text:
    A91A0548.
    HICKS v. THE STATE.
    (409 SE2d 82)
   Pope, Judge.

Defendant William Michael Hicks appeals from his conviction for child molestation. Defendant was first tried and convicted for molesting his stepdaughter in 1984. After an unsuccessful appeal to this court, defendant filed a habeas corpus petition with the Superior Court of Richmond County, Georgia, which was granted. Defendant was retried in May 1989 and convicted again.

Prior to the second trial, the trial court issued an order sua sponte on May 8, 1989, in which he held that “[d]ue to the nature of the threats and the known past mental history of the defendant, the court deems it necessary that extreme caution be taken for the protection of everyone concerned with the trial of this case. . . . Wherefore, it is ordered that defendant shall be physically restrained at all times during the trial of this case. . . .” (Indention omitted.) On that same day, the trial court held a hearing in which it heard, inter alia, defense counsel’s objections to the use of restraints. Defendant was shackled throughout his trial.

On appeal, defendant contends that the trial court erred in refusing to permit defendant to appear in court during trial without restraints and by failing to instruct the jury to disregard the restraints when considering defendant’s guilt or innocence. We must agree that the use of restraints in this case and the trial court’s failure to provide curative instructions to the jury concerning the use of restraints on defendant constitutes reversible error in this case.

As this court recently noted in Mapp v. State, 197 Ga. App. 7 (397 SE2d 476) (1990): “ ‘It is well established that “the accused, while in the presence of the jury, should be free of indicia of guilt such as wearing shackles or prison garb, or being surrounded by uniformed security personnel, or anything else that might infringe upon the presumption that he is innocent. (Cit.)” ’ Martinez v. State, 189 Ga. App. 69 (2) (375 SE2d 123) (1988). ‘At trial, where there is good and sufficient cause, the court has discretion in requiring a defendant to be . . . shackled for security reasons. (Cits.) Abuse of discretion is the test on appeal where restraining devices have been used in the trial court. (Cit.)’ Dennis v. State, 170 Ga. App. 630 (3) (317 SE2d 874) (1984).

Art. I, Sec. I, Par. XI of the Georgia Constitution mandates that ‘(i)n criminal cases, the defendant shall have a public and speedy trial by an impartial jury.’ “‘(A) defendant being tried for a criminal offense on a plea of not guilty was entitled, at common law, to make his appearance free from all shackles or bonds. This is also the present rule, and the right is recognized as an important component of a fair and impartial trial.” (Cit.)’ McKenzey v. State, 138 Ga. App. 88, 89 (225 SE2d 512) (1976). ‘ “(O)ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on the grounds of official suspicion, indictment, continued custody or other circumstances not adduced as proof at trial.” (Cit.)’ Holbrook v. Flynn, 475 U. S. 560, 567 (106 SC 1340, 89 LE2d 525) (1986).” Id. at 7.

In this case, defendant admitted during a pretrial hearing that while he was incarcerated following his first trial, he wrote certain letters in which he threatened to “serve justice on those that destroyed my daughter, wife, and happy home” and discussed how “[t]he small town ended our happy, carefree world, and I fully intend to end theirs, or at least [wjreck it somewhat. This sounds sick. And it is, but I am sick, I’m sick of my daughter [having] to suffer for things she had no control over, I’m sick of what I’ve seen, but most of all I’m sick of everyone turning a deaf ear. So I’ve [come] to the conclusion that [vengeance] is just when justice is void.” Certainly, such threats, especially in light of recent attacks against courts and judges, should not have been taken lightly by the court and it was reasonable for the court to impose additional security measures in this case. The record discloses, however, that the court neither considered intermediate security measures or alternate restraints even though defense counsel offered to suggest such measures for the court’s consideration nor did the court take precautions to shield the restraints from the jury’s view.

Defendant’s physical stature is not threatening in itself, as defendant is five feet six inches tall and weighs approximately 155 pounds. Furthermore, defendant’s left leg was totally paralyzed and his left arm was partially paralyzed at the time of trial. Defendant did not attempt to escape, make any verbal outburst or exhibit violent behavior either during or after his first trial. The Sheriff of Madison County testified that two uniformed deputies and he would be present during the trial and all of them would be armed. He further testified that two bailiffs would be present in the courtroom during trial. Thus, while additional security measures may have been necessitated by defendant’s threatening letters, the use of obvious physical restraints was an abuse of discretion in this case. Accord Potts v. State, 259 Ga. 96 (3) (376 SE2d 851), cert. denied, _U. S__ (110 SC 214, 107 LE2d 166) (1989); Mapp v. State, supra; McKenzey v. State, 138 Ga. App. 88 (1b) (225 SE2d 512) (1976). Cf. Hicks v. State, 256 Ga. 715 (9) (352 SE2d 762), cert. denied, 482 U. S. 931 (107 SC 3220, 96 LE2d 706) (1987); Allen v. State, 235 Ga. 709 (221 SE2d 405) (1975); Barefoot v. State, 175 Ga. App. 131 (3) (333 SE2d 13) (1985); Dennis v. State, 170 Ga. App. 630 (317 SE2d 874) (1984).

Decided July 11, 1991

Reconsideration denied July 23, 1991.

Floyd W. Keeble, Jr., David R. Sicay-Perrow, for appellant.

Lindsay A. Tise, Jr., District Attorney, Francis J. George, Assistant District Attorney, for appellee.

Furthermore, the decisions of this court make it clear that when physical restraints are necessary and are observed by the jury in a criminal case, the trial court must instruct the jury that the use of physical restraints on the defendant has no bearing on the defendant’s guilt or innocence and should not be considered by them during their deliberations. Cf. Barefoot v. State, supra; Dennis v. State, supra; McKenzey v. State, supra. The record reveals that the trial court failed to so instruct the jury. For both these reasons, this case is remanded for a new trial.

Judgment reversed.

Cooper, J., concurs. Birdsong, P. J., concurs in judgment only.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A91A0636.
    SECKINGER v. HOLTZENDORF et al.
    (409 SE2d 76)
   Sognier, Chief Judge.

R. L. Holtzendorf and Agnes Holtzendorf brought suit against Malcolm Seckinger and others for fraud, misrepresentation, and civil conspiracy allegedly arising out of a real estate transaction. Seckinger answered and counterclaimed for abusive litigation, seeking attorney fees, expenses of litigation, and $1 million in damages to his peace, happiness, and feelings. The trial court granted Seckinger’s motion for summary judgment as to the Holtzendorfs’ complaint, and we affirmed in Holtzendorf v. Seckinger, 195 Ga. App. 177 (393 SE2d 13) (1990). Subsequently, the trial court granted the Holtzendorfs’ motion for summary judgment on Seckinger’s abusive litigation counterclaim, and he appeals.

Appellant contends that because the trial court granted his motion for summary judgment on appellees’ complaint and that ruling was affirmed in this court, the trial court erred when it subsequently granted appellees’ motion for summary judgment on appellant’s abusive litigation counterclaim. The Supreme Court in Porter v. Felker, 261 Ga. 421 (405 SE2d 31) (1991) has overruled the principle set forth in a line of cases in this court that the denial of a defendant’s motion for summary judgment on the plaintiff’s complaint constitutes a “binding determination,” id. at 422 (2), that the plaintiff’s claim did not lack substantial justification. See, e.g., Contractors’ Bldg. Supply v. Gwinnett Sash & Door, 199 Ga. App. 38, 41 (4) (403 SE2d 844) (1991); Felker v. Fenlason, 197 Ga. App. 476, 477 (2) (398 SE2d 754) (1990); Reynolds v. First Port City Bank, 196 Ga. App. 63 (2) (395 SE2d 262) (1990); Bouchard v. Fowler, 193 Ga. App. 697-698 (388 SE2d 874) (1989); Biosphere Indus. v. Oxford Chemicals, 190 Ga. App. 613, 614-615 (379 SE2d 555) (1989). Because trial courts are not “infallible” when determining whether questions of fact exist on motions for summary judgment, Porter, supra at 422 (2), a trial court’s ruling on a defendant’s motion for summary judgment on a plaintiff’s complaint does not control the merits of a subsequent motion for summary judgment on the defendant’s abusive litigation counterclaim arising out of the filing of that complaint. Id.

While this court has not explicitly addressed the converse of the situation in Porter, i.e., the impact of the grant of a defendant’s motion for summary judgment on a plaintiff’s complaint on a subsequent motion for summary judgment as to the defendant’s abusive litigation counterclaim, we have implicitly done so in cases upholding the grant of summary judgment to a plaintiff on the defendant’s abusive litigation counterclaim while also affirming the grant of summary judgment to the defendant on the plaintiff’s complaint. E.g., Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790 (359 SE2d 920) (1987) (physical precedent); Howell v. Bank of Fitzgerald, 181 Ga. App. 57 (351 SE2d 258) (1986). The holdings in those cases are consistent with Porter, supra, in the implicit recognition that in ruling on motions for summary judgment as to plaintiffs’ complaints, trial courts are not “infallible” and must not be bound by the earlier summary judgment rulings when addressing the merits of claims for relief for abusive litigation. Id. at 422 (2).

Accordingly, this court’s holding in Holtzendorf, supra, that there was “no evidence” to support appellees’ claim, did not extend beyond an affirmance of the grant of summary judgment in appellant’s favor and did not amount to a finding, binding on the trial court, that appellees’ case was wholly without merit. The recitation in an appellate decision that there was “no evidence” adduced to create a genuine issue of material fact on motion for summary judgment does not invoke any magical determination that the defendant obtaining the summary judgment is also entitled to judgment on his or her abusive litigation counterclaim, as demonstrated by the holdings in Guernsey Petroleum, supra at 792 (2) (a) and Howell, supra at 58, both of which reflect a finding by a court of “no evidence.” Appellant fails to recognize that the grant of a motion for summary judgment on the plaintiff’s complaint establishes only that as to one essential element of the plaintiff’s claim, the plaintiff failed to adduce evidence that a genuine issue of material fact exists, notwithstanding any issue of material fact regarding any other essential element. See OCGA § 9-11-56; Porter, supra at (1). The amount of evidence adduced by the parties necessarily varies in each case, and thus a ruling that the plaintiff failed to produce evidence creating a particular issue of material fact cannot be dispositive of the issue whether filing the complaint constituted abusive litigation. Instead, each case must be individually scrutinized in order to make that determination.

