author: McMurray, Presiding Judge. Blackburn, Judge,

text:
    A98A0587, A98A0588.
    WINBURN, LEWIS & BARROW, P.C. v. RICHARDSON et al.; and vice versa.
    (504 SE2d 480)
   McMurray, Presiding Judge.

. These appeals concern interpretation of an hourly plus contingency attorney fee contract between Winburn, Lewis & Barrow, P.C. (“the firm”) and contingent beneficiaries to the Estate of Smith Bridges (“the estate”), Carol B. Richardson, Lavern Parton and Jeanene Pass (“the clients”). The clients initially agreed to pay the firm $85 per hour to account for their brother’s, Kenneth Bridges’, suspected waste of estate property while he was serving as trustee of their mother’s marital trust. After probate court proceedings confirmed that Kenneth Bridges had squandered about half of the estate’s estimated gross value — leaving the Bridges’ family farm (“the farm”) as the estate’s primary asset, the firm posted an attorney fee retainer letter to the clients indicating that the firm would file a superior court action against Kenneth Bridges and others to recover the estate’s lost assets if the clients would pay the firm $75 per hour plus “one-third of the value of proceeds of recovery in your individual behalves, if any.” The clients executed this letter (“the retainer letter”), and the firm proceeded on the clients’ behalf in two consecutive superior court actions and an appeal in Richardson v. Bridges, 260 Ga. 62 (389 SE2d 215). The firm also represented the clients during negotiations which resulted in a consent judgment and a settlement agreement providing the clients with vested interests in equal shares of the farm’s sale proceeds. This settlement provided Kenneth Bridges with a lesser share of the farm’s sale proceeds. The case sub judice arose when the clients challenged the firm’s claim to a third of their share of the farm’s sale proceeds.

The firm filed an attorney’s lien and a declaratory judgment action to determine its rights under the retainer letter. The clients filed undue influence, unreasonableness, unconscionability, illegality, fraud and breach of fiduciary duty defenses, pertinently claiming that the firm unfairly inserted the contingent fee provision in the modified retainer agreement without explaining the scope of the provision’s coverage. The trial court, however, struck these defenses because the clients did not file a supporting expert’s affidavit in compliance with OCGA § 9-11-9.1. The trial court also denied the parties’ opposing motions for summary judgment, allowing a jury to resolve the scope of the retainer letter’s “proceeds of recovery” terms. Before trial, the trial court granted the firm’s motion in limine to exclude any evidence concerning the clients’ malpractice claims.

The clients’ trial testimony indicates that the firm never explained the scope of the retainer letter’s “proceeds of recovery” terms; that there were no discussions or negotiations regarding a need to replace the existing $85 per hour retainer agreement; and that the firm did not advise the clients (until after the clients had settled their claims against Kenneth Bridges) about its position that the retainer letter gave the firm a stake in the Bridges’ family farm. The clients explained during trial that they understood the retainer letter’s “proceeds of recovery” terms to mean that the firm would be entitled to a third of any funds returned to the estate by Kenneth Bridges and others. The clients testified that they never intended the “proceeds of recovery” terms to cover their share of the Bridges’ family farm. The firm challenged these explanations in a motion for directed verdict, urging that the “proceeds of recovery” language should be construed in its favor by the trial court as a matter of contractual construction.

The trial court denied the firm’s motion for directed verdict, and the jury returned a special verdict finding that the retainer letter’s “ ‘value of proceeds of recovery’ ” terms do not encompass any proceeds from the sale of the Bridges’ family farm. The firm filed an appeal in Case No. A98A0587 after the trial court entered judgment on this verdict, and the clients filed a cross-appeal in Case No. A98A0588. Held:

Case No. A98A0587

1. Citing Brown v. Welch, 253 Ga. 118 (317 SE2d 520), and Daughtry v. Cobb, 189 Ga. 113 (5 SE2d 352), the firm contends the retainer letter’s “proceeds of recovery” language requires the clients to pay the firm a percentage of the farm’s sale proceeds.

In Brown v. Welch, 253 Ga. 118, supra, an attorney claimed part of his client’s inheritance under a fee contract providing the attorney with a percentage of “ ‘all assets and money recovered’ ” from the client’s father’s estate. Because the client did not “recover” more than he was due via intestacy, the Supreme Court of Georgia held that the attorney was due nothing. The Supreme Court of Georgia reasoned that the fee agreement’s “ ‘all assets and money recovered’ ” language did not include the client’s vested interest in his father’s estate because, absent clear and unambiguous contractual terms stating an opposite intent, such broad terms will not be presumed to provide an attorney with a right to participate in an entitlement which is already vested in the client or which is immediately and unequivocally available to the client. Id. at 119. Extending this logic in the case sub judice, the firm urges that the retainer letter’s “proceeds of recovery” terms require the clients to pay over a percentage of the farm’s sale proceeds because, before settling with Kenneth Bridges and others, the clients only had contingent interests in the farm. This reasoning is not in line with the basis of the holding in Brown.

The Brown decision was based on strict construction of an attorney fee agreement which did not precisely set out the scope of its coverage. The Supreme Court of Georgia thus concluded that the attorney fee contract was “ambiguous” and construed it against the attorney who drafted the agreement. Id. at 119. While the case sub judice is like Brown in that the retainer letter’s “proceeds of recovery” language may be construed broadly, the retainer letter is unlike the attorney fee agreement in Brown because it goes further by suggesting a contingent attorney fee based only on the “proceeds of recovery” from a lawsuit to bring wasted assets back into the estate. This difference brings the case sub judice more in line with the analysis in Daughtry v. Cobb, 189 Ga. 113, supra.

In Daughtry, an attorney claimed a percentage fee under a contingency attorney fee contract which was based on the client’s recovery from an estate. The Supreme Court of Georgia read this contract’s percentage of “recovery” language in conjunction with another contractual provision and found that the apparent ambiguity injected by these provisions authorized a jury’s finding that the parties intended for the attorney to take a percentage of the client’s inheritance. Applying this analysis in the case sub judice, we find that the retainer letter’s suggestion that the “proceeds of recovery” terms apply only to gains the clients may acquire in a lawsuit to bring wasted assets back into the estate injects ambiguity in the retainer letter which takes the contract’s “proceeds of recovery” language outside the definition of the term, “recovery,” set out in Brown v. Welch, 253 Ga. 118, supra. Accordingly, finding no rule of law or contractual construction controlling the scope of the retainer letter’s coverage, we hold that the trial court properly allowed the jury to resolve the parties’ intent with regard to the retainer letter’s “proceeds of recovery” terms. See CareAmerica v. Southern Care Corp., 229 Ga. App. 878, 880 (1), 881 (494 SE2d 720).

The clients’ testimony that they understood the retainer letter’s coverage to include only gains from a lawsuit to bring wasted assets back into the estate and that the firm’s attorneys never told them otherwise (before settling their dispute with Kenneth Bridges) authorizes the jury’s finding that the retainer letter’s “ ‘value of proceeds of recovery’ ” terms do not apply to the farm’s sale proceeds. Accordingly, just as in Daughtry v. Cobb, 189 Ga. 113, 118 (2), supra, the jury’s verdict was authorized. The trial court did not err in denying the firm’s motion for directed verdict. A party is not entitled to a directed verdict if there is any evidence to support the jury’s verdict. OCGA § 9-11-50 (a); Denson v. City of Atlanta, 202 Ga. App. 325, 326 (1) (414 SE2d 312).

2. The firm next contends that the trial court erred in entering judgment on the jury’s verdict because, even under the clients’ explanation of intent, the undisputed facts reveal that the lawsuits against Kenneth Bridges enhanced the clients’ interest to the extent that Kenneth Bridges, in settling with the clients, compromised his right to an equal share of the farm’s sale proceeds. We do not agree. Although Kenneth Bridges settled for a lesser percentage of the farm’s sale proceeds, the evidence adduced at trial indicates that this compromise did not bring any of the assets he allegedly wasted back into the estate. The jury’s verdict was therefore in line with the evidence and the client’s understanding of the retainer letter’s “proceeds of recovery” terms. Since this Court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict, the trial court did not err in entering judgment on the jury’s verdict. Denson v. City of Atlanta, 202 Ga. App. 325, 326 (1), supra.

3. Lastly, the firm challenges the trial court’s judgment on the jury’s verdict, contending Carol B. Richardson violated the trial court’s pre-trial order excluding evidence of the firm’s alleged malpractice by testifying that the firm unnecessarily modified the parties’ initial attorney fee agreement (because the clients could afford the firm’s $85 per hour charges); that the firm needlessly filed the superior court actions (because the dispute could have been resolved in the existing probate court action); and that thé firm unnecessarily named the clients’ mother as a party to the underlying dispute. The firm cannot complain about this testimony because it “opened the door” to the appropriateness of its professional judgment by offering professional testimony regarding the reasonableness of its decision to modify the existing attorney fee agreement. See Krebsbach v. State, 209 Ga. App. 474 (1), 475 (433 SE2d 649).

Case No. A98A0588

4. Our holding in Case No. A98A0587 renders it unnecessary to address the clients’ cross-appeal.

Judgments affirmed.

Blackburn and Eldridge, JJ., concur specially.

Blackburn, Judge,

concurring specially.

I agree that the judgment below must be affirmed, but write separately to address plaintiff’s claim that the trial court erred in entering judgment on the jury’s verdict.

