author: Andrews, Judge. Ruffin, Judge, McMurray, Presiding Judge,

text:
    A95A1712.
    JOHNSON v. AUTOZONE, INC.
    (465 SE2d 463)
   Andrews, Judge.

Johnson was injured when she slipped and fell in a puddle of oil in the parking lot of an Autozone, Inc. store. She sued Autozone to recover damages resulting from her injuries claiming Autozone negligently failed to keep the store premises in a safe condition for invitees. She brings this appeal from the trial court’s order granting summary judgment in favor of Autozone.

Johnson drove to the Autozone store with a friend and parked her car in the store’s parking lot. It was between 7:00 and 8:00 p.m. and dark outside when she arrived at the store. Johnson got out of her car, took three or four steps across the parking lot toward the entrance of the store, and slipped and fell in a large puddle of oil. The oil was puddled in a vacant handicapped parking space adjacent to where Johnson had parked her car. She testified on deposition that, although there was lighting in the parking lot, there was not enough light to enable her to see the large dark puddle of oil before she stepped into it and fell. The friend who accompanied Johnson to the store deposed that when she got out of the car after Johnson fell, “I looked down on the ground to see what she had, you know, slipped on and why she had fell in something and I seen a big old black spot of motor oil. . . .”

Two Autozone employees were working at the store on the night of the fall. Both gave affidavits stating Johnson’s friend reported the fall when it happened, that they went out to the parking lot and spoke to Johnson immediately after the fall, that the parking lot was well lighted, and that they could clearly see the large puddle of motor oil spilled out in a handicapped parking space. One of the employees stated there was about three to five quarts of motor oil in the parking space “as if someone had completely drained the oil out [of] a car.” The employee further stated: “At the time that I observed the oil in the parking lot, it was still running down the slope of the parking lot. However, the puddle of oil had not yet reached beyond the limits of the handicap parking space where it had been deposited.” Based on his observations of the oil, the employee stated it was his opinion the oil had been deposited in the parking space less than five minutes prior to the time he observed it. The same employee also stated that about 15 to 20 minutes prior to Johnson’s fall he had gone out to the parking lot to measure some windshield wipers on a customer’s car. He stated that, although he could have seen the oil spill from where he was working, he did not see any oil on the ground at that time. Both Autozone employees stated they had no knowledge of the spilled oil until they observed it after Johnson fell.

Johnson’s friend further deposed that, while she and Johnson were sitting in the parked car prior to the fall, she saw a man walk by the front of the car who slowed down and appeared to look in the direction of the oil spill. She stated that if he looked in that direction he would have seen the oil spill. Contrary to the dissent’s claim, the testimony of Johnson’s friend (Cox) did not provide evidence that the man she saw was an Autozone employee. Cox was unable to identify the man, and she never testified that the man she observed was an Autozone employee. The record is undisputed that only two Autozone employees were employed at the store at the time of the accident. Cox further testified that immediately after Johnson fell she saw two Autozone employees in the store and at least one customer and that none of these people appeared to be the man she saw walking past the oil spill. Although Johnson’s friend deposed that she did not know how long the oil had been there, she said she saw tire tracks through the puddle and footprints in it but not leading away from it.

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant [s]he slipped and fell on a foreign substance on the defendant’s [premises], the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Although Johnson’s friend and both Autozone employees stated the puddle of oil was visible, Johnson testified there was not enough light in the parking lot for her to see the puddle. Assuming a factual issue was presented as to whether in the exercise of ordinary care Johnson should have seen the puddle of oil before stepping in it, the trial court correctly granted summary judgment in favor of Autozone because there was no evidence Autozone had actual or constructive knowledge of the puddle of oil in the parking lot prior to Johnson’s fall.

There is no evidence any Autozone employee had actual knowledge of the spilled oil prior to Johnson’s fall. Constructive knowledge may be established in two ways. First, “[constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard.” (Citations and punctuation omitted.) Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257, 259 (366 SE2d 785) (1988). There is no evidence an employee of Autozone was in the immediate vicinity of the spilled oil and could have seen and removed the hazard prior to Johnson’s fall. Accordingly, any recovery in this case must be based on the second method of establishing constructive knowledge which is premised on a claim that the puddle of oil was on the premises for a long enough period of time that Autozone should have discovered it. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 809 (406 SE2d 234) (1991).

A proprietor has a duty to exercise ordinary care to keep the premises safe for invitees, which includes “a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.” (Citations and punctuation omitted.) Strickland v. Howard, 214 Ga. App. 307, 308 (447 SE2d 637) (1994). However, “[i]t is well settled that a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous.” Mazur v. Food Giant, 183 Ga. App. 453 (359 SE2d 178) (1987). Under the second method of proving constructive knowledge, if the evidence shows that a foreign substance has remained on the floor of the premises for a sufficient period of time that it should have been discovered and removed in a reasonable inspection of the premises, then an inference arises from the breach of the duty to inspect the premises and keep it safe that the proprietor has constructive knowledge of the presence of the foreign substance. Food Giant v. Cooke, 186 Ga. App. 253, 255 (366 SE2d 781) (1988). Of course, since the true basis of the proprietor’s liability to an invitee is the proprietor’s superior knowledge of the hazard or defect which was the proximate cause of the injury, an injured invitee may recover on the basis of the proprietor’s constructive knowledge of the hazard only if the invitee’s knowledge of the hazard did not equal or exceed the proprietor’s knowledge. Kroger Co. v. Bailey, 212 Ga. App. 568, 569 (442 SE2d 480) (1994).

In seeking summary judgment, Autozone had the burden of showing there was no genuine issue of fact with respect to its lack of constructive knowledge of the puddle of oil. It could do this by either producing evidence demonstrating a lack of constructive knowledge or by pointing out the absence of evidence in the record to support the nonmovant’s claim that it had constructive knowledge. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 168 (424 SE2d 845) (1992).

Autozone both pointed out the absence of any evidence that it had constructive knowledge based on a claim that an employee was in the vicinity of the oil spill and produced affidavits showing that no employee was in the vicinity in a position to have seen it prior to Johnson’s fall. Autozone also produced evidence that it did not have constructive knowledge on the basis that the oil spill had been on the premises for a sufficient length of time that it should have been discovered by a reasonable inspection of the premises.

Autozone produced uncontradicted evidence that the oil spill consisted of three to five quarts of motor oil deposited in a parking space in a sloping area of the parking lot and that, when the spill was observed immediately after Johnson’s fall, the oil was still running down the slope of the parking lot but had not yet run outside the limits of the marked parking space. We do not rely on the employee’s opinion that the oil had been running down the slope for less than five minutes before he observed it. See Ginn v. Morgan, 225 Ga. 192, 193 (167 SE2d 393) (1969) (opinion evidence alone will not support an award of summary judgment). Autozone also produced the affidavit of an employee who stated that 15 to 20 minutes prior to Johnson’s fall he was working in the parking lot, could have seen the oil from where he was working, but did not see any oil on the ground at that time. Although this affidavit was not evidence of periodic inspection procedures, it was additional evidence showing that the spill had existed in the parking lot for no more than a short period of 15 to 20 minutes prior to Johnson’s fall.

Although showing that a foreign substance was not discovered despite compliance with reasonable inspection procedures is one method of demonstrating lack of constructive knowledge (see Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 430 (408 SE2d 443) (1991)), it is not always necessary for the proprietor to show compliance with reasonable inspection procedures to establish a lack of constructive knowledge. In seeking summary judgment, the proprietor may also produce evidence, as Autozone did in this case, that the foreign substance had not been on the premises long enough to have been discovered by a reasonable inspection, regardless of whether inspection procedures had been instituted and complied with. Or the proprietor may simply point out the absence of any evidence in the record showing that the foreign substance had been on the premises for a period of time sufficient to have been discovered by a reasonable inspection of the premises. Lau’s Corp., supra.

The testimony of Johnson’s friend that she saw tire tracks and footprints in the puddle of oil did not contradict the evidence produced by Autozone. The existence of tire tracks and footprints in the puddle but not leading away from it is not evidence that the puddle had been there for a period of time in excess of that shown by Autozone. Rather, it suggests that the third party who deposited the motor oil stepped in it, then got in a car and drove through the puddle without leaving footprints away from it. See Queen v. Kroger Co., 191 Ga. App. 249, 250 (381 SE2d 413) (1989) (the fact that grapes were “smashed” on the floor of the store provided no indication of the length of time they had been on the floor before the plaintiff fell).

Autozone produced evidence that the oil spill had existed for no more than 15 to 20 minutes prior to Johnson’s fall. There was an absence of any evidence to the contrary or any evidence otherwise showing that the oil spill had been on the premises for a period of time sufficient to have been discovered by a reasonable inspection. There was no evidence that this type of spill had previously occurred in the parking lot or that the parking lot was unusually dangerous requiring a continuous patrol to maintain it in a safe condition. Accordingly, there was no evidence that Autozone had actual or constructive knowledge of the oil spill. The trial court correctly granted summary judgment in favor of Autozone.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Johnson, Blackburn and Smith, JJ., concur. Ruffin, J., concurs specially. McMurray, P. J., dissents.

Ruffin, Judge,

concurring specially.

I concur in the judgment, but I continue to be puzzled by how questions of negligence can be resolved on motions for summary judgment. Given that these kinds of cases are highly fact-intensive, the Bench and Bar can continue to expect hodge-podge results in slip and fall cases. If there is a case for summary disposition, this case is one. Johnson should have been able to see a large dark puddle of oil in the parking area, and there was no evidence of Autozone’s actual or constructive knowledge of the oil in the area. Accordingly, I concur with the majority.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent, as it is my view that genuine issues of material fact remain as to Autozone’s constructive knowledge of the oil slick that was in the handicapped parking space of its store. By saying otherwise, I believe the majority (1) unduly discounts evidence that an Autozone employee actually examined the hazard area just before Connie Johnson’s fall, and (2) erroneously concludes (as a matter of law) that Autozone exercised ordinary care in preparing and making ready a reasonably safe environment for its customers. OCGA § 51-3-1; Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 2 (1) (432 SE2d 230); Burke v. Bi-Lo, Inc., 212 Ga. App. 115, 116 (441 SE2d 429). I believe that the majority’s holding, absent proof of Autozone’s compliance with a routine safety inspection plan on the day of Johnson’s injury, is nothing more than another inroad into the jury’s province under circumstances where the issue of due care is not so “plain and palpable [so as to authorize a finding that] ‘reasonable minds cannot differ as to the conclusion to be reached.’ [Pound v. Augusta National, 158 Ga. App. 166, 167 (279 SE2d 342).]” Lau’s Corp. v. Haskins, 261 Ga. 491, 493 (2) (405 SE2d 474).

