author: Andrews, Chief Judge.

text:
    A98A1832.
    H & H SUBS, INC. v. LIM et al.
    (510 SE2d 578)
   Andrews, Chief Judge.

H & H Subs, Inc. appeals from a judgment entered after a jury found for the Lims on their fraud claim against H & H and its employee Michael Hylton. Because the jury found the employer liable and did not also find against the employee, we reverse.

This is the third time this case has been before this Court after a jury trial. In all three trials the jury returned a verdict for the Lims. See H & H Subs v. Lim, 213 Ga. App. 371 (444 SE2d 404) (1994); H & H Subs v. Lim, 223 Ga. App. 656 (478 SE2d 632) (1996).

This case arose when the Lims entered into a contract to buy a Subway franchise from H & H, dealing with Michael Hylton, the Vice-President and General Manager. The Lims signed a draft purchase agreement and later finalized the sale, signing a final contract and giving Hylton a $20,000 down payment.

The Lims later realized that the equipment in the store was leased and therefore was not included in the purchase price. Although the final contract contained the provision “ ‘Buyer agrees to assume the equipment lease,’ ” H & H, 223 Ga. App. at 657, the Lims claimed this provision was not in the contract when they signed it. Hylton admitted the lease provision was not in the first draft he presented to the Lims, but contended it was in the final purchase contract. The Lims vacated the store and sued to recover the $20,000 down payment.

In the third trial, the jury found for the Lims against H & H, but not against Hylton, and awarded actual damages of $40,635. The jury did not award any punitive damages. This appeal followed.

H & H argues on appeal that the trial court erred in charging the jury that it could find H & H liable without finding the employee liable and in entering judgment on the contradictory verdict. This issue was addressed, although not directly, in the first appeal. In the first trial, the jury did not find against Hylton on the verdict form, but found “that the Lims’ actual damages were incurred due to the actions of both H & H Subs and its agents acting on behalf of the corporation.” (Punctuation and emphasis omitted.) H & H, 213 Ga. App. at 372. Since Hylton was the only agent of the corporation who was a party to the suit, we held that the verdict did not exonerate Hylton, but rather, expressly found he was liable. Id.

In this case, the verdict form is handwritten and has “H & H Subs, Inc.” on one line, “Michael Hylton” on the next and “Both Defendants” on the next. The jury crossed out “Michael Hylton” and “Both Defendants,” finding only H & H liable for the damages.

H & H argues on appeal that their liability as an employer was only under the principle of respondeat superior and, therefore, unless additional and independent acts of negligence over and above those alleged against Hylton are alleged against them, a verdict exonerating Hylton also exonerates them. We agree.

After reviewing the transcript and evidence at trial, we find no independent or additional basis for a finding of liability against H & H. There was no evidence at trial that anyone other than Hylton drew up the sale documents or was involved in the transaction. Therefore, as there was no separate basis for holding the master liable, the jury must also return a verdict for the master or the judgment cannot stand. LDS Social Svcs. Corp. v. Richins, 191 Ga. App. 695, 699 (382 SE2d 607) (1989).

“The verdict exonerating the individuals is a legal verdict. Only the part of the verdict against the corporations is illegal.” ESAB Distrib. Southeast v. Flamex Indus., 243 Ga. 355, 356 (1) (254 SE2d 328) (1979). Accordingly, the trial court erred in entering judgment against H & H Subs on the inconsistent verdict. Id. at 357; Tucker v. Love, 200 Ga. App. 408, 410 (408 SE2d 182) (1991). The trial court should have entered judgment in favor of both Hylton and H & H Subs based on the jury’s verdict in favor of Hylton. Id.

Judgment reversed.

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

Decided December 15, 1998

Reconsideration denied January 11, 1999

McArthur & McArthur, John J. McArthur, for appellant.

James W. Bradley, for appellees.


source: Caselaw Access Project

license: Public Domain

text:
    A97A0816.
    POTTS et al. v. UAP-GA AG CHEM, INC. et al.
    (510 SE2d 841)
    Decided December 17, 1998
    Reconsideration denied January 12,1999.

      Stephen L. Ivie, John M. Brown, for appellants.

      King & Spalding, J. Kevin Buster, Carmen R. Toledo, Gardner, Willis, Sweat & Goldsmith, Donald A. Sweat, Goetz, Tibbs & Zahler, Charles M. Goetz, Jr., for appellees.

       For Presiding Judge A. W. Birdsong, deceased.

   Andrews, Chief Judge.

The Supreme Court in Potts v. UAP-GA AG CHEM, 270 Ga. 14 (506 SE2d 101) (1998) reversed our affirmance of the superior court’s grant of summary judgment to the employer in this wrongful death and survival action, finding the employee was not engaged in work activity so that the exclusive remedy provision of OCGA § 34-9-11 did not apply. Therefore, our judgment in Potts v. UAP-GA AG CHEM, 227 Ga. App. 841 (490 SE2d 432) (1997), is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

McMurray, P. J., Beasley, Smith, Ruffin, Eldridge, JJ., and Senior Appellate Judge Harold R. Banke concur.


author: Beasley, Presiding Judge.

text:
    A98A1753.
    CHICAGO HARDWARE & FIXTURE COMPANY v. LETTERMAN et al.
    (510 SE2d 875)
   Beasley, Presiding Judge.

Ronald Letterman was standing on an Amacker Timb-R-Lock tree stand when a portion of it broke. He fell and sustained injuries. He and his wife sued Amacker International, Inc., the manufacturer, seeking actual and punitive damages for personal injuries and loss of consortium on theories of strict products liability, negligence, and breach of warranty.

Chicago Hardware & Fixture Company was added as a defendant based on allegations that failure of the tree stand was caused by the unfitness of a component, a turnbuckle, sold to Amacker by Chicago. Chicago moved for summary judgment as to the entire case or partial summary judgment as to plaintiffs’ claim for punitive damages. Chicago sought complete summary adjudication because plaintiffs lost the component turnbuckle after this complaint was filed but before Chicago was added as a defendant. The trial court denied the motion without written explanation after remarking at the hearing that loss of the turnbuckle did not result from any intentional wrongdoing by plaintiffs. Chicago’s application for interlocutory appeal was granted.

A turnbuckle is a mechanical device used to shorten or expand the length of the product or system into which it is incorporated. Essentially, it consists of eyebolts threaded into each end of an elongated buckle. When the buckle is turned in one direction, the bolts are drawn together and shorten the system; when turned in the opposite direction, the bolts are pushed apart and lengthen the system.

The turnbuckle in this case was used to adjust the length of a chain that secured the stand to a tree. The stand was installed by embedding sharp pegs into the trunk of the tree at the bottom of the stand, then looping the chain around the trunk at the top of the stand and tightening it with the turnbuckle.

Letterman bought the tree stand as new about three years before his fall and had not had it repaired or modified. He used it to stand on while hunting about 20 times, attached it to a tree about 15 times, and kept it outside intermittently. He testified that immediately after he installed the tree stand on the day he fell, the turnbuckle split at the seam, allowing an eyebolt to pull out of its thread so that the stand separated and collapsed.

Plaintiffs submitted evidence that Chicago supplied Amacker with thousands of midget aluminum turnbuckles as a load-bearing component of the Timb-R-Lock tree stand with actual knowledge that the stand was being sold so that purchasers could stand on it and that this type turnbuckle is not designed to support human weight.

As a result of plaintiffs’ change of counsel, their former attorney delivered the tree stand and turnbuckle to their new attorney by courier. Plaintiffs filed their motion to add Chicago as a defendant about one week later. Plaintiffs’ present attorney subsequently discovered he did not receive the turnbuckle. It thus appears the turnbuckle was lost in transit.

Letterman, his former attorney, and a metallurgical expert who conducted a visual inspection of the damaged turnbuckle testified that, except for coloring, it was identical to an exemplar turnbuckle obtained by plaintiffs. During deposition questioning, Letterman testified he used a wrench to tighten the turnbuckle. When Amacker’s counsel observed that one end of the turnbuckle looked “a little chewed up” and asked whether the damage was caused by the wrench, Letterman responded “[i]t may be, I don’t know.” An officer of Amacker who examined the lost turnbuckle averred in his affidavit that Letterman’s fall was caused by product misuse.

1. In Chapman v. Auto Owners Ins. Co., the insurer of a store damaged by fire brought suit against the employer of individuals who had been working in the store. By examining and testing various electrical materials taken from the store, an investigative consultant hired by the insurer concluded that the fire was caused by the negligence of defendant’s employees. The consultant ordered destruction of the material shortly after the suit was filed. Defendant moved the trial court to either dismiss the suit or preclude the plaintiff’s expert from testifying about the destroyed evidence. The court ruled that under Georgia law, its only option was to charge the jury on the negative presumption created when evidence is spoliated.

The appellate court observed that allowing the case to proceed or an expert to testify about destroyed evidence which the opposing party is unable to test may result in trial by ambush which cannot be cured by a jury instruction. It was held that a trial court has authority to either exclude testimony concerning destroyed evidence or dismiss the case. Five factors were listed which a court of first instance should consider in determining an appropriate sanction: (1) whether the defendant was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the plaintiff acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.

2. Chicago argues that the lost turnbuckle is a critical piece of evidence and, without it, the Lettermans cannot establish any element of a prima facie case and Chicago cannot prove its defense. To establish defendant’s strict liability, plaintiffs must prove that defendant is the manufacturer of the property, that the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended (i.e., defective), and that its condition when sold was the proximate cause of the injury sustained. As a defense to a products liability claim, the defendant may show that plaintiff’s misuse of the product caused the injury.

(a) Even in the absence of the original turnbuckle, there is abundant evidence that Chicago was the manufacturer. Letterman testified that he bought the Amacker Timb-R-Lock tree stand in 1990 at a certain retail outlet in Georgia, and that the turnbuckle was stamped with the numeral “5.” Undisputed evidence shows that all Timb-RLock tree stands sold by Amacker to this retail outlet in 1989 and 1990 included a No. 5 turnbuckle supplied by Chicago. The Amacker officer who examined the failed turnbuckle testified that it was supplied to Amacker by Chicago.

Chicago claims it could not have been the manufacturer because the lost turnbuckle did not have any letter markings, unlike exemplars produced by plaintiffs. But in another suit resulting from the failure of a midget aluminum turnbuckle in an Amacker tree stand, an officer of Chicago testified that the turnbuckles are lettered if a problem occurs during manufacturing.

