author: Ruffin, Judge.

text:
    A00A1844.
    TRAICOFF et al. v. WITHERS et al.
    (544 SE2d 177)
   Ruffin, Judge.

On June 18, 1996, Reed Withers was killed by James Salery following a quarrel at the apartment complex where Withers lived. Reed Withers’ wife, Susan, sued James Traicoff, the owner of the complex, and Carolyn Loudermilk, the apartment manager, for failing to exercise due care to protect her husband from Salery’s attack. The defendants moved for summary judgment, and the trial court denied their motion. On appeal, the defendants allege that the trial court erred. We agree and reverse.

To prevail at summary judgment, the moving party must show that

there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

So viewed, the record shows that the Witherses lived in an apartment across the driveway from the apartment shared by Carolyn Smoots and her boyfriend, Salery. Loudermilk lived next door to Smoots and Salery. According to Susan Withers, Smoots and Salery had a volatile relationship. Ms. Withers testified on deposition that she heard Salery yell at Smoots and that Loudermilk told her Salery “was not a nice person and could be mean.” In addition, Ms. Withers testified that she “believe [d] at one time [Loudermilk] told me [that Salery] could be violent.” Ms. Withers admitted, however, that she did not “actually have a recollection” of such conversation.

On the night of June 18,1996, Salery was outside working on his truck. When Salery attempted to start his truck, it rolled backward before coming to a stop in front of the Witherses’ apartment. When Reed Withers returned home, he parked next to Salery and demanded several times that Salery move “the goddamn truck.” Evidently, Salery returned to his apartment and got a machete and a “stick.” Reed Withers followed Salery. While the two were standing in front of Saler/s apartment, Loudermilk stepped between them and told both men to go to their respective apartments. According to Loudermilk, Reed Withers shook his fist in her face and told her that he wanted “the goddamn truck” moved. He then turned to Salery, called him a racial epithet, and ordered him to move the truck.

At this point, Loudermilk went inside her apartment, called 911, and told the dispatcher that her “neighbors are getting ready to fight.” The dispatcher asked if anyone had any weapons, and Louder-milk responded, “No.” Moments later, Loudermilk heard a loud thump. When she looked outside, she saw Reed Withers slumped next to her door. She called 911 a second time and requested an ambulance. Reed Withers apparently died at the scene.

Following her husband’s death, Susan Withers sued Loudermilk and Traicoff, alleging that they breached their “duty to intervene” and their “duty to warn.” The defendants, on the other hand, maintain that they breached no duty. We agree with the defendants.

As this Court recently recognized,

[t]he general rule is that a landlord does not ensure a tenant’s safety against third-party criminal attacks, and that any liability from such attacks must be predicated on a breach of duty to “exercise ordinary care in keeping the premises and approaches safe.”

“A landlord’s duty to exercise ordinary care to protect tenants against third-party criminal attacks extends only to foreseeable criminal acts.” This is so because a landlord’s liability is predicated upon superior knowledge of the existence of a condition that would subject a tenant to an unreasonable risk of harm.

This case does not involve a prior criminal act that would make it foreseeable to the defendants that this type of crime would occur. Indeed, there is no evidence that any prior criminal attack had ever occurred much less that Salery was involved in an attack. Nevertheless, Ms. Withers contends that the defendants had reason to believe that Salery posed a threat to the tenants and that they failed to take reasonable steps to prevent the attack on Reed Withers. In order to prevail on this theory, Ms. Withers must point to some evidence that either Loudermilk or Traicoff had superior knowledge that Salery had violent propensities. This she failed to do.

Ms. Withers contends that the criminal attack was foreseeable because Loudermilk knew that Salery was “mean” and that he yelled at Smoots. But the fact that a person is unpleasant and/or yells does not put others on notice that the person is prone to deadly violence. Ms. Withers also testified that she “believed” that Loudermilk told her that Salery could be violent, but she had no actual recollection of the conversation. Although Ms. Withers is entitled to the benefit of any reasonable inference from the evidence, her equivocal testimony as to what Loudermilk might have told her is entirely too speculative to create a genuine issue of fact. Moreover, “[t]he exercise of ordinary care does not impose a duty to anticipate unlikely, remote, or slightly possible events.” Thus, even if Loudermilk believed that Salery could become violent, absent some evidence that Salery had previously injured another person, the defendants cannot be held liable for failing to anticipate and protect against the attack on Reed Withers. Accordingly, given the dearth of evidence that the attack on Reed Withers was foreseeable, the defendants had no duty to protect him.

To the extent that Ms. Withers contends that the defendants breached a “duty to intervene,” we note that a landlord’s only duty is to exercise ordinary care in keeping the premises safe. We are unaware of any affirmative duty to intervene. Assuming such duty exists, however, the defendants did not breach this duty. Loudermilk attempted to send the two men home, and she called police when she believed a fight was imminent. Thus, she acted reasonably given the circumstances. Even though Loudermilk did not tell the 911 operator that Salery was armed, this failure would not give rise to any liability. The defendants can be held liable only if Loudermilk’s negligence was the proximate cause of Reed Withers’ death. Here, the undisputed evidence demonstrates that Salery attacked Reed Withers mere seconds after Loudermilk placed the 911 call. Accordingly, even if she had reported that Salery had a weapon, the result would have been the same as the police had no time to respond to the call. Because there is no evidence that the defendants breached any duty owed to Reed Withers, the trial court erred in denying the defendants’ motion for summary judgment.

Decided December 27, 2000.

Gray, Hedrick & Edenfield, L. Bruce Hedrick, for appellants.

Eastman & Apolinsky, Stephen D. Apolinsky, Lori A. Smith, for appellees.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

       (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Loudermilk, on the other hand, testified that she was unaware of Salery raising his voice toward anyone or acting violently.

       Both parties assert that the “stick” was, in fact, a baseball bat.

       Susan Withers also sued Salery, but he did not move for summary judgment, and he is not a party to this appeal.

       Although Ms. Withers asserts several other causes of action including negligence per se and nuisance, all causes of action stem from defendants’ alleged failure to keep the premises safe and, essentially, constitute a breach of the same duty to protect Reed Withers.

        Johnson v. Holiday Food Stores, 238 Ga. App. 822, 823 (1) (520 SE2d 502) (1999).

       (Emphasis in original.) Sturbridge Partners v. Walker, 267 Ga. 785-786 (482 SE2d 339) (1997).

       See Johnson, supra (proprietor’s liability for criminal attacks against invitees predicated upon superior knowledge).

        Mills v. Jack. Eckerd Corp., 224 Ga. App. 785, 786 (482 SE2d 449) (1997).

       See id.

       See OCGA § 51-3-1.

       See Modesitt v. Waffle House, 213 Ga. App. 381, 382-384 (2) (444 SE2d 412) (1994).

        Deese v. NationsBank, 222 Ga. App. 275, 277 (2) (474 SE2d 18) (1996).


source: Caselaw Access Project

license: Public Domain

text:
    A00A1899.
    KIER v. THE STATE.
    (543 SE2d 801)
   Ruffin, Judge.

A jury found Clifford Leon Kier guilty of one count each of theft by taking a farm tractor, theft by taking a motorcycle and criminal trespass. The jury acquitted Kier of taking a second farm tractor. Kier appeals, challenging the sufficiency of the evidence and the trial court’s ruling on his objection to the State’s purportedly irrelevant and prejudicial cross-examination. For reasons that follow, we affirm.

1. In reviewing Kier’s challenge to the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility.* Instead, we review the evidence presented at trial in the light most favorable to support the jury’s verdict and determine whether this evidence is sufficient to authorize a rational trier of fact to find Kier guilty of each element of the charged offenses beyond a reasonable doubt.

Viewed in this light, the evidence shows that shortly after midnight on July 20,1998, Woodrow Clemons was driving home when he unexpectedly saw his farm tractor lying in a ditch alongside a road. Clemons called his neighbor, Hilton Brinson, to help him pull the tractor from the ditch. Brinson, who owned a large truck, agreed to help.

Brinson arrived at the scene before Clemons and saw not one, but two tractors. Brinson testified that Kier was driving the second tractor. According to Brinson, Kier told him that “he was walking and he seen the tractor in the ditch and he went and borrowed another tractor to pull it out.” Brinson informed Kier that Clemons was on his way, and Kier quickly left. When Clemons arrived, Brinson informed him that Kier had offered to help and described the tractor Kier was driving. Clemons recognized the tractor as one owned by his neighbor William Wright. After retrieving his own tractor, Clemons went to Wright’s home and confirmed that Wright’s tractor was indeed missing. Wright, who had not given anyone permission to take his tractor, called the sheriff’s department and informed them that Kier had taken his tractor.

Deputy Charles McEady, who knew Kier, drove to Kier’s home to look for the tractor. While en route, Deputy McEady saw Kier driving the tractor with a motorcycle loaded on the tractor’s harrow. As Deputy McEady described the scene, it was around 2:00 or 2:30 in the morning and he saw “some funny lights and something wobbling over the roadway. . . . [I]t was a tractor weaving all over the road up front.” When Deputy McEady turned on his blue lights, Kier, who was headed for home, did not immediately stop, but pulled over only when a second deputy arrived.

