author: McMurray, Presiding Judge. Pope, Chief Judge,

text:
    A94A0500.
    A94A0501.
    TAEGER ENTERPRISES, INC. v. HERDLEIN TECHNOLOGIES, INC. TAEGER ENTERPRISES, INC. v. OEHLER.
    (445 SE2d 848)
   McMurray, Presiding Judge.

After it was left unpaid for labor and services provided, plaintiff Taeger Enterprises, Inc. (“Taeger”), a Florida corporation, brought an action in the Superior Court of Columbia County, Georgia, alleging a variety of contract and tort claims against defendants Wallace Herdlein & Associates, Inc. (“Herdlein”), Herdlein’s trade name, Herdlein, Inc., Herdlein’s president, Cole Oehler, Jr., MetoKote Corporation (“MetoKote”), and John Deere Commercial Products, Inc. (“John Deere”). By amendment, Taeger alleged that defendant Herdlein Technologies, Inc. (“HTI”) was “a corporation closely affiliated with” Herdlein and for “all purposes in Counts Three and Four of this Complaint, [HTI] is incorporated within the meaning of [Herdlein].” Herdlein and Oehler jointly answered and denied the material allegations except that Herdlein admitted to transacting business in Georgia and admitted being indebted to Taeger in the amount of $57,047.91 as alleged in the complaint. HTI denied all material allegations. John Deere and MetoKote settled with Taeger and were dismissed. Herdlein filed for federal bankruptcy protection and also was dismissed. As against the remaining defendants, Oehler and HTI, Count 3 of the complaint alleged that Taeger was fraudulently induced to perform services by Oehler and HTI when neither had any intention of paying for those services. Count 4 alleged a conversion of Taeger’s property in the form of money owed to the insolvent Herdlein. HTI and Oehler each moved for dismissal of the complaint based upon the lack of personal jurisdiction. In separate orders, the trial court granted the respective motions to dismiss. In Case No. A94A0500, Taeger appeals from the order dismissing the complaint as against HTI and in Case No. A94A0501, Taeger appeals from the order dismissing the complaint against Oehler. Taeger raises identical enumerations of error arising out of substantially the same set of facts. Upon motion, the cases have been consolidated for disposition in this single opinion. Held:

In support of their motions to dismiss, Oehler and HTI adduced the following, mostly undisputed, facts: Herdlein, doing business as Herdlein, Inc., submitted to MetoKote a proposal to design, build, and install a wet paint finishing system on MetoKote’s premises in Columbia County, Georgia, which was leased from John Deere. Herdlein’s proposal was revised on June 27, 1991, and on August 6, 1991, MetoKote gave written notice of acceptance addressed to “Wallace Herdlein.” The paint system was designed and prefabricated outside of Georgia. Herdlein is an Illinois corporation, which is a wholly-owned subsidiary of a Swiss company. HTI is a separate Illinois corporation, formed on April 8, 1991, and wholly-owned by George Karahalios, an Illinois resident. In his affidavit, Karahalios deposed that he is the sole shareholder and director of HTI and that he and his wife are the only officers. Karahalios formerly had been an employee and vice president of Herdlein until his resignation on April 1, 1991, and neither he nor his wife has ever been a director, or shareholder of Herdlein. HTI offers engineering and design consulting services, primarily to Herdlein but also to anyone else engaged in a similar business or requiring such services. HTI rents space and secretarial services from Herdlein at the latter’s corporate headquarters in Illinois but maintains its own books of account, separate from any maintained by Herdlein. Karahalios denied that HTI had ever entered into any contract with Taeger. According to him, HTI contracted with Herdlein in Illinois to provide engineering consulting services to Herdlein as a subcontract to Herdlein’s MetoKote project. All of HTI’s services to Herdlein on this project were performed either in Illinois or Ohio. Karahalios admitted visiting the site in Georgia once for 15 minutes while he was otherwise in the Augusta area on behalf of a non-party to this action, but deposed that HTI “has not and does not solicit business in” or “engage in any course of conduct in” or “transact business in the State of Georgia.” In a subsequent affidavit, after examining HTI’s earnings, Karahalios deposed that HTI “has derived no revenue whatsoever from business transacted in Georgia.”

In support of his motion, Oehler deposed by affidavit that he is an Illinois resident and the former president of Herdlein. He has never been a director of or shareholder in Herdlein. As the authorized and disclosed agent of Herdlein, he negotiated with Taeger for the installation subcontract. Negotiations between Taeger and Herdlein took place in the Herdlein office in Illinois and subsequent communications with Taeger were conducted between the Illinois office of Herdlein and the Florida office of Taeger. Oehler deposed that inquiries made by Taeger to Herdlein regarding sums owed Taeger under its subcontract originated from Taeger’s Florida office. He stated that he visited the Georgia site once and spoke briefly with Herdlein’s project manager but that “no financial dealings were discussed with Taeger representatives or anyone else during that trip.” All financial decisions of Herdlein were made in Illinois and “all payment checks to Taeger were drafted in Illinois and sent to Taeger’s Florida office.” Oehler further deposed that he had “never personally conducted any business on my own behalf in the State of Georgia,” in that he “never solicited business, engaged in any persistent course of conduct or derived revenue from Georgia.” He identified as true and correct a copy of the revised proposal accepted by MetoKote. This proposal was submitted by Wallace Herdlein & Associates doing business as Herdlein, Inc. and contains no reference to HTI, either as a named party nor as an entity offering a limited warranty.

In opposition to the motions to dismiss, Taeger submitted the affidavit of its president, Jerry Taeger, whom we quote at length: After he had complained to Oehler that Taeger was not getting paid, Oehler “repeatedly promised deponent that there was money coming into Wallace Herdlein & Associates, Inc. and that deponent would certainly be paid if deponent kept on working on the job.” As to HTI, Taeger deposed that Karahalios twice came to the Georgia job site “for the purpose of consulting with MetoKote Corporation and then checking Plaintiff’s work. On each occasion Mr. Karahalios did spend time with MetoKote Corporation and then toured the job site, checked out Plaintiff’s work, and complimented the deponent on the Plaintiff’s work. During each of those trips Mr. Karahalios dealt with deponent regarding the construction project and the deponent’s work on it at the job site in Columbia County, Georgia.” Taeger further deposed that he was “under the impression that Herdlein Technologies, Inc. was simply a part of Wallace Herdlein & Associates, Inc. and not a separate corporation. No one, during the course of the construction job in question, told deponent that Herdlein Technologies, Inc. was a separate corporation.” As an exhibit to his affidavit, Taeger attached a copy of a 90-day promissory note dated April 6, 1992, and signed by Oehler in his capacity as president of Herdlein. The note was in the amount of $58,789.91 and recites that it was offered in exchange for Taeger’s promise not to assert a claim of lien against the real property of John Deere in Augusta, Georgia. An additional exhibit is a copy of Herdlein’s bankruptcy petition, filed on July 16, 1992. In further opposition to the motions to dismiss, Taeger relied upon MetoKote’s answer to the complaint and allegations in MetoKote’s cross-claim wherein MetoKote “admitted” that HTI was subject to the jurisdiction of the Superior Court of Columbia County, Georgia. Also Taeger relied upon MetoKote’s responses to interrogatories, wherein MetoKote states “Herdlein Technologies participated in the bid procedure and the installation of the wet paint system at the John Deere plant in Columbia County, Georgia” and that MetoKote has “numerous cancelled checks in its possession that indicate it paid Herdlein Technologies, Inc. and Wallace Herdlein for all services performed on the installation of the wet paint system.” Also, Taeger submitted a copy of a letter of September 23, 1991, sent by Karahalios under the HTI letterhead to a MetoKote representative in Lima, Ohio, confirming financial details resulting from design changes to the Herdlein proposal as originally accepted by MetoKote.

1. In related enumerations of error, Taeger contends that the dismissal of his complaint was erroneous as to each non-resident defendant because the evidence is conflicting and because that evidence shows the commission of a tort with consequences in Georgia by defendants transacting business in Georgia. OCGA § 9-10-91 (3) provides that a “court of this state may exercise personal jurisdiction over any nonresident . . . as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he . . . [c]ommits a tortious injury in this state caused by an act or omission outside this state if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state.” Contending that its evidence shows that Oehler and HTI are subject to the jurisdiction of the Superior Court of Columbia County, Georgia, pursuant to • OCGA § 9-10-91 (3), Taeger enumerates the grant of defendants’ motions to dismiss due to the absence of personal jurisdiction.

A defendant who files a motion to dismiss pursuant to OCGA § 9-11-12 (b) (2) “ ‘has the burden of proving lack of jurisdiction. [Cits.] A motion to dismiss for lack of personal jurisdiction must be granted if there are insufficient facts to support a reasonable inference that defendant can be subjected to the jurisdiction of the court. To demonstrate that the court lacks jurisdiction, defendant may raise matters not contained in the pleadings. However, when the outcome of the motion depends on unstipulated facts, it must be accompanied by supporting affidavits or citations to evidentiary material in the record. See Uniform Superior Court Rule 6.1. [Cit.] Further, to the extent that defendant’s evidence controverts the allegations of the complaint, plaintiff may not rely on mere allegations, but must also submit supporting affidavits or documentary evidence. [Cit.]’ ” Scovill Fasteners v. Sure-Snap Corp., 207 Ga. App. 539 (428 SE2d 435). “ ‘If the motion is decided on the basis of written submissions alone, as was the motion in this case, disputes of fact found in the affidavits are resolved in favor of plaintiff. See generally, C. Wright and A. Miller, 5 Federal Practice and Procedure, § 1351 (West 1969, 1989 Supp.). Further, if a motion is decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard; [Cit.]’ Beasley v. Beasley, 260 Ga. 419, 420 (396 SE2d 222).” Scovill Fasteners v. Sure-Snap Corp., 207 Ga. App. 539, 540, supra.

