that a hearing “must” be held within 60 days of service after the complaint unless a continuance is granted for “good cause.” Appellants contend that this language is mandatory and that the State’s failure to comply with the 60 days time requirement brought the proceeding to an end. The State asserts that this language is directory and that its failure to comply with the 60-days time requirement carried no consequences whatsoever.

We focus our inquiry on the legislature’s use of the word “must.” Did the legislature intend for the 60 days time requirement to be mandatory or directory? We think the legislature used the word “must” as a command, not a direction.

Ordinarily, the word “must” is synonymous with the word “shall,” Black’s Law Dictionary 1019 (6th ed. 1990), and our courts have used these words interchangeably. See, e.g., Georgia, Fla. &c. R. Co. v. Sasser, 130 Ga. 394, 395 (60 SE 997); Birdsong & Sledge v. Brooks, 7 Ga. 88, 89 (1849); Alewine v. State, 103 Ga. App. 120 (118 SE2d 499); Bass v. Doughty, 5 Ga. App. 458, 460 (63 SE 516). Thus, in Birdsong & Sledge v. Brooks, 7 Ga. 88, supra, the Supreme Court held that with regard to the filing of declarations in attachment, a “may be filed at the first term” statute, was to be construed as a “must” or “shall” be filed at first term statute. In so holding, the Court reasoned: “The public interest requires that all suits in our Courts should be determined as speedily as possible, and the interest of the party, whose property is seized under the process of attachment, also requires that there should be no delay on the part of the plaintiff in the attachment, in filing his declaration founded thereon. The true rule for the construction of the word may in a Statute is, that when such Statute concerns the public interest, or affects the rights of third persons, then, the word may, shall be construed to mean must or shall.” Id. at 89.

Decided September 11, 1992

Reconsideration denied September 23, 1992

Christopher G. Nicholson, Hawk, Hawk & Lyons, Victor Hawk, for appellants.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellee.

If the word “may” is to be given a mandatory construction when a statute concerns the public interest or affects the rights of third persons, then, a fortiori, the word “must” is to be given a mandatory construction when it is used in such a statute. OCGA § 16-13-49 (o) (5) concerns the public interest and affects the rights of third persons just as the statute in Birdsong & Sledge v. Brooks, 7 Ga. 88, supra, did. Each statute involves the seizure of property. With regard to each statute, the public interest is the speedy resolution of cases in the courts; the private interest is the speedy resolution of property rights.

We hold that the legislature used the word “must” in OCGA § 16-13-49 (o) (5) to mandate a speedy resolution of in rem condemnation cases. The trial court erred in ruling otherwise.

Judgment reversed.

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


text:
    A92A1682.
    In the Interest of C. M., a child.
    (423 SE2d 280)
   McMurray, Presiding Judge.

On July 8, 1991, the Juvenile Court of Chatham County entered an order terminating the parental rights of C. M.’s father and mother. Thereafter, on July 17, 1991, the father filed a “motion for new trial” on the grounds that the order was “contrary to law” and “strongly against the weight of the evidence.” The motion was denied on March 25, 1992, and the father appealed on March 31, 1992. Subsequently, on June 5, 1992, the juvenile court entered an order “upon request of counsel,” stating that the motion for new trial was treated as a “motion to modify and vacate a prior judgment” pursuant to OCGA § 15-11-42. Held:

The Department of Human Resources has moved to dismiss the appeal, asserting we are without jurisdiction to entertain it. We are constrained to agree.

Decided September 9, 1992

Reconsideration denied September 23, 1992

Mark J. Nathan, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney, Beckmann & Lewis, Leo G. Beckmann, Jr., for appellee.

“Juvenile courts are courts of limited jurisdiction, possessing only those powers specifically conferred upon them by statute. West v. Hatcher, 219 Ga. 540, 542 (134 SE2d 603) (1964). See OCGA § 15-11-5. . . . Such courts are without the power given to ‘superior, state, and city courts’ by OCGA § 5-5-1 to consider and grant new trials.” In the Interest of J. O., 191 Ga. App. 521 (1) (382 SE2d 214). “A juvenile court order can be challenged, however, by the filing of a motion to modify or vacate pursuant to OCGA § 15-11-42. Id.; In re P. S. C., 143 Ga. App. 887 (240 SE2d 165) (1977). An order on such a motion filed within the statutory appeal period is appealable to this court, even if the order is rendered more than 30 days from the original order sought to be vacated or modified. In the Interest of J. O., at 522 (1).” In the Interest of M. A. L., 202 Ga. App. 768, 769 (415 SE2d 649).

Was the father’s post-trial motion a motion for a new trial or a motion to modify or vacate? The fact that the juvenile court considered the motion as a motion to modify or vacate does not control this issue. In the Interest of J. O., supra at 522 (1). “In determining whether a motion filed within the 30-day statutory appeal period will be treated as a motion to vacate or modify pursuant to OCGA § 15-11-42, this court will look to the substance of the motion, not its nomenclature. Id. Here, the only motion filed within the 30-day statutory appeal period did nothing more than challenge the sufficiency of the evidence on which the juvenile court’s order was based and state that the juvenile court committed error requiring a new trial. The motion made no reference to any of the factors which would warrant the vacation or modification of the court’s order under OCGA § 15-11-42. Consequently, the motion in this case cannot be treated as a motion to modify or vacate pursuant to that section. Cf. id.” In the Interest of M. A. L., 202 Ga. App. 768, 769, supra.

Because the post-trial motion cannot be considered a motion to modify or vacate pursuant to OCGA § 15-11-42, the notice of appeal was not filed in timely fashion. It follows that we are without jurisdiction to entertain this appeal.

Appeal dismissed.

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


author: Sognier, Chief Judge.

text:
    A92A0848.
    GODETT v. THE STATE.
    (423 SE2d 34)
   Sognier, Chief Judge.

Derek Godett was convicted by a jury of trafficking in cocaine, and he appeals.