(b) Given the fact that plaintiffs’ claim is based on the unfitness of thousands of turnbuckles for the purpose intended, as opposed to some idiosyncratic defect affecting only the lost turnbuckle, loss of the product does not impair either plaintiffs’ ability to show the defect claimed or the defendant’s ability to present a defense to the claim.

(c) The trial court was authorized to find that even without the lost turnbuckle, plaintiffs can make a prima facie showing that its condition when sold was the proximate cause of Letterman’s injury and that Chicago’s product-misuse defense has not been irreparably prejudiced. According to plaintiffs, failure of the turnbuckle was caused by its splitting at the seam, thereby allowing an eyebolt to pull out of its thread. Chicago, on the other hand, asserts that exemplar turnbuckles failed under stress testing because the eyebolts straightened out rather than splitting, and photographs of the failed turnbuckle show an eyebolt that did not straighten out. Chicago also maintains that the midget aluminum turnbuckle is actually designed to withstand at least 480 pounds of tension without failing, rather than the 96-pound limit claimed by plaintiffs. If Chicago’s testing produces the results it suggests, this would indicate that Letterman’s damage to the turnbuckle rather than its unfitness for the purpose intended caused the product failure. Consequently, testing of the exemplars, and use of the photographs of the original, may be used to verify or contradict the competing theories of causation advanced by the parties.

Decided January 12, 1999.

Drew, Eckl & Farnham, Bruce A. Taylor, Jr., James L. Creasy III, Hall F. McKinley III, for appellant.

John T. Ruff, for appellees.

Moreover, where relevant evidence has been spoliated, the party’s degree of fault is an important factor in determining whether the severe sanction of dismissal should be imposed. The facts here authorized the trial court to find that the loss of the evidence in this case was unintentional and without plaintiffs’ fault.

Although the record does not affirmatively show that the trial court applied all factors identified in Chapman, the court was aware of Chapman because it was cited by the parties in their trial briefs and at the motion hearing. We therefore presume the court applied the correct standard.

3. Chicago contends it is at least entitled to partial summary judgment on the issue of punitive damages.

“It has . . . been held that knowledge on the part of the seller of a component part that a purchaser intends to use it in a way that is found to be unreasonably dangerous subjects the supplier of the component part to strict liability in tort as well as the assembler.” Punitive damages may be awarded in tort actions if it is proven by clear and convincing evidence that the defendant’s actions showed, among other things, a deliberate course of conduct which knowingly endangered product users. Whether the evidence establishes that Chicago engaged in such conduct by the requisite standard of proof is a jury question. Summary judgment to Chicago was not warranted.

4. The rulings in the previous Divisions apply as well to the derivative loss of consortium claims of Letterman’s wife.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       220 Ga. App. 539 (469 SE2d 783) (1996).

       See OCGA § 51-1-11 (b) (1); Center Chem. Co. v. Parzini, 234 Ga. 868 (1), 869 (2) (218 SE2d 580) (1975); Lodge v. Champion Home Builders Co., 170 Ga. App. 21, 22 (3) (315 SE2d 912) (1984).

       See Gurin v. Gen. Motors Corp., 171 Ga. App. 159, 160 (1) (318 SE2d 830) (1984).

       Cf. Schmid v. Milwaukee Elec. Tool Corp., 13 F3d 76, 79-80 (3rd Cir. 1994) (where plaintiff's theory of the case is that all of defendant’s products were defectively designed, defendant is not prejudiced by destruction of injury-causing product because of its ability to inspect and test like products); accord Headley a Chrysler Motor Corp., 141 FRD 362, 366, n. 18 (D. Mass. 1991).

       See Northern Assurance Co. v. Ware, 145 FRD 281, 282, n. 2 (D. Me. 1993) (the most severe sanction, of dismissal should be reserved for cases where a party has maliciously destroyed relevant evidence), cited in Chapman, supra at 542; Graves v. Daley, 526 NE2d 679, 681 (Ill. App. 1988) (in affirming dismissal of lawsuit, court notes that the case is not one in which evidence was innocently or negligently destroyed).

       Prosser & Keeton on Torts, § 100, p. 706 (5th ed. 1984).

       See Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 255 (3) (b) (461 SE2d 877) (1995), rev’d in part on other grounds, Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226 (476 SE2d 565) (1996); OCGA § 51-12-5.1.


text:
    A99A0202.
    KEELEY v. CARDIOVASCULAR SURGICAL ASSOCIATES, P.C.
    (510 SE2d 880)
   Beasley, Presiding Judge.

After a bench trial, the court in a thorough explanatory order enjoined Dr. Samuel Keeley from violating a noncompete covenant in favor of Cardiovascular Surgical Associates, P.C. (“CSA”). Dr. Keeley contends on appeal that (i) CSA lacks standing to enforce because it neither exists any longer as a professional corporation nor employs surgeons, and (ii) the covenant is unenforceable as vague, geographically overbroad, and lacking in consideration. We hold that Keeley waived the standing issue and that the covenant, which forbids the establishment of a cardiovascular surgical practice within seventy-five miles of Albany for a period of two years, is clear and enforceable.

Dr. Roberts was a cardiovascular surgeon/owner of CSA located in Albany when he died. Keeley, a cardiovascular surgeon practicing in Columbus, contacted CSA for the vacant position. He negotiated a $300,000 salary plus bonus and benefits and an 18-month track to becoming an equal owner of CSA. An agreement memorialized the terms, including the following noncompete covenant similar to that of the other surgeons practicing with CSA: “In the event either of us terminate your employment or dissolve the partnership, a restrictive covenant would operate to prohibit your establishing a competing cardiovascular surgery practice within a 75 mile radius of Albany, Georgia for a period of two years following the date of termination or dissolution.”

Several months after Keeley began practicing at CSA, CSA discovered he was personally abusing drugs. Keeley admitted drug use and entered a substance abuse treatment program. CSA terminated his employment soon thereafter in January 1998.

Keeley returned in May, announced he intended to establish his own cardiovascular surgical practice in Albany, and filed a declaratory judgment action to have the covenant declared unenforceable. CSA counterclaimed to enjoin Keeley from violating the covenant. The court agreed with CSA and enjoined Keeley accordingly through January 2000.

1. Citing OCGA § 14-7-5 (e), Keeley first argues that after Roberts’ death, CSA failed for over six months to redeem, cancel or transfer his shares, thereby causing the corporation to cease to be a professional corporation and rendering it unable to engage in a medical practice. He relies on Broome v. Ginsberg to support his contention that the defunct corporation could no longer enforce a covenant that would not benefit it.

“When a party desires to raise an issue as to the legal existence of any party [or] the capacity of any party to bring or defend an action, ... he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.” Failure to properly raise the issue before judgment will result in its waiver.

Keeley affirmatively averred in his declaratory judgment petition that CSA was a professional corporation organized and existing under the laws of Georgia and was engaged in providing cardiovascular surgical services. CSA admitted the same in its answer. At no point did Keeley seek to amend or withdraw these averments of fact. “Under OCGA § 24-3-30, admissions in judicio in a party’s pleadings bind the party so that they cannot put up evidence over objection to contradict such admissions. ... If the party making the admission in judicio wishes to contravene the admission, then the party must first amend the pleading to withdraw the admission in judicio before such evidence may be submitted.”

Even if Keeley had raised the issue in pleadings, the agreed pretrial order that expressly superseded the pleadings did not raise the issue. Such an order “limits the issues for trial to those not disposed of by admissions or agreements of counsel.” Consequently, the issue was waived.

Keeley urges that the issue of CSA’s corporate status was raised in the pretrial order. But Keeley orally admitted to the court that “[t]ruthfully, this first issue was not in the pretrial order.” The court, which entered the pretrial order, ruled the matter was not in it. This is not disturbed because there is absent an abuse of discretion.

The issue was finally raised in a motion to dismiss following the close of evidence. Despite an invitation to do so, Keeley did not move to amend the pretrial order, and the court did not do so. Resolution of this dilemma is guided by the rationale in a previous case: “[w]hile the trial judge might, under the particular facts of some case, modify the pretrial order without request to prevent manifest injustice, it is difficult to imagine any case where it could be held that the trial judge abused his discretion in failing to modify a pretrial order where there had been no motion for such modification before or during the trial. Since appellant did not request any modification of the pretrial order, we find no error in the trial court’s adherence thereto.” Even if Keeley’s motion to dismiss was a tacit motion to amend the pretrial order, the trial court did not abuse its discretion in denying the motion, particularly since it came after the close of the evidence.

Keeley argues the pretrial order and the pleadings were implicitly amended to withdraw the admissions and to include this issue when evidence was introduced, through stipulation, that Roberts’ shares had not been transferred, canceled, or redeemed. But the court explicitly ruled that it was not considering this evidence on its merits and was not amending the pretrial order or the pleadings. When the court in a bench trial admits evidence that conflicts with admissions in the pleadings but "elects not to consider the issue on the merits, the admission of fact made in the pleadings remains in full force and effect as an admission in judicio and is conclusive of the fact admitted. Basically, the rule vests the trial court with discretion to determine whether an admission of fact made in pleadings should be withdrawn, thereby allowing the pleadings to be amended by conflicting evidence admitted and considered on the merits.”

It was not error to rule that Keeley had waived any issues regarding standing.

2. Keeley claims the court erred in finding CSA’s business interests would be protected by enforcement of the covenant. The two current shareholders of CSA are cardiovascular surgeons who are no longer directly employed by CSA but rather operate in the form of separate professional corporations (named after each of them) which perform surgical services on CSA’s patients. Because CSA no longer has any surgeon/employees, Keeley posits it no longer has any business interests that would be protected by enjoining him from establishing a cardiovascular surgical practice in the protected territory. To be sure, in order to be enforceable a noncompete covenant must be reasonably necessary to protect the interest of the party in whose favor it is imposed. It must afford some corresponding benefit or protection to that party.

The court found that CSA was in the business of providing medical services, including cardiovascular surgery. It found further that CSA had developed a substantial patient base and network of referring physicians throughout the protected territory. The court concluded that enforcement of the covenant would protect the corporation’s legitimate business interests.