In his counterclaim seeking attorney fees, expenses of litigation, and $1 million in damages to his peace, happiness, and feelings, appellant alleged that appellees’ complaint contained such a complete absence of any justiciable issue of law or fact that it could not reasonably be believed that the court would accept the asserted claims and that it lacked substantial justification and was imposed for delay or harassment. See OCGA § 9-15-14; Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). “Where the issue of abusive litigation can be determined as a matter of law, summary judgment is an appropriate remedy. [Cit.]” Webb v. State Auto. Mut. Ins. Co., 198 Ga. App. 609, 611 (402 SE2d 352) (1991). Thus, appellees, as abusive litigation counterclaim defendant/movants, were entitled to a grant of their motion for summary judgment upon a showing to the court “that any essential element [of appellant’s counterclaim], under any theory of recovery, [was] missing and incapable of proof.” Porter, supra at (1).

The record that existed on appellant’s motion for summary judgment on appellees’ complaint reveals hotly contested versions of what the parties considered to have transpired in the complex real estate transaction which was the subject of appellees’ claim (summarized in Holtzendorf, supra). Given that the law requires only slight circumstances to establish fraud and conspiracy, see OCGA § 23-2-57; Grainger v. Jackson, 122 Ga. App. 123, 127 (176 SE2d 279) (1970), we cannot agree with appellant that appellees’ claims, especially their attempt to broaden the parameters of civil conspiracy, were not sufficient to present a justiciable issue of fact or law under OCGA § 9-15-14 (b), see Lane v. K-Mart Corp., 190 Ga. App. 113, 115-116 (378 SE2d 136) (1989) (Sognier, J., concurring specially), or lacked substantial justification under OCGA § 9-15-14 (b) and Yost, supra at 96 (13). Furthermore, appellees filed an affidavit in which they averred that they are not lawyers and have no legal training; that in bringing suit against appellant, they acted on the legal advice of their counsel that they had a good case against appellant; and that they felt justified in relying on the advice of their counsel because of his previous positions as city attorney, state court judge, and a law assistant for the Georgia Court of Appeals. Appellant introduced no additional evidence to controvert this affidavit. Compare Wheat v. First Union Nat. Bank, 196 Ga. App. 26, 27-28 (2) (395 SE2d 351) (1990).

Decided July 9, 1991

Reconsideration denied July 23, 1991

Karsman, Brooks & Callaway, Stanley M. Karsman, D. Campbell Bowman, Jr., for appellant.

George M. Rountree, Eugene Highsmith, for appellees.

Under the record before the trial court, the trial judge was authorized to find as a matter of law that appellees had pierced an essential element of appellant’s abusive litigation claim and were thus entitled to the grant of summary judgment thereon. Wheat, supra. Compare Woodall v. Hayt, Hayt & Landau, 198 Ga. App. 624, 626 (402 SE2d 359) (1991).

Judgment affirmed.

Andrews, J., concurs. McMurray, P. J., concurs in the judgment only.

       We note that Seckinger’s counterclaim for abusive litigation (as distinguished from his claim for attorney fees and expenses of litigation under OCGA § 9-15-14, see Jones v. Bienert, 197 Ga. App. 554, 556 (398 SE2d 830) (1990)) was filed with his answer in February 1988, prior to the effective date of OCGA § 51-7-80 et seq. See OCGA § 51-7-85.


author: Birdsong, Presiding Judge.

text:
    A91A0928.
    PAZ v. MARVIN M. BLACK COMPANY et al.
    (408 SE2d 807)
   Birdsong, Presiding Judge.

Paul Ypolito Paz, by next friends Tony Paz and Maria Paz, sued Marvin M. Black Company and its employees Michael M. Black, Alton Pardue, Barry Atkinson, Richard Hardin, and others, in tort and contract actions for damages for injuries received by Paul Ypolito Paz when he fell from a scaffold at a construction project. Appellee Marvin M. Black Company was the general contractor on the project; Paz was an employee of the masonry subcontractor Salazar. The scaffold, which was built by the subcontractor Salazar’s employees allegedly without proper direction and inspection of the employees of the general contractor, collapsed on the day following heavy rains, when the ground was soggy and muddy. Plaintiffs provide evidence that a bulldozer was being operated under the supervision or direction of the foreman of Marvin M. Black Company to clean up debris, and came within inches of the scaffold or hit the scaffold immediately before it collapsed. OSHA officials cited Marvin M. Black Company for violations in connection with the use of unstable objects to support the scaffold, improper bracing, and failure to secure the scaffold to the structure being built.

Paz was paid workers’ compensation benefits by his employer, the subcontractor Salazar. On grounds of immunity, the trial court granted summary judgment to Marvin M. Black Company and its employees; Paz appeals. Held:

1. The trial court did not err in granting summary judgment to the general contractor Marvin M. Black Company, as the statutory employer under OCGA § 34-9-8. Wright Assoc. v. Rieder, 247 Ga. 496 (277 SE2d 41). Assuming plaintiff was a third-party beneficiary of the contract between appellees Marvin M. Black Company and the subcontractor Salazar, this provides no grounds for removing the immunity of the general contractor (statutory employer).

2. We are required by Long v. Marvin M. Black Co., 250 Ga. 621 (300 SE2d 150) to reverse the summary judgments granted to the employees of Marvin M. Black Company. It is well established that the liability of the general contractor for workers’ compensation benefits renders it liable for workers’ compensation benefits as the “statutory employer” of its subcontractor’s employee (Wright Assoc. v. Rieder, supra); but according to the Supreme Court’s decision in Long, supra, the employees of the general contractor do not share in that statutory immunity, as they are not “employee[s] of the same employer” (OCGA § 34-9-11) as Paz.

The individual appellees, employees of Marvin M. Black Company, urge us to make various distinctions removing any liability for injuries caused by breach of contractual duties of safety implementation, inspection and supervision provided for in their employer’s contract. However, it is well established that breach of contractual duties may give rise to an action for damages for personal injuries. See Williams v. Nico Indus., 157 Ga. App. 814, 817 (278 SE2d 677).

We agree that none of the employees of the general contractor Marvin M. Black Company may be sued by virtue of their being an “alter ego” of the company or acting in a representative capacity (see Hay v. Britt Realty, 174 Ga. App. 214 (329 SE2d 544); Stoker v. Wood, 161 Ga. App. 110 (289 SE2d 265)); but plaintiffs assert they have sued each of these individual employees of the general contractor on account of a breach of a specific management or supervisory duty. There is evidence raising an issue of fact as to there being an actual duty imposed by contract upon each individual, and that they breached it or committed a negligent act in managing, supervising or implementing the safety program. Therefore, we cannot find they have borne their duty as movants to prove they are entitled to judgment as a matter of law. See Abalene Pest Control Svc. v. Orkin Exterm. Co., 196 Ga. App. 463, 464 (395 SE2d 867).

The individual appellees strenuously urge us to hold as a matter of law that none of them committed an act of “active” or “affirmative” negligence, as they contend was the case in the Long decision. However, the rationale of that decision does not authorize any such distinction. The exposure to liability of the employees of the general (statutory) contractor who did not pay workers’ compensation benefits is grounded on the fact that, unlike the statutory employer itself, “[a]n employee of a statutory employer does not have any potential liability for workers’ compensation payments. Thus there is no quid pro quo, no reason to relieve him of liability for his negligence, and ample reason to hold him accountable” for his negligence or for his negligent breach of contract giving rise to physical injuries. Long v. Marvin M. Black Co., supra at 623. Even if the negligent act in Long v. Marvin M. Black Co. was an “affirmative” act, the rationale upon which that employee was found not immune to liability, was not grounded upon whether the act was “active” or “passive.”

Decided July 1, 1991

Reconsideration denied July 23, 1991

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Robin L. Frazer, David Root, for appellants.

Long, Weinberg, Ansley & Wheeler, Robert D. Roll, T. Jeffery Lehman, Darroch & Obenshain, Robert M. Darroch, Emory A. Wilkerson, C. David Vaughan, Fred W. Minter, for appellees.

In accordance with the ruling and rationale of Long v. Marvin M. Black Co., we reverse the grant of summary judgment to the individual employees of the statutory employer.

Judgment affirmed in part and reversed in part.

Pope and Cooper, JJ., concur.


text:
    A91A1088.
    LAWSON et al. v. ATHENS AUTO SUPPLY & ELECTRIC, INC. ATHENS AUTO SUPPLY & ELECTRIC, INC. v. TITAN INVESTMENT MANAGEMENT COMPANY, INC. et al.
    A91A1089.
    (409 SE2d 60)
   Birdsong, Presiding Judge.

Athens Auto Supply & Electric, Inc. (Athens Auto) obtained a consent judgment against Amercon Marketing Systems, Inc. (Amer-con) on June 4, 1985, for $11,798.43 owed on account. Unable to collect on this judgment, Athens Auto subsequently sued Hugh Lawson and Holiday RV Products, Inc. (Holiday RV), Titan Investment Management Company, Inc. (Titan) and First Thrift Company, Inc. (First Thrift), for fraudulent conveyance of the assets of Amercon in avoidance of the debt. Athens Auto alleged that Lawson removed or transferred the assets of Amercon to those other corporations, Holiday RV, Titan and First Thrift, which he managed and operated.

