text:
    A92A0722.
    SHEPARD et al. v. FEDERAL LAND BANK OF COLUMBIA et al.
    (421 SE2d 763)
   Cooper, Judge.

Appellee Federal Land Bank of Columbia (“FLB”) filed this declaratory judgment action seeking a determination of the ownership and lien interest in a disputed peanut quota. Appellants, owners of a farm in Baker County, claim an interest in the quota. They appeal various adverse rulings entered by the trial court.

“Peanut quotas are established for individual farms pursuant to the Agricultural Adjustment Act of 1938, 7 U.S.C.A. §§ 1281-1393 (the Act). Peanuts grown pursuant to the poundage quota established for a farm (quota peanuts) are valuable because they can be used for food use, which is a higher value use. Non-quota peanuts, known as additional peanuts, can only be used for export or domestic crushing for oil. [Cit.] In order to market any peanuts, the [Agricultural Stabilization and Conservation Service (ASCS)] must issue a marketing card that will show whether the peanuts are ‘quotas’ or ‘additionals.’ Generally, once a quota is established for a farm it will continue to be established for that farm for future crops, except to the extent that the quota is transferred pursuant to agency regulations and the operative statute. . . .” Federal Land Bank of Columbia v. Shepard, 646 FSupp. 1145, 1146 (M.D. Ga. 1986).

The rather involved set of facts surrounding the dispute is as follows: In 1983, the disputed quota was on a farm owned by Frank Hines (“Hines”) in Terrell County. In 1984, Hines and appellants were desirous of moving the quota to appellants’ farm in Baker County; however, pertinent statutes only allow such transfers within the same county or to an adjacent county. Baker County and Terrell County are not adjacent counties; they are separated by Calhoun County. Therefore, Hines transferred the quota to another farm he owned in Calhoun County and sold the Terrell County farm to appellants. With the quota in Calhoun County, appellants’ Baker County farm and Hines’ Calhoun County farm were combined as one farming unit for ASCS purposes; however, the quota was actually grown on the Baker County farm. FLB held security deeds on the Terrell and Calhoun County farms and consented to the transfer but obtained a financing statement on the quota. FLB also held a security deed on appellants’ Baker County farm. Then, in 1985, Hines suffered financial difficulties which resulted in a foreclosure of the Calhoun County farm by the Albany Production Credit Association (“PCA”), which held a second lien on the farm. Appellants moved to enjoin the foreclosure, asserting an interest in the quota by virtue of a lease agreement between Hines and appellants. The court enjoined foreclosure on the quota but permitted foreclosure on the real property. PCA purchased the farm at the foreclosure sale and subsequently sold it to Lonnie and Beverly Pope (“the Popes”), subject to the FLB security deed and expressly excluding the disputed quota. Despite the fact that it never claimed an interest in the quota, PCA also executed a quitclaim deed to appellants, waiving any interest in the quota. The Popes then leased the farm and all quotas to Adams Farms, which began to grow peanuts. Appellants and Adams Farms then requested marketing cards for the same peanuts. Initially, the Calhoun County ASCS determined that based on the quitclaim deed from PCA, it appeared that appellants were the owners of some 300,000 plus pounds of peanuts but that to obtain a quota transfer, appellants must obtain the signatures of the owner of the Calhoun County farm, the operator and any lienholder, recognizing that FLB held a lien on the quota. However, the ASCS also concluded that the quitclaim deed from PCA fulfilled the signature requirement of Mr. Pope as owner and operator, should he decide not to consent. FLB did not consent to the transfer, and the ASCS assigned the disputed quota to the Calhoun County farm, issuing a peanut marketing card to Adams Farms permitting the sale of the quota.

Appellants’ attempts to have the disputed quota transferred to Baker County have been unsuccessful because FLB, as lienholder on the Calhoun County farm, will not consent to a transfer. In 1986, FLB initiated the instant action in the Superior Court of Dougherty County, and the case was moved to federal court. Appellants petitioned the court to enjoin the issuance of the marketing card to Adams Farms. The court determined that appellants did not exhaust their administrative remedies within the ASCS, denied appellants relief and remanded the case to the superior court. Shepard, supra.

In 1991, FLB liquidated the loan which was secured by appellants’ Baker County farm and cancelled the financing statement on the quota. However, FLB did not release its lien on the Calhoun County farm. Appellants then sought a marketing card for the 1991 quota, and the executive director of the state ASCS, Ralph Hudgens (“Hudgens”), like the Calhoun County ASC Committee, determined that the agreement between appellants and the PCA conveyed ownership of the peanut quota to appellants; that the agreement took the place of Mr. Pope’s signature if he refused to consent to a transfer; and also that FLB’s termination of the lien on the Baker farm satisfied the requirement that FLB release its lien on the quota thereby enabling appellants to transfer the quota to Baker County. However, Hudgens subsequently “clarified” those conclusions and stated in a letter to appellants that the existence of the lien on the Baker County farm was irrelevant as to whether or not there was a transfer of a quota from the Calhoun County farm; that the lienholder who must agree to the transfer is the lienholder of the farm where the quota is located; that the lienholder and the owner/operator must agree to the transfer; and that FLB had a lien on the Calhoun County farm but did not sign any quota transfer documents. Hudgens stated further that his clarified position was consistent with the declaration of the director of the national ASCS with oversight responsibilities of all aspects of the federal peanut program. In that declaration, the director concluded that Adams Farms was entitled to the marketing card until the quota is transferred pursuant to applicable regulations, which would include obtaining the consent of the owner, operator and lienholder. He recited further that the issue the local committee must address is not who owns the quota because quotas are established for farms not persons, but who owns, operates and holds a lien on the farm and whether a proper Form 375 has been executed and all other conditions have been met. Appellants are currently pursuing an administrative appeal of the determination of the state ASCS.

Appellants filed a counterclaim against FLB for tortious interference with a contract and asserted cross-claims against the Popes and Adams Farms for tortious interference, conversion, and declaratory relief and against Hines for breach' of contract. The parties filed motions for summary judgment on the main claim and on the counterclaim and cross-claims. The Popes also moved for an order directing appellants to cancel notice of lis pendens. The trial court ruled adversely to appellants on the various motions for summary judgment, denied appellants declaratory relief and granted the order directing the cancellation of the notice of lis pendens. This appeal followed.

1. In their first, second and fifth enumerations of error, appellants argue that the trial court erred in finding no genuine issue of material fact as to the ownership of the quota, whether FLB’s consent was required to effect a transfer and whether FLB had a duty to consent to .the transfer.