A judge’s factfindings are not disturbed if there is any evidence to support them. CSA produced records showing it had thousands of patients and numerous referring physicians throughout the area. CSA’s shareholder and chief executive officer, who by law is considered an employee of CSA, actively practices cardiovascular surgery on CSA’s patients as does the other shareholder. CSA refers its patients to these two surgeons, who in turn use and pay CSA for the services of a physician’s surgical assistant. The surgeons also use and pay CSA for the services of its office manager, who sets the appointments, does the bookkeeping, and runs their offices. Not only is CSA directly involved in the provision of the surgical procedures, but a reduction in the number of procedures would reduce its patient and referral base as well as its income and reputation. This all supported the finding that Keeley’s intended violation of the covenant would adversely affect CSA’s business interests.

3. Keeley attacks the covenant as geographically vague. Citing Hamrick v. Kelley, Keeley contends that one cannot discern from where the 75-mile radius is to be measured. Hamrick does not stand for the proposition that noncompete covenants establishing a territory as a certain number of mile radius from a city are vague. It focuses instead on the impossibility of clearly defining the term used there (“Metro Atlanta”) so that a center could be established from which to measure the radius. Where a city (as opposed to a metropolitan area) is designated as the center of the radius, the vagueness found in Hamrick is avoided.

Keeley says that using Albany as the center is vague, for one cannot determine whether the 75 miles is to be measured from Albany city limits or from downtown Albany or elsewhere. The construction of a contract is a question of law for the court. Unless specifically designated otherwise, measuring from the city limits would be inconsistent with use of the word radius, which normally refers to a circle, not a jagged series of line segments. “The use of the word ‘radius’ presupposes a circle, the center of which is the center of [Albany]. It takes no considerable construction to place the center of that circle in the middle of downtown [Albany], giving a clear starting place for measuring the area” of restriction. Measuring from the intersection where streets change from north to south and from east to west is the logical locus for that center point. The territorial description was sufficiently definite.

4. Keeley claims the described area, a circle with a 75-mile radius, is too large and overprotects the legitimate business interests of CSA. True, a covenant which includes more territory than necessary to protect the legitimate business interests of the employer is not enforceable. He focuses on the inclusion of other heart surgical centers (where CSA admitted it had no business interests to protect) in the restricted area if one measured from Albany city limits. This approach is flawed for several reasons.

First, as explained above, measuring a radius from the city limits would be illogical.

Second, the court found that CSA had a substantial patient base and a network of referring physicians throughout the 75-mile radius. It also found that cardiovascular surgery draws its patients from large geographical areas because of restrictions on where that surgery can be performed. Evidence supported these findings.

Keeley claims that no Georgia court has ever upheld a physician’s covenant covering so many square miles, but this argument fails. Keeley was to become an equal owner of CSA within 18 months, which means this covenant was not subject to the strict level of scrutiny accorded normal employment contracts, but to the middle level of reduced scrutiny accorded professional contracts where the parties are considered as having equal bargaining power. “Cases decided under the lesser scrutiny of [such] agreements have consistently upheld territorial restrictions expressed in terms of a certain number of miles radius of a city. . . . [C]ases using this lesser scrutiny have also focused on whether the restricted area coincides with the territory served by the employer, not by the employee”

Decided January 12, 1999.

McCall & Finney, Earl McCall, Fred T. Finney, Donaldson, Bell & Pickett, George P Donaldson III, Reginald J. R. Bell, Jr., for appellant.

The size of the territory necessary to protect CSA’s business interests was a question to be determined “in view of the facts and circumstances surrounding the case. [Cit.]” Evidence supported the court’s reasonable findings; CSA attracted patients and referrals from throughout the designated area.

5. The last issue is whether the covenant is avoided because Keeley and CSA had already reached an agreement as to all terms of his employment before CSA sent him the letter agreement, which allegedly for the first time introduced the noncompete covenant. Keeley claims the new term, which he did sign prior to employment, lacks consideration.

The court found that the agreement was still being negotiated at the time Keeley received the written agreement and that it constituted the agreement. Evidence supported this finding, for even Keeley conceded that his specific employment benefits had not been outlined until the letter. What is more, the letter starts with its clear intent: “This letter is written to confirm our mutual interest in having you join our practice. The following is an outline of the terms under which you would join the practice: . . . The covenant is listed.

Judgment affirmed.

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

Reinhardt, Whitley, Wilmot & Summerlin, Robert C. Wilmot, R. H. Pittman III, for appellee.

       159 Ga. App. 202, 203 (3) (283 SE2d 1) (1981).

       OCGA § 9-11-9 (a).

        Patterson v. Duron Paints of Ga., 144 Ga. App. 123, 124 (1) (a) (240 SE2d 603) (1977); see Guthrie v. Bank South, 195 Ga. App. 123, 124 (2) (393 SE2d 60) (1990); Youmans v. Riley Properties, 180 Ga. App. 176 (349 SE2d 1) (1986); Klorer-Willhardt, Inc. v. Martz, 166 Ga. App. 446, 447 (1) (304 SE2d 442) (1983); Dorsey Heating &c. Co. v. Gordon, 162 Ga. App. 608, 610 (292 SE2d 452) (1982).

       (Citations omitted.) Wahnschaff v. Erdman, 232 Ga. App. 77, 78 (1) (502 SE2d 246) (1998); see Aycock v. Calk, 228 Ga. App. 172, 173 (491 SE2d 383) (1997) (“[w]here admissions in judicio have not been expressly withdrawn, the party is bound by such admissions”); Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601, 603 (385 SE2d 677) (1989) (“[d]efendants never expressly withdrew the admissions contained in their pleadings, which means they were bound by the admissions”).

       See Ford v. Uniroyal Goodrich Tire Co., 231 Ga. App. 11, 15 (497 SE2d 596) (1998); Uniform Superior Court Rule 7.2.

       OCGA § 9-11-16 (b).

        Long v. Marion, 257 Ga. 431, 433 (2) (360 SE2d 255) (1987) (“[i]f a claim or issue is omitted from the order, it is waived”) (citations and punctuation omitted); Morris v. Shah, 196 Ga. App. 886 (397 SE2d 207) (1990) (failure to raise standing in pretrial order waives issue).

        Ga. Power Co. v. O’Bryant, 169 Ga. App. 491, 495 (313 SE2d 709) (1984).

       (Citations and punctuation omitted.) Morris v. Nat. Western Life Ins. Co., 208 Ga. App. 443, 445 (2) (430 SE2d 813) (1993).

        DeBerry v. Knowles, 172 Ga. App. 101, 105-106 (321 SE2d 824) (1984); Patterson, supra, 144 Ga. App. at 125.

       (Citations and punctuation omitted; emphasis in original.) Wilson v. Ortiz, 232 Ga. App. 191, 197 (3) (501 SE2d 247) (1998). Compare Ballenger Paving Co. v. Gaines, 231 Ga. App. 565, 570 (1) (b) (499 SE2d 722) (1998) (admission withdrawn when court allowed jury to consider evidence on merits).

        W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992).

        Rakestraw v. Lanier, 104 Ga. 188 (1) (30 SE 735) (1898).

        Marshall v. SDA, Inc., 234 Ga. App. 312 (1) (506 SE2d 661) (1998).

       See OCGA § 14-2-140 (8).

       260 Ga. 307, 308 (392 SE2d 518) (1990).

       See, e.g., Nat. Settlement Assoc. of Ga. v. Creel, 256 Ga. 329, 331 (3) (b) (349 SE2d 177) (1986) (upholding 200-mile radius of Atlanta); Rash v. Toccoa Clinic Med. Assoc., 253 Ga. 322, 323 (1) (320 SE2d 170) (1984) (upholding 25-mile radius of Toccoa); McMurray v.

        Bateman, 221 Ga. 240, 255 (4) (144 SE2d 345) (1965) (upholding 50-mile radius of Forest Park); Adcock v. Speir Ins, Agency, 158 Ga. App. 317 (279 SE2d 759) (1981) (upholding 13-mile radius of Forest Park).

        Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986).

       See, e.g., Nunn v. Orkin Exterminating Co., 256 Ga. 558, 559 (1) (350 SE2d 425) (1986) (“ ‘a radius of ten miles of and from the official geographical boundaries of each aforementioned city and town’ ”).

        Hamrick, supra, 260 Ga. at 309 (3) (Benham, J., dissenting).

        Wulfhorst v. Hudgins & Co., 231 Ga. 170, 172 (200 SE2d 743) (1973).

        McAlpin v. Coweta Fayette Surgical Assoc., 217 Ga. App. 669, 672-673 (2) (458 SE2d 499) (1995); see Habif, Arogeti & Wynne, P.C. v. Baggett, 231 Ga. App. 289 (1) (498 SE2d 346) (1998).

       (Footnotes omitted; emphasis in original.) Id. at 293-294 (2) (b).

        Barry v. Stanco Communications Products, 243 Ga. 68, 70 (3) (252 SE2d 491) (1979).

       See Saxton v. Coastal Dialysis &c. Clinic, 220 Ga. App. 805, 809 (3) (470 SE2d 252) (upholding sixty-mile radius because clinic “attracted patients from throughout the restricted area”), modified on other grounds, 267 Ga. 177 (476 SE2d 587) (1996); McAlpin, supra, 217 Ga. App. at 673 (2) (upholding ten-county territory because professional corporation had patients in all ten counties). Compare Creel, supra, 256 Ga. at 331 (3) (b) (200-mile radius upheld because employee and employer did business throughout substantial portion of area).


text:
    A98A1731.
    DAVIS v. THE STATE.
    (510 SE2d 889)
   Beasley, Presiding Judge.

John Davis appeals his convictions for having an alcohol concentration of .10 grams or more within three hours of driving (OCGA § 40-6-391 (a) (5)), for driving under the influence of alcohol to the extent it was less safe (OCGA § 40-6-391 (a) (1)), and for improper lane change (OCGA § 40-6-123). He enumerates five errors by the court: (i) denial of his motion to exclude evidence arising from the police stop; (ii) admission of the certifications that the breath-analyzing machine was in good working order; (iii) giving OCGA § 40-6-123 as a jury instruction; (iv) giving a mandatory inference instruction from OCGA § 40-6-392 (b); and (v) refusing to strike an active duty police officer from the jury panel for cause.

