text:
    A93A2569.
    ASBURY et al. v. GEORGIA WORLD CONGRESS CENTER.
    (442 SE2d 822)
   Smith, Judge.

This personal injury action arises out of a collision which occurred during preparations for a trade show at the Georgia World Congress Center. A pushcart operated by plaintiff-appellant Barbara Asbury collided with an electric cart driven by an employee of defendant-appellee Georgia World Congress Center. Barbara Asbury and her husband brought this action against appellee and its employee, seeking damages for personal injuries and loss of consortium. On the trial of the case, the jury returned a verdict in favor of appellee. Appellants’ motion for j.n.o.v. or, in the alternative, for new trial was denied, and they appeal.

1. Courts must consider a challenge to the striking of jurors under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) in a civil action. Strozier v. Clark, 206 Ga. App. 85, 86 (1) (424 SE2d 368) (1992). Since the trial court required appellee to explain its strikes, the issue of a prima facie showing of discrimination is moot. Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993). However, the burden remains on the party making a Batson motion to demonstrate clear error in the denial of the motion. Kelly v. State, 209 Ga. App. 789, 792 (1) (434 SE2d 743) (1993).

Appellants’ brief identifies four prospective jurors as to whom Batson motions were made. One of these individuals was returned to the jury by the trial court. Appellants withdrew their Batson motion as to a fifth panel member. Appellee offered explanations for the striking of the remaining three prospective jurors. The first panel member had been in a collision, suffered from neck and back problems similar to those complained of by appellants, and expressed a lack of interest in serving on the jury. The second panel member stated that she had buried her grandson two days earlier, was still in mourning, and would be unable to listen to or consider the evidence properly. The third panel member had her eyes closed and appeared to be sleeping during much of the voir dire. “[Appellee’s] explanations were clear, specific, related to the case to be tried, and race-neutral. [Cits.]” Kelly v. State, supra. See Lingo v. State, 263 Ga. 663 (437 SE2d 463) (1993).

Appellants asserted that similarly situated panel members were not struck from the jury. However, where the transcript or record does not fully disclose the facts alleged by a party, the burden is on that party to complete the record pursuant to OCGA § 5-6-41. Thomas v. State, 208 Ga. App. 367 (1) (430 SE2d 768) (1993). Colloquies between counsel and court regarding what occurred during voir dire are not competent evidence. Id. at 368.

The record does not show the identity of individual panel members with any certainty. During voir dire, all prospective jurors were identified by the court reporter only as “a juror.” During 87 recorded pages of voir dire, conducted primarily by appellants’ counsel, panel members often were referred to by name only, by juror number only, or by neither. On several occasions, appellants’ counsel asked panel members to raise their hands, with no showing on the record of name, juror number, or how many panel members responded. Appellants have not pointed out nor have we found in the record a jury roll or “juror biographical data” sheet such as that noted in Thomas v. State, supra at 368. Nor does the record, as opposed to colloquy among court and counsel, identify any member of the panel by race. “The record ... is simply insufficient for this court to determine whether the trial court erred.” Id. at 370.

“The trial court’s findings are, of course, entitled to great deference, and will be affirmed unless clearly erroneous. Because the U. S. Supreme Court has cautioned us that the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility!,] a reviewing court ordinarily should give those findings great deference.” (Citations and punctuation omitted.) Ledford v. State, 207 Ga. App. 705, 706-707 (1) (429 SE2d 124) (1993). The trial court heard appellants’ Batson motion at considerable length and accepted the explanations offered by appellee’s counsel. Appellants have failed to show clear error, and we will not disturb the trial court’s ruling.

2. In four enumerations of error, appellants challenge the sufficiency of the evidence to support the verdict. By returning a general verdict in favor of appellee, the jury necessarily concluded that appellee and its employee were not negligent, that the negligence of Ms. Asbury equalled or exceeded that of appellee and its employee, or that the collision did not cause the injuries alleged. There was evidence presented at trial to support a determination that Ms. Asbury’s medical treatment and psychological difficulties resulted from a preexisting medical condition or a dispute with her employer, rather than from the collision. Assuming without deciding that the evidence demanded a finding of causation, however, a review of the trial transcript shows evidence from which the jury was authorized to find for appellee on issues of negligence.

For example, a witness for appellants examined the electric cart and the scene and reconstructed the accident. There was evidence, including Ms. Asbury’s testimony, that the electric cart had restarted from a full stop 15 to 20 feet away. Appellee’s employees testified and appellants’ witnesses agreed that the accident occurred as appellee’s cart was “travelling straight” along the main aisle past Ms. Asbury’s pushcart in the intersecting aisle. The pushcart then struck the rear of the electric cart. Appellants’ witness testified that the collision was caused by Ms. Asbury rotating her cart so that it struck the rear of appellee’s electric cart, and that the collision would not have occurred had Ms. Asbury stopped or had she not turned her cart at an angle. On cross-examination, he acknowledged that Ms. Asbury’s pushcart was difficult to steer and that she had a duty to be attentive and take into account her cart’s limited steering ability. Ms. Asbury acknowledged that she believed there was room for the electric cart to pass and that she pushed her cart so the front corner moved over towards the electric cart.

“The jury verdict has the approval of the trial judge, and after verdict the evidence is to be construed in the light most favorable to the prevailing party and every presumption and inference is in favor of sustaining the verdict. And, if there is any evidence to sustain the verdict of the jury, an appellate court will not disturb it.” (Citations and punctuation omitted.) Nolen v. Murray Indus., 165 Ga. App. 785, 786 (1) (302 SE2d 689) (1983). There was evidence authorizing the jury verdict in this case, and we will not disturb it.

. 3. Appellants’ enumeration of error contending that the trial court erred in charging the jury on the issues of comparative and contributory negligence, avoidance, and foreseeability is unsupported by argument, reference to the record, or citation of legal authority; it therefore is deemed abandoned. Court of Appeals Rule 15 (c) (2).

4. Appellants’ remaining enumerations of error concern the trial court’s refusal to give their proposed charge numbered 28. The trial court, over objection from appellee, initially indicated it would give the charge only in part. After closing arguments, however, the trial court advised counsel of its intent to substitute a pattern charge “very, very similar to the essence of your request to charge 28. So I don’t know if you want to continue with your argument.” Counsel for appellants objected to the exclusion of the charge and moved for a mistrial, which was denied.

The charge given by the trial court substantially covered the principles of foreseeability, proximate cause, chain reaction, and consequential injuries. “ ‘A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.’ ” (Emphasis in original.) Roswell Properties v. Salle, 208 Ga. App. 202, 208 (10) (430 SE2d 404) (1993). A portion of appellants’ request to charge dealt with damages arising from medical malpractice, and it was originally rejected by the trial court as irrelevant to the issues in the case. Furthermore, the language of the charge itself was argumentative, using such language as “defendant’s negligence” and “the injury he caused,” and thereby assuming both negligence and causation.

With respect to appellants’ contention that the trial court should have granted a mistrial, “the failure to inform counsel of the court’s proposed action on the refusal to charge is not reversible error per se, but... in order to warrant a reversal or new trial for failure to comply with this rule, prejudice must be shown. And, the burden is on the complaining party to show harm. The record does not reflect that the defendant was misled or that he was hampered in his argument to the jury.” (Citations and punctuation omitted.) Jackson v. Meadows, 157 Ga. App. 569, 571-572 (1) (278 SE2d 8) (1981). Appellants do not make any reference to the record showing the portion of their closing argument which they contend was addressed in the requested charge but not included in the trial court’s substantially similar instructions to the jury. “It is not the function of this court to cull the record on behalf of a party in search of instances of error.” (Citation and punctuation omitted.) Poole v. Estfan, 206 Ga. App. 510, 511 (1) (426 SE2d 61) (1992). Moreover, the question of damages to which the requested charge pertains was not reached, because the jury found for appellee on the issue of liability. Appellants have shown no harm by the refusal to give the requested charge, and these enumerations of error are without merit.

Decided March 15, 1994

Reconsideration denied March 29, 1994

Goldstein & Redic, James A. Goldstein, Patrick R. Matarrese, Marci R. Rosenberg, for appellants.

Michael J. Bowers, Attorney General, John B. Ballard, Jr., Roland F. Matson, Senior Assistant Attorneys General, Swift, Currie, McGhee & Hiers, L. Bruce Hedrick, Jr., Timothy J. Buckley III, Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, Perry A. Phillips, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

       The individual defendant was dismissed at trial.

       For example, it appears that juror number 20 indicated on voir dire that she did not feel that she could listen or participate adequately because she had buried her grandson two days before. However, she is never identified by juror number on voir dire, and our surmise as to her identity is based only on the unlikelihood of two prospective jurors suffering a similar bereavement in so short a time.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A94A0066.
    HARVEY v. THE STATE.
    (442 SE2d 478)
   Andrews, Judge.

Patricia Harvey was charged with possession of marijuana with intent to distribute and convicted of the lesser offense of simple possession. She was also charged and convicted of possession of alcohol under the age of 21, and permitting unlawful operation of vehicle by allowing an intoxicated driver to drive. She appeals only her conviction for simple possession.

Evidence at trial was that on November 8, 1992, Harvey was riding in her car with two men, Marvin Lee Johnson, who was driving, and Ronnie Lee Johnson. Georgia State Patrol Trooper Mickey Little pulled the vehicle over for speeding. In doing so, he clocked the vehicle traveling at 111 mph. When the automobile was stopped, Trooper Little observed that all three subjects had been drinking. He decided to charge Harvey with underage consumption and with permitting Marvin Johnson to drive while intoxicated. Since he was also going to charge the two co-defendants with offenses, he called for a transport from the Catoosa County Sheriffs Department to transport the three subjects to jail. Little performed a “pat down” search on all three suspects; he testified that he did not perform a thorough search on them. He stated that his “pat down” search of Harvey was only of her legs.

Harvey was arrested and placed in the patrol car along with the two co-defendants and taken to the Catoosa County detention facility. Only Ronnie Lee Johnson was handcuffed. After taking the three inside, Officer Sisk returned to his vehicle and discovered a bag of marijuana containing four separate smaller bags under the back seat of the car in which he transported Harvey and the other two co-defendants. The net weight of the drug was 9.8 grams.

