author: Andrews, Presiding Judge.

text:
    A02A1565.
    PROFESSIONAL STANDARDS COMMISSION v. SMITH.
    (571 SE2d 443)
   Andrews, Presiding Judge.

An administrative law judge (ALJ) suspended Charles Smith’s teaching certificate for six months, finding that he had improperly coached his students on the Iowa Test of Basic Skills (ITBS). This decision was affirmed by the Professional Standards Commission (Commission) and Smith petitioned for judicial review to the superior court. The superior court reversed the ALJ’s decision, finding that he had erroneously considered hearsay testimony and had admitted improperly authenticated documents. The court further held that without this testimony and these documents, there was insufficient evidence to support the decision. We granted the Commission’s application for discretionary review of the superior court’s order, and, because there was sufficient evidence to support the ALJ’s decision, we reverse.

Under the Administrative Procedure Act, review of an ALJ’s decision by a superior court is done without a jury and is confined to the evidence and testimony received by the ALJ. OCGA § 50-13-19 (g). “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” OCGA § 50-13-19 (h). The superior court’s review of evidentiary issues is limited to determining whether factual findings are supported by “any evidence.” Hall v. Ault, 240 Ga. 585, 586 (242 SE2d 101) (1978). “When reviewing a superior court’s order in a case under the Administrative Procedure Act, this Court’s function is to determine whether the superior court has[,] in its own final ruling [,] committed an error of law.” (Punctuation omitted.) Miles v. Smith, 239 Ga. App. 641, 642 (1) (521 SE2d 687) (1999).

Viewed in light of the above standard of review, the record shows that this case arose as the result of a disciplinary action by the Commission pursuant to OCGA §§ 20-2-982 through 20-2-984.5, against Smith, a fifth grade teacher at East Lake Elementary School. The charges centered around allegations that Smith used questions from the ITBS to prepare his class for standardized testing. The ITBS is a national achievement test used to measure students’ strengths and weaknesses in a number of academic areas. The same test is given for several years, and it is a secured document, kept under lock and key, which a teacher may have in the classroom only during the hours of the day when the test is actually being administered.

At the hearing before the ALJ, Ms. Calvin-Thornas, a fifth grade teacher at East Lake, testified that when the vocabulary portion of the ITBS was given out, she heard a student exclaim, ‘Yes!” After that portion of the test was completed, one of the students told her that “the test was really easy because Mr. Smith gave us a copy of the test.” Calvin-Thornas went back to her classroom and questioned the students, and they confirmed that Smith had given them the test previously. Three of her students gave her the lists of vocabulary words that Smith had given to them. Calvin-Thornas reported this to the instructional teacher and the principal.

The instructional liaison specialist, Jeffery Meyers, who was responsible for distributing the tests to the teachers, testified that it was against school policy for a teacher to have a copy of the test at any time other than during the test-taking period. He also testified that he was instructed to go into Smith’s classroom and retrieve any ITBS materials that he found. Meyers said that he found folders with the children’s names on them, containing exact copies of ITBS materials. Some of the copies had been written on and graded. The names on the folders were those of students in Smith’s science class. Meyers also testified that the test had not changed for several years and that it was not proper to give students old tests or to teach from them.

Dr. West, the principal at East Lake Elementary, testified that an unmarked test sheet found in Smith’s classroom was identical to the test being administered in 1998. He also stated that, based on his investigation into the allegations against Smith, he believed that Smith had coached his students prior to the ITBS test.

Smith testified at the hearing and admitted to giving one of the tests found in his classroom to his students. Smith claimed the. test was an old one that he got from another teacher in 1995. Smith stated that he told his principal at the time that he had gotten a 1990 ITBS and no one ever told him he could not use the test.

As for the reading comprehension tests, Exhibits 7 and 7A, found in his classroom, he stated that he saw his homeroom students with copies of this test and also found them “laying on the floor” in his classroom. Smith said that the students received these tests from another teacher, Mrs. Smith. Smith admitted to teaching vocabulary words to his students, but said the words came from several different sources. When asked why he, a science teacher, was teaching vocabulary words, he replied, “All subjects are interrelated.” Smith stated that the students were lying if they said he had given them vocabulary words and a reading comprehension test that were on the ITBS.

After hearing the evidence, the ALJ determined that Smith’s teaching certificate should be suspended for six months, and this was affirmed by the Commission. Smith appealed to the superior court, who reversed and remanded for a new hearing. The court found that Exhibits 2, 7, 7A, and 12 were improperly admitted and also that Calvin-Thomas’s testimony was inadmissible hearsay. This appeal followed.

1. First, the Commission argues that the superior court erred in determining that certain evidence was inadmissible. We agree.

In a case where the factfinder is a judge, we assume the judge considers the evidence only for proper purposes and sorts out that which is admissible from that which is not. Miles v. Smith, supra at 642. Here, the ALJ specifically noted that he was admitting Exhibits 7 and 7A, not to show that Smith had in fact used portions of the ITBS to coach his students; but rather, for the limited purpose of showing these were found, as testified to by Dr. West, on top of the filing cabinet in Smith’s classroom, and that they appeared to have been used by somebody at some time. Smith did not deny that these copies of tests were in his room, merely that he had been the one to give them to the students. Likewise, the ALJ ruled that he would admit Exhibit 12, a report of student interviews, because “it lays the foundation for Dr. West’s subsequent conduct.”

2. There was sufficient evidence to support the ALJ’s decision without considering the evidence ruled inadmissible by the superior court. For example, Meyers, the instructional specialist, identified portions of the ITBS he found in Smith’s classroom. These documents were admitted without objection. Meyers testified that he found folders in Smith’s classroom with students’ names on them which contained exact copies of the ITBS materials, and that these materials were clearly used, because many were written on and graded. Smith admitted that these materials were in his classroom, but denied that he was responsible for giving them to the students. Further, Smith admitted that he had used other ITBS materials as diagnostic tests for his students. Although Smith claimed the materials he used were “old,” it was undisputed that these were secured materials which a teacher could not have in his or her possession other than during the actual hours of test administration.

Thé above evidence was sufficient, under the “any evidence” standard, for the ALJ to find that Smith had improperly coached his students. As factfinder, he had the exclusive prerogative of weighing evidence and determining the credibility of witnesses. Handcrafted Furniture v. Black, 182 Ga. App. 115, 117 (354 SE2d 696) (1987). The superior court was bound by these findings and it was error not to affirm.

Decided September 17, 2002

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Alfred L. Evans, Jr., Assistant Attorney General, for appellant.

Friedman, Dever & Merlin, Hayes M. Dever, Patricia J. Duffy, for appellee.

Judgment reversed.

Phipps and Mikell, JJ., concur.

       The remaining evidence ruled inadmissible by the trial court was Exhibit 2, the list of vocabulary words given to Calvin-Thomas, and Calvin-Thomas’s testimony that students told her Smith had previously given them portions of the test.


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A2242.
    MICKEL v. THE STATE.
    (571 SE2d 439)
   Blackburn, Chief Judge.

Following a jury trial, Romon Mickel appeals his conviction for two counts of the sale of cocaine, contending that: (1) the evidence, was insufficient to support the verdict and (2) the trial court erred by admitting an in-court identification by an undercover officer who set up the drug sales. For the reasons set forth below, we affirm.

1. Mickel contends the evidence was insufficient to support the verdict. We disagree.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to. establish a fact.

(Footnotes omitted.) Phagan v. State.

Viewing the evidence in this light, the record shows that, on the night of November 15, 1999, Latrecia Wilson, an undercover agent for the Multi-Agency Crack Enforcement Team, and a confidential source went to the home of Willie Mae Brown to purchase drugs. Brown, who did not have a phone in her trailer, left briefly to call a man she referred to as “D.” Soon thereafter, B drove up to the trailer in a white sedan and sold crack cocaine to Agent Wilson.

On November 29, 1999, Agent Wilson and the confidential source returned to Brown’s home and again informed Brown that they wanted to purchase crack cocaine. Once again, Brown left briefly to call D. When D arrived in the white sedan, he was accompanied by two other men, both of whom wanted to sell crack cocaine to Agent Wilson. D then chose which man got to complete the sale, the sale was consummated, and the parties left the home.

Directly after the drug buy, Agent Wilson contacted other officers who were watching the trailer. She indicated that D had gold teeth and that he was wearing a white t-shirt and a hat. Another officer who was nearby then pulled over the white car in which D was riding. This officer identified Mickel as the occupant in the car with a gold tooth and wearing a white t-shirt and hat. At trial, Agent Wilson positively identified Mickel as the man who sold her crack cocaine on November 15, 1999, and who directly participated in the sale on November 29, 1999.