“The County Agricultural Stabilization and Conservation (ASC) Committee allocates [quotas] to farms in the county pursuant to the provisions of the Act. [Cit.] The allotment is not made to the individual farm owner. . . . [A]creage allotments are apportioned among farms.” Combustion Engineering v. Norris, 246 Ga. 413, 414 (2) (271 SE2d 813) (1980). “The crop allotments created under the . . . Act ([cit.]), although made transferable under prescribed regulations, are not ordinary intangible property subject to unrestricted alienation.” Conifer Farms v. Brent, 237 Ga. 42, 44 (226 SE2d 585) (1976). The evidence is undisputed that at all times material to this case FLB had a lien on the Calhoun County farm. Nevertheless, appellants contend they own the disputed quota by virtue of their lease agreement with Hines and the quitclaim deed executed by PCA, despite the fact that they do not own the farm to which the quota was allocated, relying on Combustion Engineering v. Norris, supra. Appellants’ reliance is misplaced. In that case, at issue was a contract wherein plaintiff had the option to purchase a farm to which a quota had been allocated. The option did not specifically refer to the quota, and defendant/seller transferred the quota to a farm owned by her brother after plaintiff executed the option to purchase but before the exercise of the option and the final conveyance of the property. The court did not recognize an entitlement to the quota in the absence of the farm to which the quota was assigned. The court concluded that when an entire farm is sold upon which a quota is in effect, the quota runs with the land and passes to the purchaser in the absence of any specific agreement to the contrary and that if an option contract is executed, the owner cannot transfer a quota to a third party without incurring some liability to the holder of the option. Id. at 414-415. Therefore, defendant had a right to transfer the quota before she entered into the option contract, but she lost the right by not specifically reserving it and is thus liable for damages. In the instant case, appellants and Hines attempted to transfer a quota via an adjacent county, and pretermitting the question of whether the transfer was authorized by applicable regulations, there was no transfer to appellants’ farm in Baker County; there was a foreclosure of the Calhoun County farm and a subsequent purchase of the farm by other parties; the ASCS determined that the quota was allocated to the Calhoun County farm; and there was no contractual relationship between appellants and the Popes or Adams Farms. Moreover, FLB held the first lien on the quota and was not a party to the quitclaim executed by PCA.

In addition, review of the trial court’s order reveals that the court did not make a specific finding that any party owned the disputed quota. The court recognized that “[t]he Superior Court of Dougherty County is not the proper venue to determine ownership of the disputed quota.” “The . . . Act provides for review of the decisions of county ACS committees. [Cit.] Such review is declared to be exclusive [cit.], and no court of the United States or of any state has jurisdiction to pass upon the legal validity of any determination of the committee except by the method of review provided. [Cit.]” Conifer Farms, supra at 45.

Appellants’ contention that a genuine issue of material fact exists as to whether FLB released its lien on the quota such that its consent was not required is without merit. For this proposition, appellants rely on the erroneous conclusion reached by Hudgens that the release of the security interest on the Baker County farm satisfied the requirement that appellants obtain FLB’s consent to a transfer. 7 USC § 1358a provides in part that no transfer shall be permitted unless agreed to by lienholders. Furthermore, we agree with the trial court that FLB had no duty to consent to the transfer or to facilitate the execution of the contract between appellants and Hines simply because it was aware of the contract and the steps taken by the parties to effect a transfer.

2. Appellants enumerate as error the trial court’s determination that they failed to exhaust their administrative remedies and contend the proceedings in superior court should have been abated pending the resolution of the matter currently under review on appeal. However, the record contains no request by appellants for a stay in the proceedings nor does the record demonstrate that until the latest appeal, appellants attempted to obtain administrative review of any of the various determinations of the ASCS allocating the quota to the Calhoun County farm. Moreover, the district court based its ruling earlier in the litigation, in part, on a finding that appellants failed to exhaust available administrative remedies. Shepard, supra at 1150. This enumeration is without merit.

3. Appellants also contend the trial court erred in determining they stated no claims against FLB, the Popes and Adams Farms for tortious interference with contract and conversion. “ ‘ “[I]n establishing a cause of action for malicious (or tortious) interference with business relations, a plaintiff . . . must demonstrate that the defendants . . . (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.” (Cits.)’ [Cit.]” Nationwide &c. Svc. v. Thompson Recruitment &c., 183 Ga. App. 678, 679-680 (1) (359 SE2d 737) (1987). FLB, in refusing to release its lien on the Calhoun County farm, is not “acting improperly and without privilege.” Indeed, FLB has not acted at all and has no obligation to gratuitously release the lien and consent to a transfer. Nor is there an obligation that the Popes or Adams Farms consent to a transfer. To the contrary, it appears that appellants’ efforts to obtain a transfer of the quota have been prevented by the applicable statutes and regulations governing transfer of quotas and appellants’ ineffectual attempt with Hines to contractually effect a transfer within the law. Furthermore, we agree with the trial court that the ASCS determined that the quota was properly assigned to the Calhoun County farm and issued marketing cards to Adams Farms; therefore, the Popes and Adams Farms are entitled to the proceeds from the sale of peanuts under the quota and are not liable for tortious interference with contract or conversion. See Shaw v. Hughes, 199 Ga. App. 212 (4a) (404 SE2d 309) (1991).

Judgment affirmed.

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

Decided July 14, 1992

Reconsideration denied July 30, 1992

Greene, Buckley, Jones & McQueen, Ferdinand Buckley, John D. Jones, William D. Matthews, for appellants.

Kirbo & Kendrick, David A. Kendrick, for appellees.


source: Caselaw Access Project

author: Sognier, Chief Judge. Cooper, Judge,

license: Public Domain

text:
    A92A0739.
    CALHOUN COUNTY HOSPITAL AUTHORITY et al. v. WALKER.
    (421 SE2d 777)
   Sognier, Chief Judge.

Rosalyn Walker brought suit in Dougherty County State Court against the Hospital Authority of Calhoun County and Willie Murray to recover damages for injuries incurred when her car collided in Dougherty County with an ambulance driven by Murray and owned by the hospital authority. The trial court denied the defendants’ motion to transfer based on improper venue to Calhoun County, where they both resided, and we granted their application for interlocutory review of that ruling.

1. Appellants contend the trial court erred by denying their motion to transfer based on a finding that appellant hospital authority was a motor common carrier subject to OCGA § 46-7-17 (b), which provides that “any action against any resident or nonresident motor common carrier for damages by reason of any breach of duty . . . may be brought in the county where the cause of action or some part thereof arose.” We agree and reverse.

The statute defining all operative terms used in Title 46 of the Official Code of Georgia Annotated defines motor common carrier as “every person owning, controlling, operating, or managing any motor propelled vehicle, and the lessees, receivers, or trustees of such person, used in the business of transporting for hire of persons or property, or both, otherwise than over permanent rail tracks, on the public highways of Georgia as a common carrier.” OCGA § 46-1-1 (7) (B). “Person” is defined as “any individual, partnership, trust, private or public corporation, municipality, county, political subdivision, public authority, . . .” OCGA § 46-1-1 (10). Given that ambulance services, both private and county owned, have been held by this court to be common carriers, Wideman v. DeKalb County, 200 Ga. App. 624, 629 (1), 632 (6) (409 SE2d 537) (1991), rev’d on other grounds 262 Ga. 210 (416 SE2d 498) (1992); Bricks v. Metro Ambulance Svc., 177 Ga. App. 62, 63 (1) (338 SE2d 438) (1985), it would appear that unless excepted elsewhere, appellant hospital authority was indeed operating its ambulances as a motor common carrier.