Officer Sisk testified that on November 7, 1992, he complied with departmental policy by thoroughly checking the inside of his police vehicle at the beginning of his shift. Again in accordance with departmental policy, he searched the back of his patrol car after transporting Harvey and the two co-defendants to the station. He found the bag wedged in between the cushions in the front seat of the car a little bit towards the passenger side of the center of the vehicle. He testified that no one else had been in his patrol car between the time he came on duty and the time he transported the three to the station.

Officer Little testified that from his viewing of Harvey’s vehicle he observed what appeared to be two ends of marijuana cigarettes in the front ashtray. At the time the vehicle was stopped, Harvey was sitting in the front passenger seat. Little testified that Harvey and Marvin Johnson’s behavior would be consistent with having smoked marijuana.

When Harvey was questioned about the marijuana at the station, she initially stated that she did not know whose marijuana it was. She later stated that she knew who it belonged to, but was not going to tell. She laughed after making this statement. Marvin Johnson, who was standing in the holding cell stated “you can’t charge us, you can’t charge us, it’s less than an ounce, you can’t charge us.” He later stated that he did not know anything about the marijuana.

No one of the three would admit to possession of the drug and all three were subsequently charged and convicted of simple possession of the marijuana.

1. Harvey first argues that the trial court erred in denying her motion for mistrial since her character was improperly introduced into evidence. Contrary to Harvey’s assertion, her trial counsel did not make a motion for mistrial and the alleged error is waived. Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986); Garner v. State, 180 Ga. App. 146, 147 (1) (348 SE2d 690) (1986). Moreover, we find no substantive merit to Harvey’s assertion here.

2. In her two other enumerations of error, Harvey contends that the trial court erred in denying her motions for new trial and for directed verdict. Citing Byers v. State, 204 Ga. App. 552, 556 (4) (420 SE2d 23) (1992) and Murrell v. State, 200 Ga. App. 231 (1) (407 SE2d 460) (1991), she argues that the circumstantial evidence presented against her was insufficient and that mere presence at the scene of the crime does not alone authorize conviction. Harvey claims that the State’s argument that she was at least a party to a crime under OCGA § 16-2-20 also fails since there was no showing of intentional aiding or abetting.

The standard for reviewing the denial of a motion for new trial or of a motion for directed verdict is that of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). In the instant case, the evidence was sufficient for a rational trier of fact to have found the essential elements of the offense beyond a reasonable doubt. We recognize that “[e]ven a finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” (Citations and punctuation omitted.) Byers, supra at 556.

Nonetheless, in the instant case there was more evidence to connect Harvey to the marijuana than that of mere spatial proximity or presence. Here, the marijuana was hidden during the transport in the patrol vehicle to the station by one of the three co-defendants. Harvey admitted that she knew the owner of the marijuana, although she refused to identify such person. There was evidence that marijuana had been used in her vehicle and that she had recently used marijuana. Under these circumstances, we find the evidence against Harvey was sufficient to find her guilty of joint constructive possession, or at least as a party to the crime. See Robinson v. State, 175 Ga. App. 769, 772 (3) (334 SE2d 358) (1985); see generally Banks v. State, 200 Ga. App. 378 (408 SE2d 484) (1991); Little v. State, 205 Ga. App. 578 (423 SE2d 42) (1992); Montgomery v. State, 204 Ga. App. 534 (1) (420 SE2d 67) (1992); Shropshire v. State, 201 Ga. App. 421 (411 SE2d 339) (1991).

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

Decided March 17, 1994

Reconsideration denied March 29, 1994

H. Kimbrell Sawyer III, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Grover W. Hudgins, Assistant District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A94A0243.
    FISHER v. CITY OF ATLANTA.
    (442 SE2d 762)
   Birdsong, Presiding Judge.

We granted this discretionary appeal application to determine whether the superior court erred in dismissing Tommy Fisher’s petition for certiorari from a decision of the Atlanta Civil Service Board, on grounds that Fisher did not “[name] the Atlanta Civil Service Board as a party as required by OCGA §§ 5-4-3 and 5-4-6 (b).” Held:

Dismissal of the petition for certiorari was correct, though not for the reason stated by the superior court.

The City of Atlanta Civil Service Board, created pursuant to Ga. L. 1973, pp. 2188, 2211 (Atlanta City Charter Section 3-501), is a judicatory body authorized to hold hearings and make dispositions. See Carr v. City Council of Augusta, 124 Ga. 116 (52 SE 300). The controlling statutes provide for review by the superior court by writ of certiorari to any inferior judicatory. OCGA §§ 5-4-1; 5-4-3; 5-4-6. The City of Atlanta contends these statutes required Fisher to name the City of Atlanta Civil Service Board as a party to the certiorari appeal. However, nothing in these Code sections requires that the inferior judicatory be named a party. OCGA § 5-4-6 (b) merely requires that “the respondent” be served, as well as “the opposite party.” The statute does not explain who “the respondent” is or why “the respondent” must be served, but there is authority that the judicatory body whose decision is appealed is the “respondent” on whom service is required. See Bass v. City of Milledgeville, 121 Ga. 151 (48 SE 919); Gornto v. City of Brunswick, 119 Ga. App. 673 (168 SE2d 323); Johnson v. Hicks, 31 Ga. App. 43 (119 SE 437).

The trial court therefore erred in dismissing the petition on grounds that the Civil Service Board was not named a party, but the petition was properly dismissed because the Board was not timely served as respondent. It cannot readily be determined why § 5-4-6 (b) requires “the respondent” (the inferior judicatory) to be served, since OCGA § 5-4-3 fully and expressly provides for “service” by the clerk of court of the writ of certiorari on the inferior judicatory: “On the filing of the petition in the office of the clerk of the superior court, with the sanction of the appropriate judge endorsed thereon ... it shall be the duty of the clerk to issue a writ of certiorari, directed to the tribunal or person whose decision or judgment is the subject matter of complaint, requiring the tribunal or person to certify and send up all the proceedings in the case to the superior court.” (Emphasis supplied.) Even though the Civil Service Board received service of the writ from the superior court clerk under OCGA § 5-4-3, we must hold that the petition was properly dismissed for lack of service under § 5-4-6 (b). See Gornto, supra; Johnson, supra.

Appellant Fisher contends service of the petition on the City of Atlanta was service on the City of Atlanta Civil Service Board, but we decline to so hold as a matter of law. The superior court apparently found that the attorney for the City of Atlanta did not accept or waive service on the Civil Service Board as “respondent.” Under the circumstances, these are separate entities with possibly conflicting interests, as one is a party to a dispute and the other is the judicatory body in the dispute. See Hipp v. City of East Point, 105 Ga. App. 775 (125 SE2d 672); compare Barrett v. City of Chamblee, 117 Ga. App. 205 (160 SE2d 278).

Judgment affirmed.

Cooper and Blackburn, JJ., concur.

On Motion for Reconsideration.

On motion for reconsideration, appellant Fisher contends that the dismissal of his petition for writ of certiorari should not be affirmed but should be remanded for further consideration because the question of timely service on “respondent” (City of Atlanta Civil Service Board) was not decided by the superior court, which dismissed his petition solely on grounds that “respondent” Civil Service Board was not named as a party until December 27, 1992, which was untimely. Appellant contends he tried to serve “respondent” on December 7, 1992, and that the associate city attorney stated she would accept service for “respondent” and otherwise acted to prevent proper service on “respondent.” Since appellant had not named the respondent (Civil Service Board) as a party on December 7 when he served the City of Atlanta (employer) and since we hold that service on the City of Atlanta (employer) is not service on the Civil Service Board (“respondent”/tribunal) as a matter of law, it logically follows that the December 7 service on the City of Atlanta (employer) could not have been intended by appellant or accepted by the City of Atlanta (employer) as service on the Civil Service Board (respondent). Because the “respondent” (Civil Service Board) was not served within five days of the filing of the petition for writ of certiorari as required by OCGA § 5-4-6 (b), we must hold that the trial court did not err in dismissing the petition.

However, as we noted in the opinion, it seems pointless to name as a “party” (respondent) the tribunal which made the decision and which, moreover, adequately participates by sending up the record when required to do so by the superior court clerk per OCGA § 5-4-3. The tribunal can do nothing to defend its decision except to send up the record with an affidavit of some sort. See OCGA § 5-4-8. OCGA § 5-4-7 requires the “respondent” to answer, and OCGA § 5-4-8 requires the lower factfinder (“judge”) to “answer,” but this answer may be verified by somebody’s affidavit if the party making the answer has “retired from office.” OCGA § 5-4-10 allows the petitioner or “defendant in certiorari” to traverse or “except to the answer of the respondent.” That whole statutory scheme seems to refer to some archaic proceeding which is a mystery today. See, e.g., City of Atlanta v. Saunders, 159 Ga. App. 566 (284 SE2d 77), which shows how we have struggled with it in recent times. It seems unjust to dismiss this petition for certiorari on grounds that the petitioner did not serve the tribunal whose decision he is trying to appeal, as if it were a party required to defend its decision against him. But the Supreme Court has held that “[f]ailure to deliver a writ of certiorari and a copy of the petition to the officer whose decision is sought to be reviewed is, as a general rule, cause for dismissal” (Bass v. City of Milledgeville, supra), and we are not authorized to overrule the Supreme Court.

Decided February 3, 1994

Reconsideration denied March 29, 1994.

Brewer & Associates, Deedra M. Brewer, Jason A. Golden, for appellant.

Sarah I. Mills, Michael V. Coleman, for appellee.

However, in Bass, the Supreme Court apparently saw an injustice in dismissing a petition for certiorari because the petitioner failed to do a pointless act, and went on to say that failure to serve the petition on the officer whose decision is sought to be reviewed “does not render the proceeding void, so that the suit can not be renewed under the provisions of [OCGA § 9-2-61].” We therefore hold that these proceedings are not void because of the failure to serve the tribunal whose decision is being appealed and which otherwise received notice of the petition for certiorari pursuant to OCGA § 5-4-3. Appellant Fisher is not prohibited from bringing the petition again under OCGA § 9-2-61, according to Bass, supra. Compare City of Atlanta v. Saunders, supra, which dealt with an attempt to perfect service by an “amendment” under OCGA § 5-4-10.