At the close of plaintiff’s evidence, the trial court granted directed verdicts to Titan and First Thrift and denied the motions of Lawson and Holiday RV for directed verdicts. The jury rendered a verdict in favor of Athens Auto and against defendants Lawson and Holiday RV, for $19,005 general damages and $130,000 punitive damages. Lawson and Holiday RV appeal this verdict, complaining of the denial of their motions for directed verdict and motions for judgment n.o.v., and complaining generally that as transferees they could not be liable for punitive damages. See Kesler v. Veal, 257 Ga. 677 (362 SE2d 214); Kesler v. Veal, 182 Ga. App. 444 (356 SE2d 254), and see remittitur, Kesler v. Veal, 186 Ga. App. 93 (367 SE2d 132). Appellants also contend the punitive award was excessive. Athens Auto cross-appeals the grant of directed verdicts to Titan and First Thrift. Held:

1. Cross-appellees Titan and First Thrift filed a motion to dismiss the cross-appeal of Athens Auto, contending the cross-appeal is untimely because Athens Auto did not appeal the directed verdicts in favor of Titan and First Thrift within 30 days from their rendition. The defendants Holiday RV and Lawson did not file an appeal within 30 days of the June 6, 1990 judgment following the verdict against them, but on June 19, 1990 filed a motion for judgment n.o.v. and in the alternative a motion for new trial. These motions were denied January 7, 1991; Holiday RV and Hugh Lawson filed this appeal January 30, 1991; and plaintiff Athens Auto filed a cross-appeal on February 1, 1991, complaining of the trial court’s grant of directed verdict to Titan and First Thrift during trial. Titan and First Thrift contend that the motion for judgment n.o.v. or new trial filed by Holiday RV and Lawson on June 19, 1990, did not toll the time for appeal by Athens Auto of the directed verdicts in favor of Titan and First Thrift.

OCGA § 9-11-54 (b) provides that in cases involving multiple claims or multiple parties, the court may direct the entry of a final judgment as to fewer than all of the claims or parties “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” The directed verdicts in favor of Titan and First Thrift were not final judgments. See OCGA § 5-6-34 (a) (1). The case was still pending in the court below because the time to appeal the verdict and judgment against Holiday RV and Lawson was tolled. While the case was still pending as to some parties, the judgment in favor of others was not final. See Crumbley v. Wyant, 183 Ga. App. 802 (360 SE2d 276) where we held that a judgment denying new trial as to one defendant was not final because plaintiff’s suit was still pending in the trial court on account of the new trial granted to the other defendant. See also Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317 (380 SE2d 704), as to a cross-appeal filed against a party who is not an appellant; and see OCGA § 5-6-38.

“OCGA § 5-6-30 provides that the Appellate Practice Act shall be construed liberally ‘so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein.’ ” Centennial Ins. Co., supra. It was in the contemplation of OCGA § 9-11-54 (b) that cases involving multiple parties or multiple claims, which by nature may contain multiple rulings as to fewer than all parties or claims, shall be expeditiously tried and the right to appeal not lost or procedurally confused by varying rights to direct appeal among multiple parties in a single case. A directed verdict is not a final judgment where the case is still pending and where a determination of no just reason for delay and a certification of final judgment is not issued pursuant to OCGA § 9-11-54 (b). See OCGA § 5-6-34 (a), (b); see, e.g., Cramer v. Parrott, 149 Ga. App. 385 (254 SE2d 504). The motion of Titan and First Thrift to dismiss the cross-appeal of Athens Auto is denied.

2. We held in Kesler v. Veal, 182 Ga. App. 444, supra, that under OCGA § 18-2-22 a suit for general and punitive damages may be maintained against the debtor and transferee for fraudulent conveyance of assets in avoidance of a debt. The Supreme Court on certiorari reversed the award of damages against the transferee in that case, on grounds that “under the facts in this case, [the evidence] will not support an award of damages against the taking party,” the rationale being that “[t]he legislature obviously did not intend the taking party to be liable for general and punitive damages under OCGA § 18-2-22 based solely upon the fraudulent conveyance without proof of bad faith, actual fraud, or conspiracy on his part." (Emphasis supplied.) Kesler v. Veal, 257 Ga. 677, supra at 678; and see 186 Ga. App. 93, supra. It is therefore clear that if there is evidence of bad faith, actual fraud, or conspiracy on the part of the taking party or transferee in receiving assets fraudulently conveyed to him by the debtor, an award of general and punitive damages against the transferee may be upheld.

3. On June 4, 1985, defendant/appellant Hugh Lawson agreed to a consent judgment in favor of plaintiff Athens Auto, on behalf of Amercon, a corporation wholly owned, operated and managed by Lawson for the manufacture of van conversions. Amercon was then doing business in a facility on Jimmy Daniel Road in Athens, but according to Lawson, Amercon’s business was in trouble. Six days prior to the date of this consent judgment, Lawson transferred equipment valued at $161,000 from the business facility on Jimmy Daniel Road in Athens to the business facility of Weiner and Streck (Holiday Chrysler-Plymouth) in Gwinnett County, Lawson having agreed with Weiner and Streck to form a new corporation, defendant Holiday RV Products, Inc., for the purpose of conducting a van conversion business. Holiday RV was to be managed and operated by Lawson, who also acquired 50 percent of the stock. On June 1, 1985, three days prior to the consent judgment against Amercon, Lawson as president of Holiday RV issued to himself Holiday RV’s promissory note for $161,289.23. Lawson conducted a van conversion business for Holiday RV in Gwinnett County until late 1986, when he bought out Weiner’s and Streck’s interests in Holiday RV and moved Holiday RV back to the facility on Jimmy Daniel Road in Athens, which facility was purchased by Titan, a Lawson family corporation.

After plaintiff’s June 4, 1985 consent judgment was obtained, defendant Lawson swore, in answer to post-judgment interrogatories, that Amercon had no leasehold interests and no assets, including equipment. However, plaintiff contended and produced evidence to show that the $161,000 worth of equipment which Lawson transferred to Holiday RV on May 28, 1985, as his (Lawson’s) own property, was in fact the property and assets of Amercon: The van conversion equipment came from the Jimmy Daniel Road facility in Athens where Amercon was engaged in the van conversion business; Lawson did not list this equipment and inventory as his own assets in a financial statement he prepared in February 1985; on May 28, 1985, Amer-con pledged $45,000 in equipment and inventory to First Thrift (a Lawson family corporation) as collateral for a loan in that amount by First Thrift to Amercon, thereby showing, contrary to the testimony of Lawson, that Amercon did have assets in the form of equipment and inventory as of May 28, six days before this consent judgment was entered against Amercon, and also showing that Amercon received $45,000 in money for the pledge of this equipment (and Lawson admitted taking $38,000 out of Amercon as a result of this loan from First Thrift); further, the proprietor of Athens Auto, Massey, testified he saw some of this equipment in use by Amercon when it operated at the Jimmy Daniel Road location. Although the defendants Lawson and Holiday RV assert there is no direct evidence this equipment belonged to Amercon, the evidence, viewed in favor of the jury verdict, supports a conclusion that the equipment moved from the Jimmy Daniel Road facility where Amercon did business was the property and assets of Amercon. Plaintiff contended it should not be penalized for Lawson’s failure to produce discovery evidence describing what equipment Amercon had when this equipment was transferred to Holiday RV, but it is more proper to say the lack of proof as to what equipment was owned by Amercon, including the $45,000 worth of equipment pledged by Amercon to First Thrift as loan collateral on May 28, while not creating a burden of proof upon the defendants, was a circumstance to be considered by the jury in determining the weight of the evidence produced by the plaintiff on this point.

On these grounds alone, the evidence supports a finding by the jury that Lawson, individually and as alter ego for Amercon, transferred assets of Amercon to Holiday RV and that, individually and as president, 50 percent owner and manager of Holiday RV, he accepted the transfer of Amercon’s assets and issued to himself a $161,289.23 promissory note at 12 percent interest therefor. (The pre-incorporation agreement among Lawson, Weiner and Streck authorizes a promissory note to Lawson of $100,000 for this equipment transferred to Holiday RV.)

4. As to defendant/cross-appellee First Thrift, which was a Lawson family corporation, we find no evidence raising an issue of fact that First Thrift fraudulently accepted a transfer of assets of Amer-con. The trial court correctly directed a verdict in favor of defendant First Thrift.

5. A directed verdict is authorized only where “there is no conflict in the evidence as to any material issue and the evidence [adduced], with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a). The standard for granting judgment n.o.v. is the same. Joe N. Guy Co. v. Valiant Steel &c., 196 Ga. App. 20, 21 (395 SE2d 310). The evidence in this case clearly did not demand a finding in favor of defendants Lawson and Holiday RV; the verdict and award against them is supported by evidence, which on appeal is viewed in favor of the finding of the jury whose function it is to weigh the evidence (Barnette v. Peace, 196 Ga. App. 440, 442 (395 SE2d 916); and see Antique Center of Roswell v. City of Roswell, 196 Ga. App. 894 (397 SE2d 146); Ingram v. Peterson, 196 Ga. App. 888, 890 (397 SE2d 141); and Wisenbaker v. Warren, 196 Ga. App. 551, 553 (396 SE2d 528)).

Upon this same standard of review of determinations on motions for directed verdict (Ingram, supra), however, we find the trial court erred in granting a directed verdict to defendant Titan, but the grant of directed verdict to defendant First Thrift was not error.

6. As to defendant Titan Investment Management Company, which is also a Lawson family corporation managed and operated by Lawson, there is evidence from which the jury could find a fraudulent transfer, with “bad faith, actual fraud, or conspiracy” on the part of Titan as managed and operated by Lawson as alter ego. Kesler v. Veal, 257 Ga. 677 at 678, supra. We first note that when assessing the evidence on Titan’s motion for directed verdict, the trial court was required to draw all reasonable deductions and inferences in favor of the respondent, Athens Auto, and to construe the evidence and testimony in its favor. Carver v. Jones, 166 Ga. App. 197 (303 SE2d 529); Folsom v. Vangilder, 159 Ga. App. 844 (285 SE2d 583).