However, such an exception is embodied in OCGA § 46-1-1 (7) (C) (viii), which provides that the term motor common carrier shall not include “[mjotor vehicles owned and operated exclusively by the United States government or by this state or any subdivision thereof.” Appellant hospital authority is an instrumentality of Calhoun County, and “ ‘[c]ounties are subdivisions of the state government to which the state parcels its duty of governing the people. (Cits.) They are local, legal, political subdivisions of the state, created out of its territory, and are arms of the state, created, organized, and existing for civil and political purposes, particularly for the purpose of administering locally the general powers and policies of the state. (Cits.) . . .’ [Cit.]” Miree v. United States, 242 Ga. 126, 133 (1) (249 SE2d 573) (1978). This principle has been long established, oft repeated, and frequently stated as a mater of course in both statutes and opinions. See, e.g., OCGA § 33-24-51 (a) (refers to “[a] municipal corporation, a county, or any other political subdivision of this state” (emphasis supplied)); Elbert County v. Ga. Insurers Insolvency Pool, 185 Ga. App. 803, 804 (366 SE2d 153) (1988) (county entitled to make claim upon insolvency pool for covered claim because, as a political subdivision of the state, it is not exempt under statute exempting a “person” having a stipulated net worth of more than $1 million). Thus, appellant hospital authority is an instrumentality of a subdivision of the state, and accordingly it is included in the exemption provided in OCGA § 46-1-1 (7) (C) (viii).

This construction harmonizes the provisions of OCGA § 46-1-1 (7) (B), (7) (C) (viii), and (10). Where there is an apparent conflict between different sections of a statute, it is the duty of a court to reconcile them, if possible, so as to make them consistent and harmonious with each other. Board of Trustees &c. v. Christy, 246 Ga. 553, 554-555 (1) (272 SE2d 288) (1980). In this case, that mandate is easily carried out. OCGA § 46-1-1 is a definitional statute for the entirety of Title 46, which deals with the broad area of public utilities and transportation. Indeed, it is precisely because of the breadth of the application of the definition of “person” in OCGA § 46-1-1 (10) that the legislature found it necessary to enact OCGA § 46-1-1 (7) (C) to exclude certain entities defined in subsection (10) as “persons” from the operation of Chapter 7 of the Title pertaining to motor carriers. Counties, by virtue of their being political subdivisions of the state, are among those excluded by OCGA § 46-1-1 (7) (C) (viii). The legislature is presumed to have acted with the knowledge that under the law of this state counties had long been considered subdivisions of the state, City of Fitzgerald v. Newcomer, 162 Ga. App. 646, 648 (1) (291 SE2d 766) (1982), and thus we attach no significance to the absence of the words “county” and “public authority” in OCGA § 46-1-1 (7) (C) (viii). See generally Nelson v. Spalding County, 249 Ga. 334, 335 (290 SE2d 915) (1982) (construed former state constitutional provision that reserved sovereign immunity only “to the state” to mean such immunity also included both state agencies and counties); see generally Georgia Cas. &c. Co. v. Jernigan, 166 Ga. App. 872, 873-874 (1) (305 SE2d 611) (1983).

Fulton-DeKalb Hosp. Auth. v. Gaither, 241 Ga. 572 (247 SE2d 89) (1978), cited by the dissent, does not require a contrary result. The only question addressed in Gaither was whether county hospital authorities were employers “engaged in business” for purposes of the workers’ compensation law then in effect. Id. at 574. The applicability of Title 46 was not in issue there and was not addressed. Gaither was superseded by the 1980 legislative changes in the definition of employers required to have workers’ compensation insurance, see OCGA § 34-9-1 (3), as recognized in Fulton-DeKalb Hosp. Auth. v. Dean, 169 Ga. App. 277 (312 SE2d 156) (1983). In addition, as pointed out by the dissent in Gaither, id. at 576, local housing authorities, created by the General Assembly in similar fashion, have been held to be instrumentalities of the state. See, e.g., Knowles v. Housing Auth. of Columbus, 212 Ga. 729, 730 (95 SE2d 659) (1956); Culbreath v. Southwest Ga. &c. Housing Auth., 199 Ga. 183, 189 (33 SE2d 684) (1945).

In all interpretations of statutes, we must attempt to ascertain the intention of the legislature. OCGA § 1-3-1; Roman v. Terrell, 195 Ga. App. 219, 221 (3) (a) (393 SE2d 83) (1990). The purpose of the Hospital Authorities Law is “to authorize counties and municipalities to create an organization which could carry out and make more workable the duty which the State owe[s] to its indigent sick.” DeJarnette v. Hosp. Auth. of Albany, 195 Ga. 189, 200 (1) (23 SE2d 716) (1942). Given that hospital authorities are designated by the state to carry out a delegated state function, we cannot justify an interpretation of the statute that would make vehicles owned by such authorities subject to the operation of the motor carrier act when performing these state functions, when identical vehicles, performing identical functions, are exempted merely because they are owned and operated by the state.

2. It follows that since venue as to appellant hospital authority is improper in Dougherty County, it is also improper against appellant Murray. Although Georgia law provides that actions against “joint tort-feasors . . . residing in different counties” may be tried in either county, Ga. Const. Art. VI, Sec. II, Par. IV; OCGA § 9-10-31, the hospital authority and Murray both “reside” in Calhoun County, and thus these provisions do not apply. The trial court erred by denying appellants’ motion to transfer.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Pope, Beasley, Andrews and Johnson, JJ., concur. Carley, P. J., and Cooper, J., dissent.

Decided July 16, 1992

Reconsideration denied July 30, 1992

Watson, Spence, Lowe & Chambless, W. Earl McCall, Joseph W. Dent, for appellants.

Cooper, Judge,

dissenting.

I must respectfully dissent, as in my view appellant hospital authority is not a subdivision of the state and therefore not exempt pursuant to OCGA § 46-1-1 (7) (C) (viii) from venue provisions governing actions against motor common carriers.

The Georgia Supreme Court and this court have recognized that “[l]ocal hospital authorities created under the authority of the Hospital Authorities Law [cit.] are local, not state instrumentalities. The State Constitution empowers counties to operate in the sphere of health care and to utilize local hospital authorities as their own county instrumentalities. [Cit.]” Fulton-DeKalb Hosp. Auth. v. Gaither, 241 Ga. 572, 573 (247 SE2d 89) (1978); Crumpton v. Kelly, 185 Ga. App. 245 (1) (363 SE2d 799) (1987). In Gaither, the issue was whether local hospital authorities were within the statutory definition of “employer” in the Workmen’s Compensation Act. At the time Gaither was decided, the definition of employer included “ ‘instrumentalities and authorities’ of the state.” Id. at 573. The court held that “[hospital authorities] are public corporations having for their object the administration of a portion of the powers of government delegated to [them]. . . .” Id. at 575. Therefore, the Fulton-DeKalb Hospital Authority was deemed an “instrumentality of the county and not of the state.” Id. at 573. Later, in Fulton-DeKalb Hosp. Auth. v. Dean, 169 Ga. App. 277 (312 SE2d 156) (1983), the court noted that the definitional statute of employer was changed to include “ ‘the State of Georgia and all departments, instrumentalities, and authorities thereof; each county within the state, including . . . any political division thereof. . . .’” (Emphasis supplied.) Id. at 277. Thus, a local hospital authority was brought within the definition of employer.