This evidence amply supports the verdict. Jackson, supra.

2. Mickel contends that the trial court erred by admitting Agent Wilson’s in-court identification of him. We disagree.

Mickel argues that Agent Wilson’s in-court identification was tainted by the fact that, to prepare for trial, she reviewed a photograph of Mickel with his name written on it. Mickel complains that this review was impermissibly suggestive. However,

[c]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Moreover, even if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin.

(Citations and punctuation omitted.) Quijano v. State.

During cross-examination, Agent Wilson testified that there was absolutely no chance that her review of Mickel’s picture affected her independent memory of the defendant. As such, Mickel’s enumeration lacks merit.

Decided September 17, 2002.

Chestley N. Merritt, for appellant.

J. Thomas Durden, Jr., District Attorney, Henry P. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J, and Miller, J., concur.

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

        Phagan v. State, 243 Ga. App. 568, 569-570 (2) (533 SE2d 757) (2000).

        Quijano v. State, 271 Ga. 181, 184 (3) (516 SE2d 81) (1999).


author: Miller, Judge.

text:
    A02A0891.
    CAPITOL VIEW COMMUNITY CHURCH et al. v. ACHOR CENTER, INC.
    (571 SE2d 181)
   Miller, Judge.

Capitol View Community Church and its members repeatedly trespassed on premises owned by Achor Center, Inc., despite objections from Achor Center. Achor Center brought the present action to enjoin further trespasses and moved for summary judgment. The trial court granted summary judgment, holding that previous litigation between the parties had conclusively established (1) Achor Center’s ownership of the property and (2) the lack of any right of Capitol View to be on the property, and issued a permanent injunction. Capitol View, appealing that judgment, claims that there are material issues of fact remaining which preclude summary judgment. Since the essential facts have previously been adjudicated, we discern no error and affirm.

Over the last seven years, Reverend Kenneth Holmes has embroiled the courts in his dissatisfaction with his and his congregation’s expulsion from the United Baptist Church and with their resulting inability to use for worship services property of the UBC (subsequently transferred to Achor Center, Inc. — a homeless shelter). To date, at least one unpublished and eight published appellate opinions have resulted. The underlying actions have included one case in which the church members unsuccessfully challenged the expulsion and sought possession of the property (Anderson v. Dowd, 268 Ga. 146 (485 SE2d 764) (1997)); one case in which they unsuccessfully sued their attorney for legal malpractice for losing the first case (Holmes v. Peebles, 251 Ga. App. 417 (554 SE2d 566) (2001)); four cases in which they unsuccessfully asserted malicious prosecution claims arising out of trespass prosecutions (Holmes v. Achor Center, 249 Ga. App. 184 (547 SE2d 332) (2001); Holmes v. Achor Center, 242 Ga. App. 887 (531 SE2d 773) (2000); United Baptist Church v. Holmes, 232 Ga. App. 253 (500 SE2d 653) (1998); Achor Center v. Holmes, 219 Ga. App. 399 (465 SE2d 451) (1995)); one case in which Holmes unsuccessfully sought to enjoin a trespass prosecution (Holmes v. Bd. of Commrs., 271 Ga. 206 (517 SE2d 788) (1999)); one case in which they unsuccessfully sued a sign company for removing a church sign from the property (Holmes v. Sta-Brite Awning Systems, 251 Ga. App. 367 (554 SE2d 327) (2001)); and the first appeal of the present case, in which the homeless shelter successfully obtained an interlocutory injunction enjoining them from trespassing on the premises (Capitol View Community Church v. Achor Center, 242 Ga. App. XXV (2000) (not officially reported)).

This bevy of cases has relied in whole or in part on one or all of three facts, which the courts have consistently adjudicated as beyond dispute:

(1) UBC expelled Holmes and his church and congregation from membership in UBC in 1993 (see, e.g., Anderson, supra, 268 Ga. at 147-148 (1); United Baptist Church, supra, 232 Ga. App. at 254);

(2) UBC (and its successor in interest) transferred title to the worship premises to Achor Center, Inc. (see, e.g., Achor Center, supra, 219 Ga. App. at 399); and

(3) Even though Achor Center repeatedly forbade Holmes and his church and congregation from coming onto the premises, they continued to trespass (see, e.g., Holmes, supra, 249 Ga. App. at 186). It is not necessary to repeat other facts for purposes of this appeal.

On motion for summary judgment in the present case, the trial court entered a permanent injunction enjoining Holmes’s church and its members from trespassing on the property owned by Achor Center, Inc. Holmes, his church, and the church members appeal, arguing (1) the trial court erred in referring to this case as an equity case, where the Supreme Court of Georgia (in the appeal of the interlocutory injunction) transferred the case to this Court for determination, and (2) the trial court erred in finding there were no undisputed material facts.

1. When the defendants appealed to the Supreme Court of Georgia the interlocutory injunction enjoining further trespasses, that Court transferred the matter to the Court of Appeals, explaining: “It appearing that any issues involving equity are ancillary to the main legal issues of property use and the equitable relief sought would be a matter of routine once those issues are resolved, this appeal hereby is transferred to the Court of Appeals. [Cits.]” This Court then affirmed, adopting in toto the trial court’s thorough and well-reasoned interlocutory injunction order. Capitol View Community Church, supra, 242 Ga. App. XXV (not officially reported).

When the matter then came before the trial court on Achor Center’s motion for summary judgment on the permanent injunction, the court granted the permanent injunction based on the undisputed facts as previously established in the reported cases. Although unnecessary to its decision, the trial court noted that as this was an equitable case, defendants were not entitled to a jury trial. See Cawthon v. Douglas County, 248 Ga. 760, 763-764 (1) (286 SE2d 30) (1982). Defendants now challenge that statement, claiming that the transfer order of the Supreme Court established that this was not an equitable case.

Defendants’ enumeration fails for at least two independent reasons. First, it is moot, since whether they were entitled to a jury trial does not preclude summary judgment if there are no disputed material facts. See OCGA § 9-11-56 (c). Second, the transfer order never stated that this was not a case in equity; it simply held that although the case sought equitable relief, the dispositive issues on appeal were legal in nature and could be determined by this Court.

2. The previous cases, which involved the same parties (or their privies) and the same issues, have established the three essential facts set forth above. Defendants’ contention that these matters need to be relitigated fails.

Waldroup v. Greene County Hosp. Auth., 265 Ga. 864 (463 SE2d 5) (1995), explained the estoppel effects of the doctrines of res judicata and collateral estoppel. “The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. . . . Collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies.” (Footnotes omitted.) Id. at 865-867 (1), (2); see OCGA § 9-12-40.

The three issues set forth above were actually litigated and determined in the referenced cases, as reflected in the published appellate opinions. See, e.g., Anderson, supra, 268 Ga. at 147-148 (1); Achor Center, supra, 219 Ga. App. at 399. Achor Center and four of the named defendants here were parties in some or all of the previous decisions, and the other named defendants (the church and another church member) were privies insofar as they have an identity of interest such that the parties to the judgments represented the same legal right (i.e., the claim to membership in UBC and to use of the Achor Center property). See Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532, 535 (3) (478 SE2d 601) (1996). Thus, collateral estoppel if not res judicata precluded the relitigation of the established facts.

The trial court did not err in granting summary judgment and entering the permanent injunction. See Givens v. Ichauway, Inc., 268 Ga. 710, 711 (1) (493 SE2d 148) (1997) (“there is nothing precluding summary judgment in a case involving an injunction. . . .”) (citation omitted).

Decided September 4, 2002

Reconsideration denied September 18, 2002

Michael A. Gabel, for appellants.

Kenneth R. Holmes, pro se.

Thompson, O’Brien, Kemp & Nasuti, John P. O’Brien, Paul B. Frickey, for appellee.

Judgment affirmed.

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


author: JOHNSON, Presiding Judge.

text:
    A02A1456.
    THOMPSON v. THE STATE.
    (571 SE2d 158)
   JOHNSON, Presiding Judge.

The grand jury for Houston County indicted Phillip Thompson for rape, two counts of child molestation, and incest. A jury found him guilty of one count of child molestation and the lesser included offense of sexual battery. Thompson appeals, alleging the evidence was insufficient to prove venue beyond a reasonable doubt and that the trial court abused its discretion in permitting testimony concerning the reliability of polygraph examinations. We find no error and affirm Thompson’s convictions.

