author: Sognier, Chief Judge. Andrews, Judge,

text:
    A91A1183.
    MORRIS v. CHEWNING et al.
    (411 SE2d 891)
   Sognier, Chief Judge.

Judy Morris, as temporary administrator of the estate of her child, Kimberly Ann Morris, brought suit against a hospital and a physician alleging negligence during the birth of Kimberly Ann which resulted in the child’s death. Thirteen months later, Morris moved for leave to amend the complaint to add as plaintiffs herself and her husband, Wayne Morris, in their individual capacities as parents of the decedent. The trial court denied the motion, and Morris appeals.

The original complaint filed in this action alleged that appellant was admitted to appellee hospital on January 11, 1988, that she gave birth to twins by Cesarean section the following morning, and that one twin, Kimberly Ann, died on January 14 as a result of conditions arising from the knotting of the umbilical cord before delivery, which appellant alleged would have been detected through proper fetal monitoring. Appellant filed the lawsuit on October 2, 1989, alleging appellees’ negligence proximately caused the death of the child and praying for “a judgment against [appellees] in an amount to exceed $10,000.00, and all damages as allowed by Georgia Law.” She then filed her motion to amend the complaint on November 14, 1990, and the trial court denied the motion on January 4, 1991.

As appellant acknowledges, the right to recover for the full value of the life of the decedent, a minor child, lies in her parents, not in the administrator of her estate, OCGA §§ 51-4-4; 19-7-1 (c) (2) (A), which is why appellant sought leave to amend the complaint. The Civil Practice Act provides that a person who claims an interest in an action and is so situated that the disposition of the action in her absence may impair her interest shall be joined as a party if feasible, OCGA § 9-11-19 (a), and parties may be added by order of the court upon motion “at any stage of the action and on such terms as are just.” OCGA § 9-11-21. Complaints may be amended to change the capacity of the plaintiff, Atlanta Newspapers v. Shaw, 123 Ga. App. 848, 852-853 (182 SE2d 683) (1971), as well as to add new plaintiffs. Gordon v. Gillespie, 135 Ga. App. 369, 374-375 (217 SE2d 628) (1975). If leave is sought to change or add plaintiffs after the expiration of the statute of limitation, provided “the claim . . . asserted in the amended [complaint] arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original [complaint], the amendment relates back to the date of the original [complaint].” OCGA § 9-11-15 (c). See Gordon, supra. Additionally, for relation back to occur in such circumstances, there must be such an identity of interest between the old and new parties that relation back will not prejudice the defendant, Gordon, supra at 375, and there must have been no unexcused delay or laches prejudicial to the defendant. Id. at 376-377 (2); see Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537 (314 SE2d 903) (1984). OCGA § 9-11-15 (c) should be liberally construed to effect its purpose of ameliorating the impact of the statute of limitation. Rich’s v. Snyder, 134 Ga. App. 889, 892-893 (216 SE2d 648) (1975).

We agree with appellant that the amendment she proposed met these requirements. The claim sought to be asserted by the new plaintiffs clearly arose out of the same occurrence as that alleged in the original complaint — i.e., the death of Kimberly Ann Morris as a proximate- result of the alleged negligence of appellees. Although, as appellees argue, the original ad damnum clause, which was pleaded in the form required by OCGA § 9-11-8 (a) (2) for medical malpractice actions, did not expressly pray for damages for the full value of the decedent’s life, see OCGA §§ 51-4-1 (1); 19-7-1 (c) (1), the original pleading “ ‘gives fair notice of the general fact situation out of which the claim arises’ ” and “ ‘specified the] conduct of [appellees] upon which [appellant] relies.’ ” Gordon, supra at 375. Thus, allowing the amendment would not deprive appellees of any protection provided by the statute of limitation. Id. Whether bringing suit in her individual or representative capacity, appellant had the same beneficial interest in the subject matter of the litigation and was asserting a claim for recovery of damages resulting from the same alleged acts or omissions, see Weldon v. Williams, 170 Ga. App. 589, 591-592 (3) (317 SE2d 570) (1984), and the same is true of the decedent’s father, Wayne Morris, the new party sought to be added. See Gordon, supra at 369-370, 375-376 (plaintiff sought to amend action for wrongful death of father to include siblings).

Moreover, there was no prejudicial delay. Appellant did not propose the amendment as a dilatory measure but instead sought in good faith to correct an inadvertent oversight. See MCG Dev. Corp. v. Bick Realty Co., 140 Ga. App. 41, 43-44 (3) (230 SE2d 26) (1976). Allowance of the amendment would not place appellees at a disadvantage because they were on notice of the conduct and occurrence upon which the new complaint arose. “ ‘(I)n and of itself, delay is not enough to warrant the denial of such a motion. It must be shown that to allow the amendment will result in prejudice to the opposite party. (Cits.) “. . . [Wjhile laches and unexcused delay may bar a proposed amendment, the mere fact that an amendment is offered late in the case is not enough to bar it if the other party is not prejudiced.” That the amendment might relate back and bar the application of the statute of limitation is not the prejudice referred to in that statement. . . .’ [Cit.]” Dover Place Apts. v. A & M Plumbing &c. Co., 167 Ga. App. 732, 735 (307 SE2d 530) (1983). “Mere delay in seeking leave to amend is not a sufficient reason for its denial. ‘(D)elay is not the sole controlling factor. It should not be permitted to defeat the policy of liberality in permitting amendment unless it will have prejudiced the plaintiff in some way.’ [Cit.] . . . ‘The Court does not take the position that [appellant] should be penalized because of an apparent oversight on behalf of [her] counsel. The sporting element of pleading is no longer with us.’ [Cit.]” MCG Dev. Corp., supra at 43 (2), 44 (3). Accord Unicover, Inc. v. East India Trading Co., 154 Ga. App. 161, 162-163 (1) (267 SE2d 786) (1980). Under these circumstances, we hold the trial court abused its discretion by denying leave to amend. See MCG Dev. Corp., supra.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Carley, P. J., Pope, Beasley, Cooper, JJ., and Judge Arnold Shulman concur. Andrews, J., dissents.

Andrews, Judge,

dissenting.

Since I find nothing in the record that shows the plaintiff’s lack of laches or lack of unexcusable delay, I cannot agree that the trial judge, who heard all that was presented at the hearing which was not recorded for our review, abused his discretion in denying the motion to amend.

The complaint was filed October 17, 1989. The motion to amend was not filed until November 15, 1990.

“ ‘ “The burden is on the party seeking amendment to show lack of laches or lack of unexcusable delay.” (Cit.) The record reveals no attempt by (appellant) to satisfy this burden in the case sub judice. . . . As the record contains no showing of a lack of laches or inexcusable delay, we find no abuse of the trial court’s discretion in its denial of (appellant’s) motion to amend.’ Mulkey v. Gen. Motors Corp., 164 Ga. App. 752, 754-755 (3) (299 SE2d 48); rev’d on other grounds, 251 Ga. 32 (302 SE2d 550).” Ostroff v. Coyner, 187 Ga. App. 109, 113 (2) (369 SE2d 298) (1988).

“ ‘(T)his court will not presume the trial court committed error where that fact does not affirmatively appear.’ [Cits.]” Green v. Sun Trust Banks, 197 Ga. App. 804, 807 (3) (399 SE2d 712) (1990).

Therefore, I must respectfully dissent.

Decided October 29, 1991.

William N. Robbins, Gerald P. Ruleman, for appellant.

Beck, Owen & Murray, Samuel A. Murray, Sullivan, Hall, Booth & Smith, Timothy H. Bendin, Mark A. Bayless, for appellees.


source: Caselaw Access Project

author: Judge Arnold Shulman.

license: Public Domain

text:
    A91A1347.
    GOVERNMENT NATIONAL MORTGAGE ASSOCIATION v. BELUE.
    (411 SE2d 894)
   Judge Arnold Shulman.

After foreclosing on two adjacent, virtually identical townhomes owned by the appellee in the same development, the appellant applied to superior court pursuant to OCGA § 44-14-161 (a) for confirmation of the foreclosure sales. In each case, the appellant had acquired the property at the foreclosure sale for a bid of $44,000. Concluding that the appellant had failed to establish by a preponderance of the evidence that this represented the true market value of the two properties at that time, the trial court declined either to confirm the sales or to order a resale of the properties pursuant to OCGA § 44-14-161 (b). This appeal followed.

The appellant introduced expert opinion testimony to the effect that $44,000 represented the fair market value of each of the properties at the time of foreclosure, based on the sale price the appellant had received for three comparable townhomes in the development which it had acquired by foreclosure and resold approximately a year earlier. However, in arriving at this valuation, the appellant’s expert had reduced the sale price of these comparable units by some $2,000 to $3,000 each to reflect the fact that the appellant had paid the discount points and closing costs on those transactions. In its written order declining to confirm the foreclosure sales, the trial court indicated that it had rejected the opinion testimony offered by the appellant’s expert based in part on this court’s holding in Wheeler v. Coastal Bank, 182 Ga. App. 112 (1), 114 (354 SE2d 694) (1987), to the effect that market value is to be determined “without consideration of such collateral issues as the financial costs to be paid to others in connection with buying or selling [the property].” The appellee introduced expert opinion testimony from two appraisers to the effect that the market value of the subject properties at the time of foreclosure was approximately $58,000.

1. The appellant contends on appeal that the court erred in considering the holding in Wheeler to be controlling in the present situation. However, it is clear that the court did not reject the testimony of the appellant’s expert based merely upon the holding in Wheeler. Rather, the court also relied upon the valuations placed on the subject properties by the appellee’s experts, which exceeded the valuation arrived at by the appellant’s expert by more than 30 percent. We note in this connection that all of the comparable sales upon which the appellant’s expert relied had occurred approximately a year prior to the foreclosure of the subject properties, while those relied upon by thé appellee’s experts had occurred within only a few months thereof. Indeed, the appellant’s expert acknowledged on cross-examination that between September of 1989 and May of 1990, when the foreclosure sales at issue took place, “there was never a sale of any unit of any size [in the development] for $44,000 or less.”