In its second enumeration of error, plaintiff contends that the trial court erred in entering judgment on the verdict, because there was no evidence to support the jury’s finding that the parties did not intend for the term “value of proceeds of recovery” to include monies recovered from Bridges out of his share of the farm proceeds. In essence, plaintiff is contending that, even if it is not entitled to one-third of the entire proceeds from the sale of the farm, it is entitled to some recovery because, under the consent judgment, defendants received more than they would otherwise have been entitled to upon the sale of the farm. Plaintiff contends that this extra amount, coming out of Bridges’ share of the proceeds, constitutes a recovery for which it is entitled to a contingency fee.

Decided July 6, 1998

Reconsideration denied July 21, 1998

Cashin, Morton & Mullins, Harry L. Cashin, Jr., Troutman Sanders, Richard W. Gerakitis, Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellant.

Stewart, Melvin & Frost, Frank Armstrong III, for appellee.

However, plaintiff did not move for a directed verdict on this specific ground. Moreover, plaintiff did not object to the special interrogatory submitting this issue to the jury. Accordingly, plaintiff cannot now complain of the trial court’s entry of judgment upon the jury’s special verdict on this issue. See Sun v. Bush, 179 Ga. App. 80, 81 (4) (345 SE2d 85) (1986) (party not entitled to judgment n.o.v. in absence of motion for directed verdict on issue); Knisely v. Gasser, 198 Ga. App. 795, 796-797 (1) (403 SE2d 85) (1991) (party waived claim that special verdict was inconsistent with evidence by failing to timely object to special verdict form).

I am authorized to state that Judge Eldridge joins in this opinion.

       This letter pertinently provides as follows: “Re: Carol B. Richardson, et al. v. Kenneth S. Bridges, et al., Jackson County Superior Court.... You have retained us to represent your interests further in the matter involving the Bridges Estate, and to that end we are proceeding in the Superior Court of Jackson County as reflected in the copy of the Complaint enclosed herewith. After conferring with each of you, and with Ms. Richardson who will assist us in communications with each other, we have agreed to represent your interests on the following basis:... Our fee for services in this matter will be based on the hourly rate of $75.00 per hour for all time expended in the prosecution of the Superior Court civil action only from here on out. In addition, and in consideration of the fact that this represents less than our usual hourly fee, we have also agreed to accept as additional compensation for services rendered an amount of money equal to one-third of the value of the proceeds of recovery in your individual behalves, if any. It is understood that this portion of our fee agreement is contingent only, in that if nothing is recovered for you in your individual behalves, then our sole compensation for services rendered in this matter shall be the amount calculated on the basis of the hourly rate set forth above. ... If this arrangement is agreeable with you, then please indicate by signing your name to the place provided below, returning the signed copy of this letter for our files and keeping the enclosed copy for your records.”

       Another distinction is that Brown involves an attorney fee contract made at inception of the attorney-client relationship while the retainer letter at issue in the case sub judice was made during the attorney-client relationship. Under such circumstances, many jurisdictions adhere to the view that the fee agreement is presumptively invalid, with the burden of proving the agreement’s validity on the attorney. See annotation, Validity & Effect of Contract for Attorney’s Compensation Made After Inception of Attorney-Client Relationship, 13 ALR3d 701, 731, § 13 (a). No such presumption arises in Georgia, however, absent proof that the modified fee agreement was the result of “overreaching, duress, fraud or violation of the confidential relationship, etc.” O’Kelley v. Evans, 119 Ga. App. 167, 169 (2) (166 SE2d 392). See Bailey v. Devine, 123 Ga. 653, 656 (5) (51 SE 603), and 13 ALR3d 701, 737, § 13 (c), supra. While the clients contend in the case sub judice and in their cross-appeal that the retainer letter was the result of such wrongdoing, we need not address these contentions in light of the disposition in the case sub judice. See Brown v. Welch, 253 Ga. 118, 119, supra.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A98A0689.
    BALDWIN COUNTY HOSPITAL AUTHORITY v. TRAWICK.
    (504 SE2d 708)
   Pope, Presiding Judge.

Plaintiff Sharon Trawick sued defendant Baldwin County Hospital Authority d/b/a Oconee Regional Medical Center (“Oconee”) for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, injury to her peace and happiness and punitive damages after Oconee’s personnel reported to the Baldwin County Department of Family & Children Services (“DFACS”) that Trawick’s four-year-old daughter, Che’nal, had tested positive for drugs during a drug screen given to her at Oconee. Oconee answered Trawick’s complaint then moved for summary judgment, claiming that it was immune to liability in the case. The trial court denied the summary judgment motion, but certified the matter for immediate appellate review. We granted Oconee’s application for interlocutory review, and upon that review, reverse the denial of Oconee’s motion.

Construed most favorably to Trawick, the facts show that in February 1995, Che’nal was suffering from an upper respiratory infection and bronchitis. As treatment, Che’nal’s pediatrician prescribed Pediazole and Rondec DM cough medicine. The pediatrician, however, took Che’nal off these prescriptions when Trawick reported that Che’nal had become aggressive and disoriented. A day later, when Che’nal’s behavior and disorientation failed to improve, the pediatrician instructed Trawick to take Che’nal to Oconee’s emergency room. At the emergency room, Che’nal’s urine was tested for drugs. The test came back positive for PCP. Later that day, Che’nal was admitted to Oconee and Oconee’s personnel informed DFACS about the drug test results. No one at Oconee, however, ever directly or indirectly accused Trawick of giving PCP to her daughter. The next day, Trawick had Che’nal transferred to another hospital for additional tests, which showed no sign of PCP in Che’nal’s system. Thereafter, DFACS closed its file on the matter acknowledging the mistaken diagnosis reached by Oconee’s personnel. It is undisputed that the urine test administered to Che’nal by Oconee may have given a false positive reading for PCP due to the cough medicine prescribed to Che’nal.

Pursuant to OCGA § 19-7-5 (c) (1) (B), hospitals and medical personnel who have “reasonable cause to believe that a child has been abused shall report or cause reports of that abuse to be made to [DFACS]. . . Reports of this type are to be made orally, by telephone or other means, as soon as possible, and the failure to make such reports may result in criminal prosecution. OCGA § 19-7-5 (e), (h). Additionally, under OCGA § 19-7-5 (f), “[a]ny . . . hospital . . . participating in the making of ... or causing a report [regarding suspected child abuse] to be made to [DFACS] . . . or to an appropriate police authority. . . shall in so doing be immune from any civil or criminal liability that might otherwise be incurred or imposed, provided such participation ... is made in good faith.”

In its motion for summary judgment, Oconee contended that it acted in good faith when it reported the results of Che’nal’s urine test to DFACS, and thus, that Oconee was entitled to immunity from Trawick’s suit under OCGA § 19-7-5 (f). In support of its contention, Oconee submitted unrefuted affidavit testimony demonstrating that at the time Che’nal was brought to the emergency room, she was not singled out for treatment any different than that received by other similarly situated patients, and only was given a drug test because of her disorientation. Oconee further demonstrated that it had used drug tests like the one given to Che’nal hundreds of times over the past several years, and on such occasions had received fast and reliable data. Additionally, Oconee presented unrefuted evidence that on the day in question all proper controls had been run on the instrument used to make the analysis of Che’nal’s urine, and that the results of the drug screen of Che’nal’s urine only were reported to DFACS for purposes of protecting Che’nal, in accordance with Oconee’s protocol, which clearly was based on the requirements of law.

In spite of the above evidence, and her own acknowledgment that she knew of nothing indicating any attempt on the part of Oconee or its personnel to harm her in the way they handled the drug screen of Che’nal’s urine, Trawick contends that the issue of whether Oconee acted in good or bad faith remains one for a jury due to the apparent failure of Oconee’s personnel to take into consideration any negative effect the prescription medicine Che’nal previously had taken, which was listed on her admission sheet, might have had on the results of her urine test before formulating any professional opinion regarding those results, and based on that opinion, reporting the results to DFACS. We cannot agree.

“ ‘Bad faith’ is the opposite of ‘good faith,’ generally implying or involving actual or constructive fraud; or a design to mislead or deceive another; or a neglect or refusal to fulfill some duty, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. ‘Bad faith’ is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will.” (Citations and punctuation omitted.) Michaels v. Gordon, 211 Ga. App. 470, 473 (2) (b) (439 SE2d 722) (1993). Standing alone, the failure of Oconee’s personnel to take into consideration the effect Che’nal’s prescription medicine might have had on the results of her urine test at most constitutes evidence that Oconee was negligent or guilty of exercising bad judgment in forming its professional opinion that Che’nal might be the subject of child abuse. “However,. . . [evidence] of mere negligence or bad judgment is not [equivalent to evidence of a] refus[al] to fulfill [a] professional dut[y], out of some interested or sinister motive, [nor is it equivalent to evidence of a conscious act based on] some dishonest or improper purpose.” Id. Consequently, in the case at bar, there simply is no competent evidence of bad faith on Oconee’s part. Absent such evidence, the trial court was warranted in granting Oconee’s motion for summary judgment based on the good faith immunity provision found in OCGA § 19-7-5 (f).

Judgment reversed.

Beasley and Ruffin, JJ., concur.

Decided June 17, 1998

Reconsideration denied July 21, 1998.