1. In his first enumeration of error, Thompson contends the evidence was insufficient to convince a rational trier of fact beyond a reasonable doubt that venue was proper in Houston County. Venue is more than a mere procedural nicety; it is a constitutional requirement that all criminal cases be conducted in the county in which the crimes are alleged to have occurred. Without exception, the state is required in all criminal trials to introduce evidence establishing that venue is properly laid beyond a reasonable doubt. Here, the state was required to prove venue for both the September 9, 1999 child molestation which occurred at Thompson’s home and the August 15, 1999 sexual battery which occurred at Thompson’s office.

The state argues that it established venue beyond a reasonable doubt as to both offenses by showing that the investigating officer and the Department of Family & Children Services investigator in this case were both employed by Houston County. In the past, this Court has held that evidence that the investigating officer was employed by the police department of the county in which the case was tried is sufficient to prove venue when only slight evidence is needed because “the State is at least entitled to an inference that the officer acted within his territorial jurisdiction.” However, the Supreme Court has clearly held in several cases that the slight evidence exception to prove venue will not be recognized in any appeal from a judgment of conviction entered after a bench or jury trial in any criminal matter. Thus, to establish venue beyond a reasonable doubt, the state must present more evidence than the investigating officer’s county of employment.

With respect to the child molestation offense, evidence was presented that the investigating officer was employed by the Houston County Sheriff’s Department. In addition, the investigating officer testified that Thompson’s house, where the victim was molested on September 9, 1999, was located “in the south end of the county.” The only reasonable meaning of this testimony is that Thompson’s house was located in Houston County, where the investigating officer was employed. Moreover, Thompson admitted in his request for bond reduction/reeonsideration that he has been a resident of Houston County all of his life. Thus, the investigating officer’s employer was not the only evidence of venue relied upon by the trial court. The evidence was sufficient to establish venue in Houston County as to Thompson’s child molestation conviction.

We likewise find sufficient evidence to establish venue in Houston County as to Thompson’s sexual battery conviction. Although the state failed to ask the investigating officer to state the county in which Thompson’s shop was located, the record reveals that the victim nodded affirmatively when asked if the shop was located in Warner Robins. The record further reveals that in his request for bond reduction/reeonsideration, Thompson admitted his automobile repair shop was located in Houston County. Thus, Thompson is estopped from arguing on appeal that the state failed to prove venue because Warner Robins is located in both Houston County and Peach County. It is well established that a party to a trial may make admissions in judicio in their pleadings, motions, and briefs. When such an admission is made, it is binding upon the party and estops the party from denying the admission or introducing any evidence to controvert the admission, even if it is untrue. Thus, the investigating officer’s employer was not the only evidence of venue relied upon by the trial court, and the evidence was sufficient to establish venue in Houston County as to Thompson’s sexual battery conviction.

2. Thompson next contends the trial court abused its discretion in permitting testimony concerning the reliability of polygraph examinations. According to the record, Thompson consented to take a polygraph examination, and he stipulated to the admissibility of the results. An expert testified that Thompson’s responses to the polygraph examination were “usually indicative of deception.” The expert then began to explain why she qualified her answer, testifying about the reliability of polygraph examinations. Thompson argues that the expert’s testimony concerning the reliability of the polygraph examination had the effect of bolstering the expert’s testimony and exaggerating the importance of the test results and Thompson’s statement which followed the polygraph examination. We find no error.

Although our Supreme Court has stated that doubt exists as to the complete reliability of lie detector tests, it has consistently held that upon express stipulation of the parties, “the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have.” The “results” of a lie detector test can be interpreted to be (1) the charts resulting from a graphing of the responses of the person tested, and/or (2) the opinion of an expert based on those charts. The record reveals that the Georgia Bureau of Investigation agent was properly qualified as an expert and, contrary to Thompson’s contention, the agent wa§ properly allowed to give her opinion interpreting the results of Thompson’s test. “Of course, by cross examination counsel may show any vagueness of the electronic indications or any subjectiveness of the examiner’s interpretations, as well as exploring conditions other than the subject’s untruthfulness which could have produced such responses.”

Moreover, regarding the polygraph examination and the examiner’s testimony, the trial court charged the jury as follows:

Now, there has been certain evidence admitted during the trial of this case concerning a polygraph test administered to the defendant and a polygraph examiner’s opinions and conclusions as to the results. You’re not bound by any such evidence in any way. You are at liberty to either accept or reject such evidence as you may desire in your sole discretion. Whether you will consider any such evidence and what weight you shall attach to it is a matter solely for you to determine. The polygraph examiner’s opinion can only be used to indicate whether at the time of the polygraph examination the defendant believed that he was telling the whole truth. You’re not bound by the polygraph examiner’s conclusions and the examiner’s testimony is not controlling on the issues and may be entirely disregarded by you. It is for you to decide what weight, if any, should be given to the evidence concerning the polygraph test, its results, and examiner’s opinions and conclusions.

Decided August 12, 2002

Reconsideration denied September 18, 2002

L. Elizabeth Lane, for appellant.

Kelly R. Burke, District Attorney, Katherine K. Lumsden, Amy E. Smith, Assistant District Attorneys, for appellee.

This jury charge was a proper statement of the law. Given this jury instruction, it is “highly probable that the error [if there was such] did not contribute to the judgment.” This enumeration of error lacks merit.

Judgment affirmed.

Blackburn, C. Jand Miller, J., concur.

       See Ga. Const., Art. VI, Sec. II, Par. VI.

        Jones v. State, 272 Ga. 900 (537 SE2d 80) (2000).

       (Punctuation omitted.) Allen v. State, 243 Ga. App. 730, 731-732 (2) (534 SE2d 190) (2000); Frisbey v. State, 236 Ga. App. 883, 885 (2) (514 SE2d 453) (1999), overruled in part, Jones, supra.

       See Jones, supra at 903 (2).

       See Robinson v. State, 275 Ga. 143, 144 (2) (561 SE2d 823) (2002).

        Froelich v. State, 210 Ga. App. 647, 648, n. 1 (437 SE2d 358) (1993).

       Id.

        State v. Chambers, 240 Ga. 76-77 (239 SE2d 324) (1977).

        Sisson v. State, 181 Ga. App. 784, 786 (353 SE2d 836) (1987).

       See Vasser v. State, 273 Ga. 747, 749 (2) (545 SE2d 906) (2001).

        Chambers, supra at 77.

       See Chambers, supra at 80.

       (Citations and punctuation omitted.) Pittman v. State, 208 Ga. App. 211, 221 (10) (430 SE2d 141) (1993).


author: Ruffin, Presiding Judge.

text:
    A02A0948.
    NICHOLSON v. WINDHAM et al.
    (571 SE2d 466)
   Ruffin, Presiding Judge.

Donna Nicholson sued the law firm of Windham & Sauls, P.C., three lawyers at the firm, and five other employees (collectively “defendants”) for allegedly violating Georgia’s Racketeer Influenced & Corrupt Organizations (“RICO”) Act, conspiracy to violate the RICO Act, aiding and abetting the violation of the RICO Act, tortious interference with contractual rights, civil conspiracy, intentional infliction of emotional distress, defamation, libel, and slander. The defendants moved to dismiss the complaint, asserting that Nicholson lacked standing to bring a civil action under the RICO Act and that her complaint failed to state a claim for any other cause of action. The trial court dismissed the complaint in its entirety, and this appeal ensued. For the reasons that follow, we affirm in part and reverse in part.

1. Nicholson contends that the trial court erred in dismissing her claims against the defendants for violating the RICO Act, conspiracy to violate the RICO Act, and for aiding and abetting a RICO violation. We disagree.

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof, and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

In addition, this Court conducts a de novo review of a trial court’s order dismissing a complaint for failure to state a claim. With these fundamental rules in mind, we now consider the dismissed claims.

As a mandatory condition to asserting the RICO claims, Nicholson must show a direct nexus between at least one of the predicate acts listed under the RICO Act and the injury she purportedly sustained. Specifically, a private plaintiff under the RICO Act must “show that the injury suffered flowed directly from the predicate offense.” In other words, Nicholson must show that her injury was caused “by reason of” a violation of one of the specific crimes listed in OCGA § 16-14-3 (9) (A).

In framing her RICO claims, Nicholson alleged that Windham & Sauls was operating a RICO enterprise, which she characterized as a “real estate transaction closing mill.” In her complaint, Nicholson alleged that the defendants engaged in predicate acts that included, inter alia, theft, tampering with evidence, obstruction of justice, mail fraud, and wire fraud. Nicholson also alleged that the defendants solicited her participation in the scheme. According to Nicholson, after she refused to participate in the scheme and complained about the alleged criminal acts, she was fired. Nicholson contends that her premature termination constitutes the injury which forms the basis of her RICO complaint.