“[A]ffidavits made in support of [OCGA § 9-11-12 (b)] motions must conform to the requirements of [OCGA § 9-11-56 (e)]. Although the requirements of [OCGA § 9-11-56 (e)] are not expressly applicable to affidavits in general, those requirements stand as a codification of the common law requirements as to affidavits and hence are applicable as such. Bryan v. Ponder, 23 Ga. 480 (2) (1857); Levin v. Myers, 211 Ga. 474 (1) (86 SE2d 283) (1955); Kniepkamp v. Richards, 192 Ga. 509 (7) (16 SE2d 24) (1941); 2A CJS 481, Affidavits, § 43.” McPherson v. McPherson, 238 Ga. 271, 272 (1) (232 SE2d 552). Pursuant to OCGA § 9-11-56 (e), “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Verified pleadings also “must comply with the [CPA §] 56 (e) requirement that both supporting and opposing affidavits shall be made on ‘personal knowledge.’ Foskey [v. Smith, 159 Ga. App. 163, 164 (283 SE2d 33)].” Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843). See also Behar v. Aero Med Intl., 185 Ga. App. 845 (1), 846-847 (366 SE2d 223). An affidavit made or an attempt “made to verify the pleadings, not upon personal knowledge, but upon ‘ “ ‘the best of (affiant’s) knowledge’ (and belief), ... is just a variation of . . . ‘information and belief.’ ” ’ Spires v. Relco, Inc., 165 Ga. App. 4 (2) (299 SE2d 58); [cits.]” Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596, supra. With respect to artificial entities, a pleading “may be verified by any agent of the corporation who can and will depose positively to the facts stated therein. An answer [or other pleading] sworn to by an agent ‘to the best of his knowledge and belief is not properly verified without a further statement pointing out what facts he knows and what facts he believes, together with the grounds of his belief.” Plant & Son v. Mut. Life Ins. Co., 92 Ga. 636, hn. 2 (19 SE 719). However, where it appears that the facts contained therein are based upon personal knowledge, “the failure of the affidavits to assert they were made on personal knowledge will not require disregarding them.” Mathews v. Brown, 235 Ga. 454, 456 (219 SE2d 701). Bare conclusions generally may not be used in affidavits to support or oppose CPA § 12 (b) motions. Holloway v. Dougherty County School System, 157 Ga. App. 251, 254 (277 SE2d 251). See also McPherson v. McPherson, 238 Ga. 271, 272 (1), supra.

The affidavits and exhibits submitted in the case sub judice to support the OCGA § 9-11-12 (b) (2) motions made out a prima facie case that the Superior Court of Columbia County, Georgia, lacked personal jurisdiction over Oehler and HTI for the torts of fraud and conversion allegedly committed without the territorial limits of Georgia but allegedly having consequences within those territorial limits, within the purview of OCGA § 9-10-91 (3). Application of the evidentiary principles stated above to the evidence submitted in rebuttal yields the following results:

MetoKote’s answers to HTI’s interrogatories are the bare legal conclusion asserting the existence of a contractual relationship between MetoKote and HTI, for they are unsupported by any statement of facts within the personal knowledge of the corporate officer verifying MetoKote’s responses that HTI made any offer which MetoKote accepted. Moreover, certain answers appear to be mere unsworn statements made by counsel and not statements made under oath by a proper officer of the corporate party. See OCGA § 9-11-33 (a); Plant & Son v. Mut. Life Ins. Co., 92 Ga. 636, hn. 2, supra. “The plain and unambiguous terms of CPA § 33 require a party to answer personally his opponent’s interrogatories under oath. Interrogatories are not pleadings and counsel cannot answer them.” Gregory v. King Plumbing, 127 Ga. App. 512 (1a) (194 SE2d 271). It follows that counsel’s unsworn “answers to interrogatories are hearsay and inadmissible at the trial unless they fall within some recognized exception to the hearsay rule.” Carter v. Tatum, 134 Ga. App. 345, 346 (1), 347 (212 SE2d 439). Compare Woodson v. Burton, 241 Ga. 130 (1) (243 SE2d 885). In response to Taeger’s interrogatories, John Deere and MetoKote jointly submitted the properly verified statement that “John Deere and MetoKote have in their possession checks indicating payments by MetoKote to the Herdlein defendants.” This statement simply is not evidence that HTI was a party to the written contract between Herdlein and MetoKote or that MetoKote entered into a separate agreement with HTI for services to be performed in Georgia. Notably, Taeger does not refer this court to any MetoKote checks made payable to any Herdlein entity or trade name but which were negotiated by HTI. Jerry Taeger’s affidavit that Oehler and Karahalios visited the Columbia County, Georgia, site for the “purpose” of checking up on Taeger’s installation work is mere speculation as to another person’s intent. “A witness may not ordinarily testify ‘as to what the intent, purpose or contemplation of another may have been in a given situation.’ Summer v. Allison, 127 Ga. App. 217 (1) (c) (193 SE2d 177) (1972).” Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 274 (5) (329 SE2d 900). Since Jerry Taeger’s speculation as to intent is no stronger or more persuasive than the facts upon which that opinion is based, we consider those alleged facts only. Michaels v. Gordon, 211 Ga. App. 470, 472 (2), 473 (2a) (439 SE2d 722). See also McPherson v. McPherson, 238 Ga. 271, 272 (1), supra. Resolving the conflicting evidence in favor of the plaintiff, the facts alleged would show that Karahalios twice complimented Jerry Taeger on his work and told him: “We want to keep good installers.” Taeger’s ignorance of the fact that HTI has a corporate existence separate and apart from Herdlein is not competent evidence that HTI was an alter ego of Herdlein such that the actions of Herdlein in Georgia would be attributable to HTI. See Collins v. Sheller-Globe Corp., 194 Ga. App. 263 (1) (390 SE2d 294). The fact that HTI and Herdlein shared offices, secretarial assistance, and telephone numbers is not evidence that HTI, as opposed to Herdlein, engaged in any persistent course of conduct in Georgia or derived substantial revenue from services performed here, since HTI as a “corporation is prima facie a distinct legal entity with rights and liabilities which are separate from those of’ its sole shareholder and also from Herdlein. Midtown Properties v. George F. Richardson, Inc., 139 Ga. App. 182, 185 (4) (228 SE2d 303). Karahalios’ letter to MetoKote personnel in Ohio is not evidence that HTI established any purposeful contact with Georgia. The fact that Herdlein subcontracted to HTI some aspects of Herdlein’s contractual obligations to MetoKote “would ‘not have the effect of changing the relationship of the parties (to the writing, nor would it) result in a direct contract between the ([offeree, MetoKote and HTI] as the intended subcontractor).’ McGinnis v. Milhollin, 64 Ga. App. 462, 463 (13 SE2d 591) (1941).” Crispens Enterprise v. Halstead, 209 Ga. App. 133 (1), 134 (433 SE2d 353). The bare reference to HTI in the boilerplate language of Herdlein’s standard terms, conditions, and warranties, as found in the September 1991 modification to the existing August 6, 1991, contract between Herdlein and MetoKote did not make HTI an additional party to that writing. Crispens Enterprise v. Halstead, 209 Ga. App. 133 (1), 134, supra. Oehler’s two visits to the site are not sufficient to constitute the basis for Long Arm jurisdiction in Georgia. “Mere telephone or mail contact with an out-of-state defendant, or even the defendant’s visits to this state, is insufficient to establish the purposeful activity with Georgia required by the ‘Long Arm’ statute. E.g., O. N. Jonas Co. v. B & P Sales Corp., 232 Ga. 256 (206 SE2d 437) (1974).” Wise v. State Bd. for Examination &c. of Architects, 247 Ga. 206, 208 (2), 209 (274 SE2d 544). Likewise, the two alleged visits by Karahalios to the job site, wherein he complimented Taeger’s work and told him “We want to keep good installers,” would establish only a fortuitous or attenuated contact with the forum state, and would not establish corporate activities which are only continuous and systematic in addition to giving rise to the liabilities sued on. See Wise v. State Bd. for Examination &c. of Architects, 247 Ga. 206, 208 (2), 210, supra. Jerry Taeger’s further assertion that Karahalios “dealt” with him on those visits is a bare conclusion unsupported by specific factual allegations and so fails to show HTI’s persistent conduct purposefully directed to the forum state related to the causes of action.

After a careful examination of the record, with all reasonable inferences drawn in favor of authorizing the exercise of Long Arm personal jurisdiction, we conclude that the material facts are undisputed or are unrefuted by competent evidence. Pursuant to those undisputed material facts, neither Oehler personally nor HTI via its agent Karahalios “[transacts any business within this state” within the meaning of OCGA § 9-10-91 (1). Behar v. Aero Med Intl., 185 Ga. App. 845, 847 (2), 848, supra. Neither Oehler personally nor HTI via its agent, as alleged tortfeasors, “regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state” as required by OCGA § 9-10-91 (3). State of South Carolina v. Reeves, 205 Ga. App. 656, 657 (1) (423 SE2d 32). The trial court correctly determined that neither Oehler nor HTI is subject to the exercise of personal jurisdiction over them by the Superior Court of Columbia County in Taeger’s suit for fraud and conversion under the authority of OCGA § 9-10-91.