1. Davis moved to exclude the evidence arising out of the stop, contending that it was based on pretext. The officer testified that at 3:30 a.m., while following Davis’ vehicle on a road with three westbound lanes, she witnessed him weave from the center lane toward the left lane and straddle the dividing stripes for twenty feet, return to the center lane, weave toward the right lane and straddle those dividing stripes for ten feet, and return to the center lane. She stopped him and, upon smelling alcohol on his breath, conducted four field sobriety tests that he performed poorly. After he tested positive for alcohol, she placed him under arrest for DUI. He consented to a chemical analysis of his breath, which showed his alcohol concentration to be .110.

The court denied the motion to exclude, finding the evidence showed the officer had an articulable suspicion to stop Davis for DUI and improper lane change. The court appeared to reject Davis’ arguments that the weaving was minimal and was a mere pretext for the stop. On appeal Davis urges that the weaving was at most only a technical violation of OCGA § 40-6-48 (1) and, similar to the defendant in Brantley v. State, that we should construe the search and seizure clause of the Georgia Constitution to prohibit pretextual stops even though they are not prohibited by the Fourth Amendment. “This is a question of constitutional construction which will have to be decided by the Supreme Court of Georgia.” Because the court did not err in finding no pretext, this issue is not reached for review and no transfer to the Supreme Court is required. Moreover, the state constitutional question, although raised in the written motion, was not explicitly ruled on below, which also precludes review.

OCGA § 40-6-48 (1) provides that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” Weaving without reason into nearby lanes violates this statute.

“Numerous cases have held that weaving out of one’s lane justifies a stop. . . . Most of these cases focus on the weaving not as a traffic offense but as an indication that the driver was possibly intoxicated, which in this context authorized police to stop the driver to determine if the suspicion, a reasonable one, was accurate. This Court has specifically determined that an officer’s observation of a motorist’s ‘weaving’ may serve as sufficient reason to warrant an investigative stop for a possible DUI violation. Thus the behavior giving rise to the reasonable suspicion need not be a violation of the law. . . . [T]he police can stop drivers who engage in erratic driving behavior, even if it is simply weaving within a lane.”

Davis’ behavior (lack of adequate control of car) justified the stop. Evidence supported the court’s inferred finding that the stop was not pretextual, particularly in light of Davis’ failure to identify an alleged pretext for the stop.

2. Pursuant to OCGA § 40-6-392 (f), the court admitted sworn documents certifying that the breath-testing device used to determine Davis’ alcohol concentration had been thoroughly tested and was in good working order and that all of its electronic and operating components prescribed by the manufacturer were properly attached. Davis challenges the establishment of the certificates as business records under OCGA § 24-3-14.

Brown v. State held such certificates are admissible “upon a proper foundation being established” and specifically approved the foundation for business records in OCGA § 24-3-14. “The foundational requirements of OCGA § 24-3-14 (b) are that a witness who is familiar with the method of keeping records testifies to facts which show that the record sought to be admitted was made in the regular course of business at the time of the event or within a reasonable time thereafter.”

It is not disputed that the State presented a witness, familiar with the certificates and the method of creating and keeping them, who testified they were created and maintained in the regular course of police business. Davis claims the witness did not testify the certificates were made within a reasonable time of the testing. This witness not only so testified, but so did a second witness. Additionally, the notary jurat for each certificate confirmed it was filled out on the day of inspection. Unlike the cases cited by Davis, the State laid the proper foundation.

3. Claiming he was tried for an offense under OCGA § 40-6-48, Davis contends the court erred in reading OCGA § 40-6-123 as part of its jury charge. Davis is confused; he was tried for and convicted of improper lane change, an offense under OCGA § 40-6-123. The State dropped the “failure to maintain lane” charge, an offense under OCGA § 40-6-48, at the beginning of trial. The court did not err.

4. But the court did commit reversible error in two respects. First, the judge instructed the jury that “if there was at that time an alcohol concentration of 0.08 grams or more, it shall be inferred that the person was under the influence of alcohol as prohibited by Code Section 40-6-391.” This mandatory inference, even though paraphrased in the language of OCGA § 40-6-392 (b) (3), impermissibly shifted the burden to Davis to prove his innocence of the DUI charge under OCGA § 40-6-391 (a) (1) (less safe to drive). The DUI conviction under OCGA § 40-6-391 (a) (5), which defines DUI as the act of having an alcohol concentration of .10 or more within three hours of driving, is not affected by reading to the jury the language of OCGA § 40-6-392 (b).

Decided January 14, 1999.

Head, Mullís, Thomas & Webb, Thomas J. Thomas, for appellant.

Carmen Smith, Solicitor, Cynthia G. Strong-McCarthy, Assistant Solicitor, for appellee.

5. Reversal of all convictions is required by the second error. Despite Davis’ request, the court refused to strike for cause a juror on the panel who was an active duty police officer. Davis was forced to use a peremptory strike to remove the officer and exhausted his peremptory strikes during jury selection.

Hutcheson v. State held that if full-time officers are challenged for cause in a criminal case, they must be removed, and that failure to do so is reversible error. Although reversal was at one time contingent on the defendant using a peremptory strike to remove the juror and on the defendant exhausting his peremptory strikes during the selection process, circumstances which Davis happens to meet, such is no longer required. The statement by the officer that he could decide the matter impartially is immaterial. Accordingly, all convictions are reversed, and Davis is entitled to a new trial.

Judgments reversed on all counts.

Pope, P J., and Ruffin, J., concur.

       226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997).

       See Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996) (pretextual stops are not prohibited by the Fourth Amendment where police observe traffic violation).

        Brantley, supra, 226 Ga. App. at 873 (1); see Ga. Const, of 1983, Art. I, Sec. I, Par. XIII (search and seizure provision) and Art. VI, Sec. VI, Par. II (Supreme Court has exclusive jurisdiction of interpretation of state constitution).

        Brantley, supra, 226 Ga. App. at 873, n. 1.

        Marr v. Dept. of Ed., 264 Ga. 841 (452 SE2d 112) (1995) (party must elicit specific ruling on constitutional question to preserve it for appellate review).

       (Citations and punctuation omitted.) Semich v. State, 234 Ga. App. 89, 91-92 (506 SE2d 216) (1998).

       See State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996) (straddling lanes justified stop).

       See Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994) (uphold findings on motion to suppress if any evidence supports them).

       268 Ga. 76, 81 (485 SE2d 486) (1997).

       (Citation omitted.) Mealor v. State, 233 Ga. App. 193, 194 (2) (504 SE2d 29) (1998).

       Id. (each certificate recording the inspection was prepared on the date of the test as sworn to by the notary).

        Mullinax v. State, 231 Ga. App. 534, 535 (2) (499 SE2d 903) (1998) (officer did not know if documents were made contemporaneously with the testing); Hamilton v. State, 228 Ga. App. 285, 286 (4) (491 SE2d 485) (1997) (no foundation laid other than showing certificates were maintained in log book); Daniel v. State, 227 Ga. App. 92, 93 (488 SE2d 129) (1997) (no effort to lay foundation).

       See Payne v. State, 232 Ga. App. 591, 594 (2) (502 SE2d 526) (1998).

        Stepic v. State, 226 Ga. App. 734, 735 (1) (487 SE2d 643) (1997); Holcomb v. State, 217 Ga. App. 482, 484 (3) (458 SE2d 159) (1995); Ellerbee v. State, 215 Ga. App. 102, 105 (4) (449 SE2d 874) (1994). Compare Lattarulo v. State, 261 Ga. 124, 125 (1) (401 SE2d 516) (1991) (permissible inference allowed).

        Lester v. State, 253 Ga. 235, 237-238 (2) (320 SE2d 142) (1984); Ellerbee, supra, 215 Ga. App. at 104-105 (5).

       246 Ga. 13, 14 (1) (268 SE2d 643) (1980).

       See Parks v. State, 178 Ga. App. 317, 318 (343 SE2d 134) (1986); King v. State, 173 Ga. App. 838 (328 SE2d 740) (1985) (physical precedent only).

        Harris v. State, 255 Ga. 464 (2) (339 SE2d 712) (1986).

        Hutcheson, supra, 246 Ga. at 14.


author: Judge Harold R. Banke.

text:
    A98A1941.
    MOLARO v. THE STATE.
    (510 SE2d 886)
   Judge Harold R. Banke.

Michael J. Molaro was convicted of possession with intent to distribute amphetamines. Molaro asserts three errors.

During an undercover surveillance operation of a shopping center parking lot, investigators observed Molaro arrive at 10:30 p.m., after most businesses had closed. Blackwell v. State, 229 Ga. App. 452 (494 SE2d 269) (1997). One officer testified that the location was a “high crime” area. After Sergeant Douglas Oliver observed Molaro park in the middle of the lot, lock his Toyota, then start to walk toward an Arby’s, he decided to follow Molaro in an unmarked pickup truck. A Suzuki Samurai entered the lot and proceeded toward Molaro who climbed inside. The Samurai drove through the Arby’s then parked next to Molaro’s Toyota. Molaro exited the Samurai, left his door open, and sat down. Oliver testified that at this point he was “very suspicious” believing that “they could have been doing a dope deal” or were scheming to attempt to rob one of the businesses at closing. According to Oliver, he had observed drug deals transacted in a similar manner: participants meeting in separate vehicles out in the open, getting into one vehicle, and returning to the other.

Based on the time of night, his personal observations of Molaro’s actions, and his knowledge of drug deals, Oliver decided to investigate. By radio, Oliver informed the two backup officers located in another truck that he was going to pull his vehicle up in front of the two cars and approach. Oliver parked about seven or eight feet away then walked toward Molaro. As he did so, he observed Molaro removing something from the console. Oliver displayed his badge, identified himself, and asked Molaro to “stay put” or remain where he was. Instead, Molaro immediately jumped out of his car and rushed toward the Samurai, where he hurled a small plastic bag through the Samurai’s open passenger door. Due to Molaro’s sudden movement after he had been requested to “stay put,” Oliver’s backup, also in street clothes, drew his service weapon, identified himself, and instructed Molaro to freeze. The trial court determined that the officers had “sufficient particularized facts to cause them to be suspicious,” to justify an inquiry and a brief detention.

When the driver of the Samurai, Jeffrey Rodgers, was interrupted by police, he was in the process of counting his money and deciding how much “speed” he wanted to buy from Molaro. Rodgers still had $650 clenched in his hand. The bag Molaro tossed contained amphetamines worth $700 to $800. Police confiscated a pager and $483 cash from Molaro.