Even assuming, as we do, that the allegations in the complaint are true, Nicholson still fails to prove a RICO violation because she is unable to demonstrate that she was directly harmed, as opposed to being indirectly harmed, by the predicate acts allegedly committed by the defendants. Nicholson alleged that the defendants engaged in racketeering activities including theft, mail fraud, wire fraud, tampering with evidence, obstruction, and stealing. However, none of these acts was directed at Nicholson.

On appeal, Nicholson asserts that her RICO claim should survive the motion to dismiss because the defendants allegedly solicited her participation in the illegal activities. Under OCGA § 16-14-3 (9) (A), solicitation of another to commit another crime constitutes a racketeering activity. Thus, Nicholson argues, her termination stemmed from defendants’ solicitation, and therefore flows directly from a predicate act. Again, we disagree.

Although the defendants allegedly solicited Nicholson’s participation, she refused and was fired. Accordingly, the injury — Nicholson’s termination — stemmed from her refusal to participate rather than the solicitation itself. Under these circumstances, the harm is indirect rather than direct. Moreover, we fail to see how termination from questionable employment can constitute harm. According to Nicholson’s complaint, the defendants were embroiled in numerous illegal activities. It seems reasonable to conclude that no employee of the firm would have a vested right to continue in such activity. It follows that Nicholson, having sustained at best an indirect injury, lacks standing to pursue her RICO claims.

2. Nicholson contends that the trial court erred in dismissing her claim for tortious interference with contract. The complaint alleges that Nicholson entered a contract with Maristaff, Inc., which apparently is a temporary service that assigned Nicholson to Windham & Sauls. According to Nicholson, after observing illegal conduct and asking too many questions, she was demoted and then fired. Nicholson alleges that, by terminating her employment “prematurely,” defendants tortiously interfered with her contract with Maristaff.

To prevail on her claim for tortious interference with contract, Nicholson must prove the existence of a contract and must “establish that the defendant is a ‘third party,’ i.e., a ‘stranger’ to the contract with which the defendant allegedly interfered.” An intended third-party beneficiary of a contract, who is legally authorized to enforce the contract, “cannot be held liable for tortious interference since he is not a stranger to the contract.” Furthermore, “[t]he exclusion of third-party beneficiaries from the ‘stranger doctrine’ has been expanded to cover those who benefit from the contract of others, without regard to whether the beneficiary was intended by the contracting parties to be a third-party beneficiary.” Here, the law firm clearly was a beneficiary of Nicholson’s employment contract and, thus, cannot be held liable for tortious interference.

The individual defendants argue that they, too, cannot be held liable because “in Georgia, co-employees stand in the place of the employer for the purpose of determining whether one is a stranger to a contract.” It is true that co-employees engaged in conduct “within the scope of their authority” cannot then be held liable for such conduct in the guise of a tortious interference claim. That is not to say, however, that all co-workers are immune from suit for tortious interference. If a co-worker with no authority to discharge Nicholson, “being activated by an unlawful scheme or purpose to injure and damage [her], maliciously and unlawfully persuades the employer to breach the contract with” her, such co-worker may be liable for tortious interference.

Construed as true, the allegations in Nicholson’s complaint demonstrate that the individual defendants engaged in unlawful conduct by soliciting her to engage in criminal activity and causing her termination when she refused. Nicholson does not allege that these actions fell within the scope of individual defendants’ employment. It certainly is possible for Nicholson to discover evidence that such activities were not within the scope of the individual defendants’ employment, which would create a jury issue as to whether the individual defendants tortiously interfered with Nicholson’s employment contract. Thus, the trial court erred in granting the motion to dismiss with regard to Nicholson’s claim of tortious interference against the individual defendants. ,

3. Nicholson contends that the trial court erred in dismissing her claim for intentional infliction of emotional distress. She asserts that allegations are sufficient to support such a claim. We agree.

This tort requires proof of four elements: (1) intentional or reckless conduct; (2) which is extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress. “[T]o warrant recovery!,] the conduct also must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress. Otherwise, the conduct will not rise to the requisite level of outrageousness and egregiousness.”

Nicholson alleged in her complaint that she suffered extreme emotional distress as the result of the wilful, malicious, and intentional acts of the defendants. She claimed that the defendants tried to require her “to become a criminal in order to perform her obligations under a contract” and that such conduct was so outrageous and extreme “as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Nicholson alleged that she “was directed by members of the RICO Enterprise to ignore and not to disclose the conduct or evidence of the illegal and fraudulent conduct. . . .” According to Nicholson, “[a]s a result of the acts identified in this Complaint and such other acts to be shown by evidence, including the conspiracy ... to commit illegal acts . . . and the further conspiracy to cover up those acts, [she] . . . suffered injuries to person and property.” She claimed to have sustained “emotional distress that defies description.”

As previously discussed, a motion to dismiss for failure to state a claim “should not be granted unless the complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.” When the complaint is construed most favorably toward Nicholson, it is possible that Nicholson would be entitled to recover for intentional infliction of emotional distress. Therefore, the trial court erred in dismissing this claim.

4. Nicholson contends that the trial court erred in dismissing her claims for defamation. In her complaint, Nicholson made broad allegations that the defendants engaged in libel, libel per se, and slander which, after discovery, she will be able to support with evidence.

Although the averments in Nicholson’s complaint are vague at best, we nonetheless apply the following standard:

[a] complaint is not required to set forth a cause of action, but need only set forth a claim for relief. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. From this perspective, we cannot say with precise certainty that [Nicholson’s] . . . claim [s] against [the defendants] cannot be sustained.

After discovery is completed, a cognizable basis for these tort claims may well be found lacking. Nevertheless, now is not the time to gauge the merits of the underlying claims. Thus, notwithstanding the vague nature of Nicholson’s claims, the trial court erred in dismissing them at this early stage in the proceedings.

5. Nicholson asserts that the trial court erred in dismissing her claim for civil conspiracy. We agree.

A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. Accurately speaking, there is no such thing as a civil action for conspiracy. There is an action for damages caused by acts pursuant to a formed conspiracy, but none for the conspiracy alone.

Decided September 18, 2002

Millard C. Farmer, Jr., for appellant.

Hawkins & Parnell, Emory L. Palmer, Christine L. Mast, H. Lane Young II, Oliver & Winkle, G. Robert Oliver, Anne Zavala-Moushey, for appellees.

“The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done.” By its very nature, civil conspiracy is “a secret endeavor” and “rarely open to direct proof.” Having examined the allegations in Nicholson’s complaint about the nature of the alleged wrongdoers’ acts, the relationship among the defendants, and their mutual interest in not disclosing their actions, we find that Nicholson set forth a cognizable claim for civil conspiracy that was not subject to dismissal.

6. The trial court did not err in dismissing the claim for a declaratory judgment. The purpose of the Declaratory Judgment Act is “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Here, the rights of the parties have already accrued, and there are no circumstances requiring a determination of some dispute to guide and protect the plaintiff from uncertainty as to a future act. The trial court properly dismissed this claim.

Judgment affirmed in part and reversed in part.

Barnes, J, and Pope, Senior Appellate Judge, concur.

       OCGA § 16-14-1 et seq.

       (Punctuation omitted.) Bakhtiarnejad v. Cox Enterprises, 247 Ga. App. 205, 207-208 (1) (541 SE2d 33) (2000).

       See Project Control Svcs. v. Reynolds, 247 Ga. App. 889, 891 (1) (545 SE2d 593) (2001).

       See Maddox v. Southern Engineering Co., 231 Ga. App. 802, 805 (1) (500 SE2d 591) (1998).

       (Emphasis supplied.) Gentry v. Volkswagen of America, 238 Ga. App. 785, 791 (4) (521 SE2d 13) (1999).

       (Punctuation and emphasis omitted.) Maddox, supra at 805 (1).

       See Gentry, supra at 791.

       See Maddox, supra at 806.

       See Cullom v. Hibernia Nat. Bank, 859 F2d 1211, 1217-1218 (5th Cir. 1988).

       See Gentry, supra at 791-792.

       Although not entirely clear from Nicholson’s complaint, we assume she was terminated from Maristaff.

        Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 608 (2) (503 SE2d 278) (1998).

       Id. at 609. See also Cohen v. William Goldberg & Co., 202 Ga. App. 172, 177-178 (3) (413 SE2d 759) (1991), rev’d on other grounds, 262 Ga. 606 (423 SE2d 231) (1992).

        McLane, supra at 609.

       See Dong v. Shepeard Community Blood Center, 240 Ga. App. 137, 139 (2) (522 SE2d 720) (1999).

       See Lane v. K-Mart Corp., 190 Ga. App. 113, 114 (2) (378 SE2d 136) (1989); Dong, supra.

       (Punctuation omitted.) Rose v. Zurowski, 236 Ga. App. 157, 158 (1) (511 SE2d 265) (1999).