Appellant hospital is an instrumentality of Calhoun County. While I would agree with the majority that a county is a subdivision of the state, without language similar to that discussed above, I cannot concur that the General Assembly intended to exempt local hospital authorities from the venue provisions applicable to motor common carriers.

B. T. Edmonds, Jr., for appellee.

Middleton & Anderson, Elizabeth F. Bunce, David W. Boone, amici curiae.


author: Andrews, Judge.

text:
    A92A0120.
    SPARKS v. ELLIS.
    (421 SE2d 758)
   Andrews, Judge.

The dispute in this case arose out of the dissolution of Gwinnett Oral Surgery Associates (“GOSA”), a professional corporation owned by Sparks and Ellis. The case was tried to a jury, which returned a verdict against Sparks in his individual capacity, and in favor of the other defendants, GOSA and Sparks, P. C. Sparks appeals from the denial of his motion for new trial, or in the alternative for a judgment notwithstanding the verdict.

Viewing the evidence in the light most favorable to the verdict, Ellis purchased half of the stock in GOSA in July 1982. Sparks and Ellis executed five documents in connection with their co-ownership of GOSA. One of those documents was a “Buy Sell Agreement,” signed by both Ellis and Sparks, which provided: “[u]pon the death or termination of employment of a shareholder, such shareholder or his legal representative, as the case may be, shall sell, and the Corporation shall buy, all, but not less than all of the Stock owned by such shareholder for a purchase price equal to the Current Value, or as modified in Section 4.4.4 below.” Section 4.4.4 provided that if the value of the stock could not be agreed upon, then three appraisers would be appointed to determine the value of the stock.

In August 1987, Ellis notified Sparks of his resignation from GOSA, effective November 1987. A dispute concerning the value of Ellis’ stock arose and in March 1988, an appraisal board was selected to resolve the dispute and determine the stock price.

Ellis sought to include good will as part of the valuation of the stock. In response to this, Sparks and GOSA contended that Ellis had created “negative good will.” Accordingly, the attorney who represented Sparks, Sparks, P. C. and GOSA at trial sent a letter to the appraisers which stated that GOSA had determined that Ellis’ presence in the corporation created a negative good will. In the letter, dated April 7, 1989, the attorney, who represented himself at that time as counsel for GOSA, stated:

“To support this contention, GOSA would cite the following items:

“a. As a result of Dr. Ellis’ falsification of a physical examination report, GOSA lost all patient referrals from Dr. James Jordan.

“b. There was an incident involving Dr. Ellis and a young female patient which revolved around indiscretions taken by Dr. Ellis with the patient.”

The appraisers returned their opinion on August 20, 1989, valuing Ellis’ stock at $119,000; a sum which GOSA refused to pay to Ellis.

A separate, related dispute between the parties arose over the equipment which Ellis had purchased for the corporation. As equal shareholders in the corporation, both Ellis and Sparks were obligated to purchase equipment for the three offices which GOSA leased, which obligation each doctor fulfilled by individually purchasing certain equipment and leasing it to GOSA. Ellis had obtained financing for the equipment from two different banks. At some point after Ellis’ resignation, GOSA discontinued lease payments to him.

The procedural history of this case is somewhat convoluted. On May 25, 1988, Ellis filed suit against GOSA seeking return of the equipment. Sparks answered the lawsuit, denied liability and counterclaimed. In the meantime, because Ellis had discontinued payments to the banks on his notes for the equipment, the banks sued Ellis in two separate suits. Ellis added GOSA as a third-party defendant to both cases. Summary judgment was granted to the banks against Ellis. Thereafter Ellis’ three lawsuits were consolidated into one. After the suits were consolidated, Ellis amended his complaint to include claims for breach of contract, conversion, libel, attorney fees, costs and punitive damages and added Sparks and Sparks, P. C. as defendants.

The case was tried to a jury which found Sparks liable for breach of contract in the amount of $119,000, which was the value the appraisers set for Ellis’ stock in GOSA as of the date of his resignation. Further, the jury found Sparks liable for conversion in the amount of $70,000; libel in the amount of $25,000; attorney fees and costs in the amount of $45,000; and punitive damages in the amount of $25,000.

1. In his first two enumerations of error, Sparks contends that the trial court erred in two respects by failing to grant a new trial regarding Ellis’ breach of contract claim. He first argues that a new trial was warranted because the contractual obligation alleged to have been breached was the obligation of GOSA and not that of him individually. Secondly, he claims that the trial court erred in failing to grant a new trial on the contract claim, because Ellis failed to allege in his pleadings that Sparks breached any contractual obligations arising out of the buy-sell agreement, making the verdict for contractual damages against Sparks individually void as a matter of law.

In Sparks’ first argument, he contends that while he was individually a signatory to the buy-sell agreement, there was no contract language making any of the parties jointly and severally liable for the obligations of any other party. Therefore, Sparks claims, under the contract there was no basis for his individual liability based on the provisions of the buy-sell agreement which provided that the corporation would buy out the resigning stockholders’ stock.

Ellis’ claims against Sparks appeared to be based on the contention, to which Sparks conceded, that after Ellis resigned from GOSA, Sparks transferred all of GOSA’s assets to the account of Sparks, P. C. Ellis argues that these actions breached the agreement which had been executed at the outset of his involvement with the corporation and made GOSA unable to fulfill its obligations.

Although Sparks denied liability to Ellis, at trial he stated: “there has never been a denial that I transferred assets and liabilities to [GOSA’s] successor or a divisitive reorganization corporation.” Sparks admitted that part of the purpose of this transfer was to divert money from claims arising out of disputes with Ellis. There was also evidence that Sparks continued to represent himself as president of GOSA after the corporation dissolved.

Pretermitting the question of whether the contract specifically provided for joint and several liability, we find no error in the trial court’s denial of Sparks’ motions since the breach of contract claim against him was valid for several reasons. Sparks admitted transferring GOSA’s assets to another corporation and conceded that part of the purpose of this transfer was to divert money from claims arising out of disputes with Ellis and conceded that after the corporation dissolved he continued to represent himself as president of GOSA.