Decided October 29, 1991.

Jones & Jones, D. R. Jones, Greg B. Walling, for appellant.

Rice & Keene, Kirk W. Keene, for appellee.

“In confirmation proceedings, the judge sits as a trier of fact, and his findings and conclusions have the effect of a jury verdict. He hears the evidence and his findings based upon conflicting evidence should not be disturbed by a reviewing court if there is any evidence to support them. [Cits.] What value is, or may have been, is a question of fact to be resolved as others are. In so doing the trial court is the judge of the credibility of the witnesses and of the weight to be given the evidence. [Cits].” American Century Mtg. Investors v. Strickland, 138 Ga. App. 657, 661 (227 SE2d 460) (1976). Accord Wilson v. Metro. Fed. &c. Assn., 196 Ga. App. 588 (396 SE2d 546) (1990). Under the circumstances, we conclude that the first enumeration of error establishes no ground for reversal.

2. The trial court is authorized by OCGA § 44-14-161 (c) to order a resale of the property “for good cause shown.” It has been held that this statute confers upon the trial court a legal discretion in determining whether to order a resale. Federal Deposit Ins. Corp. v. IveyMatherly &c. Co., 144 Ga. App. 313, 317 (2) (241 SE2d 264) (1977). There was evidence in this case that the market value of the other properties in the townhome development had declined subsequent to the foreclosure sales, due in part to the appellant’s failure to maintain the numerous other units therein which it had acquired by foreclosure. Under such circumstances, the trial court did not abuse its discretion in refusing to order a resale of the properties.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A91A1459.
    LAMINACK v. THE STATE.
    (411 SE2d 895)
   Beasley, Judge.

Martha Ann Laminack was convicted of operating a vehicle while under the influence of alcohol. OCGA § 40-6-391.

1. The first enumeration is that the circumstantial evidence did not exclude every other reasonable hypothesis save that of guilt. OCGA § 24-4-6.

The evidence showed that on the night in question, appellant and Dominick left her home between 7:00 and 7:30 p.m. in his new car. They drove around the countryside for a couple of hours and then went to a river, where they stayed until about 10:00 to 10:30 p.m.

During the evening, Dominick purchased either 16 or 24 bottles of beer. He consumed about half of the beer and Laminack consumed the other half. They each had four or five beers at the river, and none was left.

Dominick testified that prior to leaving the river, he sat down in the passenger seat and began messing with the radio. He passed out, and when he awoke, Laminack was driving the car and flying down the road at a speed of at least 120 miles per hour. He asked what she was doing driving his car, and the next thing he remembered “was laying on my side and I remember somebody . . . people yelling. I remember people yelling and I remember her yelling and then I remember somebody telling me ‘we’re going to get you out of the car, we’re going to get you out of here’ and then I remember sirens and I remember seeing this thing cut the part of my car next to my head, and I remember one of the officers. . . .”

Laminack testified that Dominick was driving the car after they left the river.

Walter and Pauline Robinson testified that they were in their home when they heard a loud noise like thunder at approximately 10:00 p.m. They investigated and saw Dominick’s car, which had. knocked down a tree and flipped over to the passenger side. Both Dominick and Laminack were lying on that side, Dominick against the door and Laminack on top of him. He asked them to get her off him because he could not breathe. Her foot was hung in the dash area of the car near the steering wheel. The ambulance attendant testified that Dominick’s feet were entangled underneath the dashboard on the passenger’s side of the car.

The investigating police officer testified that it appeared that at impact, the passenger side dash pinned Dominick in the passenger side. In the officer’s opinion, there was not enough room in the car, a 1974 Toyota Célica with a console and gear-shift mechanism on the floor, for Dominick, a big fellow, to change positions from the driver’s seat to the passenger’s side after the car turned over.

As authority appellant cites Spence v. State, 96 Ga. App. 851, 852 (3) (102 SE2d 51) (1958), “where the evidence introduced on behalf of the State showed merely that an automobile belonging to the defendant was observed being operated on a public street or thoroughfare; that when the officers stopped the automobile they arrested the defendant who was in the automobile and was in an intoxicated condition; that another adult person was also an occupant of the automobile; and, where the evidence wholly fails to show directly that the defendant was the operator of the automobile and where the circumstances otherwise appearing in the case are equally consistent with the theory that the other occupant was the driver of the automobile as with the theory that the defendant was the driver, the evidence was insufficient to authorize the verdict of guilty.”

Spence is distinguishable. In this case there was direct evidence by way of Dominick’s testimony, that Laminack was driving the car. Combined with the circumstantial evidence such as the physical positions of the parties after the wreck, this was sufficient to authorize a rational trier of fact to find Laminack guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Schofill v. State, 183 Ga. App. 251 (358 SE2d 651) (1987) (distinguishing Spence based on defendant’s admission plus the location of the other occupant on the vehicle’s passenger side of the vehicle); Roberts v. State, 172 Ga. App. 139, 141 (3) (322 SE2d 342) (1984) (affirming the rejection of defendant’s request to charge under Stephens, holding inter alia that the case was not dependent solely upon circumstantial evidence); Parrish v. State, 109 Ga. App. 808 (137 SE2d 486) (1964) (holding that although there was no direct evidence that defendant was the driver, there was sufficient circumstantial evidence thereby distinguishing Spence).

Moreover, the driving of an automobile while intoxicated may be shown by circumstantial evidence alone, and whether there is a reasonable hypothesis save that of guilt is ordinarily a question for the trier of fact. Only if the evidence fails to exclude a reasonable inference or hypothesis contrary to guilt, is an acquittal demanded as a matter of law. Jones v. State, 187 Ga. App. 132 (1) (369 SE2d 509) (1988).

2. The next enumeration is that the trial court erred in admitting in evidence the results of a blood alcohol test which showed that appellant’s blood-alcohol concentration was “.22 grams percent.”

Laminack contends that the test results were inadmissible because she was not advised of her right to have an independent test made by someone of her own choosing. OCGA §§ 40-5-55; 40-6-392 (a) (3) and (4). See Perano v. State, 250 Ga. 704 (300 SE2d 668) (1983).

The investigating officer testified that he did not apprise Laminack of her implied consent rights because her condition was such that she could not have understood what he was telling her. OCGA § 40-5-55 (b); Rogers v. State, 163 Ga. App. 641 (1) (295 SE2d 140) (1982).

Decided October 29, 1991.

Jack F. Witcher, for appellant.

William A. Foster III, District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.

Standing in the way of our consideration of whether Laminack’s condition rendered her incapable of refusing to consent is the roadblock presented by Laminack’s failure to object to the admission of the evidence at trial. See, e.g., Skinner v. State, 155 Ga. App. 754, 755 (272 SE2d 570) (1980). In fact, she stipulated the test results into evidence.

3. Finally, Laminack contends that the trial court erred in convicting her of DUI because there was no admissible evidence that she was under the influence of alcohol to the extent that she was a “less safe” driver. OCGA § 40-6-391 (a) (1); Clay v. State, 193 Ga. App. 377 (387 SE2d 644) (1989). She was tried on a citation which simply charged a violation of “Code Section 40-6-391” and did not specify any subsection.

Since the blood-alcohol test showed that Laminack’s blood-alcohol concentration was .22 grams, she is guilty of violating OCGA § 40-6-391 (a) (4); it was not necessary to establish that the influence of alcohol rendered it less safe for her to drive. Alternatively, under subsection (a) (1), the evidence that the influence of alcohol did in fact render it less safe for Laminack to drive was overwhelming even without her in-court admission that she was not able to drive because of her alcohol consumption, when they left the river.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A92A0040.
    BEMBRY v. DeKALB COUNTY et al.
    (412 SE2d 882)
   McMurray, Presiding Judge.

“Appellant has failed to follow the proper procedures required by law when appealing from a decision of a superior court to which a writ of certiorari has been taken from a decision of a lower court. OCGA § 5-6-35 (Code Ann. § 6-701.1). Therefore, his appeal must be dismissed. McCrary v. City of Atlanta, 158 Ga. App. 406 (280 SE2d 906) (1981); Bradfield v. Jackson, 156 Ga. App. 81 (274 SE2d 164) (1980).” Crawford v. Goza, 168 Ga. App. 565 (310 SE2d 1).

Appeal dismissed.

Sognier, C. J., and Cooper, J., concur.

Decided October 29, 1991.

Joe H. Bembry, pro se.

James E. Kirkland, for appellees.


author: Pope, Judge.

text:
    A90A1450.
    FRENCH v. THE STATE.
    (412 SE2d 882)
    Decided September 10, 1991
    Reconsideration denied October 30, 1991.

      William M. Warner, for appellant.

      Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.
   Pope, Judge.

This court having entered a judgment in the above-styled case at 198 Ga. App. 210 (401 SE2d 67) (1990) affirming the judgment of the trial court, and remanding the case with direction for consideration of defendant’s claim of ineffective assistance of trial counsel, and the Supreme Court having reversed the portion of this court’s opinion remanding the case with direction at 261 Ga. 424 (405 SE2d 35) (1991), judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Carley, P. J., Beasley, Cooper and Andrews, JJ., concur.


author: Cooper, Judge.

text:
    A91A0817.
    MILLS et al. v. LLOYDS, LONDON.
    (411 SE2d 713)
   Cooper, Judge.