       See Troy v. Interfinancial, Inc., 171 Ga. App. 763, 768-769 (2) (320 SE2d 872) (1984).

       See Clark v. Arras, 212 Ga. App. 695, 696 (2) (443 SE2d 277) (1994).

       (Punctuation omitted.) Id.

        Property Pickup v. Morgan, 249 Ga. 239, 240 (290 SE2d 52) (1982).

       See Smith v. Germania of America, 249 Ga. App. 587, 588 (1) (549 SE2d 423) (2001).

       See Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991) (if claimant presents evidence from which reasonable persons might find the presence of extreme and outrageous conduct that results in severe emotional distress, then a jury issue remains).

       (Citations and punctuation omitted.) Gillis v. American Gen. Life &c. Ins. Co., 222 Ga. App. 891, 892-893 (476 SE2d 648) (1996).

       Apparently, no discovery has yet occurred since the defendants filed a motion to stay discovery simultaneously with their motion to dismiss.

       Id. at 893.

       See Christner v. Eason, 146 Ga. App. 139, 140 (245 SE2d 489) (1978).

       (Citation, punctuation and emphasis omitted.) First Fed. Sav. Bank v. Hart, 185 Ga. App. 304, 305 (2) (363 SE2d 832) (1987).

       (Punctuation omitted.) Id.

        Cumberland Center Assoc. v. Southeast Mgmt. &c. Corp., 228 Ga. App. 571, 579 (3) (a) (492 SE2d 546) (1997), rev’d on other grounds, McLane, supra at 610.

       See id.

       OCGA § 9-4-1.

       See Morgan v. Guaranty Nat. Cos., 268 Ga. 343, 344-345 (489 SE2d 803) (1997).

       See id. at 346.


author: Barnes, Judge.

text:
    A02A0956.
    MARTIN v. THE STATE.
    (571 SE2d 459)
   Barnes, Judge.

Susan E. Martin appeals the trial court’s denial of her motion to suppress evidence following a traffic stop. Because we conclude that the arresting officer lacked a reasonable articulable suspicion for stopping Martin’s car, we reverse.

The evidence at the motion hearing showed that Martin was stopped at a traffic light when a Cherokee County deputy sheriffs car approached her from behind. The officer testified that he did not know what color the light was when he first crested the hill before the traffic light. But as he approached Martin’s car, the light was green and Martin was not proceeding through the intersection. The officer testified that he was within two or three seconds of having to make a complete stop before Martin began moving forward. The road was four lanes wide, with turn lanes to the right and left and two lanes continuing straight ahead. A car in the left lane was driving through the intersection, and no other cars besides Martin’s were on the road. The officer initiated a traffic stop because, as he said, Martin had “impeded my flow of traffic through the intersection.” There was nothing unusual about how Martin drove through the intersection, and the fact that she was sitting still under a green light was the only suspicious behavior the officer saw. He cited her for impeding the flow of traffic in violation of OCGA § 40-6-184 and for DUI.

Martin testified that she was stopped at a red light when her cell phone rang. No cars were behind her. She reached down to pick up the phone to answer it, and when she looked up the light was green, so she put the phone down, manually shifted from neutral into first gear, and started forward. The total length of time between when the phone rang and when she began moving forward was two or three seconds. When the officer stopped her, she explained that she had been answering her cell phone.

The trial court determined that the issue before it was whether the officer’s stop was based on a reasonable articulable suspicion of criminal activity and held that it was because “the officer was impeded in his flow.”

When we review a trial court’s decision on a motion to suppress, this Court must ensure that a substantial basis exists for the decision. Raulerson v. State, 223 Ga. App. 556, 557 (2) (479 SE2d 386) (1996). ‘We construe the evidence most favorably to upholding the trial court’s decision and will not disturb the trial court’s findings as to disputed facts and questions of credibility unless they are clearly erroneous.” Bowers v. State, 221 Ga. App. 886 (473 SE2d 201) (1996).

An officer may briefly stop a vehicle to investigate only if the stop is justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, that is, by “some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Citations and punctuation omitted.) Postell v. State of Ga., 264 Ga. 249 (443 SE2d 628) (1994).

Decided September 18, 2002.

Head, Thomas, Webb & Willis, William C. Head, for appellant.

In this case, Martin was not impeding the flow of traffic. The officer testified that he was within two or three seconds of even having to make a complete stop when Martin began moving through the intersection. We affirmed the grant of a suppression motion in a strikingly similar case, in which the defendant stopped 25 to 50 feet before the intersection and waited 45 to 60 seconds before moving through it, explaining that he had stopped to pick up a friend who had been walking home. State v. Templeman, 229 Ga. App. 6 (492 SE2d 902) (1997). In that case, no evidence showed that the defendant “was actually violating a law when he briefly stopped in the roadway; he was not impeding traffic, although [the officer] claimed that he could not make his left turn until [the defendant] passed through the intersection.” Id. at 7. Further, the defendant provided a logical explanation for stopping; and while the officer testified he was concerned for the defendant’s well-being, “such concerns should have been dispelled when [the defendant] proceeded to drive normally through the intersection and down the road, without further incident.” Id.

In this case, no factual dispute exists regarding how long Martin remained stopped at the green light. The officer presented no evidence in this regard, because he did not look at the traffic light while he was coming down the hill toward it; he only knew that it was green when he had to slow down behind Martin’s car, and thus he did not know how long the light had been green. Martin, on the other hand, did present evidence regarding how long the light was green before she began moving forward: only long enough for her to look down to find her ringing cell phone and look up again, then manually put her car into gear. Merely delaying one’s start momentarily at an intersection is not impeding the flow of traffic on a four-lane road. In this case, the officer had no reasonable articulable suspicion of criminal conduct, and therefore we reverse the trial court’s denial of Martin’s motion to suppress.

Judgment reversed.

Ruffin, P. J, and Pope, Senior Appellate Judge, concur.

G. Charming Ruskell, Solicitor-General, Anthony B. Williams, Assistant Solicitor-General, for appellee.

       OCGA § 40-6-184 (a) provides:
      (1) No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation. (2) On roads, streets, or highways with two or more lanes allowing for movement in the same direction, no person shall continue to operate a motor vehicle in the most left-hand lane at less than the maximum lawful speed limit once such person knows or should reasonably know that he is being overtaken in such lane from the rear by a motor vehicle traveling at a higher rate of speed, except when such motor vehicle is preparing for a left turn.


author: Pope, Senior Appellate Judge.

text:
    A02A0959.
    MURRAY v. BARRETT et al.
    (571 SE2d 448)
   Pope, Senior Appellate Judge.

On March 8, 1999, Philip Murray and Paul T. and Timothy N. Barrett entered into a Purchase and Sale Agreement regarding a parcel of land owned by Murray in Marietta. The purchase price for the property was $220,000, and in accordance with the agreement the Barretts paid $10,000 in earnest money. The agreement provided that purchase of the property was expressly contingent upon it being appraised at a fair market value “of at least the Purchase Price.”

In May 1999, an appraisal conducted on the property indicated that the property had a value of $152,000, nearly $70,000 below the purchase price. As a result, the Barretts were unable to obtain financing to purchase the property. The Barretts subsequently wrote Murray regarding the appraisal and requesting the return of the $10,000 earnest money deposit. When Murray failed to return the deposit, this litigation ensued.

Following a bench trial, the Barretts were awarded the return of their earnest money, plus interest, as well as $6,000 in attorney fees. Murray appeals.

1. Murray first asserts that the trial court erred in stopping the trial before he had the opportunity to present his case. We find no error.

The determination as to who is entitled to the earnest money in this case turns upon two factual issues: (1) whether the Barretts had applied for financing within ten days as required by the parties’ agreement, and (2) whether the property appraised at a fair market value of at least the purchase price. The record showed that the trial judge interrupted the proceedings before Murray presented his case to inform the parties that she was concerned only about one of those issues: whether the Barretts had applied for financing in a timely manner. She stated that she found no issue of fact regarding the appraisal.

Under the terms of the agreement, the Barretts forfeited the earnest money if they failed to apply for financing within ten days after the “final ratification” of the contract. The agreement was signed on March 8, 1999, and there appears to be no dispute that the Barretts were required to apply for financing by March 18, 1999.

Paul Barrett testified at trial that he made the application on or before March 18, and, in fact, had been working with two separate banks to obtain potential financing for the property even before the parties signed the agreement. Representatives from each lender testified. Although neither representative could state a particular date on which an application for financing on the Murray property was submitted, at least one of the representatives confirmed that Barrett’s application had been part of an ongoing process that pre-dated his interest in the Murray property. They also confirmed that Barrett had provided all the required documentation for the loan process. At least one of the banks had pre-approved the loan, pending the results of the appraisal.