After detaining Kier, Deputy McEady advised him of his Miranda rights, and Kier explained that he was taking the tractor home to repair it. Shortly thereafter, however, Wright and Clemons arrived, and Wright identified the tractor as his own. Clemons identified the key in the tractor’s ignition as the one from his tractor. As the motorcycle did not belong to Wright or Clemons, Deputy McEady had it impounded.

Later that morning, Chester Bailey went to work at his business located in the vicinity of Kier’s arrest. Bailey discovered that during the night someone had broken a gate off its hinges, knocked down wires that crossed the driveway and taken his son’s motorcycle. Upon further investigation, Bailey discovered farm tractor tire tracks in the area. Bailey’s son later identified the motorcycle recovered from Kier as his own. The son testified that he never gave anyone permission to take the motorcycle. Kier was later charged with theft by taking Clemons’ ditched tractor, Wright’s tractor and Bailey’s motorcycle and with criminal trespass for his activities at Bailey’s business.

At trial, Kier denied taking the tractors and the motorcycle. According to Kier, during the early morning hours preceding his arrest, he was riding his bicycle to his mother’s house when he met a man whom he had “seen several times, that was side [sic] the road and he said he had broke down.” Kier testified that the man had just changed a flat tire on the tractor and was waiting for his son to come drive the tractor home. Kier asserted that the man’s son never came, that the man asked him to drive the tractor home and that when the sheriff stopped him on the tractor, he was driving to the man’s house. Kier, however, did not know the man’s name or where he lived and gave only a vague description of the man. Kier denied encountering Brinson on the morning of his arrest and further denied telling Deputy McEady that he was taking the tractor home to repair it.

Based on this evidence, the jury found Kier guilty of theft by taking Wright’s tractor and Bailey’s motorcycle and of criminal trespass of Bailey’s business. On appeal, Kier argues that there was no direct evidence he committed these offenses and that the wholly circumstantial evidence was insufficient to support his conviction. We disagree.

Under Georgia law, “[a] person commits the offense of theft by taking when he unlawfully takes . . . any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” Although evidence that Kier possessed the tractor and motorcycle is not automatically sufficient for us to affirm his theft convictions, the

absence of or unsatisfactory explanation of the possession of the [stolen] goods will support a conviction for theft by taking based upon recent possession of the . . . goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation. What constitutes recent possession is in all cases a jury question, to be determined very largely from the character and nature of the stolen property.

In this case, the State established that Kier possessed Wright’s tractor and Bailey’s motorcycle, which were stolen earlier in the night. Under such circumstances, the jury was authorized to reject Kier’s explanation that he was merely driving the tractor and motorcycle to an address he did not know, for a man he could not name at 2:30 in the morning. Furthermore, when Deputy McEady stopped Kier, he was driving the tractor toward his own home. Finally, the jury was also authorized to consider Kier’s conflicting explanations to various individuals about why he possessed the tractor and motorcycle. Kier told one witness that he borrowed the tractor to pull another tractor from the ditch. Kier told another witness that he was taking the tractor to his own home to repair it. Both explanations conflicted with his trial testimony that an unidentified man asked him to drive the tractor to an unknown location.

Even if the State’s evidence is characterized as circumstantial, “[t]he rule as to the sufficiency of circumstantial evidence to support a conviction is that the evidence exclude every reasonable hypothesis except the guilt of the accused, not that it removes every possibility of (his) innocence.” Under the Jackson standard, and for the reasons discussed above, we find that the evidence satisfies this burden.

The same is true for the evidence supporting Kier’s conviction for criminal trespass. “A person commits the offense of criminal trespass when he or she knowingly and without authority . . . [e]nters upon the land or premises of another person ... for an unlawful purpose.” We have already concluded that the evidence is sufficient for a jury to find Kier guilty of theft of the motorcycle. This, coupled with the evidence that someone on a tractor broke into Bailey’s business and took the motorcycle, is sufficient to satisfy the Jackson standard.*

2. Kier also asserts that the trial court erred in overruling his objection to what he characterized as irrelevant and prejudicial cross-examination. The record shows that during cross-examination, the prosecutor asked Kier a series of leading questions concerning his alleged theft of Clemons’ tractor. Kier’s attorney objected stating: “The defendant has testified that he has not taken the tractor. All these follow-up questions that would speculate that he had taken the tractor is unduly prejudicial and it’s irrelevant. The defendant has already testified that he did not take the tractor.” We find no merit in Kier’s claim of error.

Decided December 27, 2000

Copeland & Haugabrook, Karla L. Walker, for appellant.

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

The State had a right to conduct a thorough and sifting cross-examination, and

the scope of such cross-examination is within the sound discretion of the trial court who may curtail inquiries which are not relevant or material. The trial court may curtail inquiries which are unduly repetitive or harassing and may exercise reasonable judgment in determining when a subject is exhausted. Such restrictions lie within the discretion of the trial court and will not be disturbed on appeal unless manifestly abused.

Upon reviewing the cross-examination which preceded Kier’s objection, we find that the trial court did not manifestly abuse its discretion in overruling Kier’s objection. Each of the questions was relevant; the State’s attorney was attempting to establish whether Kier took Clemons’ tractor. Certainly, the State is not barred from cross-examining Kier on this matter merely because Kier denied theft of the tractor. Finally, inasmuch as the State’s query concerned Kier’s alleged theft of Clemons’ tractor and Kier was acquitted of that count, it is unclear how he was prejudiced by the questioning.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

        See Russell v. State, 230 Ga. App. 546, 549 (4) (497 SE2d 36) (1998).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       Although Clemons owned a different model tractor, the evidence showed that his tractor key was interchangeable with Wright’s tractor key.

       OCGA § 16-8-2.

       (Punctuation omitted.) Gibson v. State, 243 Ga. App. 610, 611 (2) (a) (533 SE2d 783) (2000) (quoting Smith v. State, 234 Ga. App. 586, 592-593 (7) (a) (506 SE2d 406) (1998)).

       See London v. State, 235 Ga. App. 30, 32 (1) (c) (508 SE2d 247) (1998).

       See Pope v. State, 240 Ga. App. 803, 804 (1) (522 SE2d 291) (1999).

       Id. at 805 (1).

       OCGA § 16-7-21 (b) (1).

       See Smith v. State, 226 Ga. App. 150, 151 (1) (485 SE2d 538) (1997).

       See OCGA § 24-9-64.

        Daniels v. State, 235 Ga. App. 296, 297 (1) (509 SE2d 368) (1998).


author: Barnes, Judge.

text:
    A00A1820, A00A1821.
    PERFORMANCE MECHANICAL COMPANY et al. v. HEAT TRANSFER CONTROL, INC.; and vice versa.
    (543 SE2d 808)
   Barnes, Judge.

Heat Transfer Control, Inc. (“Heat”) sued Performance Mechanical Company (“PMC”) for $60,694.94 in unpaid invoices, interest, and attorney fees. PMC answered, admitted owing $53,548, but claimed a set-off of $49,770 in excess costs arising from a contract between PMC and Heat’s alter ego. The trial court granted partial summary judgment to Heat for $53,870.73, and the remaining issues were tried by a jury. The jury awarded Heat $57,054.94 damages, which included the amount the trial court previously awarded, $18,828.13 in interest, and $12,647.18 for attorney fees and expenses. It also found that PMC was entitled to a set-off of $24,885. PMC appeals the attorney fee award, and Heat appeals the set-off. No trial transcript was included in the record, and neither party mentions the existence or absence of a trial transcript in its notice of appeal. We affirm the judgment entered by the trial court.

Case No. A00A1820

PMC appeals the attorney fee award, arguing that Heat was not entitled to fees as a matter of law because the set-off award established that it had a bona fide dispute. Heat alleged in its complaint that PMC acted in bad faith, was stubbornly litigious, and caused unnecessary trouble and expense and was therefore liable for expenses of litigation including attorney fees under OCGA § 13-6-11.

When a plaintiff’s claim is reduced by a set-off, a legitimate controversy exists that forecloses an attorney fee award based on two of the three grounds in OCGA § 13-6-11: stubborn litigiousness and unnecessary trouble and expense. Pickett v. Chamblee Constr. Co., 124 Ga. App. 769, 774-775 (9) (186 SE2d 123) (1971). However, the third ground that could authorize a recovery of attorney fees as expenses of litigation, the fraud or bad faith of the defendant in the transaction out of which the cause of action arose, remains available despite the award of a set-off. Id. at 775.

A bona fide controversy within the contemplation of the code section pertains solely to the issue of stubborn litigiousness or causing the plaintiff unnecessary trouble and expense. Despite the existence of a bona fide controversy as to liability, a jury may find that defendant acted in the most atrocious bad faith in his dealing with the plaintiff.