Jones, Cork & Miller, C. Ashley Royal, Wendell K. Howell, for appellant. Adams & Jordan, Donald J. Jordan, for appellee.


author: Blackburn, Judge.

text:
    A96A2068.
    KOREY v. BELLSOUTH TELECOMMUNICATIONS, INC.
    (504 SE2d 759)
   Blackburn, Judge.

In Korey v. BellSouth Telecommunications, 225 Ga. App. 857 (485 SE2d 498) (1997), we affirmed the grant of summary judgment to BellSouth on its claim against Harold Korey for amounts due on an account for telephone service. On appeal, the Supreme Court reversed, holding that we had incorrectly applied the rules regarding contradictory testimony of a party witness as set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). Korey v. BellSouth Telecommunications, 269 Ga. 108 (498 SE2d 519) (1998). The Supreme Court remanded this case for us “to apply the correct rule and to determine if the trial court’s order was correct for any of the other reasons raised by BellSouth.” Id. at 109.

1. In our earlier opinion, we held that, except for Korey’s contradictory testimony regarding the entity on whose behalf he had established the account, “BellSouth would not ordinarily be entitled to recover from Korey because it had knowingly done business with Atlanta Temps, Inc. after it was created.” Korey, supra, 225 Ga. App. at 858 (1). Construing such contradictory testimony against Korey, however, we held that BellSouth was entitled to summary judgment. Id. at 858-859 (1).

On appeal, however, the Supreme Court held that “the opposing party is not entitled to judgment in its favor where there is evidence other than the favorable portion of the equivocator’s self-contradictory testimony that supports the equivocator’s position.” Korey, supra, 269 Ga. at 109. The Court further held that “[t]he record in this case contained other evidence that supported Korey’s claim that he was not individually liable on the account.” Id. In light of the Supreme Court’s opinion, it is clear that BellSouth is not entitled to summary judgment, and the trial court’s order granting summary judgment to BellSouth must be reversed.

However, although Korey’s contradictory testimony does not require summary judgment in favor of BellSouth, such testimony remains in the record and, for the same reasons discussed in our earlier opinion, precludes summary judgment in favor of Korey. Such testimony would authorize the trier of fact to conclude, as set forth in our prior opinion, that “Korey was acting on behalf of the unincorporated Atlanta Personnel Services, Inc. when he opened the account.” Korey, supra, 225 Ga. App. at 858 (1). If the jury concludes that the telephone service in question was ordered by and provided to this entity, then, as we held in our earlier opinion, the subsequent incorporation of Atlanta Temps, Inc. would not relieve Korey from personal liability. Id. Accordingly, the trial court did not err in denying Korey’s motion for summary judgment.

Decided July 21, 1998.

Mark P. Groves, for appellant.

Strongwater & Cherniak, Leeza R. Cherniak, Jennifer R. Kiser, for appellee.

2. The Supreme Court did not address our ruling in Division 2 of our earlier opinion that the trial court did not err in denying Korey’s motion to add a counterclaim for violation of the Fair Business Practices Act. Korey, supra, 225 Ga. App. at 859 (2). Accordingly, that ruling remains unchanged.

Judgment affirmed in part and reversed in part.

Beasley, J., and Senior Appellate Judge Harold R. Banke concur.


author: Smith, Judge.

text:
    A96A2453.
    WAFFLE HOUSE, INC. v. PADGETT.
    (504 SE2d 759)
    Decided July 21, 1998.

      Goldner, Sommers, Scrudder & Bass, Alfred A. Quillian, Jr.,

      Tiffany T Norman, for appellant.
   Smith, Judge.

In Padgett v. Waffle House, 269 Ga. 105 (498 SE2d 499) (1998), the Supreme Court reversed our decision in Waffle House v. Padgett, 225 Ga. App. 144 (483 SE2d 131) (1997), in which we reversed the judgment of the trial court. Accordingly, our opinion is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the trial court is vacated and the case remanded for proceedings consistent with the opinion of the Supreme Court.

Judgment vacated and case remanded.

Andrews, C. J., and Pope, P. J., concur.

Perkins & Perkins, Clifford C. Perkins, Jr., for appellee.


text:
    A98A0922.
    FRUHLING v. THE STATE.
    (505 SE2d 47)
   Smith, Judge.

Daniel I. Fruhling was charged by accusation with driving under the influence of alcohol to the extent that it was less safe for him to drive, speeding, and exceeding the maximum posted speed limit. Counts 2 and 3 were nol prossed by the .State, and a jury found Fruhling guilty on the remaining count. His motion for new trial as amended was denied, and he appeals. We find no error and affirm.

1. Fruhling asserts the general grounds. Construed in favor of the jury’s verdict, the evidence shows that a Gwinnett County police officer was on patrol in the county when he met Fruhling driving toward him. Fruhling executed a U-turn and sped away. The officer estimated Fruhling’s speed at 50-55 mph in a 45-mph zone, and the patrol car’s radar registered his speed at 60 mph. After the officer pulled Fruhling over, he observed that Fruhling was unsteady on his feet, his speech was slightly slurred, his eyes were bloodshot, dilated, and slow to respond to light, and he had an odor of alcohol on his breath. When the officer asked Fruhling how much he had to drink, he “said he had two.” The officer then performed five field sobriety tests on Fruhling. Fruhling was able to recite the alphabet, although very slowly, but he failed the horizontal gaze nystagmus test, the leg lift test, the finger-to-nose test, and the walk-and-turn test. The alcosensor test was positive for the presence of alcohol on Fruhling’s breath. The officer also testified that, based on his training and experience in over 2,000 DUI arrests, Fruhling was under the influence of alcohol to the extent that he was a less safe driver.

The transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Lewis v. State, 214 Ga. App. 830, 832 (1) (449 SE2d 535) (1994).

2. Fruhling asserts the trial court erred in denying his motion in limine to suppress testimony by the officer that he refused to submit to the Intoxilyzer breath test. The officer testified that while Fruhling verbally agreed to take the test, he repeatedly refused to blow into the machine hard enough to produce a valid sample. This constituted evidence of a “non-verbal refusal.” Allen v. State, 229 Ga. App. 435, 437-438 (494 SE2d 229) (1997). The trial court did not err in denying Fruhling’s motion in limine.

Decided July 22, 1998.

Wayne L. Burnaine, for appellant.

3. Fruhling contends the trial court violated his right of confrontation by admitting into evidence two Georgia Bureau of Investigation certificates of inspection of the Intoxilyzer machine under the business records exception and OCGA § 40-6-392 (f). This contention is controlled adversely to Fruhling by the Supreme Court of Georgia’s decision in Brown v. State, 268 Ga. 76 (485 SE2d 486) (1997). While Fruhling relies on Miller v. State, 266 Ga. 850 (472 SE2d 74) (1996), the Supreme Court expressly distinguished that decision in Brown.

4. Fruhling complains of the portion of the trial court’s charge to the jury stating that “evidence as to the manner of driving, including excessive speed, may be taken into account where there is evidence that the defendant has been drinking” in determining whether a defendant is a less safe driver. It is not error to charge the jury that a defendant’s manner of driving may be taken into account. Smith v. State, 202 Ga. App. 701, 702-703 (2) (415 SE2d 495) (1992), disapproved on other grounds, State v. O’Donnell, 225 Ga. App. 502, 505 (2) (484 SE2d 313) (1997). “Evidence as to the manner of driving, including excessive speed, may be taken into account where there is evidence that the defendant has been drinking, for the purpose of determining whether or not his manner of driving shows him to have been affected by the intoxicant to the extent that he drives less safely and carefully than he might otherwise have done, and for this purpose evidence of travel in excess of the legal rate of speed may be considered.” (Citation and punctuation omitted.) Duggan v. State, 225 Ga. App. 291, 293 (483 SE2d 373) (1997). As noted in Division 1, evidence was submitted to the jury that Fruhling exceeded the speed limit by 15 mph; this charge therefore was adjusted to the evidence and was not error.

5. Fruhling also complains of a portion of the charge to the jury in which the trial court referred to a “chemical trial” instead of a “criminal trial.” But this use of a single incorrect word is obviously a mere verbal slip or a transcription error, considering the similarity in the sound of the two words. An erroneous charge does not warrant reversal in the absence of harm, considering the jury instructions as a whole, and “a mere verbal inaccuracy in a charge, which results from a palpable ‘slip of the tongue,’ and clearly could not have misled or confused the jury is not reversible error.” (Citations and punctuation omitted.) Williams v. State, 267 Ga. 771, 773 (2) (a) (482 SE2d 288) (1997).

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

Gerald, N. Blaney, Jr., Solicitor, William F. Bryant, Assistant Solicitor, for appellee.


text:
    A98A1371.
    CHAPPARONE et al. v. FIRST FLORENCE CORPORATION.
    (504 SE2d 761)
   Pope, Presiding Judge.

Plaintiffs, Anthony and Roseann Chapparone, filed suit against defendant First Florence Corporation d/b/a Best Western Motel to recover damages for more than $20,000 worth of jewelry that was stolen from their room while they were guests of the motel. Best Western answered and then filed a motion for summary judgment, which the superior court granted, and this appeal followed.

According to the complaint, the plaintiffs checked into the motel, and after unloading their vehicle, they put their belongings in their room. The jewelry at issue was inside an attache case which was locked with tumbler type locks. Two hours later, plaintiffs spent an hour away from their room. They returned to their room and the next morning left the motel. Later that day they discovered that the jewelry was missing and contacted the motel, claiming that the jewelry was stolen during their stay.