Rodgers testified that after he contacted Molaro to buy some “speed,” Molaro agreed to meet him at this parking lot. An Ohio incident in which Molaro had tossed a duffle bag containing over two pounds of marijuana and a set of scales out a car window during a high speed chase was admitted as similar transaction evidence. Held:

1. Molaro contends that the trial court erred in denying his motion to suppress. Unless clearly erroneous, a trial court’s findings on disputed facts and witness credibility at a suppression hearing must be accepted. Fulton v. State, 192 Ga. App. 693, 695 (1) (385 SE2d 777) (1989); see Ledford v. State, 220 Ga. App. 272, 273 (469 SE2d 401) (1996).

Although we question whether Molaro had standing to object to the search of another person’s vehicle, we need not reach that issue because after Molaro discarded or abandoned his property by throwing it away, he no longer could claim a reasonable expectation of privacy with regard to it. Mann v. State, 196 Ga. App. 730, 731 (1) (397 SE2d 17) (1990); Walker v. State, 228 Ga. App. 509, 510 (1) (493 SE2d 193) (1997). Constitutional protections do not encompass abandoned or voluntarily discarded property. Id.

Nor did the officer’s actions violate Molaro’s Fourth Amendment rights. An investigating officer need not have “articulable suspicion” before he can approach a stopped vehicle and talk with the driver. Crosby v. State, 214 Ga. App. 753, 754-755 (449 SE2d 147) (1994); see McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997). No seizure occurs simply because a police officer approaches an individual and asks a few questions. Rogers v. State, 206 Ga. App. 654, 656-657 (1) (426 SE2d 209) (1992). Moreover, a brief investigatory stop of a suspicious individual in order to determine his identity or obtain information may be reasonable under the facts known to the officer. Eisenberger v. State, 177 Ga. App. 673, 675 (2) (340 SE2d 232) (1986). From these facts, it appears that Molaro was merely approached while voluntarily stopped. Crosby, 214 Ga. App. at 755; see O’Donnell v. State, 200 Ga. App. 829, 830 (1) (409 SE2d 579) (1991). Compare Vansant v. State, 264 Ga. 319, 320-321 (2) (443 SE2d 474) (1994) (police lacked requisite particularized basis to stop driver of moving vehicle). Only after Molaro behaved in a furtive or bizarre manner did another officer draw a gun and issue a command, escalating the situation from what had initially begun as a low level police-citizen encounter. See Aranda v. State, 226 Ga. App. 157, 158 (1) (486 SE2d 379) (1997). The trial court’s ruling on the motion to suppress was supported by evidence and was not clearly erroneous. Fulton, 192 Ga. App. at 695 (1).

2. Molaro contends that the court erred in admitting evidence of the Ohio incident arguing that it was dissimilar in that it concerned two pounds of marijuana and not nineteen grams of amphetamines, was geographically remote, and involved a high speed chase instead of a parked car.

The State offered the Ohio transaction to show Molaro’s similar course of conduct and bent of mind in that while possessing illegal drugs with an intent to distribute, when confronted or cornered by police, Molaro would throw the drugs away. See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). A similar transaction need not be identical to be admissible. Woods v. State, 224 Ga. App. 52, 55 (3) (479 SE2d 414) (1996). The Ohio incident was relevant to show a common design or course of conduct from which a jury could infer that Molaro both possessed and intended to distribute illegal drugs. See id. The prior incident was sufficiently similar to the charged offense. Burkett v. State, 230 Ga. App. 676, 678 (2) (497 SE2d 807) (1998). We find no error. White v. State, 225 Ga. App. 74, 76 (2) (483 SE2d 329) (1997).

Decided January 14, 1999.

Jill L. Anderson, Mary Erickson, for appellant.

David McDade, District Attorney, Stephen L. Corso, Assistant District Attorney, for appellee.

3. Molaro contends that the court erred by failing to give on its own initiative a contemporaneous limiting instruction when the similar transaction evidence was introduced and by failing to narrow its general charge on similar transaction evidence. Where a trial court does not give a contemporaneous limiting instruction at the time of the admission of the evidence, and none is requested, reversal is not mandated. State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998).

The court explicitly instructed the jury that Molaro was being tried solely for the offense of possession of amphetamines with intent to distribute as charged in the indictment. The court restricted the use of the similar transaction evidence as follows: “[s]ometimes evidence is admitted for a limited purpose. The Ohio information was presented to you for such a limited purpose. Such evidence may be considered by the jury for the sole issue or purpose to which it is limited — and I’m going to instruct you on that limiting purpose. You may not consider it for any other purpose.” The court gave the pattern charge on similar transactions modifying it by omitting the inapplicable portions: “location in time or place” and “identity of the perpetrator.” Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, pp. 24-25. Having reviewed the charge as a whole, we find that it substantially presented the issues and was unlikely to have confused or misled the jury. English v. State, 202 Ga. App. 751, 757 (10) (415 SE2d 659) (1992).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: McMurray, Presiding Judge.

text:
    A98A1861.
    RINGO v. THE STATE.
    (510 SE2d 893)
   McMurray, Presiding Judge.

A Banks County Grand Jury returned an indictment charging defendant Jason Robert Ringo with aggravated assault with a deadly weapon “by pointing a handgun at” the victim, Diane McElroy (Count 1) and also firing a shot at her (Count 2). Defendant was also charged with three counts of terroristic threats and acts (Counts 3, 4 and 5), plus two counts of simple battery by kicking Diane McElroy on the ankle (Count 6) and kicking her on the chest (Count 7). The jury acquitted defendant of Counts 2, 3, 4, 5 and 7, but found him guilty of Counts 1 (aggravated assault with a deadly weapon “by pointing a handgun”) and 6 (simple battery by kicking the victim on the ankle). Defendant’s motion for new trial was denied and this appeal followed. Defendant’s sole enumeration of error urges the general grounds. Held:

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Hawkins v. State, 230 Ga. App. 627, 630 (3) (497 SE2d 386). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld. Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489). Viewed in this light, the evidence at defendant’s trial revealed the following:

After the defendant and his wife, Cindy Ringo, separated, Mrs. Ringo along with their child, Kayla Ringo, moved in with Mrs. Ringo’s mother, the victim, Diane McElroy. At approximately 9:15 p.m. on July 2, 1997, defendant went to the victim’s residence, ostensibly to see his daughter. Defendant’s wife was just returning home from work. As she “was heading into the house, ... he [defendant] said he was going to come in and see Kayla, [his] daughter. And [Mrs. Ringo] told him to wait, because [she] could tell [defendant] was mad. [Mrs. Ringo] didn’t want to argue in front of her [daughter]. [But defendant] said no, he was coming in anyway.”

According to Mrs. Ringo, in the presence of their daughter, defendant told his wife and the victim “not to ‘F’ with him; [because] his blood sugar was low. And [the victim] told [defendant] not to . . . argue in front of Kayla. [But defendant] said ... he can argue if he wanted to. . . . And he kicked [his wife’s] mom in the ankle. . . .” She observed that defendant “jumped back and . . . pulled a gun out of his pants, and . . . pointed it at [Diane McElroy].” The victim confirmed that defendant arrived that evening “cussing . . . and [with] his voice . . . raised. . . . And [the victim] said, ‘Jason, do not be cussing in front of the baby.’ And [defendant] said, T do what the — I want to[, and then] he kicked [the victim] on the ankle [causing a bruise]. [The victim] had the baby in [her] arms. And the next thing, [defendant] had jumped out in the middle of the floor in front of the refrigerator and pulled a gun out [of] the front of his britches.... He stuck his hand down there and pulled it out. And he had both hands on it. That’s when [the victim] recognized he had both hands on it. And [the victim] still had Kayla in [her] arms when he was pointing the gun at [the victim].” Defendant admitted he “pulled out the gun, and . . . had it by [his] side[, stating:] ‘She’s going with me. I want her now.’ ”

Decided January 15, 1999.

Cook, Noell, Tolley & Wiggins, Edward D. Tolley, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

“The testimony of a single witness is generally sufficient to establish a fact. . . .” OCGA § 24-4-8. In the case sub judice, the evidence was sufficient under the standard of Jackson v. Virginia, supra, to authorize the jury’s verdict that defendant is guilty beyond a reasonable doubt of committing aggravated assault with a deadly weapon. OCGA § 16-5-21 (a) (2); Harper v. State, 127 Ga. App. 359, 360 (3) (193 SE2d 259). The evidence also authorized the verdict that defendant committed simple battery by intentionally kicking the victim on the ankle, causing a bruise. OCGA § 16-5-23 (a) (2); Scott v. State, 123 Ga. App. 675 (3) (182 SE2d 183).

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


author: Eldridge, Judge.

text:
    A98A2266, A98A2267.
    GLOVER v. WARE et al.; and vice versa.
    (510 SE2d 895)
   Eldridge, Judge.

Henry Hall Ware III, and Margaret Ware Deimling, individually and as Executors on behalf of the Estate of Henry H. Ware, Jr. (“plaintiffs”) obtained a final judgment against Clarence H. Glover, Jr. (“defendant”). See Glover v. Ware, 222 Ga. App. 297 (474 SE2d 1) (1996).

On April 25, 1997, plaintiffs had the Fulton County Sheriff’s Department levy against certain property owned by the defendant in the City of Alpharetta, Fulton County, Georgia, for purposes of a judicial levy, execution, and sale. In 1980, defendant and his former wife, Helen Glover (now Helen Belisle) (“Glover”), purchased 6.2 acres of land with a house at 430 Thompson Street, Alpharetta, Fulton County, as tenants in common. On July 1, 1994, the defendant and Mrs. Glover were divorced. During the litigation with the plaintiffs in this case, the defendant sought to convey his undivided half interest to Glover. In September 1992, while the property was in the name of Glover alone, Glover had the house and one acre surrounding it refinanced and gave a deed to secure debt on this one acre in her name alone. Because of the fraudulent conveyance to her, Glover was made a party to the lawsuit between the plaintiffs and the defendant; the judgment required that she reconvey to the defendant his one-half undivided interest not only in the house and one acre but also the remainder of the 5.211 acres that was not subject to the deed to secure debt. During the ownership by defendant and Glover, the entire tract of land was annexed into the City of Alpharetta. Thus, the remaining 5.211 acres is not encumbered with any deed to secure debt.