(Citations and punctuation omitted.) Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 63 (3) (390 SE2d 55) (1989); see also Latham v. Faulk, 265 Ga. 107, 108 (2) (454 SE2d 136) (1995).

Decided December 28, 2000.

Womble, Carlyle, Sandridge & Rice, Everett W. Gee III, Carl L. Meyer, Adam S. Katz, Caroline B. Keller, for appellants.

Bynum & Lewis, Joe H. Bynum, Jr., for appellee.

Heat argues in its brief that it proved that its attorney fee claim arose out of PMC’s bad faith when it contracted with Heat for the work reflected by the seven contested invoices. We must affirm the attorney fee award if there is any evidence to support it, Hendon v. Superior Roofing Co., 242 Ga. App. 307, 308 (1) (528 SE2d 548) (2000), and in the absence of a trial transcript, we must assume the evidence authorized the verdict. Little v. Paco Collection Svcs., 156 Ga. App. 175, 176 (1) (274 SE2d 147) (1980).

Our opinion in Pulte Home Corp. v. Woodland Nursery &c., 230 Ga. App. 455 (496 SE2d 546) (1998), in which we reversed an attorney fee award in similar circumstances, does not require a different result. There, we held that the record revealed insufficient evidence of the defendant’s bad faith in entering into or performing the contract. Id. at 458 (4). Here, we have no record and therefore cannot conclude the evidence presented was insufficient.

Therefore we affirm that portion of the judgment awarding attorney fees to Heat.

Case No. A00A1821

Heat appeals the set-off, claiming that insufficient evidence supported a finding that it was the alter ego of the company that caused PMC to incur excess costs. However, as with PMC’s enumeration of error, we must assume that PMC presented sufficient evidence to support the set-off award in the absence of a trial transcript. Turner v. Watson, 139 Ga. App. 648 (229 SE2d 126) (1976). We affirm that portion of the judgment awarding a set-off to PMC.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


text:
    A00A2001.
    In the Interest of B. J. W., a child.
    (543 SE2d 811)
   Barnes, Judge.

B. J. W. appeals the order of the juvenile court transferring his case to superior court so that he could be treated as an adult offender. He contends the juvenile court abused its discretion because the State did not meet its burden of proving that he was not committable to an institution for the mentally ill. B. J. W. also contends the juvenile court failed to balance his amenability to treatment in the juvenile system with the interests of the community. Although we do not agree that the juvenile court abused its discretion, we must remand the case to the juvenile court because we find that the juvenile court’s order failed to show the required balancing of the interests of B. J. W. and the community.

The record shows that B. J. W., 16, was apprehended for an assault on his teacher in a classroom at Wayne County High School. Two days later, a petition was filed in juvenile court charging him with aggravated assault (OCGA § 16-5-21), possession of a knife during the commission of a felony (OCGA § 16-11-106), and carrying a knife on school property (OCGA § 16-11-127.1). On the State’s motion, the juvenile court held a hearing to determine whether B. J. W.’s case should be transferred to superior court for trial. After the hearing, the trial court issued an order granting the State’s motion. The juvenile court found that probable cause existed to believe that B. J. W. committed the offenses of aggravated assault, possession of a knife during the commission of a felony, and carrying a knife on school property. The juvenile court specifically found that B. J. W. stabbed his teacher in the neck at the high school and that the stab wound was two and one-half inches deep and was within one and one-half centimeters from a vital artery in her neck.

The court also found that the hearing on the transfer was conducted in conformity with the applicable Code sections, proper notice was given to B. J. W. and his parents, the court had reasonable grounds to believe that B. J. W. committed the delinquent acts, he was not committable to an institution for the mentally retarded or mentally ill, and the interests of the child and the community required that the child be placed under legal restraint and the transfer made. The court further found that B. J. W. was at least 15 years old at the time of the delinquent acts alleged. Finally, in a separate order the court denied B. J. W.’s motion for a mental evaluation, finding “no reasonable cause to believe that the child may be a mentally ill child.”

At the hearing on the motion, evidence was presented that B. J. W. was a student in college-bound courses and had previously been exempted from final examinations because of his high grade average but had been involved in minor disciplinary problems. Additionally, the victim testified that she was B. J. W.’s teacher and that he stabbed her in the neck with a sharp object the day before a scheduled parent-teacher conference about his failing grade in French class. A physician testified that he explored the puncture wound and found severe internal bleeding which could have resulted in the vietim’s death if not treated. He further testified that the wound was two and one-half inches deep and very near the carotid artery. Additionally, the victim testified that this incident had a harmful effect on her morale and that of the other teachers at the high school.

Witnesses for B. J. W. testified that he was employed at a local grocery store where he was considered a mature person who handled his job without difficulty, even though it involved dealing with the public. The witnesses also testified that an incident such as this would be out of character for B. J. W. No evidence was presented that suggested that B. J. W. had any mental condition that would require commitment to a mental institution.

Under our law,

[a] juvenile court may transfer an offense for prosecution in the superior court if the court determines there are reasonable grounds to believe that (1) the child committed the delinquent act; (2) the child is not mentally ill; (3) the interests of the child and the community require that the child be placed under legal restraint and the transfer be made; and (4) the child was at least 15 years of age at the time of the alleged delinquent conduct or the child was 13 or 14 years of age at the time and committed an offense for which the punishment is loss of life or confinement for life in a penal institution. OCGA § 15-11-39 (a) (3).

In the Interest of J. B. H., 241 Ga. App. 736 (527 SE2d 18) (2000). In these cases, the appellate court’s function “is limited to ascertaining whether some evidence exists to support the juvenile court’s determination. Determinations of a juvenile court made on an exercise of discretion, if based upon evidence, will not be controlled by this court. [Cit.]” (Punctuation omitted.) Id. at 737.

1. The allegation that the State failed to carry its burden of showing that B. J. W. should not be committed to an institution for the mentally ill or mentally retarded is without merit. No evidence was presented that suggested B. J. W. required such treatment, and the State presented evidence that showed B. J. W. was a good student. Moreover, the testimony of B. J. W.’s own witnesses did not suggest that he required commitment to an institution for the mentally retarded or mentally ill. Under this evidence, the State met its burden. See L. K. F. v. State of Ga., 173 Ga. App. 770 (2) (328 SE2d 394) (1985).

Decided December 28, 2000.

E. Michael Moran, for appellant.

Stephen D. Kelley, District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

2. B. J. W. also contends the juvenile court erred by failing to balance B. J. W.’s amenability to treatment in the juvenile system with the interests of the community. See OCGA § 15-11-39 (a) (3) (C). In this case, the State proceeded under the theory that transfer was required in the community’s interest even if B. J. W. was amenable in the juvenile system. Under this theory, the juvenile court may transfer to the superior court a juvenile who is amenable to treatment if the juvenile court finds that the amenability factor is outweighed by the interests of the community in treating the child as an adult. In re K.S.J., 258 Ga. 52, 54 (3) (365 SE2d 820) (1988). In such cases, the State is not required to

prove non-amenability to treatment, and the transfer order need not reflect why the child is not amenable. Instead, the order must balance the child’s interest in treatment in the juvenile system, including but not limited to his amenability to treatment, against the community’s interest in treating the child as an adult.

(Citation and punctuation omitted.) In the Interest of J. B., 234 Ga. App. 775, 776-777 (2) (507 SE2d 874) (1998). In this case, the transfer order does not set forth the required balancing of the interests of B. J. W. and the community. Accordingly, as the record contains facts on which the juvenile court’s conclusion could be based, we vacate the order of the juvenile court and remand the case to the juvenile court so that the court may make the necessary findings.

Judgment vacated and case remanded with direction.

Blackburn, P. J., and Eldridge, J., concur.

       Effective July 1, 2000, OCGA § 15-11-39 was redesignated as OCGA § 15-11-30.2. We have used the old designation, as the analysis is the same under either section and the parties and the trial court all used the prior designation.


author: Andrews, Presiding Judge.

text:
    A00A2061.
    LEWIS v. THE STATE.
    (543 SE2d 810)
   Andrews, Presiding Judge.

Melvin Allen Lewis appeals from the judgment entered after a jury found him guilty of driving under the influence to the extent that it was less safe for him to drive and having an open container in his car. The sole issue before us on appeal is whether trial counsel was ineffective for failing to require the State to lay a proper foundation before admitting evidence of the alco-sensor results. We conclude that trial counsel was not ineffective because Lewis failed to show how the alleged improper foundation prejudiced his defense.

At trial, the State initially tried to introduce the results of the alco-sensor test without laying any foundation. Defense counsel objected, and the prosecutor then asked the officer who administered the test if the alco-sensor he used was approved by the Georgia Bureau of Investigation. The officer replied that it was, and the prosecutor continued with questions about the administration and results of the test. Defense counsel did not object further.

“To establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense.” Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); Gross v. State, 262 Ga. 232, 233-234 (1) (416 SE2d 284) (1992). The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Gross, supra.