The evidence shows that Amercon continued to lease the facility on Jimmy Daniel Road in Athens, which was owned by J. M. Rhodes, even after Holiday RV was formed in May-June, 1985. There is evidence, specifically in deposition testimony of Rhodes, that in its lease, Amercon had an option to purchase this facility. At trial Rhodes testified he agreed “to have that lease assigned to a corporation owned by Mr. Lawson,” and that “Mr. Lawson . . . wanted to know if I’d just let him have the lease, so I did.” (Amercon’s lease was never produced in evidence.) Lawson admitted negotiating a purchase of this property for himself and then assigning the contract to purchase to Titan. There is therefore evidence that the negotiation ánd assignment to Titan of a purchase contract was done under Amercon’s option to purchase in its lease; moreover, Rhodes in deposition testified that the option to purchase in Amercon’s lease “was a fixed, there was a price fixed . . . three-forty or sixty [thousand], I don’t remember now. Something in that neighborhood”; and that in 1986, Lawson and his daughter “came along one day and said they wanted to exercise the option. . . .” Rhodes in deposition further testified, “I didn’t want to sell it to anybody honestly, but I had claused in the original lease that the lessee could buy it. So I guess you could say that [Amercon] — well, they didn’t actually, they didn’t exercise the option. I actually, this investment company with Ms. Lawson [Titan], all of them came up, and that was where the sale was made.” Rhodes at trial testified that he did not remember whether the option was at a fixed price; in deposition he testified he sold the property to Titan on account of the option to purchase clause in Amercon’s original lease.

In connection with Titan’s purchase of the Jimmy Daniel Road facility in October 1986, Lawson on behalf of Amercon executed an affidavit saying the property was free of all liens or judgments or encumbrances. At the same time, on behalf of Amercon, Lawson executed to Rhodes a formal “cancellation of lease.” Defendants argued these transactions were without significance; that is, that Amercon did not have a lease and an option to purchase because Amercon executed this “cancellation of lease.” This assertion clearly begs the question. If Amercon had no lease interest and no option, it would have been pointless to cancel its interest; it could not, by the mere device of “cancelling” it, prove it had not existed. Moreover, Lawson admitted that he “negotiated [the purchase of the Jimmy Daniel Road property] for me originally and then assigned that contract to purchase to Titan.” Since there was evidence Rhodes had testified he sold the property at the fixed price option in Amercon’s lease, a reasonable inference to be considered by the jury is that Amercon assigned its purchase option to Titan.

The jury might find defendants’ assertions that Amercon did not have a lease because it was “in default” to be similarly transparent. The evidence shows that Amercon’s lease payments during all this time were paid by Holiday RV. Moreover, Rhodes never testified that Amercon was “in default” on its lease; his testimony raises the inference that there was no question of Amercon being “in default,” rather its lease was valid and enforceable. Most importantly, Rhodes testified he sold the property to Lawson’s family investment corporation (Titan) only because he was “trying to keep [his] word on” the option to purchase which was in Amercon’s lease. The inference is sustainable that Lawson and his daughter represented, and Rhodes perceived, that the Lawson family corporations, Amercon and Titan, as interchangeable or alter egos, and allowed Titan to purchase the property at the fixed price option amount given in Amercon’s lease because he was trying to honor his obligation to Amercon.

There is therefore evidence to support a jury verdict for damages, general and punitive, against Titan, on plaintiff’s theory that Amer-con cancelled its lease and purported to remove itself from the milieu, for the purpose of allowing Titan to purchase this property at Amer-con’s fixed price option; that is, that Titan bought the property to keep it out of Amercon and avoid this debt, or at least, that Amer-con’s valuable asset of the option to purchase was transferred to Titan.

It should be noted here that in granting directed verdict to Titan, the trial court, after a fair and excellent consideration of all the evidence, was inclined to conclude there was evidence to find Titan liable, but ultimately directed a verdict to Titan after remarking that Rhodes had negotiated a new price with Titan for the sale of his property, and that he did not sell it upon Amercon’s option to purchase. The evidence in the record, however, shows clearly to the contrary: that Rhodes sold the property to Titan because of and under the obligation of Amercon’s option, and at the fixed price provided in Amercon’s option. This evidence must be construed most strongly to the plaintiff/respondent; we are satisfied, based on the trial court’s own remarks, that if the actual testimony of Rhodes had been recalled to the trial court’s attention, it would not have granted the directed verdict to Titan. We therefore, on review of the actual evidence, reverse the directed verdict to Titan.

7. The evidence as to all defendants, except First Thrift, which was properly granted a directed verdict, shows that Lawson operated and managed all corporations, and commingled and confused the funds of all (including making numerous loans to himself and from one to the other and among all, while the evidence raises the reasonable inference that most of these loans, particularly those to himself, were unrepaid) so as to have been acting as the alter ego for all when these transfers were made of Amercon’s assets, and authorizing a finding that the corporate veil had been pierced in the particular facts of this case. See Brunswick Mfg. Co. v. Sizemore, 183 Ga. App. 482, 483 (359 SE2d 180); Hogan v. Mayor &c. of Savannah, 171 Ga. App. 671, 673 (320 SE2d 555).

8. Appellants contend the punitive damages award against Lawson and Holiday RV was so excessive as to evince bias of the jury. We disagree. The evidence of defendants’ conduct, individually and as alter ego of the corporate defendants, supports this award. Massey testified that when he approached Lawson about the debt, Lawson told him to “get out” and to get off his property, and then told Massey he would pay the debt on his time and not on Massey’s time. The evidence of bad faith of Lawson individually and as alter ego of the corporations, includes his transfer of $161,000 of equipment which the jury could find belonged to Amercon, and the issuance by him as president of Holiday RV to himself of the promissory note of Holiday RV of $161,289.23 for that equipment; includes Holiday RV’s payment of the rent on Amercon’s lease of the Jimmy Daniel Road property in Athens although the two were ostensibly separate entities connected only by the individual Lawson; and includes Lawson’s answer to post-judgment interrogatories that Amercon had no leasehold interest, when in fact Amercon had a lease with purchase option, which Lawson’s family corporation, Titan, then exercised after Lawson, as president of Amercon, purported to “cancel” Amercon’s lease, thus to make it appear Amercon had no lease and no purchase option, while at the same time swearing by affidavit that the leased property was free of liens, judgments or encumbrances, and while Lawson testified at trial that Amercon was “in default” on that lease so as to make it appear again that Amercon had no lease and no purchase option which Titan could exercise, whereas the evidence shows Rhodes never considered Amercon in default and sold the property to Titan under Amercon’s option to purchase at a fixed price, and Amercon was not in fact in default as its rent was paid by Holiday RV. Since Lawson admitted negotiating the purchase of the property for himself and then assigning the contract to purchase to Titan; and since according to Rhodes, Titan purchased this property under the fixed-price option provided in Amercon’s lease, it may reasonably be concluded that Lawson assigned to Titan Amercon’s option to purchase rather than exercise it for Amercon, and that Titan, through Lawson, knowingly and in bad faith accepted and exercised the transfer of Amercon’s option to purchase while Lawson was fully aware of Amercon’s debt to the plaintiff, and had indeed sworn that no such encumbrance existed, just as he earlier had sworn that Amercon had no leasehold interest. “[I]t was properly left up to the jury to assess to what extent appellant should be made to feel the impact of its actions on claimants to prevent similar situations from occurring in the future. The punitive damages awarded appellee were not one hundred times the total of actual and consequential damages, as was the case in Colonial Pipeline [Co. v. Brown, 258 Ga. 115 (365 SE2d 827)]. . . . [U]nder the circumstances, ‘we do not have the temerity to propose that our ivory tower evaluation should be substituted for that of (12) jurors plus the . . . trial judge . . . who as “the 13th juror” have decided the conduct of (appellant) was such that exemplary damages of ($150,000) should be awarded “either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.” (Cit.)’ [Cit.]” Insurance Co. of North America v. Smith, 189 Ga. App. 353, 358 (8) (375 SE2d 866) (cert. den.). The punitive damages in that case were $150,000, as compared to actual damages of less than $9,000. That was a larger award, in fact and relation, than this punitive award of $130,000 on the original judgment debt of more than $11,000. We are unauthorized to hold this punitive damages award to be excessive as a matter of law.

Accordingly, we affirm the jury verdict as to Lawson and Holiday RV; we affirm the grant of directed verdict to First Thrift; and we reverse the grant of directed verdict to Titan.

Judgment affirmed in part and reversed in part.

Pope and Cooper, JJ., concur.

On Motion for Reconsideration.

Titan urges us to uphold the directed verdict to Titan, contending there is no evidence in the case that Amercon’s lease of the Jimmy Daniel Road property contained a fixed option to purchase and no evidence that Titan’s purchase was made under Amercon’s option. Titan asserts: “The only evidence ... as to the fixed price specified in the option . . . was Mr. Rhodes’ testimony that the option provided for a fixed purchase price of either 340 or 60 and he didn’t remember which. . . .” Titan then asserts that since Lawson testified Titan paid $341,000 in a negotiated purchase price, this evidence showing that “the price by Titan was different, however slight, from the purchase price contained in the option shows, as testified by Hugh Lawson, that Titan did not exercise the purchase option held by Amercon, but rather negotiated their own sale with Mr. Rhodes.”

In these statements, Titan concedes that there is evidence that Titan purchased this property by exercising the debtor Amercon’s leasehold purchase option, via “Mr. Rhodes’ testimony that the option provided for a fixed purchase price of either [$340,000 or $360,000].” Obviously Lawson’s testimony as to the price or a slightly different price paid by Titan is not conclusive, and is not as a matter of law inconsistent with Rhodes’ testimony that he sold the property at a fixed price option; nor is this issue controlled by any evidence that Titan did or did not get a “good deal” at this fixed price or that Lawson had executed a written “cancellation” of Amercon’s lease before Titan bought the property. As to whether the price paid by Titan to acquire this property was a negotiated price or was paid under fixed option which had belonged to Amercon and was fraudulently transferred to or exercised by Titan while Lawson stated on oath that the debtor Amercon had no leasehold interests, this is the entire jury question. The evidence of Rhodes’ testimony at his deposition was properly admissible under OCGA § 9-11-32 (a) (1), particularly as he had difficulty with his memory at the time of trial and conceded the deposition was closer in time to the events. Resolution of statements made by Rhodes at deposition and at trial, including whether he made such statements, was for the jury. The evidence and all reasonable deductions plainly did not demand a verdict for Titan.

Decided July 2, 1991

Reconsideration denied July 23, 1991

Smith, Gilliam & Williams, Steven P. Gilliam, Bradley J. Patten, for Lawson and Holiday RV Products.