Here, plaintiffs argue that the court erred in granting summary judgment because the motel had prior and superior knowledge that thefts had occurred both at that motel and at other motels in the area. In support of this argument, plaintiffs cite the deposition testimony of the motel manager that numerous incidents had occurred in the area motels and that there had been three thefts in the preceding year at that Best Western motel. Plaintiffs claim that because of these similar losses, the motel had a duty to warn them of the risk of theft. In particular, they cite a letter from the American Automobile Association to the manager of the Best Western, stating: “[p]olice told our AAA members [plaintiffs] of a previous robbery at this hotel about 45 days earlier. Police said they warned hotel management of a lax [sic] in security at that time.”

Contrary to plaintiffs’ arguments, the grant of summary judgment was proper. The evidence was undisputed that upon checking into the motel, plaintiffs filled out a registration card which stated that the hotel was “not responsible for valuables not deposited in the safe.” The evidence also established that the motel provided lockers as a depository for the guest’s valuable articles. The lockers were located at the front desk and were equipped with locking devices.

It is also undisputed that posted on the bathroom door of the plaintiffs’ motel room was a notice which stated: “RULES AND REGULATIONS ... all moneys, jewelry, coats, valises, and other valuables must be left at the office and checks received therefor; otherwise the proprietor will not be responsible for any losses.” The notice further stated: “GUESTS ARE REQUIRED to deposit money, jewels and other valuables at the main desk for safekeeping, otherwise the hotel/motel will not be responsible for any loss in accepting valuables for safekeeping. Liability for any loss is limited to that provided for under the laws of the State of Georgia.” The notice then set forth the full text of OCGA §§ 43-21-10 through 43-21-14.

Decided July 22, 1998.

Clarence L. Martin, Constance L. Thomas, for appellants.

Kent, Worsham & Smart, A. Martin Kent, for appellee.

OCGA § 43-21-10 provides in pertinent part: “[t]he innkeeper may provide a safe or other place of deposit for valuable articles and, by posting a notice thereof, may require guests of the innkeeper to place such valuable articles therein or the innkeeper shall be relieved from responsibility for such articles.” In the instant case, it is undisputed that the Best Western provided the requisite place of deposit for valuable articles for use by guests. Furthermore, it is undisputed that the notice notifying the guests of these depositories was posted in the room as required by OCGA § 43-21-10.

This Court has held on numerous occasions that adherence to the requirements of OCGA § 43-21-10 insulates an innkeeper from liability arising from property losses for guest’s stolen valuables. Kates v. Brunswick Motel Enterprises, 187 Ga. App. 875 (371 SE2d 686) (1988). Moreover, pretermitting issues regarding admissibility, Best Western’s insulation from liability in this case is not altered by the existence of the letter from the AAA. See Gooden v. Day’s Inn, 196 Ga. App. 324, 325 (1) (395 SE2d 876) (1990). The trial court correctly granted the motion for summary judgment.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.


author: Pope, Presiding Judge. Beasley, Judge,

text:
    A98A1043.
    FLANNAGAN v. CANTRELL.
    (505 SE2d 53)
   Pope, Presiding Judge.

Appellant Susan Flannagan asserts as her sole enumeration that the trial court erred in adjudicating, without her consent, the issue of her son’s custody in a legitimation action filed by Kenneth Frank Cantrell, the child’s biological father.

On April 9, 1997 Cantrell filed a legitimation petition pursuant to OCGA §§ 19-7-22 and 19-7-43 and, as part of his prayer for relief, requested that the trial court award him custody of his son. The petition was served upon Flannagan on July 15, 1997, and a hearing was scheduled for August 5, 1997. Flannagan did not attend the hearing because she claims that Cantrell told her that the hearing had been postponed.

The hearing took place on August 5, 1997, and on August 18, 1997, the trial court entered an order granting Cantrell’s petition for legitimation and also granting physical custody of the child to Cantrell. Flannagan subsequently moved to set aside the order of custody on the grounds that Cantrell had no standing to raise that issue in his petition for legitimation and that she had not consented to the adjudication of the issue of custody in the legitimation proceeding. In an order dated October 8, 1997, the trial court granted the motion to set aside its August 18, 1997 order and further legitimized Cantrell as “the legal father of the child of the parties.” The trial court also granted Cantrell temporary custody over the child until a hearing could be held on the issue of permanent custody. The trial court then signed a certificate of immediate review allowing Flannagan to appeal the grant of temporary custody, and this appeal addresses only the portion of the October 8, 1997 order addressing custody.

This Court previously has held that “custody issues may be adjudicated in a legitimation proceeding — but only with the consent of the parties. In the absence of the mother’s consent, if the father wishes to petition for a change in physical custody, he must do so in a separate proceeding after the judgment of legitimation is entered.” Palmer v. Pinkston, 228 Ga. App. 514, 515(2) (492 SE2d 285) (1997). See Kennedy v. Adams, 218 Ga. App. 120(1) (460 SE2d 540) (1995) (physical precedent only); Gregg v. Barnes, 203 Ga. App. 549, 550 (1) (417 SE2d 206) (1992) (physical precedent only). Cf. Best v. Acker, 133 Ga. App. 250, 251 (2) (211 SE2d 188) (1974) (“custody and control of the child [are] not involved as a distinct issue in [a legitimation] hearing”). In this instance, there is no record that Flannagan consented to the adjudication of the custody issue. Therefore, the trial court could not consider the issue, and we reverse the portion of the October 8, 1997 order granting temporary custody to Cantrell.

Cantrell urges that the trial court should be allowed to determine custody in this proceeding because it would cause the least disruption to the child’s living arrangements if Cantrell is ultimately granted custody. Thus, he argues that allowing the trial court to determine custody is in the best interests of the child, which he asserts is the standard that should govern this proceeding. While this Court previously has held that the best interests of the child standard should be applied to determine whether a father could legitimize a child, Mabry v. Tadlock, 157 Ga. App. 257, 259 (277 SE2d 688) (1981); Best v. Acker, 133 Ga. App. at 252, the application of the standard to the issue of legitimation does not expand the authority of a trial court to consider matters not properly before it in a legitimation proceeding.

Judgment reversed.

Ruffin, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the reversal because the issue of custody was not properly before the court.

By amendment effective July 1, 1997, the statute expressly stated that “[i]ssues of name change, visitation, and custody shall not be determined by the court until such time as a separate petition is filed by one of the parents or by the legal guardian of the child. Custody of the child shall remain in the mother until a court order is entered addressing the issue of custody.” Ga. L. 1997, pp. 1613, 1628-1629, § 14 (OCGA § 19-7-22 (g)). Because this prohibition was part of a whole new subsection which addressed petitions brought by the Department of Human Resources, it is reasonable to construe the statute so as to limit the prohibition to DHR-instituted instances, which Cantrell’s petition is not.

But even if the exclusion of jurisdiction of the issue of custody was meant to apply to all legitimation actions presented in accordance with OCGA § 19-7-22, and thus include father Cantrell’s, it appears that there would be no prohibition. The reason is that what is now designated in the Code as subsection (g) of OCGA § 19-7-22 was dropped when the statute was amended for the second time in 1997, also effective July 1.

The second amendment redesignated the first four sentences of subsection (a) as subsections (a) through (c), deleted the last sentence of subsection (a), and added new subsections (d) through (f). Ga. L. 1997, pp. 1681, 1685, § 5. This second amendment did not retain the subsection which had been added as (b) in the previous act. Instead, the Code Commission added it as subsection (g), and that is why it appears in the Code. But OCGA § 28-9-5 does not authorize the Commission to add back to the law sections which the General Assembly has deleted. The return of this substantive provision is not a grammatical or editorial change of the type listed in that statute, which defines and limits the Code Commission’s powers.

Thus, whether or not what is shown as subsection (g) of OCGA § 19-7-22 is the current law of Georgia and was the law when the trial court acted, the practice of adjudicating custody in legitimation proceedings with the mother’s consent is still permitted.

Decided July 23, 1998.

Smith, Wallis & Scott, Christopher B. Scott, for appellant.

William K. Baldwin, for appellee.


author: Blackburn, Judge. Eldridge, Judge,

text:
    A98A0258.
    DAVIS v. GBR PROPERTIES, INC. et al.
    (504 SE2d 204)
   Blackburn, Judge.

On December 15, 1992, Virginia W. Davis went to the offices of Bio-Behavioral Associates, P.C. for psychiatric treatment of depression. Upon leaving the building, Davis fell while walking down the handicapped-accessible ramp, sustaining injuries including a broken hip and rib. Davis sued Bio-Behavioral and GBR Properties, Inc., the owner of the building, claiming that the ramp was unsafe. Davis subsequently died, and was replaced as plaintiff by her husband, Harry C. Davis, Jr., as executor of her estate. The trial court granted defendants’ motion for summary judgment, and plaintiff appeals.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

1. “One who owns or occupies land and by express or implied invitation, induces or leads others to come upon his premise for any lawful purpose, is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. OCGA § 51-3-1. While not an insurer of the invitee’s safety, the owner/occupier is required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge. The owner/occupier owes persons invited to enter the premises a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk or to lead them into a dangerous trap.” (Citation and punctuation omitted.) Robinson v. Kroger Co., 268 Ga. 735, 740 (493 SE2d 403) (1997).