Here, Lewis argues that after defense counsel objected, the State still failed to lay a proper foundation for admission of the alco-sensor results and trial counsel was ineffective because he did not renew his objection. He claims the officer should have testified to his training and experience, whether he was certified to use this type of alcosensor and whether the Division of Forensic Sciences had approved the design of the alco-sensor for use in determining the presence of alcohol or drugs in the system.

The admissibility of this evidence is not governed by the requirements of OCGA § 40-6-392 when the alco-sensor is not used as evidence of the amount of alcohol in a person’s blood. Knapp v. State, 229 Ga. App. 175, 179 (493 SE2d 583) (1997). Here, the officer’s testimony was that the alco-sensor was “positive” for alcohol. The State did not attempt to rely on the alco-sensor test as a measure of Lewis’s blood alcohol, nor did the officer testify that Lewis “failed” the alcosensor test. See Gray v. State, 222 Ga. App. 626, 629-630 (476 SE2d 12) (1996). Therefore, in order for the alco-sensor results to be admissible, the State is only required to “show that the device is of a design approved by the Director of the Division of Forensic Sciences of the Georgia Bureau of Investigation.” Aman v. State, 223 Ga. App. 309, 310 (477 SE2d 431) (1996).

As discussed above, the officer testified that the alco-sensor was approved by the GBI. He did not specifically state that it was approved by the Division of Forensic Sciences of the GBI. Even if we were to determine that this was a material omission, there was still no reversible error. The evidence at trial showed that Lewis almost hit an officer directing traffic, smelled strongly of alcohol, failed several field sobriety tests, and was driving with, an open container of beer in his car. Therefore, we conclude that it is highly probable that this alleged improper foundation did not affect the jury’s verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Accordingly, Lewis cannot satisfy the second prong of Strickland requiring him to show that counsel’s allegedly deficient performance prejudiced his defense. Strickland, supra.

Decided December 28, 2000.

W. Keith Barber, for appellant.

Barry E. Morgan, Solicitor, Katherine L. Kissam, Assistant Solicitor, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


text:
    A00A2079, A00A2080.
    MERRITT v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.; and vice versa.
    (544 SE2d 180)
   Barnes, Judge.

Katherine Merritt sued State Farm Mutual Automobile Insurance Company and State Farm Fire & Casualty Company (State Farm) for fraud, misrepresentation, false swearing, and violations of the Racketeer Influenced & Corrupt Organizations Act (RICO), claiming that the insurance company failed to disclose the existence of a $1 million umbrella policy until after she had settled for what she thought were policy limits of $250,000. The trial court granted summary judgment to State Farm, concluding that the parties had no contract because the parties’ settlement agreement was contingent on the insurance company having disclosed all applicable policies. Therefore, the trial court held, Merritt had suffered no damages. Merritt appeals the grant of summary judgment, and State Farm cross-appeals contending the trial court erred by not clearly dismissing Merritt’s claims under OCGA § 51-12-6 when it dismissed Merritt’s other claims. For the reasons that follow, we reverse the grant of summary judgment to State Farm.

The underlying automobile collision occurred on November 29, 1996, when State Farm’s insured crossed the centerline and hit head-on the car in which Merritt was a passenger. Merritt, who was 18 and a college freshman at the time, suffered injuries to her head and face and has undergone numerous reconstructive facial surgeries. She is still a college student, but asserts that her cognitive functions are impaired.

On January 10, 1997, Merritt asked State Farm, pursuant to OCGA § 33-3-28, for a statement under oath revealing all insurance policies under which coverage for this collision might be found. State Farm responded on January 14, 1997, with a certificate of coverage showing one automobile liability policy with maximum coverage of $250,000 per claim. In response to a second letter two days later specifically asking whether the insured had any umbrella coverage, State Farm replied on January 21, 1997, that all applicable policies had been disclosed.

On September 8, 1998, Merritt demanded $250,000 to settle her claim, stating that the demand was “contingent upon your insured’s policy limits with State Farm being $250,000 and the accuracy of your representation that there is no other insurance applicable to this claim.” State Farm initially countered with $200,000 on October 9, 1998, and Merritt reiterated her demand for “full policy limits” on October 14, 1998. On October 15, 1998, the company agreed to settle Merritt’s claim for “policy limits of $250,000.” This was sufficient to constitute an enforceable settlement of the claim. Herring v. Dunning, 213 Ga. App. 695 (446 SE2d 199) (1994).

After Merritt signed the insurance company’s release and draft for $250,000, but before her attorney signed and negotiated it, Merritt’s lawyer called State Farm’s insured directly on October 27,1998, to inquire once more whether he carried an umbrella policy. He disclosed that he did carry an additional $1 million umbrella policy with State Farm. State Farm then confirmed the existence of the umbrella policy, and both State Farm and its newly hired outside counsel informed Merritt she could keep the $250,000 as a partial payment on her claim while continuing to negotiate for more money.

Merritt demanded the entire amount of both policies on November 6, 1998, for a total of $1.25 million, in exchange for a release of claims not only against State Farm’s insured, but also against State Farm itself for what she termed “deliberate concealment” of the umbrella policy. State Farm countered with an offer of $400,000 on November 17, 1998. Merritt declined the offer and filed suit against the insured for damages resulting from the collision and against State Farm for fraud, misrepresentation, false swearing, and RICO violations.

The parties hotly contest whether State Farm’s failure to disclose the existence of the umbrella policy earlier was deliberate or accidental. State Farm contends that the failure to disclose the additional coverage was simply an “oversight,” which occurred because the umbrella policy was not listed on the computer files that State Farm’s claims representative checked when Merritt asked about coverage in January 1997.

A State Farm agent testified on deposition that the insured’s umbrella policy application had not been processed by underwriting until December 22, 1996, after the collision at issue here, and would not have been listed on State Farm’s computer records when Merritt asked about coverage in January 1997. While the umbrella policy was effective the day the agent countersigned the declarations page on the application, State Farm has no procedure requiring the agent to note the coverage electronically. According to the company, until the information is manually entered into the computer files after the application is approved, the only way to discover the umbrella coverage would be to ask the agent directly. The record does not indicate why the agent was not asked about possible additional coverages.

Merritt, on the other hand, contends that State Farm’s failure to disclose the existence of the umbrella policy was deliberate. The application for the umbrella policy was received in underwriting on October 24, 1996. The underwriting operations superintendent for Atlanta and. the 13 surrounding counties testified that State Farm actually approved the personal umbrella policy that covers this collision on December 12,1996. She further testified that the policy information was entered into the company’s computer database the same day. Thus, not only was the policy in effect before the collision, but, according to this testimony, approval of the policy was also available in the database much earlier than State Farm’s agent testified.

Further, a notation on a card attached to the inside of the insured’s claim file noted that “a personal liability umbrella policy may exist,” although the adjuster handling the claim testified that he did not notice that the card was dated after the initial State Farm representative told Merritt no umbrella policy existed. The adjuster never investigated the applicable coverage, he said, because he “felt very comfortable from [his] review of the file that previous claims, claims handlers and supervisors or team leaders had addressed that issue and the only amount of coverage available was the $250,000.” The adjuster further testified that he had received no formal training on searching for umbrella policies.

Finally, Merritt cites the deposition testimony of State Farm’s insured as support for her contention that the company deliberately withheld information regarding the umbrella policy. The insured testified that when he spoke to his agent regarding the collision:

A: [The agent] jokingly said don’t tell anybody about the umbrella policy. I took it as a joke. And of course [the claims adjuster] was aware of the umbrella policy, because I’d mentioned it to him.
Q. When did you first mention it to [the claims adjuster]?
A. I really don’t recall which conversation. I would guess that it was in each and every conversation I had with him, and I had I would say between four and six conversations with him.

After discovery, State Farm moved for summary judgment, arguing that the parties did not reach an enforceable agreement and that Merritt suffered no damages from the delay in identifying coverage because she knew about the umbrella policy before any full and final settlement. The trial court agreed, granting summary judgment to State Farm on all of Merritt’s claims against it, ruling that no enforceable settlement existed and therefore Merritt could prove no damages under any of her causes of action. The trial court held:

Plaintiff’s letter of September 8, 1998 to State Farm contained contingency language stating in effect that the negotiations made by Plaintiff were only valid when based on the true and accurate policy limits of Defendant [tortfeasor]. Following the discovery of the additional policy, Plaintiff then began negotiating anew with State Farm regarding the settlement of the claim. State Farm accepted the new negotiations and made a counteroffer. All of the above actions when viewed as a whole indicate that there has been no settlement agreement between the parties to date. . . . Therefore it is the finding of this Court that there existed no settlement agreement resulting from the negotiations of October 1998. ... As there has been no settlement agreement reached between the parties as above described, Plaintiff’s alleged actual damages are nonexistent.

Case No. A00A2079

Merritt appeals this ruling, arguing that the trial court erred in finding that the parties did not reach an enforceable settlement contract and that Merritt suffered no damages.