2. Additionally, the trial court correctly dismissed Taeger’s complaint against each defendant due to the lack of personal jurisdiction as it appears that any tortious conduct committed outside of Georgia has had no in-state consequences so as to invoke the protective policy of this state to provide “ ‘redress in its own courts against persons who inflict injuries upon, or otherwise incur obligations to, those within the ambit of the State’s legitimate protective policy.’ ” Coe & Payne Co. v. Wood Mosaic Corp., 230 Ga. 58, 61 (195 SE2d 399). The

Georgia Long Arm Statute “requires that an out-of-state defendant must do certain acts within the State of Georgia before he can be subjected to personal jurisdiction. Where . . . it is shown that no such acts were committed, there is no jurisdiction.” Gust v. Flint, 257 Ga. 129, 130 (356 SE2d 513). “[A] ‘tortious’ act is a composite of both negligence and damage, and if damage occurred within the state then the tortious act occurred within the state within the meaning of subsection ([3]) of the Long Arm Statute.” Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60, supra. Conversely, if, as a result of an out-of-state act or omission, no damage has occurred within Georgia, then no tortious act occurred within this state within the meaning of OCGA § 9-10-91 (3). “To say otherwise would result in an unconstitutionally broad construction of Georgia’s Long Arm Statute.” State of South Carolina v. Reeves, 205 Ga. App. 656, 657 (1), 658, supra. The undisputed course of conduct whereby Herdlein performed its contractual obligation of payment for services rendered was to mail from “the company’s Illinois office” a total of $53,000 in checks which were “drafted in Illinois and sent to Taeger’s Florida office.” The alleged tort of conversion would have been committed in Illinois, where, according to Oehler’s unrefuted affidavit, “ [a]ll financial decisions of Wallace Herdlein were made. . . .” Any injury resulting from that alleged conversion occurred in Florida, when money received by Herdlein was not paid over to Taeger in accordance with Herdlein’s contractual duties and Taeger’s contractual rights and reasonable expectations. Similarly, the alleged fraud in inducing Taeger to continue to perform services in Georgia under its express subcontract with Herdlein, at a point when Taeger had doubts about the solvency of the latter, would result in damage to Taeger only when Herdlein failed to pay. That failure to pay, according to the past performance of the parties to the contract, was a failure to mail to Florida a check drafted in Illinois. Such an allegedly tortious failure to pay in the manner heretofore contemplated has no meaningful connection with Georgia as the purported forum state.

3. Taeger’s remaining enumeration has been considered and is found to have been rendered moot.

Judgments affirmed.

Pope, C. J., and Smith, J., concur specially.

Pope, Chief Judge,

concurring specially.

In this case, a Florida corporation is suing an Illinois corporation and an individual Illinois resident for fraud and conversion. The alleged acts of fraud and conversion occurred in Illinois and caused injury in Florida. Georgia simply has no interest in this action, and the mere fact that the alleged tortious acts occurred in the context of a dispute about a contract relating to a project in Georgia does not provide such an interest. “Jurisdiction must be predicated on the existence of ties among the defendants, this state, and the litigation, so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Shaffer v. Heitner, 433 U. S. 186 [(97 SC 2569, 53 LE2d 683) (1977)].” Hart v. DeLowe Partners, Ltd., 147 Ga. App. 715, 717 (2C) (250 SE2d 169) (1978). As these ties do not exist here, I agree that the trial court did not err in dismissing plaintiff’s suit.

Decided July 1, 1994.

Jay M. Sawilowsky, for appellant.

Fulcher, Hagler, Reed, Hanks & Harper, James W. Purcell, Hull, Towill, Norman & Barrett, George R. Hall, for appellees.

I am authorized to state that Judge Smith joins in this special concurrence.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A94A0694.
    FLOYD et al. v. PIEDMONT HOSPITAL, INC.
    (445 SE2d 844)
   Smith, Judge.

Appellants Doris P. Floyd and Daniel E. Floyd brought, voluntarily dismissed, and then renewed this action against appellee Piedmont Hospital, Inc. (“Piedmont”) and Dr. Michael Goodman for medical negligence and loss of consortium. In the original action, Piedmont timely challenged the sufficiency of service in its answer. Piedmont filed a motion for summary judgment in the renewed action, asserting that the complaint against it was barred under the applicable two-year statute of limitation for medical malpractice actions. OCGA §§ 9-3-34; 9-3-71. See Perry v. Atlanta Hosp. &c. Center, 255 Ga. 431 (339 SE2d 264) (1986). The motion was granted, and the Floyds appeal.

While she was recovering from surgery, Doris Floyd suffered post-operative spinal meningitis in December 1989, but appeared to recover. However, she suffered a debilitating recurrence of the illness on January 8, 1990. The gist of the Floyds’ action is that Dr. Goodman and certain nurses at Piedmont failed to respond in a timely and appropriate manner to symptoms signaling the onset of the second bout of meningitis, which resulted in major and permanent neurological impairment.

Piedmont Hospital is located in Fulton County at 1968 Peachtree Road, N.W., Atlanta, Georgia, 30309. The original complaint was filed January 6, 1992 in the State Court of Fulton County. It disclosed that Piedmont could be served “by service upon its registered agent for service of process, Marlena LaFavers, 4062 Peachtree Road, N.E., Atlanta, Georgia, 30319.” The latter address is in fact the location of a satellite medical care facility in DeKalb County.

On January 23, 1992, counsel for the Floyds spoke with the docket clerk and discovered that Piedmont had not been served. No problem in serving Piedmont had been indicated prior to that date. Counsel then arranged to have the complaint served by a private process server. That same day copies of the summons and complaint were delivered to Eleanor Freund at Piedmont Hospital.

Piedmont answered, raising insufficiency of service as a defense, and subsequently filed a “motion for summary judgment” on that basis. On June 11, 1992, the Floyds served Piedmont’s registered agent at the DeKalb County location. The Floyds voluntarily dismissed the action on July 2, 1992. A renewal action was filed pursuant to OCGA § 9-2-61 on September 29, 1992, and Piedmont was timely served.

With the benefit of hindsight, the Floyds concede that these latter efforts, based on the since disapproved view of renewal taken in Fine v. Higgins Foundry &c. Co., 201 Ga. App. 275, 276-277 (1) (b) (410 SE2d 821) (1991), did not serve to eliminate the issue of whether the statute of limitation had run in the original action. See Hobbs v. Arthur, 209 Ga. App. 855, 857-858 (2) (434 SE2d 748) (1993). Moreover, the Floyds do not suggest that the subsequent service on Piedmont’s registered agent could be considered timely as a matter of law. The question of whether the dismissal of Piedmont was proper in the renewed action turns, therefore, on whether the first attempted service in the original suit was both timely and made on a person eligible to receive service on Piedmont’s behalf.

1. We first consider whether the service relied upon was sufficient to confer upon the court jurisdiction over Piedmont, as appellants contend. “Since the object of service of process is to transmit notice of suit to the corporation, it must be made on an agent whose position is such as to afford reasonable assurance that he will inform his corporate principal that such process has been served upon him. [Cit.]” Scott v. Atlanta Dairies Cooperative, 239 Ga. 721, 724 (2) (238 SE2d 340) (1977). On the other hand, it is well settled that service of process upon a “mere employee” of the corporation does not satisfy the requirements of OCGA § 9-11-4 (d) (1). See, e.g., Northwestern Nat. Ins. Co. v. Kennesaw Transport, 168 Ga. App. 701, 702 (309 SE2d 917) (1983). This court has held that “if the employee is not an officer or has not been expressly designated by the corporation to receive service, it is necessary that he or she occupy some position of managerial or supervisory responsibility within the organization. [Cits.]” Whatley’s Interiors v. Anderson, 176 Ga. App. 406, 407 (2) (336 SE2d 326) (1985).

“Where the evidence is conflicting with respect to the authority of an employee to receive service, the issue becomes one of fact to be resolved by the trial judge. [Cit.]” Id. The trial court expressly found no issue of material fact in the case. Strictly speaking, it therefore follows that the court made no findings of fact with respect to Freund’s authority to receive service on behalf of Piedmont. We likewise find that no issue of material fact exists with respect to the question of Freund’s authority to receive service and that the issue may be decided as a matter of law, but these findings lead us to a conclusion that does not support the trial court’s judgment.

Freund confirmed by deposition that her salary was higher than that received by some of Piedmont’s department heads. She likewise confirmed that she had been delegated a “great deal of responsibility” by past and present hospital presidents.

The evidence also shows that Piedmont is a nonprofit corporation whose sole “member” is Piedmont Medical Center, Inc. (“PMCI”). See OCGA § 14-3-140 (20). According to its articles of incorporation, PMCI was “organized exclusively for the benefit of, to perform the functions of, and to carry out the charitable, scientific and educational purposes of [Piedmont] by providing financial support, management services, educational services, long-range planning, coordination and supervision to the hospital . . . and such other acts or activities as may be requested by the hospital. . . .”

At all times relevant to this case, Freund was the corporate secretary for PMCI. As an officer of the parent corporation within the meaning of OCGA § 9-11-4 (d) (1), Freund was a proper person to receive service of process on PMCI’s behalf as a matter of law.

Finally, we note that Piedmont and PMCI occupy the same physical space, and the members of Piedmont’s Board of Trustees likewise make up the Executive Committee of the Board of Directors of PMCI.

Even assuming that Freund does not herself manage or supervise the activities of others within Piedmont, we do not find this to be dispositive of the issue under these unique facts. In Browning v. Europa Hair, 244 Ga. 222 (259 SE2d 473) (1979), the question presented was whether a corporation’s attorney could be an “agent” of the corporation to receive service. Grasping the obvious, the Supreme Court did not engage in a strained attempt to find that a corporation’s attorney was necessarily charged with managerial or supervisory responsibility. Instead, the Court observed that “not every employee of a corporation is an agent subject to being validly served with process directed to the corporation. The reason is that the purpose of service is notice, and not every employee can reasonably be expected to notify the corporate officers of the receipt of the complaint. [Cits.] Insofar as the purpose of providing notice is concerned, it can certainly be expected that an attorney for a corporation served with process will notify the corporate officers.” Id. at 224.