Henry & Pearson, J. Hue Henry, for Athens Auto Supply.

Kardos, Warnes & McElwee, John E. Kardos, for Titan.

Motion for reconsideration in Case No. A91A1088 denied; motion of Hugh Lawson and Holiday RV Products, Inc., for reconsideration of the affirmance of the award for punitive damages in Case No. A91A1089 denied.


text:
    A91A0076.
    CALHOON v. MR. LOCKSMITH COMPANY, INC. et al.
    (409 SE2d 226)
   Sognier, Chief Judge.

Beverly Calhoon instituted an action against Mr. Locksmith Company, Inc. and its employee, Luann Gavin, alleging malicious prosecution. The trial court granted the defendants’ motion for summary judgment, and Calhoon appeals.

The record reveals that on February 22, 1989, appellant sought the services of a locksmith when her son locked himself out of his car. She contacted Master Locksmith Company, whose services she had used before, arranged for a key to be made, left her personal check in the amount of $68.50, which was the charge quoted to her by Master Locksmith’s employee Renate Detlefs, and enlisted a neighbor to point out the car when the locksmith arrived. When she returned home some time later, appellant learned from her neighbor that the locksmith had found appellant’s son’s key on the floor board of the car and, since it was not necessary to make a new key, the charge would be “around thirty dollars” instead of the amount originally quoted to her. Appellant averred, in her affidavit submitted in opposition to appellees’ motion for summary judgment, that at the time she was unaware that Master Locksmith itself was unable to perform the requested services and had contracted with Mr. Locksmith (hereinafter appellee) to perform them. Appellant averred that she called Master Locksmith and requested that Detlefs hold her check, since the work had cost less, and that Detlefs had agreed to do so. Appellant returned to Master Locksmith several weeks later to pick up her check and pay her bill, but Detlefs was not present, and the clerk on duty knew nothing about the transaction.

Appellant admits that on May 25,1989, she received a letter from appellee notifying her that she had given it a bad check and giving her ten days to tender full payment for services rendered in the amount of $27.50 plus a service charge of $15.00. On July 11, 1989, appellant paid Master Locksmith $42.50. On the same day appellee, through its employee Gavin, swore out a warrant for appellant’s arrest. At the hearing on the bad check charge, an order of nolle prosequi was entered at the request of the prosecutor.

1. Appellant contends summary judgment was improper because genuine issues of material fact remain for resolution by a jury. Appellant argues that because the check in issue was “drawn, issued, or indorsed to” Master Locksmith, appellee was not the “holder” of the check as defined in OCGA § 11-1-201 (20), and therefore had no right to prosecute appellant pursuant to OCGA § 16-9-20.

According to the affidavits of Allan Aitken, president of appellee, and Renate Detlefs, that company was in possession of the check and had the express authority of the payee, Master Locksmith, to “cash or deposit the check in any way it chose.” It appears, therefore, that appellee was authorized to negotiate the check. However, the instrument was not properly endorsed by Master Locksmith, the payee, when presented to the bank by appellee for payment. Thus, the check did not meet the definition of “holder” in OCGA § 11-1-201 (20) and, accordingly, we agree with appellant that appellee was not the “holder” of the check under OCGA § 11-1-201 (20).

Nevertheless, the bank accepted the check as though it had been properly endorsed by Master Locksmith for negotiation. (We note that the question of the bank’s liability for its actions, however, is not presented in this action.) Although we agree that appellee does not meet the definition of “holder” in OCGA § 11-1-201 (20), nothing in that statute or in OCGA § 16-9-20 requires application of that definition to the criminal statute. Rather, OCGA § 11-1-201 states that all definitions therein are to be used “in this title” — that is, in Title 11 of OCGA, the Commercial Code. Because OCGA § 16-9-20 is not in the same title of the Code, by its terms OCGA § 11-1-201 (20), and specifically the definition of the term “holder,” does not apply to OCGA § 16-9-20.

In construing the term “holder” in OCGA § 16-9-20, we are governed by established principles of statutory interpretation, including the cardinal imperative to look diligently for the intention of the legislature, keeping in view at all times both the “evil” and the “remedy.” OCGA § 1-3-1 (a). It is obvious that, among other purposes, OCGA § 16-9-20 was enacted to punish the criminal behavior of knowingly passing bad checks, and to protect those legally authorized to negotiate checks given for value. Black’s Law Dictionary (5th ed., p. 658) defines a “holder” as “the person who has legally acquired possession of [a negotiable instrument] by indorsement or delivery, and who is entitled to receive payment of the instrument.” Given the obvious purpose of OCGA § 16-9-20, and applying the principle of statutory construction embodied in OCGA § 1-3-1 (b) that “[i]n all interpretations of statutes, the ordinary signification shall be applied to all words,” we find that under the circumstances presented here, appellee was the “holder” of the check for purposes of OCGA § 16-9-20 and thus was entitled to prosecute appellant.

2. Appellant also asserts that summary judgment was improper becaúse the notice given appellant by appellee did not meet the requirements for such a notice established by OCGA § 16-9-20 (a) (2) (B), and thus appellee was not entitled to the immunity from civil liability provided by OCGA § 16-9-20 (h).

Subsections (a) (2) (B) and (h) require substantial compliance with the form of notice given in the statute. We agree with appellant that the notice sent by appellee differed in several respects from the form required by the statute and may have been confusing (the notice stated, e.g., that the check had been issued to appellee). However, “ ‘[t]he crime of issuing a bad check occurs at the time the check is issued if it is made or issued with the knowledge that it will not be honored. . . . The provisions in [OCGA § 16-9-20] relating to notice to the defendant and [her] subsequent failure to pay the amount due are evidentiary matters and are not prerequisites to the commission of or conviction of the offense of issuing a bad check.’ [Cit.]” Russell v. State, 155 Ga. App. 555 (1) (271 SE2d 689) (1980). The notice serves to set up the presumption that because the drawer failed to make the dishonored check good after notice, the original intent was fraudulent. See Hall v. State, 244 Ga. 86, 88 (259 SE2d 41) (1979). Thus, even assuming the notice sent was not in “substantial compliance” with the statute, appellant’s fraudulent intent, and consequently the existence of probable cause for appellant’s arrest, may still be shown.

Decided June 19, 1991

Reconsideration dismissed July 24, 1991.

Theodore L. Marcus, Daniel W. Latimore, Jr., for appellant.

Bassett, Gerry, Friend & Koenig, Rhonda L. Klein, William D. Friend, for appellees.

In this case, in support of their motion for summary judgment, appellees proffered the affidavit of Gavin, who averred that when the check was dishonored by the bank, she contacted appellant, who “indicated that she would come into Mr. Locksmith’s place of business to pay the money due to Mr. Locksmith,” which was not done. This evidence negated any inference that appellant may have been confused about knowing the check was not good, overcoming differences between the instrument described in the notice and the actual dishonored check and establishing her fraudulent intent. See Hall, supra; see also Wilson v. Home Depot. 180 Ga. App. 218, 219 (348 SE2d 588) (1986). Appellant failed to rebut this evidence, and thus her pleadings were pierced as to the essential element of appellees’ lack of probable cause in causing her arrest. Accordingly, the trial court did not err by granting summary judgment to appellees. See Wilson, supra at 220 (1), (2).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Beasley, Judge.

text:
    A91A0422.
    BAILEY v. THE STATE.
    (409 SE2d 230)
   Beasley, Judge.

Appellant, Corey Bailey, was convicted of armed robbery. OCGA § 16-8-41.

The evidence at trial was that the robbery was committed on February 2, 1990, at approximately 7:00 a.m. at a convenience store. The cashier positively identified appellant from a photographic array and at trial. Appellant owned a car matching the description of the getaway car. Appellant’s accomplice and co-indictee, Thomas Whatley, made statements to the police implicating appellant.

Appellant testified that at the time of the robbery he was at his home in the company of his girl friend, Lynn Ellis, his roommate, and his roommate’s girl friend, Regina Dorsey. Ellis corroborated appellant’s testimony, but neither of the other two testified. Certain aspects of appellant’s alibi were contradicted.

1. Appellant enumerates error in the denial of his motion for new trial, which challenged the sufficiency of the evidence to support the verdict. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Citing Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976), appellant complains that the trial court erred in not striking certain remarks made in closing argument by the prosecuting attorney and in not giving a curative instruction to the jury.

The closing arguments were not reported, and because the parties could not agree as to what had transpired, the court entered an order reciting the facts based on its recollection, which recitation is final. OCGA § 5-6-41 (g). The trial court states that Regina Dorsey, a witness, was subpoenaed by both the state and the defense. After the first day of trial, defense counsel interviewed her and then excused her from his subpoena. The next day the prosecuting attorney, who had not excused her from the state’s subpoena, attempted without success to locate her and call her as a rebuttal witness. At the conclusion of the evidence, the court ruled that in closing argument both sides could state “what they would have expected Regina Dorsey to testify, within reason, had she been available to testify.”

Defense counsel advised the jury that he expected her to state that she did not know anything and was not going to get involved. The prosecuting attorney advised that he expected her to state that she did not spend the night at appellant’s home the night before the robbery. When the prosecuting attorney began to relate pre-trial statements made by the witness, “[defense counsel] objected and the court sustained the objection, ruling that the state could [go] no further than the basic statement that she was not present the night before.” That ended the court’s narrative, and the court concluded its order by stating that “[t]he above constitutes what transpired. . . .” We know no more precisely what allegedly improper statement the prosecutor made, what the extent of the objection was, or what wording the court used in its ruling.

We assume for the purpose of this appeal the propriety of the comments of both counsel regarding what Dorsey would have testified to, since no issue is made with respect to whether this exceeded the bounds of the evidence. See OCGA § 17-8-75. We must also assume that the objection to what she had told law enforcement officers on a prior occasion was proper, as the court sustained it and limited the state to its appropriate bounds. However, it does not appear that the court either expressly excised the comment or gave direct curative instructions to the jury “to remove the improper impression from their minds. . . .” OCGA § 17-8-75.