We are guided by Parris v. State Farm &c. Ins. Co., 229 Ga. App. 522 (494 SE2d 244) (1997), in which this court affirmed a trial court’s grant of summary judgment to State Farm on plaintiffs’ claim for damages for failure to furnish certain insurance coverage information as required by OCGA § 33-3-28, fraud and false swearing. In that case, State Farm initially responded incorrectly to a request for coverage information. Sometime later, State Farm advised its claim supervisor that two additional policies of insurance existed, but it was not clear whether the policies actually provided coverage for this collision, and also disclosed the existence of the additional policies to Parris.

Parris filed suit about three months later, and in response to interrogatories, State Farm confirmed that all three policies provided coverage for the subject collision, but inaccurately identified the coverage limits. State Farm subsequently amended its certificates of coverage to reflect the proper coverage amounts, and Parris settled his injury claim with full knowledge of all available coverage. We concluded that Parris produced no evidence showing that the insurance carrier would have settled sooner had the company disclosed the correct limits initially and no evidence that the outcome would have been different had they filed suit sooner. Parris v. State Farm, supra, 229 Ga. App. at 523-525.

Finally, we note that the Parris decision

turns on the issue of damages and does not stand for the proposition that an insurance company will be protected from liability as long as full disclosure of insurance coverage precedes a settlement. Such a rule would emasculate any duties created by OCGA § 33-3-28, the laws of fraud, and the laws of false swearing. Contrary to State Farm’s assertion in this case, it is not a universal truth in insurance disclosure matters that all is well that ends well. Improper insurance reporting may result in liability under a proper factual scenario. That case, however, is not before us.

Id. at 525-526. That case is before us now.

1. On appeal from a grant of summary judgment, this court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997).

2. We first consider whether Merritt and State Farm entered into an enforceable contract when they agreed to settle Merritt’s claim against State Farm’s insured for $250,000. The parties do not dispute the underlying facts, except for the issue of whether State Farm’s failure to disclose the existence of the umbrella policy earlier was deliberate or accidental, and other than the condition precedent, do not dispute the enforceability of the settlement agreement.

“Whether a settlement is an enforceable agreement is a question of law for the trial court to decide,” and for this court to review. (Citation omitted.) Auto-Owners Ins. Co. v. Crawford, 240 Ga. App. 748, 749 (1) (525 SE2d 118) (1999). A valid contract requires parties able to contract, consideration, assent to the terms, and a definite subject matter. OCGA § 13-3-1.

A contract of compromise is binding on the parties. Compromises are favored in all enlightened systems of jurisprudence as tending to prevent litigation. . . . We know of no rule of law which places it in the power of either party to a compromise, to disregard it, if it was full and final between the parties, as to the subject-matter of controversy.

(Citations and punctuation omitted.) Bishop v. Intl. Paper Co., 174 Ga. App. 863-864 (1) (332 SE2d 12) (1985).

The trial court held that, because Merritt stated in her initial offer that any settlement was contingent on State Farm having accurately conveyed to her the existing coverage, State Farm’s misstatement of coverage meant the parties had no contract. In other words, the trial court held that State Farm’s own misrepresentations allowed it to disavow its earlier agreement.

State Farm argues in response to Merritt’s appeal that disclosure of full coverage was a condition precedent that had to be fulfilled before the contract was valid. However, we conclude the record contains sufficient evidence from which a jury

could have found that any nonsatisfaction of the condition precedent . . . was the result of [the defendant’s] failure to exercise good faith. Where a defendant prevents the performance of a stipulation of a contract undertaken by the plaintiff, he is estopped from setting up in his own behalf any injury which may have resulted from the non-performance of such condition.

(Citation and punctuation omitted.) Oxford Motors Co. v. Niblack, 183 Ga. App. 771, 772 (360 SE2d 23) (1987); see also Feagin v. Feagin, 174 Ga. App. 474, 475 (330 SE2d 410) (1985). Moreover, the contingency provision here was clearly for Merritt’s benefit and she could waive it if she chose. Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 257 (3) (381 SE2d 322) (1989). Therefore, the existence of the provision does not require the result reached by the trial court.

Further, Merritt has claimed fraud in the making of the contract and has elected to affirm the contract and seek damages, as is her right.

Fraud ordinarily gives the injured party the right either to rescind the contract, or, by affirming the same, to claim damages. A suit for damages by the defrauded party for the fraud committed is not a suit for the violation of the contract, but is one for a tort and involves affirmance of the contract, and he may keep the fruits of the contract and maintain an action for the damages suffered by reason of the fraud. . . . [P]laintiff may elect whether to rescind the contract for fraud or to affirm it and sue for damages.

(Citations and punctuation omitted.) Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855, 856 (1) (294 SE2d 533) (1982).

We hold that Merritt has established the existence of a valid settlement contract, which she has elected to affirm and on which she seeks damages for fraud, misrepresentation, and false swearing.

3. We next consider whether Merritt has presented a material issue of fact as to whether she suffered any damages as a result of this alleged fraud, misrepresentation, and false swearing.

In Parris v. State Farm, supra, 229 Ga. App. at 524, we first noted that the legislature declined to provide a cause of action to plaintiffs for an insurance company’s failure to comply with OCGA § 33-3-28. We then concluded that Parris had produced “no evidence indicating that the insurance carriers would have produced settlement sums at an earlier time had defendants initially disclosed all applicable coverage and policy limits.” (Citation and punctuation omitted.) Id. at 525.

However, in this case the record contains evidence that State Farm might have produced a greater settlement sum at the date of the initial settlement, had it initially disclosed the umbrella policy. The record shows that State Farm’s claims adjuster wrote in September 1998 that “this case is, without any farther investigation, valued in excess of the available policy limits of $250,000.” However, in November 1998, 22 months after State Farm’s representative swore under oath that only a $250,000 policy covered the claim, State Farm representatives reached a “regional office decision” that Merritt’s claim was worth $500,000. Thus Merritt has presented some evidence from which a jury could conclude that she lost at least the use of $250,000 for some period of time. “[T]his court has recognized damages for ‘loss of use of money.’ Leon Jones Feed &c. v. Gen. Business Svcs., 175 Ga. App. 569, 570 (333 SE2d 861) (1985).” Whitehead v. Cuffie, 185 Ga. App. 351, 352 (2) (364 SE2d 87) (1987). Accordingly, the trial court erred in granting summary judgment to State Farm on Merritt’s claims of fraud, misrepresentation, and false swearing, and we reverse the trial court’s grant of summary judgment to State Farm on those counts.

4. Because we have found that a question of fact exists as to Merritt’s damages, we must also reverse the trial court’s grant of summary judgment to State Farm on Merritt’s RICO claims, which was based on a finding that Merritt had suffered no damages. Rains v. Dolphin Mtg. Corp., 241 Ga. App. 611, 615 (5) (525 SE2d 370) (1999).

Decided December 28, 2000

McClure & McClure, Kathie G. McClure, Robert Altman, for appellant.

Downey & Cleveland, Y. Kevin Williams, Powell, Goldstein, Frazer & Murphy, E. A. Simpson, Jr., Linda G. Birchall, Richard W. White, Harper, Waldon & Craig, J. Blair Craig, for appellees.

Robertson, Bodoh & Nasrallah, Mathew G. Nasrallah, amicus curiae.

Case No. A00A2080

5. As we have reversed the grant of summary judgment to State Farm in the main appeal, State Farm’s cross-appeal, asserting that the grant of summary judgment did not go far enough, is dismissed as moot.

Judgment reversed in Case No. A00A2079. Appeal dismissed as moot in Case No. A00A2080.

Blackburn, P. J., and Eldridge, J., concur.

       State Farm has conceded that, if the settlement is valid and if there is a question of fact regarding damages, Merritt has presented a justiciable question of fact as to whether State Farm committed wilful misrepresentation.


text:
    A00A2588.
    BANKS COUNTY et al. v. CORNETT BRIDGE, INC. et al.
    (544 SE2d 457)
   Barnes, Judge.

Cornett Bridge, Inc., a company engaged in the business of constructing and repairing bridges and box culverts, uses two locations. Its headquarters and management office is located in downtown Gainesville, Hall County, and its equipment yard is located in Banks County. Cornett Bridge filed a complaint for declaratory judgment and injunctive relief, seeking a determination as to the proper situs for purposes of ad valorem taxation of certain of its construction equipment. The defendants in this action are Banks County, Hall County, the City of Gainesville, and several officials of those entities. The case was tried before the court without a jury under stipulated facts. We affirm the trial court’s ruling that the equipment shall be taxed by Hall County and the City of Gainesville.

This is the second appearance of this case before this Court. The relevant facts are set iorth in the previous opinion and need not be fully reiterated here. See Cornett Bridge, Inc. v. Hall County, 216 Ga. App. 397 (454 SE2d 607) (1995). In the first appearance, we determined that the Banks County site was a separate business enterprise from the Hall County site and ruled that where “the owner maintains permanent business enterprises in the county of its residence and in another county, a question of fact is presented as to which business enterprise the transitory personalty is more closely connected.” Id. at 399. We remanded the case for entry of new findings of fact and conclusions of law.