Motion for reconsideration denied.


text:
    A94A0271.
    WHEELER v. THE STATE.
    (442 SE2d 906)
   Andrews, Judge.

Wheeler, convicted of possession of marijuana, appeals.

1. Wheeler alleges the general grounds, contending that the evidence was insufficient. Viewed in favor of the jury’s verdict, the evidence was that Rantz had been hospitalized with Wheeler’s brother, who suffered from schizophrenia. Rantz, who served as a confidential informant for undercover officer Potts, contacted her in August 1991 and said “Otis” was looking for some marijuana. Wheeler’s middle name was Leotis. Rantz and Potts shared a beeper number which Otis called. Rantz and Potts then called back and arranged for the sale of a pound of marijuana. Since Wheeler had never met Rantz, undercover officer Kelley assumed that identity and took the pound of marijuana to a parking lot at a beauty school to await Potts and Wheeler.

Potts met Wheeler and Warren at a shopping center at 12:30 a.m. Potts was asked about Rantz and told them to follow her to meet Rantz, which they did. They arrived at the second location, which was crowded with cars parking for a nearby nightclub. Kelley approached the car and was asked by Wheeler if he had the “stuff.” Wheeler further informed Kelley that he was “loaded,” which indicated he was armed. A .357 magnum was found under the front seat armrest.

At this point, a white pickup truck came too close to the scene and Wheeler became agitated. He directed Kelley to go to a nearby service station. There, Kelley parked behind the station and waited. Wheeler walked to his car and told him to pull up to the gas pumps where Warren’s car was parked and they would appear to be getting gas. Wheeler was standing outside the car with the hood up and Warren was in the driver’s seat. Wheeler told Kelley to hand the stuff to Warren, which he did. Wheeler told Warren to check and make sure the stuff was okay. Warren handed Kelley a bag containing $1,800. At this point, the takedown signal was given and both men were arrested. Wheeler stated that they did not have him “in possession of anything.”

Wheeler testified and said that he had talked to Rantz, but the discussion was only about Rantz bringing him some videotapes. At one point, Wheeler said the tapes were about the veterans’ hospital. Later, he said they were pornographic and he was going to sell them. He said he knew nothing about the money. There being evidence sufficient to convince any rational trier of fact of the existence of the essential elements of the crime, this enumeration is without merit. Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979); Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980).

2. In his first and fourth enumerations, Wheeler contends that his trial counsel was ineffective and these enumerations will be considered together. Wheeler contends the trial court denied him effective assistance of counsel by improperly limiting cross-examination of police officer Kelley and that failure of counsel to file a Brady motion was ineffective assistance.

This issue was raised below by new appellate counsel in the motion for new trial. A hearing was conducted, although trial counsel was not subpoenaed and did not testify. No other evidence was offered by Wheeler.

With regard to Kelley’s cross-examination, counsel had asked Kelley “[a]re you aware of what [Rantz, the informant] got out of this?” Kelley responded “[n]o sir, I’m not. He’s not my informant so I would not be privy to that.” Counsel then attempted to ask what was “traditional” and how Kelley paid his own informants. The.court sustained the objection that this was irrelevant to what Rantz had been paid. Pretermitting the issue of whether objection to any alleged curtailment was preserved, we find no error. “ ‘ “[T]he trial court may restrict the scope of the cross-examination to matters relevant to the issues being tried, and the results of the exercise of that discretion will not be interfered with on appellate review unless the discretion was manifestly abused.” ’ ” (Citations omitted.) Horton v. State, 206 Ga. App. 242, 243 (1) (424 SE2d 882) (1992).

With regard to whether thé failure to file a Brady motion was error, “ ‘[e]ffectiveness is not judged by hindsight or by the result. . . . [T]he fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate. (Cits.)’ Hosch v. State, 185 Ga. App. 71, 72 (2) (363 SE2d 258) (1987).” Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991).

Here, because trial counsel did not testify, there has been no affirmative showing that the alleged deficiencies in performance were not examples of a trial strategy. The burden is on the party alleging error to show it affirmatively by the record. Id. “ ‘A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. (Cit.) The trial court’s finding in the instant case is not clearly erroneous.’ ” Harris v. State, 198 Ga. App. 503 (402 SE2d 62) (1991). See Johnson v. State, 260 Ga. 159 (391 SE2d 113) (1990).

3. Finally, Wheeler alleges error in the trial court’s failure, upon oral request, to instruct the jury on the defense of entrapment.

Unless the issue of entrapment is injected into the case by-the State’s evidence, denial by a defendant that he committed the crime precludes the entrapment defense. Bell v. State, 208 Ga. App. 337 (430 SE2d 777) (1993). Here, there was no such suggestion in the State’s evidence and Wheeler steadfastly denied that he had intended to purchase drugs. Therefore, no instruction on entrapment was required. Compare Gregoroff v. State, 248 Ga. 667 (285 SE2d 537) (1982).

Decided March 29, 1994.

David J. Grindle, for appellant.

Douglas C. Pullen, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

       Neither did this violate OCGA § 24-9-64, as argued in the second enumeration. White v. State, 253 Ga. 106 (317 SE2d 196) (1984).


text:
    A94A0555.
    WINGARD et al. v. BRINSON.
    (442 SE2d 485)
   Birdsong, Presiding Judge.

The minor appellant-plaintiff Jasper Jenkins was a passenger in an automobile owned and operated by appellant-plaintiff Clara Wingard when that vehicle was struck by an automobile owned by appellee-defendant Lassie Brinson and being operated by her brother, defendant Travis Brinson. In the ensuing tort action, the complaint alleges that appellants were injured as a result of the negligent operation of the vehicle by Travis Brinson but does not allege any act of negligence on the part of appellee Lassie Brinson. She answered and immediately moved for summary judgment, claiming that she could not be held vicariously liable for any acts attributable to her brother. This motion was granted by the trial court and appellants bring this direct appeal. Held:

1. Appellee supported her motion with her affidavit stating that she and her adult brother reside in separate households and that her brother was not her employee or agent. Appellants responded to the motion by asserting that a question of fact exists as to whether appellee could be liable under the family purpose doctrine. The trial court correctly granted appellee’s motion for summary judgment upon the undisputed facts wherein an owner lent her car to a sibling who did not reside in the owner’s immediate household. “As a general rule, conceding the negligence of the operator of an automobile, the owner thereof, when not riding in the car, is not liable for injuries proximately resulting from such negligence, merely because he is the owner of the vehicle. [Cits.] Nor, as a general rule, is the owner liable for the negligence of the operator of his automobile merely because he consented, expressly or impliedly, to its operation by such person. [Cits.]” Graham v. Cleveland, 58 Ga. App. 810, 811 (1) (200 SE 184). “ ‘In Georgia, when an automobile is maintained by the owner for the use and convenience of his family, such owner is liable for the negligence of a member of the family having authority to drive the car while it is being used for a family purpose.’ See OCGA § 51-2-2.” Tolbert v. Murrell, 253 Ga. 566, 568 (2) (322 SE2d 487); see also Finocchio v. Lunsford, 129 Ga. App. 694 (2) (201 SE2d 1). In order for the family purpose doctrine to be applicable so as to impose vicarious liability on the owner for the negligence of the driver, four factors must be present: 1) the non-negligent defendant must own or have an interest in or control over the automobile; 2) he must have made the automobile available for family use rather than for his business; 3) the driver must be a member of the defendant’s immediate household; and 4) the automobile must have been driven with the permission or acquiescence of the defendant. Murch v. Brown, 166 Ga. App. 538 (304 SE2d 750). These factors are not determinative of vicarious liability but are necessary preconditions. “ ‘Georgia courts have used authority and control as the “principal factor” in determining whether liability accrues under the doctrine. (Cits.) The four conditions prescribe the parameters of the family purpose doctrine [and] when the test is to be applied, but the actual test is authority and control. (Cits.)’ [Cit.]” Finley v. Berman, 190 Ga. App. 692, 693 (379 SE2d 640).

Appellee’s unrefuted evidence shows the absence of a necessary precondition, in that the negligent operator of the vehicle was not a member of the owner’s immediate household. This renders the family purpose doctrine inapplicable to impose vicarious liability on the owner of the vehicle. “[A] mere loan of the car by the [owner] to [a sibling who was not a family member of the same immediate household within the meaning of the family purpose doctrine] was in principle the same as if [s]he had loaned it to a friend to go on a mission solely for the benefit of the friend and would . . . make the [sibling] a mere bailee [for whose negligence the owner-bailor] would not be liable.” Raley v. Hatcher, 61 Ga. App. 846 (2) (7 SE2d 777).

2. Appellant argues that a jury may decide the driver was acting as the owner’s agent, but appellant does not suggest that there is any evidence that the driver was acting as appellee’s agent. In fact, appellant implies on appeal that it is not known whether the driver was acting as appellee’s agent. As appellant has not pointed to any specific evidence suggesting the driver was appellee’s agent, on this point, appellant has not shown that there is a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). It is therefore unnecessary to consider whether appellant might be liable for the driver’s negligence if he were acting as her agent in using her car.

Decided March 29, 1994.

Frank Gonzalez, for appellants.

Dillard, Bowers & East, Joseph E. East, for appellee.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Cooper, Judge.

text:
    A93A1854.
    AETNA CASUALTY & SURETY COMPANY v. EMPIRE FIRE & MARINE INSURANCE COMPANY.
    (442 SE2d 778)
   Cooper, Judge.

This case arose out of a collision between a truck owned by Randall Jerry Pelfry and a car driven by Jerry McClure. As a result of the collision, McClure and Kimeisha Cloud, a passenger in McClure’s car, were injured. Pelfry’s truck was loaded with lumber owned by Carolina Mills Lumber Company (“Carolina Mills”). Pelfry was covered under a business automobile policy issued by Empire Fire & Marine Insurance Company (“Empire”). Aetna Casualty & Surety Company (“Aetna”) issued a business automobile liability policy to Carolina Mills.