Appellant, Izeal Mills, (hereafter “Mills”) applied for a homeowner’s insurance policy through The Sorrells Agency, an independent insurance agency. Because Mills cannot read or write, a secretary at The Sorrells Agency assisted him with the application by asking him the questions on the application and writing down responses. The Sorrells Agency sent the completed application to the managing general agent for appellee who issued a Lloyd’s, London homeowner’s policy on a house owned by Mills and his wife. The application indicated that the house was not vacant and was owner occupied. When the house was destroyed by fire, it was in fact vacant and neither Mills nor his wife had ever lived in the house. Consequently, appellee refused to pay Mills’ claim and Mills and his wife filed this action. Appellee moved for summary judgment on the basis of the affidavits and depositions submitted by the parties, and the trial court granted appellee’s motion. In their sole enumeration of error, appellants contend that the trial court erred in granting summary judgment to appellee because there is a genuine issue of material fact as to whether misrepresentations in the insurance application are attributable to the fault of Mills or appellee. We agree with Mills and reverse.

Appellee submitted the affidavit of the owner of The Sorrells Agency who stated that he understood that Mills was living in the house and that he would not have attempted to insure the property with the agent of appellee had he known it was vacant. The secretary who assisted Mills submitted her affidavit and stated therein that she asked Mills each question on the application and wrote down each response; that Mills was specifically asked whether the house was vacant and whether he was living in the house; that Mills answered “no” to the first question and “yes” to the second question; that she was unaware that Mills was misrepresenting the facts concerning the occupancy of the house; and that Mills understood the questions asked and represented to her that the responses were true and correct to the best of his knowledge. Mills submitted an affidavit in which he stated that the secretary asked him questions and filled out the application; that she asked him if he was living in the house and he told her that he was “fixin’ ” to move in to the house and that he was going to do some work on the floors in the house before he moved in; that she gave him the application to sign; that because he cannot read or write he trusted that the secretary put down the correct information and he could not verify the accuracy of the information; and that at no time did he ever tell the secretary, the owner of The Sorrells Agency or anyone else connected with appellee that he was actually living in the house.

The case of Liberty Nat. Life Ins. Co. v. Houk, 248 Ga. 111 (281 SE2d 583) (1981) is indistinguishable from the present case. In Houk, the insurance company denied a claim because the application contained incorrect information about the insured’s wife. The insured contended that he in fact gave correct answers to the insurance agent who in turn marked the answers incorrectly on the application but that this was not noticed by the insured. The Houk court stated: “As held in Stillson v. Prudential Ins. Co., 202 Ga. 79 (42 SE2d 121) (1947), in an action on a contract of insurance, the insurance company is considered estopped to deny liability on the insurance contract, where the insured has given correct answers to questions in the insurance policy application posed by the insurance agent and the insurance agent, either through fraud or negligence, has filled in the answer incorrectly. Accordingly, we agree with the Court of Appeals that the superior court did not err in denying the insurance company’s motion for summary judgment.” Houk, supra at 112. This court has continued to deny summary adjudication in situations similar to the instant case. See O’Kelley v. Southland Life Ins. Co., 167 Ga. App. 455 (305 SE2d 873) (1983); Browning v. Davis, 167 Ga. App. 393 (306 SE2d 40) (1983), affirmed Davis v. Browning, 252 Ga. 10 (311 SE2d 168) (1984). Accordingly, we reverse the order of the trial court granting summary judgment to appellee.

Decided September 3, 1991

Reconsideration denied October 30, 1991

Scott & Quarterman, Howard T. Scott, Bradley S. Wolff, Donald T. Wells, Jr., for appellants.

Crim & Bassler, Harry W. Bassler, Nikolai Makarenko, Jr., for appellee.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0887.
    JONES et al. v. WORTHAM et al.
    (411 SE2d 716)
   Cooper, Judge.

Appellant Michelle Camp (“Camp”) leased an automobile from appellee AAA Rent-A-Car, Inc. (“AAA”) because the vehicle that she owned was being repaired. At the time she leased the car, Camp was insured under an automobile insurance policy issued by appellant Safeway Insurance Company of Georgia (“Safeway”). At that time, AAA provided insurance coverage on the vehicles that it owned pursuant to a self-insurer certificate as authorized by OCGA § 40-9-101. Camp obtained possession of the leased vehicle after she signed a written rental agreement and while she was operating the leased vehicle, she had an accident in which appellee Pamela Wortham (“Wortham”) was injured. Appellant Jones is Camp’s father and was only involved in the suit because his credit card was used by Camp to pay for the rental car. Wortham originally sued Camp and AAA; Jones and Safeway were brought into the suit by AAA as third-party defendants; and Camp filed a cross-claim against AAA. A jury rendered a verdict on Wortham’s claim for $7,000 in favor of both Wortham and AAA and against Camp. Camp, Jones and Safeway moved for summary judgment seeking a determination that AAA was the primary insurer, and AAA moved for summary judgment seeking a determination that Safeway was the primary insurer. The trial court granted the motion of AAA and held that Safeway was the primary insurer to satisfy the judgment. The trial court based its decision solely upon language contained in the rental agreement signed by Camp which stated, “RENTER FURTHER AGREES THAT AAA Rent-A-Car, Inc. FURNISHES NO INSURANCE WHATSOEVER TO THE RENTER and renter expressly agrees and warrants that he has insurance that covers the rented vehicle and the operation thereof and his insurance is primary coverage. . . .” Appellants contend that the trial court erred in granting AAA’s motion for summary judgment, in denying Camp’s motion and in finding that Safeway was the primary insurer.

All parties to this appeal state that the issue involved is the determination of the primary insurer as between the driver/lessee’s insurer and the owner/lessor’s insurer, thus calling upon us to decide the question left open in Wausau Ins. Co. v. Lightnin’ Truck Rental, 194 Ga. App. 819 (2) (392 SE2d 32) (1990). This case, however, has generated two amicus briefs in which it is contended that reliance on the language in the rental contract could allow “U-drive-it” (see OCGA § 40-9-102) rental agencies to completely exempt themselves from the duty to provide any liability insurance to third persons via a disclaimer in the rental contract. We do not interpret the language in the rental agreement in such a manner. The language of the rental agreement at issue here is ambiguous in that it does not specify whether the insurance mentioned is liability insurance which inures to the benefit of third parties or insurance which only covers the driver and/or the vehicle involved. See Copy Systems of Savannah v. Page, 197 Ga. App. 435, 436 (398 SE2d 784) (1990). Applying the rule of construction that both leases and insurance contracts are to be construed in favor of the lessee and/or the insured, see Claussen v. Aetna Cas. & Sur. Co., 259 Ga. 333 (1) (380 SE2d 686) (1989); Farm Supply Co. of Albany v. Cook, 116 Ga. App. 814 (2) (159 SE2d 128) (1967), we conclude that the language at issue does not exempt the lessor from providing liability insurance for injury to third parties. Nor do we find that OCGA § 40-9-102, which provides that lessees from U-drive-it agencies furnish their own insurance, completely exempts the agencies from their duty to procure liability insurance as owners of vehicles pursuant to OCGA § 33-34-4 (a).

Although AAA is not completely exempt from providing liability insurance pursuant to the rental agreement, the question phrased by both parties hereto remains — which liability insurance is the primary insurance? This is an issue of first impression. It is undisputed that both Safeway’s policy and AAA’s certificate of self-insurance cover the accident at issue and each insurance is sufficient to satisfy the judgment entered in favor of Wortham. In our analysis, we must consider several statutory and case law authorities, none of which speak directly to the issue at hand. “Georgia has an ‘automobile related plan by which . . . insurance “follows the car.” ’ [Cit.] In line with this policy, OCGA § 33-34-4 (a) mandates that ‘(n)o owner of a motor vehicle required to be registered in this state or any other person . . . shall operate or authorize any other person to operate the motor vehicle unless the owner has insurance on the vehicle providing the following minimum . . . coverage. . . .’ Industrial Indem. Co. v. Walck, 192 Ga. App. 754, 755-756 (386 SE2d 521) (1989). Thus, as a general rule “the onus to procure insurance is put on the owner and others are prohibited from operating the vehicle until that is done.” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 694 (353 SE2d 186) (1987). However, the legislature has made exceptions to this general rule. For example, “OCGA § 33-34-3 (e) . . . is in derogation of this basic scheme and allows the operator’s insurance to be primary when driving a car owned by an entity engaged in the business of selling motor vehicles.” Walck, supra at 756. OCGA § 33-34-3 (e) further provides that in this situation when both the operator and the owner are insured under complying policies the owner’s policy shall afford excess coverage. Although no similar statutory provision exists with respect to U-drive-it agencies, OCGA § 40-9-102 does state that “[a]ny person who rents motor vehicles from a U-drive-it owner is required to provide his own insurance. . . .” The statute also penalizes a U-drive-it owner if a motor vehicle is turned over to any person who does not have insurance. The operator’s insurance company has evaluated and insured the risks present when the operator drives a vehicle, which is why we believe OCGA § 40-9-102 requires each individual operator to carry insurance. Although the legislature has not spoken to the specific issue raised herein, we have considered the statutes, and we conclude that in the instant case, the operator’s insurance should be primary and the owner’s insurance should afford excess coverage, if any.

We note that Safeway’s policy did contain an “excess insurance” clause which stated that any liability insurance provided by the company for a vehicle not owned by the insured shall be excess of any other collectible insurance. Typically, when the owner and the driver are both covered by insurance and one of the policies contains an “excess insurance” clause pertaining to non-ownership coverage, the owner’s policy is primary and the other policy affords the excess coverage. Georgia Mut. Ins. Co. v. Southern Gen. Ins. Co., 181 Ga. App. 238, 239-240 (351 SE2d 658) (1986). We do not deem this rule to be controlling in the instant case because here a U-drive-it agency is involved. These agencies have received special treatment by the legislature in OCGA § 40-9-102. On the basis of the existing statutes, as discussed above, we affirm the decision of the trial court granting summary judgment to AAA and finding that Safeway is the primary insurer.

Decided September 6, 1991

Reconsideration denied October 30, 1991

Crim & Bassler, Harry W. Bassler, Joseph M. Murphey, for appellants.