1. Appellant contends the trial court erred by denying his motion to suppress the cocaine found in the car he was driving. The evidence adduced at the hearing on the motion to suppress showed that on March 23, 1991 at approximately 7:00 a.m. Trooper Michael J. Ralston, on routine patrol, observed a car parked in a rest area on Interstate 75. Ralston continued on his patrol, and when approximately one hour later he noticed that the car was still parked in the rest area, he approached the car. Ralston testified that he observed that the lone occupant appeared to be sleeping and that he tapped on the window and awakened the occupant in order “[t]o determine the well being of the person there in the car.” The driver informed Ralston that he was fine, and Ralston then asked the driver for the vehicle registration and personal identification. The driver produced a Minnesota driver’s license, identifying him as appellant, and the registration, which showed the car was registered in Florida to another individual. Appellant explained that he had been given the car to test drive for two weeks, and that he was driving it to Minneapolis and would return it later to Miami. In response to Ralston’s request, appellant offered a telephone number for the car’s owner. Ralston was unable to contact the registered owner at the number he was given, and although his dispatcher was able to ascertain from Florida information that a telephone was listed for the registered owner at the address given, that telephone number was unlisted and Ralston was not able to make contact with him. Ralston testified that after having this conversation with appellant and checking with a national police information center, he returned the registration and appellant’s driver’s license. However, because he was concerned about the ownership of the vehicle, he requested permission to search the car. Both appellant and Ralston testified that appellant consented both orally and in writing because he “didn’t have nothing to hide,” and voluntarily released the trunk latch. In the course of his search of the trunk Ralston discovered approximately one pound of cocaine in the right rear quarter panel.

Appellant argues that even assuming Ralston’s original stop was valid, after appellant assured Ralston that he was fine Ralston had no further cause to detain him, and thus he was illegally “seized” at that point, rendering his consent to the search of his car invalid.

Decided September 23, 1992.

Bailey & Bearden, J. Terry Brumlow, for appellant.

The facts of the case sub judice are strikingly similar to those in O’Donnell v. State, 200 Ga. App. 829, 830-832 (1) (409 SE2d 579) (1991). In O’Donnell, a majority of this court held that an initial stop such as the one made by Ralston is proper, as is a routine request for identification and registration. We also held that the trooper’s inability to verify appellant’s account of the ownership of the vehicle and his concern that the vehicle might be stolen formed an adequate articulable suspicion to support continuing the detention briefly. Id. at 832. In this case, within a few moments of his continued detention appellant gave his consent to search, which appellant admits was voluntary. As “a valid consent eliminates the need for either probable cause or a search warrant,” (citation and punctuation omitted), id. at 833 (1), given the totality of the circumstances present in this case, we are constrained by the holding of a majority of this court in O’Donnell to hold that “at the time appellant gave [his] consent, he was not in a status of illegal arrest and accordingly, there was no taint of his consent to search within the meaning of Lackey v. State, 246 Ga. 331, 333 (271 SE2d 478) [(1991)].” Id. at 833 (1). Accordingly, the trial court did not err by denying appellant’s motion to suppress. Id.

2. Appellant also maintains the trial court erred by denying his motion for a directed verdict of acquittal made on the ground that the State had failed to prove the offense as charged in the indictment. Although OCGA § 16-13-31 (a) (1) provides that “[a]ny person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, . . . commits the felony offense of trafficking in cocaine,” the indictment charged that appellant “did knowingly possess more than 200 grams of cocaine, a Schedule II controlled substance, with a purity greater than 10 percent.” Appellant’s contention, that because of this language in the indictment the State was required to prove that the seized contraband contained at least 200 grams of pure cocaine, is controlled adversely to him by this court’s holding in Belcher v. State, 161 Ga. App. 442, 443 (1) (288 SE2d 299) (1982). Accord Quinn v. State, 171 Ga. App. 590, 593 (8) (a) (320 SE2d 827) (1984). The trial court did not err by denying appellant’s motion for a directed verdict of acquittal made on this ground. Id.

Judgment affirmed.

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

Darrell E. Wilson, District Attorney, for appellee.


author: Pope, Judge.

text:
    A92A1061.
    G. CARBONARA & COMPANY v. HELMS.
    (423 SE2d 36)
   Pope, Judge.

Defendant G. Carbonara & Company, a Georgia corporation, was employed by certain magazine publishers to act as an agent for soliciting advertisements. Defendant hired plaintiff B. J. Helms as a sales representative to solicit advertisements. The evidence shows plaintiff was guaranteed a minimum salary and was also paid a percentage of sales if that amount exceeded her base salary. No controversy exists as to plaintiff’s compensation for the time during which she was employed. The parties agree that she was paid a commission of four percent of sales once the sales were finalized and payment was received from defendant’s magazine clients. She was also paid an additional one percent of sales minus her travel and entertainment expenses. The evidence showed that due to the nature of defendant’s business, a period of time elapsed between the date an advertiser placed an order for an advertisement and the date defendant received payment for the order from defendant’s magazine client. During this period, the order could be cancelled up to a certain deadline date, in which case defendant would receive no payment for the order it or its employee solicited. The issue presented at trial in this case was whether defendant owed plaintiff a commission for advertisements she solicited before she resigned which had not been paid for and could have been cancelled by a deadline occurring after the date of her departure but which, in fact, were not cancelled and thus were eventually paid for by the advertisers.

Plaintiff filed an action alleging breach of contract and quantum meruit. At trial, the parties presented conflicting testimony concerning whether the parties ever reached an agreement concerning payment of a commission for sales which were not finalized and paid until after plaintiff was no longer employed by defendant. The jury returned a finding that no express contract existed between the parties and instead returned a verdict on plaintiff’s quantum meruit claim in the amount of $15,000. Defendant appeals, arguing plaintiff presented no evidence to support her claim for quantum meruit because she presented no evidence of the value of her uncompensated services.

The reasonable value of services rendered by plaintiff and accepted by defendant is an essential element of a quantum meruit claim. Development Corp. v. Berndt, 131 Ga. App. 277 (205 SE2d 868) (1974). In Berndt, this court reversed the judgment which was awarded to plaintiff on the ground that insufficient evidence was presented to support an award because plaintiff offered no evidence of how the sum claimed as quantum meruit damages was computed. Relying upon Berndt, defendant argues insufficient evidence was presented to support the quantum meruit award in this case because the only evidence presented by plaintiff was evidence offered to prove the existence of the alleged express agreement and no evidence was presented to prove the value of plaintiff’s services.