“Since the evidence was in conflict as to whether [Sparks] signed the contract in an individual or representative capacity, a verdict absolving him from individual liability was not demanded, and the trial court properly denied his motion.” O’Brien’s Irish Pub v. Gerlew Holdings, 175 Ga. App. 162, 164 (332 SE2d 920) (1985). Further, there was evidence of abuse of the corporate form and “[t]he corporate veil may be pierced where it appears that ‘ “the stockholders disregard of the corporate entity made it a mere instrumentality for the transaction of their own affairs; that there is such a unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist; and to adhere to the doctrine of corporate entity would promote injustice or protect fraud.” ’ Farmers Warehouse v. Collins, 220 Ga. 141, 150 (137 SE2d 619) (1964).” Menchio v. Rymer, 179 Ga. App. 852 (1) (348 SE2d 76) (1986); see also Kelley v. Austell Bldg. Supply, 164 Ga. App. 322 (3) (297 SE2d 292) (1982); compare Caton v. Haynes, 260 Ga. 204 (391 SE2d 107) (1990). “Further if the individual who is the principal shareholder or owner of the corporation conducts his private and corporate business on an interchangeable or joint basis as if they were one, then he is without standing to complain when an injured party does the same.” (Punctuation omitted.) Smith v. Hawks, 182 Ga. App. 379 (4) (355 SE2d 669) (1987). Given the instant facts we find Sparks’ first enumeration of error without merit.

In his second argument, Sparks claims that Ellis never alleged a breach of the buy-sell agreement and that the verdict covered issues never raised by the pleadings. After a review of the amended complaint and the pretrial order, which both specifically reference a breach of this agreement, we find this enumeration without merit.

2. In his third enumeration, Sparks claims that the trial court erred in failing to grant his motion for directed verdict and for a judgment notwithstanding the verdict on the issue of libel. The libel claim was premised on the April 7, 1989 letter, which was written to the appraisers by the attorney who represented the defendants at trial. Sparks admitted at trial that he provided the information for the letter to the attorney. Sparks argues that the allegedly libelous statements were both true and privileged, and were made by and on behalf of parties other than Sparks and that his motions were improperly denied.

While there was evidence that both statements were true, there was also evidence in the record that the statements were false. Thus, there was no error on this basis in the trial court’s decision to deny Sparks’ motions since a jury question remained on this issue. Stone v. McMichen, 186 Ga. App. 510 (2) (367 SE2d 839) (1988); see also OCGA § 51-5-6.

In order to analyze the remainder of Sparks’ arguments regarding this enumeration, it is necessary to put the letter in its procedural context. At the time of the letter, April 7, 1989, the sole defendant in the suit was GOSA, yet Sparks admitted at trial that GOSA was dissolved as a corporation in 1988. He concedes that he was president of the corporation and the only person representing GOSA at the time the letter was written. Sparks was added as a defendant to the suit in March 1990.

Sparks claims that the statements were privileged under OCGA §§ 51-5-7 (6) and 51-5-8. He claims that because the statements were made by an attorney to a “quasi judicial forum,” the group of appraisers who were to appraise the stock, the statements were privileged.

The privilege found in OCGA § 51-5-8 provides: “All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.” Although the letter was written after suit was initiated against GOSA, we do not find that it fell within the material protected under this section and thus this privilege did not apply. See generally Bell v. Anderson, 194 Ga. App. 27 (389 SE2d 762) (1989).

Sparks argues that the privilege under OCGA § 51-5-7 (6) protected the statements. That section provides that “[cjomments of counsel, fairly made, on the circumstances of a case in which he is involved and on the conduct of the parties in connection therewith,” are privileged communications. Pretermitting questions regarding the application of that conditional privilege given the facts of this case, see Sherwood v. Boshears, 157 Ga. App. 542, 543 (278 SE2d 124) (1981), we find that it does not apply. We find nothing in the language of the privilege under OCGA § 51-5-7 to indicate that it extends further than to “comments of counsel.” See Atlanta News Pub. Co. v. Medlock, 123 Ga. 714 (51 SE 756) (1905); see also Bishop v. Intl. Paper Co., 173 Ga. App. 34 (2) (325 SE2d 870) (1984). Thus, this privilege is not applicable to Ellis’ claim against Sparks. See generally Quikrete Cos. v. Schelble, 186 Ga. App. 330 (367 SE2d 114) (1988).

3. Sparks argues that the trial court erred in failing to grant his motion for a directed verdict and for judgment notwithstanding the verdict on the issue of conversion. This argument is without merit. Again, our standard of review here is whether there is any evidence to support the verdict. Antique Center of Roswell v. City of Roswell, 196 Ga. App. 894 (3) (397 SE2d 146) (1990).

Ellis’ claim of conversion appears to have been based in large part on equipment which Sparks retained and used after he resigned. Sparks claims that the record is “absolutely silent with regard to any distinct act of dominion over the property in question that is hostile to or inconsistent with Dr. Ellis’ ownership of the property or his right to its possession.” We disagree and find that the record contains sufficient evidence regarding Ellis’ allegation of conversion to uphold the verdict. Spooner v. Lossiah, 185 Ga. App. 876 (366 SE2d 236) (1988); see generally OCGA § 51-10-2.

4. Sparks contends that the trial court erred in failing to grant his motion for new trial because the transcript showed that the jury was confused, that it acted with prejudice, and that it considered the inappropriate question of collectability and returned a verdict against Sparks that was insupportable The record reflects that the jury had questions regarding the verdict form. The jury inquired about the form and the court explained that collectability was not to be a consideration. The verdict form set forth each issue to be decided by the jury in a separate section and is sufficiently clear. Furthermore, after returning their verdict, the court polled the jury and each juror validated the verdict.

OCGA § 9-12-4 provides that “[v]erdiets shall have a reasonable intendment and shall receive a reasonable construction. They shall not be avoided unless from necessity.” We find no such necessity here and this enumeration is without merit.

Decided July 13, 1992

Reconsideration denied July 31, 1992

Sutherland, Asbill & Brennan, William D. Barwick, Lisa C. Foster, Charles T. Lester, Jr., for appellant.

Webb, Tanner & Powell, Anthony O. L. Powell, Ralph L. Taylor III, for appellee.

5. Finally, Sparks claims that the trial court erred in failing to grant his motion for a new trial on the issue of attorney fees and on the issue of punitive damages. First, Sparks argues that because it is necessary to set aside the underlying claims, punitive damages were improperly awarded. Secondly, appellant argues that there was not clear and convincing evidence under § 51-12-5.1 (b) regarding the punitive damages.

Sparks argues that attorney fees were not warranted under OCGA § 13-6-11 because the fact that two of the three defendants were found not liable shows that his position was reasonable. This argument is without merit.

Sparks’ second argument that punitive damages were not warranted is also without merit. The record reflects that the trial court followed the procedure outlined in OCGA § 51-12-5.1 (b) and that there was clear and convincing evidence to support the jury’s conclusion that Sparks’ actions “showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


author: Pope, Judge. Beasley, Judge,

text:
    A92A0140.
    OLDHAM v. THE STATE.
    (422 SE2d 38)
   Pope, Judge.

Appellant/defendant James E. Oldham II appeals his conviction of operating a moving motor vehicle while there was at least 0.12 percent by weight of alcohol in his blood. Defendant was also indicted for vehicular homicide and driving while under the influence of alcohol to the extent that he was a less safe driver, but found not guilty of those charges.