Similarly, an executive secretary for a hospital, who is paid a salary exceeding that of some of the hospital’s department heads, who concedes that she has been delegated a great deal of responsibility, and who simultaneously serves the hospital as an officer for a corporate parent that operates within the same physical space as the hospital itself solely in furtherance of the hospital’s humanitarian goals, is a person occupying a position of trust and confidence in the hospital organization. Such a person may reasonably be expected to notify the proper corporate officers of the hospital in the event she is served with process. We find, based on the undisputed evidence, that Freund is an agent of Piedmont for service of process as a matter of law, and that Piedmont was therefore properly served within the meaning of OCGA § 9-11-4 (d) (1). Consequently, the court’s dismissal of Piedmont from the case cannot be supported on this basis.

2. Though sufficient under OCGA § 9-11-4 (d) (1), the question remains whether service upon Piedmont was timely under the applicable statute of limitation, OCGA § 9-3-71. “The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c) requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation.” (Citations and punctuation omitted.) Anderson v. Hughes, 196 Ga. App. 186, 187 (1) (395 SE2d 623) (1990).

The Floyds filed their original complaint in Fulton County, which is the county where the main hospital facility is located and, of course, where Doris Floyd’s injuries were sustained. The complaint disclosed Piedmont’s registered agent for service and the address at which she might be served. The Floyds concede “in retrospect” that the registered agent was located outside the Fulton County line in DeKalb County and that this may explain the delay in service. However, there appears to be no fundamental reason why the Floyds should expect that service could not be made for this reason. First, Piedmont Hospital, the location where Doris Floyd’s injuries occurred, does business in Fulton County, and Piedmont can in fact be served there. This is therefore not the usual case where the defendant is required to be served by second original under OCGA § 9-10-72. Moreover, our Code clearly contemplates situations where the sheriff of one county properly ventures outside the county to serve process. See OCGA § 15-16-22; see also Re/Max 100 of Sandy Springs v. TriContinental Leasing Corp., 177 Ga. App. 111, 112 (1) (338 SE2d 542) (1985). There is no indication that service was in fact precluded in this case because the address of the registered agent was not a Fulton County address; the record merely reflects that no attempt had been made between January 6, 1992 and January 23, 1992 to serve Piedmont. Even if there is some undisclosed reason why the Fulton County marshal’s office would not serve Piedmont in neighboring DeKalb County, Piedmont neither suggests such a reason nor intimates that the Floyds should have known of it.

We find no relevant distinction between the present case and Deloach v. Hewes, 211 Ga. App. 321 (439 SE2d 94) (1993), in which we reversed the trial court’s dismissal for lack of diligence. As in Deloach, the proper address to serve Piedmont was included in the original complaint. As in Deloach, an inquiry was made into service prior to the time any action was actually taken by the Fulton County marshal’s office. Unlike the situation presented in Deloach, however, the Floyds did not simply wait for the marshal’s office to act. Less than three weeks after filing their complaint, the Floyds arranged for a private process server to expedite service. The very day the first inquiry was made and the Floyds discovered that no action by the marshal’s office was indicated, the service papers were retrieved and service was accomplished by a private process server. Since we find neither the facts nor the law supports a finding that the Floyds failed to exercise due diligence in assuring that Piedmont was served as quickly as possible, the court’s grant of summary judgment to Piedmont cannot be supported on this basis.

3. The only other theory presenting a possible basis for the grant of summary judgment to Piedmont is the notion that medical negligence cases are subject to voluntary dismissal and renewal under OCGA § 9-2-61 only if renewal is accomplished within two years of the date of injury. We find Piedmont’s arguments in favor of this novel theory unpersuasive. Aside from the need to disapprove countless precedents implying otherwise, Piedmont in effect asks this court to render meaningless the clear import of OCGA § 9-11-9.1 (f), which expressly limits the circumstances under which renewal is possible in professional malpractice cases after the applicable limitation period has expired. We agree with appellants that this theory does not support summary judgment in favor of Piedmont.

Decided July 1, 1994.

Chambers, Mabry, McClelland & Brooks, Eugene P. Chambers, Jr., Dale C. Ray, Jr., for appellants.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, M. B. Satcher III, P. Cole Law, Downey, Cleveland, Parker & Williams, Y. Kevin Williams, for appellee.

Since no proper basis exists for the trial court’s dismissal of Piedmont from this action, the grant of summary judgment to Piedmont must be reversed.

Judgment reversed.

Pope, C. J., and McMurray, P. J., concur.

       We note that a “motion for summary judgment” raising only matters in abatement is properly viewed as a motion to dismiss. For examples of situations where the distinction makes a difference, see Warshaw Properties v. Lackey, 170 Ga. App. 101 (316 SE2d 482) (1984); Terrell v. Porter, 189 Ga. App. 778, 779-780 (2) (377 SE2d 540) (1989).


text:
    A94A0860.
    GILL PLUMBING COMPANY v. IMPERIAL PREMIUM FINANCE COMPANY, INC.
    (445 SE2d 840)
   Smith, Judge.

Appellant Gill Plumbing Company brought suit alleging breach of contract, fraud, conversion and conspiracy against various companies and persons for their collective failure to timely procure certain insurance on Gill Plumbing’s behalf. Appellee Imperial Premium Finance Company, Inc. (“Imperial”), an insurance premium finance company governed under the Insurance Premium Finance Company Act (OCGA § 33-22-1 et seq.), moved for summary judgment, which was granted, and Gill Plumbing appeals.

Gill Plumbing contracted with defendant Insurance Concepts, Inc. (“ICI”), to procure workers’ compensation and general liability/ commercial property insurance. ICI then arranged to place Gill Plumbing’s policies through National Insurance Associates, Inc. (“National Insurance”).

The total premium for the various policies was $129,000. Gill Plumbing made a down payment of $37,388, which was received and deposited by ICI. National Insurance executed an “installment loan premium finance agreement” with Imperial on Gill Plumbing’s behalf for the remaining balance of $91,612. The agreement provided that the financed amount would be used to pay the balance owed to Transamerica Insurance Company for the commercial general liability and umbrella policies effective April 3, 1991, and that owed to the National Council on Compensation Insurance (“NCCI”) for the assigned risk workers’ compensation policy effective April 4, 1991.

Under the terms of the agreement, Gill Plumbing was required to make nine monthly premium installment payments to Imperial of $10,827.26 each from May 3, 1991 through January 3, 1992, which included finance charges of $5,833.34. The workers’ compensation premium totalled $77,251, and the combined Transamerica premiums totalled $51,749.

Gill Plumbing received a written notice from Imperial indicating acceptance on April 12, 1991. The notice contained the following statement: “We are pleased to notify you that we have accepted your premium finance agreement subject to verification by the insurance companies. We have credited the down payment to your account.

“If your Premium Finance Agreement was signed by your insurance Broker, such Agent or Broker warrants that he is authorized to act as Agent for you in the signing of the Premium Finance Agreement and has forwarded your down payment check for credit to your account. You may disaffirm the Premium Finance Agreement by mailing to Imperial, at the address shown above, notice of this disaffirmance within 5 days of the date of mailing of this notice. If no disaffirmance is received within the said five days, the Premium Finance Agreement, as signed by your insurance Agent or Broker, shall be as binding an obligation as if the Premium Finance Agreement was signed by you.

“The security for this financing is the unearned premiums on the policies financed.

“The finance charge begins to accrue as of the earliest policy effective date.

“Do not confuse this premium finance loan with the type of credit that revolves from month to month and permits late payments with a penalty. IF YOU DO NOT PAY YOUR INSURANCE PREMIUM FINANCE INSTALLMENTS ON OR BEFORE THE DUE DATES, YOU MAY RISK LOSING YOUR INSURANCE PROTECTION.” On April 15, 1991, Imperial paid $91,612 directly to National Insurance. Gill Plumbing asserts that it relied on Imperial’s notice to it that the agreement was “subject to verification by the insurance companies,” and therefore the disbursement of funds to National Insurance led Gill Plumbing to believe that its coverage had been verified by Imperial.

Gill Plumbing’s workers’ compensation coverage was not effectively placed by NCCI until September 24, 1991, leaving a gap in coverage from April 3, 1991 to September 23, 1991. Imperial was not made aware of the gap in coverage until contacted by Gill Plumbing. When questioned about the gap in coverage, Imperial advised Gill Plumbing that if it stopped making the premium installment payments, Imperial would cancel all of its policies subject to their agreement. The agreement appointed Imperial as Gill Plumbing’s “attorney-in-fact with complete authority to cancel the policies. . . .”

In January 1992, Gill Plumbing received a notice from workers’ compensation carrier Aetna Insurance Company that National Insurance had made only a 50 percent premium deposit of $32,276 on the total workers’ compensation premium of $64,550 and that the other 50 percent remained due and owing. Gill Plumbing was required to pay this sum to Aetna in addition to the installments paid to Imperial in order to keep its insurance in force. Gill Plumbing did in fact fulfill its contract with Imperial. Nevertheless, it was without workers’ compensation coverage for several months, during which time three uninsured claims accrued.

Gill Plumbing does not assert that Imperial knowingly participated with the other defendants to defraud it. Instead, it essentially contends that Imperial misled it into believing that it was insured, and wrongfully disbursed the funds to National Insurance instead of directly to Transamerica and NCCI. The question to be resolved in this appeal is not whether Gill Plumbing has been wronged and is entitled to a recovery for its injury, but merely whether the premium finance company involved in the transaction may be held liable.