Decided September 23, 1992.

Scheer & Eisner, Robert A. Eisner, for appellant.

Churchill & Ferguson, Anthony M. Thomasson, for appellee.

When services in addition to those contemplated in an express contract are rendered and accepted, “ ‘the law implies and enforces performance of a promise to pay such extra services. (Cits.)’ [Cit.]” Fruin-Colnon Corp. v. Air Door, Inc., 157 Ga. App. 804, 807 (2) (278 SE2d 708) (1981). Proof of the express contract between the parties “affords prima facie proof of the value of the services rendered, and as such is properly received in evidence even when recovery is sought upon quantum meruit and not upon the contract.” Service Constr. Co. v. Nichols, 378 SW2d 283, 288 (Mo. Ct. App. 1964). See also Bellanca Corp. v. Bellanca, 169 A2d 620, 626 (Del. 1961). The evidence shows that defendant’s magazine clients paid defendant 15 percent of advertising sales made by the defendant and its employees on behalf of the client. In essence, defendant paid plaintiff one-third of the income it received from the sales she made.

Evidence was presented concerning the nature of plaintiff’s services, and defendant’s officers admitted she was a valuable employee and possessed a high degree of expertise at her job. Thus, the evidence showed the value actually placed on plaintiff’s services by the defendant was one-third of its income from the sales she made and, from this evidence, the jury would be permitted to find that this value was reasonable. Evidence was presented concerning the amount of money defendant earned for orders solicited by plaintiff which were finalized and paid after her departure date. The amount awarded by the verdict is approximately one-third of that amount, minus the base salary amount which plaintiff admitted she did not earn after her departure date. Thus, the verdict is supported by the evidence.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A1178.
    McBRIDE v. KNIGHT.
    (422 SE2d 675)
   Sognier, Chief Judge.

Stephen McBride brought suit against a judge of the Superior Court of Cobb County and Jerald Knight, the judge’s official court reporter, seeking damages for the defendants’ alleged deliberate and malicious failure to transmit a copy of the transcript of his criminal trial to this court after he had filed his notice of appeal. The trial court granted the judge’s motion to dismiss, and that ruling is not challenged on appeal. Knight moved for summary judgment and proffered in support thereof his affidavit in which he averred that as court reporter, he is not informed when a notice of appeal is filed; that he had no knowledge McBride had filed a notice of appeal; that McBride did not request a copy of the transcript from him; and that when finally made aware that a transcript was requested, he prepared the transcript in due course and the transcript was filed. McBride adduced no evidence to controvert this affidavit or otherwise to create a genuine issue of material fact for jury resolution. The trial court granted Knight’s motion, and McBride appeals.

1. This appeal was docketed with this court on March 11, 1992. On April 14, 1992, two weeks after appellant’s enumeration of error and brief were due, this court, pursuant to Rules 14 (a), 23, and 27 (b), ordered appellant to file his brief and enumeration of errors no later than April 20, 1992. That order specifically stated that failure to comply with the order within the time required absent good and sufficient cause shall result in dismissal of the appeal. Appellant has failed to comply with this court’s order of April 14, 1992 and has failed to show any good and sufficient cause for that failure. Accordingly, this appeal is dismissed pursuant to Court of Appeals Rule 14 (a). Sutton v. Goldome Realty Credit Corp., 192 Ga. App. 839 (389 SE2d 273) (1989).

2. Appellee has moved this court to impose a penalty against appellant pursuant to this court’s Rule 26 (b) for bringing a frivolous appeal. “ ‘Being unable to discern any reasonable ground upon which [appellant] might have anticipated the reversal of the trial court’s judgment, we assess a [$500] penalty against [appellant] pursuant to Rule 26 (b) of this court for pursuing a frivolous appeal. The trial court is hereby directed to enter judgment against [appellant] in such amount . . . upon the return of the remittitur in the case.’ [Cit.]” Johnson v. Lomas Mtg., 201 Ga. App. 562, 565 (5) (411 SE2d 731) (1991).

Judgment affirmed with damages.

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

Decided September 23, 1992.

Stephen McBride, pro se.

Michael J. Bowers, Attorney General, Beverly B. Martin, Senior Assistant Attorney General, Matthew D. Williams, for appellee.


text:
    A92A1513.
    SOUTHEASTERN AUTOMOTIVE WAREHOUSE, INC. v. McCURDY.
    (422 SE2d 574)
   Pope, Judge.

Plaintiff Southeastern Automotive Warehouse, Inc., extended a line of credit to Carmichael’s Automotive Warehouse, Inc. (“Carmichael’s”). The form application for the line of credit was filled out and signed by defendant Carol McCurdy, who was president of Carmichael’s. In the space provided on the application for the amount of credit requested, defendant wrote “$500 - $5000.” Also contained in the document was a paragraph stating that the undersigned agreed personally to guarantee payment for goods purchased. At the end of the document defendant signed her name on the space provided for “Signature” and on the space provided below for “Title,” defendant wrote “President.” Plaintiff supplied automobile parts to Carmichael’s and ultimately brought suit against Carmichael’s on the open account and against defendant as guarantor, praying for judgment of over $38,000. Summary judgment was granted to defendant and plaintiff appeals.

We affirm. Even if, as plaintiff argues, defendant signed the guaranty agreement in her personal capacity, defendant is discharged from the entire debt because plaintiff, the creditor, increased the guarantor’s risk by extending Carmichael’s credit beyond the credit limit agreed to in the credit application/guaranty agreement. See West &c. Bldg. Materials of Savannah v. Liberty Mtg. Corp., 160 Ga. App. 323 (287 SE2d 320) (1981). Contrary to plaintiff’s argument, the facts of the case now before us are distinguishable from those in Brock Candy Co. v. Craton, 33 Ga. App. 690 (127 SE 619) (1925) (in which we held the surety, who agreed to obligate himself up to a certain amount of debt owed by the principal debtor but did not specify any limit to the credit which might be extended to the debtor, was not discharged by the creditor’s extension of credit beyond the amount guaranteed by the surety), for the same reasons we noted in the West opinion.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

Decided September 23, 1992.