Separate personal injury actions were filed by and on behalf of the victims. Lorraine Poole, McClure’s mother and guardian, on McClure’s behalf because McClure was incapacitated by the injuries sustained in the accident, initially only filed against Pelfry (“Poole action”) but added Carolina Mills as a defendant on the theory of respondeat superior seven months later on November 21, 1989. Cloud named Pelfry, Carolina Mills, Empire and Aetna as defendants (“Cloud action”). Aetna defended its insured, Carolina Mills, and Pelfry was defended by Empire. By letter dated February 5, 1990, Empire reserved its rights as to Carolina Mills. On September 19, 1991, Aetna demanded that Empire defend and indemnify Carolina Mills in both suits on the theory that Carolina Mills was covered by the Empire policy. Empire refused. Aetna repeated the demand on February 26, 1992, and also requested that Empire settle the Poole action on Carolina Mills’ behalf. On the same day, the Poole action was settled with Aetna paying $350,000 on behalf of Carolina Mills and Empire paying $100,000 on Pelfry’s behalf. In March 1992, the Cloud action was tried, and the jury found Pelfry liable and Carolina Mills not liable.

Aetna subsequently filed the instant action, as contractual and equitable subrogee, against Empire seeking all sums incurred by Aetna in the defense of Carolina Mills in both lawsuits since the September 19, 1991 demand and sums paid in settlement of the Poole action on behalf of Carolina Mills. Empire answered and asserted a counterclaim seeking damages against Aetna for stubborn litigiousness and bad faith. Aetna moved for summary judgment, contending that Carolina Mills was an insured under the Empire policy; that Empire had a duty to defend and indemnify Carolina Mills; that Empire’s obligations were primary, and Aetna’s obligations were excess; and that Empire’s counterclaim should be denied as a matter of law. Empire filed a cross-motion for summary judgment, urging that the final judgment in favor of Carolina Mills in the Cloud action established as a matter of law that Carolina Mills was not covered by the Empire policy; that even if Carolina Mills qualified as an insured under the Empire policy, Aetna, nonetheless, had a separate duty to defend Carolina Mills, not subject to the primary/excess coverage provisions in the two policies; that even if Carolina Mills is an insured, Aetna provided a defense to Carolina Mills under its policy without reservation and therefore is estopped from abandoning the defense of its insured or has waived its rights; that if Aetna’s duty was excess, Aetna voluntarily undertook its obligation and cannot claim reimbursement; and that Empire had no duty to defend Carolina Mills in the underlying actions.

The trial court granted Empire’s motion for summary judgment and denied Aetna’s motion. On the issue of whether Carolina Mills was an insured under the Empire policy, the court held that since the jury in the Cloud action found that Carolina Mills was not liable for Pelfry’s actions and the Poole action was settled, Carolina Mills was not an insured under the Empire policy. On the question of Empire’s duty to defend and indemnify, the court held that since Aetna actively defended Carolina Mills without reservation or protest for such a lengthy time before demanding that Empire defend and indemnify, Aetna waived its right to coverage under the Empire policy. This appeal followed.

1. Aetna enumerates as error the trial court’s grant of summary judgment to Empire and the denial of its motion for summary judgment. Aetna contends the court erred in failing to find that Carolina Mills was an insured under the Empire policy; that Empire’s obligations to Carolina were primary; that Empire had a duty to defend Carolina Mills in both actions; and that Empire had a duty to pay the Poole settlement. We will first examine whether Carolina Mills is an insured under the Empire policy.

(a) The Empire policy contains a “Truckers Coverage Endorsement” which defines an “insured” as follows: “anyone liable for the conduct of an insured described above is an insured but only to the extent of that liability.” Since the complaints allege that Carolina Mills is liable for Pelfry’s negligence on the basis of respondeat superior, Carolina Mills fits within the policy’s definition of an “insured.” See Zurich Ins. Co. v. New Amsterdam Cas. Co., 117 Ga. App. 426, 429 (2) (160 SE2d 603) (1968).

Empire argues that based on certain allegations in the Cloud complaint, Carolina Mills is a “trucker” under the policy and therefore, as a trucker, is not covered under the policy. We disagree. The Cloud complaint alleges that Pelfry and Carolina Mills “were acting as motor carriers and/or motor contract carriers, engaged in the transportation of property in interstate and intrastate commerce, and were subject to the regulations of the United States Interstate Commerce Commission and the Georgia Public Service Commission governing such activities as motor common or contract carriers.” The policy defines trucker as “any person or organization engaged in the business of transporting property by auto for hire.” Aetna submitted the affidavit of Carolina Mills’ president, in support of its motion for summary judgment, who averred that the company was not subject to motor carrier insurance requirements and was not authorized by any public authority in Georgia or elsewhere to serve any route or territory. This evidence was unrebutted. Moreover, there was no allegation or evidence submitted that Carolina Mills was an “organization engaged in the business of transporting property by auto for hire.”

(b) The “Other Insurance” provision in the Empire policy recites that it provides primary insurance for “any auto covered you own” and excess insurance “for any covered auto you don’t own.” The “Other Insurance” provision in the Aetna policy provides, in pertinent part, that “[f]or any covered ‘auto’ you don’t own, the insurance provided by this Coverage Form is excess over any other collectible insurance.” Since the accident involved a covered vehicle owned by Pelfry, Empire’s coverage is primary under the policy, and Aetna’s coverage is excess. See id. at 428.

(c) Regarding Empire’s duty to defend Carolina Mills in the actions, “[t]he true rule is that the duty to defend is determined by the contract; and since the contract obligates the insurer to defend claims asserting liability under the policy; even if groundless, the allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted.” (Citations, punctuation and emphasis omitted.) St. Paul Fire &c. Co. v. Mitchell, 164 Ga. App. 215, 216 (1) (296 SE2d 126) (1982). Since we have established that Carolina Mills is an “insured” under the policy (see Division la), and since the policy obligates Empire to “pay all sums the insured legally must pay as damages because of bodily injury or property damage . . . caused by an accident and resulting from the ownership, maintenance or use of a covered auto” and “defend any suit asking for these damages,” Empire had a duty to defend Carolina Mills in both actions.

The trial court held that Aetna waived its right to coverage under the Empire policy because Aetna defended. Carolina Mills without reservation for more than a year in the Poole case and ten months in the Cloud case before demanding that Empire defend and indemnify. The court reasoned that Aetna’s untimely demand for coverage on the eve of trial of the Cloud case prevented Empire from seeking a declaratory judgment of its alleged obligations to Carolina Mills.

Despite the fact that its coverage was excess, Aetna’s policy required that it defend Carolina Mills; thus, Aetna’s defense of Carolina Mills was not voluntary, as urged by Empire. See Capital Ford Truck Sales v. U. S. Fire Ins. Co., 180 Ga. App. 413, 416-417 (1) (349 SE2d 201) (1986), rev’d on other grounds 257 Ga. 77 (355 SE2d 428) (1987); 183 Ga. App. 242 (360 SE2d 78) (1987). Furthermore, by virtue of the subrogation provision in its policy, Aetna is entitled to seek indemnification from the carrier of primary coverage. Zurich, supra at 430 (3). We agree with Aetna that its defense of Carolina Mills without a reservation of rights did not bar its recovery against Empire for Empire’s refusal to defend and indemnify. Such a reservation of rights under the Aetna policy is a matter between Aetna and Carolina Mills and addresses Aetna’s defenses to claims for coverage by its insured, not third parties. See Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215 (3) (231 SE2d 245) (1976). Therefore, the absence of a reservation of rights by Aetna is of no consequence to Empire on the issue of coverage under the Empire policy under the circumstances of this case.

Nor do we find that Aetna’s demand, “on the eve of trial,” barred its recovery based on Alabama law, as urged by Empire in its motion for summary judgment because the policy was delivered in Alabama. See Gen. Tel. Co. of the Southeast v. Trimm, 252 Ga. 95 (311 SE2d 460) (1984). The Empire policy provides that in the event of accident or loss, the insured must “[immediately send [Empire] copies of any notices or legal papers received in connection with the accident or loss.” Empire contended that Aetna’s recovery was barred because neither Aetna nor Carolina Mills forwarded copies of the complaints to Empire and the first demand made by Aetna on Carolina Mills’ behalf came on September 21, 1991, more than one year after Aetna began defending Carolina Mills in the Poole case and ten months after the Cloud action was filed.

In Alabama, “the failure of an insured to comply within a reasonable time with such conditions precedent in an insurance policy requiring the insured to give notice of an accident or occurrence releases the insurer from obligations imposed by the insurance contract. [Cits.]” Reeves v. State Farm Fire &c. Co., 539 S2d 252, 254 (1) (Ala. 1989). “The purpose of provisions in insurance policies requiring the insured to forward legal process to the insurer immediately is to afford the insurer an opportunity to control litigation. [Cit.]” Id. at 256. In Reeves, the court held that insureds must comply with notice provisions in an insurance policy and cannot rely on what the insurer or its agents may receive from newspapers and the like. Id. at 255. However, Alabama has also recognized that notice can be provided by someone other than the insured. See Dill v. Colonial Ins. Co. of California, 569 S2d 385 (1) (Ala. 1990). The record contains a stipulation wherein Empire admits receiving the amended complaint in the Poole case adding Carolina Mills as a defendant, Carolina Mills’ answer and defenses in the Poole case, and the complaint in the Cloud case, either on the day such pleadings were filed or the following day. The record also reflects that Empire defended Pelfry continually in both actions, participating in the settlement of the Poole action which culminated on February 26, 1992 and defending Pelfry in the Cloud action which resulted in a jury verdict on March 10, 1992. Thus, Empire was in a posture to “control the litigation” the entire time Carolina Mills was a party in both cases, and the notice requirement was satisfied.

Likewise under Georgia law, OCGA § 33-7-15, the notice requirement was also satisfied as Empire received copies of the pleadings immediately upon their filing, albeit from someone other than Carolina Mills or Aetna. Mahone v. State Farm Mut. Auto. Ins. Co., 188 Ga. App. 664, 667 (2) (373 SE2d 809) (1988). We do not agree with the trial court’s conclusion that Aetna’s demand on September 19, 1991 prevented Empire from timely obtaining a declaratory judgment to determine its liability under the policy. Empire rejected Aetna’s demand on October 11, 1991. However, the Poole case was not settled until February 26, 1992, and the Cloud trial did not begin until March 1992. There is no evidence in the record which demonstrates that Empire either filed a declaratory action or was prevented from doing so in the months prior to the resolution of those cases. Accordingly, Empire had a duty to defend Aetna in both cases.