Mitchell & Mitchell, Darel C. Mitchell, Rand & Ezor, Samuel S. Olens, for appellees.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Sognier, Chief Judge.

text:
    A91A1110.
    MERRILL v. THE STATE.
    (411 SE2d 750)
   Sognier, Chief Judge.

Marc Lawrence Merrill appeals from the denial of his motion to quash an accusation, which motion was based on an assertion of double jeopardy. See Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982).

1. Appellant contends the trial court erroneously denied his motion. The record reveals that appellant was accused in September 1989 of driving under the influence of alcohol and leaving the scene of an accident. The trial court denied appellant’s motion to suppress in January 1990, and trial began on March 15, 1990. The transcript reflects that the evening recess was announced and the jury was informed to reconvene at 9:00 a.m. the following morning. The record next shows entry of an order of nolle prosequi on March 16, 1990 and the subsequent refiling of the accusation against appellant.

Appellant contends that the nolle prosequi, entered after the jury was impanelled, wás without his consent under OCGA §§ 17-8-3 or 16-1-8 (e) (1), and thus constituted an improper termination barring the current prosecution. OCGA § 16-1-8 (a) (2); Doyal v. State, 70 Ga. 134, 142-143 (3) (1883); see also Burks v. State, 194 Ga. App. 809 (392 SE2d 300) (1990). At the hearing on the motion, the trial judge noted that he had no independent recollection of the case, but that it was his policy to require nolle prosequi orders to be signed in open court. When asked whether he recollected appellant consenting to the order, appellant’s attorney claimed “we have the right to remain silent on that point.” The prosecutor stated it was his memory that the discussion on the order occurred in chambers, that the trial judge asked appellant “was that okay with him for [the State] nol. prosing the case, and he consented at that time.”

We affirm. The trial court found that based on the record and its general policy, it had signed the order in open court; that appellant, through counsel, had been given an opportunity to object; and that no objection was heard by the court. Appellant adduced no evidence at the hearing to show that the order was entered without his consent. Instead, he argues that the burden was on the State to establish affirmatively that he did consent and, in the absence of a transcript, we must presume no consent was given. However, there is a well established presumption in favor of the regularity and legality of all proceedings in the trial court until otherwise shown, Conley v. State, 172 Ga. App. 884, 885 (2) (324 SE2d 750) (1984), and this court will not presume error from a silent record. Rogers v. State, 155 Ga. App. 685 (1) (272 SE2d 549) (1980). Furthermore, the trial court had before it at the hearing the prosecutor’s uncontroverted statement that appellant had consented to the order. The trial court’s ruling on appellant’s motion was not clearly erroneous. See generally Del Rio v. State, 171 Ga. App. 381, 386 (320 SE2d 236) (1984).

Decided October 15, 1991

Reconsideration denied October 30, 1991

Robert S. Devins, for appellant.

Gerald N. Blaney, Jr., Solicitor, for appellee.

2. We need not address the State’s argument that this court cannot entertain appellant’s enumeration addressing the denial of a motion to suppress as part of a direct appeal from the denial of a motion to quash the accusation, since the record here establishes that appellant’s motion to suppress was made as to the first accusation and heard in January 1990, before the nolle prosequi was entered on March 16, 1990. At that time the prosecution was at an end, and all the incidents to it came to an end. State v. Davis, 196 Ga. App. 785, 786 (397 SE2d 58) (1990). Accordingly, the trial court’s January 1990 ruling on the motion to suppress cannot be considered by this court. See Jones v. State, 115 Ga. 814, 817-818 (1) (42 SE 271) (1902).

Judgment affirmed.

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


text:
    A91A1354.
    WALKER v. THE STATE.
    (411 SE2d 734)
   Pope, Judge.

Defendant Charles Kelly Walker appeals his conviction for DUI and resulting sentence. We affirm.

1. Defendant first contends the trial court erred in failing to grant his motion for directed verdict because the State failed to prove the offense occurred in Hall County, Georgia, as alleged in the accusation. Our review of the transcript shows the evidence was more than sufficient to establish that the offense occurred in Hall County. Consequently, this enumeration is without merit.

2. Defendant next contends a fatal variance exists between the allegations of the accusation and the proof adduced at trial because the accusation stated that the offense occurred “upon that street and highway known as Winder Highway at Road Atlanta Race Track” and the undisputed evidence at trial showed that the offense occurred within the confines of Road Atlanta Race Track but not on Winder Highway. Again we find no merit to this contention. “The provisions of OCGA §§ 40-6-3 and 40-6-391 make it an offense to operate a motor vehicle under the influence of an intoxicant on the public highways and elsewhere in the State of Georgia. The exact location is not a material element of this offense and the [accusation] is sufficiently certain if it charges that the offense was committed in a particular county. Flanders v. State, 97 Ga. App. 779 (104 SE2d 538) (1958). Felchlin v. State, 159 Ga. App. 120 (1) (282 SE2d 743) (1981).” (Punctuation omitted.) Russell v. State, 174 Ga. App. 436, 437 (330 SE2d 175) (1985). Consequently, testimony that defendant committed the offense at Road Atlanta Race Track and not Winder Road at Road Atlanta Race Track “as alleged in the accusation was not a fatal variance since the exact location is not a material element of [the offense charged], and the accusation was sufficiently certain since it charged that the offense was committed in a particular county.” Endsley v. State, 184 Ga. App. 797, 798 (1) (363 SE2d 1) (1987).

3. Defendant also argues that the State failed to prove he was under the influence of “intoxicating liquors” as alleged in the accusation because the evidence showed defendant had consumed 12 beers but no liquor at the time of his arrest. “Not every variance in proof from that alleged in the indictment is fatal.” Givens v. State, 149 Ga. App. 83, 86 (253 SE2d 447) (1979). “The criterion is whether this variance misinformed or misled the defendant to his prejudice or leaves him subject to subsequent prosecution for the same offense.” Id. See De Palma v. State, 225 Ga. 465 (3) (169 SE2d 801) (1969). Applying this test, the “variance” in this case clearly was not fatal. See Jackson v. State, 158 Ga. App. 702 (282 SE2d 181) (1981) (in which the defendant’s conviction was upheld when the proof at trial showed the crime had been committed with a shotgun and not a pistol as alleged in the indictment). Consequently, we find no merit to this enumeration.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

Decided October 8, 1991

Reconsideration denied October 30, 1991

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, Anne C. Allen, for appellant.

Jerry Rylee, Solicitor, Graham McKinnon IV, Assistant Solicitor, for appellee.


author: Andrews, Judge.

text:
    A91A0760.
    DREWRY et al. v. THE STATE.
    (411 SE2d 898)
   Andrews, Judge.

Drewry, Harrison, Sparkman, and Thomas, appellants, and Frazier, who did not join the appeal, were indicted for one count of violating the Georgia Racketeer Influenced and Corrupt Organizations statute, OCGA § 16-14-1 et seq. and 34 counts of commercial gambling, OCGA § 16-12-22 (6). The acts charged as incidents of commercial gambling also formed the basis of the predicate acts alleged in the RICO count. Defendants appeal, after grant of their interlocutory application, from denial of numerous general and special demurrers to the indictment.

1. The first two enumerations deal with denial of general demurrers to the RICO count and to the 34 commercial gambling counts.

(a) As to the RICO count, the claimed infirmity is that the indictment fails to explicitly set out the “purpose” of the enterprise, which is alleged to be an association in fact among the defendants, who are individually identified in the RICO count.

“ ‘The true test of the sufficiency of an indictment that will withstand a general demurrer is laid down by Judge Bleckley ... as follows: “If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premised, the guilt of the accused follows as a legal conclusion, the indictment is good.” ’ [Cit.]” Gower v. State, 71 Ga. App. 127, 128 (1) (30 SE2d 298) (1944). See State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977).

Pretermitting the fact that defendants have cited no authority and we are unaware of any which requires that the purpose of the enterprise be spelled out in detail in the indictment, a purpose is set out in the RICO count. It alleges that the defendants did “endeavor to conduct and participate in, directly and indirectly an enterprise .. . for the purpose of pecuniary gain,” through a pattern of racketeering activity.

An indictment which charges the offense in the language of the defining statute and describes the acts constituting the offense sufficiently to put the defendant on notice of the offense with which he is charged survives a general demurrer. Gaines v. State, 80 Ga. App. 512, 517 (56 SE2d 772) (1949). A group of individuals associated in fact sufficiently alleges an enterprise under OCGA § 16-14-3 (6). Chancey v. State, 256 Ga. 415, 417 (349 SE2d 717) (1986); see United States v. Cagnina, 697 F2d 915, 920 (1) (11th Cir. 1983). There was no error in overruling this demurrer.

(b) The claimed infirmity in the commercial gambling counts is that the allegation of a “numbers game” or “bug” as a “lottery” conflicts with the definition of lottery in OCGA § 16-12-20 (4) and therefore does not allege commercial gambling, defined in OCGA § 16-12-22 (6). “Lottery” is defined by the former as “any scheme or procedure whereby one or more prizes are distributed by chance among persons who have paid or promised consideration for a chance to win such prize, whether such scheme or procedure is called a pool, lottery, raffle, gift, gift enterprise, sale, policy game, or by some other name.” Commercial gambling is defined by the latter as “set[ting] up or promoting] any lottery” as well as selling or possessing for transfer evidence of participation in a lottery.

The commercial gambling counts allege the defendants did “promote, encourage, and assist a lottery based upon wagers and bets placed on a three digit number with the winning combination . . . derived daily from the New York Stock Exchange” or the winning numbers in the Illinois Lottery.

Both parties present factual assertions in their briefs to support their arguments that the “bug” or “numbers game” alleged is or is not a lottery as defined in the statute. This plainly shows that the issue is not determinable by demurrer without considering the evidence to be presented. The indictment alleges a lottery and it is not facially flawed. See Monte Carlo Parties v. Webb, 253 Ga. 508, 509 (1) (322 SE2d 246) (1984). The argument made is better determined at trial upon appropriate motion.