Defendant registered no dissatisfaction with the court’s handling of the matter by directive, which curbed the prosecutor and, since it heard the ruling, enlightened the jury as to what was allowed and what was not allowed. Defendant’s failure to seek further explicit action by the trial court precludes him from citing such inaction as error. “If . . . the objection to the State’s argument is sustained, the objection will not authorize defense counsel to assert on appeal that the trial court erred in failing to take any additional, unrequested curative actions.” Hall v. State, 180 Ga. App. 881, 883 (3) (350 SE2d 801) (1986). See also Keen v. State, 164 Ga. App. 81, 88 (296 SE2d 91) (1982).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

On Motion for Reconsideration.

Appellant, who was convicted of armed robbery, has filed a motion for reconsideration of our decision affirming his conviction. He hás also filed a motion for the appointment of counsel.

After appointed counsel had filed an enumeration of errors and briefs, appellant requested that counsel be dismissed from the case, as a result of which we granted counsel’s motion to withdraw as attorney of record. Appellant now requests that another attorney be appointed to represent him in asserting claims relating to ineffective assistance of trial counsel which he has asserted in his motion for reconsideration, and, pursuant to Smith v. State, 255 Ga. 654, 655 (3) (341 SE2d 5) (1986), the case be remanded for an evidentiary hearing.

In the motion, appellant contends that his appointed attorney was constitutionally ineffective because he failed to move to suppress the indictment and warrant (in that there was a lack of probable cause for appellant’s arrest), and because he failed to file a timely motion to suppress identification testimony (in that a photographic line-up shown to the victim by the police was impermissibly suggestive).

Even if new grounds could be raised by post-opinion motion, see Rule 48 (f), appellant’s ineffective assistance claims are without merit. The photographic array (State’s exhibit 1) was not impermissibly suggestive. Appellant does not complain about the admission of any other testimonial or physical evidence. Even an illegal arrest is no bar to the subsequent prosecution. Lackey v. State, 246 Ga. 331 (2) (271 SE2d 478) (1980).

Consequently, there is neither authority for nor need to remand the case for an evidentiary hearing on appellant’s newly-asserted ineffective assistance claims. See French v. State, 261 Ga. 424 (405 SE2d 35) (1991).

Decided June 25, 1991

Reconsideration denied July 24, 1991.

Mundy & Gammage, John S. Husser, for appellant.

William A. Foster III, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

Appellant’s motions are denied.


text:
    A91A0506.
    WIDEMAN et al. v. DeKALB COUNTY et al.
    (409 SE2d 537)
   Sognier, Chief Judge.

Toni E. Wideman and Myron Wideman brought suit against, inter alia, DeKalb County, Richard Hameister, Gerald Hart, and Gary Bagley on various claims arising out of an incident that occurred when Toni Wideman was transported in a county ambulance, which the plaintiffs alleged resulted in Ms. Wideman suffering a miscarriage. After numerous pretrial rulings limiting or eliminating several of the counts alleged in the complaint, the case proceeded to trial on Toni Wideman’s claims of negligent and intentional infliction of emotional distress and false imprisonment. The trial court directed a verdict in favor of the defendants on all counts except the intentional infliction of emotional distress claim, and the jury rendered a verdict for $250,000 against DeKalb County, Hameister, and Hart. The trial court granted the defendants’ motion for judgment n.o.v. or new trial in the event the judgment n.o.v. ruling is reversed, and Toni Wide-man appeals.

Construed to support the jury’s verdict, the evidence adduced at trial established that as of April 12, 1984, appellant, who was 25 years old and the mother of a one year old boy, was 19 weeks pregnant. During her prior pregnancy, she had experienced difficulties stemming from an esophageal reflux problem, which led to excessive vomiting and dehydration. She was under the care of Dr. John E. Ramsey, an obstetrician and gynecologist based at Piedmont Hospital (hereinafter “Piedmont”), who had been her physician for the prior pregnancy. During the afternoon of April 12, appellant began having stomach pains and a light pink vaginal discharge. She telephoned Dr. Ramsey, who concluded she might be experiencing premature labor and instructed her to meet him in the Piedmont delivery room. Since no family member was available to take her to the hospital, she called the DeKalb County emergency number. A county ambulance staffed by three emergency technicians, appellees Hart, Bagley, and Hameister (hereinafter the “EMTs”), was dispatched to her apartment and arrived at 4:56 p.m.

The subsequent sequence of events was strongly disputed. Appellant testified she explained to the EMTs that she was having abdominal cramps but no bleeding, and that she needed to be taken to Piedmont where Dr. Ramsey, her regular physician, was waiting. She stated one EMT sarcastically remarked that she needed a doctor closer to home, that they insisted she was bleeding heavily, and that they informed her they intended to take her to Shallowford Hospital (hereinafter “Shallowford”) rather than to Piedmont. Evidence was adduced that Shallowford was approximately six miles from her home and Piedmont was about 11 miles away. Appellant testified she never consented to go to Shallowford, that she continued to insist she be taken to Piedmont, that she felt afraid and helpless, and that during the ambulance ride the EMTs were joking in an “uncaring, unfeeling” manner.

Conversely, the EMTs testified that they observed almost two pints of blood on the floor of appellant’s bathroom, that she told them she had been bleeding throughout the day and had used six to eight sanitary pads to absorb the flow, and that she was having pains five minutes apart (all of which appellant denied). They testified they determined she needed emergency treatment at Shallowford, and that she agreed with their decision. The EMTs testified they called Shallowford for authorization to start oxygen and intravenous fluids, and that although they could have had their dispatcher connect them with Piedmont and Dr. Ramsey, they elected not to do so because they felt time was of the essence and Shallowford’s facilities were adequate (although they did not ascertain whether an obstetrician was available).

The hospital and EMT records reflect that the parties departed appellant’s home at 5:14 p.m. and arrived at Shallowford at about 5:20 p.m. Rebecca Watson, a Shallowford emergency room nurse, testified that while the ambulance was en route she received a radio call from the EMTs, who informed her that appellant was hemorrhaging, had low blood pressure and an elevated pulse, and was an emergency patient. Watson testified, however, that when she took appellant’s vital signs upon her arrival at Shallowford, they were normal except for an elevated pulse (which medical testimony established could occur in someone who was upset), there was no hemorrhaging or medical emergency, and the records filled out by the EMTs to document their actions were consistent with Watson’s findings, not with what they told her in the radio call. Watson testified that appellant was very upset when she arrived, and that she refused to consent to treatment and stated she wanted to be taken to Piedmont. Watson and Dr. William Zeichner, the emergency room physician on duty, exchanged several telephone calls with Dr. Ramsey, who they recalled was angry that appellant had been taken to Shallowford and insisted she be sent to Piedmont. Watson stated that there had been no reason to bring appellant to Shallowford to be stabilized, and that since she was in labor she should have been taken to her obstetrician at Piedmont.

Dr. Zeichner, who testified by deposition, stated that nothing in appellant’s vital signs indicated a cause for concern, and recalled that when he examined her he found no active bleeding. He deposed he had concluded she would be better off at Piedmont where qualified specialists were available, as he was not trained in the techniques used to stop premature labor, and deposed further that he did not know why the EMTs had brought her to Shallowford. Once he and Dr. Ramsey concurred that she should be taken to Piedmont, Watson and the EMTs engaged in a heated argument concerning whether the EMTs would transport appellant, which they did only after Watson obtained authorization from their dispatcher. The ambulance departed Shallowford at 6:02 p.m. and arrived at Piedmont 20 minutes later.

Dr. Ramsey testified that premature labor can be arrested if treatment begins within two hours, but that by the time appellant arrived at Piedmont she was fully dilated and it was too late to stop her labor. He said she was stable when she arrived, that there was no evidence of excessive bleeding, and that given her blood count it was medically impossible for her to have lost the amount of blood the EMTs claimed. He testified that the EMTs could not reasonably have interpreted her vital signs as indicating a need for stabilization, that there was no justification for the decision to take appellant to Shallowford, and that doing so wasted precious time because he had been available at Piedmont and was well informed about her history and her condition. Dr. Ramsey also stated he became concerned about appellant’s welfare after his conversations with the personnel at Shallowford because he ascertained they were not qualified to providé the necessary care.

Appellant and other members of her family testified that she was extremely upset for several days after this incident and despondent for months afterward. Appellant’s husband testified that when he first saw her at Piedmont, she was more upset than he had ever seen her to be, that she cried all night, and that the focus of her distress was her belief that she had been mistreated by the EMTs and that something could have been done for her if she had arrived at Piedmont sooner. It was established that appellant had a miscarriage a year later followed by sterilization surgery, but she and her husband testified her emotional distress was not related to these subsequent incidents.

Additional evidence was adduced that the DeKalb County policy the EMTs were required to follow provided that an ambulance patient must be taken to the hospital of his or her choice. If, however, the patient’s condition indicates emergency care is needed and the patient’s health could be threatened by a delay, the patient should be taken to the nearest emergency facility, and if the patient refuses to go there, the EMTs must obtain authorization from a physician on duty at that facility. Kenneth Lamoureux, a former DeKalb County EMT, testified that a patient experiencing premature labor who is otherwise stable should be taken to the hospital of her choice because her condition is not life threatening. He opined that if appellant’s condition had indeed been as the EMTs described, then “possibly” the decision to take her to the nearest facility was correct, but he stated that such a condition should have been documented on the EMT reports and there was no indication on the reports prepared by the EMTs that such a condition existed.

1. Appellant first contends the trial court erred by granting appellees’ motion for judgment n.o.v. on her claim for intentional infliction of emotional distress and by directing a verdict for appellees on her claim of false imprisonment. A directed verdict or judgment n.o.v. may be granted only when there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict. Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983). When reviewing the grant of either motion, “we must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. [Cit.] A judgment [n.o.v.] is improperly granted in the face of conflicting evidence, and an appellate court must view the evidence in the light most favorable to the party who secured the jury verdict. [Cit.]” Id. at 30-31 (1).