1. We will consider defendant’s first and second enumerations of error together. First defendant contends the evidence was insufficient to allow a rational trier of fact to find that defendant was operating a moving motor vehicle while there was at least 0.12 percent by weight of alcohol in his blood. In his second enumeration of error, defendant argues the trial court erred by refusing to allow him to introduce the results of a blood/alcohol test.

Defendant admitted that he consumed several beers on the night in question. Defendant further testified that after consuming those beers he drove his vehicle accompanied by a friend, who was killed when defendant lost control of his vehicle and the vehicle struck a guard rail. The record reveals that approximately one hour after the collision defendant’s blood was tested for the presence of alcohol and his blood/alcohol concentration was determined to be .129 percent. The State admitted that test result into evidence without objection.

Defendant sought to introduce the results of a second blood/alcohol test allegedly administered two minutes after the first test. That test showed a .11 percent blood/alcohol concentration level. The trial court refused to allow the document containing the test result into evidence.

When deciding whether the results of an alcohol concentration level test should be admitted into evidence, the trial court must engage in a two-part analysis. First, the trial court must decide if the test result must comply with the dictates of OCGA § 40-6-392. In that statute, the Georgia legislature set forth when test results for alcohol or drugs would be deemed valid and admissible evidence “in a civil or criminal action arising out of events where a person is allegedly operating a motor vehicle under the influence of alcohol or drugs.” Perano v. State, 250 Ga. 704, 707 (300 SE2d 668) (1983). As the Georgia Supreme Court recognized in Perano, the procedures outlined in that statute are limited to those tests performed at the request or direction of a law enforcement officer. Id. When an alcohol level concentration test is performed at the request or direction of a law enforcement officer and complies with the dictates of that statute, it is admissible.

Often, however, a party seeks to admit at a trial the results of an alcohol concentration level test which was not performed at either the request or direction of a law enforcement officer. Those tests are not subject to the dictates of OCGA § 40-6-392 and the party seeking to admit the test results must satisfy the court that the results are admissible pursuant to the rules of evidence. Jackson v. State, 196 Ga. App. 724 (397 SE2d 13) (1990); Bynum v. Standard Oil Co., 157 Ga. App. 819, 820 (2) (278 SE2d 669) (1981).

The most frequent objection posed to bar the admission of such test results is that the test results are hearsay and therefore cannot be admitted into evidence. Documentary evidence of a test designed to measure a person’s alcohol concentration level may be admitted into evidence under the business records exception to the hearsay rule, when the party seeking to admit the test results lays a proper foundation by offering the testimony of a witness who is familiar with the method of record keeping, who can therefore testify that the entry of the test result was made in the regular course of business at the time the test was conducted or within a reasonable time thereafter. Wilson v. Childers, 174 Ga. App. 179, 180 (329 SE2d 503) (1985); Venenga v. State, 163 Ga. App. 161 (3) (293 SE2d 553) (1982). It is not necessary to have the person who performed the test or the person who ordered the test to testify, because the test results are purely factual data. The numerical result (alcohol concentration level) is determined by the machine used to administer the test, not by the person who performs the test. Our statutes then determine what legal conclusion may be drawn from the test results. See Walters v. State, 195 Ga. App. 434 (6) (394 SE2d 105) (1990) (holding that the results of a breath test performed on an Intoximeter 3000 were admissible because the analysis of defendant’s breath was created by the machine rather than by the trooper who administered the test).

Business records containing only test results must be distinguished from those records that contain conclusions and opinions in addition to the test results or in lieu of the test results. See Johnson v. State, 256 Ga. 259, 260 (347 SE2d 584) (1986). Such opinions, conclusions and diagnoses constitute additional hearsay and unless the person whose diagnosis, conclusion or opinion which is contained on the business record is available to testify and can be qualified as an expert capable of rendering such an opinion, the portion of the business record containing the hearsay is inadmissible. Moody v. State, 244 Ga. 247 (4) (260 SE2d 11) (1979); Spivey v. State, 184 Ga. App. 118 (361 SE2d 9) (1987).

When defendant sought to introduce the document containing the second test result, the State objected to the document solely on the basis that it contained an opinion. A review of the document, however, reveals that it contains only the numerical result of the alcohol concentration level test performed on defendant’s blood, which is not an opinion. The document does not contain opinions, conclusions or diagnoses requiring expert testimony. Furthermore, the defendant laid a proper foundation for the admission of the document through the testimony of the custodian of records of the laboratory where the second test was conducted. Accordingly, the trial court erred by refusing to admit this test into evidence. The exclusion of this test result cannot be harmless error in this case since the second test showing defendant’s blood/alcohol concentration level to be .11 percent was conducted only two minutes after the first test showing a .129 percent blood/alcohol concentration level and would tend to create doubt concerning the accuracy of the first test.

The dissent concedes that it may be inferred from the document that the blood sample used for the test in question was drawn at 5:42 a.m. on January 26, 1990. The top portion of the document was obviously generated by computer. In the block labelled time the numbers “0542” appear. A reference to time in this manner, without the use of a separating colon and with the beginning number being “0,” clearly indicates that the time given was on a 24-hour clock, as is used by the military. All persons familiar with 24-hour clocks or military time would know that the time the blood was drawn was 5:42 a.m.

The dissent also posits that because the records custodian did not testify that the test results were recorded on the document at the time of the test or within a reasonable time thereafter, the document was properly excluded. While it is not indisputable from the face of the document, the document indicates that the results were recorded on the same day the test was administered. Furthermore, the State did not object to the admission of the document in question on that basis and such an objection is deemed waived. As the author of the dissent recently recognized when an objection is not lodged at trial, it should not be entertained on appeal. Banks v. State, 201 Ga. App. 266, 267 (1) (410 SE2d 818) (1991).

The dissent suggests the type of test used to determine the defendant’s alcohol concentration level is determinative of whether the results are factual data or opinion. Although the dissent is correct that there are both gas and chemical tests used to determine blood/ alcohol concentration levels, machines are used in each kind of test to measure the level of alcohol concentration. The numerical determination of the alcohol concentration level is objective factual data regardless of the type of test performed. Our courts have recognized the reliability of both gas and chemical tests.

The dissent mischaracterizes the testimony of the forensic chemist who performed the first test of defendant’s blood/alcohol concentration level. He was asked if based on the test results he had an opinion concerning defendant’s blood/alcohol level. He testified that based upon the test results his opinion was defendant’s blood had an alcohol concentration level of 12 grams per 100 milliliters of blood. He formed an opinion based upon the test results, but the results themselves are not opinions.

Finally, the dissent takes issue with disapproving ,our decisions in Bynum v. Standard Oil Co., Spivey v. State, and Jackson v. State based on factual distinctions between those cases and this case. There will always be factual distinctions between our cases; however, all these cases dealt with the issue of admissibility of test results. It is our duty to the bench and bar of this state to give clear guidance on this issue.

2. Our holding in Division 1 renders it unnecessary to address defendant’s remaining enumeration of error.

Judgment reversed.