2. Enumerations 3 and 4 contend that, if the indictment survives the general demurrer, defendant is entitled to specific information as to the means by which the defendants associated, the purpose of the association, and the method by which the alleged acts of commercial gambling were committed.

While there is no Georgia case directly addressing the issue, federal authority is persuasive. See United States v. Thevis, 665 F2d 616, 625 (3) & (4) (5th Cir. 1982). Also, there is no such requirement concerning alleging the elements of the similar crime of conspiracy, and no reason there should be one for RICO or commercial gambling. Causey v. State, 154 Ga. App. 76, 78 (2) (267 SE2d 475) (1980). These enumerations are without merit.

3. Finally, defendants contend that the counts are duplicitous, in that the predicate acts are the same facts used as the basis for the substantive counts and that the allegation of “lottery” includes two crimes as defined by Georgia law. The latter concern is addressed by our holdings supra.

Decided October 30, 1991.

Groover & Childs, Denmark Groover, Jr., Frank H. Childs, Jr., R. Robider Markwalter, Christina L. Hunt, Althea L. Buafo, for appellants.

Willis B. Sparks III, District Attorney, Sharon T. Ratley, Thomas J. Matthews, Assistant District Attorneys, for appellee.

While an indictment may accuse a defendant of more than one crime based on the same set of facts, an accused may not be subjected to multiple punishments if the crimes charged are the same as a matter of fact or as a matter of law. Martin v. State, 189 Ga. App. 483, 496 (10) (376 SE2d 888) (1988). Again, this issue is premature and inappropriate for resolution by way of demurrer. Id.

Judgment affirmed.

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


text:
    A91A0866.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. MURPHY.
    (411 SE2d 791)
   Sognier, Chief Judge.

Carol Murphy brought suit against her automobile insurer, Georgia Farm Bureau Mutual Insurance Company (GFBM), seeking to recover the full value of her automobile which she alleged was totalled in an accident, plus attorney fees and penalties under OCGA § 33-4-6 (b). The jury found in her favor, and GFBM appeals.

1. Appellant contends the trial court erred by denying its motion for judgment notwithstanding the verdict as to the bad faith penalties and attorney fees because there was no evidence to support the verdict and as a matter of law it did not act in bad faith. In reviewing an award of bad faith penalties, “[t]he proper rule is that the judgment should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer.” Colonial Life &c. Ins. Co. v. McClain, 243 Ga. 263, 265 (1) (253 SE2d 745) (1979).

The transcript reveals that shortly before midnight on August 11, 1986, appellee was driving her Ford Taurus down a highway toward Baxley when she lost control of her vehicle, left the road, and travelled 444 feet before hitting a pecan tree. Although appellee was intoxicated at the time of the crash, appellant did not claim that her intoxication barred her from recovering under the policy. Evidence was adduced that after the collision and despite a flattened front right tire, appellee drove the car back onto the highway where, approximately 11 miles later, the right rear tire assembly fell off. Nevertheless, because the car was a front wheel drive vehicle, appellee was able to continue down the highway for another 20 miles, at which point the car caught on fire.

Appellee’s expert, James Stone, stated that he was called to remove the car after the accident and that he examined it when it was brought to his son’s body shop. He was able to observe the frame of the car’s unitized body while it was hoisted on the wrecker, and he testified that the frame had been so warped by the impact with the tree that the car was totalled before it sustained the fire damage. He also testified that the severity of the damage could not be seen unless the car was raised off the ground. Stone estimated that the value of the car before the collision was $14,928 and that it had only salvage value of $300 to $400 afterward.

Three witnesses who had investigated the damage to appellee’s car testified on appellant’s behalf. Gerald Gill testified he appraised the car shortly after the collision when it had wheels only on the left side and thus was almost flat on the ground. He testified that he knew appellee’s car had been involved in a collision with a tree before it caught on fire and that he knew the car had a unitized body. He stated that a car with a unitized body would have to be placed on a special machine designed to realign warped frames before it could be determined whether the damage to the unitized body could be repaired or would require replacement. Nonetheless, he did not have the car placed on such a machine nor did he even have it raised so that he could see the underlying damage. Instead, he limited his examination to kneeling on the ground and looking under the car “the best that I could.” Based on this examination he concluded that the damage to the car from its impact with the tree was not sufficient to have totalled the car, but rather that the primary damage was caused by the fire. He estimated the damage to the car caused by the collision at $2,207.

Appellant’s adjuster, Doug Vincent, testified that damage to a unitized body car did not necessarily mean the car was a total loss. He testified that he looked at appellee’s car although he did not appraise it, and that he saw nothing indicating the impact with the tree was so severe that the car could not be repaired.

Two years after the accident and after appellee’s suit had been filed, Richard Bryan, a consulting engineer, examined the car, which had been removed to Savannah. His deposition, which was read at trial, reflected that although he observed the car’s undercarriage and shot photographs of the “distorted metal” he observed there, when questioned as to what distorted the metal he responded that he was “not sure precisely what did this,” although he attributed “some” of the damage to the car’s impact with the road when the right rear tire assembly collapsed. Nothing in Bryan’s deposition indicates that he examined the car so as to determine to what extent the collision may have damaged it, but rather it appears that he was focused exclusively on attempting to determine why the car caught fire.

Appellant contends it was entitled to judgment n.o.v. because the evidence established that its refusal to pay was not unfounded or frivolous, but instead was based on the reasonable ground that the car was totalled not because of the initial collision but because of appellee’s failure to protect the vehicle after the collision as required by the policy. Appellant argues that the destruction of the vehicle was the result of fire and thus the damages appellee claimed were not recoverable under the policy. Given that appellant knew at the time the claim was investigated that the car was damaged by its collision with the tree before it was damaged by the fire, and that there was no question that appellant was liable under the policy for the damage stemming from that initial collision (appellee’s intoxication notwithstanding), we find that the evidence fails to present a reasonable basis for appellant’s failure to investigate the extent of the damage the car sustained as a result of the covered collision. We do not agree with appellant that disputed questions of fact regarding a collateral issue, i.e., the cause of the post-collision fire, constituted a “reasonable ground” for appellant to contest its liability for damages stemming from a covered claim. As to the covered claim, the transcript reflects that appellant never properly investigated whether the car was totalled by the initial collision. Rather, the evidence here established that appellant’s appraiser and adjuster could not have seen the extent of the damage caused by the collision just by looking at the car without it being elevated and that appellant’s engineer’s investigation was centered solely on determining the cause of the fire damage. None of these witnesses could testify even at the time of trial to what extent the damages incurred were the result of the initial collision, although those damages were uncontrovertedly covered under the policy.

“[A] failure upon the part of [an insurer] to investigate [an] alleged loss or damage, and a denial upon the part of the company of any liability whatsoever upon the ground that such loss or damage was not recoverable under the policy, but arose from some cause not covered by the policy, may be considered as evidence of bad faith on the part of the insurance company in refusing to pay for such loss or damage.” Central Manufacturers Mut. Ins. Co. v. Graham, 24 Ga. App. 199 (1) (99 SE 434) (1919). While, unlike Graham, the case sub judice does not demonstrate a total failure to investigate the facts and circumstances surrounding the collision, neither is this case like the situation in Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 704-706 (302 SE2d 605) (1983), in which the insurer investigated before disregarding the explanation given by its insured for a claim under the policy, and therefore was not obligated to expand its investigation to consider additional evidence proffered by the insured to corroborate the insured’s version of the loss. Rather, the evidence adduced in the case sub judice, construed to support the verdict, reveals that although appellant investigated appellee’s claim that her car was totalled by the collision, that investigation was focused so exclusively on determining that the post-collision and non-covered fire caused the damage that appellant’s agents failed to take the necessary steps to enable them to determine the extent of the damage caused by the covered collision.

We do not agree with appellant that the case sub judice is analogous to Pennsylvania &c. Ins. Co. v. Davis, 186 Ga. App. 301, 302 (2) (367 SE2d 91) (1988), in which we reversed the verdict of attorney fees awarded the insureds pursuant to OCGA § 33-4-6. In that case, the insureds’ expert did not testify regarding the cause of the damage to the insureds’ property and no evidence was introduced to rebut the testimony by the insurer’s expert that the damage was not caused by a covered event. In the case at bar, appellee adduced expert testimony that her car was totalled by the collision that occurred before the car sustained any fire damage, and the only testimony introduced by appellant to rebut this testimony was from an expert who had failed to examine the car properly when initially investigating the matter and who based his opinion on photographs taken years after the collision.

“The question of bad faith is for the jury unless it can be said that as a matter of law there was a reasonable defense which vindicates the insurer’s good faith. [Cit.] Considering the issues in the case, we cannot conclude that [appellant’s] defense was reasonable as a matter of law. [Cit.]” St. Paul &c. Ins. Co. v. Snitzer, 183 Ga. App. 395, 397 (2) (358 SE2d 925) (1987). The trial court did not err by denying appellant’s motion for judgment n.o.v. See generally Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (1) (C) (256 SE2d 916) (1979).

2. In view of the evidence set forth above, which authorized the jury to conclude that appellee’s automobile was totalled upon impact with the pecan tree, we find no error in the trial court’s denial of appellant’s motion for a new trial on the basis that the damage was not the result of an accident covered by the policy. See generally Marsh v. White, 185 Ga. App. 642, 644 (3) (365 SE2d 464) (1988). Given that there was evidence that the property covered by the policy was rendered valueless by the collision with the tree, it follows that appellee did not breach the policy provision requiring her to protect the automobile from further damage when she continued to operate the totalled vehicle.

Decided October 30, 1991.

Highsmith & Highsmith, Robert S. Highsmith, Sr., for appellant.

Emmett P. Johnson, Jr., for appellee.

Judgment affirmed.