In applying these principles to a slip-and-fall case, the Supreme Court stated as follows: “[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/ occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Id. at 748-749. Moreover, the Court “remind[ed] members of the judiciary that the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication.” Id. at 748. Although this is not a typical grocery store slip-and-fall case, the principles enunciated in Robinson are generally applicable to such issues.

Viewed in the light most favorable to plaintiff, the evidence shows that, the day before the incident, Davis called Bio-Behavioral and told them she was experiencing difficulty breathing and walking as a result of pneumonia, and was told to use the handicapped-accessible ramp. When she arrived for her appointment the next day, Davis was helped by her husband to walk up the ramp.

Upon leaving the building, Davis started to walk down the ramp, holding onto the handrail and her husband’s arm. Her husband then went to start the car while Davis continued down the remainder of the ramp. After she passed the point where the handrails ended, she lost her balance and fell across the curb ramp. She tried to regain her balance and grab the handrail, but the handrail did not continue to the end of thelong ramp leading to the curb ramp.

Nathanial Browne, an architect testifying as an expert witness for plaintiff, testified that the ramp was unsafe and violated the standards promulgated by the American National Standards Institute. In particular, the handrails did not extend the proper distance and the side slopes were too steep, rendering the ramp dangerous. Evidence that the ramp failed to comply with such standards constitutes some evidence from which the jury could find that the ramp constituted a hazardous condition. See Dupree v. Keller Indus., 199 Ga. App. 138, 142 (1) (404 SE2d 291) (1991) (“ANSI standards, as privately established guidelines, are admissible as illustrative of negligence”). See also Anderson v. Turton Dev., 225 Ga. App. 270 (483 SE2d 597) (1997); Poythress v. Savannah Airport Comm., 229 Ga. App. 303, 305 (2) (494 SE2d 76) (1997).

There was also evidence that the condition of the ramp contributed to the accident and to Davis’ injuries. There is evidence that Davis attempted to regain her balance by reaching for the handrail, but was unable to do so because the handrail did not extend to the end of the ramp as required by ANSI standards.

There can be no question that defendants are charged with knowledge of their own ramp, as the ramp was constructed in 1992, when the premises were converted into doctors’ offices for Bio-Behavioral. Accordingly, the first element of the Robinson test is satisfied for summary judgment purposes.

The second prong of the Robinson analysis is “that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson, supra at 749. However, for summary judgment purposes, “the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Id. Therefore, before considering whether plaintiff has satisfied this second prong, we must consider whether defendants have established that Davis intentionally and unreasonably exposed herself to a known hazard. And, of course, we must follow our Supreme Court’s admonition, that “the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication.” Id. at 748.

In support of their contention that Davis was negligent, defendants point to evidence showing that she had used the ramp previously and was aware of the condition of the ramp and the handrail. However, even if Davis was fully aware of the ramp and handrail, this does not establish that she knew or should have known of the hazard posed thereby, or that she intentionally and unreasonably exposed herself to the hazard by walking down the ramp. We must start from the premise that “[a]n invitee who responds to the owner/ occupier’s invitation and enters the premises does so pursuant to an implied representation or assurance that the premises have been made ready and safe for the invitee’s reception, and the entering invitee is entitled to expect that the owner/occupier has exercised and will continue to exercise reasonable care to make the premises safe.” Robinson, supra at 741. This premise is particularly applicable in this case, as Bio-Behavioral specifically instructed Davis to use the ramp to enter the building. The danger posed by a ramp is not as obvious at first glance as, say, that posed by a hole in the ground or a pool of oil on the floor. Accordingly, we cannot say that Davis appreciated the dangers posed by the ramp or that her use of the ramp, in response to Bio-Behavioral’s directions, was unreasonable. See, e.g., Pippins v. Breman, 152 Ga. App. 226, 228 (262 SE2d 477) (1979) (“ ‘there is a difference between mere knowledge of a defect and full appreciation of the risk involved’ ”).

A jury may well conclude that the ramp was not a hazardous condition, or that, if it was, it did not cause Davis’ injuries. Alternatively, the jury could find that the ramp was hazardous and did contribute to Davis’ injuries, but that plaintiff is nonetheless precluded from recovery because of Davis’ knowledge of the hazard. We do not express any opinion as to these matters, other than to state that the facts presented are sufficient to allow the case to proceed to trial and do not lend themselves to summary adjudication. The ultimate resolution of these issues is, and ought to be, the responsibility of the jury. Robinson, supra at 748.

2. In addition to her premises liability claim, Davis claimed that Bio-Behavioral breached a duty of trust and confidence by not rendering adequate assistance after her fall. The essence of this claim is that, because Davis’ psychiatrist, Dr. Aleem, was an actual or apparent agent of Bio-Behavioral, a confidential relationship existed between Davis and Bio-Behavioral, requiring Bio-Behavioral to render affirmative assistance following her fall. See Spikes v. Heath, 175 Ga. App. 187, 190 (332 SE2d 889) (1985) (relationship of trust and confidence exists between doctor and patient).

However, even if Bio-Behavioral had such a duty, plaintiff fails to point to any evidence showing a breach thereof or showing that Davis suffered any additional injury as a result of Bio-Behavioral’s alleged failure to render adequate assistance. Accordingly, the trial court did not err in granting summary judgment on this claim.

Judgment affirmed in part and reversed in part.

Senior Appellate Judge Harold R. Banke concurs. Eldridge, J, concurs specially.

Eldridge, Judge,

concurring specially.

While I concur entirely with the majority, I believe that several important legal factors should also be addressed.

1. The legal significance under OCGA § 51-3-1 of the Georgia Access To & Use of Public Facilities By Persons With Disabilities Act, OCGA § 30-3-1 et seq., which mandates compliance with the American National Standards Institute standards or possibly the Rehabilitation Act of 1973 is that the owner/occupier has actual or constructive knowledge of any static condition, the absence of any safety device mandated, or prohibited condition under such Acts. Thus, as to any owner/occupier of premises that are subject to the mandate of one or more of such Acts, the first prong has been satisfied of premises liability “that the defendant had actual or constructive knowledge of the [condition]” and that such knowledge is “superior” to the invitee’s knowledge, because such Acts put the owner/occupier on notice of the dangers and possible risk of injury to those individuals within the ambit of the Acts as to the requirements for the'premises. See Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997); Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). The mandated knowledge gives the owner/occupier superior knowledge over the invitee as to conditions or defects set forth under the Act that should be prevented.

Decided June 11, 1998

Reconsiderations denied July 24, 1998

Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Kimberly C. Raley, Tracy M. Culver, Goodman & Associates, James E. Goodman, Norman L. Smith, for appellants.

Hall, Booth, Smith & Slover, Alexander H. Booth, Robert L. Shannon, Jr., for appellees.

2. The foregoing is not negligence per se, even though it does satisfy some of the elements for premises liability under Alterman. Before such Acts can give rise to negligence per se, the plaintiff must show that the deceased was disabled within the meaning of the Act or Acts, that the intent of the Act was to protect such disabled as the deceased from safety risks of slip-and-fall, and that the injury was caused in whole or in part by deviation from such safety measures under the Act. Keith v. Beard, 219 Ga. App. 190 (464 SE2d 633) (1995); Bradley v. Custom Sprinkler Systems, 218 Ga. App. 431 (461 SE2d 592) (1995); Central Anesthesia Assocs. P. C. v. Worthy, 173 Ga. App. 150 (325 SE2d 819) (1985); Potts v. Fidelity Fruit &c. Co., 165 Ga. App. 546 (301 SE2d 903) (1983). Thus, if the plaintiff by proof can bring the deceased within the statutory definition of “disabled” and show that the Act was intended to safeguard the disabled from the risk of injury that the deceased received, then the plaintiff may be able to prove negligence per se. Thompson v. Crownover, 259 Ga. 126, 129 (4) (381 SE2d 283) (1989); Biggs v. Long, 212 Ga. App. 195, 199 (3) (441 SE2d 677) (1994).

       OCGA § 30-3-9 requires compliance with “ANSI” standards A117.1-1986 or A117.11980.

       29 USCS § 701 et seq.; 42 USCS § 12201 (a); 59 FR 17446. The Americans With Disabilities Act (“ADA”), 42 USCS § 12101 et seq. cannot be applied in this case, because of res judicata. The Federal District Court in this case, originally in the federal court, adjudicated that since the plaintiff was deceased and since only injunctive relief was sought, then there no longer existed a federal action under the ADA. Federal jurisdiction was lost with the loss of the federal issue, which under federal practice was an adjudication on the merits. Therefore, the ADA and any derivative actions were res judicata in this suit. However, if the Rehabilitation Act of 1973 is applicable to a person with a disability who comes within the ambit of that Act, then the Accessibility Guidelines for Buildings & Facilities, 36 CFR § 1191.1 were applicable.


author: Ruffin, Judge.

text:
    A98A0648.
    UTICA MUTUAL INSURANCE COMPANY v. KELLY & COHEN, INC.
    (504 SE2d 510)
   Ruffin, Judge.