1. “Constructive knowledge by an owner or occupier of the foreign substance can be established in one of two ways. First, ‘(c)onstructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard.’ Food Giant v. Cooke, 186 Ga. App. 253, 254 (366 SE2d 781) (1988); see also Sain v. K-Mart Corp., 190 Ga. App. 751, 752 (380 SE2d 299) (1989).” Smith v. Wal-Mart Stores, 199 Ga. App. 808, 809 (406 SE2d 234).

In the case sub judice, Teresa Cox not only testified that she accompanied Connie Johnson to the Autozone store where Connie Johnson parked next to the store’s handicapped parking space (which was obviously close to the store entrance), Cox explained that, before Johnson exited the car, she (Cox) observed a man walk through the parking lot, stop next to the car and inspect the ground near where the oil slick was later discovered. Although Cox could not identify this man by name, she testified that the man was not walking from an area of the parking lot nearest the store’s entrance (as would a customer), but that he was walking away from the area of a blue truck that was parked at the rear of the store. She also testified that the man was carrying a “coke” and a restaurant-type “bag” into the auto parts store; that “[h]e had a little black moustache and . . . black hair” and that he was wearing either a “blue” or a “red” shirt.

Autozone employee Joseph Samuel Lee deposed that all Autozone salesmen are required to wear “red” shirts and that both he and Douglas A. Hoven (the only other Autozone employee on duty) were wearing such “red” shirts on the night Connie Johnson fell. And while both Lee and Hoven deposed that they did not see the oil slick before Johnson’s fall, neither man denied that he was the person Teresa Cox saw examining the ground near the oil slick. Further, neither deponent denied matching the physical description of the man Cox saw on the night of the fall. Under these circumstances, I do not believe Autozone conclusively negated Connie Johnson’s claim (as well as her proof) that an Autozone employee examined the parking area near where she fell, but failed to exercise reasonable care in carrying out the inspection. See Baldwin County Hosp. Auth. v. Coney, 188 Ga. App. 339 (1) (373 SE2d 252). Consequently, I believe that genuine issues of material fact remain under the first prong of the constructive knowledge test, i.e., a jury must decide whether the “red” or “blue” shirted man was an Autozone employee (on his way back to work with dinner), and thus whether Autozone had constructive knowledge of the oil slick in the handicapped zone.

2. “The second basis for liability based on constructive knowledge is that the owner failed to exercise reasonable care in inspecting the premises. ‘To sustain a cause of action in the latter type case the plaintiff must show that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant. (Cit.)’ Alterman Foods[ v. Ligon, 246 Ga. 620, 623 (272 SE2d 327)]; see also Food Giant[ v. Cooke], supra; Mitchell v. Rainey, 187 Ga. App. 510 (370 SE2d 673) (1988); Fulton-DeKalb County Hosp. Auth. v. Estes, 187 Ga. App. 120 (369 SE2d 262) (1988). This part of the test focuses on whether the foreign substance was on the premises long enough that the owner should have known of it.” Smith v. Wal-Mart Stores, 199 Ga. App. 808, 809, supra. And to negate any such imputed knowledge upon summary adjudication, this Court has held that the proprietor must produce conclusive proof that a customary inspection and cleaning program was in place and was being employed on the specific day of the injury. See Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 430 (1) (408 SE2d 443). But “in the absence of any evidence that [the proprietor] conducted a reasonable inspection of the premises prior to the fall, [this Court has just as firmly held that the customer is] not required to establish how long the spill remained on the [premises]. Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 169 (424 SE2d 845) (1992).” Burke v. Bi-Lo, Inc., 212 Ga. App. 115, 117, supra.

In the case sub judice, Autozone presented no proof regarding inspection procedures at its store. Nonetheless, a majority of this Court now says it does not matter. According to the majority, all that is necessary to negate the possibility that the proprietor did not exercise reasonable ordinary care in preparing and making ready a reasonably safe environment for its customers is the production of an affidavit, wherein an employee deposes that he ranged in an outward vicinity of the hazard area (while assisting another customer) 15 to 20 minutes before the alleged injury and did not then see the hazard which allegedly caused the plaintiffs fall. This ultra light burden on summary judgment granted by the majority not only ignores unanswered questions regarding the circumstances and perspective of the employee’s observations, I believe it effectively destroys any incentive for proprietors to carry out routine inspections so as to satisfy their burden to prepare and make ready a reasonably safe environment for customers. See OCGA § 51-3-1; Burke v. Bi-Lo, Inc., 212 Ga. App. 115, 116, supra. In fact, the majority’s reasoning appears to be in direct conflict with Judge Blackburn’s recent decision in Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 2 (1), supra.

In Thompson, that plaintiff alleged that those defendants failed to inspect their premises to discover an alleged defective condition prior to her fall. This theory, as is the theory in the case sub judice, was “ ‘premised upon defendant(s’) failure to exercise reasonable care in inspecting and keeping the premises in a safe condition. The issue thus [became] whether the affidavit(s) executed by defendant(s) [negated] recovery of that theory.’ (Citations and punctuation omitted.) Flood v. Camp Oil, 201 Ga. App. at 453. [Just as Autozone did in the case sub judice, the] affidavits presented on behalf of the defendants [in Thompson], [did] not allege any practice to inspect the premises at all, let alone to inspect on a routine basis that would allow for the discovery of defective conditions.” Id. at 2 (1), 3, supra. As a consequence, this Court found that those defendants failed to negate the possibility that they had not exercised reasonable care in inspecting the premises and therefore held that the burden never shifted to plaintiff to produce evidence that the defective condition had been present for a period of time sufficient to have been discovered by a reasonable inspection procedure. Id. For the same reasons, I would reverse the trial court’s order granting summary judgment in the case sub judice.

“An owner/occupier of premises has a duty to keep those premises safe for its invitees. OCGA § 51-3-1; Thompson v. Regency Mall Assoc., 209 Ga. App. 1 (432 SE2d 230) (1993). ‘An invitee enters upon the premises under an implied representation, or assurance, that the land has been prepared and made ready and safe for his reception. The invitee is entitled to expect the possessor will exercise reasonable care to make the land safe for his entry. (Cit.) It is this implied representation that is made to the public, by holding the land open to them, that it has been prepared for their reception, that it is safe, that is the basis for the possessor’s liability. (Cit.)’ Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984).” Burke v. Bi-Lo, Inc., 212 Ga. App. 115, 116, supra.

In the case sub judiee, the specific evidence the majority relies on in saying that Autozone conclusively proved that it exercised reasonable care in making its premises safe are affidavits from the only two employees on duty at the time Connie Johnson fell, Joseph Samuel Lee and Douglas A. Hoven. Hoven deposed that “I had gone out to the parking lot 15-20 minutes before this incident to measure some windshield wipers on a customer’s car[, and although] I could have seen the oil spill from where I was working at this customer’s car, I did not see any oil on the ground at that time.” And Lee deposed that “[a]t around 6:30 p.m. on December 31, 1992, [over an hour before Connie Johnson fell,] I had gone out to the parking lot to change the headlight bulbs on a customer’s car[, and that although] I could have seen the oil spill from where I was at this customer’s car, I did not see any oil on the ground at that time.” However, neither Hoven nor Lee explained the distance or clarity of the perspective to the area of the oil slick, and it appears to be undisputed that neither man was in the parking lot to execute a safety-inspection of the premises. Both men were occupied with customers.

On summary judgment, it is this Court’s duty to give the non-moving party the benefit of every doubt, indulging her with every inference which can reasonably be drawn from the evidence. Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257, 258 (1) (366 SE2d 785). From this perspective, I believe the circumstances in the case sub judiee would authorize a jury’s finding that Autozone breached its implied representation to Connie Johnson that its store’s parking lot was prepared for her reception and that it was safe. See Burke v. Bi-Lo, Inc., 212 Ga. App. 115, 116, supra. And a basis for such a conclusion may not only flow from proof regarding the lack of safety-inspection procedures at the Autozone store, but also from proof that Autozone provided only two employees to service a large auto parts store during the holiday season in Carrollton, Georgia. Under such circumstances, it would be easy to see how Joseph Samuel Lee and Douglas A. Hoven missed the person (presumably a customer) who set up shop in the store’s handicapped parking space, drained three to five quarts of oil (as estimated by Hoven) onto the pavement and replaced the oil with a fresh product that was presumably just purchased from the Autozone store.

Decided November 9, 1995

Reconsideration denied December 6, 1995

Jack F. Witcher, for appellant.

Swift, Currie, McGhee & Hiers, Bradley S. Wolff, for appellee.


source: Caselaw Access Project

author: Blackburn, Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A95A1795.
    ACHOR CENTER, INC. v. HOLMES.
    (465 SE2d 451)
   Blackburn, Judge.

Kenneth R. Holmes, a minister, brought the underlying action for malicious prosecution and tortious interference with business relations against Achor Center, Inc. (Achor). Achor is a nonprofit organization that houses and trains homeless women and children. Achor and the church pastored by Holmes shared a facility. This arrangement led to a number of disputes between the two that culminated in Holmes’ termination by his employer, the United Baptist Church (UBC), and Holmes’ subsequent arrest for criminal trespass. This appeal stems from the trial court’s denial of Achor’s motion for summary judgment.

In 1987 the UBC sold property where it conducted religious services to the Christian Council of Metropolitan Atlanta, Inc. (CCMA). As a condition of the sale, UBC retained the right to use certain portions of the property. Subsequently, CCMA conveyed the property to Achor who established a homeless shelter on the site. Achor acknowledged the use agreement between CCMA and UBC, and UBC was permitted to continue conducting services at the facility. In 1988, UBC commenced a new Sunday service on the property, and Holmes was hired to serve as the minister.