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


text:
    A91A1275.
    TILLMAN GROUP, INC. v. KEITH et al.
    (411 SE2d 794)
   Judge Arnold Shulman.

The appellee homeowners filed suit in magistrate court seeking to recover damages for breach of warranty in the amount of $2,500, based on certain alleged defects in a house they had purchased from the appellant builder. At the closing, which took place on March 1, 1989, the appellees had received from the appellant a “Limited Warranty” against construction defects. This warranty agreement contained a provision specifying that “[a]ny controversy or claim arising out of or relation (sic) to this Limited Warranty, or an alleged breach hereof, shall be settled by binding arbitration in accordance with the Rules of the Construction Arbitration Associates, Ltd., and the Georgia Arbitration Code.”

In its answer to the appellees’ complaint, the appellant denied any liability and further asserted that “[t]he Limited Warranty which plaintiff alleges was breached requires arbitration under a separate arbitration section.” At no point, however, did the appellant file a motion to compel arbitration or to stay the court proceedings pending arbitration. The case proceeded to trial in the magistrate court, resulting in a judgment in favor of the appellees. The appellant then appealed to superior court, where it moved for summary judgment based on the arbitration provision. The superior court denied the motion, ruling that the appellant had waived its right to arbitration by litigating the merits of the claim in the magistrate court without filing a motion to compel arbitration. The case is before us pursuant to our grant of an application by the appellant for interlocutory review of this ruling.

1. The Georgia Arbitration Code (OCGA § 9-9-1 et seq.) provides “the exclusive means by which agreements to arbitrate disputes arising under [contracts made after July 1, 1988] can be enforced.” OCGA § 9-9-2 (b). Inasmuch as the warranty agreement at issue in this case was entered into in 1989, it follows that the present controversy is governed by the provisions of that Code, Section 6 (a) of which provides, in pertinent part, as follows: “A party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. . . . If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action. If the application is granted, the order shall operate to stay a pending or subsequent action, or so much of it as is referable to arbitration.” (Emphasis supplied.) OCGA § 9-9-6 (a).

Because the grant of an application to compel arbitration operates merely to stay further proceedings in a pending action when entered by the court in which the action is pending, and because the “ ‘power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants,’ ” Bloomfield v. Liggett & Myers, 230 Ga. 484, 485 (198 SE2d 144) (1973), we conclude that the magistrate court was “a court having jurisdiction to hear a motion to compel arbitration” within the contemplation of OCGA § 9-9-6 (a). We note that an aggrieved party is authorized by a separate provision of the Georgia Arbitration Code to apply to superior court “for an order of attachment or for a preliminary injunction in connection with an arbitrable controversy. . . .” OCGA § 9-9-4 (e). The existence of this separate Code section providing for injunctive relief strongly implies that the relief contemplated by OCGA § 9-6-6 (a) was not deemed by the Legislature to be equitable in nature.

2. “An agreement to arbitrate is waived by any action of a party which is inconsistent with the right of arbitration. [Cits.]” McCormick-Morgan, Inc. v. Whitehead Elec. Co., 179 Ga. App. 10, 13 (345 SE2d 53) (1986). Having concluded that the magistrate court had jurisdiction to entertain a motion to compel arbitration in the present case, we hold that by litigating the merits of the appellees’ claim in that court without filing such a motion or otherwise seeking to initiate arbitration proceedings, the appellant waived its right to insist upon arbitration.

3. “ ‘ “[A] motion for summary judgment applies to the merits of the claim or to matters in bar but not to matters in abatement. [Cits.]” ’ ” Deller v. Smith, 250 Ga. 157, 163 (296 SE2d 49) (1982). Because the remedy of a defendant who is aggrieved by the refusal of a plaintiff to arbitrate is to apply to the court for a stay of proceedings pending arbitration, we hold that a motion for summary judgment was not, in any event, a proper procedural vehicle by which to seek to enforce the arbitration provision at issue in this case.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.

Decided October 30, 1991.

Culverhouse & Deems, Daniel R. Deems, for appellant.

Thomas P. Bishop, for appellees.


text:
    A91A1065.
    STEDRY et al. v. MITCHELL.
    (411 SE2d 735)
   Cooper, Judge.

Appellants appeal from a judgment and an award of attorney fees granted to appellee by the trial court after a bench trial.

Appellee is the owner of a turnkey company, which performs cleaning and renovation services for apartment complexes. Appellee sued appellants, Marie and Fred Stedry, the owners of the Mountain Grove Apartments, on an account due with respect to turnkey work performed by appellee on the apartments. Appellee originally sued appellants and the management company, and appellee obtained a default judgment against the management company. Appellee was unable to collect on the default judgment and proceeded to trial against appellants on the grounds that they are personally liable for the contract with appellee because of their partnership status in the management of the complex and because personal representatives of appellants actually contracted with appellee and promised payment to appellee.

1. Appellants first enumerate as error the $10,000 judgment granted to appellee, arguing that there was no evidence to show that appellants are personally liable because appellee’s contract and her dealings were with the management company. Appellee testified before the trial court that she did deal with representatives of the management company, however, she also testified that she had direct contact with the personal secretary of Fred Stedry (“Stedry”); that the secretary was aware of and acquiesced to the work appellee was performing on the apartments; and that the secretary told appellee that she was trying to get with Stedry to set up payments to appellee. Appellee also testified that she received promises to pay from the secretary. Appellee stated that she observed Stedry at the property, and he was “around” the property when she was being asked to do work. Stedry testified that he was not actively involved in the management of the property but that he had leased the property to Southern Diversified Properties, Inc. (“Southern”), who then employed its subsidiary, Apartment Management Company (“AMC”), to actively manage the complex. Stedry was aware from the outset that Southern had engaged AMC to manage the property. No lease agreement or any documentation was introduced at trial supporting Stedry’s testimony that he was the lessor, or that Southern or AMC were the lessees, of the property. However, appellee introduced a written Statement of Partnership, signed and dated by all the partners, which restated a general partnership between appellants and Southern. The partnership agreement itself was not introduced at trial. The general partnership was created to own and operate the Mountain Grove Apartments. The statement provided that Southern was to manage, control and make all decisions affecting the business and assets of the partnership and was to have exclusive responsibility for the operation of the apartment complex. At trial there was no evidence submitted to confirm that the Partnership ever owned the property; instead, it is admitted by all that title remains in the appellants’ names. Stedry testified that the partnership agreement was contingent upon the approval of the mortgage holder, and if it were not approved, then the agreement would operate as a lease for two years at which time the partners would receive a guaranteed income. There was no evidence introduced at trial indicating whether the partnership agreement was ever submitted to or approved by the mortgage holder, nor was there any evidence, documentary or otherwise, supporting Stedry’s description of the arrangement with Southern. There was introduced a closing statement and other documents evidencing transfer of a percentage of the ownership of the apartments from appellants to Southern, but this document was not explained through any witness’ testimony.

We have carefully considered the evidence, and the lack thereof, in the record and conclude that, despite Stedry’s testimony to the contrary, the evidence indicates that the property was to be owned and operated by and through a general partnership between appellants and Southern. Southern, having exclusive authority to manage the property, employed its subsidiary to actively perform the management duties. This employment was within the scope of Southern’s authority and was known and approved by Stedry. When AMC’s duties were terminated, Stedry, as general partner, had his personal secretary actively involved with the property. “An admission made by a partner concerning partnership affairs within the scope of his authority is evidence against the partnership. OCGA § 14-8-11. . . . An admission by an employee of the partnership within the scope of his authority can be considered against the partnership. OCGA § 24-3-33.” Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. 152, 158 (2) (392 SE2d 897) (1990). Whether AMC and/or Stedry’s secretary were agents of the partnership was for the finder of fact to determine. Id. at 159. The trial court found “[t]hat [appellants] contracted, through their agents, with [appellee] for certain work performed upon their property. ...” “In a bench trial the court sits as trier of fact and its findings will not be set aside unless clearly erroneous. [Cit.]” Venture Design v. Original Appalachian Artworks, 197 Ga. App. 432, 434 (1) (398 SE2d 781) (1990). Thus, the court’s “findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them. [Cits.]” Jones v. Shafer, 196 Ga. App. 254 (395 SE2d 662) (1990). Although the trial court did not make a finding as to the existence of a general partnership between appellants and Southern, the court could reasonably have found, based on the evidence produced, that the promises of AMC and/or the secretary, as agents of the partnership, sustained the personal liability of appellants, as general partners, for the account due appellee. See Venture Design, supra at 434.

Decided October 9, 1991

Reconsideration denied October 31, 1991

Lawson & Davis, James T. Johnston, Jr., William F. Mitchell, for appellants.

2. Appellants next contend that the court erred in awarding attorney fees to appellee. A separate hearing was held before the court on appellee’s claim for attorney fees; however, no transcript of that hearing was made. “The burden is on the appellants ... to prepare a copy of the transcript for inclusion in the appellate record. [Cit.] Accordingly, without a transcript to consider we must presume that the trial court’s findings were proper and supported by competent evidence. [Cit.]” Young v. First American Bank of Ga., 196 Ga. App. 348, 349 (1) (396 SE2d 73) (1990). We affirm the attorney fee award made by the trial court.

3. Appellants finally contend that the court erred in awarding interest on the judgment at the rate of 18 percent per annum. Since the judgment in fact awards interest at the rate of 12 percent per annum, this enumeration is without merit.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.

On Motion for Reconsideration.

Appellant contends that the court erred on awarding pre-judgment interest at the rate of 12 percent. All the invoices submitted by appellee to appellants stated that if the invoice was not paid within 30 days, a 1V2 percent finance charge would be added to the account. Thus, the appellee expressed an intent prior to trial to charge the maximum lVá percent per month allowed by OCGA § 7-4-16. Even though the court could have assessed prejudgment interest at 18 percent, the judgment stated that all interest would accrue at 12 percent. There was no error.