Case No. A98A2266

1. Defendant’s enumerations of error 1, 2, 4, and 5 raise the same issue in different forms, i.e., that the trial court erred in allowing the levy, sale, and execution because it “partitioned” or subdivided the property in violation of state and local law regarding subdivision of property and that the plaintiffs lacked standing to partition the property. We do not agree.

Defendant begs the question when asserting that execution and sale will partition or subdivide the property in violation of state and local laws; the real question deals with what is sold and conveyed under a sheriff’s execution and sale. Defendant’s position that the conveyance, either by deed or by judicial execution and sale of an undivided one-half interest as a tenant in common, constitutes a subdivision or partitioning of the entire 5.211 acres or that the one-half undivided tenancy in common interest in the 5.211 acres cannot be conveyed separately from the 6.2 acres without constituting a partitioning or subdivision of the tract is contrary to Georgia law, because what is conveyed at execution and sale is only the interest that the defendant possesses at the time of sale.

Under Georgia law, an undivided interest in real property may be created into as many fractional shares of the whole property as the grantor or grantors desire, because it is a fractional ownership interest in the whole and not a division of the land into discrete parts, i.e., subdivision or partitioning. See OCGA § 44-6-120; Hasty v. Wilson, 223 Ga. 739, 745-746 (2) (158 SE2d 915) (1967); Whitfield v. Means, 140 Ga. 430 (78 SE 1067) (1913). “[A] tenancy in common is created wherever from any cause two or more persons are entitled to the simultaneous possession of any property. Tenants in common may have unequal shares, but they will be held to be equal unless the contrary appears. The fact of inequality shall not give the person holding the greater interest any privileges as to possession which are superior to those of the person owning a lesser interest so long as the tenancy continues.” OCGA § 44-6-120; see also Mills v. Williams, 208 Ga. 425 (67 SE2d 212) (1951); Anderson v. Lucky, 18 Ga. App. 479 (89 SE 631) (1916). In short, an undivided interest in a tenancy in common is just such ownership interest as would result from sale of the defendant’s interest, because any purchaser or purchasers would acquire only defendant’s undivided one-half interest in a tenancy in common and would stand in his shoes. Under OCGA § 44-1-2 (a) (3), “the term ‘realty’ or ‘real estate’ means: [a]ny interest existing in, issuing out of, or dependent upon land or the buildings thereon.”

The deed to secure debt conveyed to the lender the legal title with the right of redemption of the title, a beneficial interest, in the owner-borrower upon complete satisfaction of the obligation. Repayment and cancellation of the deed to secure debt or foreclosure merge both the legal title with the beneficial title to give a fee simple title. See generally Harvard v. Davis, 145 Ga. 580, 583 (1) (89 SE 740) (1916); Barnard v. Barnard, 91 Ga. App. 502 (86 SE2d 533) (1955); see also Cook v. Ga. Fertilizer & Oil Co., 154 Ga. 41 (1) (113 SE 145) (1922).

When a sheriff levies and sells real property of the defendant-infi. fa., such sale affects only the unencumbered interests of the defendant as an involuntary judicial conveyance of such interests. Therefore, an undivided interest in real property, i.e., a tenancy in common, can be subject to levy and sale and such interest sold so that the purchaser acquires the same interests possessed by the defendant-in-fi. fa. See Morgan Guaranty Trust Co. v. Alexander Equities, 246 Ga. 60, 61 (268 SE2d 660) (1980); All Florida Sand v. Lawler Constr. Co., 209 Ga. 720 (75 SE2d 559) (1953); Register v. Harper, 177 Ga. 769, 771 (1) (171 SE 269) (1933); Leonard v. Scarborough, 2 Ga. 73, 77 (2) (1847).

A sheriff’s sale of defendant’s undivided one-half interest in a tenancy in common does not constitute a partitioning, because such sale merely results in an involuntary conveyance of the one-half undivided interest in a tenancy in common to the entire property to another, which defendant had the right to alienate in a nonffaudulent conveyance. See Rusk v. Hill, 121 Ga. 379, 380 (49 SE 261) (1904). Whatever unencumbered interests in land that the defendant-in-fi. fa. could freely alienate by conveyance, the sheriff can levy and sell under the same rights of alienability as an interest in land. See generally OCGA § 9-13-60; Paces Partnership v. Grant, 212 Ga. App. 621, 624 (1) (442 SE2d 826) (1994); Hortman v. Childress, 162 Ga. App. 536, 537-538 (292 SE2d 200) (1982); Alderman v. Crenshaw, 84 Ga. App. 344, 346-347 (1) (66 SE2d 265) (1951). Any new tenant in common would then have standing as joint owner to bring a petition for partitioning among the several available remedies. Byse v. Lewis, 260 Ga. 551, 552 (400 SE2d 618) (1990). The Supreme Court has suggested that partitioning is the legal remedy that a tenant in common would exercise after practical remedies to dispose of joint interests have been exhausted: “1. [s]ell the property and divide the proceeds [;] 2. [o]ne tenant in common to buy out the other[;] 3. [a]llow a foreclosure”; or 4. partition. Id. at 552. Thus, the Supreme Court does not equate partitioning with foreclosure or judicial sale.

2. The defendant enumerates as error that the superior court erred in failing to find that levy and execution by plaintiffs was in violation of OCGA § 9-13-60, relating to the sale of encumbered property. We do not agree.

The evidence before the trial court showed that the deed to secure debt encumbered not the entire 6.211 acres, but only the house and one acre. The defendant, in testimony, did not deny this. Therefore, the 5.211 acres levied upon by the sheriff were not encumbered, and the defendant had legal title to the land; the plaintiffs did not have to satisfy a security deed that did not encumber defendant’s interest in land levied upon by the sheriff. See OCGA § 9-13-60; Perry v. Heflin, 202 Ga. 143 (42 SE2d 378) (1947); Moncrief Furnace Co. v. Northwest Atlanta Bank, 193 Ga. 440 (3) (19 SE2d 155) (1942); pre-UCC Manchester Motors v. F & M Bank, 91 Ga. App. 811, 812-813 (1) (87 SE2d 342) (1955).

OCGA § 9-13-60 (a) reads in part: “[w]here any person other than the vendor or other than the holder or assignee of the purchase money or secured debt has a judgment against a defendant in execution who does not hold legal title to property but has an interest or equity therein, such plaintiff in execution may take up the debt necessary to be paid by the defendant in order to give the defendant legal title to the property by paying the debt with interest to date if due and interest to maturity if not due.” (Emphasis supplied.) By its plain language, this Code section has no application to the facts of this case, because the defendant has unencumbered legal title to the property, i.e., a one-half undivided interest in a tenancy in common to the 5.211 acres sought to be levied upon by the sheriff. The act applies to defendants possessed of only equitable interest in the property. See Gamble v. Pilcher, 242 Ga. 556 (250 SE2d 416) (1978); Dean v. Andrews, 236 Ga. 643 (225 SE2d 38) (1976); Cook v. Securities Inv. Co., 184 Ga. 544 (192 SE 179) (1937); pre-UCC Manchester Motors v. F & M Bank, supra. Therefore, a levy and sale of an undivided one-half interest as a tenancy in common that is not subject to a deed to secure debt merely conveys the interest of the defendant-in-fi. fa. and has no effect on other encumbered property.

Case No. A98A2267

3. Plaintiffs’ enumeration of error is that the trial court erred in refusing to award damages under OCGA § 9-13-128 for a baseless, unsupported, and frivolous affidavit of illegality interposed for delay only. We agree.

OCGA § 9-13-128 reads: “[u]pon the trial of an issue formed on an affidavit of illegality, the jury trying the case shall have power to assess such damages as may seem reasonable and just, not exceeding 25 percent of the principal debt, where it is made to appear that the illegality was interposed for delay only.”

The issues on appeal of Case No. A98A2266 were frivolous. The record is silent, because the affidavit of illegality is not before this Court in the record. However, the trial court found, as a matter of law, the following grounds for the affidavit of illegality to be merit-less and without legal authority: 1. lack of verification; 2. partition or subdivision of the land; 3. lack of actual notice; 4. faulty legal description; 5. claims 22, 24, and 25 abandoned; and 6. other claims not addressed by the trial court. The affidavit of illegality was filed on May 28, 1997. The hearing was held on July 29, 1997. The defendant’s arguments were to be made by brief within two weeks. The record contains no brief of the defendant. The trial court ruled on February 13,1998. Thus, the trial court denied the defendant’s relief.

Notwithstanding the trial court’s conclusion of law, the trial court ruled that “[inasmuch as the court finds that Glover’s [defendant] affidavit of illegality was not interposed solely for the purpose of delay, the court concludes that the imposition of damages under OCGA § 9-13-128 is not proper and the request of plaintiffs-in-execution for the same is hereby denied.”

Where an affidavit of illegality is deficient as a matter of law or raises legal issues only for the trial court, then there is no factual determination for the trier of fact, and damages shall be imposed as a matter of law. See OCGA § 9-13-128; Franklin v. Mobley, 202 Ga. 212, 219-220 (3) (42 SE2d 755) (1947); Hunt v. Lee, 199 Ga. App. 130, 131-132 (404 SE2d 446) (1991); Felker v. Still, 35 Ga. App. 236 (133 SE 519) (1926); Rawlings v. Brown, 15 Ga. App. 162, 167 (4) (82 SE 803) (1914). “If the grounds set forth be not only not good in law, but not true in fact, and the defendant could have had good reasons, if he had made inquiry of the sheriff as to the papers in the case, then lodged with him, to believe that the grounds were not true, and still prosecutes his affidavit to trial, and does not offer any evidence to sustain even the truth of his allegations, he is clearly liable to the penalties prescribed for the filing of affidavits of illegality for delay only.” White v. Haslett, 49 Ga. 280, 283 (2) (1873). “The case [of the affidavit of illegality] is utterly without merit, and, as appears from the record, could have been brought to this court only for delay, and we feel constrained, in accordance with the request of the plaintiff in execution, to award . . . damages for the delay she has suffered in consequence.” Baker v. Akerman, 77 Ga. 89, 90 (1886).

Decided January 15, 1999.

Clarence H. Glover, Jr., pro se.

Barry L. Katz, for appellant.

Kidd & Vaughan, David N. Schaeffer, for appellees.