1. Gill Plumbing argues that Imperial breached a contractual duty to verify coverage. We disagree. The nature of the agreement between Gill Plumbing and Imperial is straightforward. It provides that “[i]n consideration of the premium payments to be made by Imperial to [the insurers] or the above named agent or broker, Borrower . . . promises to pay Imperial at its above address, the Total of Payments stated . . . according to the payment schedule agreed to and the provisions on both the front and back of this Agreement.” (Emphasis supplied.) The named agent was National Insurance. It is undisputed that Imperial made a $91,612 premium payment to National Insurance as provided in the agreement.

The agreement also provides that the borrower “represents that Policies or binders listed above have been issued and are in full force and effect.” The agreement clearly provides that National Insurance is Gill Plumbing’s agent “and not an agent of Imperial.” It likewise provides that “Imperial is not legally bound by any representation, oral or written, made by the agent or broker to Borrower. Imperial is not an agent of any insurer and will not be responsible for any act, error or omission of an insurer.”

Contrary to Gill Plumbing’s assertions, it is Imperial that was assured by Gill Plumbing’s representation under the contract that the policies in question were in full force and effect. When read as a whole, there is no question that Imperial’s primary security interest under the agreement was the unearned premiums under the policies named in the agreement. Construing the notice of acceptance in light of the plain language of the agreement itself, there is no question that the acceptance was “subject to verification by the insurance companies” to provide a shield for the protection of Imperial’s secured interest, and not as a sword to leave Imperial totally without recourse in the event it failed to act in its own best interest and verify placement of coverage. The plain language of the agreement reveals that it obligated Imperial to make premium payments to the insurers or to Gill Plumbing’s agent. Imperial fully performed its contractual obligation to Gill Plumbing. The trial court properly granted summary judgment as to this count.

2. Gill Plumbing contends the trial court erred in granting Imperial’s motion for summary judgment on its claim for breach of fiduciary duty. Its position rests on the notion that the power of attorney granted to Imperial established a “fiduciary” relationship. The power of attorney language of the contract provides, in its entirety, as follows: “Borrower irrevocably appoints Imperial as its Attorney-In-Fact with complete authority to cancel the Policies, to demand, collect, sue for, receive and give receipt for all sums assigned above to Imperial and to execute and deliver on Borrower’s behalf all documents, forms and notices relating to the Policies in furtherance of this Agreement. Any money received as Attorney-in-Fact shall be subtracted from any amount owed to Imperial by Borrower and, if there is a surplus, it shall be paid to Borrower if it is greater than $1.00.”

The extent of the power of attorney on which Gill Plumbing relies is severely limited by its express terms and is otherwise controlled by the procedure for cancellation mandated in OCGA § 33-22-13. As limited by statute, the power of attorney granted Imperial does not render it a fiduciary to Gill Plumbing. Rather, the proper view of Imperial’s relationship to Gill Plumbing is found in OCGA § 10-6-21: “The agent shall act within the authority granted to him, reasonably interpreted; if he shall exceed or violate his instructions, he does it at his own risk, the principal having the privilege of affirming or dissenting, as his interest may dictate. In cases where the power is coupled with an interest in the agent, unreasonable instructions, detrimental to the agent’s interest, may be disregarded.”

Gill Plumbing has alleged no abuse or violation of the limited power of attorney granted to Imperial, and we find no merit in the notion that the grant of this limited power imposes duties exceeding the scope of the power itself. The trial court did not err in granting summary judgment as to this count. See Heard v. Decatur Fed. Sav ings &c. Assn., 157 Ga. App. 130, 135 (5) (276 SE2d 253) (1981).

Decided July 1, 1994.

Boyce, Ekonomou & Atkinson, Peter F. Boyce, Catherine M. Packwood, for appellant.

Troutman Sanders, Richard W. Morrell, C. Lee Ann McCurry, Daniel S. Reinhardt, for appellee.

Judgment affirmed.

Pope, C. J., and McMurray, P. J., concur.

       In addition to the companies named in this appeal, Gill Plumbing seeks recovery from individual agents for ICI and National Insurance. Solely for the sake of simplicity in addressing the issues raised in this appeal, we impute the actions of individual agents to the company they purportedly represented at the time those actions were taken. However, we acknowledge that the extent of liability among individual and corporate defendants other than Imperial remains an open question.


author: Beasley, Presiding Judge. Pope, Chief Judge,

text:
    A94A0516.
    ALLTRADE, INC. v. McDONALD.
    (445 SE2d 856)
   Beasley, Presiding Judge.

Defendant Alltrade, Inc. was granted interlocutory appeal from the denial of its motion for summary judgment in this product liability action brought by McDonald involving a two-step aluminum ladder. McDonald alleged that he purchased the stepladder from The Home Depot, Inc. in November 1984. On October 3, 1990, while McDonald was descending it, the bottom step collapsed and broke, causing him to fall and suffer injuries including a broken hip. The facts of Alltrade’s involvement are not in dispute and the case stands or falls on the application of OCGA § 51-1-11.1.

The original manufacturer of the ladder was Chuan Fong Industrial Corporation (CFIC) based in Taiwan. CFIC sold it as part of a bulk sale of stepladders to Andrew’s International Company, Ltd. (Andrew’s), also based in Taiwan, which then sold the stepladders to Alltrade during 1983 and 1984. CFIC had stamped the name “All-trade” on all the ladders. Alltrade was a separate legal entity from Andrew’s and CFIC. Alltrade did not provide any design information or specifications to either CFIC or Andrew’s. Nor did it make or assemble the ladders or any of the component parts. Alltrade did not inspect or test any of the ladders nor was it aware of any problems or defects in them. In fact, Alltrade received the ladders from Andrew’s in closed cardboard cartons and in turn sold the ladders in the unopened cartons to The Home Depot, Inc., in 1983 and 1984. Alltrade did not affix any warnings, warranties or instructions to any of the ladders or the cartons in which the ladders were received, nor did it participate in the preparation or drafting of any such instructions, warranties or warnings which were or might have been affixed to the ladders or cartons which were received and subsequently shipped by Alltrade.

The original suit, filed on December 31, 1991, named Home Depot, Alltrade, and “an unknown manufacturer.” It contained claims for alleged breach of express and implied warranties, negligence, and strict liability under OCGA § 51-1-11. Home Depot and Alltrade filed a joint motion for summary judgment on all claims. Plaintiff McDonald amended and redrafted the complaint to dismiss as defendants Home Depot and “an unknown manufacturer” and also to dismiss the claims against Alltrade, save for the strict liability clause under OCGA § 51-1-11. The trial court denied Alltrade’s renewed motion for summary judgment on this remaining claim.

Alltrade contends it has no liability to the plaintiff under OCGA § 51-1-11 because it was not a manufacturer within the meaning of the statute. Rather, Alltrade maintains it is a product seller, as defined in OCGA § 51-1-11.1.

OCGA § 51-1-11.1 provides in pertinent part: “(a) As used in this Code section, the term ‘product seller’ means a person who, in the course of a business conducted for the purpose leases or sells and distributes; installs; prepares; blends; packages; labels; markets; or assembles pursuant to a manufacturer’s plan, intention, design, specifications, or formulation; or repairs; maintains; or otherwise is involved in placing a product in the stream of commerce. This definition does not include a manufacturer which, because of certain activities, may additionally be included within all or a portion of the definition of a product seller.

“(b) For purposes of a product liability action based in whole or in part on the doctrine of strict liability in tort, a product seller is not a manufacturer as provided in Code Section 51-1-11 and is not liable as such.”

Plaintiff McDonald urges that Alltrade is liable as the manufacturer because it placed the stepladder in the stream of commerce under its trade name. He relies on Georgia cases which adopt a rule from the Second Restatement of the Law of Torts, § 400. That rule states that “ ‘[o]ne who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.’ ” Pierce v. Liberty Furniture Co., 141 Ga. App. 175, 179 (233 SE2d 33) (1977). Such “ostensible” or “apparent” manufacturer cases predate the tort reform passed by the legislature in 1987, of which OCGA § 51-1-11.1 is a part. See also and compare English v. Crenshaw Supply Co., 193 Ga. App. 354 (387 SE2d 628) (1989), in which the plaintiff’s injury occurred in 1983. Under the plain meaning of the statute, one who merely labels a product as- its own prior to its sale but has no input into its making, either by design or manufacture or assembly, is a product seller and not a manufacturer. See Morgan v. Mar-Bel, 614 FSupp. 438 (N.D. Ga. 1985).

“A cause of action for strict liability can be maintained only against the manufacturer of a product. OCGA § 51-1-11.1. A mere ‘product seller’ is not a manufacturer, and is not liable as a manufacturer on grounds of strict liability. OCGA § 51-1-11.” Ream Tool Co. v. Newton, 209 Ga. App. 226, 227 (3) (a) (433 SE2d 67) (1993).

In Freeman v. United Cities Propane Gas of Ga., 807 FSupp. 1533 (M.D. Ga. 1992), the federal court squarely addressed this issue of Georgia law. It found that although “[u]nder the former law an entity that labeled and marketed a product as its own was a manufacturer . . . [t]he General Assembly has now enacted a statute that eliminates this type of ‘manufacturer’ from strict liability under Georgia law.” Id. at 1539-1540. The court read OCGA § 51-1-11.1 “as a legislative attempt to confine strict liability to actual manufacturers — those entities that have an active role in the production, design, or assembly of products and placing them in the stream of commerce.” Id. at 1540. It further concluded that “[t]he verbs chosen by the General Assembly indicate a desire and intent to overrule those cases that had created a broad category of entities that had no real role in the creation of products” and that “as a result of OCGA § 51-1-11.1 the category of ‘ostensible manufacturer’ no longer exists in Georgia.” Id. We agree.