Motion for reconsideration denied.

Smith & Welch, Benjamin W. Studdard III, for appellee.


text:
    A91A1091.
    McGUIRE v. WITCHER.
    (411 SE2d 875)
   Cooper, Judge.

Appellant appeals an order in which the trial court determined that appellant was the father of appellee’s son.

In 1978, appellee, mother of Marlin Johnson, swore to an affidavit and signed a subsequent warrant accusing Charles Howard Johnson (“Johnson”) of wilfully and voluntarily abandoning “his” illegitimate child, Marlin Johnson. Thereafter, in a criminal proceeding initiated by the State of Georgia, Johnson pled guilty to the crime of abandonment and was ordered to pay support for Marlin Johnson. Approximately six years after Johnson’s conviction, an Human Leucocyte Antigen (HLA) blood analysis was performed which excluded Johnson as the father of Marlin Johnson, yet the abandonment conviction was never vacated. In 1987, a criminal abandonment proceeding was brought by the State of Georgia against appellant with respect to Marlin Johnson and appellee’s daughter. In that criminal proceeding, the jury found that appellant was not the father of appellee’s daughter, and the court directed a verdict for appellant with respect to Marlin Johnson, without addressing the issue of paternity “but simply addressing the issue of whether or not the evidence [was] sufficient to support a finding that there was an intentional and willful abandonment of” Marlin Johnson. In 1988, appellee filed a civil action against appellant seeking a determination of paternity and child support, again with respect to her daughter and Marlin Johnson. HLA evidence was introduced in this action which did not exclude appellant as the father of both the children. In this action, the trial court, after hearing evidence and argument, ruled that the 1987 criminal jury verdict for appellant was res judicata as to the issue of the daughter’s paternity but issued an order finding that appellant was the father of Marlin Johnson. It is from this order that appellant appeals.

In his sole enumeration of error, appellant contends that consideration of the issue of Marlin Johnson’s paternity in the 1988 civil trial should have been precluded by the doctrines of res judicata and collateral estoppel because of the previous determination of paternity underlying the. 1978 abandonment proceeding against Charles Johnson. We disagree. “ ‘For res judicata to act as a bar of a subsequent action, the original and subsequent action must bear certain identical characteristics. The two actions must be between identical parties or their privies, and the cause of action in each suit must be identical. Collateral estoppel, like res judicata, requires identity of parties or privity. However, unlike res judicata, collateral estoppel does not require identity of the claim but only precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action. [Cit.]’ [Cit.]” Stiltjes v. Ridco Exterminating Co., 197 Ga. App. 852 (399 SE2d 708) (1990). Georgia does not generally allow the record in a criminal prosecution to act as a bar to a later civil action arising from the same transaction because the two actions are not between the same parties and because the rules as to the competency of witnesses and the weight of evidence required for a finding are different. Webb v. McDaniel, 218 Ga. 366 (2) (127 SE2d 900) (1962). Appellant argues that a conviction from a criminal trial prosecuted by the State of Georgia against Johnson should have a preclusive effect in a subsequent civil trial between appellee and appellant. Neither the plaintiff nor the defendant in the two actions was identical nor were they privies; one is criminal and one is civil. Therefore, pursuant to the rules enunciated above, neither res judicata nor collateral estoppel apply.

Decided October 16, 1991

Reconsideration denied October 31, 1991

Richard H. Jack, for appellant.

We have considered appellant’s argument that since there can only be one biological father for any one child, the law should not allow the possibility for inconsistent paternity adjudications. In the instant case, biological evidence absolutely excluded Johnson as the father; giving the first adjudication preclusive effect would perpetuate, rather than eliminate any inconsistency present. Adjudications of paternity must be supported by evidence to the trier of fact and any prior adjudications that do not have preclusive effect can be used by the trier of fact for their evidentiary value in the effort to arrive at the truth in a paternity action. The case cited by appellant, Macuch v. Pettey, 170 Ga. App. 467 (317 SE2d 262) (1984), is distinguishable from the instant case because the plaintiff therein was identical in both actions and was estopped from taking a position in the second action inconsistent with her position in the first action. In other cases in which the issue of paternity was given a preclusive effect, the parties to the two actions were identical. See Department of Human Resources v. Brown, 196 Ga. App. 875 (397 SE2d 73) (1990); Cummings v. Carter, 155 Ga. App. 688 (272 SE2d 552) (1980). Accordingly, we do not find error in the order of the trial court.'

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.

Morton M. Wiggins III, for appellee.


author: Birdsong, Presiding Judge.

text:
    A91A1508.
    HOLMES v. DRUCKER.
    (411 SE2d 728)
   Birdsong, Presiding Judge.

This is an appeal by plaintiff Barbara Holmes in a legal malpractice action. Appellant was injured in an automobile collision on August 4, 1986, and retained attorney Kenneth Drucker on March 2, 1987, to file a personal injury lawsuit. Drucker failed to file suit on Holmes’ behalf before the statute of limitation expired as to her claims. This malpractice suit was filed June 26, 1989, alleging negligence, breach of fiduciary duty and fraud, Holmes contending that in addition to allowing the statute of limitation to expire on her claims, Drucker had stated falsely to her that he was preparing and had filed Holmes’ suit; that he made other statements to her to conceal his failure to file suit; that he failed to answer her telephone calls and letters; and “that he refused to return Holmes’ file after she retained new counsel.

The trial court in this malpractice action bifurcated the trial (see OCGA § 51-12-5.1 (d) (1)), ruling that in the first hearing the jury would determine the question of liability and whether punitive damages should be awarded, the second hearing to be held to determine attorney fees and punitive damages, if any. On the day of trial, the trial court granted Drucker’s motion in limine to exclude in the first hearing all evidence of Drucker’s conduct occurring after the statute of limitation expired on Holmes’ personal injury claims. In the first stage of the bifurcated hearing, the jury awarded Holmes $6,187.43 actual damages for Drucker’s failure to file suit before the statute of limitation expired; the jury also determined punitive damages should not be awarded. The second hearing thus addressed only the issue of attorney fees and expenses of litigation. Holmes appeals the jury verdict and judgment. Held:

1. Holmes contends the trial court erred in granting Drucker’s motion in limine, by holding that the only issue was Drucker’s liability for failing to file Holmes’ lawsuit within the statute of limitation and that evidence of Drucker’s subsequent acts was irrelevant to that issue; and that the trial court erred in refusing, as irrelevant, evidence that Drucker breached his fiduciary duty and committed fraud as alleged in her malpractice complaint.

Drucker contends that “conduct subsequent to the tort is not admissible to support a claim for punitive damages”; see C & S Nat. Bank v. Bougas, 245 Ga. 412, 413-414 (265 SE2d 562); McNorrill v. Candler Gen. Hosp., 188 Ga. App. 636 (373 SE2d 780). As he puts it, there was absolutely no evidence Holmes suffered any damage on account of Drucker’s “bad acts” after and other than his failure to file suit within the statute of limitation and that since there is no evidence he “intentionally” failed to file her lawsuit, punitive damages would not be warranted in any case.

Georgia law generally excludes, as irrelevant and prejudicial, evidence of defendant’s conduct occurring after the act giving rise to plaintiff’s claim. In McNorrill, supra, we held that in a suit for negligence, evidence that a nurse altered a medical report after the injurious act was not admissible to prove aggravating circumstances, because the alteration of the report “did not relate to the nurse’s commission of the act itself.” Id. at 637. But, we also noted that McNorrill sued only for a negligent act, and that he stated he “never intended to set forth a separate cause of action for fraud and deceit but rather that the alteration of the report was a fact which aggravated the underlying original tort claim.” Id. at 636.

Drucker’s failure to file Holmes’ personal injury suit within the statute of limitation is not the only injury for which Holmes sought recovery in this malpractice action. Holmes sued as well for breach of fiduciary duty and for fraud; she has a cause of action for such misconduct as concealment and misrepresentation by her attorney, and for the breach of his fiduciary duty to her. See Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga. App. 791, 792-793 (399 SE2d 565). “Concealment per se constitutes actual fraud where one party has the right to expect full communication of the facts from another”; (id. at 793), and constructive fraud may consist of “any act of omission or commission, contrary to legal or equitable duty, trust or confidence justly reposed. . . .” OCGA § 23-2-51. Where there is fraud or breach of a legal or private duty accompanied by any damage, the law gives a right to recover. OCGA §§ 51-1-6; 51-1-8; 51-6-1; 51-6-2. Damages, even only nominal damages, are given as compensation for injury done. OCGA § 51-12-4. The position taken by appellee in his motion in limine is that the client could recover damages for only one omission — in this instance the failure to file suit within the statute of limitation — and that any subsequent “bad act” committed to conceal that omission or to delay its discovery, is irrelevant unless it succeeded in its purpose. This is a very dangerous idea.

We do not doubt that the client has a cause of action for all tortious acts, and acts violating the fiduciary and contractual relationship. See Arnall, Golden & Gregory, supra. The trial court excluded evidence of the very acts (fraud, breach of fiduciary duty and intentional misconduct) for which Holmes sought damages, the theory being that those acts were not aggravating circumstances as to one of the legal insults committed. This was error. The jury might have determined that as to these other acts there were damages, and aggravating circumstances justifying punitive damages, not for Drucker’s failure to file Holmes’ lawsuit within the statute of limitation, but because of these other acts. The jury’s conclusion at the first phase of the bifurcated trial that no punitive damages were authorized might have been a valid conclusion as to the failure to file a timely lawsuit; but the complete exclusion of evidence as to other claims proposed by Holmes was error, and requires reversal of the verdict.

2. Appellee Drucker suggests the trial court’s ruling withholding from the jury the evidence as to his other alleged acts subsequent to his failure to file a timely suit for the appellee was excused or justified by his “stipulation” that he had breached his fiduciary duty to appellant.