(d) Based on Zurich Ins. Co. v. New Amsterdam Cas. Co., supra, we find that as the primary carrier, Empire is obligated to indemnify Aetna for all sums previously paid in the compromise and settlement of the Poole action. Aetna cites to Ga. Southern &c. R. Co. v. U. S. Cas. Co., 97 Ga. App. 242 (102 SE2d 500) (1958), for the proposition that Empire is estopped to deny the validity of the settlement when it denied coverage and refused to defend Carolina Mills in the Poole action. While it is true that an insurer loses its opportunity to contest the negligence of the insured or the injured person’s right to recover by refusing to defend, the insurer does not lose its right to contest the insured’s entitlement to a recovery under its policy. McCraney v. Fire &c. Ins. Co. of Connecticut, 182 Ga. App. 895, 896 (357 SE2d 327) (1987). However, the only objection raised by Empire to Aetna’s entitlement to indemnification under the policy was Empire’s contention that Carolina Mills was not an insured under the policy. Empire argues that since the jury determined in the Cloud case that Carolina Mills was not responsible for Pelfry’s actions, Carolina Mills does not meet the “Who Is Insured” criteria in the Empire policy. Relying on the doctrine of collateral estoppel, Empire contends that the Cloud verdict is binding on the parties in the Poole action such that Aetna, as subrogee, has no claim against Empire for any amount paid in settlement of the Poole action. However, the doctrine of collateral estoppel is totally inapplicable in this case. The Cloud verdict occurred after the settlement of the Poole action. Collateral estoppel “stems from the doctrine of res judicata where there has been a former adjudication of the same issue by the same parties or their privies, even though the adjudication may not have been upon the same cause of action. [Cit.]” (Emphasis supplied.) Travelers Ins. Co. v. Commercial Union Ins. Co., 176 Ga. App. 305, 309 (335 SE2d 681) (1985). The settlement agreement entered into by the parties in the Poole case was “ ‘full and final’ as to the entirety of the controversy which existed between the parties. As such, it was binding and enforceable by and against the respective parties to it.” Bishop v. Intl. Paper Co., 174 Ga. App. 863, 864 (332 SE2d 12) (1985). Thus, the subsequent absolution of Carolina Mills in the Cloud case had no bearing on the respective obligations of the parties already set forth in the Poole settlement.

Based on the foregoing, we conclude that the trial court erred in denying Aetna’s motion for summary judgment and granting Empire’s motion for summary judgment relative to Empire’s duty to defend and indemnify Aetna.

2. Aetna also contends the trial court erred in denying its motion for summary judgment on Empire’s counterclaim for attorney fees and expenses of litigation on the ground that Aetna’s lawsuit constituted stubborn litigiousness and bad faith. “Although OCGA § 13-6-11 creates a cause of action for bad faith damages to a plaintiff for having to resort to litigation, no such provision is available to a defendant in the absence of viable independent counterclaims asserting a claim for relief independent of the assertion of the plaintiff’s harassment, litigiousness and bad faith in bringing its suit. [Cit.] [Empire], having asserted no other independent claim against [Aetna] other than a claim for litigation costs and attorney fees, is not a true plaintiff in counterclaim so as to claim litigation expenses under OCGA § 13-6-11. [Cit.]” (Punctuation omitted.) Gibson v. Southern Gen. Ins. Co., 199 Ga. App. 776, 777 (406 SE2d 121) (1991). Accordingly, the trial court erred in denying Aetna’s motion for summary judgment on Empire’s counterclaim.

Judgment reversed.

Beasley, P. J., and Smith, J., concur.

Decided March 1, 1994

Reconsideration denied March 30, 1994

Neely & Player, John W. Winborne III, Frances R. Mathis, for appellant.

Dennis, Corry, Porter & Gray, R. Clay Porter, Craig P. Siegenthaler, for appellee.


author: Beasley, Presiding Judge. Smith, Judge,

text:
    A93A1997.
    MURRAY et al. v. SLOAN PAPER COMPANY.
    (442 SE2d 795)
   Beasley, Presiding Judge.

The Murrays sued Sloan Paper Company and its driver, alleging injuries caused by a collision between their car and the company’s leased truck. Plaintiffs appeal from the grant of corporation’s motion for summary judgment, or in the alternative, motion to dismiss, and entry of final judgment as to that defendant based on its defense of insufficiency of service of process. We reverse.

A renewed complaint was filed on November 5, 1991. On November 7, a state court marshal went to defendant’s place of business to effect service. The marshal averred: “The process back had instructions to serve J. V. Vansant, Jr., as registered agent for Sloan Paper Company. I arrived at [the company address specified on the process papers] and advised the receptionist I was there to see Mr. Vansant. [A Ms. Kenney] came up to me and told me Mr. Vansant was not available. She asked if she could help me and told me she was Mr. Vansant’s administrative assistant. I told her I was there to serve a paper on him for Sloan Paper Company. She told me she could take the paper. I served the paper on her for Mr. Vansant. She signed her name on the return of service as having received the suit. . . .” Her signature for the corporation appears adjacent to the designation on the printed form specifying one “in charge of the office.”

Ms. Kenney’s affidavit stated: “I am an administrative assistant employed by Sloan Paper Company. ... On November 7, 1991, ... I was notified that someone from the sheriff’s office was looking for Jim Vansant. I informed this individual that I was Jim Vansant’s administrative assistant. This individual then gave me some documents which I later discovered related to this lawsuit. . . . [The sheriff] never asked whether I was an officer of or agent for service of process on behalf of Sloan Paper Company. I have never been an officer of [the] company, nor have I been appointed as a registered agent for service of process by the company.”

Vansant was an officer of the corporation at the time of service, and had been its registered agent until January 31, 1991, when CT Corporation was appointed. He averred that he was not personally served with the complaint.

1. “ ‘ “The defenses enumerated in § 12 (b) of The Civil Practice Act [OCGA § 9-11-12 (b)] except (6), failure to state a claim upon which relief can be granted, are matters in abatement which are not within the scope of the summary judgment procedure, as a motion for summary judgment applies to the merits of the claim or to matters in bar but not to matters in abatement. [Cits.]” ’ ” Deller v. Smith, 250 Ga. 157, 163 (2) (296 SE2d 49) (1982). The defense of insufficiency of service of process is a plea in abatement and is not properly a basis for a motion for summary judgment. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974); Hight v. Blankenship, 199 Ga. App. 744 (406 SE2d 241) (1991); Cheshire Bridge Enterprises v. Lexington Ins. Co., 183 Ga. App. 672 (2) (359 SE2d 702) (1987). Accordingly, the order is treated for review as a dismissal under OCGA § 9-11-12 (b) (5).

“When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service. The return ‘can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.’ [Cits.]” Patterson v. Coleman, 252 Ga. 152 (311 SE2d 838) (1984).

2. In addition to service on a registered agent, OCGA § 9-11-4 (d) (1) allows service on “the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof. . . .” “In order for an employee to be authorized to accept service on behalf of a corporation, it is necessary that the employee’s position be ‘such as to afford reasonable assurance that he will inform his corporate principal that such process has been served upon him.’ [Cit.] ‘It is not necessary that the employee in question be an officer or that he be authorized to enter into contracts on behalf of the corporation.’ [Cits.] However, if the employee is not an officer or has not been expressly designated by the corporation to receive service, it is necessary that he or she occupy some position of managerial or supervisory responsibility within the organization.” Whatley’s Interiors v. Anderson, 176 Ga. App. 406 (2) (336 SE2d 326) (1985).

It has been shown only that Ms. Kenney occupied the position of administrative assistant and that she was neither an officer of the corporation nor its registered agent for service of process. Nothing in the record indicates that her actual duties did not entail managerial or supervisory responsibilities; her title, the representation she made, and the actions she took speak to the contrary. The burden was on defendant to show that she did not have such responsibility. Patterson, supra. The evidence was not met. As in Northwestern Nat. Ins. Co. v. Kennesaw Transp., 168 Ga. App. 701, 703 (309 SE2d 917) (1983), “she was the person who spoke to the process server[ ] and was aware that [Vansant] was not available for service, further, [it could be] found from the officer[’s] affidavit[ ] that [Kenney] led the officer [ ] to believe she was in charge of the office and was authorized to accept service for [defendant corporation].” Compare Citizens Bank of Hapeville v. Alexander-Smith Academy, 226 Ga. 871 (178 SE2d 178) (1970) and Headrick v. Fordham, 154 Ga. App. 415 (1) (268 SE2d 753) (1980), two actions in which the uncontroverted evidence showed that a receptionist-typist and secretary were unauthorized to receive service of process.

Decided March 8, 1994

Reconsideration denied March 30, 1994

Paul C. Parker & Associates, William S. Sarandis, for appellants.

Long, Weinberg, Ansley & Wheeler, Lance D. Lourie, Sharon B. Austin, for appellee.

Neither the established facts nor the law support the trial court’s ruling. Accordingly, it was error to grant defendant’s motion to dismiss.

3. Since the complaint was served on an authorized agent for the corporation, within five days after it was filed, service was timely under OCGA § 9-11-4 (c). It was not necessary to show that plaintiffs acted in a reasonably diligent manner. Compare, e.g., Brumbalow v. Fritz, 183 Ga. App. 231 (2) (358 SE2d 872) (1987).

Judgment reversed.

Pope, C. J., McMurray, P. J., Cooper and Blackburn, JJ., concur. Birdsong, P. J., Andrews, Johnson and Smith, JJ., dissent.

Smith, Judge,

dissenting.

I respectfully dissent. As in Whatley’s Interiors v. Anderson, 176 Ga. App. 406 (336 SE2d 326) (1985), the trial court here concluded that Ms. Kenney did not have authority to accept service on behalf of the corporation. Since the evidence was in conflict, the issue became one of fact for determination by the trial court. I believe the trial court’s conclusion, based upon the record before it, was authorized and should be affirmed.

I am authorized to state that Presiding Judge Birdsong, Judge Andrews and Judge Johnson join in this dissent.


text:
    A93A2035.
    SHELLEY v. SHELLEY.
    (442 SE2d 847)
   Cooper, Judge.