Murray testified that he did not believe that the Barretts had complied with the terms of the contract in obtaining financing, but he could not point to any evidence showing that the Barretts had not complied, other than his suspicions that by May 1999, the Barretts were looking for an excuse to get out of the contract.

It was after hearing this evidence that the trial court stopped the proceedings. She explained that she had denied the Barretts’ earlier motion for summary judgment only because she believed that there was an issue of fact as to whether the Barretts had applied for financing within ten days as required by the parties’ agreement. She asked Murray’s counsel what evidence he had on the point. Murray’s attorney then made the proffer that he had a witness from one of the Barretts’ banks who would testify that there was nothing in the file to show when the loan application was submitted. As the trial judge correctly noted, Murray’s proffered evidence simply confirmed the testimony of the other bank witnesses stating that they could not pinpoint the date of the Barretts’ application.

The trial judge then requested that Murray make a proffer as to any other evidence he had in the case. Murray’s attorney explained that his only other witness was an expert who would testify that there were numerous problems with the methodology of the appraisal and that the appraisal was not reliable. The trial court stated that in reaching her decision she would accept the proffers of Murray’s counsel as true, without hearing the testimony. The trial court concluded, however, that the evidence was irrelevant and ruled in favor of the Barretts.

Even assuming without deciding that it was error to prevent the presentation of live witnesses, Murray has shown no harm in the case. See Karvonen v. State, 205 Ga. App. 852, 854 (3) (424 SE2d 47) (1992). The proffered evidence regarding the Barretts’ loan application was merely cumulative of other evidence, and thus there was no harm in excluding it. “Where there is other evidence relating to the same issues the error addresses, it is highly probable the error did not contribute to the judgment and is, therefore, harmless.” (Citation omitted.) Craft v. State, 254 Ga. App. 511, 516 (5) (563 SE2d 472) (2002).

Moreover, we agree with the trial court that the proffered evidence regarding the appraisal was irrelevant. The contract merely required “either an appraisal which Purchaser obtains and pays for or in connection with Purchaser’s Application for Required Financing.” The agreement contained no additional requirements as to the methodology of the appraisal. The evidence showed that the Barretts obtained the appraisal in connection with their financing and used an appraiser approved by the bank. Accordingly, there would be no error in excluding Murray’s proffered expert testimony questioning the methodology employed in the appraisal. See generally Shasta Beverages v. Tetley USA, 248 Ga. App. 381, 384 (1) (a) (546 SE2d 800) (2001) (where excluded testimony did not address material issue, testimony was irrelevant and no abuse of discretion occurred).

2. Murray next asserts that the trial court erred in granting the Barretts attorney fees without first holding an evidentiary hearing on the issue. We agree.

The only evidence at trial on the issue of attorney fees was Paul Barrett’s testimony that he had incurred “[s]omewhere in the neighborhood of $6,000” in attorney fees. Without hearing any other evidence on the matter, the trial court found that attorney fees of $6,000 were reasonable and necessary in obtaining a judgment in the case. The trial court also took judicial notice, and Murray does not dispute, that the Barretts’ counsel “is an attorney in good standing in the community with considerable experience in handling cases of this type.”

We find that this evidence was insufficient to support the $6,000 award of attorney fees in this case. Not only did the Barretts fail to present any evidence regarding the reasonableness of their attorney fees, they failed to even present the actual amount incurred. A rough estimate such as that provided by Paul Barrett’s testimony is insufficient to support a fees award. “An award of attorney fees is unauthorized if [the Barretts] failed to prove the actual costs of [their attorney] and the reasonableness of those costs.” (Citations and punctuation omitted.) Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5) (470 SE2d 467) (1996).

Accordingly, we reverse the award of attorney fees and remand the case for an evidentiary hearing as to the amount of the attorney fees award. Southern Co. v. Hamburg, 220 Ga. App. at 842-843 (5).

3. Murray also correctly asserts that the trial court erred in awarding pre-judgment interest at the rate of 12 percent per annum. Accordingly, this portion of the award must also be reversed and the case remanded to the trial court with direction that it recalculate the amount of pre-judgment interest at the legal rate of seven percent per annum in accordance with OCGA § 7-4-2 (a). See Homeland Communities v. Rahall & Fryer, P.C., 235 Ga. App. 440, 443 (3) (509 SE2d 714) (1998).

Decided September 18, 2002

Charles G. Harbin, Jr., for appellant.

Donald L. Mize, for appellees.

Judgment affirmed in part and reversed and remanded in part.

Ruffin, P. J., and, Barnes, J., concur.


text:
    A02A1072.
    BRITTON v. THE STATE.
    (571 SE2d 451)
   Pope, Senior Appellate Judge.

Following a jury trial, Daniel Britton, Jr. was convicted of the offenses of trafficking in cocaine, possession of a firearm by a convicted felon and possession of a firearm during the commission of a crime. He appeals.

The evidence at trial showed that on January 30, 1995, a detective with the Liberty County Sheriff’s Department assigned to the Multi-Agency Crack Enforcement Drug Task Force received a telephone call from an anonymous caller. The caller stated that he knew Britton from some business dealings. He said that Britton would be driving a new blue pickup truck with gold rims in Liberty County and would be carrying cash and drugs under a false bottom in the truck’s console. As a result, a lookout was posted for a vehicle matching the description. Police located the truck and stopped it. The officers told Britton that they had received information that he had a large sum of cash and drugs in his truck, and they asked for permission to search the truck. Britton told the officers that there was no cocaine in the truck and gave his consent to search. One of the agents pulled out the center console and found cocaine, $12,000 in U. S. currency, and a loaded gun in a space beneath the console. Officers testified at trial that police had previously searched vehicles belonging to Britton, but found no drugs.

In response to police questioning, Britton stated that he did not know anything about the gun or the drugs, but said that he had won the money car racing in Florida. Upon further questioning, however, he admitted that he had seen the gun when someone had shown it to him the previous Saturday and that he may have touched it. He continued to deny any knowledge of the cocaine found with the gun and the money.

The sole witness for the defense testified that Britton and his business partner had had a dispute and terminated their business relationship. The witness stated that this former business partner had access to Britton’s truck.

1. Britton contends that the trial court erred at his trial in admitting the hearsay evidence regarding the information provided by the anonymous caller. We agree and reverse.

The testimony regarding the anonymous informant was admitted under the exception to the hearsay rule to explain the police conduct in stopping Britton’s car. But in Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984), our Supreme Court noted that only in “rare instances” would the conduct of a police , officer need to be explained:

At heart, a criminal prosecution is designed to find the truth of what a defendant did, and, on occasion, of why he did it. It is most unusual that a prosecution will properly concern itself with why an investigating officer did something. If the hearsay rule is to remain a part of our law, then OCGA § 24-3-2 . . . must be contained within its proper limit. Otherwise, the repetition of the rote words “to explain conduct” can become imprimatur for the admission of rumor, gossip, and speculation.

Id. at 536 (1).

Hearsay evidence is inadmissible to explain police conduct even “where an appellate court suggests that the jury may find police behavior so inexplicable as to cast doubt on the prosecution, or where a confidential informant has provided information which initiates an investigation.” (Citation omitted.) Weems v. State, 269 Ga. 577, 579 (2) (501 SE2d 806) (1998). Recently, in a case involving circumstances similar to those here, the Supreme Court found that it was error to admit evidence of hearsay information provided by an anonymous informant in order to explain why a police officer apprehended a defendant. Brown v. State, 274 Ga. 31, 37 (2) (549 SE2d 107) (2001).

Accordingly, we find that it was error in this case to admit evidence of the anonymous caller’s information in order to explain the officers’ actions in stopping and apprehending Britton. We must determine, therefore, whether this error necessitates a reversal.

The police officer who spoke with the anonymous informant testified that in addition to the information that Britton had drugs and money in his truck, the caller indicated that he knew the police had been looking for Britton “for some time” and also stated that Britton was involved in narcotics trafficking. We cannot say that this evidence was harmless under the circumstances of this case, especially in light of Britton’s defense that a disgruntled business partner had planted the drugs in his truck. The hearsay evidence, which implicated him in narcotics trafficking, only served to bolster the State’s contention that the drugs were his. Other than the presence of the drugs in the truck, there was no other evidence linking Britton to the contraband. Compare Carlisle v. State, 242 Ga. App. 253, 256 (2) (529 SE2d 385) (2000) (possession of other drug and evidence of attempts to clean up and hide contraband); Price v. State, 240 Ga. App. 37, 39 (2) (522 SE2d 543) (1999) (officers observed bag of contraband being thrown from defendant’s car window). The hearsay evidence also improperly placed Britton’s character into evidence by implicating him in criminal activity and by revealing that the police had been interested in him for a period of time. See Hart v. State, 174 Ga. App. 134, 135 (1) (329 SE2d 178) (1985).