Beginning in 1990, a series of confrontations took place between Holmes and various Achor officials. Among other things, Achor asserts that, contrary to its rules and despite requests that he refrain, Holmes repeatedly entered the women’s dormitory without permission. The dormitory area was separate from the church where Holmes conducted services and Achor asserts that Holmes had no valid reason for being there. In January 1993, Achor’s board of directors informed UBC of the dormitory problem and threatened to hold UBC legally liable for any “negative consequences” resulting from Holmes’ presence at the facility. In February 1993, Achor’s chairman wrote a letter to UBC requesting that Holmes be permanently precluded from entering Achor’s property and renewed Achor’s threat to hold UBC legally responsible for Holmes’ acts. In April, Achor and UBC met specifically to discuss the removal of Holmes and his congregation from the Achor facility.

Shortly thereafter, on May 2, 1993, UBC discussed problems between Achor and Holmes at its quarterly meeting. Achor officials attended the meeting. At that time, UBC terminated Holmes’ employment and withdrew funding for his ministry. Holmes did not consider his termination to be valid and continued to hold services on the Achor property even though Achor took certain measures to bar Holmes’ entry. On one such occasion, when Holmes entered the facility to conduct services, UBC contacted the police. In response to questions posed by the arresting officer, Joyce Dorsey, Achor’s chairman, provided documentary proof of Achor’s ownership of the property and an oral account of the warnings issued to Holmes. Holmes subsequently filed these claims for tortious interference with business relations and malicious prosecution against Achor.

1. “The elements essential to a cause of action under OCGA § 51-7-40 are: (1) prosecution for a criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a valid warrant, accusation or summons; (5) which has terminated favorably to the plaintiff; and (6) has caused damage to the plaintiff.” Wal-Mart Stores v. Blackford, 264 Ga. 612, 613 (449 SE2d 293) (1994). Achor argues that it had probable cause to pursue criminal trespass claims against Holmes and that it was not acting maliciously.

“The gravamen of the complaint is the absence of probable cause on the part of the person instituting the prosecution. [Cits.] Probable cause is absent ‘when the circumstances are such as to satisfy a reasonable (person) that the accuser had no ground for proceeding but his desire to injure the accused.’ ” Id. As a result, it is not necessary for Achor to prove that Holmes was guilty of criminal trespass but rather that Achor reasonably believed Holmes to be guilty of criminal trespass. See Jones v. Parrish, 203 Ga. App. 566, 569 (417 SE2d 210) (1992). Upon review of the undisputed evidence, we conclude that Achor could reasonably believe Holmes was guilty of the crime for which he was arrested.

Holmes was expelled from the UBC and removed from his pastorship several weeks before his arrest, and Achor was aware of his expulsion. A criminal trespass occurs when one knowingly or maliciously interferes with the possession or use of the property of another person without the owner’s consent. OCGA § 16-7-21 (a). Despite the dissent’s contention that Holmes was not adequately advised not to enter the Achor property prior to his arrest, Holmes admits that after his expulsion, he was not welcome at the Achor facility and Achor officials clearly communicated that to him. Holmes’ deposition testimony reflects that, a few days prior to his arrest, Achor removed from its property the church sign that contained Holmes’ name. Holmes confronted the individual removing the sign and their exchange grew so heated that the police were summoned. By his own admission, Holmes perceived the sign’s removal as an indication that he was without authority to enter Achor’s property. Achor also changed the facility’s locks to prevent Holmes’ entry to the property, another act that Holmes considered part of a “continuing effort” to bar him from the property. Finally, as he stated in an affidavit given prior to his arrest, Holmes heard an Achor chairperson, Joyce Dorsey, openly and unequivocally state that Holmes was not to return to Achor’s property. In light of the above, when Holmes subsequently appeared on Achor property, Achor could reasonably believe that Holmes knowingly entered its property without consent and was thus guilty of criminal trespass.

Further, Achor has offered unrefuted evidence that it was UBC and not Achor who contacted the police complaining of Holmes’ trespass. At the time of the arrest, an Achor official who was present at the request of UBC, merely responded to police questions. “ ‘The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for false imprisonment or malicious prosecution [cit.]; in the latter case there is not. [Cit.]’ ” Tench v. Turner, 201 Ga. App. 156, 157 (410 SE2d 357) (1991). In the present matter, no evidence exists that Achor instigated the police investigation or urged the arrest of Holmes. Rather Achor’s chairman “merely relayed facts about what [she] believed happened” to the investigating officer. Id. at 157.

Moreover, the trial court erred in considering certain evidence proffered by Holmes in support of his malicious prosecution claim. The evidence in question was an uncertified, photocopied portion of a hearing transcript taken in a different proceeding. This testimony extract is clearly an unauthenticated writing, OCGA §§ 24-7-1; 24-7-20, and is not properly considered in evaluating a summary judgment motion. Gen. Ins. Co. of America v. Camden Constr. Co., 115 Ga. App. 189, 192 (154 SE2d 26) (1967) (evidence must be competent and admissible to raise a genuine issue of material fact on review of a summary judgment motion).

Where undisputed facts disclose that a complaint was filed in good faith and with probable cause, summary judgment is appropriate. Booker v. Eddins, 183 Ga. App. 449, 450 (359 SE2d 211) (1987) rev’d on other grounds Cincinnati Ins. Co. v. Perimeter Tractor &c. Repair, 192 Ga. App. 243 (384 SE2d 449) (1989). In light of the foregoing, we find that the trial court erred in denying Achor’s motion for summary judgment on the malicious prosecution claim. This holding is consistent with the policy to disfavor malicious prosecution actions and to encourage citizens to report an individual they suspect may have committed crimes. See K-Mart Corp. v. Coker, 261 Ga. 745, 747-748 (410 SE2d 425) (1991).

2. Achor also sought summary judgment on Holmes’ claim that Achor tortiously interfered with the relationship between Holmes and UBC. Achor had a joint-use agreement with UBC that permitted UBC limited access to the property. Achor provided evidence of numerous instances of Holmes’ erratic conduct that took place while he was present at the Achor facility or was witnessed by the Achor staff. This behavior led Achor to request UBC to restrict Holmes’ access to the property.

“[A] person’s business is property in the pursuit of which he is entitled to protection from tortious interference by a third person, who, in interfering therewith, is not acting in the exercise of some right.” (Punctuation omitted.) Taylor v. Greiner, 156 Ga. App. 663, 666 (275 SE2d 737) (1980); see also Life Care Ambulance v. Hosp. Auth. of Gwinnett County, 202 Ga. App. 864, 868 (415 SE2d 502) (1992). As owner and operator of the property, Achor was attempting to exercise a legitimate interest, protecting the well-being of its residents and staff, when it sought to have UBC bar Holmes from the property. Further, Achor merely sought to protect its property rights in requesting that UBC preclude its agent, Holmes, from entering the property after it had previously complained of his conduct. It did not seek to interfere with the contract between UBC and Holmes. UBC’s termination of Holmes was clearly its attempt to protect its interests and its contract with Achor.

On the facts of this case, Achor’s dealings with UBC reflect no malicious intent toward Holmes, an element necessary to recover for tortious interference with business relations. See Lake Tightsqueeze v. Chrysler First Financial Svcs. Corp., 210 Ga. App. 178, 181 (435 SE2d 486) (1993). Achor had an absolute right to protect its ownership rights in its dealings with UBC, and indeed had a duty to the females in the dormitory to take action. Therefore, the trial court erroneously denied Achor’s motion for summary judgment as to the tortious interference claim and that ruling is reversed.

Judgment reversed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that the trial court correctly determined (as reflected in detailed findings of fact and conclusions of law) that genuine issues of material fact remain as to Reverend Kenneth R. Holmes’ claims against Achor Center, Inc. (“Achor”) for malicious prosecution and tortious interference with business relations. To this extent, I believe that the trial court properly construed the evidence in a light most favorable to the non-moving party’s claims and therefore found that Achor, as the moving party, failed to carry its burden of piercing the basic allegations of Holmes’ complaint. McGinty v. Goldens’ Foundry &c. Co., 208 Ga. App. 248 (1) (430 SE2d 185).

Malicious Prosecution. Two congregations were originally sanctioned by the United Baptist Church (“UBC”) to conduct worship activities on the Stewart Avenue property, a congregation led by Reverend William Sperry (the Reverend Sperry’s congregation) and a congregation led by Reverend Kenneth R. Holmes (the Reverend Holmes’ congregation). This arrangement was achieved after Reverend Holmes and his family joined UBC’s Stewart Avenue congregation in 1987, the Reverend Holmes’ congregation meeting at noon on Sundays after completion of the Reverend Sperry’s congregation’s services. Although functioning separately, the two congregations financially supported UBC. Troubles began, however, after UBC sold its Stewart Avenue property to Achor.

At the outset, Achor accused Reverend Holmes of improprieties with its clients, charges which resulted in a temporary restraining order against the Reverend Holmes. It appears, however, that after the temporary restraining order was not converted to a permanent injunction, Joyce Dorsey, Achor’s Chairperson of the Board of Directors, renewed charges that Reverend Holmes was breaching Achor’s dormitory rules and contemporaneously threatened UBC with criminal and civil responsibility for any improprieties accomplished by Reverend Holmes. Under pressure, UBC resolved (upon a vote which purposely excluded members of the Reverend Holmes’ congregation) to terminate Reverend Holmes, his family and (effectively) the Reverend Holmes’ congregation from further fellowship. Notwithstanding, Reverend Holmes continued his religious ministries on the Stewart Avenue property without pay, prompting UBC’s contact with law enforcement authorities on June 13, 1993. When the investigating police officer arrived on the scene, however, he did not immediately arrest Reverend Holmes. The officer first asked Chairperson Dorsey (the property-owners’ representative) whether Reverend Holmes had been previously warned against trespassing, a necessary element to support probable cause for the arrest of Reverend Holmes for criminal trespass. See OCGA § 16-7-21 (b) (2) and (3). Although there is proof that Chairperson Dorsey did not then have knowledge of any such warning from UBC, she advised the investigating officer that Reverend Holmes had been so warned. And based on this allegation, the officer arrested Reverend Holmes and took him to jail.