Sognier, C. J., Birdsong, P. J., Carley, P. J., Cooper and Andrews, JJ., concur. McMurray, P. J., concurs in judgment only. Beasley and Johnson, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent because exclusion of the document proffered by defendant is not reversible error.

In general, rulings on the challenged admission or exclusion of evidence are in the sound discretion of the trial judge. Alexander v. State, 239 Ga. 108, 110 (1) (236 SE2d 83) (1977). If evidence is excluded which the offering party has a right to put before the jury, however, the exclusion will be error and reversible if material to the verdict. See, e.g., Georgia Bldg. Svc. v. Perry, 193 Ga. App. 288, 290 (1a & b) (387 SE2d 898) (1989); Minnick v. Lee, 174 Ga. App. 182, 184 (1) (329 SE2d 548) (1985).

Defendant sought to introduce, through the custodian of records at a clinical laboratory, a report which on its face shows an ethyl alcohol toxicology study was conducted on the blood of a James Oldham and the quantitation was “0.11% (toxic is > 0.20%).” Although there are several names and initials on the document, it is not indicated who performed the study or wrote the report. Nor is the type of study recorded. Some of the entries are handwritten and some are computer entries. One computer entry as “date collected” is “01/26/90” and “time” is “0542.” It does not indicate whether this is a.m. or p.m. Although all other times recorded on the document are p.m., it may reasonably be inferred that “0542” was the standard equivalent, as used in the military, of 5:42 a.m. Nevertheless, who took the blood sample is unknown and there is no chain of custody shown.

The phlebotomist who drew the sample which, according to the hospital medical lab technician, tested at .129 testified that she drew the blood at 5:40 a.m. and did not know of anyone taking another sample at 5:42 a.m.

The records custodian did not testify that the record was made at the time of the test or within a reasonable time thereafter, the third prerequisite to the entry of business records. OCGA § 24-3-14 (b). The notation on the document that a telephone report of the results was made at 11:20 p.m. on January 26, 1990, does not establish the time when the document was generated. Aside from this, however, the document would have been properly excluded. It was offered to prove that some unknown scientific test was conducted on blood which was drawn by some unknown person at 5:42 a.m. on January 26, 1990, and transmitted by some unknown means and method to a private laboratory some distance from where defendant was hospitalized and that the test showed that the blood contained 0.11 percent ethyl alcohol.

Without knowing what procedure was employed, the test for admissibility of scientific evidence cannot be applied. See Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516) (1991).

In addition, the absence of the test’s identity makes it impossible to conclude that the result was not based on opinion but was merely the recording of objective factual data. The majority assumes that the numerical result of 0.11 percent was determined by “the machine” used to administer the test, but the method of testing is unknown. Whether it was the type of test administered in the case of the hospital-tested blood, which the lab technician testified was a chemical reagent test conducted on a clinical analyzer known as an A.C.A. machine, or instead was a mass spectromoscope test, or a gas chromatography test or some other method, is not known. The report uses unexplained code in the block labeled “test.” According to the testimony of a forensic chemist who performed a gas chromatography test on the blood of the deceased and the same on the blood of appellant, the results of the type test he performed are opinion. Opinions drawn by experts in scientific testing must be subject to cross-examination. Eason v. State, 260 Ga. 445 (396 SE2d 492) (1990).

The three cases which the court disapproves to an extent do not deserve such disapproval and should be retained as they appear. They do not deal with the same question.

Bynum v. Standard Oil Co., 157 Ga. App. 819, 820 (2) (278 SE2d 669) (1981), dealt with a hospital record of a test ordered by the physician for the purpose of determining what type anesthesia to use. It thus had some foundation and demonstrated indicia of reliability besides being a hospital record. This case, on the other hand, deals with an outside laboratory test performed at an unknown person’s request (the report just shows that the donor’s doctor is Barlow; it does not show that he ordered this additional test). It also does not show that it was performed for medical treatment; the most it shows is that its result was given to an unidentified person as a telephone report over 17 hours after the wreck.

Spivey v. State, 184 Ga. App. 118 (361 SE2d 9) (1987), held that a computer printout documenting the results of a blood alcohol test would be admissible as a properly-foundationed business record but that it was not in this case because it contained a diagnostic conclusion. The latter would be subject to cross-examination, so the person who drew the conclusion would have to be present in order for the conclusion to be tested. In this case we are not even dealing with a blood testing machine’s computer printout of test results produced by the testing machine, but with a handwritten report. The latter is not a document produced by a testing machine.

Decided July 16, 1992

Reconsideration denied July 31, 1992

Frank J. Petrella, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

In Jackson v. State, 196 Ga. App. 724 (397 SE2d 13) (1990), the emergency room treating doctor testified that he ordered the test, and that he did so in order to take blood alcohol level into account in making medical treatment decisions. Thus again, the record had indicia of reliability even though it was hearsay, because it was made for the doctor to act on in treating his patient. That circumstance was not shown here. Moreover, the record in Jackson was the hospital’s record; here it is just the record of an outside laboratory.

Assuming a proper foundation was laid for a business record, it must be a business record which of itself contains the facts sought to be conveyed. Here, the business record is incomplete. Testimony would be needed to explain what defendant wishes it to show, i.e., that at 5:42 a.m. his blood alcohol content was 0.11 percent by weight, according to a judicially-recognized and objective scientific test conducted by a method which automatically and mechanically, produced that measurement without the necessity of expert opinion.

The court did not abuse its discretion in excluding it. Without even considering that the accuracy of the measurement, the reliability of the test, and the relevancy of the document (neither defendant nor anyone else testified that blood was drawn from him at 5:42 a.m.) could not be tested, which objections were not raised, the court did not abuse its discretion in excluding the document because it was not shown that its most crucial aspect was not a conclusion reached or an opinion drawn by the application of the tester’s expertise.

I arp authorized to state that Judge Johnson joins in this dissent.

       To the extent these cases suggest that the test results were only admissible because they were ordered for the purpose of providing the defendants with medical treatment, we disapprove of those cases.

       To the extent our decision in Spivey v. State, supra, can be read as holding that the test results constituted an opinion requiring the testimony of the person performing the test and recording the results, we disapprove of that case.

       The document indicates that a telephone report of the test results was made at 11:20 p.m. on January 26, 1990.


author: Andrews, Judge. Beasley, Judge,

text:
    A92A0141.
    SOUTHERN GENERAL INSURANCE COMPANY v. DAVIS.
    (421 SE2d 780)
   Andrews, Judge.

Southern General Insurance Company, the uninsured motorist carrier (UMC), was granted interlocutory appeal from the denial of its motion for summary judgment in this “John Doe” negligence suit brought by its insured, Davis. The suit stems from a hit and run automobile collision in which John Doe allegedly was the offending driver. Prior to filing the present suit in superior court, Davis filed a similar suit in state court against Park, who he then alleged was the owner and operator of the automobile which hit and damaged his parked car. The UMC was not served, Park did not respond, and Davis obtained a $10,000 default judgment. Several months later, Davis filed the present action and served the UMC.