Reinhardt, Whitley & Wilmot, Robert C. Wilmot, for appellant.

Allen, Kelley & Sowell, D. Lynn Kelley, for appellee.


text:
    A92A1736.
    LEE v. BARTUSEK et al.
    (422 SE2d 570)
   McMurray, Presiding Judge.

This is an action for damages arising from a motor vehicle collision. The collision occurred at approximately 9:15 p.m. on February 15, 1991, at the intersection of Holcomb Bridge Road and Peachtree Industrial Boulevard in Gwinnett County. On the evening in question there was a power outage in the vicinity of the intersection. The traffic signal at the intersection was completely dark as were the adjacent commercial buildings and parking lots.

The vehicle driven by plaintiff was traveling west on Holcomb Bridge Road. Plaintiff was familiar with the intersection, saw that the traffic signal was out as he approached the intersection, and stopped the vehicle at the stop line before entering the intersection. When plaintiff looked to the right, while he was stopped, he saw the approaching headlights of the Bartusek vehicle approximately 250 yards away. Plaintiff then proceeded forward into the intersection and did not look to the right again or see the Bartusek vehicle again prior to the collision. Defendant Josh Bartusek driving south on Peachtree Industrial Boulevard did not see the intersection and saw the car driven by plaintiff so short a time prior to the collision that he was unable to react and apply the brakes.

Plaintiff Lee alleged that defendant Josh Robert Bartusek’s negligent operation of his parents’ vehicle caused the collision with the vehicle plaintiff was driving. Josh’s parents, Darold Bartusek and Sheryl Bartusek, are named as additional defendants under the family purpose doctrine. Plaintiff Lee appeals following a verdict and judgment in favor of defendants. Held:

1. Thirteen of plaintiff’s enumerations of error complain of the trial court’s refusal to include all or part of fifteen of plaintiff’s requested instructions in the charge to the jury. We have examined each of the requested instructions and conclude that there was no error in omitting them since each is either an incorrect statement of the law, not adjusted to the evidence or pleadings, or covered in substance in the charge given to the jury. “ ‘ “In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge. (Cit.)” (Cit.)’ Brown Realty Assoc. v. Thomas, 193 Ga. App. 847, 850 (6) (389 SE2d 505) (1989).” Coastal Equities v. Chatham County Bd. of Tax Assessors, 201 Ga. App. 571, 574 (411 SE2d 540).

2. Two of plaintiff’s enumerations of error complain of the inclusion in the charge to the jury of certain language requested by defendant. The trial court did not err in including a charge based on the rule stated in Essig v. Cheves, 75 Ga. App. 870 (5) (44 SE2d 712), and Laseter v. Clark, 54 Ga. App. 669 (2) (189 SE 265). This charge was a correct statement of the law and was adjusted to the evidence.

Plaintiff also complains of the trial court charging the jury that “a person traveling on a subservient street has a burden of yielding when intersecting with a through street at an uncontrolled intersection.” This language is a correct statement of the law and is apparently derived from this court’s decision in Smith v. Hiawassee Hardware Co., 167 Ga. App. 70, 74 (10) (305 SE2d 805). In Smith, this Court found in OCGA '§ 40-6-70 (b) an “exception to the general rule of subsection (a) where the vehicle coming from the right is driving on a minor or subservient street or road and intersecting with a through highway.” But what is meant by a minor or subservient street or road?

In the case sub judice, defendants rely upon testimony from Gwinnett County’s Director of Transportation that Peachtree Industrial Boulevard was the major or through street and that Holcomb Bridge Road was the subservient road. However, this opinion was based entirely on the manner in which the traffic signal was programmed, that is, that in the event of a malfunction a “conflict monitor” in the traffic signal would place the signal in “flashing mode” causing it to flash yellow on Peachtree Industrial Boulevard and red on Holcomb Bridge Road, thus giving priority to traffic on Peachtree Industrial Boulevard.

In Smith, the subservient street was distinguished by its narrower width, the lesser volume of traffic, the fact that traffic from the opposite direction was controlled by a stop sign, the past presence of a stop sign, and the customary practices of the drivers on it and the intersecting through street. These factors would be apparent to a motorist approaching the intersection, particularly if the motorist was familiar with the intersection. In the case sub judice, both of the intersecting streets have four or more lanes suggesting that both are major traffic arteries. While Peachtree Industrial Boulevard is given priority in the event of certain traffic signal malfunctions, there is nothing in the record suggesting that the average motorist could reasonably discern that it is a more significant roadway than Holcomb Bridge Road.

OCGA § 40-6-70 (b), along with other provisions of the Uniform Rules of the Road, is intended to regulate motorists and thus must relate to factors which motorists may reasonably be expected to discern. Obviously, a passing motorist cannot discern the manner in which a traffic signal is programmed to address a non-existent situation and a motorist’s behavior cannot be regulated by such data secreted in the circuits of a machine.

It follows that the rule stated in Smith can be applicable only where motorists approaching an unregulated intersection may reasonably discern that one of the intersecting roads is a major through street to which other roads are subservient. There is no evidence suggesting that the intersection at issue in this case was of this type. Instead, the evidence shows that this case involves the intersection of two major thoroughfares of comparable prominence and that there was nothing discernible which would suggest to motorists that one of these streets enjoyed any priority over the other. Thus, the charge at issue, requested by defendants and included in the trial court’s charge to the jury, was not adjusted to the evidence at trial. However, we can perceive no harm to plaintiff since under the evidence in this case the correct and applicable rule from OCGA § 40-6-70 (a) is not altered by this charge. In either instance, plaintiff was obliged to yield to the vehicle on his right. Harmless error does not require reversal. Ingram v. Peterson, 196 Ga. App. 888, 891 (6) (397 SE2d 141).