Unlike the majority opinion, the trial court’s order recognizes that the criminal trespass charge against Reverend Holmes was dismissed for lack of probable cause. And unlike the majority’s perspective of the evidence, the trial court recognizes that a jury may conclude that Chairperson Dorsey’s conclusory accusation to the investigating officer (i.e., that Reverend Holmes had been previously warned not to enter the Stewart Avenue property) was sufficient to raise genuine issues of material fact regarding Achor’s involvement in the arrest and its reckless or malicious intent in pressing charges against Reverend Holmes. I agree with this assessment, and further add that evidence of Chairperson Dorsey’s long-standing feud with Reverend Holmes would buttress a jury’s finding that animosity was a basis for her reckless or deliberate disregard to discover the truth of the report which resulted in the immediate jailing of Reverend Holmes. The trial court should be affirmed.

Tortious Interference with Business Relations. The majority justifies Achor’s interference with the relationship between Reverend Holmes and UBC by inferring that Reverend Holmes was a danger to (among others) “the females in the dormitory. . . .’’To this extent, the majority states that “Achor was attempting to exercise a legitimate interest, protecting the well-being of its residents and staff, when it sought to have UBC bar Holmes from the property.” However, in apparent recognition of conflicting (and seemingly weak) proof in support of assertions that Reverend Holmes is a dangerous man, the trial court found that Achor did not (as a matter of law) have authority, in contract or in law, to interfere with Reverend Holmes’ relationship with UBC by seeking his exclusion from the Stewart Avenue property. Specifically, the trial court recognized the covenant which allowed UBC representatives, such as Reverend Holmes, to be on the Stewart Avenue property and acknowledged that this proof, along with evidence of Achor’s tactics to have Reverend Holmes completely removed from the Stewart Avenue property, rather than just its dormitory areas, raised genuine issues of material fact regarding Reverend Holmes’ claim of tortious interference with business relations. Again, I agree with the trial court’s assessment. And again I add that evidence of Chairperson Dorsey’s emotionally charged threats to hold UBC criminally and civilly responsible for the consequences of Reverend Holmes’ activities (inferring without conclusive proof that he constitutes a danger to others) would authorize a jury’s finding that Chairperson Dorsey was motivated by malice when she pressed UBC to terminate Reverend Holmes’ ministry at the Stewart Avenue property.

Decided October 30, 1995

Reconsideration denied December 6, 1995

Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Debra E. Levorse, Griffith J. Winthrop III, Thompson, O’Brien, Kemp & Nasuti, J. Patrick O’Brien, for appellant.

Ronald J. Freeman, Jerome J. Stenger, for appellee.

Under the circumstances of the case sub judice, and in light of proof that would authorize a finding that Achor personnel had animosity and unjustifiable mistrust for Reverend Holmes before and after his discharge from UBC’s fellowship, I cannot say (as a matter of law) that questions of Achor’s malice, probable cause and intent (to the extent that these issues are relevant to Holmes’ claims against Achor for tortious interference with business relations) are not for the jury. Indeed, a jury may well conclude that Chairperson Dorsey’s aggressive efforts to remove Reverend Holmes from UBC’s Stewart Avenue pulpit and have him banished from church property was nothing more than her unfavorable perspective of Reverend Holmes’ intent when he was near certain women who were lodged in Achor’s dormitory, an area which is apparently part of the church’s worship center. Consequently, in the absence of conclusive proof that Reverend Holmes acted or intended to act unlawfully, indecently or immorally while on Achor’s Stewart Avenue property, I would affirm the trial court’s ruling on summary judgment with regard to Revérend Holmes’ claim of tortious interference with business relations.

       Holmes’ own admission refutes the dissent’s contention that Dorsey never informed Holmes that his entry to the property was forbidden.

       In responding to Achor’s motion for summary judgment, Holmes offered numerous unauthenticated documents including correspondence, minutes from the UBC quarterly meeting when Holmes was terminated and additional testimony extracts. Many of these documents were simply attached to Holmes’ brief and were not identified in any deposition transcript or affidavit. One such unauthenticated exhibit was a May 14, 1993 letter written to Holmes by UBC clearly stating that if Holmes entered Achor’s facility after May 20, 1993 he would be trespassing.


author: Smith, Judge.

text:
    A95A2313.
    MURRAY v. THE STATE.
    (465 SE2d 515)
   Smith, Judge.

Randy Murray was indicted on charges of rape, aggravated sodomy, aggravated assault, and giving a false name to an officer. A jury found him guilty on all charges. His motion for new trial was denied, and he brings this appeal. Murray’s sole contention on appeal is that the trial court erred in restricting his cross-examination of a State witness regarding the nature of criminal charges pending against that witness. We do not agree.

The charges against Murray stemmed from a visit he paid to a former girl friend, Victoria Sims, with whom he had a child. Sims was then living with Larry Braswell. When Murray arrived, Sims was speaking on the telephone to Braswell, who was in jail. Although Murray’s daughter was asleep, Sims invited him in and told him he could watch television in the living room while she continued her telephone conversation with Braswell in the kitchen. Murray testified he brought some beer with him, and he watched television, drank some beer, and dozed intermittently.

Sims and Murray agree that they had sex that evening. Sims claims Murray raped her and forced her to perform oral sodomy. Murray claims the sex was consensual. Braswell for some time was on the open telephone line. He testified he heard Sims ask Murray to leave. He became concerned when he then heard sounds indicating to him that Murray would not leave and Sims needed help. He called the police from jail. When police officers arrived, they found Sims “very upset” and “kind of hysterical.” She reported that Murray had raped her. A police officer discovered a knife in the location pointed out by Sims, behind a dresser in the bedroom. Murray gave the officers a false name, and he was taken into custody.

Immediately before trial, the prosecution moved in limine to prohibit the defense from questioning Braswell regarding the nature of the charge for which he was in jail on the evening in question: aggravated sodomy involving a juvenile. The charge against Braswell had been dismissed by the time of trial. The State argued that the prejudicial effect of revealing the nature of that charge outweighed its probative value; the defense claimed it was relevant to show Braswell’s and Sims’s motive for lying. The trial court took the motion under advisement until the time of Braswell’s testimony, ruling that in the interim, references to Braswell’s offense during opening statements would be restricted to the fact of incarceration; no mention would be allowed of the nature of the offense for which he was jailed.

When the State called Braswell to testify, the issue was revisited out of the presence of the jury, and the trial court granted the State’s motion. The court permitted questioning of Braswell regarding the fact that he had been arrested and the subsequent dismissal of that charge, but prohibited questioning regarding the substance of the dismissed charge. In an order denying the motion for new trial, the trial court found unpersuasive Murray’s argument that this information was crucial because it would have allowed the jury to infer that Bras-well “had concocted the allegations when he placed the 911 call.”

We agree, and we find similarly unpersuasive Murray’s identical argument on appeal.

Murray’s reliance upon Olden v. Kentucky, 488 U. S. 227 (109 SC 480, 102 LE2d 513) (1988) is misplaced. In Olden, a sexual assault case, the United States Supreme Court held that restricting cross-examination of the victim regarding her cohabitation with a third party violated the accused’s Sixth Amendment right to confront witnesses, and it was not harmless error. There, as here, the accused relied upon a defense that the victim had consented to sex. When the defense to a charge of sexual assault is built upon a theory that the alleged victim lied in accusing him in order to protect her relationship with another man, it is easily seen that evidence of the victim’s relationship or cohabitation with that other man is a crucial fact for the jury’s consideration. It supports the defense theory by placing before the jury a strong motivation for the victim to lie.

Decided December 6, 1995.

Mary Erickson, for appellant.

J. Tom Morgan, District Attorney, Lee A. Mangone, Robert M. Coker, Assistant District Attorneys, for appellee.

Here, however, the State informed the jury explicitly not only of the information withheld in Olden — Sims’s relationship with Bras-well — but also of Braswell’s knowledge that Murray was in Sims’s apartment that evening. The jury was thus provided with exactly the information sought in Olden, providing for the jury evidence of the victim’s motivation to lie. We do not agree with Murray that withholding from the jury the substance of the charge against Braswell was in any way relevant to either Braswell’s or Sims’s motive for lying.

We find speculative Murray’s argument that the prohibited questioning would have added support to his defense by allowing the jury to infer that the false charge against Braswell allowed Braswell and Sims to fabricate the accusation against him more easily. No evidence exists that the charge against Braswell was false. Further, no evidence was presented of collusion between Braswell and Sims in fabricating the charge; under both the defense theory and that of the prosecution, Sims was occupied with Murray when Braswell telephoned the police.

The admission of evidence at trial is within the discretion of the trial court. Although each party is entitled to a thorough and sifting cross-examination, that right is not unfettered. The trial court may, in its discretion, restrict the scope of cross-examination to the relevant issues. Haynes v. State, 180 Ga. App. 202, 203 (3) (349 SE2d 208) (1986); see also Mobley v. State, 212 Ga. App. 293, 295 (1) (441 SE2d 780) (1994). The court’s discretion will not be interfered with on appeal unless an abuse is present. Jennette v. State, 197 Ga. App. 580, 581 (2) (398 SE2d 734) (1990). The court’s conclusion that the evidence sought to be admitted was not relevant to the issues in this case falls within the reasonable exercise of the court’s discretion and we find no abuse. This questioning was properly prohibited.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A95A1380.
    CROTTY v. CROTTY.
    (465 SE2d 517)
   Birdsong, Presiding Judge.

This is a direct appeal from the order of the trial court in a suit brought for noncompliance with a settlement agreement incorporated into a divorce decree. Due to the unsettled body of law pertaining to the jurisdiction of the Supreme Court of Georgia, this case has enjoyed an unusual appellate history.

The parties were divorced on June 30, 1989; previously, on June 9, 1989, a divorce (settlement) agreement was executed by both parties and was made a part of the final judgment and decree by incorporation therein. In November 1993, appellant/plaintiff James Crotty filed a motion for contempt alleging in four counts that his former wife, appellee/defendant Roberta L. Crotty, had failed to comply with certain provisions of the settlement agreement requiring her to pay plaintiff certain sums. Shortly thereafter appellee apparently asserted that the action was to enforce contract rights arising from the settlement agreement and was not properly heard as a contempt action. Appellant filed a first amended motion for contempt and multi-count complaint for damages. Appellant moved for summary judgment. The trial court simultaneously held a hearing on the motion for summary judgment and on the motion for contempt and entered final judgment on January 10, 1995. However, in that order, the trial court failed to rule expressly on either motion and recited at the beginning of the order that the case came before it for a final hearing. Appellant directly appealed from the trial court’s order based on OCGA §§ 5-6-34 (a) and 9-11-56 (h).