(a) To establish a claim for intentional infliction of emotional distress, the plaintiff must show that the defendant engaged in outrageous or egregious conduct “ ‘of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress.’ [Cit.]” Gordon v. Frost, 193 Ga. App. 517, 521 (388 SE2d 362) (1989). Evidence “of a defendant’s wanton disregard of a plaintiff’s rights may be considered in evaluating whether or not the objected-to behavior can reasonably be characterized as outrageous or egregious. . . . [T]he extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know. Moreover, the existence of a special relationship in which one person has control over another . . . may produce a character of outrageousness that otherwise might not exist [provided the conduct rises to the level of major outrage].” (Citations and punctuation omitted.) Id. at 521-522.

In the case at bar, the EMTs knew appellant was 19 weeks pregnant. They testified they thought she was in labor, and admitted they understood she was concerned she might be having a miscarriage. The fact that she called for an ambulance showed that she was dependent upon the EMTs to transport her to her obstetrician quickly. In the context of this trust and control, and considering appellant’s particular physical and mental condition, the jury was authorized to find that the EMTs willfully violated the county policy concerning the patient’s choice of hospital and deliberately disregarded appellant’s repeated requests, that they fabricated an alleged emergency to justify their actions, that such conduct was outrageous and extreme, and that appellant suffered severe emotional distress as a result. See id. at 522. Because there was some evidence to support the jury’s determination that appellees intentionally inflicted emotional distress upon appellant, the trial court was not authorized to grant appellees’ motion for judgment n.o.v. Id.

(b) False imprisonment is defined by statute as “the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” OCGA § 51-7-20. Our courts have held that the only essential elements of the tort are the detention and its unlawfulness. Greenbaum v. Brooks, 110 Ga. App. 661, 663 (1) (139 SE2d 432) (1964). The restraint used to create the detention must be against the plaintiff’s will and be accomplished by either force or fear. J. H. Harvey Co. v. Speight, 178 Ga. App. 812, 813 (344 SE2d 701) (1986). “ ‘The restraint . . . may arise out of words, acts, gestures or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries.’ [Cit.]” Greenbaum, supra. “[A]n individual may be imprisoned ‘when his movements are restrained in ... a traveling automobile ... or [when he] is compelled to go along with the defendant.’ [Cit.]” Burrow v. K-Mart Corp., 166 Ga. App. 284, 287 (3) (304 SE2d 460) (1983).

We are aware of no reported Georgia case involving facts similar to those in the case at bar, but we agree with appellant that analogous principles are set forth in cases involving persons who claim detention occurred because they were deprived of their property by another and would have had to abandon that property in order to depart. Georgia courts have recognized that a jury question is presented in such cases, for “the need to protect one’s own property acts as a coercive force in restraining one from leaving. The exercise of dominion over the property serves also to exercise dominion over the person owning such property.” Id. at 289. Surely the need to protect one’s health and to obtain emergency transportation to the physician of one’s choice is at least an equally coercive force. Moreover, the uniquely dependent status of an ambulance service patient may be considered to give rise to a circumstance wherein the ambulance personnel assert dominion over the patient so as to restrain the patient from departing the ambulance or refusing the service. “[T]he ambulance is unique as a [common] carrier having exclusive custody of persons . . . who are helpless to protect themselves. No individual is more at the mercy of a carrier than a person ... ill or injured enough to require [ambulance] carriage.” Bricks v. Metro Ambulance Svc., 177 Ga. App. 62, 65 (338 SE2d 438) (1985). Where, as here, a plaintiff needed immediate medical care and had no other means of transportation, and there is evidence that the ambulance personnel disregarded the applicable governmental policy and refused to deliver her to the health care facility of her choice, a jury question is presented on the issues of reasonable fear of personal difficulty and compulsion to go along with the defendants so as to result in a detention within the meaning of OCGA § 51-7-20. As in Burrow, supra at 289, the rationale advanced herein “comports with the fundamental purpose and concept of Georgia law which finds false imprisonment in acts which operate upon the will of the person threatened and may result in a reasonable fear of personal difficulty.” Although our review of the transcript discloses no evidence of force, there was evidence from which the jury could conclude that restraint was accomplished by acts of appellees which resulted in appellant’s reasonable fear of personal difficulty. Although we acknowledge this is a close issue, we cannot find that a verdict for appellees was demanded on the false imprisonment claim, and thus we reverse the trial court’s entry of a directed verdict on that count.

2. Contrary to appellant’s contention, nothing in OCGA § 5-5-51 modified the pre-existing rule that the first grant of a motion for new trial cannot be disturbed on appeal unless the trial court abused its discretion and the facts demanded a verdict for the appellant. OCGA § 5-5-50. Given that the evidence was in conflict, we do not find that a verdict for appellant was demanded, and thus we will not review the trial court in its first grant of a new trial. See Holton v. Jones, 174 Ga. App. 654, 656 (331 SE2d 26) (1985). Consequently, we must address appellant’s remaining enumerations because they raise issues that may recur upon retrial.

3. In three enumerations of error appellant contends the trial court erroneously excluded evidence relating to the miscarriage and death of her baby that occurred after she arrived at Piedmont. She made an offer of proof showing that she had a miscarriage, that the baby lived for four hours, that she saw the baby, that there was a medical possibility that the delivery could have been prevented had she arrived at Piedmont earlier, and that these events exacerbated her emotional distress. Appellant sought to admit this evidence to establish the entire sequence of events during the incident at issue and to show that she suffered emotional distress as a result of her extreme frustration at being delayed by appellees and the ensuing loss of the possibility that the baby could have been saved. The trial judge held that since the wrongful death claim had been eliminated from the action on the basis of governmental immunity, and given that Ob-Gyn Assoc. v. Littleton, 259 Ga. 663 (386 SE2d 146) (1989) precluded any claim by appellant for her emotional distress arising from the alleged wrongful death, evidence of appellant’s miscarriage and the baby’s death was irrelevant and potentially confusing to the jury and therefore inadmissible.

In Littleton, the Supreme Court considered the extent to which a woman whose child was delivered but later died allegedly as a result of medical negligence could recover for her own emotional distress. The court held that the mother could not recover for her mental distress over the suffering and death of the baby, id. at 664 (1) and 667-668 (2) (C), and that damages for emotional distress are recoverable only when there exists either negligent conduct resulting in a personal injury to the mother, id. at 665-667 (2) (A, B) or a malicious and willful tort directed toward the mother. Id. at 667-668 (2) (C). In other words, a claim for negligent or intentional infliction of emotional distress is permitted only when the conduct at issue is directed toward or causes injury to the claimant rather than to a third party. Thus, in the instant case appellant was entitled to recover for any intentional acts of appellees that caused harm to her (her claim for negligent infliction of emotional distress having been barred by governmental immunity), but could not assert a claim for any emotional distress she may have suffered as a result of the death of the child or of any tortious acts directed toward the child.

After carefully reviewing Littleton and the applicable cases cited therein, we agree with appellant that she was entitled to present evidence of the miscarriage because the emotional distress resulting therefrom was alleged to result from appellees’ wrongful acts directed toward her, not from any alleged tortious acts against the baby. This case is distinguishable from Goddard v. Watters, 14 Ga. App. 722 (82 SE 304) (1914) (cited with approval in Littleton), in which the plaintiff was not permitted to recover for her emotional distress stemming from a miscarriage she suffered after seeing an assault perpetrated upon her husband because there was no physical injury or wanton conduct directed toward her. Here, however, the alleged malicious acts were directed solely toward appellant. Accordingly, she was entitled to seek recovery for any emotional distress causally connected to this tortious conduct. Evidence of the miscarriage is causally related and thus is admissible because appellant is prepared to show that there were measures that could have been taken to prevent its occurrence had she been taken directly to Piedmont.

The question of admissibility of evidence of the baby’s death is more problematic. Although the Supreme Court held in Littleton that the mother cannot recover damages for her distress over the child’s death, the court did not state whether evidence of the death was admissible for some other purpose. Evidence is relevant and thus admissible “if it relates to the questions being tried by the jury, either directly or indirectly, tends to illustrate or explain the issue, or aids the jury in arriving at the truth. [Cit.]” Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45, 48 (1) (244 SE2d 573) (1978). We are persuaded that evidence of the child’s death is relevant to illustrate the entire sequence of events that transpired as a result of the conduct of appellees and to explain to the jury what happened to appellant. As appellant recognizes, it would be quite confusing to the jury to admit evidence of the delivery of the baby without then explaining what transpired afterward. Of course, the jury must be instructed that they cannot consider any emotional distress resulting from the death. We do find, however, that the trial court did not abuse its discretion by excluding a photograph of the child because the death could be established through testimony, and under Littleton, supra at 667 (2) (C), appellant cannot recover for her anguish over having seen the baby.

As the trial court recognized, these distinctions are not simple ones. Nonetheless, the solution is not to conclude, as did the trial court, that any evidence of the miscarriage and death should be excluded because it is confusing, but to do as appellant urged below: admit the evidence relevant to permissible elements of recovery and then instruct the jury that appellant cannot receive damages for her distress over the death of the child, and that her recovery is limited to emotional distress proximately caused by the willful and wanton acts of appellees directed toward her.

4. We find no error in the trial court’s decision to admit evidence of appellant’s subsequent miscarriage and tubal ligation that occurred a year after the incident at issue. Because appellant presented evidence that she was upset and depressed for a year or more after the encounter with appellees, they were entitled to show other possible causes for that distress.

5. The trial court excluded evidence proffered by appellant through the testimony of Kenneth Lamoureux that in 1982 DeKalb County had a policy of instructing its EMTs to transport patients only to hospitals in DeKalb County in order to keep the vehicles available for service as much as possible and to service the taxpayers of the county. Since Lamoureaux left the employ of the county two years prior to the incident at issue, and appellant was unable to show that this policy was still in effect in April 1984, the trial court properly excluded this evidence as irrelevant. Contrary to appellant’s contention, the doctrine of presumption of continuity (a status when proved to have existed will be presumed to have continued to exist) does not apply here because appellees expressly denied that such a policy existed. See Strother Ford v. First Nat. Bank, 132 Ga. App. 268, 270 (208 SE2d 25) (1974).

Decided July 8, 1991

Reconsideration denied July 24, 1991

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Wayne D. McGrew III, Davis & Sissel, Kenneth M. Sissel, for appellants.