Jeffrey and Amy Cross sued furniture retailer Kelly & Cohen, Inc. (“K&C”) for damages they allegedly sustained when a K&C employee misappropriated Amy Cross’s credit information and used the information to establish a false identity, obtain a bank loan and purchase goods and services from other establishments. K&C filed a third party complaint for declaratory relief against its liability insurer, Utica Mutual Insurance Company (“Utica”), after Utica denied coverage. On cross-motions for summary judgment by Utica and K&C, the trial court denied Utica’s motion and granted partial summary judgment to K&C. Utica appeals the trial court’s order, and for reasons which follow, we affirm.

In their complaint, the Crosses alleged that they purchased furniture from K&C on credit and that K&C employee Linda Astwood obtained the necessary credit information from them. According to their complaint, the Crosses subsequently discovered that Astwood had charged over $700 on their bank card and used Amy Cross’s personal information to purchase goods and services and obtain a bank loan. The Crosses alleged that Astwood had access to this information by virtue of her employment with K&C and that because she had a prior conviction for credit fraud, K&C is liable under the theories of negligent hiring and retention, respondeat superior and premises liability. With regard to their claim under the theory of respondeat superior, the Crosses specifically alleged that Astwood committed the wrongful acts “in the course of her employment” with K&C.

In denying K&C’s request for liability insurance coverage, Utica relied on an exclusion in the policy which provides that the insurance does not apply to “[pjersonal injur/’ or “advertising injury” “[a]rising out of the willful violation of a penal statute or ordinance committed by or with the consent of the insured[.]” The policy includes within its definition of an “insured” K&C’s “employees, other than your executive officers, but only for acts within the scope of their employment by you.” (Emphasis supplied.) Utica argued that this criminal acts exclusion applies because the complaint alleges that the Crosses were damaged through a willful criminal act of K&C employee Astwood, an insured, within the scope of her employment. In response, K&C asserts that notwithstanding the Crosses’ specific allegation that Astwood was acting “in the course of her employment,” the exclusion does not apply because (1) there is a factual dispute concerning whether Astwood was actually acting within the scope of her employment when she committed the purported criminal acts, and (2) they asserted alternative causes of action independent of this specific allegation.

The trial court found that the exclusion does not apply, and the sole issue raised by Utica in this appeal is whether the exclusion precludes Utica’s duty to defend K&C because the complaint alleged that Astwood was acting within the course of her employment.

“ ‘[A]n insurer’s duty to pay and its duty to defend are separate and independent obligations. [Cits.]’ [Cits.]” Penn-America Ins. Co. v. Disabled American Veterans, 268 Ga. 564, 565 (490 SE2d 374) (1997). As a general rule, “ ‘the duty to defend is determined by the contract; and since the contract obligates the insurer to defend claims asserting liability under the policyt,] even if groundless, the allegations of the complaint against the insured are looked to to determine whether a liability covered by the policy is asserted.’ [Cits.] Thus, it is only where the complaint sets forth true factual allegations showing no coverage that the suit is one for which liability insurance coverage is not afforded and for which the insurer need not provide a defense. [Cits.]” (Emphasis in original.) Id.

In this case, the Crosses’ complaint alleges liability that is not excluded under the subject provision of K&C’s insurance policy with Utica. Though it is true that the Crosses’ allegation of respondeat superior is dependent upon a finding that Astwood was acting in the scope of her employment with K&C, this is not the only cause of action the Crosses asserted. See Hillside Orchard Farms v. Murphy, 222 Ga. App. 106, 109 (1) (473 SE2d 181) (1996). The Crosses also alleged that K&C is liable for negligently hiring and retaining Astwood. In connection with this claim, the Crosses did not allege that Astwood committed the wrongful acts within the scope of her employment, and this finding is not an essential element of the claim. See Henderson v. Nolting First Mtg., 184 Ga. 724, 736 (2) (193 SE 347) (1937). Such alternative pleading is expressly authorized by OCGA § 9-11-8 (e) (2), regardless of any inconsistencies that may exist between the two causes of action. See Hodges v. Youmans, 120 Ga. App. 805, 809 (172 SE2d 431) (1969). Accordingly, although the Crosses alleged that Astwood was acting within the scope of her employment in connection with one cause of action, they nevertheless asserted an alternative basis of liability which, under the allegations of the complaint, is not excluded under the policy’s criminal acts exclusion. Thus, although evidence may ultimately establish that Astwood was acting within the scope of her employment, because the Crosses’ complaint shows potential coverage, Utica has a duty to defend and the trial court did not err in so finding. See Penn-America, supra at 566.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

Decided July 10, 1998

Reconsideration denied July 24, 1998

Zirkle & Hoffman, Benjamin E. Pellegrini, Kevin Elwell, for appellant.

Cofer, Beauchamp, Stradley & Hicks, Stanley A. Coburn, Nell A. Pedigo, for appellee.


text:
    A98A1211.
    PHILLIPS v. THE STATE.
    (504 SE2d 762)
   Ruffin, Judge.

A jury found James Edward Phillips guilty of criminal attempt to commit aggravated sodomy. Phillips filed a motion for new trial, asserting that his trial counsel was ineffective in failing to present evidence in support of his alibi defense. The trial court denied the motion, concluding that trial counsel was effective. Phillips appeals, and for the following reasons, we affirm.

“To prove an ineffective assistance of counsel claim, the defendant must show that trial counsel performed deficiently and that the result of the trial would have been different but for the deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). A conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel’s conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result. Further, the trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted.) Wynn v. State, 228 Ga. App. 124, 127 (3) (491 SE2d 149) (1997).

Viewed in a light most favorable to support the verdict, the evidence reveals that on December 13, 1996 the victim was living at the Savannah West Apartments in Richmond County, Georgia. Phillips lived in another building of the apartment complex with Tiffany Burkhalter, his then girlfriend and current wife. The victim testified that at 7:00 on the morning of December 13, she left her apartment to check her laundry in the laundry room of her building. A man passed her as she walked from her apartment to proceed down the hall towards the laundry room. According to the victim, she looked the man directly in the face and said good morning, to which he only mumbled and continued walking. The victim checked her laundry and returned to her apartment. Several minutes later, she went back to recheck her laundry. As she was placing her clothes in a dryer, the same man she had seen in the hall placed his arm around her neck, spun her around so that they were face to face, and then threw himself on her. The victim said that they fell to the floor, and the attacker began making gyrating motions and animalistic noises. The attacker, who had his pants down, then rubbed his genitals across the victim’s face. The victim was able to push the attacker away, at which time she ran to her apartment and locked the door. The victim gave the police a detailed description of her attacker, noting that he was a short male, and described him by color, in his mid-twenties with short dark hair. The victim identified Phillips as her attacker in a photographic lineup and at trial.

George Canady, one of the victim’s neighbors, testified that on the morning of December 13, he was in bed when he heard the victim scream. He looked from his window, at which time he saw the male, approximately 5' 8", running in the general direction of Canady’s apartment. The man was running from the laundry room and was attempting to zip his pants. Canady said he got a good look at the man, whom he later identified as Phillips.

The State presented evidence that Phillips’ fingerprint was found on the door of the laundry room where the victim was attacked.

At the hearing on Phillips’ motion for new trial, Burkhalter testified that at the time of the attack both she and Phillips were home in their apartment and Phillips was asleep. Burkhalter further said that she advised Phillips’ attorney of this fact and was present and available to testify at trial. However, defense counsel never called her.

Defense counsel testified that she was aware of the alibi defense and in fact served notice to the State of this defense and of the two witnesses, Phillips and Burkhalter, who were to testify in support of it. According to defense counsel, at trial she spoke at length with Phillips, his mother, and Burkhalter regarding whether to present this defense by calling the witnesses or to retain the concluding argument. Counsel said that she and Phillips made a joint decision not to call him or Burkhalter, because the harm that could come from their testimony outweighed the good. Specifically, defense counsel testified that Phillips was very nervous and skittish and would have had problems testifying. Defense counsel and Phillips mutually agreed that he would not testify. They also agreed Burkhalter would not make a good witness, as her testimony may have brought out that she was pregnant with Phillips’ child, that Phillips was dating another woman who had filed a complaint against him as a peeping tom, and that Phillips had been previously arrested. Defense counsel also testified that in her judgment, Burkhalter would not have been convincing to the jury. Ultimately, defense counsel said she did not believe that the alibi defense was worth giving up the closing argument, given the possible damaging evidence that could be introduced by presenting the defense. At the motion hearing, Phillips put forward no evidence to dispute defense counsel’s testimony.

Decided July 24, 1998.

Lawrence D. Galehouse, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

“The decisions on which witnesses to call. . . what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with the client.” (Citations, punctuation and emphasis omitted.) Austin v. Carter, 248 Ga. 775, 779 (3) (c) (285 SE2d 542) (1982). Additionally, “ ‘[t]he decision not to pursue the defense of alibi is one of trial strategy with which we will not generally interfere. Trial strategy and tactics do not equate with ineffective assistance of counsel.’ [Cit.]” Polk v. State, 225 Ga. App. 257, 259 (1) (c) (483 SE2d 687) (1997).