Originally this appeal was docketed with this Court and was dismissed for failure to comply with the discretionary appeals procedures. On motion for reconsideration, we concluded that the Supreme Court had jurisdiction over this appeal as it was a matter arising out of a divorce action. Accordingly, we vacated our order dismissing the appeal. “A judgment rendered by a court without jurisdiction of the subject matter is absolutely void,” and the parties cannot extend the scope of a court’s subject matter jurisdiction either by waiver or agreement. Williams v. Fuller, 244 Ga. 846, 848 (2) (262 SE2d 135). We transferred the case to the Supreme Court, which thereafter issued an order dismissing the case for failure to file a discretionary appeal. Appellant filed a motion for reconsideration asserting inter alia that his appeal was not from a domestic relations case pursuant to the holding of the Supreme Court in Eickhoff v. Eickhoff, 263 Ga. 498 (435 SE2d 914). The Supreme Court vacated its order dismissing the appeal and transferred the case, without citation of authority, to this Court. In its transfer order the court stated: “It appearing that this is not a divorce case within the meaning of the 1983 Ga. Const., Art. VI, Sec. VI, Par. III, inasmuch as the issues on appeal are matters of contract defense and entitlement to attorney fees under OCGA § 13-6-11, jurisdiction of the appeal is in the Court of Appeals.” Note: The Supreme Court, under its precedent, would be required to vacate its order dismissing the appeal upon concluding that it lacked jurisdiction over the appeal. Williams, supra.

The operative facts are as follows. A settlement agreement was incorporated into a divorce decree which awarded, inter alia, appellee a 1987 Toyota Camry, appellant a 1982 Honda, and obligated appellee to pay $4,750 upon the sale of the marital residence to appellant to satisfy the difference in value between the two automobiles. After the parties were divorced their marital home was sold and they took back a second mortgage payable in three annual installments. Appellant agreed to allow appellee to keep the first two installment payments with his understanding that any amounts due him, pursuant to the divorce decree, would be paid from the amount appellee received in the final annual installment. Thus, appellant contends that pursuant to the terms of the divorce settlement agreement he was to be paid the $4,750 from the final installment payment. Appellee received the final $25,000 payment and tendered appellant a cashier’s check in the amount of $10,500, which he elected not to accept as full payment. Appellant filed a motion for contempt, but following appellee’s assertions that the action was simply an action to enforce appellant’s rights pursuant to the divorce settlement agreement and could not be heard as a contempt action, he filed an amended complaint alleging various claims including breach of contract, fraud, misappropriation, and an attorney fees claim pursuant to OCGA § 13-6-11. Appellant waived jury trial. After hearing evidence presented, the trial court awarded appellant $19,077.31 but declined to award him the $4,750 or attorney fees pursuant to his OCGA § 13-6-11 claim. Held:

1. We have grave reservations whether, in determining if this case is subject to the discretionary appeals procedure of OCGA § 5-6-35, Eickhoff v. Eickhoff, supra at 498 (which concerned a settlement agreement that “was not incorporated into the final divorce decree”), is controlling. The settlement agreement in this case was incorporated into and thus became an integral part of the divorce decree and perforce a domestic relations matter for purposes of OCGA § 5-6-35. Breach of the incorporated settlement agreement constituted the breach of the terms of an order issued in a divorce or other form of domestic relations case. Compare Bedford v. Bedford, 246 Ga. 780 (273 SE2d 167), cited in Rebich v. Miles, 264 Ga. 467 (448 SE2d 192), with Tobitt v. Tobitt, 249 Ga. 245 (290 SE2d 49); but cf. Larimer v. Larimer, 249 Ga. 500 (292 SE2d 71). Our views notwithstanding, this case has been transferred to this Court for appellate adjudication by order of the Supreme Court. An order to this Court issued by the Supreme Court is tantamount to a decision by that court as to the subject matter of the order, and we are compelled to comply therewith. Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI. However, perhaps in the near future, the General Assembly will take interest in the substantial and steady increase of our appellate jurisdiction brought about in part by the judicial interpretation of our higher court. Pursuant to the Supreme Court’s transfer order, we will now exercise our jurisdiction over this case and adjudicate it on the merits; however, were we at liberty to do so, we would once again dismiss this appeal for failure to file a discretionary application.

2. Any attachments to briefs or to a motion for reconsideration which are not also part of the record cannot be considered on appellate review; a brief and motion for reconsideration or attachments thereto cannot be used as procedural vehicles for adding evidence to the record. Griffin v. Loper, 209 Ga. App. 504, 505 (433 SE2d 653); Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33); see Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 351 (411 SE2d 75).

3. Appellant asserts, as his first enumeration of error, that the trial court erred in ruling appellant “forgave” appellee of her contractual obligation to pay $4,750 “required per the divorce agreement” since there was no new consideration supporting any alleged release of this antecedent debt owed by appellee. (Emphasis supplied.) This enumeration on its face limits the assignment of error as arising from a ruling that an obligation to pay as required solely by a “divorce agreement” was forgiven. By transferring this case, the Supreme Court in effect has ruled that there exists no obligation to pay, arising from a “divorce” agreement, but that any existing obligations arose per force from a separate contractual agreement not the product of a divorce decree. “On appeal an enumeration of error cannot be enlarged by [a] brief to give appellate viability to an issue not contained in the original enumeration.” Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522). One cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold. West v. Nodvin, 196 Ga. App. 825, 830 (4) (b) (397 SE2d 567), citing City of College Park v. Ga. Power Co., 188 Ga. App. 223, 224 (372 SE2d 493). As this Court is compelled to conclude that no contractual obligation arose from the existing divorce agreement (the divorce decree of the parties of which the settlement agreement was made part), this enumeration of error, as crafted by the appellant, is without merit.

Assuming arguendo, appellant’s enumeration was sufficient in scope to encompass an assertion that a contractual obligation arose from a contract entered into by means of a settlement agreement unrelated to a divorce agreement (as a part of a divorce decree), we still conclude that this enumeration is without merit. We are satisfied the trial court did not err in concluding that appellant had forgiven the payment of $4,750 by appellee.

Appellee testified that, during a discussion of money issues between the parties, appellant forgave her the $4,750 debt and, as evidence of this he put the figure “0” on the financial work sheet next to the word “car.” Thereafter, until he filed the lawsuit, appellant never made any demand for the $4,750. Appellant testified and denied forgiving the debt, but admitted that he wrote “car” on the summary sheet in reference to the Camry, and that he wrote the figure “0” next to the word “car.” Further, the figure $4,750 does not appear on the financial summary sheet; however, appellant asserted that was because he chose not to write the amount on the sheet.

McLure v. McLure, 159 Ga. App. 18 (282 SE2d 674) is distinguishable from the facts before us and not controlling. The issue before us is whether there is any evidence to support the trial court’s findings that appellant forgave the wife of a debt and made a gift of that amount. We find that there is. “ ‘A debt may be the subject of a gift by the creditor to his debtor, and is generally referred to as a forgiveness of the debt.’ ” Croxton v. Barrow, 57 Ga. App. 1 (1) (194 SE 24). In Willingham v. Willingham, 160 Ga. App. 175 (286 SE2d 754), a wife returned an alimony payment check to her ex-husband because she believed they would remarry and she did not want to feel like a “heel”; the parties did not remarry. We affirmed the judgment of the trial court sustaining the ex-wife’s garnishment against the appellant holding: “The evidence supports a finding that appellant’s $7,000 alimony debt was not paid, and that it was not forgiven and not extinguished. Whether a debt is extinguished or forgiven by certain acts is dependent upon the intention of the parties, to be arrived at from an examination of all the circumstances. [Cit.] The trier of fact heard the evidence in the case, and as it fully supports the judgment we will not disturb it on appeal.” Id. On appeal, an appellate court is required to construe the evidence most strongly to uphold the judgment (Williams v. Perry, 187 Ga. App. 586, 587 (1) (370 SE2d 836)); and, when reviewing a bench trial, even though the findings of fact contended by appellant would have been authorized by the evidence presented at trial, yet, where the facts found by the trial court were authorized by the evidence such findings will not be set aside. Brook Forest Enterprises v. Paulding County, 231 Ga. 695 (203 SE2d 860). The evidence of record supports the trial court’s findings notwithstanding that another factual determination regarding forgiveness of the debt also could, as in Willingham, supra, have been reached. We will not substitute our judgment of witness credibility and evidence weight for that of the trial court.

Decided December 8, 1995.

Ashenden, Flynn & Gottlieb, Edward D. Flynn III, for appellant.

C. Alan Mullinax, for appellee.

Additionally, we find that the conduct of appellant, under the facts here attendant also constituted a waiver by conduct of his right to assert that the $4,750 debt had not been forgiven. See generally Fernandez v. Bank of Dahlonega, 217 Ga. App. 739, 743 (4) (b) (459 SE2d 424); Johnson v. Rogers, 214 Ga. App. 557, 560 (5) (448 SE2d 710); Hyre v. Denise, 214 Ga. App. 552 (3) (449 SE2d 120); Mauldin v. Weinstock, 201 Ga. App. 514, 520 (4) (411 SE2d 370). We will not reverse the correct judgment of a trial court regardless of the reason given therefor. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673).