Greene, Buckley, Jones & McQueen, John D. Jones, J. Russell Phillips, for appellees.

6. In her final enumeration, appellant asserts the trial court erred by refusing to give her requested charges on the duties owed by common carriers. In Bricks, supra at 63-69 (1), this court determined that ambulance services are common carriers, set forth the duties of ambulances in that context, and delineated the instructions to be given to juries in cases alleging negligence or intentional torts by ambulance personnel. Bricks established that in a suit alleging the commission by ambulance personnel of an intentional tort, the trial court must charge the jury that the ambulance was a common carrier, id. at 68-69; that as such the ambulance owes a duty to protect its passengers from “insult and injury” and from “injury, violence, insult and ill-treatment at the hands of its servants,” id. at 67; and that the carrier “is bound to use extraordinary diligence to protect its passengers not only from injury by third persons [cit.], but for wilful and wanton acts of its own servants[, and that i]t is absolutely liable [for such acts], even if the servant was not acting in the interest of the employer in the particular act. [Cits.]” Id. at 67-68. Accordingly, provided that upon retrial substantially the same evidence is adduced, appellant is entitled to have the jury charged in accordance with her requests to charge 9, 11, 14, and 24, and is entitled to a charge on the principle stated in request 12 provided it is properly adjusted to the evidence.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.

       We note that in Bricks one judge concurred in judgment only; however, we have reviewed the portion of that opinion applicable to the issues at bar and find that it correctly states the law.


author: McMurray, Presiding Judge.

text:
    A91A0966.
    CASTANIA v. TICOR TITLE INSURANCE COMPANY OF CALIFORNIA.
    (409 SE2d 286)
   McMurray, Presiding Judge.

Plaintiff Ticor Title Insurance Company of California filed this action for money had and received against defendant Castania. Defendant appeals from the grant of summary judgment in favor of plaintiff and from the denial of her motion for summary judgment. Held:

Defendant sold a home in California. Upon the sale of the subject property, defendant financed a portion of the purchase price and received a deed to secure debt from the buyers. Plaintiff issued a title insurance policy naming as insureds, defendant, as a mortgagee, and the purchasers of the property. Defendant did not attend the closing, and the proceeds were disbursed by an escrow agent. Due to mistake, plaintiff’s agent failed to apply a portion of the proceeds to the outstanding balance on a prior mortgage issued by Highland Federal Savings and Loan Association of Los Angeles (“Highland”) to defendant and secured by the property, and instead forwarded the amount at issue to defendant. When Highland demanded payment, plaintiff paid off the balance pursuant to the title policy and accepted an assignment of the claim from Highland. Following defendant’s refusal to return the mistaken payment, plaintiff filed this action.

As a general rule, subrogation is available to an insurer which pays its insured for a covered loss caused by the act or omission of a third party. See Liberty Mut. Ins. Co. v. Alsco Constr., 144 Ga. App. 307, 308-309 (240 SE2d 899). However, an insurer which pays an insured for a loss cannot then assert a claim of subrogation against the insured or a co-insured. E. C. Long, Inc. v. Brennan’s of Atlanta, Inc., 148 Ga. App. 796, 800-803 (252 SE2d 642). In other words, “[s]ubrogation does not arise ... in favor of the insurer against its insured since by definition subrogation arises only with respect to the rights of the insured against third persons to whom the insurer owes no duty. [Cits.]” Frank Briscoe Co. v. Ga. Sprinkler Co., 713 F2d 1500, 1502 (citing E. C. Long, Inc. v. Brennan’s of Atlanta, Inc., supra).

Plaintiff paid Highland the amount of the outstanding mortgage balance because of its contractual obligation to protect the title rights of its co-insureds, defendant and the buyers, against any “lien or encumbrance,” and then filed suit seeking to recover from defendant, one of its insureds, for that loss. Such a claim is clearly barred by the principle enunciated in E. C. Long, Inc. Plaintiff’s payment to Highland was in effect a payment to its insureds pursuant to the insurance contract because the disbursement precluded any claim against the property by Highland and cleared the title, as appellee was contractually obligated to do. Consequently, appellee cannot now assert a claim against appellant, its insured, for return of the portion of the closing proceeds she received in error even if the receipt or retention of the funds was the result of her negligence. E. C. Long, Inc., supra at 803. Furthermore, since plaintiff cannot sue defendant for reimbursement of a loss claimed and paid under the contract of insurance, we cannot allow plaintiff to do this indirectly by characterizing its claim as one for money had and received. See generally E. C. Long, Inc., supra at 804 (1). The superior court’s judgment is reversed and it is directed to enter judgment in favor of defendant on her motion for summary judgment.

Decided July 16, 1991

Reconsideration denied July 24, 1991.

M. P. Schildmeyer, for appellant.

Karl J. Howe, for appellee.

Judgment reversed with direction.

Sognier, C. J., and Andrews, J., concur.


author: Banke, Presiding Judge.

text:
    A91A0017.
    DYER et al. v. INVESTORS SERVICES, INC.
    (409 SE2d 249)
   Banke, Presiding Judge.

The appellee filed suit against MDM Partners-Oakwood (hereafter referred to as “MDM”) and its general partners, Ernest Dyer and Donald Paffenroth, seeking to recover an alleged indebtedness for consulting and management services it had rendered. A default judgment was entered against Paffenroth based on his failure to answer the complaint, and the case against the two remaining defendants was tried before a jury, resulting in a verdict in favor of the appelleeplaintiff. Dyer and MDM bring this appeal from the denial of their subsequent motion for new trial.

The appellee corporation, which is wholly owned by Fred Estfan, is in the business of real estate development and management, while appellant MDM is a general partnership formed for the purpose of constructing and operating a medical office building and parking garage on the grounds of Oakwood Hospital in Dearborn, Michigan. Pursuant to its agreement with the hospital, MDM obtained a ground lease on the property in question and then leased a portion of it back to the hospital after the improvements were constructed. Appellant Dyer, owned a 71 percent interest in MDM and Paffenroth a 24 percent interest. In March of 1984, Dyer asked the appellee to manage the property for a fee of $4,000 a month. Because Dyer and Paffenroth were embroiled in a dispute at the time, all communications between them concerning the partnership business were handled through the appellee’s president, Estfan. During this period, a dispute arose between MDM and the hospital which resulted in legal action being commenced against the hospital by MDM. On September 11, 1985, the hospital and MDM settled this litigation, and pursuant to that settlement the hospital purchased the office building and garage. The proceeds from the closing were placed in escrow pending settlement of the dispute between Dyer and Paffenroth.

The appellee’s president testified that during a telephone conversation on September 11, 1985, Dyer orally agreed to pay a $400,000 fee to the appellee both for its support services in connection with the litigation against the hospital and for certain accrued monthly management fees it was assertedly owed by MDM. The appellee thereafter drafted a letter of instruction to the closing attorney instructing him to disburse to it $400,000 of the escrow proceeds. Dyer signed this letter; but Paffenroth refused, in part because he wanted the fee reduced to $300,000. The appellee thereafter amended the instructions to reduce the escrow disbursement to $300,000. This change was signed by Paffenroth and initialed by Estfan on Dyer’s behalf under a power of attorney. (Paffenroth testified that it was his understanding that Dyer had agreed to pay the remaining $100,000 at a later date.) A distribution of the remaining closing proceeds was eventually worked out between Paffenroth and Dyer, following which the appellee demanded the additional $100,000, along with payment of certain fees for work it had performed subsequent to the closing. When such payment was not forthcoming, it brought the present action. Held:

1. The appellants contend that the trial court erred in admitting evidence concerning a proposed settlement agreement between Dyer and Paffenroth which specified that the appellee was to receive $103,560 from the remaining escrow proceeds. The appellants both filed a motion in limine seeking to exclude this evidence prior to trial and also objected to it when it was offered during the trial.

“ ‘[A]dmissions or propositions made with a view to a compromise are not proper evidence.’ OCGA § 24-3-37. The purpose of this Code section is ‘to encourage settlements and protect parties who freely engage in negotiations directed toward resolution of lawsuits.’ [Cit.] It has been held applicable, however, only to ‘admissions . . . which are made as a concession to bring about a compromise or settlement’ and not to ‘independent statements of fact by a party, even though made while the parties are trying to settle. . . .’ [Cit.]” Computer Communications Specialists v. Hall, 188 Ga. App. 545, 546 (373 SE2d 630) (1988).

Decided July 1, 1991

Reconsideration denied July 25, 1991

Alston & Bird, Jay D. Bennett, David C. Butler, for appellants.

Evans & Flournoy, Charles A. Evans, for appellee.

The settlement document at issue was drafted by the appellee at the request of Paffenroth and Dyer for the purpose of facilitating their efforts to settle their respective differences with regard to MDM. Paragraph 7 of the agreement specified that the proceeds from the sale of the hospital project were to be paid to Dyer after payment of certain outstanding debts, including the debt claimed by the appellee. The appellants contend that this document was inadmissible under OCGA § 24-3-37 in view of a subsequent paragraph dealing with third-party indemnification which was to be provided to the appellee by Dyer and Paffenroth. However, it is clear that the overriding purpose of the document was not to settle any dispute with the appellee but to settle the ongoing differences between Dyer and Paffenroth and to wind up the affairs of their partnership following the sale of its major asset. Under the circumstances, we hold that the document was properly admitted as evidence in the present litigation. See Ostroff v. Coyner, 187 Ga. App. 109, 116 (5) (369 SE2d 298) (1988); Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497, 498 (1) (300 SE2d 328) (1983).

2. The appellants contend that the trial court erred in refusing to give various charges to the jury, some requested and others not requested. At the conclusion of its charge to the jury, the court inquired if there were any exceptions, and counsel for the appellants replied, “We have none.” Accordingly, these enumerations of error present nothing for review. See OCGA § 5-5-24; Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858 (4) (360 SE2d 418) (1987); Turner v. Taylor, 179 Ga. App. 574 (3) (346 SE2d 920) (1986).

Judgment affirmed.

Carley■ and Beasley, JJ., concur.