3. Plaintiff’s 16th enumeration of error complains of the grant of defendants’ motion in limine striking plaintiff’s lost wages claim as an issue to be submitted to the jury. Since this enumeration goes only to the issues of damages, any error was rendered harmless by the verdict in favor of defendants on the issue of liability. Barnes v. Wall, 201 Ga. App. 228, 230 (3) (411 SE2d 270).

4. The testimony of an emergency room physician, who happened on the scene shortly after the collision, was admitted via the reading into evidence of a deposition. In his 17th enumeration of error plaintiff complains of the trial court’s overruling his objection to permitting the physician’s unresponsive answer to the question, “were there any other cars when you got there?” However, this enumeration of error is not supported by any argument or citation of authority and must be deemed abandoned. Pheil v. Southern Bell Tel. &c. Co., 201 Ga. App. 846, 847 (6) (412 SE2d 609).

5. In enumeration of error no. 18, plaintiff contends that the trial court erred in overruling his motion in limine attempting to bar Gwinnett County’s Director of Transportation from stating an opinion based on speculation and going to the ultimate fact to be decided by the jury. The opinion at issue was that “a person who is unfamiliar with that area would have difficulty realizing there was an intersection there.” However, this was not speculation but an opinion formed by this witness based on his observations of the scene shortly after the collision. This witness was qualified at trial as an expert capable of reconstructing accidents, arrived at the scene shortly after the collision, and testified in great detail as to his reconstruction of the collision. The trial court was authorized to conclude that this witness had ample opportunity for forming an opinion and had stated a proper basis for this opinion. Department of Transp. v. McLaughlin, 163 Ga. App. 1, 5 (3) (292 SE2d 435).

Decided September 23, 1992.

Sammy J. Hawkins, for appellant.

Greer, Klosik & Daugherty, John F. Daugherty, Charles M. Morris, for appellees.

6. Plaintiff’s 19th and final enumeration of error contends the trial court erred in sustaining an objection to a question put to defendant Josh Bartusek on cross-examination, “on your driver’s test you were taught to yield the right-of-way to the vehicles nearer the intersection, weren’t you?” The only support tendered by plaintiff for this enumeration of error is a citation to Isom v. Schettino, 129 Ga. App. 73 (199 SE2d 89). However, we find nothing in the cited case relevant to this issue. The evidence which plaintiff sought to elicit would only state the witness’ impression as to the law. The trial court was the proper source of instruction as to the law and under the circumstances of the case sub judice what the witness had been taught was irrelevant. This .enumeration of error is without merit.

Judgment affirmed.

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


text:
    A92A1848.
    THE STATE v. CORBETT et al.
    (423 SE2d 38)
   McMurray, Presiding Judge.

Defendants Corbett and Page are charged by indictment with a violation of the Georgia Controlled Substances Act, possession of cocaine. Defendant Corbett is also charged with driving under the influence of alcohol. The State appeals following the grant of defendants’ motion to suppress evidence. Held:

A police officer patrolling a residential area which had been the site of a number of recent burglaries drove past the residence of the parents of a fellow officer at approximately 1:45 a.m. The officer knew that the keys to this home had been taken in a recent burglary. The officer observed a light blue pickup parked at the bottom of the driveway with the motor running and saw one occupant in the vehicle. The patrolling officer was not familiar with this vehicle from previous drives by the residence and attempted by radio to contact the residents’ son in order to find out if the vehicle belonged there. Meanwhile on a second drive by, the officer saw a second occupant in the pickup. After making contact with the residents’ son and learning that the blue pickup was unknown to him, the patrolling officer returned to the residence, parked in the street behind the pickup and approached the vehicle. The officer went to the driver’s window and asked defendant Corbett what he was doing there. “He said he had been waiting for a friend, someone who lived in the house, and ... he advised [the officer] that the man’s name was John, or the person’s name was John, and he couldn’t advise [the officer] of [the] last name.” At that point the officer took defendant Corbett out of the vehicle, patted him down and put him in the back seat of the patrol car. The officer then approached the passenger side of the pickup, and had defendant Page step from the vehicle. As defendant Page was stepping out of the pickup, the officer noticed, on a ledge between the door and the seat, what appeared to be a piece of radio antenna with one end burned which the officer recognized as a straight shooter, an instrument in which crack cocaine is smoked. There was a little white substance in the end of the device. The officer handcuffed defendant Page and advised the defendants that they were under arrest for a violation of the Georgia Controlled Substances Act. After further conversation with defendant Corbett revealed that his eyes were red and glassy and that there was a heavy odor of alcohol on his breath, the officer decided to also charge defendant Corbett with driving under the influence.

The trial court found that defendant Corbett was placed under arrest when he was placed in the back seat of the patrol car, that there was no objective evidence of a crime being committed by either defendant at the time of this arrest, and that the discovery of the straight shooter and of defendant Corbett’s intoxication were the fruits of this illegal arrest. In concluding that defendant Corbett was placed under arrest when put in the patrol car, the trial court cites Florida v. Royer, 460 U. S. 491 (103 SC 1319, 75 LE2d 229), and notes that defendant Corbett “as a reasonable person would have believed that he was not free to leave.”

The police officer testified that he placed defendant Corbett in the back seat of the patrol car for his protection while he dealt with defendant Page. There were no handles on the inside of the back doors of the patrol car so that defendant Corbett could not have exited the vehicle. The officer testified that defendant Corbett was not in custody, but was not free to go and was being detained for investigation.

“ ‘ “Theoretically, there are at least three kinds of police-citizen encounters: verbal encounters involving no coercion or detention; brief ‘stops’ or ‘seizures’ which must be accompanied by a reasonable suspicion; and ‘arrests’ which must be supported by probable cause. (Cits.)” (Cit.)’ Calixte v. State, 197 Ga. App. 723, 725 (2) (399 SE2d 490) (1990).” State v. Akinsonwon, 200 Ga. App. 287 (407 SE2d 434). The trial court has held, and it is uncontroverted that there was no probable cause for the arrest of defendant Corbett at the time he was placed in the patrol car. The State argues that when defendant Corbett was placed in the patrol car, he was seized but not arrested.