4. The trial court found that both parties failed to have clean hands, and both parties engaged in contemptuous behavior and chose to disregard the court order and to enter into “countless ‘side agreements.’ ” The court then ruled that “after a full hearing of all issues, the court exercises its inherent discretion and declines to award [appellant/] plaintiff attorney fees related to contempt filings.” The issue of attorney fees under OCGA § 13-6-11 is a question for the factfinder. Leventhal v. Seiter, 208 Ga. App. 158, 164 (7) (430 SE2d 378). Mere refusal to pay a disputed claim is not the equivalent of stubborn litigiousness or the causing of unnecessary trouble and expense under OCGA § 13-6-11. Rivergate Corp. v. Atlanta Indoor &c., 210 Ga. App. 501, 504 (4) (436 SE2d 697). We cannot determine, under the facts of this case, that the trial court erred in denying appellant’s claim for attorney fees. Moreover, we find that when a party seeking attorney fees has engaged in bad faith or stubborn litigiousness, or has caused unnecessary trouble and expense, such factor may be considered by the trial court and will, either standing alone or in conjunction with other operable facts, constitute some evidence to support a denial of the request for attorney fees. Appellant’s second enumeration of error, that the trial court erred in failing to award appellant attorney fees, is without merit.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A2066.
    SOUTHERN GUARANTY INSURANCE COMPANY v. PREMIER INSURANCE COMPANY.
    (465 SE2d 521)
   Smith, Judge.

The parties to this appeal are uninsured motorist (UM) carriers disputing priority of coverage. Granting summary judgment to Premier Insurance Company (Premier), the trial court found that Southern Guaranty Insurance Company (Southern Guaranty) provided primary UM coverage to Saundra and Gerald Buckner for an automobile accident occurring between Ms. Buckner and Marc Golgan. Southern Guaranty appeals. For the reasons discussed below, we affirm.

The parties stipulated to the following facts: Ms. Buckner and Marc Golgan were involved in an automobile accident in March 1990. Golgan carried insurance with limits of $15,000. Gerald Buckner, Ms. Buckner’s husband, was a named insured under a policy of motor vehicle insurance issued by Premier. The automobile driven by Ms. Buckner was not listed as a covered vehicle under this policy. Drivers insured under the policy were Gerald, Saundra, and Kimberly Buckner. Southern Guaranty had issued a policy of motor vehicle liability coverage to Dance Expressions, a dance school owned and operated by Ms. Buckner as a sole proprietor. Covered vehicles under the policy included the Datsun Ms. Buckner was driving when the collision occurred. Gerald Buckner owned the Datsun and paid the insurance premiums on it as well as on the other vehicles listed on the policies issued by both Southern Guaranty and Premier. The Datsun was Ms. Buckner’s personal vehicle which she “drove all the time.”

Parties may stack multiple uninsured and underinsured motorist insurance policies “where the tortfeasor is minimally insured.” Travelers Indem. Co. v. Maryland Cas. Co., 190 Ga. App. 455 (379 SE2d 183) (1989). Here, as in Travelers, the issue “is how to apportion between the UM carriers any damages beyond the coverage provided by the liability carrier.” Id. In Travelers, this court identified two methods of determining priority of coverage: (1) the “receipt of premium” test; and (2) the “more closely identified with” test. Id. at 455-456. The parties do not dispute that the receipt of premium test is inapplicable here because Gerald Buckner paid premiums on both policies. Relying on Travelers, Southern Guaranty contends that Ms. Buckner was more closely identified with Gerald Buckner, the named insured under the policy issued by Premier, than with Dance Expressions, the named insured under its policy. Although the facts in Travelers are similar in some respects to the facts of this case, we disagree with this contention.

The insured in Travelers, Welch, was employed by a corporation and was driving her employer’s automobile while making a delivery on behalf of the corporation when she was involved in an accident. Id. at 455. The corporation (as opposed to a sole proprietorship) was the named insured under a policy issued by Travelers. Id. A policy issued by Maryland Casualty Company (Maryland) to Welch’s mother provided coverage to Welch as a household member. Id. Welch did not pay premiums for either policy, so, as here, the receipt of premium test did not determine priority of UM coverage. Id. This Court held that Welch was more closely identified with the policy issued by Maryland to her mother than that issued by Travelers. Id. at 457. We found “the distinction between a named insured by virtue of family membership and one who is insured merely because he or she is occupying the covered vehicle at the time of injury to be a useful one and determinative here.” Id. at 456-457. This distinction “addresses itself to the relationship of the injured plaintiff to the policy rather than the circumstances of the injury to the policy. This status rather than incident context controls.” Id. at 457.

Under Travelers, then, we must examine Ms. Buckner’s status, or her relationship to the policies of insurance, to determine the policy with which she is more closely identified and hence which policy provides primary coverage. In Travelers, we rejected the trial court’s finding that the insured, Welch, was “in effect the corporation.” Id. at 457. There is a material distinction, however, between the facts of this case and those in Travelers'. The business to which Southern Guaranty issued the UM coverage, Dance Expressions, is a sole proprietorship rather than a corporation. Purcell v. Allstate Ins. Co., 168 Ga. App. 863 (310 SE2d 530) (1983) is instructive and persuasive regarding the identity of a “named insured” for a sole proprietor doing business under a trade name. “A trade name is merely a name assumed or used by a person recognized as a legal entity. A judgment against one in an assumed or trade name is a judgment against him as an individual. An undertaking by an individual in a fictitious or trade name is the obligation of the individual.” (Citations and punctuation omitted.) Id. at 866. Clearly, the obligations one incurs while using a trade name are individual obligations. See Samples v. Ga. Mut. Ins. Co., 110 Ga. App. 297, 299 (138 SE2d 463) (1964). A corporation, however, unlike a sole proprietorship, is a distinct entity, one “capable of being the named insured in an insurance policy.” Pa. Lumbermens Mut. Ins. Co. v. Haney, 189 Ga. App. 216, 217 (1) (375 SE2d 293) (1988). See also Bernard v. Nationwide Mut. Fire Ins. Co., 206 Ga. App. 519, 520 (1) (426 SE2d 29) (1992) (distinction between corporation and sole proprietorship recognized).

Even though Gerald Buckner owned the Datsun and paid the premiums on both policies and Ms. Buckner was a family member, we are not persuaded by Southern Guaranty’s argument that she “shares a closer relationship with her husband than with her employer” and is therefore more closely related to the policy issued to Gerald Buckner. It is undisputed that Dance Expressions was a sole proprietorship and that Ms. Buckner owned and operated the business. Saundra Buckner’s “employer” was Saundra Buckner. Any obligations incurred on behalf of Dance Expressions were individual obligations. Conversely, any benefits to Dance Expressions inured to the benefit of Saundra Buckner. Dance Expressions simply was not a distinct entity capable of being the true named insured on the contract. Compare Haney, supra, 189 Ga. App. at 217. Ms. Buckner was not merely “occupying the covered vehicle,” Travelers, supra, 190 Ga. App. at 457, but was in effect the “named insured” under the policy issued by Southern Guaranty. It defies logic to hold that she shared a closer relationship with her husband than with herself. The trial court correctly granted summary judgment to Premier.

Decided December 8, 1995.

William P. Tinkler, Jr., Deana L. Simon, for appellant.

Bovis, Kyle & Burch, Charles M. McDaniel, Jr., Crim & Bassler, Thomas S. Bechtel, Kim G. Meyer, for appellee.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A95A1131, A95A1132.
    GHRIST v. FRICKS et al.; and vice versa.
    (465 SE2d 501)
   Johnson, Judge.

Gina Fricks, formerly Gina Ghrist (“Ms. Fricks”), and William Ghrist (“Ghrist”) were married June 20, 1987. When Ms. Fricks gave birth to Matthew Ghrist on December 21, 1988, Ghrist assumed he was the child’s father and had no reason to believe or even suspect that such was not the case. He was listed as the father on the birth certificate and he lived with Ms. Fricks and the child until the couple separated in August 1990. Unbeknownst to Ghrist, Ms. Fricks had been having sexual intercourse with Thomas Fricks (“Mr. Fricks”) on at least a weekly basis beginning a few months into their marriage and continuing through and after the period when the child was conceived. Ms. Fricks suspected Mr. Fricks was the father shortly after discovering she was pregnant, and within a few days she notified Mr. Fricks of her pregnancy and of the possibility that he rather than her husband was the father of the child. According to the testimony of Mr. Fricks at trial, the Fricks, having discussed the possibility that Fricks fathered the child, could have had paternity testing done at that time but did not see any reason to do so. Mr. Fricks and Ms. Fricks continued to actively conceal their relationship from Ghrist, who did not find out that the two were involved until after Ms. Fricks moved from the marital residence. When Ms. Fricks filed for divorce in September 1990, she alleged in her complaint that Ghrist was the child’s father. Ms. Fricks and Ghrist executed a settlement agreement on October 23, 1990, wherein they refer to their minor child and set out Ghrist’s visitation rights and support responsibilities. Prior to their execution of this divorce settlement agreement, Ms. Fricks gave Ghrist positive assurance that the child was his child. On November 27, 1990, the court entered a final judgment and decree of divorce ending the marriage of Ghrist and Ms. Fricks. In this judgment, the court approved the settlement agreement and expressly incorporated it into its order. Some three months later, in February 1991, Mr. and Ms. Fricks were married. Bight months after their marriage, in October 1991, the Fricks and Matthew had blood tests performed for the purpose of confirming that Mr. Fricks was the child’s biological father. The results of these tests showed a 99.14 percent probability that Mr. Fricks was the father. After another five months had elapsed, in March 1992, the Fricks filed what they labelled “a petition to terminate parental rights” in the Superior Court of Fulton County. In the petition, which in substance was actually a petition to determine paternity, they alleged that Mr. Fricks is Matthew’s natural father and that because the child lives with his natural parents, Ghrist should be relieved of his child support obligation and his parental rights. The petition was subsequently amended to include a prayer that the child be legitimized as Mr. Fricks’ son. Upon the Fricks’ motion and over Ghrist’s objection, the trial court ordered Ghrist to submit to a paternity test; this blood test excluded any possibility that Ghrist was the biological father of the child.

In this paternity action, the trial court granted summary judgment against Ms. Fricks, holding that she was barred from disputing paternity based on the doctrine of res judicata. Ms. Fricks did not appeal that ruling. A jury heard evidence on the issue of paternity and decided that Mr. Fricks was the father. The jury also awarded Ghrist damages on his counterclaim against Ms. Fricks for fraud and punitive damages, a claim which the record makes clear Ghrist pursued only as an alternative should he lose in the paternity action. The trial judge then entered a judgment upon the jury’s verdict declaring Mr. Fricks to be Matthew’s legal and biological father, relieving Ghrist of his obligation to pay support and divesting him of any parental rights. The court also entered judgment against Ms. Fricks for fraud and ordered her to pay punitive damages. In Case No. A95A1131, Ghrist appeals. The Fricks appeal in Case No. A95A1132.