While the standard of review of a non-jury trial of disputed material facts is the clearly erroneous test under OCGA § 9-11-52, here the trial court ruled on matters of law as to the claims in the affidavit of illegality and as a matter of law found that the claims lacked merit. Thus, the plain legal error standard of review applies, where the appellate court determines that the issue was of law, not fact, that there was no factual dispute, or that there was no discretion, so that the issue for review was whether the trial court made a plain legal error. See American Bldgs. Co. v. Pascoe Bldg. Systems, 260 Ga. 346, 348 (1) (392 SE2d 860) (1990); Uni-Worth Enterprises v. Wilson, 244 Ga. 636, 640 (2) (261 SE2d 572) (1979); Astin v. Carden, 194 Ga. 758, 764 (2) (22 SE2d 481) (1942); Hill v. Wadley Southern R. Co., 128 Ga. 705, 716 (7) (57 SE 795) (1907). Where an affidavit of illegality as a matter of law lacks merit, the trial court has no legal discretion to deny damages. Therefore, after finding the affidavit of illegality lacked merit as a matter of law, the trial court committed plain legal error in denying the requested damages and in exercising judicial discretion where the trial court had no such discretion. The case is reversed and remanded to the trial court with directions that damages under OCGA § 9-13-128 be awarded to the Wares and against Glover after evidentiary hearing, OCGA § 9-11-43 (b), to determine only the issue of the reasonable amount of such damages. See Franklin v. Mobley, supra at 220; Baker v. Akerman, supra at 90.

Judgment affirmed in Case No. A98A2266. Judgment reversed and remanded with directions in Case No. A98A2267.

Judge William H. Craig and Judge Mary E. Staley concur. Johnson, C. J., McMurray, P. J., Pope, P. J., Beasley, P. J., Andrews, Blackburn, Smith and Ruffin, JJ, disqualified.


author: McMURRAY, Presiding Judge.

text:
    A98A2396.
    In the Interest of T. T., a child.
    (510 SE2d 901)
   McMURRAY, Presiding Judge.

T. T. was adjudicated delinquent after the juvenile court found he committed an act which, had he been an adult, would have supported a conviction for aggravated assault, a designated felony. OCGA §§ 16-5-21; 15-11-37 (a) (2) (B) (ii). The juvenile court ordered that T. T. be confined in a Youth Detention Center for 48 months. On appeal, T. T. asserts there was insufficient evidence to support a finding of delinquency and that the trial court erred when it ordered him confined to restrictive custody for 48 months.

1. “In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the [juvenile] committed the acts charged. In the Interest of J. T. M., 200 Ga. App. 636, 637 (409 SE2d 256) (1991); see generally Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).” In the Interest of R. L. W., 225 Ga. App. 253, 254 (2) (483 SE2d 361) (1997). The standard of review on appeal in a case of adjudication of delinquency of a juvenile is the same as that for any criminal case. In the Interest of M. J. F, 191 Ga. App. 792 (1) (383 SE2d 173).

The record in this case shows that T. T. fought with Kenny Mann after a group of young men, including Mann, laughed at his dog. Mann testified that the fight began after T. T. stood up and asked Mann “[W]hat are you laughing at?” Mann stood up and responded, “Man, I can laugh whenever I want to laugh, I’m grown. You can’t stop somebody from laughing.” After they both took steps toward one another, Mann told T. T. to get out of his face three times. According to Mann, T. T. then stabbed him with a knife several times before he knew what was happening. After seeing his own blood, Mann “slammed” T. T. several times until the fight was broken up. We find this evidence sufficient to authorize the juvenile court to adjudicate T. T. delinquent.

2. T. T. asserts the juvenile court erred when it failed to conclude that he acted in self-defense when he stabbed the victim. Although witnesses testified that Mann started the fight by slamming T. T., this evidence does not demand a finding that T. T. acted solely in self-defense within the meaning of OCGA § 16-3-21 (a). “ ‘[T]he credibility of the witnesses is for the judge’s determination, where the trial judge hears the case without intervention of a jury.’ [Cit.]” In the Interest of J. T.M., supra.

3. T. T. contends the juvenile court erred when it ordered him confined in a Youth Development Center for 48 months because “there was no finding that [he] was in need of restrictive custody.” We find no merit in this enumeration. The juvenile court specifically found “the child is in need of restrictive custody” in its Order of Commitment. The juvenile court also made all of the factual findings required by OCGA § 15-11-37 (b).

Decided January 15, 1999.

Sharon S. Whitwell, for appellant.

Tommy K. Floyd, District Attorney, Sandra A. Graves, Mary Evans-Battle, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


text:
    A98A2434.
    HEARD v. THE STATE.
    (510 SE2d 900)
   McMurray, Presiding Judge.

After being indicted for rape, Marquez Heard was convicted of the lesser included offense of sexual battery following a jury trial. Heard appeals, contending in his sole enumeration of error that the trial court erred when it denied his motion for a mistrial based upon the use of the word “rape” during the testimony of the State’s medical expert.

At trial, Dr. Darlena Monet testified that she performed a physical exam of the victim at DeKalb Medical Center. When the State asked Dr. Monet to tell the jury what she recalled about the victim, Dr. Monet testified “it was very difficult to do the pelvic exam. And, she told us before the exam that she had been a virgin, until the time of the rape.” After defense counsel objected to the use of the term “rape,” the trial court instructed Dr. Monet to refer to it as “the incident.” Dr. Monet complied with this request when she resumed testifying. Later in Dr. Monet’s testimony, the State asked her whether she had completed a “rape kit” and to explain what a “rape kit” includes with no objection from defense counsel.

At the conclusion of the State’s direct examination of Dr. Monet, the defense moved for a mistrial on the grounds that Dr. Monet characterized the incident as a rape. The trial court denied this motion. It did, however, give the following instruction to the jury at the conclusion of Dr. Monet’s testimony: “Ladies and gentleman, the witness has used the word rape, rape exam, rape kit. The word has been used several times and what I am going to suggest to you is that the evaluation that she did in the exam she did was in that context of a charge of rape. That the victim claimed there was rape. Obviously the question of whether it was or was not a rape is something that you are going to have to decide, after hearing all of the evidence. I don’t want you to think that this witness has concluded one way or the other, because all she did was respond to what the victim was telling her, and she did the exam. That was her purpose. That’s her function in this proceeding. Okay? The ultimate decision is something that you’ll have to make after I charge you on what the law is and you have had a chance to consider all the evidence. Do you understand? Okay, thanks. You may cross-examine.” Appellant Heard did not renew his motion for a mistrial. Held:

Decided January 15, 1999.

Gayle D. Bacon, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Appellant waived his right for this Court to review the denial of his motion for a mistrial by failing to renew it after the curative instruction was given by the trial court. Woodham v. State, 263 Ga. 580, 582 (3) (439 SE2d 471); Sing v. State, 217 Ga. App. 591, 592 (2), 593 (458 SE2d 493).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A2077, A98A2078, A98A2079, A98A2080, A98A2081, A98A2082, A98A2083, A98A2084.
    INSTITUTE OF NUCLEAR POWER OPERATIONS v. COBB COUNTY BOARD OF TAX ASSESSORS et al. (eight cases).
    (510 SE2d 844)
   McMURRAY, Presiding Judge.

For the tax years 1993 and 1994, the Institute of Nuclear Power Operations (“INPO” or “Taxpayer”) filed a total of eight applications for exemption from tangible property taxes on real and personal property located in Cobb County, Georgia, contending INPO is an institution “of purely public charity.” The property at issue consists of business assets such as a computer system, two airplanes, and the multi-story office building used as INPO’s headquarters. The Cobb County Board of Tax Assessors and the Board of Equalization (“the Board”) denied all applications for an exemption, and INPO appealed to the superior court for a de novo determination. OCGA § 48-5-311 (g) (3). Over INPO’s objection, Cobb County and the Cobb County School Board (“Intervenors”) were permitted to intervene. On cross-motions for summary judgment, the following undisputed facts were adduced:

After the 1979 nuclear incident at Three Mile Island, “[t]he U. S. nuclear electric utility industry established the [INPO] in 1979 [with the corporate mission] to promote the highest levels of safety and reliability ... in the operation of . . . nuclear [electric generating] plants, . . .” and thereby promote public health and safety. “All organizations having direct responsibility and legal authority to operate or construct commercial nuclear electric generating plants in the United States are INPO members. Many organizations that jointly own these nuclear power plants are associate members.” Conversely, “all INPO members which own Nuclear Power Plants have a commercial license issued by the Nuclear Regulatory Commission [(“NRC”)].” Specifically, “all members of INPO are investor-owned utilities with the exceptions of the Nebraska Public Power District, New York Power Authority, Omaha Public Power District, Tennessee Valley Authority, and Washington Public Power Supply System.” According to Angelina S. Howard, Director of the INPO Communications Division, “all activities of INPO are commercial in the sense that they relate to the commercial generation of electricity.” In 1994, the for-profit members of INPO earned a combined net income exceeding $12 billion. According to the 1995 annual report, “INPO’s value to the industry lies in its ability to provide utilities with timely performance insights that can be used to improve plant operation and to identify and follow up on initiatives to enhance safety, reliability and efficiency.” The 1995 financial statement lists “[m] embers’ net assets — unrestricted [at $]24,602,010.”

INPO is recognized as a charitable organization exempt from income taxes by both the Internal Revenue Service and the Georgia Department of Revenue. “All of INPO’s revenues are used to pay its expenses. It has no retained earnings and pays no dividends to its members.” All members of INPO’s Board of Directors are high officers employed by INPO members. These directors are not compensated for their services. But INPO’s 13 full-time officers are paid salaries competitive with the commercial nuclear electricity industry, ranging from $84,291.82 to a base salary of $390,000 plus a five-year deferred compensation bonus of $454,976.31 for the president and Chief Executive Officer, Zack T. Pate. Total salaries and benefits paid in 1995 amounted to $31,845,998. INPO paid ad valorem taxes on personalty from 1980 through 1992, before it acquired its headquarters.

All members of INPO must pay dues or lose their membership. For 1993, membership dues amounted to more than $50 million. In addition to annual dues, INPO imposes a requirement whereby “each supplier participant provides INPO with one loaned employee or $6,000 per month for each month a loaned employee is not provided. . . . [INPO] believe [s] the INPO loaned employee program provides a valuable benefit and is a career development opportunity for the industry’s nuclear management personnel.”