Decided September 18, 2002.

James C. Metis III, for appellant.

J. Thomas Durden, Jr., District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

Therefore, we conclude that the trial court committed reversible error in admitting this evidence. See Render v. State, 267 Ga. 848, 850 (2) (483 SE2d 570) (1997); Hart v. State, 174 Ga. App. at 135 (1). Compare, e.g., McKenzie v. State, 271 Ga. 47, 49 (2) (518 SE2d 404) (1999); Teague, 252 Ga. at 537 (2) (admission of improper hearsay harmless where evidence was merely cumulative of other evidence).

2. Britton also asserts that the trial court erred in denying his motion to suppress the evidence seized by police when they stopped his truck. But that ruling was the subject of a prior appeal to this Court, in which we found that the evidence was admissible and affirmed the trial court’s denial of the motion to suppress. Britton v. State, 220 Ga. App. 120 (469 SE2d 272) (1996). “Any issue that was raised and resolved in an earlier appeal is the law of the case and is binding on this Court.” Whatley v. State, 218 Ga. App. 608, 611-612 (2) (462 SE2d 779) (1995). Accordingly, we cannot revisit the issue in this appeal.

Judgment reversed.

Ruffin, P. J., and Barries, J., concur.

       The Brown court, however, stopped short of determining whether this constituted reversible error under the circumstances, because the case had already been reversed on other grounds. 274 Ga. at 37 (2).


text:
    A02A1098.
    BARRETT v. THE STATE.
    (571 SE2d 202)
   Miller, Judge.

Johnny Ray Barrett appeals from his conviction for armed robbery, contending that (1) the trial court erred by admitting at trial alleged hearsay statements from the deceased victim, (2) the evidence was insufficient to sustain the conviction, (3) his trial counsel was ineffective, and (4) the trial court erred by refusing to authorize the release of the victim’s medical and pharmacy records. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that the victim’s neighbor saw a blue car with the keys in the ignition parked on the neighbor’s property. Being suspicious of the vehicle, the neighbor wrote down the vehicle’s tag number.

When the neighbor left his house a short time later, he saw the victim standing outside, who told the neighbor that someone wearing a mask had just robbed him. Since the victim’s phone line had been cut, the neighbor’s wife called the police from another phone.

When a police officer arrived six minutes later, the victim told the officer that a man wearing a mask and holding a black handgun had robbed him, taking his car keys, wallet, money, and his and his wife’s prescription pill bottles. Another investigator arrived approximately 15 minutes after the robbery call, and the victim then gave a recorded statement to police in which he gave a description of the robber and indicated that the robber had stolen his prescription pill bottles and approximately $1,700 in cash. Based on the tag number and description of the car spotted earlier by the neighbor, the police were able to broadcast information about the vehicle to other officers in the area.

Shortly after the police had spoken with the victim, an officer spotted the blue car less than five miles away from the victim’s home. Barrett was driving the car, and the police searched him, finding a prescription pill bottle in his pocket bearing the victim’s wife’s name. The police also found a loaded handgun in the car, $1,056 in Barrett’s wallet, and later found two more prescription pill bottles in the trunk of the car (one bearing the victim’s name).

The victim died prior to trial, and at trial the State introduced the victim’s initial spoken statements to the neighbor and to the police, as well as the victim’s recorded statement to the police. Prior to trial, defense counsel had moved to exclude these statements, but the motion was denied. At trial Barrett admitted that he had been at the victim’s house on the day of the alleged robbery, but testified that he was not the one who robbed the victim and was only at the victim’s home because the victim was a drug dealer who owed him some money. The jury found Barrett guilty of armed robbery.

Barrett moved for a new trial and attempted to obtain the victim’s medical and pharmacy records to bolster his claim that his trial counsel was ineffective, specifically for failing to connect the victim’s prescription drug use to his defense theory that no robbery actually took place, but only a drug deal. The court denied Barrett’s request for the medical and pharmacy records and further denied the motion for new trial. Barrett now appeals.

1. Barrett contends that the trial court erred in admitting hearsay evidence of (i) the victim’s statement to the neighbor that he had just been robbed, (ii) the victim’s initial statement to the first police officer about the robbery, and (iii) the victim’s recorded statement given to the investigating officer on the day of the robbery. Since all of these statements fall under exceptions to the hearsay rule, we disagree with Barrett and uphold the trial court’s ruling.

“Hearsay evidence is admitted only in specified cases from necessity.” OCGA § 24-3-1 (b). Additionally, “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” OCGA § 24-3-3.

The victim’s initial statements to the neighbor and the first officer were properly admitted as part of the res gestae. The victim spoke to the neighbor and police officer immediately after he had been robbed, and there was no evidence that his statements were made as a result of any afterthought. The statements resulted from the robbery that had just occurred and were properly admitted. See, e.g., Park v. State, 230 Ga. App. 274, 280 (5) (495 SE2d 886) (1998).

Further, the recorded statement given to the police on the day of the robbery was properly admitted under the necessity exception to the hearsay rule. Evidence may be admitted under the necessity exception where three requirements are met: (1) the declarant is unavailable to testify, (2) the statement is relevant to a material fact and more probative on that material fact than other evidence that may be offered, and (3) the statement is surrounded by particularized guarantees of trustworthiness. Jones v. State, 240 Ga. App. 723-724 (2) (524 SE2d 773) (1999).

Here, the declarant was deceased and therefore unavailable, and the statement that he provided prior to his death was the most probative evidence on the crime at issue. See Clark v. State, 271 Ga. 6, 10 (5) (515 SE2d 155) (1999). Moreover, the statement given to the police was never recanted, was given in the course of an official police investigation, and was even corroborated by Barrett’s own admission that he had been at the victim’s home earlier in the day to retrieve money and drugs from the victim. The trial court did not abuse its discretion by admitting the victim’s recorded statement to the police under the necessity exception to the hearsay rule. See Jones, supra, 240 Ga. App. at 724 (2).

2. Barrett argues that the evidence was insufficient to sustain his conviction for armed robbery. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” OCGA § 16-8-41 (a).

Here, the victim testified that he had been robbed at gunpoint. Barrett was at the victim’s home on the day of the robbery, had a loaded handgun, and was in possession of several of the victim’s belongings when he was stopped by the police shortly after the robbery. Even though Barrett claimed that he was in possession of the victim’s items because the victim owed him money, the jury was free to believe or disbelieve this testimony as they saw fit. The evidence was sufficient for the jury to find Barrett guilty of armed robbery.

3. Barrett cites a litany of reasons that he claims indicate that his trial counsel was ineffective. These numerous allegations, all of which are ultimately without merit, fall under three broad categories: (a) strategic decisions of counsel, (b) actions of counsel that resulted in no prejudice to Barrett, and (c) allegations of ineffectiveness that are unsupported by the record.

To prove ineffective assistance, Barrett was required to show that counsel’s performance was deficient and that this deficient performance prejudiced his defense. Ellison v. State, 242 Ga. App. 636, 638 (7) (530 SE2d 524) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The trial court’s determination with respect to counsel’s effectiveness will be upheld on appeal unless clearly erroneous. Jackson v. State, 209 Ga. App. 53, 56 (7) (432 SE2d 649) (1993). Evidence supported the trial court’s finding that Barrett did not meet his burden of showing deficient performance or prejudice based on his counsel’s actions.

(a) Strategic Decisions of Counsel. Barrett contends that his trial counsel was ineffective for failing to (i) file a motion to challenge Barrett’s arrest or file additional discovery motions, (ii) interview and call additional witnesses to support Barrett’s defense theory, and (iii) interview the victim prior to his death. The record reveals that all of these decisions of counsel were strategic and fell within the wide range of professional representation. See Sleeth v. State, 201 Ga. App. 324, 326 (a) (411 SE2d 79) (1991) (“The decisions on which witnesses to call, whether and how to conduct cross-examinations, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.”) (citation and punctuation omitted). Since evidence supported a finding that counsel’s actions were strategic, the trial court properly concluded that Barrett failed to show ineffectiveness here.