Decided September 23, 1992.

Robert E, Keller, District Attorney, Daniel J. Cahill, Jr., Assis-

tant District Attorney, for appellant.

As previously noted, the trial court viewed defendant Corbett as under arrest when he was placed in the patrol car because a reasonable person would have believed that he was not free to leave. However, this is not the correct test to determine whether a person has been arrested but is the test for whether a person has been seized. State v. Akinsonwon, 200 Ga. App. 287, 288, supra; Ward v State, 193 Ga. App 137 (1), 138 (387 SE2d 150); King v. State, 161 Ga. App. 382 (1), 383 (288 SE2d 644). The correct test for determining whether a suspect has been arrested is whether a reasonable person in the suspect’s position would have thought the detention would not be temporary. Scretchen v. State, 192 Ga. App. 436 (1), 437 (385 SE2d 115).

It is uncontroverted that defendant Corbett was seized. However, under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889), we recognize that a police officer who lacks probable cause may momentarily detain a suspicious individual in order to determine his identity or to maintain the status quo while obtaining more information. Where the officer has the reasonable suspicion which will justify detaining a suspect briefly, we have approved of detention in the back seat of a patrol car for 10 to 15 minutes as being within the duration of the seizure contemplated under Terry v. Ohio. See Alexander v. State, 166 Ga. App. 233, 235 (2) (303 SE2d 773).

In using the test for whether a seizure has occurred to determine that defendant Corbett was arrested at the time he was placed in the patrol car, the trial court applied an inappropriate principle of law and erred. The trial court’s grant of defendants’ motion to suppress evidence must be reversed and the case remanded to the trial court for reconsideration of defendants’ motion to suppress evidence under correct principles of law.

Judgment reversed and case remanded with direction.

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

Jerry L. Patrick, Jr., Suelten Fleming, for appellees.


text:
    A92A0881.
    HUFF v. THE STATE.
    (422 SE2d 664)
   Pope, Judge.

Appellant/defendant Pierce Huff appeals his conviction for possession of cocaine with intent to distribute and improper lane usage. In his sole enumeration of error he alleges the trial court erred in denying his motion to suppress the cocaine seized from the vehicle he was driving.

Defendant contends the investigatory stop of the vehicle he was driving was pretextual rendering the contraband seized inadmissible. At the motion to suppress hearing the arresting officer testified that on November 9, 1990 at approximately 12:30 a.m., while performing his traffic control duties on 1-75 in Cherokee County, he observed the vehicle driven by defendant weave across the lines bounding defendant’s lane on two occasions. When he pulled behind defendant’s automobile to stop him for the traffic violation, defendant moved to another lane without signalling before pulling off the road. The officer testified he habitually pulled over the drivers of vehicles he observed weaving on the roads because often it was an indication the driver was under the influence of alcohol or falling asleep at the wheel.

The officer further testified he requested defendant to produce his license and proof of insurance. The defendant was unable to produce either. Defendant told the officer the car was rented to a friend of his and he was using it to visit another friend in Tennessee. The officer found defendant’s explanation of his trip and the fact that the car he was driving was rented to another to be suspicious. The officer testified that his suspicion was further heightened by defendant’s nervous behavior and the lack of luggage inside the vehicle.

The officer asked defendant if he would consent to a search of the vehicle. Defendant agreed and signed a consent to search form. Before performing the search, the officer called for a backup unit because the defendant kept moving behind him and would not follow the officer’s instruction. Two plastic bags containing 493 grams of 92 percent pure cocaine were found during the search of the vehicle.

In support of his pretextual stop argument defendant presented the testimony of others stopped in approximately the same area by the same officer, who testified the officer pulled over their vehicle for alleged traffic violations and later searched their vehicles for contraband.

In reaching its conclusion the contraband should not be suppressed, the trial court found the arresting officer’s testimony that he observed defendant commit traffic violations credible. Although the trial court recognized that there was some evidence supporting defendant’s pretextual stop argument, it found under the facts of this case, the stop was not pretextual. “ ‘On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgment made. The trial court’s findings must be adopted unless determined to be clearly erroneous. . . .’ [Cit.]” Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295) (1990). We hold that the trial court’s findings are supported by the record and its denial of defendant’s motion to suppress was proper. See Thomas v. State, 201 Ga. App. 292 (1) (410 SE2d 786) (1991); Guerrero v. State, 198 Ga. App. 397 (1) (401 SE2d 749) (1991); Williams v. State, 187 Ga. App. 409 (1) (370 SE2d 497), cert. denied, 488 U. S. 942 (109 SC 366, 102 LE2d 356) (1988); Coop v. State, 186 Ga. App. 578 (1) (a) (367 SE2d 836) (1988).

Decided September 8, 1992

Reconsideration denied September 24, 1992

Herbert Shafer, for appellant.

Darrell E. Wilson, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A1302.
    CITY OF ATLANTA v. LAMBRIGHT et al.
    (423 SE2d 265)
   Pope, Judge.

Appellee Mark Lambright was formerly an officer with the City of Atlanta Police Department. The officer was charged with violation of certain work rules of the department arising out of an incident in which he took and kept in his possession, in violation of departmental procedures, eight warm-up suits with price tags attached found in a stolen vehicle which was discovered by the officer and his patrol partner. When he was questioned by superior officers concerning the incident, the officer refused to respond on the advice of his attorney because he had been charged with the crime of receiving stolen property. Although the work rules he was charged with violating do not appear in the record, the record establishes that they related to standard of conduct and the requirement of obedience to the law, obedience to supervisory personnel and conformance to directives.

The officer was discharged and appealed to the City of Atlanta Civil Service Board. The board conducted a hearing at which the officer admitted taking the suits but offered as an explanation of his act that his judgment was impaired by stress from the shootings of three colleagues on the police force. In support of this explanation, the officer presented the testimony of a police department psychologist who had counselled the officer after the incident. The officer testified that he offered to give a statement at a later date and argued that his refusal to give a statement at the time it was requested by supervisory personnel was justified by his constitutional right not to be required to incriminate himself. The board reversed the dismissal and ordered the officer to be reinstated with back pay. The City of Atlanta filed a petition for certiorari to the superior court and the superior court conducted a hearing on the petition and rendered an order denying the petition and affirming the decision of the board. The City of Atlanta appeals.