In the first suit, Davis obtained the default judgment against Park based on a complaint which alleged that “William K. Park did so negligently operate his vehicle as to be the sole proximate cause of a collision with the plaintiff’s parked vehicle.” In the present suit, describing the same accident, Davis alleged that “John Doe did so negligently operate a vehicle as to be the sole proximate cause of a collision with the plaintiff’s parked vehicle.” The UMC sought summary judgment on the basis that: (1) Davis failed to satisfy the statutory requirement of OCGA § 33-7-11 (d) to serve the UMC with a copy of the previous action in which Park was named as the owner/ operator of the automobile causing the injury, and (2) because the record shows that Park and the John Doe defendant in the present suit are one and the same person, Davis is estopped from collecting benefits from the UMC by bringing, in effect, the same action against Park in the guise of a John Doe defendant in an effort to avoid the failure to serve the UMC in the first action.

The default judgment in the first suit established Park’s liability on the basis that he negligently operated the automobile in the accident. See Stroud v. Elias, 247 Ga. 191, 193 (275 SE2d 46) (1981) (default judgment operates as admission by the defendant of the truth of definite allegations in the complaint, and of fair inferences and conclusions of fact to be drawn from the allegations). Davis now claims, without any supporting evidence in the record, that Park was the owner but not the operator of the vehicle, and that the present suit is not against Park, but against an unknown John Doe who operated Park’s vehicle in the accident. Davis contended in his statement of material facts not in dispute that Park was the owner and John Doe was the driver of the offending vehicle. Contentions as to undisputed material facts under Rule 6.5 of the Uniform State Court Rules are not evidence for purposes of summary judgment, nor does any lack of response to such contentions amount to an admission of fact. See SPS Indus. v. Atlantic Steel Co., 186 Ga. App. 94, 98-99 (366 SE2d 410) (1988); Waits v. Makowski, 191 Ga. App. 794, 796 (383 SE2d 175) (1989) . On the other hand, the existence of the default judgment against Park, based on allegations in the previous complaint that Park negligently operated the vehicle in the accident, was accepted as true by both parties as set forth in the statement of facts contained in the UMC’s brief on appeal. “Except as controverted, the statement of facts by the appellant may be accepted by this Court as being prima facie true.” Court of Appeals Rule 15 (b) (1); Bentley-Kessinger, Inc. v. Jones, 186 Ga. App. 466, 467 (367 SE2d 317) (1988). Evidence that Davis obtained a default judgment against Park on the basis that he operated the vehicle, is a sufficient prima facie showing that Park is one and the same with the John Doe alleged by Davis to be the operator of the vehicle in the present suit. The only logical conclusion that can be drawn from the record as it stands is that only one person operated the vehicle in the accident, and that person, as established by the previous default judgment, was Park. The burden in resisting summary judgment was shifted to Davis to show that Park was not the John Doe operator of the vehicle in the present suit. See Weldon v. Del Taco Corp., 194 Ga. App. 174 (390 SE2d 87) (1990) (once movant has made prima facie showing of entitlement to summary judgment, burden shifts to non-movant to come forward with evidence to show issue of fact); OCGA § 9-11-56 (e).

The service requirement of OCGA § 33-7-11 (d) is “a statutory prerequisite a plaintiff must fulfill in order to collect uninsured motorist benefits from the UMC following a tort judgment in favor of the plaintiff.” Bohannon v. Futrell, 189 Ga. App. 340, 342 (375 SE2d 637) (1988). Davis failed to serve Southern General as the UMC in the previous suit resulting in a default judgment against Park, and having failed to establish a factual issue in this case by coming forward with evidence to rebut the prima facie showing that Park and the present John Doe defendant are the same person. Accordingly, Davis is barred by his previous failure to satisfy the statutory prerequisite of OCGA § 33-7-11 (d) from collecting benefits from Southern General in the present action. Southern General was entitled to summary judgment.

Judgment reversed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper and Johnson, JJ., concur. Carley, P. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

The premise for each of the UMC’s two bases for summary judgment is and must be that Park and the John Doe motorist are the same person, for there is no statutory bar under OCGA § 33-7-11 or otherwise for a plaintiff, after obtaining a default judgment against a known tortfeasor, to bring a second similar action against an unknown joint tortfeasor and to then perfect service on plaintiff’s uninsured motorist carrier. Compare Champion v. Southern Gen. Ins. Co., 198 Ga. App. 129 (401 SE2d 36) (1990), in which the insurer did not learn of the suit against its insured until after final judgment of default against the insured. Compare also Smith v. Allstate Ins. Co., 199 Ga. App. 264 (404 SE2d 593) (1991) (physical precedent) and Bohannon v. Futrell, 189 Ga. App. 340 (375 SE2d 637) (1988), which involved a single alleged tortfeasor. Estoppel by judgment does not apply absent an identity of parties. See Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 345 (2) (270 SE2d 883) (1980).

The UMC did not produce any evidence that Park and John Doe were the same individual. At the summary judgment hearing the UMC asserted the identity of parties as the same and Davis argued the existence of evidence to the contrary, but neither side produced any evidence on this issue at any time. The plaintiff, in his statement of material facts “not in dispute,” asserts that Park was the owner and John Doe was the driver of the offending vehicle.

The UMC as movant had the burden of showing no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to Davis, entitled the UMC to judgment in its favor as a matter of law. See Demarest v. Moore, 201 Ga. App. 90, 91 (1) (410 SE2d 191) (1991). If defendant’s identity, as not being the Park in the earlier suit, had been an essential element of plaintiff’s case, the UMC as defendant could have relied on the absence of Davis’ evidence in this regard to assert entitlement to judgment in the UMC’s favor as a matter of law. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), which established that a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case in order to obtain summary judgment. However, showing John Doe to be a person other than Park is not an element of plaintiff’s case and thus not his burden at trial. The identity of the parties as one person is a defense, so the UMC has the burden of proof. The record fails to show conclusively that the defendant in the first suit is the “John Doe” of the present action. Summary judgment was not awardable.

If John Doe was the driver, the UMC cannot escape liability by showing that another person did not answer an earlier lawsuit claiming that the other person was the driver. The default judgment did not constitute conclusive proof against plaintiff that such was fact. It operated instead as an admission by Park, for the purpose of the suit against him, of the truth of the allegations of fact. Stroud v. Elias, 247 Ga. 191, 193 (275 SE2d 46) (1981). Moroever, as repeated in Stroud, supra, the default judgment does not admit conclusions of law in the complaint. Negligence and sole proximate cause are legal, not factual, issues.

If the UMC establishes at trial that Park was the driver, of course, it will not be liable. The denial of summary judgment should be affirmed.

Decided July 16, 1992

Reconsideration denied July 31, 1992.

Freeman & Hawkins, Barry S. Noeltner, for appellant.

Giddens, Davidson, Mitchell & Eaton, Earl A. Davidson, for appellee.

I am authorized to state that Presiding Judge Carley joins in this dissent.