In the instant case, defense counsel’s decision not to call Phillips or Burkhalter to testify was the result of defense counsel’s trial strategy and tactics after consultation with Phillips. Austin, supra; Polk, supra. Given defense counsel’s uncontroverted testimony that she was prepared to call alibi witnesses but chose not to after hearing the state’s case and conferring with Phillips, Phillips “ ‘has not overcome the presumption that counsel’s failure to call the alibi witnesses was] made in the exercise of reasonable professional judgment.’ [Cit.]” Melton v. State, 222 Ga. App. 555, 557 (1) (474 SE2d 640) (1996). Accordingly, we cannot conclude that defense counsel’s representation in this instance fell below an objective standard of reasonableness. See Stephens v. State, 224 Ga. App. 184, 185 (480 SE2d 235) (1997).

Moreover, Phillips has failed to show that, despite the overwhelming evidence of his guilt, there is a reasonable probability that but for this counsel’s trial tactics the results of the trial would have been different. See id. Therefore, the trial court’s finding that Phillips was afforded effective assistance of counsel was not clearly erroneous. Melton, supra; see Wynn, supra.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


author: Beasley, Judge. Ruffin, Judge,

text:
    A98A0094.
    LEWIS v. THE STATE.
    (504 SE2d 732)
   Beasley, Judge.

Neil Anthony Lewis, along with Warren Wilson, was indicted on one count of trafficking in cocaine and possession with intent to distribute cocaine. Lewis was also indicted for possession of a firearm during the commission of a crime. The jury found Lewis guilty on each of the first two counts of the lesser included offense of possession of cocaine. The jury also found Lewis guilty of the firearm charge. One of his enumerations of error is that the trial court erred in denying his motion to suppress evidence that was discovered as a result of an unlawful stop.

1. “ ‘When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.’ [Cit.]” Carter v. State, 229 Ga. App. 417, 418 (494 SE2d 108) (1997). See also Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Robinson v. State, 226 Ga. App. 406 (486 SE2d 667) (1997). “In considering the denial of the motion to suppress, we may consider both the transcript on the hearing and the trial transcript. [Cit.]” Beck v. State, 216 Ga. App. 532, 536 (1) (455 SE2d 110) (1995).

Viewing the evidence in the light most favorable to support the trial court’s findings, it shows that Officers Williams and Sampsel were constitutionally permitted to stop the vehicle to make inquiry.

“Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief ‘seizures’ that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. Under the first tier, a police officer may approach an individual and ask a few questions without triggering Fourth Amendment scrutiny.” (Citations and punctuation omitted.) State v. King, 227 Ga. App. 466, 468 (489 SE2d 361) (1997). “ ‘The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.’ [Cit.]” McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997). The third tier is an actual or de facto arrest which requires probable cause and involves restraint of one’s liberty. Lambright v. State, 226 Ga. App. 424, 425-426 (1) (487 SE2d 59) (1997).

Lewis’s encounter with the police falls within the second tier. At that level the officer must possess more than a subjective, unparticularlized suspicion or hunch, but rather “ ‘a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.’ [Cits.]” Id. at 426; see Rogers v. State, 206 Ga. App. 654, 659 (3) (426 SE2d 209) (1992); McClain, supra. A “stop” under the Fourth Amendment occurs, based on the totality of the circumstances, when a reasonable person would have believed that he was not free to leave, that is, whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer’s request or otherwise terminate the encounter. Id.

The question of whether reasonable suspicion exists to stop the vehicle must be “measured by current knowledge, i.e. at the moment the [stop] is made and not hindsight.” (Citations and punctuation omitted.) Lovell v. State, 178 Ga. App. 366, 367-368 (1) (343 SE2d 414) (1986). The police did not stop Lewis until they had witnessed or had knowledge of at least five indicia which contributed to an articulable suspicion of criminal activity:

(a) Two men in a vehicle had just exited an abandoned, unlit development known for drug trafficking, late at night. This area had no buildings and had at times been posted for trespassing. The men had no apparent legitimate reason for being there.

(b) As soon as the police drove behind the car, Lewis reacted with conduct of avoidance by immediately pulling over to the curb behind another vehicle. Then, when the police did not pass but were pulling up behind him, he immediately backed up, in an apparent attempt to leave the police. The police saw this behavior as erratic.

(c) Lewis was driving a vehicle with a New Jersey license plate in an area where the residents and their kin were known by the officer to be from Georgia and to have Georgia plates on their vehicles.

(d) The residence which Lewis chose to stop in front of was one in which the officers had previously made numerous drug arrests.

(e) As the police were pulling in behind Lewis, and as they were activating the blue light, the passenger at the same time jumped out and began walking away into the yard, apparently to distance himself from the police.

The investigatory Terry stop of Lewis at that point was based on a reasonable, articulable suspicion of criminal activity and was not arbitrary or harassing. Carter v. State, 229 Ga. App. 417, 420 (494 SE2d 108) (1997). The denial of the motion to suppress evidence of what was found in the car and on Lewis’s person was not error.

2. Turning to the denial of Lewis’s motion to suppress evidence of the cocaine discarded by Wilson, the threshold question is whether Lewis has standing to challenge the seizure of this evidence. A defendant has standing to suppress evidence obtained through an illegal search or seizure only when his or her own rights are violated, because these rights are personal and cannot be asserted vicariously. Rakas v. Illinois, 439 U. S. 128 (99 SC 421, 58 LE2d 387) (1978). In Rakas, the Supreme Court held that passengers occupying an automobile could not invoke the protections of the Fourth Amendment with respect to a search of the vehicle where they did not assert a property or a possessory interest in the place from which the evidence was seized or an interest in the property seized. Id. 439 U. S. at 148. See also Mecale v. State, 186 Ga. App. 276, 277-278 (367 SE2d 52) (1988); Frederick v. State, 226 Ga. App. 540, 541 (1) (487 SE2d 107) (1997).

In this instance, there is no evidence that Lewis asserted a possessory or proprietary interest in the premises from which the contraband was confiscated. Nor is there evidence that Lewis asserted a property interest in the contraband that was seized. Accordingly, he is without standing to challenge the admissibility of this evidence. Mecale, supra at 278. Therefore, the trial court properly denied Lewis’s motion to suppress evidence of the cocaine discarded by Wilson. “A trial court’s ruling will be affirmed if it is right for any reason.’ [Cit.]” Frederick, supra at 542.

3. Lewis contends that the trial court erred in its denial of his motion for directed verdict in that the State offered no expert testimony that the substance found on Lewis’s person was cocaine.

“ ‘The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.’ [Cit.] To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); [cit.].” Cantrell v. State, 230 Ga. App. 693, 694-695 (1) (498 SE2d 90) (1998).

DeKalb County Police Officer Gardner testified that he conducted a drug identification field test on the substance that was confiscated from Lewis’s person and the test results identified the substance as cocaine.

‘We have found no case where the results of a chemical field test have been held inadmissible, though it would appear that its reliability would be tested by defense cross examination and rebuttal and that the weight to be given it by the jury would be an appropriate subject for defense argument. [Cit.]” Davis v. State, 135 Ga. App. 203, 205 (1) (217 SE2d 343) (1975).

Contrary to Lewis’s assertion, it was for the jury to determine whether the foregoing testimony established that the substance was cocaine. The jury obviously concluded that it was, and because we do not weigh the evidence on appeal, we conclude that there was sufficient evidence to establish that the white substance confiscated from Lewis’s person was cocaine. Jackson, supra; Davis, supra.

4. Lewis’s remaining enumerations of error have been examined and bear no basis for reversing the judgment.

Judgment affirmed.

Andrews, C. J., Blackburn, J., and Senior Appellate Judge Harold R. Banke concur. McMurray, P. J, and Ruffin, J., dissent. Eldridge, J, dissents without opinion.

Ruffin, Judge,

dissenting.

Although I concur with Divisions 2 and 3 of the majority opinion, I respectfully dissent from Division 1 and the judgment of affirmance as follows.

Specifically, I do not believe as the majority finds, that the facts support a reasonable articulable suspicion that Lewis was engaged or about to be engaged in criminal conduct. Contrary to the majority’s characterization of the facts, the evidence merely showed that Lewis and his companion were traveling in a high crime area with an out-of-state license plate. Although the area at one time had been posted with a “no trespassing” sign, the evidence is clear and undisputed that there was no such sign on the evening in question. With regard to the majority’s statement that Lewis attempted to leave the police and acted in an erratic manner, the evidence simply showed that after he pulled his car to the curb, he attempted to back up; a maneuver commonly engaged in while parallel parking.

Finally, with regard to Wilson’s exit from Lewis’s car, the evidence shows only that this occurred simultaneously with the officers’ stop. Accordingly, it is difficult to comprehend how this could have formed a basis for the stop.

Although I agree with the legal proposition relied on by the majority, I find it misapplied under the circumstances of this case. To reiterate, an officer must possess more than a subjective, unparticularlized suspicion or hunch, but rather “ ‘a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.’ [Cits.]” Lambright v. State, 226 Ga. App. 424, 426 (1) (487 SE2d 59) (1997); Rogers v. State, 206 Ga. App. 654, 659 (3) (426 SE2d 209) (1992). See McClain v. State, 226 Ga. App. 714 (1) (487 SE2d 471) (1997). “[Although a neighborhood’s reputation is a factor supporting articulable suspicion, the fact that [Lewis] was in a place which the officer characterized as [an area known for criminal activity] does not alone constitute an articulable suspicion justifying a Terry stop. . . . [Cit.]” Barnes v. State, 228 Ga. App. 44, 46 (491 SE2d 116) (1997). Without more, there is insufficient evidence to provide an articulable, reasonable suspicion to justify the stop of Lewis’s vehicle. See id. The only additional factor present in this case which could have formed the basis for the officers’ stop is Lewis’s out-of-state license plate. An out-of-state license plate is not an indication of criminality. Accordingly, contrary to the majority conclusion, I do not believe the officers’ stop of the vehicle was based upon a reasonable articulable suspicion.