Case No. A95A1132

1. Ghrist contends that the trial court erred in ordering him to take a blood test to exclude him as the father because the “de-legitimation” of a child born during wedlock and previously adjudicated to be the husband’s child is contrary to law, public policy and the best interest of the child. For the reasons set out below, we agree and reverse.

“Collateral estoppel precludes readjudication of an issue previously adjudicated between the parties or their privies in another action.” (Citations omitted.) Dept. of Human Resources v. Fleeman, 263 Ga. 756, 757 (2) (439 SE2d 474) (1994). Ms. Fricks is clearly es-topped from challenging paternity. In her complaint for divorce, she alleged that the child was born as issue of the marriage. The settlement agreement which she signed, and which was approved by the court and incorporated into the divorce decree, referred to the child as being of the marriage in setting forth the rights and responsibilities of the parties. “Parties to stipulations and agreements entered into in the course of judicial proceedings are estopped from taking positions inconsistent therewith, and no litigant will be heard to complain unless it be made plainly to appear that the consent of the complaining party was obtained by fraud or mistake.” (Citations and punctuation omitted.) Macuch v. Pettey, 170 Ga. App. 467, 468 (1) (317 SE2d 262) (1984). Ms. Fricks has not alleged that her consent to the agreement was obtained by fraud or mistake. Indeed, we note that the record in this case shows that Mr. and Ms. Fricks had every reason to know that Mr. Fricks was the child’s father from the time she discovered she was pregnant, well before the separation and divorce, which became final some two-and-a-half years later. Despite their admissions that they actively concealed their adulterous relationship and their suspicions that Mr. Fricks was the father, they simply chose not to take any steps to conclusively resolve the issue until nearly three years after the child was born and nearly a year after the divorce was final. Mr. Fricks acknowledged at trial that there were opportunities during the marriage for the paternity testing to be pursued had he and Ms. Fricks desired to do so.

The issue of the paternity of the child was effectively adjudicated in the divorce action, and it could not later be raised by anyone bound by the prior action. Ms. Fricks was therefore estopped from disputing the child’s paternity, and the trial court so ruled correctly.

Mr. Frick’s situation is somewhat different inasmuch as he was not a party to the divorce proceeding. However, collateral estoppel applies not only to the parties, but also to their privies. Pinkard v. Morris, 215 Ga. App. 297, 298 (1) (450 SE2d 330) (1994). “Generally speaking, privies are those legally represented at trial. Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right; and where this identity is found to exist, all are alike concluded and bound by the judgment.” (Citations and punctuation omitted; emphasis supplied.) Id. “[I]t is an elementary principle of law that a privy, either in law, fact, or estate, has no greater right than the one with whom he is in privity.” Phillips v. Phillips, 211 Ga. 305, 309 (1) (85 SE2d 427) (1955). Mr. Fricks was involved in a meretricious adulterous relationship with Ms. Fricks throughout her marriage to and separation from Ghrist. He conspired with her to engage in adulterous acts and conceal from Ghrist both the adultery and the possibility that Mr. Fricks fathered the child. Mr. Fricks then sat silently by as Ms. Fricks represented to the superior court that the child was Ghrist’s and that Ghrist was obligated to support him, and acquiesced as Ms. Fricks accepted support payments for more than a year thereafter, during which time he lived with Ms. Fricks. Mr. Fricks certainly had an interest in Ms. Fricks becoming divorced, as evidenced by his marriage to her within three months after the divorce became final. From these facts, we conclude that Mr. Fricks was so connected in law and in fact with Ms. Fricks as the plaintiff in the divorce action, that he is likewise bound by the judgment and has no greater right to contest paternity than she does. Id.; see generally Dept. of Human Resources v. Hurst, 208 Ga. App. 792 (432 SE2d 236) (1993).

The public policy of this state favoring the institution of marriage and the legitimacy of children born during a marriage is the strongest public policy recognized by law. This Court’s holding in Hardy v. Arcemont, 213 Ga. App. 243, 245 (1) (444 SE2d 327) (1994), that “(a)ll children born in wedlock or within the usual period of gestation thereafter are legitimate, but the legitimacy of such a child may be disputed; where possibility of access exists, the strong presumption is in favor of legitimacy and the proof must be clear to establish the contrary,” citing OCGA § 19-7-20 (a) and (b), is but one of the latest of a long series of decisions rendered by the appellate courts of Georgia recognizing this public policy and evincing the commitment of Georgia’s courts to enforcing it. “This presumption of legitimacy is one of the strongest and most persuasive known to our law.” Stephens v. State, 80 Ga. App. 823, 825 (57 SE2d 493) (1950). Moreover, “[t]his statutory presumption is a firmly-established principle of law, evincing a strong state policy favoring marriage and legitimacy.” (Emphasis supplied.) Miller v. Miller, 258 Ga. 168, 169 (366 SE2d 682) (1988).

Given the facts of this case, the public policy favoring marriage and legitimacy particularly militates against the Fricks’ right to, in effect, render the legitimate child illegitimate. For nearly three years after the birth of the child, Ghrist, as Ms. Fricks’ husband, was bound by law to support the child and in fact did so. Ghrist was present in the delivery room at the child’s birth, and lived with him as his father for nearly two years while the couple was still married. When the couple separated, Ghrist kept the child two weeks out of every month. From January 1991 through the time of the trial, Ghrist had custody every other weekend and five to six weeks every summer. Ms. Fricks admitted that Ghrist exercised all scheduled visitation rights and that he always made his child support payments. Ghrist took the child camping and sailing, taught him to play tennis, and helped teach him to read. According to Ghrist, he and the child relate to each other as father and son and enjoy a happy, loving relationship. This testimony was corroborated by Ms. Fricks’ own father, who testified that Ghrist and the child get along “like father and son, pals, friends,” and added that “at the same time, [Ghrist] does maintain discipline . . . the way a father should.” When Ms. Fricks offered to let him stop making support payments if he would end his relationship with the child, Ghrist refused. Ghrist testified that he still believes he is the child’s father and that he could not imagine life without him.

This Court cannot in good conscience permit the Fricks to now deny that Ghrist is the child’s father and to sever all ties the child has with his legal father. We do not believe that the law allowing the presumption of legitimacy to be rebutted was ever intended to sanction the result sought by the Fricks. In fact, it is clear from our examination of the legitimation and paternity statutes that the primary purpose of these statutes is to provide for the establishment rather than the disestablishment of legitimacy and paternity. See OCGA §§ 19-7-20 through 19-7-49. For instance, while the legislature enacted a statute allowing a father to petition to legitimate a child, it enacted no statute specifically providing for the de-legitimation of a child. See OCGA § 19-7-22. And while OCGA § 19-7-43 provides a means for establishing paternity, no such statute provides for the disestablishment of paternity. That these statutes should be used to establish legitimacy and paternity is appropriate; it is certainly not in the legitimate child’s best interest to be rendered illegitimate. See Judge Beasley’s dissent in Noggle v. Arnold, 177 Ga. App. 119, 120-123 (338 SE2d 763) (1985). Moreover, public policy will not permit a mother and an alleged father to enlist the aid of the courts to disturb the emotional ties existing between a child and his legal father after sitting on their rights for the first three years of the child’s life.

Obviously, we realize that presumed legitimacy may be challenged. See Hardy, supra. However, we have found no cases in which the appellate courts of this state have allowed an alleged biological father to challenge the presumed legitimacy of a child under facts similar to those presented here. For example, in Hardy, supra, this Court recognized the right of an alleged biological father to file a legitimation action although the child was conceived while the mother was married to another man and the husband’s name was on the birth certificate. In that case, however, unlike in this one, the husband and wife had agreed in the prior divorce action that no children were born of the marriage. In In re White, 254 Ga. 678 (1) (333 SE2d 588) (1985), the Supreme Court held that a mother could testify as to the illegitimacy of her presumptively legitimate child in a legitimation proceeding brought by the biological father where the legal father’s whereabouts were unknown. There the court noted that the legal father had never known or supported the child and had not been heard from in several years. The Supreme Court also held that a man claiming to be the biological father of a presumptively legitimate child was entitled to appear and present proof of paternity in a termination of parental rights proceeding brought by the Department of Human Resources against both him and the legal father based on abandonment by the men and the death of the mother. Wilkins v. Dept. of Human Resources, 255 Ga. 230, 233-235 (2) (a), (b) (337 SE2d 20) (1985). The case was a termination case brought in juvenile court and the Supreme Court’s decision was based upon OCGA § 15-11-52 (b), which section was repealed in 1986. As discussed in Division 2 below, the instant case was not, despite its denomination as such, a termination of parental rights case. Moreover, the circumstances presented and interests sought to be protected are clearly different in this case.

Finally, we acknowledge the holding in Hill v. Adams, 182 Ga. App. 848 (357 SE2d 300) (1987), where an alleged biological father of a child who had already been adjudicated to be the child of the mother’s husband in a divorce action was authorized to petition to legitimate the child after establishing paternity. We do not know from the published opinion what involvement the alleged biological father had in the mother’s life during or soon after her marriage; thus, it is difficult for us to compare the cases factually. Moreover, because one panel judge concurred in the judgment only, the case serves as physical precedent only, which we are not bound to follow. See Court of Appeals Rule 33 (a).

Paternity and legitimation are not the same thing. Hill, supra. Biology is not destiny, and a man has no absolute right to the grant of his petition to legitimate a child simply because he is the biological father. See Mabry v. Tadlock, 157 Ga. App. 257, 259 (277 SE2d 688) (1981). Instead, we have held time and time again that the court must consider the best interest and welfare of the child before granting a legitimation petition, and that it is not bound by the desires and contentions of the biological parents. See Alexander v. Guthrie, 216 Ga. App. 460, 461-462 (1) (454 SE2d 805) (1995); Boyd v. Harvey, 173 Ga. App. 581, 584 (2) (327 SE2d 551) (1985). Here, however, once the jury determined that Mr. Fricks was the biological father, the trial court automatically granted the legitimation, apparently disregarding its duty to inquire further into the best interests of the child and the effect such a decision would have upon the child. This the trial court is not authorized by law to do.