As this Court noted in Tyler v. Pepsico, 198 Ga. App. 223, 225 (1) (400 SE2d 673) (1990), quoting Daniel v. American Optical Corp., 251 Ga. 166, 167 (1) (304 SE2d 383) (1983), OCGA § 51-1-11 (b) “is in derogation of the common law and ‘ “must be strictly construed or limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms.” (Cits.)’ [Cit.]”

An entity which merely affixes its label to a product and sells it under its name is a product seller rather than a manufacturer under OCGA § 51-1-11 and is not liable in a product liability action based on the doctrine of strict liability in tort. As correctly stated in Maleski, Ga. Products Liability (2d ed.), § 2-3, p. 41: “[T]he Tort Reform Act of 1987 limited the class of manufacturers subject to strict liability by defining the excluded class of ‘product sellers’ to include those who merely ‘label’ the product as their own.” Cases holding to the contrary will no longer be followed, as we are not at liberty to limit the excluded class judicially.

Judgment in favor of Alltrade on plaintiff McDonald’s claim of strict liability was demanded as a matter of law.

Judgment reversed.

Birdsong, P. J., Andrews and Johnson, JJ., concur. Pope, C. J., Blackburn, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur specially. McMurray, P. J., disqualified.

Decided July 5, 1994.

Fellows, Johnson, Davis & LaBriola, Henry D. Fellows, Jr., G. Terrell Davis, for appellant.

Mackay, Daniel, King, Hudson & Bryce, T. Emory Daniel, for appellee.

Pope, Chief Judge,

concurring specially.

I am compelled to agree with the majority that only the actual manufacturer of a product may be held strictly liable for defects in a product under OCGA § 51-1-11.1 as it is written. However, I believe this law is unfair when it is applied to a case such as this one, where a company has put its own trade name on a product, thus leading the public to believe it manufactured the product even though it did not. Other states which statutorily immunize or limit the liability of nonmanufacturers as a general matter nonetheless provide in their statutes that nonmanufacturers have the liability of manufacturers if they market the product under their label, trade name or brand name. See Ohio Rev. Code Ann., § 2307.78 (B) (7) (Anderson 1991); Wash. Rev. Code Ann., § 7.72.040 (2) (e) (1992). To avoid unfairness, I recommend that our legislature fine tune our statute in the same way.

I am authorized to state that Judge Blackburn, Judge Smith and Senior Appellate Judge Harold R. Banke concur with this special concurrence.

       Compare Restatement of the Law, Torts; Products Liability, Tentative Draft No. 1, § 1 (April 12, 1994).


author: Beasley, Presiding Judge.

text:
    A94A1009.
    In the Interest of C. P. M., a child.
    (446 SE2d 242)
   Beasley, Presiding Judge.

Appellant was adjudicated delinquent based in part on a charge of driving under the influence of alcohol to the extent it was less safe for him to drive. OCGA § 40-6-391 (a) (1). The petition of delinquency was also sustained as to charges of speeding, OCGA §§ 40-6-181 — 40-6-183 and 40-6-1, and possession of alcohol by a minor, OCGA § 3-3-23. The possession charge merged with the DUI. Appellant challenges the sufficiency of the evidence to establish beyond a reasonable doubt that he violated OCGA § 40-6-391 (a) (1).

Viewing the evidence in the light most favorable to the verdict, it appears that shortly after midnight appellant was stopped by a police officer for driving a vehicle 55 mph in an area where the speed limit was 35. As the officer spoke with appellant, he noted the odor of alcohol on appellant’s breath and redness in his eyes. Appellant appeared to be intoxicated and stated that he had “a couple of beers.” After another officer arrived, three field sobriety tests were administered, which appellant failed, and he was taken into custody. The officers searched the vehicle and found some cans of beer. In response to the court’s questions, appellant admitted that he had two beers before driving into town.

Appellant asserts that the court properly did not consider the evidence of one officer who testified at trial, as the officer had been impeached. The court’s statement from the bench that certain evidence influenced its decision does not mean it disregarded other evidence properly before it. Contrary to appellant’s contention, the officer had not been impeached to the extent that his testimony could not be credited. Rather the testimony of a second officer that appellant contends completely rebuts the evidence of the first officer merely provides greater detail about the incident and the court was under no duty to disregard either officer’s testimony.

Appellant contends, in part, that the failure of the officers to testify to any less safe behavior on his part renders the evidence insufficient to support the conviction. Their opinion is not critical to establish the fact, as the court, the trier of fact, could form its own opinion based on the indicia pointing to it. Nor is it necessary for the State to show that appellant was committing an unsafe act, “although he was committing the unsafe act of speeding at the time he was initially spotted by the officer.” Anderson v. State, 203 Ga. App. 118, 119 (1) (416 SE2d 309) (1992). “ ‘(Evidence) as to the manner of driving, including excessive speed, may be taken into account where there is evidence that the defendant has been drinking, for the purpose of determining whether or not his manner of driving shows him to have been affected by the intoxicant to the extent that he drives less safely and carefully than he might otherwise have done, and for this purpose evidence of travel in excess of the legal rate of speed may be considered.’ [Cit.]” Collins v. State, 177 Ga. App. 758, 759 (2) (341 SE2d 288) (1986). It is uncontroverted that appellant was traveling at 20 mph over the speed limit.

Appellant cites Groom v. State, 187 Ga. App. 398 (370 SE2d 643) (1988), for the proposition that failure to show the size of the beers consumed, and the time frame in which they were consumed, prevents the trier of fact from determining whether the appellant was a less safe driver. Groom and the present case differ in act and so in result. Although the facts in Groom are not explicitly recited, it is clear that no police officer observed Groom until some time had passed after his accident and “there [was] no evidence as to defendant’s conduct or appearance which would authorize the . . . trier of fact to form ... an opinion [that he was a less safe driver].” Id. at 400 (2). Here there was testimony about the appellant’s conduct, and manner of unsafe driving. There was testimony that he was speeding, appeared to have been drinking, and failed three field sobriety tests (nose-finger, one leg stand, heel-to-toe walk and turn), and he admitted drinking. The field tests showed his condition, acuity, and ability to control his physical actions. The standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), was met. See also Rylee v. State, 210 Ga. App. 314 (436 SE2d 52) (1993).

Decided July 5, 1994.

Mitchell M. Shook, for appellant.

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

Similarly, appellant’s suggestion that Davis v. State, 206 Ga. App. 647 (426 SE2d 267) (1992) and Clay v. State, 193 Ga. App. 377 (2) (387 SE2d 644) (1989), are factually similar and demand a finding that the evidence is insufficient are unfounded. In Davis the officer detected the odor of alcohol but could not tell who in the car had been drinking; appellant in this case was alone and the officer detected the odor on his breath. Additionally, in Davis a blood test revealed no alcohol three hours after the accident, and testimony suggested that an alcohol concentration of .04 grams may have been present at the time of the accident, a level at which one is presumed not to be under the influence. Davis, supra at 649 (1), and Cooper, J., dissenting.

In Clay, there was no traffic violation or erratic behavior to suggest the negative influence of intoxication on the operation of the vehicle. It was stated that “an odor of alcohol on [appellant’s] breath clearly was not sufficient, in and of itself, to give rise to an inference that he was intoxicated.” Clay, supra at 379 (2). Here, as described earlier, there was more than merely the odor of alcohol. In Groom, Davis, and Clay, no field tests were performed. The cases cited do not demand reversal.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

       Evidence of the results of intoximeter tests was suppressed at trial.


author: McMurray, Presiding Judge.

text:
    A94A0908.
    SOUTHEAST REDUCING COMPANY, INC. et al. v. WASSERMAN.
    (445 SE2d 859)
   McMurray, Presiding Judge.

Plaintiff Wasserman filed this breach of contract action against defendants Southeast Reducing Company, Inc., James Matthews, and Nancy Matthews. Subsequently, plaintiff filed his motion for summary judgment. Defendants filed their response, including a timely request for oral argument as to plaintiff’s motion for summary judgment pursuant to Rule 6.3 of the Uniform Rules for the Superior Courts. The superior court entered an order granting plaintiff’s motion for summary judgment without setting a hearing date or conducting a hearing on plaintiff’s motion for summary judgment. Defendants appeal and raise in their first enumeration of error the failure of the superior court to conduct a hearing, as requested, upon plaintiff’s motion for summary judgment. Held:

Decided July 6, 1994.

Lovett & Hicks, William E. Hicks, for appellants.

Friedman & Montalto, Steven Montalto, Jill A. Barker, for appellee.

It was clearly erroneous for the superior court to fail to afford defendants the opportunity to oppose plaintiff’s motion by oral argument. Kelley v. First Franklin Financial Corp., 256 Ga. 622 (351 SE2d 443). We have previously rejected plaintiff’s suggestion that a harmless error analysis is applicable to these circumstances. Dixon v. McClain, 204 Ga. App. 531 (420 SE2d 66).

Judgment reversed.

Pope, C. J., and Smith, J., concur.


text:
    A94A0772.
    TIPTON v. THE STATE.
    (445 SE2d 860)
   Smith, Judge.

Harry Tipton appeals his conviction of two counts of driving under the influence of alcohol, OCGA § 40-6-391 (a) (4).

1. Tipton enumerates as error the failure of the trial court to direct a verdict of acquittal. Viewed in a light favorable to the verdict, the evidence shows that a police officer approached Tipton as he sat in the driver’s seat of his pickup truck in an interstate rest area. The officer asked Tipton why. he was parked in the rest area, and Tipton responded he had a fight with his wife, was trying to get away from her, and just arrived at the rest area. The keys were in the ignition switch, and the hood of the pickup truck was “warm to hot” to the touch. The officer noticed there was a strong odor of alcohol about Tipton, and requested that he perform several field sobriety tests, which he was unable to complete. Tipton then consented to a breath test. The results of that test were stipulated to be .17 grams alcohol. Tipton testified that he had been out drinking with a female companion, who had brought him back to his truck at the rest area. On cross-examination, however, he testified that he and the female companion had been drinking at the rest area for approximately two-and-one-half hours. The female companion did not testify at trial.