This appeal arises out of appellant’s attempt to enforce a division of property by writ of fi. fa. The trial court granted appellee’s affidavit of illegality, and we granted this interlocutory appeal to consider whether a property division can be enforced by execution and levy on a writ of fi. fa.

In 1990, appellant/husband and appellee/wife were divorced, and a final decree of divorce was entered which included an agreement providing for an equitable division of all marital property. In relevant part, the agreement provided: “Husband and Wife shall each be responsible for paying one-half of the mortgage payments, ad valorem taxes and homeowner’s insurance. Any repairs or improvements deemed necessary by both parties will be paid one-half by Husband and one-half by Wife. The unimproved lot owned jointly by Husband and Wife . . . shall remain titled in both parties. If the lot shall be sold, Husband shall get 10% of the proceeds, or $1,500, whichever is less. In partial consideration for Husband Quitclaiming his interest in the house . .. Wife agrees to make the monthly payments on the joint cards until they are paid in full. For the same reason, Wife also assumes Husband’s debt in the amount of $3,500. .. for fees incurred by husband in his lawsuit. . . . Neither party shall pay or receive alimony from the other.”

In 1992, appellant’s attorney filed an affidavit for fi. fa. in which he stated that appellee owed appellant $3,885.51 for mortgage payments made by appellant; $245.49 for repairs paid for by defendant; $1,500 for the unimproved lot which was sold for at least $20,000; $8,473.09 for payments on the joint credit cards; and $3,500 for fees incurred by appellant in the lawsuit referred to in the agreement. As a result of the affidavit, the clerk of court issued a fi. fa. in the amount of $17,653.09, and approximately three months later, the sheriffs department levied on property in the possession of appellee. Appellee posted a replevin bond in the amount of $18,601.33 and filed an affidavit of illegality, contending that the fi. fa. was proceeding illegally. Appellant moved to strike appellee’s affidavit of illegality on the grounds that appellee was a party to the divorce action, therefore she had her day in court and could not go behind the judgment rendered in that action. Following a hearing on appellee’s affidavit of illegality, the trial judge entered an order granting the affidavit.

Appellant enumerates as error, the trial judge’s conclusion that a writ of fi. fa. is not the appropriate vehicle to enforce a property division award. Appellant argues that the enforcement of an equitable property division by writ of fi. fa. is authorized by OCGA § 19-6-4 (b), which provides that a grant of permanent alimony may be enforced by either writ of fi. fa. or by attachment for contempt, and OCGA § 19-5-13 which authorizes the judge to enter any order necessary to effectuate the jury’s verdict disposing of property in a divorce action. As further support for his position, appellant cites OCGA § 23-4-37 which provides: “Every decree or order of a superior court in equitable proceedings may be enforced by attachment against the person for contempt. Decrees for money may be enforced by execution against the property.”

It is undisputed that the final decree does not provide for alimony to either party. However, appellant argues that those portions of the decree which he seeks to enforce by execution are fixed amounts such as one-half mortgage payments and attorney fees or are amounts which can be easily computed and supported by documentary evidence such as credit card payments, payments for repairs and improvements and the amount due from the sale of a parcel of real property. Therefore, appellant contends, he is only enforcing a money decree by execution and levy. Appellee argues that although the legislature has authorized the enforcement of alimony and child support awards through a writ of fi. fa., there is no similar provision for the enforcement of an equitable property division, and consequently, appellant’s only remedy is to enforce the property division through an action for contempt.

We first examine appellant’s contention that he is merely seeking to enforce a money judgment. If so, then an action for contempt is not an available remedy. See McKenna v. Gray, 263 Ga. 753 (438 SE2d 901) (1994). Although the provisions of the agreement sought to be enforced by fi. fa. involve the payment of money, we cannot conclude that the provisions of the settlement agreement sought to be enforced by appellant are in the nature of a money judgment. Compare Boyd v. Boyd, 191 Ga. App. 718 (382 SE2d 730) (1989) (divorce decree provided that husband was to pay wife the sum of $27,000). For example, the agreement requires appellee to pay one-half of the mortgage payments, and appellant’s attorney sets forth in the affidavit for fi. fa. that the amount due is $3,885.51. However, no judgment was entered against appellee for this amount. Also, the affidavit for fi. fa. includes a statement that $245.49 is due for repairs, but the agreement provides that the parties will each pay one-half for repairs deemed necessary by both parties. Finally, with respect to the provision in the agreement that husband shall receive 10 percent of the proceeds, or $1,500, from the sale of a jointly owned parcel of property, it has not been established (other than through the affidavit of appellant’s attorney) either that the property was sold or the amount for which it sold. Since the portions of the decree sought to be enforced by appellant do not specify any certain amounts to which appellant is entitled, and said sums are not clearly ascertainable from the terms of the decree, we find that appellant was not merely seeking to enforce a money judgment.

Decided March 16, 1994

Reconsideration denied March 30, 1994

Banks & Stubbs, Robert S. Stubbs III, for appellant.

Smith, Gilliam & Williams, Kelly A. Miles, Christopher E. Vaughan, for appellee.

Whereas the legislature has specifically provided for the enforcement of alimony and child support by writ of execution, no such statute allows this method to enforce a property division award, which oftentimes involves undetermined sums of money or payments that are contingent on sales of property or other assets. Therefore, we conclude that the trial court properly granted appellee’s affidavit of illegality quashing appellant’s fi. fa.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A2147.
    SPIKES v. HOLLOWAY.
    (442 SE2d 471)
   Cooper, Judge.

Appellee brought suit against appellant for injuries sustained in an automobile accident when appellant allegedly pulled into the path of a vehicle in which appellee was a passenger. We granted appellant’s application for interlocutory appeal from the trial court’s grant of a default judgment to appellee and the denial of appellant’s motion to open default judgment.

Appellee filed suit on August 19, 1992 in Ware County, the county of appellant’s residence at the time of the accident. The Ware County Sheriff’s Department was unsuccessful in two attempts at service in Ware County. Appellant’s attorney received a courtesy copy of the complaint from appellant’s employer’s insurer on September 14, 1992, as well as a letter instructing counsel to “protect the interest of the insured.” Upon receipt of the complaint, counsel’s paralegal called the Ware County clerk’s office and was told appellant had not been served. Appellee subsequently learned that appellant had moved to Atkinson County since the accident, and appellant was personally served in Atkinson County on November 17, 1992, by leaving a copy of the summons with appellant’s wife. Appellant, who could not read or write, testified that he received papers from the Atkinson County Sheriff’s Department and that he turned the papers over to his employer, the accident having occurred while appellant was driving his employer’s vehicle. The employer testified that he received papers from appellant and took them to his insurance agency. He testified that it was customary to handle lawsuits in this manner. An employee for the insurance agency testified that the agency never received the complaint. As a result, the complaint was never answered, and the case went into default. On January 7, 1993, appellee filed a motion to transfer the case from Ware County to Atkinson County. Appellant was served a copy of the motion by certified mail. Once again, appellant gave the papers to his employer. However this time, the employer’s insurance agent and its insurer received copies of the motion. The insurer sent a copy of the motion to appellant’s attorney. The motion to transfer venue indicated on its face that appellant had been duly served in Atkinson County. The paralegal again called the clerk’s office and was told that appellant had not been served. The motion to transfer was granted on February 16, 1993, and on March 23, 1993, appellee file his motion for default judgment. The clerk of Atkinson County sent notices of the motion to all the parties. Appellant’s counsel learned of the pending motion on April 2, 1993 when he received a facsimile transmission or telephone call from the insurer. The paralegal called both the Ware and Atkinson County clerk’s offices and was again informed that appellant had not been served. Shortly after April 2, 1993, counsel received a copy of the case file from the clerk in Atkinson County and discovered that appellant had been served on November 17, 1992. On April 9, 1993, appellant filed his motion to open default. At the hearing on the motions, a Ware County deputy clerk testified that the return of service showing service on November 17, 1992 was not recorded on the form recognized by employees of the clerk’s office but instead was recorded on the back side of the second original summons. From September 14 until April 3, 1993 counsel’s paralegal telephoned the clerk’s offices in Ware and Atkinson Counties several times and was advised as late as April 3, 1993 that appellant had not been served. The court granted appellee’s motion for default judgment and denied appellant’s motion. The sole issue on appeal is whether there was excusable neglect to forgive appellant’s failure to answer the complaint. OCGA § 9-11-55 (b).

Appellant contends that he gave the pleadings to his employer as expected and had good cause to believe that the suit was being defended. However, through no fault of his own, the complaint vanished inexplicably, never getting to the employer’s insurer, and an irregular recording of the return of service prevented his attorney from discovering when service was made. In support of his motion to open default judgment, appellant relied on Powell v. Eskins, 193 Ga. App. 144 (387 SE2d 389) (1989), wherein this court based a finding of excusable neglect on the fact that the delay in filing the answer was not caused by the defendant but was due to the actions of others upon whom the defendant was entitled to rely. In Powell, the court found that “there was good cause for the defendant to believe that the suit was being defended by an insurance company. Under the facts here, any neglect by [the defendant] in following the progress of the case was excusable. The law should not blindly impose standards which require individuals, in the conduct of their daily business, to distrust the parties with whom they deal. Likewise, a litigant should not unnecessarily be forced into default as a consequence of having reasonably relied upon the word of his fellow, particularly when no innocent party will suffer if the default is opened.” (Citations and punctuation omitted.) Id. at 145.

Appellee maintains that the trial court properly concluded that excusable neglect was not proven. Appellee contends that while appellant had some responsibility to verify that the case was being handled properly, his attorney’s neglect was the primary cause for appellant’s failure to answer the complaint. Appellee relies on those cases in which this court held that “ ‘[t]he neglect of the attorney was the neglect of the client, and furnished no reason for setting aside the judgment.’ [Cits.]” U. S. Xpress v. W. Timothy Askew & Co., 194 Ga. App. 730 (391 SE2d 707) (1990). Appellee also cites to the following language in Rahal v. Titus, 110 Ga. App. 122, 129 (2) (138 SE2d 68) (1964): “The negligence of the client or his attorney in failing to examine the original pleadings in the case is not ground for setting aside the judgment.” Appellee contends that counsel unreasonably relied on the representations made by his paralegal and the clerk’s offices because the paralegal did not go to the clerk’s offices and inspect the records in person; that the mix-up, delay and ultimate failure in responding to the complaint occurred in the attorney’s office and not within the offices of the insurer; and that counsel could easily have discovered that appellant had been served by calling appellant or his employer. Appellee contends that counsel’s conduct amounted to intentional delay in filing pleadings. See Womack Indus. v. Tifton-Tift County Airport Auth., 199 Ga. App. 237 (1) (404 SE2d 618) (1991). We disagree.