Inasmuch as he contends that nothing he did or did not do after failing to file a timely lawsuit is actionable, his stipulation that he breached his fiduciary duty must be in reference to his failure to file a timely lawsuit as the “breach of fiduciary duty.” Obviously he could not, by admitting that one breach, prevent evidence of other breaches or wrongful acts. If, on the other hand, he meant to concede that his subsequent acts were a breach of fiduciary duty, then he has admitted they are actionable. Even if appellant/plaintiff suffered only nominal damages by them, the question of damages is for the jury, and Drucker could not, by stipulating that they were a breach, remove them from the jury’s consideration.

In criminal cases, Georgia courts have held that “ ‘[Relevant evidence cannot be kept from the jury by an admission of the fact or waiver of the requirement of proof.’ ” Scott v. State, 250 Ga. 195, 199 (297 SE2d 18). In this case, Drucker’s stipulation that he breached his fiduciary duty acted to confuse the issue raised by him that “subsequent bad acts” are not actionable in the first place. As in Scott v. State, supra, the evidence of “subsequent bad acts” was relevant, and he could not keep it from the jury by stipulating that he breached his fiduciary duty in some way.

3. Appellant complains of the trial court’s refusal to charge her request No. 27; however, her objection at trial did not state distinctly the matter to which she objected and the grounds of her objection. OCGA § 5-5-24 (a); Isaacs v. Williams Bros., 195 Ga. App. 812, 813 (395 SE2d 11).

4. Appellant Holmes complains that the jury’s award of attorney fees was grossly inadequate. The evidence as to the contingency fee agreed upon by Holmes provides a sufficient and correct measure of attorney fees based upon a percentage of the damages awarded (see American Motorists Ins. Co. v. King Shrimp Co., 199 Ga. App. 847, 851 (406 SE2d 273) but in view of our reversal of award of damages in Division 1, the award of attorney fees must be reversed.

Judgment reversed.

Pope and Cooper, JJ., concur.

Decided October 3, 1991

Reconsideration denied October 31, 1991.

George R. Dean, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Johannes S. Kingma, for appellee.


text:
    A91A1672.
    THE STATE v. PATTEE.
    (411 SE2d 751)
   Birdsong, Presiding Judge.

An accusation was filed against appellee James Richard Pattee for failing to leave the campus of a public school when directed, in violation of OCGA § 16-11-35. The trial court granted Pattee’s motion to quash and dismiss the criminal warrant, and the State appeals pursuant to OCGA § 5-7-1 (1). Held:

OCGA § 16-11-35 (b) provides that any person who is not a student, officer or employee of a public school who commits “any act likely to interfere with the peaceful conduct of the activities of the campus or facility, or has entered the campus or facility for the purpose of committing any such act,” may be directed by the proper authorities to leave; and if he fails to do so he shall be guilty of a misdemeanor.

The warrant sworn out against Pattee by the Superintendent of the Union County Board of Education charged that on February 8, 1991, he came to the high school his son attended “to bring his son food from his pizza place, then entered the cafeteria and had lunch with his son. [Pattee] came back on February 11th with more pizza and coke, when the school principal told him that school policy was that no commercial food was to be taken in the cafeteria, but he and his son could eat in his office. [Pattee] came back on the 13th of February and was asked to leave the school property [and] after a discussion he refused. [Pattee) would not leave until the Police Department arrived on the scene. [Pattee] did interfere with the peaceful conduct of the activities of the cafeteria.”

Pattee’s motion to quash and dismiss the criminal warrant, filed March 22, 1991, stated that he owned and managed a restaurant in Blairsville, Georgia, and that it was more practical for him to prepare lunch for his son there instead of closing his business and traveling to his home to prepare the meal; that on February 11 the principal of Union County High School requested him not to bring “commercial” food to the school for his son’s lunch; that on February 13, in an attempt to comply with this request he prepared a lunch for his son at the restaurant consisting of two roast beef sandwiches, two desserts and potato chips, all of which were wrapped in clear plastic wrap, placed in a plain white paper bag and taken to the high school; and that neither the food wrappings nor the lunch bag reflected any commercial markings whatsoever. The motion contended that since no written policy existed regarding food brought to the high school by parents of students, particularly the prohibition of commercial food, Pattee did not “interfere with the peaceful conduct of the activities of the cafeteria.”

On April 24, 1991, an accusation was filed against Pattee charging him with “failure to leave campus when directed (public school).” Pattee made bond and appeared as instructed before the court for arraignment on May 2. Also present in court were the district attorney and his investigator. When the trial judge announced that he was ready to hear the motion to quash, the district attorney advised the court that the assistant district attorney assigned to the case was not there. No reason was given for his absence, nor was a motion made to continue the hearing until he could be present. The court announced that it would like to go forward with the hearing and asked the investigator if he had checked out the case and knew the facts. The investigator replied: “Your Honor, I talked to [the assistant district attorney] yesterday in Rabun County concerning this case and he indicated to me that although he couldn’t be here this morning, as of right now he does not have enough evidence to pursue this case any further. He could not find where the law had been broken as far as a . . . Georgia statute.”

Upon inquiry of the court as to what the facts were, the investigator replied that he understood Pattee had carried lunch to his son on maybe more than one occasion to eat with him, and that he also understood that “maybe the first time he went in he probably had his restaurant name on the sack, is that not true?” The district attorney then stated that his understanding was that when Pattee went to the school the first time with lunch for his son he was told that “that was against school policy but they let him eat with his son that day in the lunchroom and then he went back the second day and they told him again that he couldn’t and on that day they did allow the son to go out and eat with him in his car, and the third day he came back they charged him. ...” After Pattee’s attorney gave an account of his version of what had occurred, the trial court commented it was “not going to be used to . . . charge and try people for criminal offenses for violation of some little regulation they have at school,” and dismissed the case by order filed the same day.

Subsequently the court filed a written finding of facts stating that Pattee had been asked to leave the school when he brought his son lunch and attempted to eat with him for the third time; and that the warrant indicated that Pattee had violated school policy in that he brought “commercial food” to the school and refused to leave when asked to do so. The court concluded that Pattee’s conduct did not rise to the level of criminal activity and was not a matter for criminal prosecution; that the school should handle the matter administratively; and that at most it might justify a civil petition for injunction. The State contends that the trial court erred in granting the motion to quash, thereby dismissing the case and barring any further criminal prosecution.

We are familiar with the principles of law cited by appellant, that a motion to quash is nothing more than a demurrer and therefore not a proper method for attacking an indictment or accusation for any defect not appearing on its face. See, e.g., State v. Eubanks, 239 Ga. 483 (238 SE2d 38); State v. O’Quinn, 192 Ga. App. 359 (2) (384 SE2d 888); State v. Hooper, 132 Ga. App. 413 (208 SE2d 161). Thus, “the sufficiency of the evidence to prove the offense charged is not in issue on a motion to quash. [Cit.]” State v. Tart, 183 Ga. App. 737 (359 SE2d 722). As reasoned by the Supreme Court, “[w]e know of no rule of law that would permit an indictment to be quashed on the ground that the state’s subsequent proof might not authorize a conviction for the offense charged in the indictment. Such a rule would be incapable of application for the reason that at this stage of the proceedings — post indictment, pre-trial — no one knows what the state’s proof will show.” Foster v. State, 239 Ga. 302, 303 (236 SE2d 644).

Pattee argues that OCGA § 16-11-35 is a trespass statute which protects school activities from unauthorized disruption; and since his act of bringing lunch to his son could not be construed as a criminal disruption of the peaceful conduct of the cafeteria, particularly when there was no trespass on the cafeteria premises, the arrest warrant and accusation were defective on their face and subject to a motion to quash. However, the argument fails to meet the test endorsed by this court that “an indictment is insufficient to withstand a demurrer if all of the facts which the indictment charges can be admitted and still the accused is innocent, but the indictment is sufficient, if taking the facts alleged as proven, the guilt of the accused follows as a legal conclusion. [Cit.]” (Emphasis supplied.) State v. Greene, 171 Ga. App. 329, 331 (320 SE2d 183). See also Green v. State, 194 Ga. App. 343 (5) (390 SE2d 285). If the facts alleged in the arrest warrant and accusation are taken as true, Pattee’s guilt could follow as a legal conclusion. If Pattee’s version of what occurred was accepted, there would, of course, be no statutory violation, but the sufficiency of the evidence to prove the offense is not a proper issue for resolution by a motion to quash. Tart, supra.

Nevertheless, we think the trial judge’s dismissal should be affirmed here because it was shown at the hearing that the case was not going to be presented to the grand jury for indictment or tried on the accusation as submitted. Once it was conceded by the district attorney’s investigator, apparently without objection by the district attorney, that the assistant district attorney prosecuting the case for the State had stated that after investigating the case to date there was not enough evidence to pursue it further and he could not find where a Georgia law had been broken, he necessarily confirmed before the court that the facts alleged in the arrest warrant and accusation did not constitute a violation of the law and a motion to quash was proper. A party’s acquiescence to the ruling of a trial court deprives the party of a right to complain of that ruling on appeal (Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536)), and acquiescence can be caused by silence (Horan v. Pirkle, 197 Ga. App. 151 (1) (397 SE2d 734)). Further, the district attorney had an adequate opportunity both to refute the comments of his investigator and to contest the motion to quash on the record, but he elected not to do so. Thus, the State has waived its right to now raise this issue on appeal. Tatum v. State, 259 Ga. 284, 287 (3) (380 SE2d 253). Additionally, it is a well established appellate rule of this State that an appellant cannot, as here, complain of a result his own procedure or conduct aided in causing. Wilburn v. State, 199 Ga. App. 667, 669 (405 SE2d 889); see Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251). Under these circumstances, we can perceive no valid interest to be served in reversing the trial court’s ruling.

Decided October 15, 1991

Reconsideration denied October 31, 1991

Michael H. Crawford, District Attorney, for appellant.

Mikele S. Carter, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.