We point out that the superior court judge in this case was confronted with a terribly difficult situation in which all parties had compelling, diametrically opposed interests. The facts of this case are unusual and, unfortunately, the trial court had scant relevant precedent upon which to rely in making its decision. However, considering the principles of collateral estoppel, the statutory presumption of legitimacy, the strong public policy favoring the institution of marriage and the legitimacy of children born during marriage, and the particular facts of this case, we hold that the trial court erred in not dismissing Mr. Fricks’ petition. To hold otherwise would be to sanction the fraud Ms. Fricks and Mr. Fricks perpetrated not only upon Ghrist, but upon the court hearing the divorce. If Mr. Fricks and Ms. Fricks suffer heartache and inconvenience, among the reasons they cited at trial for pursuing this action, it results from their own fraudulent misconduct. Accordingly, the trial court’s judgment granting the petition to determine paternity and to legitimate must be reversed, and the case is hereby remanded with direction that the action be dismissed and the parental rights and responsibilities of Ghrist be immediately reinstated.

2. While we agree with Ghrist’s claim that the superior court lacked jurisdiction to terminate his parental rights, that issue is not only rendered moot by our holding in Division 1, but for reasons set out below is otherwise without merit. We note that except in connection with adoption proceedings, exclusive jurisdiction to terminate parental rights lies with the juvenile court. OCGA § 15-11-5 (a) (2) (C). Alexander, supra at 462 (2). However, we do not agree with Ghrist’s characterization of the case as a termination of parental rights action. “[TJhere is no magic in the nomenclature of a pleading; it is construed to serve the best interests of justice and judged by its substance rather than by its name.” (Citations and punctuation omitted.) Dyer v. Surratt, 216 Ga. App. 876 (456 SE2d 510) (1995). Despite the title given the petition, it appears to be a complaint to determine paternity and to legitimate the child. From a practical standpoint, the superior court should have jurisdiction inasmuch as the issue of Ghrist’s rights regarding the child is ancillary to the paternity and legitimation issues, over which the superior court does have jurisdiction. See OCGA §§ 19-7-22; 19-7-40.

3. Based on our holding in Division 1, we need not address Ghrist’s remaining enumerations of error.

Case No. A95A1132

4. In her cross-appeal, Ms. Fricks challenges the judgment entered against her on Ghrist’s counterclaim, claiming: (a) the trial court erred in refusing to instruct the jury on the defense of estoppel when Ghrist continued to pay child support after being told Mr. Fricks fathered the child and after being offered an agreement which would end his support obligation; and (b) the verdict against her for fraud was against the weight of the evidence and contrary to the evidence and justice. Ms. Fricks’ challenge regarding the estoppel instruction is without merit because the evidence adduced at trial did not authorize such a charge. See Gainesville Glass Co. v. Don Hammond, Inc., 157 Ga. App. 640, 644-645 (2) (278 SE2d 182) (1981). And contrary to Ms. Fricks’ contention, the verdict against her was supported by ample evidence. See generally Hill v. Rodriguez, 208 Ga. App. 108, 110 (2) (429 SE2d 682) (1993).

Decided December 1, 1995

Reconsideration denied December 11, 1995

Martin L. Fierman, for appellant.

S. Robert Hahn, Jr., for appellees.

In any event, it is clear from the pleadings below and on appeal that Ghrist’s primary objective has been to remain Matthew’s legal father. He only sought damages on the counterclaim in the alternative, i.e., in the event the Fricks prevailed on their cause of action. Based on our holding in the main appeal that Ghrist will remain the child’s legal father, the judgment entered on Ghrist’s counterclaim must be vacated. On remand, the trial court is directed to vacate that judgment and to dismiss Ghrist’s counterclaim. Accordingly, the cross-appeal is rendered moot.

Judgment in Case No. A95A1131 reversed. Judgment in Case No. A95A1132 vacated.

Birdsong, P. J., and Smith, J., concur.


author: Beasley, Chief Judge.

text:
    A95A1542.
    PAGE v. ATLANTA CENTER LTD.
    (465 SE2d 456)
   Beasley, Chief Judge.

Page appeals the trial court’s order granting appellee’s motion for summary judgment. He sued appellee Atlanta Center Ltd., d/b/a The Atlanta Hilton and Towers (“Hilton”), for personal injuries he allegedly sustained as a result of inhaling smoke from a small fire at the hotel. At the time, Page was a 74-year-old resident of Waco, Texas, and was in Atlanta attending a veterans’ reunion on the second floor of the hotel when the fire broke out in a linen closet on the seventh floor. The flame damage was limited to the closet where the fire started, and smoke damage was limited to the closet and a small area adjacent to it on the seventh floor. The fire was extinguished within approximately 20 minutes of its discovery.

When the fire started, the power to one of the main switchboards shut down, preventing evacuation horns from sounding and ventilation fans from automatically running. The fans were manually turned on to blow the smoke upwards and out hatches located on the 28th floor. Guests were asked to remain in the second floor lobby atrium until the hotel was declared safe for occupancy by the fire department. Both the affidavit and the deposition of the Assistant Director of Security and Safety for the hotel state that this area was observably free of smoke and fumes. Page deposed that as he walked across the second floor to reach the men’s rest room, he passed through dense clouds of brown smoke with a chemical smell. The affidavits of a couple also attending the veterans’ conference state that they saw hazy, gray smoke on the second floor that smelled like smoke from an electrical fire.

Two days after the fire, Page went to a nearby hospital emergency room complaining of difficulty breathing. The hospital staff gave him antibiotics and recommended he remain in the hospital. Page refused and drove with his son back to Waco to a local hospital, where he was diagnosed with pneumonia and — for the first time — asthmatic bronchitis.

Page began smoking cigarettes in approximately 1932 and continued to smoke through 1989. In 1985, Page was diagnosed with emphysema by a local physician in Waco, whose x-ray studies of Page from before and after the fire indicate he had developed “interstitial fibrosis” (scarring of the lung) in the later x-rays. In his deposition, the doctor stated that either pneumonia or inhaling chemicals could cause the scarring, but he did not know which had been the cause in this case. Page’s 02 saturation level decreased from 92-93 percent in 1988 through 1990 to 86-87 percent after the fire. Page was placed on oxygen in September 1992 and has used it on a continuous basis since then.

Page alleges that genuine issues of material fact remain as to whether the Hilton negligently breached a duty to Page, proximately causing the exacerbation and acceleration of his lung condition. He contends that sufficient circumstantial evidence was submitted to allow a jury to determine whether a Hilton employee started the fire through “careless smoking,” making Hilton liable for negligence through a theory of respondeat superior. See Curtis, Inc. v. Kelley, 167 Ga. App. 118, 119 (305 SE2d 828) (1983). Page offers the following evidence in support of the “careless smoking” allegation. The fire investigator gave depositional testimony that all other causes, besides careless smoking, had been eliminated. Only four Hilton employees had keys to the linen closet, and one was a smoker. Ashtrays were found in the linen closet after the fire. Page’s own expert fire investigator testified that he could not determine whether it was a Hilton employee who caused the fire.

Page cites Saxon v. Sylvania Mobile Homes, 165 Ga. App. 47 (299 SE2d 52) (1983); Lincoln Prop. Co. No. 4 of Atlanta v. Stasco Plumbing, 130 Ga. App. 767 (204 SE2d 449) (1974); and Tri-County Gas Co. of Pearson v. Brooker, 122 Ga. App. 522 (177 SE2d 806) (1970), as standing for the proposition that circumstantial evidence that a Hilton employee’s careless smoking caused the fire is sufficient to send an issue to a jury. These cases are distinguishable. In each of them, a reasonable inference of the defendant’s negligence could be drawn from the evidence presented. In Saxon, supra at 48, plaintiff offered direct evidence defendant caused an improper electrical connection, which the expert witness termed the most probable cause of the fire at issue. In Lincoln, supra at 767-768 (1), there was direct evidence that a plumber was working indoors with a blowtorch, which the expert witness stated was one of two probable causes of a fire. In Brooker, supra at 524 (6), inferences from the circumstantial evidence were sufficient to authorize a jury to find defendant’s employee started a fire in a chicken coop while lighting gas brooders. In contrast, there is only speculation and conjecture that careless smoking of an employee caused the Hilton fire.

When a party is relying on inferences to prove a point, not only must those inferences tend in some proximate degree to establish the conclusion sought, but must also render less probable all inconsistent conclusions. See Tepper v. Marty’s, Inc., 139 Ga. App. 140, 141 (1) (228 SE2d 32) (1976) citing Ga. R. &c. Co. v. Harris, 1 Ga. App. 714, 717 (1) (57 SE 1076) (1907). See also Kilgore v. Nasworthy, 124 Ga. App. 261, 262 (6) (183 SE2d 481) (1971), where the court approved this charge to the jury: “The evidence must be sufficient to establish a reasonable inference that the fire originated as claimed by the plaintiffs, and that if it raises only a mere conjecture as to whether the fire was or was not so occasioned, no recovery could be had.”

Since there is no evidence that the closet door was locked or that a Hilton employee was in the closet smoking near the time of the fire, or left a cigarette or match burning there, Page’s evidence fails to raise a reasonable inference of negligence.

In order to maintain his action for negligence, Page must establish four elements : 1) a duty, 2) a breach of that duty, 3) a causal link between breach and injury, and 4) damages. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), established a rule for review of summary judgments in negligence cases, stating, “If there is no evidence sufficient to create a general issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards.” The moving party does not have to disprove each element; rather, the burden may be discharged by “pointing out by reference to . . . the record that there is an absence of evidence to support the nonmoving party’s case.” Id. Page cannot establish that a Hilton employee breached a duty owed to him, even taking the facts in the light most favorable to him. Under Lau’s, the absence of this essential element precludes recovery and leaves moot the other issues raised by Page.

Decided October 31, 1995

Reconsideration denied December 11, 1995.

Wood & Meredith, Hugh C. Wood, Dwight A. Meredith, for appellant.

Todd A. Schweber, Neal C. Scott, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.