After hearings and consideration of the entire record, the trial court found that the “business enterprise” of the Hall County site is the construction and repair of bridges and culverts and that the “business enterprise” of the Banks County site is the storage and maintenance of equipment. Finding that Cornett Bridge uses the equipment at issue in the actual construction and repair of bridges, the trial court determined that the equipment is more closely connected to the business enterprise in Hall County. The trial court stated that although the transitory equipment may have some temporary physical contact with the storage and maintenance site in Banks County, it does not therefore become more closely associated with that location due to its contact. The trial court also distinguished the equipment at issue from the tools and equipment that Cornett Bridge uses to repair and maintain its equipment. The trial court ordered that the equipment be taxed by Hall County and the City of Gainesville and denied injunctive relief. Banks County appeals.

In its sole enumeration of error, Banks County contends that the trial court erred in ruling that the transitory equipment is more closely connected to the Hall County business enterprise. It argues that the trial court’s “weighing equation” is flawed, claiming that the trial court ignored certain facts. Further pointing to other evidence, Banks County asserts that the “scales are tipped” in its favor.

Cornett Bridge argues in its brief supporting Banks County that the trial court failed to recognize its Banks County site as a separate business enterprise, as this Court previously determined. It also urges that because Banks County bears the costs of the Banks County site, i.e., providing law enforcement and waste management, Banks County should collect the taxes.

The question as to which business enterprise transitory personalty is more closely connected is one of fact. Cornett Bridge, supra, 216 Ga. App. at 399. This Court will not interfere with the findings of fact of a trial court’s nonjury judgment where there is “any evidence” to support it. Mills v. Berlex Laboratories, 235 Ga. App. 873, 875 (510 SE2d 621) (1999); Logan Paving Co. v. Massey-Ferguson Credit Corp., 172 Ga. App. 368, 370 (323 SE2d 259) (1984). We construe the evidence to uphold the judgment rather than upset it. Mills, supra, 235 Ga. App. at 875. Even if contrary facts argued by the appellant are supported by the record, we will not set aside the trial court’s findings when they are also authorized by the evidence. Id.

Here, the trial court’s findings are supported by stipulated facts. Further, the president and sole stockholder of Cornett Bridge deposed that the equipment is “either at the job site or on the yard. If we’re not using it, we put it on the yard. . . . [T]he equipment is there for servicing. It’s there when we’re not using it, storage.”

Decided December 28, 2000.

David C. Jones, Jr., for appellants.

Harvey, McCormack & Free, Walter B. Harvey, Whelchel & Dunlap, Thomas M. Cole, James E. Palmour III, for appellees.

James S. Cornett, Sr., pro se.

Because there is some evidence to support the trial court’s finding that the transitory equipment is more closely connected to the Hall County business enterprise, we must affirm.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


author: Miller, Judge.

text:
    A00A2159.
    DODGEN v. THE STATE.
    (543 SE2d 814)
   Miller, Judge.

Leslie Caron Dodgen was found guilty of driving under the influence of alcohol. On appeal, she challenges the exclusion of her would-be testimony as hearsay, and in three related enumerations of error, she challenges the denial of her motion to suppress. We discern no error and affirm.

1. When reviewing the denial of a motion to suppress, this court is guided by three principles with regard to the interpretation of the trial court’s judgment of the facts.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

Dodgen argues that she requested and was denied a second test as allowed by OCGA § 40-5-67.1 (b) (2). At the hearing on the motion to suppress, the arresting officer testified that he read Dodgen her implied consent rights and that she consented to a breath test. He further testified that Dodgen did not request another test. Dodgen, however, testified that she requested a second test on several occasions and that the officer told her she “had had [her] chance and that [her] options were exhausted.”

In denying the motion to suppress, the trial court made the specific finding of fact that Dodgen did not request a second test, and in the denial of Dodgen’s motion for new trial, the court stated that it “did not find [Dodgen]’s testimony that she asked for an independent test after the State’s test credible,” and that it did find the officer’s testimony credible.

On a motion to suppress the court sits as the trier of fact and makes a finding upon conflicting evidence. And “[w]here there is a conflict over whether a defendant was advised of his right to an additional test, resolution of the question of credibility is for the trial court.” Thus, as there was evidence to support the court’s findings, it did not clearly err in denying Dodgen’s motion to suppress. Dodgen’s first, second, and fourth enumerations are without merit.

2. Dodgen complains that her testimony of what the intake officer stated in response to her request for another test was not hearsay and should have been admitted. Dodgen testified that while she was being processed at the jail by another officer, she again demanded a second test. She further testified that the arresting officer overheard this conversation, rolled his eyes, and grinned. The court sustained the prosecution’s objection that the intake officer’s response would be hearsay and not admissible.

Decided January 3, 2001.

Paul S. Weiner, for appellant.

Keith C. Martin, Solicitor, Aaron B. Mason, Tasha M. Mosley, Kristin R. Campbell, Assistant Solicitors, for appellee.

The intake officer’s response, as testified to by Dodgen, was an out-of-court statement being offered to prove the truth of Dodgen’s testimony that she requested a second test. In our view, the response would have been hearsay, and so the court did not err in sustaining the prosecution’s objection.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        State v. Gillette, 236 Ga. App. 571, 573 (512 SE2d 399) (1999).

       (Citation, and punctuation omitted.) Id.

       Dodgen’s argument that the contradictory testimony rule applies to the arresting officer’s testimony is without merit as that rule applies in civil proceedings in the setting of a directed verdict or motion for summary judgment. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986).

        Gillette, supra, 236 Ga. App. at 573.

       (Citation and punctuation omitted.) Lovell v. State, 178 Ga. App. 366, 368-369 (343 SE2d 414) (1986).

       See Geoffrion v. State, 224 Ga. App. 775, 778 (3) (482 SE2d 450) (1997), overruled in part on other grounds, Mullins v. State, 270 Ga. 450, 451 (2) (511 SE2d 165) (1999).

       In support of her argument that the testimony should have been allowed, Dodgen cites to two cases which hold that anything seen or heard by a witness in the presence of the defendant is admissible and does not constitute hearsay. But “[s]uch statement is admissible in evidence, to show that it calls for a reply, and to show the acquiescence of the accused.” (Citation and punctuation omitted.) Jarrett v. State, 212 Ga. App. 381, 384 (441 SE2d 843) (1994). Moreover, that holding applies to something heard by a witness in the presence of the defendant, not something heard by one witness in the presence of another.

       See OCGA § 24-3-1 (a), (b); Strickland v. State, 221 Ga. App. 120, 122 (3) (470 SE2d 508) (1996).


text:
    A00A2453.
    NELSON v. THE STATE.
    (544 SE2d 189)
   Miller, Judge.

Deron Leroy Nelson was convicted of trafficking in marijuana. On appeal, he challenges the denial of his motion to suppress.

1. When reviewing the denial of a motion to suppress, the appellate court construes the evidence in the light most favorable to the trial court’s judgment, and its findings of fact based upon conflicting evidence must be accepted unless clearly erroneous.*

The evidence showed that an officer noticed that the van Nelson was driving had a black plate that bordered and partially concealed his license tag. The officer stopped the van and asked Nelson for his registration. When Nelson opened the driver’s side door to retrieve the registration from a gym bag, the officer smelled the odor of marijuana along with what appeared to be some masking agents and asked to search. Nelson consented, and inside the gym bag, the officer discovered several packages of what was later tested to be 101 pounds of marijuana.

Nelson argues that the stop was illegal. But “the stop of a vehicle is authorized, and not pretextual, if the officer observed a traffic offense.” The officer testified that he stopped Nelson for violating OCGA § 40-2-41 which provides in pertinent part that

[i]t shall be the duty of the operator of any vehicle to keep the license plate legible at all times. No license plate shall be covered with any material unless the material is colorless and transparent. No apparatus that obstructs or hinders the clear display and legibility of a license plate shall be attached to the rear of any motor vehicle required to be registered in the state. Any person who violates any provision of this Code section shall be guilty of a misdemeanor.

Nelson contends that OCGA § 40-2-41 does not apply to license tags that are not required to be registered in Georgia. But the statute clearly states that “no license plate shall be covered with any material unless the material is colorless and transparent.” This prohibits the black nontransparent border around Nelson’s tag which obscured the state name.

Both parties have cited State v. Aguirre, which is factually distinguishable from the present case. In Aguirre this court affirmed the grant of a motion to suppress because the temporary Ohio license tag was covered only by a clear plastic cover which the evidence showed had no effect on the legibility of the tag. Nelson would like us to interpret the statute to require the visibility of only the tag numbers and not the state name. But the statute does not specify that only certain portions of the tag must not be obscured. The overarching duty of the driver is to keep the license tag legible at all times. Therefore we must interpret this Code section to mean that no portion of the license tag may be covered with any material so as to render the license information illegible. This includes the name of the state issuing the license. Although the officer testified that the tag appeared to be a Texas tag, officers should not be forced to guess at the origin of a vehicle tag.