1. In its written opinion, the board concluded that the issue of the officer’s theft of property was a “moot point” because he admitted the theft and was arrested for it. Thus, the board concluded that the charges for violation of the rules of conduct and failure to obey the law were matters which they need not address. The City of Atlanta argues that the superior court erred in affirming the board’s ruling because it is not supported by the evidence. We agree.

Pursuant to Section 3-503 (b) (4) of the Charter of the City of Atlanta, the civil service board “shall have such powers to dispose of . . . cases [relating to dismissal of employees] as shall be provided by ordinance . . . .” Ga. L. 1973, pp. 2188, 2213. Neither the ordinance setting forth the powers of the board nor the work rules the officer was charged with violating appear in the record of this case and we may not take judicial notice of them. See Hood v. Savannah, 247 Ga. 524 (277 SE2d 54) (1981). Thus, we cannot determine whether the work rules require or merely permit the dismissal of an officer who violates the rules. Neither can we determine if the board is permitted discretion to consider mitigating factors such as those the officer attempted to prove.

Even without evidence of the extent of the board’s discretion, however, the record shows the opinion of the board to be unsupportable and contrary to the evidence. It is contrary to logic for the board to conclude that the officer’s admission that he violated the law and the police department rule concerning conduct renders the charges against him moot. Moreover, that he faced criminal charges arising out of the same conduct is irrelevant to the issue of whether he is subject to discipline or discharge from his position as a police officer as a result of this conduct. In ruling on a petition for certiorari to an inferior judicial body, such as a civil service board, the superior court is required to apply the substantial evidence test. OCGA § 5-4-12 (b); Graham v. Wilkes, 188 Ga. App. 402 (373 SE2d 90) (1988); Smith v. Elder, 174 Ga. App. 316 (1) (329 SE2d 511) (1985). We find not only a lack of substantial evidence but no evidence at all, nor any rational basis, to support the board’s conclusion that the issue of the officer’s violation of the standard of conduct and the requirement of obedience to the law was rendered moot by his admission of the very act on which the two charges were based. Thus, the trial court erred in affirming the decision of the board in regard to these two charges. On remand, the trial court is ordered to remand the case to the board for a ruling on the two charges regarding conduct since it cannot reasonably be concluded that the issue of defendant’s theft is moot.

2. We also find a lack of substantial evidence for the board’s conclusion that the officer’s dismissal was improper on the ground of disparate treatment because the officer presented evidence that another officer had not been disciplined “for the same infraction.” In fact, the evidence showed that the other officer was prosecuted for driving under the influence and two counts of obstructing an officer during his arrest for the offense. Although the officer at issue in this case was also charged with a crime, the departmental charges against him in no way related to obstructing an officer arising out of his arrest but instead related to his failure to obey orders to give a statement to officers conducting the internal investigation of the incident. Thus, the board’s conclusion concerning the officer’s defense of disparate treatment was arbitrary, capricious and without rational basis. The trial court erred in affirming the board’s holding on this issue.

3. In regard to the charges for failure to obey supervisory personnel and to conform to directives, arising out of the officer’s refusal to give a statement to his superiors who investigated the incident, the board concluded that the department’s discipline was “unjust” and that “one should not be compelled to give evidence against one’s self.” The evidence shows the pre-printed form on which the officer was requested to make a written statement expressly states that although the officer is subject to dismissal for refusing to give a statement, neither the statement nor any information gained by reason of such a statement may be used against the officer in any subsequent criminal proceeding except perjury. Thus, we agree with the City of Atlanta that because the officer was not required to waive his constitutional right to freedom from self-incrimination and, in fact, was expressly offered use immunity for his statement, the requirement to give a statement was not an infringement upon his constitutional rights. See Garrity v. New Jersey, 385 U. S. 493 (87 SC 616, 17 LE2d 562) (1967); Hester v. Milledgeville, 777 F2d 1492 (11th Cir. 1985). Nevertheless, the evidence shows the officer offered, upon the advice of counsel, to give a statement at a later date. Even if we would reach a different conclusion concerning the appropriateness of the discipline for these charges, since the ordinance setting forth the powers and degree of discretion granted the board is not included in the record, we cannot conclude as a matter of law that the board abused its discretion in deciding that discipline under these circumstances was “unjust.” An appellate court reviewing the decision of an administrative board may not substitute its discretionary judgment for that of the board. Clark v. Ga. Kraft Co., 178 Ga. App. 884 (345 SE2d 61) (1986). Thus, we are constrained by the rules governing appellate review of administrative orders to hold that the trial court did not err in affirming the board’s decision on these two charges.

Decided September 8, 1992

Reconsideration denied September 24, 1992.

Overtis H. Brantley, Elizabeth B. Taylor, for appellant.

McKenney & Froelich, William J. McKenney, for appellee.

Judgment affirmed in part and reversed in part with direction.

Carley, P. J., and Johnson, J., concur.


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A92A1096.
    HOPE & ASSOCIATES, INC. v. MARVIN M. BLACK COMPANY.
    (422 SE2d 918)
   Carley, Presiding Judge.

Appellant appeals from an order of the superior court confirming an arbitration award in favor of appellee.

1. The arbitration award provided for appellee’s recovery of attorney’s fees. Appellant urges that, as a matter of law, attorney’s fees cannot be awarded in arbitration proceedings.

“In Georgia, attorney[’s] fees are recoverable only when authorized by statute or by contract. [Cit.]” (Emphasis supplied.) City of Lawrenceville v. Heard, 194 Ga. App. 580, 583 (2) (391 SE2d 441) (1990). There is no Georgia statute specifically authorizing the recovery of attorney’s fees in arbitration proceedings. However, the contract between appellee and appellant did specifically provide for the recovery of attorney’s fees by the “prevailing party” in arbitration proceedings. “The parties to a contract may establish by its terms any subject matter in which they have an interest so long as it is not prohibited by statute or public policy. . . .” Seaboard CLR Co. v. Freight Delivery Svc., 133 Ga. App. 92, 94 (1) (210 SE2d 42) (1974). Accordingly, the issue for resolution is whether the provision regarding attorney’s fees contained in appellee’s and appellant’s contract is prohibited by statute or public policy.