Decided July 16, 1998

Reconsideration denied July 27, 1998

Stephanie P. Wyatt, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Gregory J. Lohmeier, Assistant District Attorneys, for appellee.

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

       Lewis did not raise, and therefore we do not address the issue of whether there was sufficient evidence to support the verdict of guilty against Lewis for possession of cocaine that was discarded by Wilson.


text:
    A98A0776.
    KENT et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (504 SE2d 710)
   Ruffin, Judge.

Martha and George Kent sued Crystal D. Holloway alleging they were injured in a motor vehicle collision with an automobile operated by Holloway. The Kents served their uninsured/underinsured motorist carrier, State Farm Mutual Automobile Insurance Company (“State Farm”). State Farm answered. Subsequently, the Kents executed a limited liability release relieving Holloway of liability pursuant to OCGA § 33-24-41.1, and voluntarily dismissed with prejudice all claims against Holloway. State Farm then moved for judgment on the pleadings contending that the Kents’ dismissal with prejudice of their claims against Holloway barred them from recovering damages from State Farm. In response, the Kents moved to set aside the dismissal arguing that it resulted from both the Kents’ and Holloway’s mistaken interpretation of the legal effect that the dismissal would have on their suit against State Farm. The trial court granted State Farm’s motion for judgment on the pleadings and denied the Kents’ motion to set aside the dismissal. The Kents appealed, and for the following reasons, we affirm.

1. The Kents assert that OCGA §§ 33-7-12 and 33-24-41.1 allow them to pursue an action against State Farm, even though they executed a limited release and settled a claim against the defendant driver, Holloway, and voluntarily dismissed with prejudice all claims against Holloway. We disagree.

Pursuant to the language of OCGA § 33-24-41.1, the Kents defeated their ability to recover damages from their underinsured motorist carrier, State Farm, by voluntarily dismissing with prejudice their claims against the defendant driver rather than merely executing a limited liability release against her. OCGA § 33-24-41.1 provides that the injured party may execute a limited release of the tortfeasor and its insurer, relieving them from all liability, and “still retain the right to pursue his own insurer for other available coverage,” here, underinsured motorist coverage. Rodgers v. St. Paul Fire &c. Ins. Co., 228 Ga. App. 499, 500 (1) (492 SE2d 268) (1997). However, the injured party must establish legal liability of the defendant driver of an underinsured vehicle before recovery is allowed under the driver’s uninsured motorist coverage. OCGA § 33-7-11 (a) (1). Legal liability is defined as the securing of a judgment against the underinsured motorist in order to collect underinsured/ uninsured motorist benefits from the carrier. Continental Ins. Co. v. Echols, 145 Ga. App. 112, 113 (243 SE2d 88) (1978). “A judgment obtained against the uninsured motorist is a condition precedent to recovery against an automobile liability carrier under the provisions of uninsured motorist coverage. [Cit.]” Id. at 113. See also Boles v. Hamrick, 194 Ga. App. 595, 596 (391 SE2d 418) (1990). An injured party who executes a limited release under OCGA § 33-24-41.1 “may still proceed to judgment against the tortfeasor. Such a release under those conditions would not bar proceeding against the uninsured motorist carrier. The limited release therefore does not affect the injured party’s ability to obtain a judgment against the tortfeasor, but merely limits the tortfeasor’s personal liability in the amount of available insurance coverage.” Rodgers, supra at 501.

Here, the Kents executed a limited liability release against Holloway, but nevertheless voluntarily dismissed her with prejudice. Thus, although Holloway remained liable to the Kents in the amount of available insurance coverage, the Kents are prevented from establishing that liability and securing a judgment against Holloway. Because the Kents cannot determine Holloway’s legal liability, they are barred from recovering underinsured motorist benefits from State Farm. Rodgers, supra; Boles, supra. Accordingly, the trial court properly granted State Farm’s motion for judgment on the pleadings.

2. The Kents also challenge the trial court’s denial of their motion to set aside the dismissal with prejudice. The Kents contend that pursuant to OCGA § 9-11-60 (d) (2) the dismissal was a mistake, and therefore, the trial court should have set it aside.

We note initially, that a voluntary dismissal with prejudice which has been accomplished by the parties filing a stipulation of dismissal with the clerk of the court operates as an adjudication on the merits and bars the right to bring another action on the same claim for purposes of res judicata. Fowler v. Vineyard, 261 Ga. 454, 456 (2) (405 SE2d 678) (1991). Accordingly, the Kents’ voluntary dismissal with prejudice constitutes a judgment which, where appropriate, could be set aside under OCGA § 9-11-60 (d) (2). Id.

A trial court’s decision regarding a motion to set aside a judgment will not be reversed absent a showing of manifest abuse of discretion. Young Constr. v. Old Hickory House #3, 210 Ga. App. 559, 561 (2) (436 SE2d 581) (1993). “A motion to set aside may be brought to set aside a judgment based upon:. . . [f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant[.]” OCGA § 9-11-60 (d) (2); See also Northeast Atlanta Surety Co. v. State of Ga., 197 Ga. App. 399, 401 (398 SE2d 435) (1990). However, “ £[m]ere ignorance of the law on the part of the party himself, where the facts are all known, and there is no misplaced confidence, and no artifice or deception or fraudulent practice is used by the other party either to induce the mistake of law or to prevent its correction, shall not authorize the intervention of equity.’ [OCGA § 23-2-27, formerly § 37-209].” Callan Court Co. v. Citizens &c. Bank, 184 Ga. 87, 128-129 (3) (190 SE 831) (1937). £££The rule is well settled that a simple mistake by a party as to the legal effect of an agreement which he executes, or as to the legal result of an act which he performs, is no ground for either defensive or affirmative relief.’ [Cit.]” Id. at 130.

In the instant case, there is no evidence of a mistake that was “unmixed with the negligence or fault of [the Kents].” Rather, the mistake asserted by the Kents is the result of their own negligence or fault. The Kents’ mistaken determination regarding the effect a voluntary dismissal with prejudice against the defendant driver would have on their right to sue State Farm was due to their own ignorance of the law. Inasmuch as there is no evidence of record that this erroneous determination was induced by deception or fraud, it cannot be the basis for a motion to set aside the dismissal. Id. Accordingly, the trial court did not abuse its discretion in refusing to set aside the dismissal based upon the ground asserted.

We note that, Morgan v. Starks, 214 Ga. App. 265 (447 SE2d 651) (1994) and Wright v. Archer, 210 Ga. App. 607 (436 SE2d 775) (1993), relied on by the Kents, are not controlling and are factually distinguishable. Unlike the present case, the trial courts in Morgan and Wright were partially responsible for the mistakes at issue. Moreover, Morgan does not involve OCGA § 9-11-60 (d) (2).

3. The Kents further argue that equity requires that the voluntary dismissal with prejudice be set aside, relying on OCGA §§ 23-2-20 and 23-2-21.

Decided July 10,1998

Reconsideration denied July 27, 1998

E. Graydon Shuford, for appellants.

OCGA § 23-2-20 provides that “[a]n accident relievable in equity is an occurrence, not the result of negligence or misconduct of the party seeking relief in relation to a contract, as was not anticipated by the parties when the contract was entered into, which gives an undue advantage to one of them over another in a court of law.” OCGA § 23-2-21 provides that a mistake, which is either of law or of fact, is relievable in equity when the mistake is “some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence.” Relief pursuant to OCGA § 23-2-21 “must be mutual, or else [be a] mistake on the part of one to the contract and fraud on the part of the other.” Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 704 (2) (38 SE2d 534) (1946).

We conclude these statutes do not apply in this case. Clearly, these statutes only allow equitable relief from mistakes of law or of fact that were made in the formation of a contract. In this instance, the only contract of record is the limited liability release. The Kents’ only contention is that equity requires the setting aside of the dismissal with prejudice based upon accident or mistake. Because the dismissal with prejudice is not a contract, we conclude that the Kents’ reliance on OCGA §§ 23-2-20 and 23-2-21 is misplaced.

Even if the dismissal were treated as a contract and these statutes were applicable, there is no evidence of record that there was a mutual accident or mistake of fact in the execution of the dismissal. Nor is there evidence that the accident or mistake was made without the Kents’ negligence or fault. To the contrary, the Kents concede that the accident or mistake was found in their counsel’s misinterpretation of the legal effect of the voluntary dismissal with prejudice. However, they argue that Holloway had the same mistaken interpretation, and thus because the mistake was mutual, equity demands the dismissal be set aside. There is no evidence of record that Holloway shared in the Kents’ determination of the effect of the dismissal. Consequently, equity does not demand the dismissal with prejudice be set aside. OCGA §§ 23-2-20 and 23-2-21. Accordingly, the trial court did not abuse its discretion in denying the Kents’ motion to set aside the dismissal. See Young Constr., supra.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Beasley, J, concurs in the judgment only..

Eason, Kennedy & Associates, Richard B. Eason, Jr., Sharon W. Ware & Associates, Mark E. Silvey, for appellee.