“It is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence. It is not necessary that the circumstantial evidence exclude every reasonable inference or hypothesis except guilt of an accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt. The jury itself decides whether every reasonable hypothesis except that of guilt of the defendant has been excluded.” (Citations and punctuation omitted.) Phillips v. State, 185 Ga. App. 54, 55 (1) (363 SE2d 283) (1987). The evidence presented, though circumstantial, was sufficient to support a finding of Tipton’s guilt beyond a reasonable doubt. Id.; see also State v. Hill, 178 Ga. App. 669 (344 SE2d 491) (1986); Melendy v. State, 202 Ga. App. 638 (1) (415 SE2d 62) (1992).

2. Among other enumerations of error, Tipton contends the trial court erred in admitting his unauthenticated driving record to impeach his testimony regarding previous offenses. The State did not call a witness to identify or authenticate the document; it was offered by the prosecutor as self-authenticating.

This case is controlled by our decision in Waters v. State, 210 Ga. App. 305, 306 (436 SE2d 44) (1993). There, as here, the State introduced an unauthenticated copy of a driving record for impeachment of the defendant’s testimony regarding his previous traffic violations. This court held: “[E]ven if the records were otherwise admissible, there was an inadequate foundation for the introduction of the driver’s record. Records of the Department of Public Safety are admissible when the records are certified [cit.] or when, even without certification, the records are ‘obtained from any terminal lawfully connected to the Georgia Crime Information Center’ (OCGA § 24-3-17 (b)). Although the record in this case seemingly was obtained from such a computer, no witness testified that it was so obtained. Instead, the prosecutor merely represented in argument that the record was obtained from such a computer. This is not evidence, and thus, we find the prosecutor also did not lay an adequate foundation for introduction of the driver’s record. [Cit.]” 210 Ga. App. at 306-307. Moreover, at the time the driving record was tendered and admitted into evidence, Tipton had already corrected his testimony regarding the number of prior DUI offenses. See 210 Ga. App. at 306.

We cannot conclude this error was harmless. The State’s case was based on circumstantial evidence that Tipton had driven a vehicle, and Tipton’s credibility was at issue. “This case was closely contested and we cannot determine what role this evidence may have played. Therefore, [the] conviction must be reversed.” Waters, 210 Ga. App. at 307.

Decided July 7, 1994.

Troy R. Millikan, for appellant.

Gerald N. Blaney, Jr., Solicitor, Allison L. Thatcher, Richard E. Thomas, Jessica R. Towne, Assistant Solicitors, for appellee.

Judgment reversed.

Pope, C. J., and McMurray, P. J., concur.


text:
    A94A0376.
    CORNELIUS v. THE STATE.
    (445 SE2d 800)
   McMurray, Presiding Judge.

Defendant was charged with child molestation, enticing a child for immoral purposes, kidnapping with bodily injury and interstate interferénce with child custody for acts committed against the victim, a minor female child. The evidence adduced at the jury trial reveals the following: Defendant met the victim and the victim’s family when he was 21 years of age. Over the next five years, defendant developed an attraction for the victim, cultivated a close relationship with her family and gave the victim expensive gifts. By the time the victim was 11 years of age, defendant (then 26 years of age) openly displayed intimate physical affection with the child. In October 1991, a neighbor observed defendant touching the victim’s mouth with his mouth and tongue, i.e., “french kissing,” and reported the incident to the Douglas County Department of Family & Children Services (“DFACS”). During an investigation, defendant admitted to investigators from DFACS and the Douglas County Police Department that he had “french kissed” the victim and stated that he and the child “loved each other and that they just held each other occasionally, a loving kiss between each other, that sort of thing.” When questioned about his attraction to young girls, defendant stated, “I know those feelings aren’t right; I know they’re not right.”

The victim was medically examined pursuant to the DFACS investigation and there were no physical signs of sexual activity in the child’s private area. Nonetheless, DFACS directed that the victim have no further contact with defendant and the DFACS investigation resulted in a charge (via accusation) against defendant for simple battery. However, in defiance of the DFACS directive for the victim not to contact defendant and while the simple battery charge remained pending, defendant contacted the victim and encouraged her to resist parental authority and discipline. Specifically, defendant told the vietim that her parents were “mean to [her], because [she] had to take care of [her] sisters and brother.” Defendant later told the victim that “if [she] wanted to leave [home, she] could,” but not to tell her mother and stepfather “[b]ecause they would try to stop us.” The victim agreed and defendant began marshalling his financial resources.

At 11:30 p.m. on February 4, 1992, defendant picked up the victim (then 12 years of age) outside her home and drove her to Carters-ville, Georgia, where he acquired a motel room and had intercourse with the victim. Thereafter, defendant drove the victim to a Tennessee lodge and kept her there for several weeks. During this period, defendant frequently engaged the victim in sexual intercourse. The child did not resist, but she “didn’t feel that [she] could say no.” Defendant later fled from Tennessee because he feared apprehension by federal law enforcement authorities. Defendant then drove the victim through several states, including Texas, Nevada and California.

During the ordeal, the victim cried because she was homesick. She wanted to call home but was afraid to use the telephone in defendant’s presence. When the victim attempted to call home, she could not figure out how to place the call. Nearly two months after defendant left Georgia, he was apprehended in California with .the victim. However, before defendant was taken into custody, he instructed the victim “not to tell [the law enforcement officers] that [they] had had sex and that [she] didn’t want to go back home to my mom.”

The jury found defendant guilty of all charges. This appeal followed the denial of his motion for new trial. Held:

1. In his first enumeration, defendant asserts the general grounds, arguing that he cannot be guilty of kidnapping with bodily injury because the victim is his common-law wife.

Generally, a 12-year-old child is not competent to enter into a valid marriage contract without the consent of her parent or guardian. OCGA § 19-3-2 (2). See also Handley v. State, 115 Ga. 584, 585 (41 SE 992). Compare Cochran v. State, 91 Ga. 763 (18 SE 16). In the case sub judice, there is no evidence that the victim’s mother consented to any common-law marriage. Further, the mother denied that she knew or approved of defendant’s plan to leave Georgia with her minor daughter and she reported her daughter’s disappearance to the police. Nonetheless, defendant argues that a valid marriage existed under California law. This argument is without merit. The law of California on the subject of common-law marriage was not pleaded and proved in conformity with the requirements of OCGA § 24-7-24. In the absence of such properly authenticated evidence, the laws of other states are presumed to be the same as those in effect in Georgia. Craighead v. Davis, 162 Ga. App. 145, 146 (2) (290 SE2d 358).

Next, defendant contends the evidence was insufficient to support the allegation that he committed child molestation by kissing the victim with intent to arouse his sexual desires.

Whether an act is committed with the requisite criminal intent is a question for the jury “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. See Blanton v. State, 191 Ga. App. 454 (1), 455 (382 SE2d 133). In the case sub judice, it is undisputed that defendant touched the mouth of the 11-year-old victim with his mouth and tongue when defendant was 26 years of age. Further, the victim testified that the “french kissing” felt “weird.” There was also testimony that defendant acted on his sexual impulses with a 14-year-old girl three years before he “french kissed” this victim. This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of child molestation as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Branam v. State, 204 Ga. App. 205, 206 (419 SE2d 86). In other words, it was for the jury to decide whether it was immoral or indecent for a 26-year-old man to “french kiss” an 11-year-old child. See McCord v. State, 248 Ga. 765, 766 (285 SE2d 724).

Last, defendant contends that venue was improper in Douglas County, Georgia, arguing that the crimes occurred outside the State of Georgia. Venue for the prosecution of kidnapping with bodily injury lies in the county where the victim was seized, even though the bodily injury may have been inflicted in a different county. Potts v. State, 261 Ga. 716, 720 (2) (410 SE2d 89). Likewise, venue for the prosecution of enticing a child for immoral purposes lies in the county where the child was first enticed. OCGA § 17-2-2 (a). Venue for the prosecution of interstate interference with child custody is proper in the Georgia county where the child is enticed away from the lawful custodian. See OCGA §§ 17-2-1 (b) (1); 17-2-2 (a). Consequently, since the evidence showed that defendant initiated each of the crimes charged in Douglas County, Georgia, prosecution of defendant for the crimes alleged in the indictment was proper in Douglas County, Georgia.

2. In his second enumeration, defendant contends the trial court erred in failing to order a mental evaluation of him. He argues that the “bizarre” circumstances of trial demanded the court to stay the proceedings and make inquiry into his mental condition.

In Georgia, the trial court may exercise its inherent discretionary authority “to order a psychiatric examination, but the refusal to do so will not be reversed unless it is shown that the want of an examination would infringe upon the defendant’s right to a fair trial as guaranteed by the Georgia Constitution.” Williams v. Newsome, 254 Ga. 714, 716 (334 SE2d 171). “However, in addition to the common law and statutory rights of a defendant not to be tried while incompetent, the accused also has a constitutional right to not be put on trial while incompetent and procedural due process requires the trial court to afford the accused an adequate hearing on the issue of competency. Pate v. Robinson, 383 U. S. 375 (86 SC 836, 15 LE2d 815) (1966).” Baker v. State, 250 Ga. 187, 188 (1), 189 (297 SE2d 9). “[T]he actual issue of present incompetence must be addressed if there is evidence of incompetence which manifests itself during the proceedings.” Baker v. State, 250 Ga. 187, 188 (1), 191, supra. The focus of this inquiry is “whether the defendant at the time of trial is capable of understanding the nature and object of the proceedings against him and is capable of assisting” with his defense. Brooks v. State, 247 Ga. 744, 745 (279 SE2d 649).