Moreover, even if Nelson’s tag did not amount to a clear violation of OCGA § 40-2-41, the officer nevertheless had a reasonable, articulable suspicion that a traffic violation had been committed. Accordingly, the trial court properly denied Nelson’s motion to suppress.

2. Nelson abandoned his second enumeration of error.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Decided January 3, 2001.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Peter J. Skandalakis, District Attorney, Julianne W. Holliday, Assistant District Attorney, for appellee.

        Roberts v. State, 242 Ga. App. 120 (527 SE2d 617) (2000).

       (Citation omitted.) Forsman v. State, 239 Ga. App. 612, 613 (5) (521 SE2d 410) (1999); Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994).

       229 Ga. App. 736 (494 SE2d 576) (1997) (whole court).

       Id. at 738.

       In interpreting statutes, the ordinary signification shall be applied to all words except words of art or words that are connected to a specific trade or subject matter. See OCGA § 1-3-1 (b).

        See Roberson, 230 Ga. App. 179, 181 (495 SE2d 643) (1998); accord Roberts, supra, 242 Ga. App. at 121.


text:
    A00A2541.
    SMITH v. NASSERAZAD.
    (544 SE2d 186)
   Miller, Judge.

In a single deed to secure debt, Douglas T. Smith transferred to his mortgagees two separate lots, one lying wholly in DeKalb County and one lying wholly in Fulton County. A copy of the deed was recorded in each county. Smith defaulted on his debt, and the mortgagees foreclosed on both lots. Smith filed the instant petition to cancel a Deed After Foreclosure Under Power of Sale and for declaratory judgment, alleging that defendant Hooshang Nasserazad’s purchase of the property located in Fulton County at a foreclosure conducted on the DeKalb County courthouse steps was invalid. Smith argued that he had filed a notice of appeal from the Fulton County Superior Court order authorizing the mortgagees (Nasserazad’s grantors) to proceed with foreclosure and that the foreclosure was not conducted in the county where the property is located.

The superior court dismissed the petition, relying on a nonprecedential opinion of this Court in a related appeal between Smith and his mortgagees to conclude that foreclosure was proper. In his sole enumeration of error, Smith contends the superior court erred in relying on our unpublished nonprecedential opinion to grant Nasserazad’s motion to dismiss on the basis of collateral estoppel. We affirm.

1. Although Rule 36 cases are not binding on other courts, our unreported nonprecedential decisions are still binding on the parties, for they establish the law of the case as provided by OCGA § 9-11-60 (h). Thus, the appellate record in a Rule 36 case, including the enumerations of error, may be used to prove collateral estoppel.

2. The modern trend in applying the doctrine of collateral estoppel or issue preclusion is to confine the privity requirement to the party against whom the plea is asserted, so as to permit one who is not a party to the judgment to assert the judgment against a party who is bound by it, and thus preclude relitigation by that party of issues which have been determined adversely to him in a prior action, even though if the issue had been decided in his favor in the prior action, he would not be entitled to assert the prior adjudication in a subsequent action against a stranger to the judgment. Nevertheless, in Wickliffe v. Wickliffe Co., a majority of this Court overruled cases following this modern trend and adhered to the traditional rule as announced by the Supreme Court of Georgia, that collateral estoppel requires an “identity of parties or their privies in both actions.”

In Case No. A00A0066, Smith raised the same grounds for reversal as he did in this complaint, namely that foreclosure on the Fulton County property at a knock-down proceeding in DeKalb County, pending an appeal of the Fulton County order allowing foreclosure to proceed, was improper. This contention was necessarily decided against Smith by this Court’s judgment of affirmance. But Nasserazad was not a party to that case, in that he was not named and served, nor did he appear voluntarily. The question then becomes whether he is in privity with the mortgagees, who were parties to that appeal.

3. “The test of privity is to determine whether one has privity with another, not whether the other has privity with the one, and then assume that such privity is reciprocal.”

Generally speaking, privies are those legally represented at trial. Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right; and where this identity is found to exist, all are alike concluded and bound by the judgment.

One party is the privy of another where there is a mutual or successive relationship to the same right. So “a privy is one who, after the commencement of the action, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, purchase, or assignment.” Thus,

Decided January 3, 2001

Slater, King & Gross, Scott R. King, for appellant.

King & Croft, Terrence L. Croft, for appellee.

Morris & Witcher, Robert P. Witcher, Joseph H. King, Jr., amici curiae.

[t]here is privity within the meaning of the doctrinéis] of res judicata [and collateral estoppel] where there is an identity of interest and privity in estate, so that a judgment is binding as to a subsequent grantee, transferee, lienor, or lessee of property.

Here, Smith transferred his title in both lots to his mortgagees by security deed containing the power of sale. He tried unsuccessfully to block their foreclosure sale and that decision was affirmed by this Court. Subsequently, the mortgagees transferred title to Nasserazad under the Deed After Foreclosure Under Power of Sale that Smith now seeks to set aside on the basis that foreclosure was improper for the reasons rejected in Case No. A00A0066. Since the mortgagees granted Nasserazad their interests in the property affected by the judgment in Case No. A00A0066, subsequent to the commencement of that action, he is in privity of estate with Smith’s mortgagees. Consequently, Nasserazad is entitled to raise collateral estoppel to bar Smith from relitigating the propriety of foreclosure. The trial court correctly dismissed the instant complaint.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Smith v. Levadi, Case No. A00A0066, decided under Court of Appeals Rule 36, 243 Ga. App. XXII (April 26, 2000).

       Court of Appeals Rule 33 (b).

        Green v. Thompson, 208 Ga. App. 609, 610 (431 SE2d 390) (1993).

       227 Ga. App. 432, 434 (1) (489 SE2d 153) (1997) (whole court).

        Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 867 (2) (463 SE2d 5) (1995).

        Green v. Thompson, supra, being contrary to the subsequent whole court decision in Wickliffe, supra, can no longer be followed on this point.

       (Citation omitted.) Gilmer v. Porterfield, 233 Ga. 671, 674 (2) (212 SE2d 842) (1975).

       (Citations and punctuation omitted.) Pinkard v. Morris, 215 Ga. App. 297, 298 (1) (450 SE2d 330) (1994).

        Smith v. Wood, 115 Ga. App. 265, 268 (4) (154 SE2d 646) (1967).

       (Footnotes omitted.) 47 AmJur2d 87, Judgments, § 663 (1995).

       (Footnotes omitted.) Id. at pp. 87-89. Accord Morris v. Murphey & Co., 95 Ga. 307, 309 (1) (22 SE 635) (1895) (every person is a privy to a judgment whose succession to the rights of property thereby affected, coming through one or other of the parties, occurred subsequent to the commencement of the suit).

       See, e.g., Morris v. Ga. Power Co., 65 Ga. App. 180, 188-189 (1) (15 SE2d 730) (1941).


author: Mikell, Judge.

text:
    A01A0016.
    SEQUOIA RESIDENTIAL ROOFING, INC. v. HANLAKE I, LP.
    (543 SE2d 816)
   Mikell, Judge.

This appeal is from the grant of partial summary judgment to a property owner, Hanlake I, LP (“Hanlake”), in its suit against Sequoia Residential Roofing, Inc. (“Sequoia”) alleging negligent performance of a roofing contract. Finding genuine issues of fact remain, we reverse.

When reviewing the grant of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate the absence of a genuine issue of material fact and that the undisputed facts warrant judgment as a matter of law. Further, “[w]hen ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion.”

So viewed, the evidence shows that in November 1997, Hanlake hired Sequoia to reshingle the roofs of three commercial buildings Hanlake owns on Northlake Parkway in Tucker. Sequoia’s president, Bradley Prestridge, deposed that a problem arose on the first day of work. Prestridge received a call from the site from one of his employees, Steve Silva, who reported that the lightweight concrete decking underneath the shingles of the first roof was “cracked . . . like the Mojave desert.” According to Prestridge, Silva recommended nailing down plywood decking over the concrete to support the new shingles. Prestridge deposed that he relayed this recommendation to an employee of Hanlake, Timothy Smithwick, for whom he had previously performed roofing work, and to L. C. “Pete” Watson, Jr., the president of Hanlake’s general partner. According to Prestridge, Watson stated that he did not wish to incur the additional expense, and he instructed Prestridge to nail the shingles onto the concrete.

The hammering of the nails broke the concrete, and pieces of it fell into the building. This happened on the second building as well. Prestridge reiterated to Smithwick the need to lay plywood, so that only a small portion of each nail would puncture the concrete. Watson consented, and plywood was applied to the second roof. The third roof did not require plywood because “[i]t had chicken wire underneath to prevent anything from falling through.”