“Excusable neglect has been defined as referring to where there is a reasonable excuse for failing to answer.” (Citations and punctuation omitted.) Sears, Roebuck & Co. v. Ramey, 170 Ga. App. 873, 875 (318 SE2d 740) (1984). “In cases such as this, no two are alike and each must stand on its own merits. The facts in each case are different and you must look at each in the light of the facts peculiar to that particular case.” Cobb County Fair Assn. v. Boyle, 143 Ga. App. 754, 756 (240 SE2d 136) (1977). At the outset we note that the language to which appellee directed us in Rahal, supra, was not used in the context of setting aside a default judgment, and we do not find that the alleged negligence on the part of counsel due to his failure to personally inspect the pleadings in the clerk’s office is solely dispositive of the issue of excusable neglect in this case. Cf. U. S. Xpress, supra (failure to file answer was due solely to a mistake in the attorney’s office and the attorney’s busy trial schedule). Clearly, the irregular recording of the return of service and the disappearance of the complaint, both of which occurred through no fault of appellant or his attorney, were factors in the delay in responding to the complaint. In turning over the complaint to his employer, appellant did as he was expected to do. Contemporaneously with this case, a second case was filed against appellant by another victim involving the same accident. The record in that case reflects that after service appellant similarly turned over the pleadings to his employer. The documents were sent on to the insurer and a defense was provided. Likewise, appellant was entitled to believe that the instant case was being handled similarly and that a defense was being provided. See Powell, supra. “Moreover, the law favors reaching the merits of disputes. [Cit.]” Id. at 146.

Decided March 15, 1994

Reconsideration denied March 30, 1994

Newton, Smith, Durden, Kaufold & Rice, Wilson Smith, for appellant. t

Helms & Helms, J. Jeffrey Helms, Jr., Catherine Helms, for appellee.

The evidence demanded a finding of excusable neglect. The trial court abused its discretion in refusing to open the default. Accordingly, the entry of default judgment against appellant was erroneous. Ramey, supra at 875; Mars, Inc. v. Moore, 207 Ga. App. 912, 913 (429 SE2d 299) (1993).

Judgment reversed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A2176.
    GREEN v. JOHNSTON REALTY, INC.
    (442 SE2d 843)
   Cooper, Judge.

Plaintiff/appellant is John Green d/b/a Green Development Company, a real estate developer who focused primarily on student housing. Plaintiff had worked primarily in the Athens, Georgia area, but in 1989 decided to expand his business to Statesboro, Georgia to develop a student housing facility near Georgia Southern University. Plaintiff approached Joe Johnston, a real estate agent and principal of defendant Johnston Realty, Inc., with the idea of developing a complex consisting initially of 24 four bedroom, four bathroom apartments. Plaintiff advised Johnston that his plan called for the initial construction of 24 apartments by June 1990 (“Phase I”) with an additional 32 apartments to be constructed by the fall of 1990 (“Phase II”). Each apartment was to rent for $900 and house four persons, who were each required to sign a separate lease agreement and provide a parental guarantee. Plaintiff also required that the potential lessees deposit a total of $1,000 as a security deposit on the apartment. Johnston told plaintiff that his company normally received a fee equal to one-half of the first month’s rent for each apartment leased; however, plaintiff and Johnston came to an oral understanding that defendant would act as a leasing agent for Phase I and receive a fee of $5,000. Specifically, defendant was to act as a focal point for students to get information about the apartments and sign leases. It was also agreed that plaintiff would be responsible for advertising and that, in August 1990, plaintiff’s property manager would assume all leasing responsibilities. Johnston assigned two of his sales agents to work on leasing the apartments in Phase I. Although the agents experienced some difficulty obtaining the parental guarantees, all 24 of the Phase I apartments were leased by June 1990. In June 1990, plaintiff began construction of Phase II, and defendant’s agents began to look for tenants for the Phase II apartments. At one point plaintiff told the agents that he was having difficulty with the financing for Phase II, and the agents temporarily stopped trying to lease the units until the financial matter was resolved, at which time the agents resumed their efforts to lease the apartments in Phase II. By the beginning of the 1990-91 school year, the agents had been unable to lease the majority of the Phase II apartments. Plaintiff refused to pay defendant the agreed upon sum of $5,000 and subsequently filed suit against defendant, alleging breach of contract, negligence, negligent hiring and tortious interference with prospective economic relations. Defendant filed a counterclaim seeking the $5,000 plaintiff agreed to pay for the leasing of Phase I and additional compensation for the units in Phase II for which defendant secured tenants. Defendant moved for summary judgment on the main claim and the counterclaim, and the trial court granted the motion and awarded defendant damages in the amount of $5,541.40 for the leasing of the twenty-four Phase I units and $1,438.38 for the seven Phase II units leased. Plaintiff appeals from that order. Although the judgment entered in favor of defendant on the counterclaim is less than $10,000, the judgment in favor of defendant on the main claim is in effect a “zero” award for plaintiff. Therefore, an application for discretionary appeal is not required. See Robinwood, Inc. v. Baker, 206 Ga. App. 202 (1) (425 SE2d 353) (1992).

1. Plaintiff first contends that the trial court erred in failing to construe material facts in his favor as the non-movant. “On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. When, as in the instant case, movant is the defendant, he has the additional burden of piercing the plaintiffs pleadings and affirmatively negating one or more essential elements of the complaint. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Thus, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” (Citations and punctuation omitted.) McGinty v. Golden’s &c. Co., 208 Ga. App. 248, 249 (1) (430 SE2d 185) (1993).

With respect to plaintiff’s claim for breach of contract, the trial judge found that there was an agreement between plaintiff and defendant for defendant to use its best efforts to lease the apartments in Phase I, but there was no agreement with respect to the apartments in Phase II. Johnston testified in his deposition that he agreed to help plaintiff lease the 24 apartments in Phase I by acting as a focal point where students could get information and sign leases. Johnston also testified that for this service he was to be paid a flat rate of $5,000, although his normal fee was one-half of the first month’s rent on each apartment leased. Johnston stated that his responsibility was to end in August 1990 when plaintiff’s property manager took over the leasing responsibilities. Johnston further testified that there was no agreement as to the apartments in Phase II, and although Johnston’s staff attempted to secure tenants for the units in Phase II, Johnston assumed that the leasing of these units would be the responsibility of plaintiff’s property manager. Johnston also stated that through the efforts of his sales staff he was able to secure lease agreements for thirty-one apartments, all of the Phase I apartments and seven of the Phase II apartments.

There is no evidence in the record that defendant breached its agreement with respect to the leasing of the apartments in Phase I. Furthermore, plaintiff testified in his deposition that there was never any negotiation about payment for leasing the apartments in Phase II and he assumed they would be leased under the same terms as those in Phase I. “In accordance with OCGA § 13-3-1, to form a valid contract there must be a subject matter, a consideration, and mutual assent by all parties to all the terms.” Lamb v. Decatur Federal &c. Assoc., 201 Ga. App. 583, 585 (1) (411 SE2d 527) (1991). “Further, as price is an essential element of a valid contract, an alleged contract on which there is no firm agreement as to the price is unenforceable.” (Citations omitted.) BellSouth &c. v. McCollum, 209 Ga. App. 441, 444 (2) (433 SE2d 437) (1993). The testimony of both plaintiff and Johnston reveals that there was never an agreement as to how much defendant would be paid for the leasing of the Phase II apartments. (Green deposition, pp. 211-212; Johnston deposition, pp. 94-95.) Accordingly, the trial court’s grant of summary judgment on plaintiff’s claim for breach of contract was proper.

2. Plaintiff also alleges that defendant negligently performed its duty to lease the 24 apartments in Phases I and II. There is no evidence that defendant was negligent in leasing the apartments in Phase I because defendant secured leases for those apartments. With regard to the Phase II apartments, defendant had no contractual duty to lease those apartments. See Division 1, supra. However, in spite of the difficulty defendant’s agents had in obtaining parental guarantees, defendant attempted to and was successful in leasing some of the Phase II apartments. There is no evidence that defendant or his agents were negligent in their undertaking to lease the units in Phase II. Accordingly, summary judgment was properly granted to defendant on plaintiff’s claim of negligence.

3. Plaintiff also argues that the trial judge erred in granting summary judgment to defendant on his claim of negligent hiring and retention of employees. Specifically, plaintiff argues that the sales agents assigned to lease the apartments were inexperienced in the leasing of large apartment complexes. “The appropriate standard of care in a negligent hiring/retention action is whether the employer knew or should have known the employee was not suited for the particular employment.” (Citation and punctuation omitted.) Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876, 878 (1) (429 SE2d 264) (1993). Regardless of whether defendant knew the agents had no experience in leasing large apartment complexes, there was no evidence that defendant’s sales agents were incompetent or incapable of leasing the apartments. To the contrary, the agents were successful in leasing all of the apartments in Phase I and some of the apartments in Phase II. Nor was there any evidence that the agents intentionally failed to lease the apartments. Plaintiff failed to establish a claim for negligent hiring, and summary judgment was properly granted to defendant on this issue.

4. In two enumerations of error, plaintiff contends the trial court erred in granting summary judgment to defendant on plaintiff’s claim of tortious interference with prospective economic relations. “To establish a cause of action for tortious interference with existing and prospective contractual relations, a claimant must show that the defendant (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury. . . . The terms malicious or maliciously means any unauthorized interference or any interference without justification or excuse. This court has authorized the grant of summary judgment to a defendant on a tortious interference claim if the defendant pierces the pleadings with respect to any single element of the cause of action.” (Citations and punctuation omitted.) St. Mary’s Hosp. v. Radiology Professional Corp., 205 Ga. App. 121, 124 (2) (421 SE2d 731) (1992). Notwithstanding whether plaintiff can establish a cause of action for tortious interference with prospective economic relations without first establishing a breach of contract (see Cartin v. Boles, 155 Ga. App. 248 (3) (270 SE2d 799) (1980)), plaintiff put forth no evidence that defendant acted maliciously. Consequently, summary judgment was properly granted to defendant on the tortious interference claim.