In the case sub judice, the “bizarre” circumstances of defendant’s trial were that defendant’s stepfather, dissatisfied with trial counsel, threatened the attorney over the telephone. The attorney brought this matter to the attention of the trial court. After consultation, defendant and his attorney both agreed that the attorney would continue to represent him. Nevertheless, the next day, defendant released his retained counsel, citing his belief that he could best represent his own interests. Defendant stated that he did not wish to be represented by a public defender. The State’s attorney then examined defendant as to his education and background and the trial court informed defendant of the requirement that he abide by the rules of procedure and evidence. Defendant indicated that he was aware that the minimum sentence for kidnapping with bodily harm was life and the State’s attorney asked defendant, “do you understand that there are often serious risks to proceeding through a trial without a lawyer?” Defendant responded, “Yeah — well, there are serious risks for proceeding through trial with a lawyer.” Whenever defendant’s competence was put in issue, he defended himself and his abilities. The record also indicates that defendant was alert, capable of conducting his own defense and cognizant of the nature and object of the proceedings against him, including the dangers of proceeding without counsel. Under these circumstances, we cannot say the trial court erred in failing, sua sponte, to halt the trial and inquire into defendant’s mental competence to stand trial. Meders v. State, 260 Ga. 49, 50 (1), 51 (1a) (389 SE2d 320).

3. Defendant contends the trial court expressed an opinion as to his guilt in violation of OCGA § 17-8-57 by using the term, “perpetrator,” in a charge given in response to questions from the jury.

“The present rule is that ‘(t)he question of whether ([OCGA] § 17-8-57) has been violated is not reached unless an objection or motion for mistrial is made.’ State v. Griffin, 240 Ga. 470 (241 SE2d 230) (1978). Accord Ford v. State, 255 Ga. 81 (2) (335 SE2d 567) (1985).” Walker v. State, 258 Ga. 443, 444 (3a) (370 SE2d 149). See also Pulliam v. State, 196 Ga. 782, 789 (6) (28 SE2d 139). In the case sub judice, defendant did not object or move for a mistrial when the trial court used the term, “perpetrator.” Consequently, defendant failed to preserve for appellate review any alleged violation of OCGA § 17-8-57. Brown v. State, 150 Ga. App. 289, 290-291 (257 SE2d 359).

4. Defendant contends the trial court erred in failing to provide him with a court-appointed attorney after defendant discharged (during the fourth day of trial) the attorney retained to represent him at trial. Defendant argues that he was not advised of his right to a court-appointed attorney and that his decision to proceed pro se was not knowing and voluntary. This contention is without merit.

“ ‘(T)he constitutional guarantees of the benefit of counsel . . . may be waived by action or declaration. (Cits.)’ Bradley v. State, 135 Ga. App. 865, 866 (1) (219 SE2d 451).” Phipps v. State, 200 Ga. App. 18, 19 (406 SE2d 493). “[A] layperson does not have the right to represent himself and also be represented by an attorney. . . .” Seagraves v. State, 259 Ga. 36, 39 (376 SE2d 670). “[A] strict standard must be applied to waiver of counsel whether at trial or in pretrial proceedings and [a] constitutional waiver requires more than a comprehension of rights. There must be a relinquishment of rights.” Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49).

In the case sub judice, the record reflects that, on the third day of trial, defendant had a conflict with his retained attorney over the conduct of the defense. The following then transpired in the trial court’s chambers: ‘THE DEFENDANT: Your Honor, if in fact [my retained attorney] and I can’t come to an understanding, ... I am willing to defend myself. . . . Am I allowed like a Public Defender [to assist] me when I am in the — or is it just total on my own? THE COURT: It’s either you defend yourself or you don’t defend yourself. THE DEFENDANT: Okay.” The trial court and defendant then discussed certain difficulties defendant may encounter in conducting his own defense. Defendant conferred with his attorney and defendant agreed ■ that his attorney would continue to conduct the defense. However, the next morning, defendant discharged his retained attorney and informed the trial court that he intended to defend himself. Defendant stated the following: “I don’t have money for other counsel. To be honest with you, I don’t — I feel like I probably could defend myself as better — as good, if not better, than any public defender because I don’t have a lot of faith in that system; and I talked to [my retained attorney] about this last night. I asked him his opinion.” The attorney informed the trial court that he had warned defendant that he would be at a disadvantage trying to represent himself. When the State’s attorney examined defendant as to his background, defendant stated that he had an annual income of $25,000 from selling insurance and that he completed the “[eleventh grade with a GED.” Further, the record indicates that defendant was aware that the penalty for kidnapping with bodily injury was a mandatory life sentence. Defendant’s circumstances were summarized: “[STATE’S ATTORNEY]: So, if I’ve heard you correctly then, you do not want [the retained attorney] to represent you, you do not want a public defender and you do not want a delay? THE DEFENDANT: Right, but I am asking for notes [the retained lawyer made during trial].” The trial court then informed defendant that he would “have to follow all the rules of evidence . . .” and that the court would be unable to assist him in the defense. Under these circumstances, we find “that the trial court, fulfilling its important responsibility in this area, [made certain that defendant was] repeatedly apprised ... of the dangers to a layman in conducting his own defense. See Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981).” Staples v. State, 209 Ga. App. 802, 803 (3), 804 (434 SE2d 757). “We find no error in the trial court’s determination that [defendant] waived his right to appointed counsel and that he voluntarily and intelligently elected to proceed pro se after being fully apprised of the possible consequences. Durham v. State, 185 Ga. App. 163, 164 (1) (363 SE2d 607) (1987). Compare Kirkland v. State, 202 Ga. App. 356 (1) (414 SE2d 502) (1991) (relinquishment of a right to counsel cannot be inferred from a silent record).” Staples v. State, 209 Ga. App. 802, 803 (3), 804, supra.

5. In his fifth enumeration, defendant contends the trial court erred in admitting evidence of similar transactions without first making a determination as in Williams v. State, 261 Ga. 640 (409 SE2d 649).

“In Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) [, the Supreme Court] held that in order for independent act evidence to be admissible it must be shown that the evidence is introduced for an appropriate purpose, that there is sufficient evidence to establish the accused’s participation in the act and that there is a sufficient connection between the offenses such that proof of the independent act tends to prove the accused’s participation in the crime for which he or she is on trial. Id. at 642.” Gadson v. State, 263 Ga. 626, 627 (3), 628 (437 SE2d 313). In the case sub judice, a pretrial hearing was conducted pursuant to the State’s notice of intent to introduce similar transaction evidence and the State’s attorney then outlined the factual bases for admission of four alleged prior similar transactions involving defendant and young children. Defense counsel pointed out factual dissimilarities and questioned the logical and legal relevance of the similar transactions evidence. The trial court ruled as follows: “Reviewing these alleged similar activities, they seem to involve children of the same age bracket, the majority of them from the same area of residence. I think it would go to establish demeanor, motive, modus operandi and other factors the State would be required to prove in its main case, and I’ll allow the similar transactions as outlined here today.” It is our view that this determination implicitly included all the elements required by Williams v. State, 261 Ga. 640, 641 (2), 642 (b), supra. See Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148).

6. In his sixth enumeration, defendant contends the trial court erred in allowing a psychiatrist to testify that he suffers from a delusional disorder manifested by an attraction for young girls; that defendant is a pedophile and that defendant “was more dangerous than a mere run of the mill [pedophile].”

The record reflects that Dr. Gene Able, a psychiatrist, testified, but he did not indicate that defendant molested the victim as a result of his being a pedophile. He testified that defendant’s “particular variant of the delusional disorder is this attachment to children, to young girls[,]” and affirmed that “an individual such as [defendant is] more dangerous than a mere pedophile[.]” Specifically, Dr. Able explained that a pedophile who is also a child molester understands that his behavior is inappropriate and this understanding leads a pedophile to be more responsive to treatment. In contrast, a delusional disorder such as defendant’s prevents him from understanding that his behavior is inappropriate and thus impedes effective treatment. Dr. Abie’s opinion testimony was based upon defendant’s behavior as revealed in the audiotape of his interview with DFACS and the Douglas County Police Department. The jury listened to this tape before Dr. Able testified.

There is considerable doubt whether medical opinion that a particular defendant is “more dangerous than a mere pedophile” is admissible in a criminal proceeding, unless and until the defendant has put his character in issue. See Harris v. State, 261 Ga. 386 (405 SE2d 482). See also Sanders v. State, 251 Ga. 70, 73 (3) (303 SE2d 13). Accord Collar v. State, 206 Ga. App. 448 (2) (426 SE2d 43) (physical precedent); Knight v. State, 206 Ga. App. 529 (426 SE2d 1) (physical precedent). “However, we find that it is highly probable that the error did not contribute to the verdict, since the evidence of guilt was otherwise overwhelming. Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1979).” Sanders v. State, 251 Ga. 70, 73 (3), 76, supra. Moreover, we view any error in admitting this opinion testimony as harmless since Dr. Abie’s opinion was based upon facts already in evidence, i.e., a 26-year-old man’s romantic attraction to a 12-year-old girl. Sanders v. State, 251 Ga. 70, 73 (3), 76, supra. Compare Wellborn v. State, 258 Ga. 570, 572 (2) (372 SE2d 220).

Decided June 24, 1994

Reconsideration denied July 8, 1994

John Matteson, for appellant.

David McDade, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

       In planning the abduction, defendant sold or pawned many of his possessions, drew over $4,400 from his employer’s checking account, acquired an automobile that was not registered in his name, and advanced three months rent for a secluded chalet in Pigeon Forge, Tennessee. He informed the landlord that his name was “Prado” and that he needed temporary lodging for himself and his father because their house was under repair due to fire damage.