When the job was completed, Prestridge met with Watson to collect payment. They discussed the “crackings,” and Watson asked Prestridge to make repairs. Sequoia removed an unspecified number of shingles, used metal to patch holes, and replaced the shingles. Prestridge averred that he had no further discussions with Watson concerning the roofs condition.

When Sequoia did not receive payment of the balance due for the work, $8,892.23, it filed a materialman’s lien against the property. Three months later, Hanlake filed the instant action, alleging that Sequoia breached the contract and breached its duty to complete the work in a skillful manner, requiring Hanlake to remove and replace the existing shingles and decking and relocate tenants in the process. Hanlake sought damages in excess of $191,000, restitution of amounts paid to Sequoia, attorney fees, and punitive damages.

Subsequently, Hanlake moved for partial summary judgment on the issue of Sequoia’s liability for breach of contract and for negligent performance of its contract. Hanlake proffered the affidavit of Watson, who averred that the underside of the concrete roof decking was in good condition before Sequoia worked on it; that after Sequoia performed the work, the concrete was extensively damaged; and that he relied on Sequoia’s expertise to evaluate and execute the project.

In granting the motion, the trial court apparently agreed with Hanlake that Prestridge’s deposition established Sequoia’s liability as a matter of law. This is incorrect.

In Georgia, the essential elements of a cause of action for negligence are: (1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between the breach and the injury. Although Prestridge speculated during his deposition testimony that the hammering of the nails into the shingles damaged the concrete underneath, the testimony does not establish causation or negligence as a matter of law. In fact, it provides some evidence that Hanlake assumed the risk of the damage by refusing to incur the additional expense of plywood decking, as Sequoia recommended. “[0]n plaintiff’s motion for summary judgment, it was [Hanlake’s] burden to establish the non-existence of a genuine issue of fact as to each affirmative defense.” Accordingly, this Court finds that Hanlake was not entitled to summary judgment because it failed to demonstrate the absence of a jury issue as to whether it assumed the risk of damage to its property.

Decided January 3, 2001.

Webb, Carlock, Copeland, Semler & Stair, Douglas W. Smith, Nicholas M. Hollander, for appellant.

Smith, Gambrell & Russell, Rex M. Lamb III, Edward D. Burch, Jr., Randolph W. Carter, for appellee.

In addition, issues of negligence and causation generally are not appropriate for summary adjudication unless the evidence is plain, palpable, and undisputable. This is not such a case. Sequoia submitted the affidavit of a roofing expert, Kenneth Hopper, who averred that upon inspecting the roofs on the first two buildings, he discovered that three roofs had been placed on top of each other, which violated acceptable building codes. Hopper believed that the three sets of nails used on the three prior roofs caused the concrete decking to crack. Accordingly, even if Hanlake had made the requisite prima facie showing that it was entitled to judgment as a matter of law, Sequoia presented rebuttal evidence showing that genuine issues remain for trial.

Judgment reversed.

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

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Citations omitted.) Supchak v. Pruitt, 232 Ga. App. 680, 682 (1) (503 SE2d 581) (1998).

       The "lien was filed by Sequoia Roofing Corporation, but Hanlake did not move for summary judgment against this entity.

       We do not consider the deposition of Watson, as it does not appear that it was filed with, or considered by, the trial court in its order granting summary judgment. Ga. Farm &c. Ins. Co. v. Shook, 215 Ga. App. 66, 67-68 (449 SE2d 658) (1994) (“this court cannot consider evidence not presented to the trial court”). Accordingly, we deny as moot Hanlake’s motion to strike all references to Watson’s deposition testimony in Sequoia’s briefs.

        Traina Enterprises v. RaceTrac Petroleum, 241 Ga. App. 18 (525 SE2d 712) (1999).

        Abdalla v. DDCB, Inc., 216 Ga. App. 667, 668-669 (455 SE2d 598) (1995).

        Robinson v. Kroger Co., 268 Ga. 735, 739-740 (493 SE2d 403) (1997).

       See generally Etheredge v. Kersey, 236 Ga. App. 243, 244-245 (510 SE2d 544) (1998).


text:
    A00A1931, A01A0003.
    BELL v. BELL et al. (two cases).
    (543 SE2d 455)
   Miller, Judge.

In Case No. A00A1931, Edward Bell appeals an injunction requiring him to comply with a settlement agreement to remove his personal property and mobile home from the premises of Olin Bell. Edward’s argument that the settlement agreement deprived him of his right to a jury trial in various suits is without merit, as he agreed to dismiss and did dismiss those suits as a part of the agreement. Thus, we affirm the judgment in Case No. A00A1931.

In Case No. A01A0003, Edward appeals an order finding him in contempt for failing to remove his personal property from Olin’s premises in accordance with the injunction. Since a court retains jurisdiction to enforce orders that are not suspended, the pendency of the appeal in Case No. A00A1931 did not deprive the court of the authority to issue the contempt order to enforce its injunction. Thus, we also affirm the judgment in Case No. A01A0003.

Case No. A00A1931

1. In a settlement announced in open court and approved by the judge in Edward’s presence, Edward through his counsel agreed to dismiss various suits he had brought against Olin and to remove his personal property and mobile home from Olin’s premises by certain dates. When Edward dismissed the actions but did not remove the property, Olin filed an action for an injunction to compel the removal. After a hearing, the court granted the injunction and ordered Edward to remove the property within 15 days. Acting pro se, Edward appealed this ruling, enumerating as error that the agreement deprived him of his constitutional right to a jury trial in the dismissed cases and that the attorney representing him at the settlement hearing was in fact not his attorney.

In his brief, Edward fails to support his enumerations of error with any citations to the record or with any citations to authority or argument. Accordingly, these enumerations are deemed abandoned under Court of Appeals Rule 27 (c) (2).

Even if we considered the enumerations, they would fail. Through counsel, Edward agreed to dismiss the cases against Olin and in fact did so, thereby voluntarily waiving his right to a jury trial in those cases. His counsel had the authority to make this agreement, especially since Edward remained silent in the courtroom when the agreement was announced by his counsel and approved by the court. Also significant is that Edward does not challenge the existence or terms of the agreement, but only challenges the attorney’s authority to enter into it. Under such circumstances, he is bound to the agreement even in the absence of a writing or detrimental reliance on the part of Olin.

Finally, to the extent Edward is complaining that he did not receive a jury trial in the present injunction case, the right to a jury trial is not guaranteed in equity cases.

2. Edward contends that the attorney purporting to represent him at the settlement hearing was in fact not his attorney. This is' belied by Edward’s admissions in his pro se answer, which are binding admissions in judicio.

Decided December 7, 2000

Reconsideration dismissed January 4, 2001

Edward Bell, pro se.

Jones, Hilburn & Claxton, James V. Hilburn, for appellees.

Case No. A01A0003

3. Edward argues that because of the pending appeal in Case No. A00A1931, the trial court lacked the authority to hold a contempt hearing and to hold him in contempt for failing to remove his property as required by the injunction. But after Edward filed his appeal in Case No. A00A1931, he did not obtain any order from the trial court to stay the injunction. Accordingly, the injunction was not stayed during the pendency of the appeal. In our view, the trial court therefore had the authority to protect Olin’s rights, notwithstanding the pending appeal, through scheduling a contempt hearing and finding Edward in contempt for failing to comply with the injunction.

4. In three enumerations of error, Edward also complains that a subsequent dispossessory action, filed by Olin and transferred to the same court as the injunction action, was unauthorized in that the dispossessory action concerned the same subject matter as the injunction on appeal. He fails to cite any authority or argument in support of these enumerations, thereby abandoning them.

Judgments affirmed.

Pope, P. J., and Mikell, J., concur.

        Merchant v. Mitchell, 241 Ga. App. 173, 175 (5) (525 SE2d 710) (1999).

       See In re Woodall, 241 Ga. App. 196, 202 (2) (d) (526 SE2d 69) (1999) (party in civil suit may implicitly waive right to jury trial by his conduct). See also Herring v. Dunning, 213 Ga. App. 695, 698 (446 SE2d 199) (1994) (whole court) (promise to terminate controversy or litigation is a necessary implication to an “offer to settle”).

        Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 676 (2) (308 SE2d 544) (1983) (attorney has apparent authority to enter into a binding settlement agreement on client’s behalf); see generally OCGA § 15-19-5.

        Brumbelow, supra, 251 Ga. at 676-677 (2).

        Cawthon v. Douglas County, 248 Ga. 760, 761-764 (1) (286 SE2d 30) (1982).

       OCGA § 24-4-24 (b) (7); NationsBank v. Tucker, 231 Ga. App. 622, 624-625 (2) (500 SE2d 378) (1998).

       OCGA § 9-11-62 (a) (unless ordered otherwise, an injunction shall not be stayed during the pendency of an appeal). Compare OCGA § 9-12-19.

       See Etheredge v. All American Hummer Limousines, 269 Ga. 436, 437 (1) (498 SE2d 60) (1998).

       Court of Appeals Rule 27 (c) (2).