5. Finally, plaintiff argues that defendant was not entitled to summary judgment, including damages, on defendant’s counterclaim. In Count I of its counterclaim, defendant alleged breach of contract and sought damages of $5,000 plus $541.40 in expenses for leasing the Phase I units. In Count II, defendant alleged a claim for quantum meruit and sought damages in the amount of $3,150 as the reasonable value of defendant’s services for leasing seven of the Phase II units. The evidence was undisputed that by the beginning of the 1990-91 school year, defendant had leased the twenty-four apartments in Phase I, plus seven apartments in Phase II. Therefore, as to the Phase I units, defendant was entitled to summary judgment, including damages for plaintiff’s breach of the oral agreement.

“Quantum meruit is an available remedy when there [is] no express stipulation as to the value of the services to be performed, and the compensation therefor necessarily [depends] upon an implied promise to pay.” (Citation and punctuation omitted.) Hardin v. Hunter, 174 Ga. App. 756, 757 (2) (331 SE2d 83) (1985). Defendant contended in its counterclaim that the reasonable value of services for leasing the seven units in Phase II was $3,150, an amount equal to one-half of the first month’s rent, or $450, for each apartment. However, the trial judge determined that defendant was only entitled to $1,458.38, a prorated amount based on the per unit fee that plaintiff agreed to pay for the Phase I units. The amount awarded as the reasonable value of defendant’s by the trial judge is supported by the evidence. See G. Carbonara & Co. v. Helms, 205 Ga. App. 547, 548 (423 SE2d 36) (1992). Accordingly, we find no error with the award of damages on the counterclaim.

Judgment affirmed:

Beasley, P. J., and Smith, J., concur.

Decided March 16, 1994

Reconsideration denied March 30, 1994

Adams & Ellis, Laura J. Tromly, Ronald C. Berry, Tracy O’Connell, for appellant.

Edenfield, Stone & Cox, Gerald M. Edenfield, Susan W. Cox, for appellee.


text:
    A93A2356.
    RICHARD et al. v. DAVID.
    (442 SE2d 459)
   Cooper, Judge.

This appeal arises out of a legal malpractice action brought by plaintiffs/appellants against defendant/appellee. Plaintiffs appeal from an order granting summary judgment to defendant.

In April 1991, plaintiffs entered into a contract with Mr. and Mrs. DeLuca to purchase a 100-year-old house and arranged to finance the house through a loan from a local bank. The bank gave plaintiffs the names of two attorneys, including defendant, who were on the bank’s approved list for closing real estate loans. Plaintiffs contacted both attorneys and subsequently informed the bank that they wanted defendant to be the closing attorney. The bank notified defendant that plaintiffs had selected her as the closing attorney, and the closing took place on May 31, 1991. At the end of the closing, the realtor asked for the required termite letter. Mrs. DeLuca gave the letter to defendant, who reviewed it and handed it to plaintiffs. The termite letter clearly indicated previous infestation of the subject property and also noted that the conditions at the time of the inspection warranted further inspection by a qualified building inspector. There was also a diagram attached to the termite letter showing the location of the previous infestation. There was no discussion about the termite letter, and after reviewing the letter, plaintiffs signed it, acknowledging their receipt of the letter. In November 1991, plaintiffs discovered that the house had extensive structural damage as a result of an old termite infestation. Plaintiffs filed a legal malpractice action against defendant, alleging that defendant was negligent in failing to advise them about the significance of the findings in the termite letter.

1. Plaintiffs contend the trial court erred in finding that an attorney-client relationship did not exist between plaintiffs and defendant. “It is generally held that an attorney-client relationship must be demonstrated before a plaintiff may recover in a legal malpractice suit. This is essential in establishing the element of duty that is necessary to every lawsuit based upon a theory of negligence.” (Citation and punctuation omitted.) Guillebeau v. Jenkins, 182 Ga. App. 225, 229 (1) (355 SE2d 453) (1987). “The basic question in regard to the formation of the attorney-client relationship is whether it has been sufficiently established that advice or assistance of the attorney is both sought and received in matters pertinent to his profession.” (Citation and punctuation omitted.) Legacy Homes v. Cole, 205 Ga. App. 34, 35 (421 SE2d 127) (1992). The record reveals that plaintiffs never sought any legal advice from defendant and defendant never offered any legal advice to plaintiffs. Nor did plaintiffs ever communicate to defendant that they would rely on her for legal advice at the closing. We conclude that plaintiffs could not have had a reasonable belief that an attorney-client relationship existed with defendant. Plaintiffs argue that an attorney-client relationship existed because they selected defendant as the closing attorney and paid defendant’s fee as part of the closing cost. However, these facts do not establish the existence of an attorney-client relationship. Guillebeau, supra at 230; Legacy Homes, supra at 35. Accordingly, the trial court did not err in finding that no such relationship existed and granting summary judgment to defendant.

Decided February 16, 1994

Reconsideration denied March 30, 1994

J. Hue Henry, Regina M. Quick, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, James L. Gray, Lefco, Blumenthal & Zuckerman, Stanley M. Lefco, for appellee.

2. Because of our conclusion in Division 1 that no attorney-client relationship existed, it is unnecessary to address plaintiffs’ remaining argument that the trial court erred in concluding that defendant was not negligent.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A2485.
    KEANUM v. THE STATE.
    (442 SE2d 790)
   Cooper, Judge.

Appellant was convicted of three counts of child molestation and appeals from the judgment of conviction and sentence and the denial of his motion for new trial. The charges involved acts allegedly committed against appellant’s nine-year-old stepdaughter.

1. Relying on Vance v. State, 262 Ga. 236 (2) (416 SE2d 516) (1992), appellant contends the trial court erred in instructing the jury that “moral and reasonable certainty is all that can be expected in a legal investigation.” Appellant also contends trial counsel’s failure to reserve exceptions to the court’s charge constituted ineffective assistance of counsel. The record shows that appellant’s trial counsel filed a motion for new trial, and then a new attorney, appointed to represent appellant on appeal, filed an amended motion for new trial raising the issue of ineffective assistance of counsel but failing to specifically assert trial counsel’s failure to reserve exceptions to the charge as constituting ineffective assistance of counsel. “Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion.” Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664) (1987). Since this claim was not raised at the hearing on the motions for new trial or in any of the pleadings in the appellate record, it is deemed waived. In addition, inasmuch as there was no objection to the court’s charge below, we cannot consider appellant’s contention that the charge was erroneous for the first time on appeal. Craig v. State, 205 Ga. App. 856 (424 SE2d 902) (1992).

2. Appellant next contends that the trial court erred in allowing Betty Ralph, appellant’s ex-wife and the victim’s mother, to testify as to her fear of appellant. He further contends that such testimony was evidence of similar transactions, notice of which the State failed to provide.

“ ‘Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and if an item of evidence has a tendency to help establish a fact in issue, that is sufficient to make it relevant and admissible. (Cit.) Evidence of doubtful relevancy or competency should be admitted and its weight left up to the jurors (Cit.)’ [Cit.]” Kirkland v. State, 206 Ga. App. 27, 30 (8) (424 SE2d 638) (1992). “In order for an alleged error to be grounds for reversal, appellant must show not only error, but also ensuing harm.” (Citations and punctuation omitted.) Goodwin v. State, 208 Ga. App. 707, 709 (2) (431 SE2d 473) (1993). Appellant argues that since Ms. Ralph was not the victim, evidence of her state of mind was not relevant and was introduced only to prejudice the jury. The State contends and the record demonstrates that such testimony was introduced to corroborate the victim’s fear of appellant during the period in which the acts of molestation occurred and to explain why the victim was not able to make an outcry for her mother. Therefore, we do not find error in the admission of the testimony, especially in view of the overwhelming evidence of appellant’s guilt which is uncontested on appeal. Id. Furthermore, Ms. Ralph’s testimony regarding her fear of appellant was not evidence of similar transactions as provided in OCGA § 24-9-20. Accordingly, this enumeration is without merit.

Decided. March 7, 1994

Reconsideration denied March 30, 1994

Moore & Davidson, W. Keith Davidson, for appellant.

Daniel J. Porter, District Attorney, Tracy R. Aronovitz, Assis tant District Attorney, for appellee.

3. Finally, appellant contends trial counsel did not “accurately represent” him because counsel failed to call a witness who would have provided a motive for the victim to falsely accuse appellant. At the hearing on the motion for new trial, appellant proffered the testimony of Tammy Keanum, appellant’s daughter, who stated that she had lied five years earlier about appellant molesting her to avoid punishment for running away from home. Tammy testified that she discussed the incident with the victim. Appellant testified that he told defense counsel about Tammy and the nature of her testimony.

“The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. The determination as to which defense witnesses will be called is a matter of trial strategy and tactics.” (Citations and punctuation omitted.) Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991). “[E]rrors in judgment and tactical errors do not constitute denial of effective assistance of counsel.” (Citations and punctuation omitted.) McCarthy v. State, 196 Ga. App. 839, 841 (4) (397 SE2d 178) (1990). “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). Trial counsel averred that he made a tactical decision to call only appellant as a witness in order to secure final closing argument for the defense. Counsel stated that he was never informed of a conversation between Tammy and the victim and that even if he had known, he would not have called her to testify because, in his judgment, the testimony was inadmissible and even if the testimony were admitted, it would not have helped appellant. Thus, the trial court’s finding that appellant received effective assistance of counsel is not clearly erroneous, and the court did not err in denying appellant’s motion for new trial. Harris v. State, 198 Ga. App. 503 (1) (402 SE2d 62) (1991), rev’d on other grounds, 261 Ga. 386 (405 SE2d 482) (1991); York v. State, 207 Ga. App. 494 (2d) (428 SE2d 113) (1993).

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.