According to the Memorandum of Agreement between INPO and the NRC, INPO is an organization sponsored by the nuclear electric utility industry. The NRC “[recognizes] the ability of INPO to contribute to safe and reliable operation with a resulting benefit to public health and safety. . . INPO’s major activities consist of four cornerstone technical programs: evaluation of member utilities; training and accreditation programs for member utilities; events analysis and information exchange programs for member utilities; and assistance programs, whereby INPO “collects and monitors nuclear plant performance indicator data and provides periodic reports to the industry.”

“INPO conducts an evaluation of a nuclear plant by sending a team of engineers and other technical specialists to the plant for two weeks. A team numbers approximately 15 people and includes both INPO personnel and peer evaluators from other nuclear plants. During the two-week evaluation at the plant, the members of the team observe plant personnel carrying out their assigned duties. INPO relies heavily on observations of people at work and on the frank [and confidential] feedback from working-level employees to determine the effectiveness of plant programs and activities. . . .” But because “INPO is not a government organization [it therefore reasons it] has no obligation to provide its reports to the public. The Institute, on behalf of its members, has worked diligently over the years to protect the confidential nature of its evaluation and other plant-specific reports.” Consequently, “Plant Evaluation Reports are provided only to the utility . . . responsible for operating the [evaluated] plant. . . .” INPO members who are also members of Nuclear Electric Insurance Limited (NEIL) have authorized and instructed INPO to make available to NEIL at the Institute’s office copies of INPO evaluation reports and other data.

INPO’s president, Zack T. Pate, publicly acknowledged “there is increasing evidence that the highest levels of safety, reliability, and economic performance go hand in hand. . . . [Operators of nuclear power plants are required by law, NRC rules and good business practices to obtain or provide insurance coverage for their plants. The primary sources of insurance are: (1) commercial insurance pools . . .; (2) nuclear utility insurance pools [such as] NEIL; and (3) additional liability insurance as required by the secondary financial requirements of [federal law].” (Emphasis supplied.) NEIL is an “industry captive insurance [company],” or a “mutual insurance company . . .” providing government-mandated insurance to “its members against property losses, business interruption coverage and decontamination [and decommissioning] costs resulting from accidental damage.” NEIL administers and services its own insurance plans, and INPO “has no involvement with the provision of [such] insurance. . . .” But NEIL reviews INPO reports and data for items that could affect the insurability of its members, and gives member utilities a ten percent property insurance “premium [credit] for INPO Category 1 plants.”

“INPO’s meeting facilities are intended primarily for INPOsponsored and INPO-conducted meetings and trainings. . . . Nuclear industry groups may be approved to meet in INPO meeting facilities subject to the following considerations: . . . The meeting will not be open to the public.” An INPO airplane is routinely used by the president of INPO for personal use.

The superior court denied INPO’s motion for summary judgment and granted that of the Board, concluding that “INPO is not devoted entirely to charitable pursuits, and the use of the property is not exclusively devoted to those charitable pursuits.” These eight appeals concerning four tax accounts for two tax years raise identical issues of law based on the same facts, and so the appeals are hereby consolidated for disposition in a single appellate decision. Held:

In two related enumerations of error, INPO complains of the grant of the Board’s motion for summary judgment and the denial of its own motion, arguing it meets all elements of the appropriate test to be exempt from ad valorem taxes as a purely public charity.

1. “When the tax officer goes forth to search for taxable property, all which he finds employed in the ordinary uses of common life, unless it belongs to the public, he is to regard as taxable.” Trustees &c. of Richmond County v. Bohler, 80 Ga. 159, 164 (7 SE 633). “Taxation is the rule, and exemption the exception; and, under the [laws] of this state, no property except that specifically mentioned can be exempted from taxation.” The Athens City Water-Works Co. v. Mayor &c. of Athens, 74 Ga. 413, hn. 1. “The following property shall be exempt from all ad valorem property taxes in this state: . . . [a] 11 institutions of purely public charity.” OCGA § 48-5-41 (a) (4). “In determining whether property qualifies as an institution of ‘purely public charity’ as set forth in OCGA § 48-5-41 (a) (4), three factors must be considered and must coexist. First, the owner must be an institution devoted entirely to charitable pursuits; second, the charitable pursuits of the owner must be for the benefit of the public; and third, the use of the property must be exclusively devoted to those charitable pursuits.” York Rite Bodies &c. of Savannah v. Bd. of Equalization of Chatham County, 261 Ga. 558 (2) (408 SE2d 699).

2. INPO first contends it is an institution devoted entirely to charitable pursuits, arguing it is a “practical enterprise for the good of humanity” because its mission is excellence and a high degree of safety in the generation of nuclear power, which redounds to the benefit of the environment and the public at large.

“ ‘A familiar meaning of the word “charity” is almsgiving, but as used in the law it may include “substantially any scheme or effort to better the condition of society or any considerable part of it.” [Cit.] “ ‘Charity,’ as used in tax exemption statutes, is not restricted to the relief of the sick or indigent, but extends to other forms of philanthropy or public beneficence, such as practical enterprises for the good of humanity, operated at moderate cost to the beneficiaries, or enterprises operated for the general improvement and happiness of mankind.” 61 CJ 455, § 505.’ Sharpe v. Central Ga. Council, B.S.A., 185 Ga. 813 (196 SE 762, 116 ALR 373).” Peachtree on Peachtree Inn v. Camp, 120 Ga. App. 403, 409 (170 SE2d 709). But of the infinite charities that deserve the plaudits of mankind, our law “restricts tax exemption of institutions of charity to those and those only that are ‘purely’ charitable and also that are ‘public’ charity.” United Hosp. Svc. Assn. v. Fulton County, 216 Ga. 30, 32 (114 SE2d 524).

We do not doubt that INPO’s stated mission and successful history of promoting excellence and the highest safety standards within the commercial nuclear power industry benefit all of mankind every day that a nuclear incident is thereby avoided. But such diffuse public benefit is, in our view, inevitably secondary to the immediate pecuniary benefit of INPO’s members, predominantly commercial suppliers, and their shareholders, in an industry generating $12 billion in net profits. Pursuant to the Price-Anderson Act, 42 USCS § 2210 et seq., federal law imposes strict liability in tort for a nuclear incident, via a waiver of all legal defenses in exchange for a limitation of liability. See Duke Power Co. v. Carolina Environmental Study Group, 438 U. S. 59, 64-65 (98 SC 2620, 57 LE2d 595). Every avoided Chernobyl-like catastrophe also avoids catastrophic strict liability. Preventing power outages benefits members and their shareholders by preventing lost profits. We can discern no eleemosynary element to all of INPO’s admirable efforts. While there is undeniable public benefit attending each avoided nuclear catastrophe, it does not result from INPO’s philanthropy or public beneficence in operating an enterprise for the good of humanity or for the general improvement and happiness of mankind.

The Taxpayer’s reliance on Chatham County Bd. of Tax Assessors v. Southside Communities Fire Protection, 217 Ga. App. 361, 364 (457 SE2d 267) is misplaced. There, a non-profit tax-exempt corporation which provided local fire and rescue services under contract to Chat-ham County through 48 paid employees and 150 volunteers was held entitled to the charitable exemption from ad valorem taxes, where the evidence showed that “Southside provided its services to all in need of assistance, not just to subscribers.” (Emphasis supplied.) Id. That element of charitable intent or truly public beneficence (extended during an existing emergency) is sufficient to distinguish that case from the circumstances of INPO as an entity sponsored by a consortium collectively generating $12 billion annual net profits. The superior court in the case sub judice correctly determined that, under the undisputed facts, INPO’s efforts are not purely charitable.

Decided January 5,1999

Reconsideration denied January 19, 1999

Alston & Bird, G. Conley Ingram, Timothy J. Peaden, Mary T. Benton, King & Spalding, Frank C. Jones, Robert R. Ambler, Jr., for appellant.

Haynie & Litchfield, Douglas R. Haynie, Brock, Clay, Wilson & Rogers, John C. Borden TV, Richard W. Calhoun, John D. Thalhimer, Dorothy H. Bishop, for appellees.

3. “The fact that an institution serves a benevolent purpose does not necessarily make it a ‘purely public charity.’ United Hospitals Service Assn. v. Fulton County, 216 Ga. 30, 33[, supra]. No matter how high the ideals of an institution, nor how lofty its purposes, in order for it to qualify as a charitable institution for tax exemption under Code Ann. § 92-201 [now OCGA § 48-5-41 (a) (4)], it must have the sole purpose and activity of dispensing public charity.” Camp v. Fulton County Med. Society, 219 Ga. 602, 605 (3) (135 SE2d 277). Accord York Rite, 261 Ga. 558 (2), 559 (2) (b), supra.

As the president of INPO acknowledges, plant safety and a high degree of reliability go “hand in hand” with economic performance. The same economic factors indicating that INPO’s efforts are not purely charitable also indicate that they are not purely public. The primary purpose of INPO is to collect, analyze and disseminate industry lessons learned based on highly confidential surveys. Moreover, there is not a single outside or disinterested director on INPO’s Board of Directors. Members must pay dues to belong. See Ga. Congress of Parents &c. v. Boynton, 239 Ga. 472, 473 (238 SE2d 113). That portion of the building occupied by INPO is restricted to members and their guests; the public is expressly excluded from industry meetings. The undisputed facts indicate that INPO does not exist for the sole purpose and activity of dispensing purely public charity.

4. Remaining contentions have been considered and are found to be rendered moot by our holdings in Divisions 2 and 3.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

       INPO leases approximately 25 percent of the floor space to third parties and does not seek exemption for that pro rata portion of its headquarters. See Church of God &c. v. City of Dalton, 216 Ga. 659 (119 SE2d 11).


text:
    A97A0514.
    KING v. THE STATE.
    (514 SE2d 484)
    Decided January 19, 1999.

      Dwight L. Thomas, for appellant.

      Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.
   McMurray, Presiding Judge.

In King v. State, 226 Ga. App. 576 (486 SE2d 904), this Court affirmed the decision of the State Court of Clayton County, overruling defendant’s motion to withdraw her guilty pleas to accusations of driving while her license was in suspension and for giving a false name and false date of birth to a law enforcement officer. But on certiorari, the Supreme Court of Georgia reversed. King v. State, 270 Ga. 367 (509 SE2d 32). Consequently, our prior judgment is vacated and the judgment of the Supreme Court of Georgia is made the judgment of this Court. The judgment of the trial court is reversed.

Judgment reversed.

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