There is no general public policy against contracting for the recovery of attorney’s fees. See generally O’Brien’s Irish Pub. v. Gerlew Holdings, 175 Ga. App. 162, 165 (4) (332 SE2d 920) (1985). There is no reason to suggest that a contract for the recovery of attorney’s fees in arbitration proceedings would be violative of public policy. Indeed, the public policy of this state favors enforcement of the terms of an arbitration agreement. See OCGA § 9-9-3.

Appellant urges that there is a statutory prohibition on the right of parties to an arbitration agreement to contract for the recovery of attorney’s fees in arbitration proceedings. “Unless otherwise provided in the agreement to arbitrate, the arbitrator’s expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.” OCGA § 9-9-17 (formerly codified as OCGA § 9-9-97 (a)). By its terms, this statute does not specifically prohibit the parties from contracting for the recovery of attorney’s fees in arbitration proceedings. It merely addresses the allocation of the expenses of arbitration other than attorney’s fees and provides that, as to the allocation of those expenses, the award will control insofar as it is not inconsistent with the parties’ agreement. Thus, in the absence of any agreement by the parties as to the allocation of expenses other than attorney’s fees, the arbitrators’ award as to the allocation of those expenses will control. If, however, the parties themselves have agreed to an allocation of those expenses, the parties’ agreement will control notwithstanding the arbitrators’ determination as to allocation. To construe OCGA § 9-9-17 as a statutory prohibition on the right of parties to contract for the recovery of attorney’s fees would be to construe that provision as a statutory “restraint of the common-law right of freedom to contract. . . .” Fireman’s Fund Ins. Co. v. Pekor, 106 Ga. 1, 13 (31 SE 779) (1898). However, “[t]he common law leans towards that construction of all statutes, which is in favor of personal liberty, not that which is against personal liberty.” Elam v. Rawson, 21 Ga. 139, 143 (1857). Accordingly, construing OCGA § 9-9-17 according to its own terms, it does not purport to restrain the common-law right of freedom to contract for attorney’s fees in arbitration proceedings, but merely provides for the allocation of expenses- other than attorney’s fees.

Thus, there is no statutory prohibition on the right to contract for the recovery of attorney’s fees in arbitration proceedings. If the parties contract for attorney’s fees, that agreement will be enforced. If the parties do not contract for attorney’s fees, each party will be responsible for the payment of his own attorney’s fees. To the extent that Walton Acoustics v. Currahee Constr. Co., 197 Ga. App. 659 (399 SE2d 265) (1990) and Hughes & Peden v. Budd Contracting Co., 193 Ga. App. 656 (388 SE2d 753) (1989) construe OCGA § 9-9-17 as a statutory restraint on the common-law right of freedom to contract, those decisions are erroneous and are hereby overruled.

Decided September 24, 1992.

Scott E. Tinnon, for appellant.

Griffin, Cochrane, Marshall & Eiger, Terrence L. Croft, for appellee.

2. Appellant’s remaining enumeration of error requires consideration of the transcript of the arbitration hearing. The transcript of that hearing has not been provided on appeal. Accordingly, “we must assume that the trial court’s ruling confirming the arbitration award was correct. [Cits.]” Trend-Pak of Atlanta v. Arbor Commercial Div., 197 Ga. App. 137, 138 (1) (397 SE2d 592) (1990).

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Andrews and Johnson, JJ., concur. Beasley and Cooper, JJ., concur specially.

Beasley, Judge,

concurring specially.

I concur in the decision but not in the overruling of the two cases or the statement that they are erroneous. In Hughes & Peden v. Budd Contracting Co., 193 Ga. App. 656 (388 SE2d 753) (1989), the court made the point that it found “no mention of attorney fees in the agreement.” Thus it correctly decided that the award of attorney fees was not authorized. It was in error, however, in stating that OCGA § 9-9-97 “would forbid the award of attorney fees regardless of what the agreement might provide.” The trial court, which was affirmed even though this point was not agreed to, was correct in interpreting this Code section “as prohibiting the award of attorney fees except when the arbitration agreement provides otherwise,” because there is no statutory authority for such.

Walton Acoustics v. Currahee Constr. Co., 197 Ga. App. 659 (399 SE2d 265) (1990), is not erroneous either, on this point. There was no provision for attorney fees in the contract. Instead, appellant Walton cited OCGA § 13-6-11 as statutory authority for the fees awarded to it by the arbitrator. The court correctly ruled that this Code provision did not apply to arbitration proceedings which are governed by OCGA § 9-9-97. Whether the court would have agreed with the dicta in Hughes & Peden regarding the enforceability of a contract is problematic and subject to speculation. Walton Acoustics should not be overruled with respect to these issues.

I am authorized to state that Judge Cooper joins in this opinion.


text:
    A92A1581.
    VEAL v. THE STATE.
    (422 SE2d 920)
    Decided September 24, 1992.

      Donna L. Avans, for appellant.

      Donald E. Moore, Solicitor, for appellee.
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of driving under the influence. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

Appellant enumerates only the general grounds. The evidence showed that appellant was found sleeping in his car parked on the side of the road. A number of empty beer cans were in the car and appellant’s breath smelled of alcohol. Appellant was unsteady on his feet and his speech was slurred. He refused a breath test. It was undisputed that appellant and no one else had driven the vehicle. On this evidence, the jury was authorized to find appellant guilty of driving under the influence. Brooks v. State, 187 Ga. App. 194, 195 (1) (369 SE2d 801) (1988); Lewis v. State, 149 Ga. App. 181 (1) (254 SE2d 142) (1979). When construed most favorably for the State, the evidence was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope and Johnson, JJ., concur.