(b) Actions of Counsel That Resulted in No Prejudice. Barrett argues that his trial counsel was ineffective for failing to (i) file for bond for Barrett, (ii) seek a limine ruling on the victim’s hearsay statements until after the jury was impaneled, (iii) interview police officers and other State’s witnesses prior to trial, (iv) meet with Barrett in a timely manner or for sufficient time prior to trial, (v) obtain Barrett’s psychiatric records, (vi) know, prior to trial, all of the hearsay evidence that the State intended to present at trial, (vii) adequately prepare Barrett for his testimony, and (viii) preserve the right to close by making the decision to introduce a piece of documentary evidence at trial. Barrett has failed to show, however, how any issue relating to the posting of his bond, obtaining his own psychiatric records, the timing of the denial of his motion to exclude the victim’s alleged hearsay statements, or the order of closing arguments bore any relation to his theory of defense or the outcome at trial. In addition, Barrett’s counsel testified that he already had statements from the police officers and the file of the district attorney, so interviewing the witnesses was unnecessary. Barrett’s counsel also corresponded with Barrett on several occasions and met with him prior to trial and testified that the presentation of Barrett’s testimony was very straightforward and understood clearly by both counsel and Barrett. Further, Barrett has not shown how any alleged deficiency in his counsel’s knowledge of what evidence would be presented at triál somehow affected his defense at trial, especially since his trial counsel moved to exclude the evidence. Since evidence supported a finding that all of counsel’s actions here resulted in no prejudice to Barrett, the trial court did not clearly err in concluding that Barrett failed to show ineffectiveness of his trial counsel. See, e.g., Farrier v. State, 273 Ga. 302, 303 (3) (540 SE2d 596) (2001).

(c) Allegations Unsupported by the Record. Barrett urges that his trial counsel was ineffective for failing to ensure that Barrett could make an informed decision regarding any potential plea bargain. However, counsel testified that he fully informed Barrett of the possibility that his motion to exclude the victim’s hearsay statements could be denied and discussed with Barrett the decision to seek a plea bargain, plead guilty, or proceed with trial. Since the evidence of record belies Barrett’s assertions of ineffectiveness, the trial court did not err in concluding that counsel was effective. See, e.g., Daniel v. State, 228 Ga. App. 634, 636 (492 SE2d 542) (1997) (allegations unsupported by the record do not amount to ineffective assistance).

Decided September 18, 2002

Harold M. Walker, Jr., for appellant.

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

4. Barrett argues that the trial court erred in denying his request to obtain the victim’s medical and pharmacy records, as he alleges that such records would have bolstered his claim that his trial counsel was ineffective. However, Barrett has failed to show how these records relating to the treatment of the victim’s medical condition bore any relation to his defense theory that the victim was a drug dealer. In addition, Barrett has not presented evidence that on the day of the robbery the victim was under the influence of any medications that could have affected his judgment when he gave his statement to the police. Moreover, Barrett’s counsel testified that the decision not to obtain the records was strategic, as the information contained in the records could have undermined the defense theory that the victim had more drugs than one would normally have for personal use. This strategic decision of counsel counters the inference that counsel was somehow ineffective for failing to obtain the victim’s medical and pharmacy records. See Sleeth, supra, 201 Ga. App. at 326 (a). We discern no error from the trial court’s denial of Barrett’s request for these records.

Judgment affirmed.

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


text:
    A02A1133.
    SCHACKNOW et al. v. WOODRING.
    (571 SE2d 207)
   Barnes, Judge.

Mark and Cheryl Schacknow sued Jennifer Woodring in the Columbus Municipal Court for personal injuries and property damage resulting from a parking lot collision. Woodring answered and counterclaimed for property damage. After a bench trial, the trial court found for the defendant and entered judgment against the Schacknows. The Schacknows appeal the judgment pro se, and for the reasons that follow, we affirm.

First, we note that the Schacknows’ brief does not comply with Rule 27 of the Court of Appeals regarding structure and content. It merely prays that this Court find there is “genuine reason to allow oral arguments and grant judgment on behalf of the Plaintiffs.” Rather than alleging specific errors, the brief then itemizes “facts” that are unsupported by the record and includes documents not included in the record.

Decided September 18, 2002.

Our requirements as to the form of appellate briefs were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be folly and efficiently comprehended by this Court; a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.

(Punctuation and footnote omitted.) Campbell v. Breedlove, 244 Ga. App. 819, 821 (535 SE2d 308) (2000).

The Schacknows’ argument appears to be that the lawyer hired by the insurance company to defend them against Woodring’s counterclaim settled that claim before trial without their knowledge or consent and left them unprepared to try their case when it was called for trial. They have attached to their brief copies of police reports, medical records, and letters that are not included in the record. This Court, however, cannot consider these arguments or these documents, “for we must take our evidence from the record.” (Citations omitted.) Ostuni Bros. v. Fulton County Dept. of Public Works, 184 Ga. App. 406, 408 (2) (361 SE2d 668) (1987).

Further, the record contains no transcript, and we therefore have no way to review the evidence produced at trial to review the trial court’s decision.

It is well-settled law that without a transcript to review, this court must assume as a matter of law that the evidence at trial supported the court’s findings. It is the burden of the complaining party, including pro se appellants, to compile a complete record of what happened at the trial level, and when this is not done, there is nothing for the appellate court to review.

(Citations and punctuation omitted.) Kulkov v. Botvinik, 230 Ga. App. 204 (1) (495 SE2d 662) (1998).

For these reasons, we must affirm the judgment of the trial court.

Judgment affirmed.

Ruffin, P. J, and Pope, Senior Appellate Judge, concur.

Mark Schacknow, pro se.

Cheryl Schacknow, pro se.

Martin, Snow, Grant & Napier, William H. Larsen, Henry D. Bullard, for appellee.


text:
    A02A1268.
    PRYOR et al. v. CCEC, INC.
    (571 SE2d 454)
   Miller, Judge.

A private school dismissed a student for misbehavior. The student and her mother sued the school, claiming a violation of the Georgia Fair Business Practices Act (FBPA), and asserted a claim for negligent infliction of mental distress. We uphold the grant of summary judgment to the school on the grounds that the FBPA does not apply to this private transaction and that the mental distress claim cannot lie because of the lack of physical impact to the student or the mother.

Summary judgment is only proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter óf law. OCGA § 9-11-56 (c). We review the evidence de novo in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So construed, the evidence shows that Cloister Creek Educational Center is a residential transition school for young adults in need of assistance to transition to work and independent living. On the advice of an educational consultant, Carol Pryor considered placing her 18-year-old daughter there in the summer of 1999. She met with the director of Cloister Creek, who concluded that Pryor’s daughter was appropriate for the program. Pryor paid the school $7,811.36 (representing three months of tuition), and her daughter was admitted in early July. Pryor admits that the financial arrangement was governed by an unsigned document she reviewed at that time, which stated that the tuition was nonrefundable. No one contradicted this statement. Nor were any representations made to Pryor regarding grounds or procedures for dismissal.

On July 21, 1999, the school director was replaced by Dr. Wiley. Over the next few weeks, Dr. Wiley received reports that the daughter assaulted two students, violated curfew by showering after hours, and violated boundary restrictions by running into the woods behind the school; Dr. Wiley also witnessed the daughter respond to reprimands by donning army fatigues. Aware of her daughter’s prior history of threats and of defiance to teachers, Pryor received reports from the school regarding the fatigues and the curfew violation. Plaintiffs have no evidence to refute any of the allegations of misbehavior against the daughter. However, Pryor was not notified of the assaults or of the boundary violation.

Based on this behavior and on a review of the daughter’s medical records, Dr. Wiley concluded that she had behavioral disorders and dismissed her from the school on August 7, 1999. Despite the school’s “no refund” policy, the school did refund $1,983.76 to Pryor. Pryor requested the school to set forth the grounds for dismissal in writing, to which the school did not respond.

Pryor and her daughter then brought the present action against the school. In the first count, they allege that the school violated the FBPA (OCGA § 10-1-393) by falsely representing that the program was appropriate for the daughter and then (shortly after the daughter began the program) arbitrarily reversing that decision and dismissing her without refunding “most of the money” paid for tuition. The second count alleges a claim for negligent infliction of mental distress in that Dr. Wiley failed to exercise due care in the determination that the daughter had a behavioral disorder and in dismissing her, which action worsened the daughter’s mental condition and caused her mental anguish. The trial court granted summary judgment on all claims, which the mother and daughter appeal.

1. “One may bring a private suit under the FBPA only if he is individually injured by the breach of a duty owed to the consuming public in general. [The Act] does not encompass suits based upon allegedly deceptive or unfair acts or practices which occur in an essentially private transaction.” (Citation and punctuation omitted.) Lynas v. Williams, 216 Ga. App. 434, 436 (3) (b) (454 SE2d 570) (1995). “Unless it can be said that the defendant’s actions had or has potential harm for the consumer public the act or practice cannot be said to have ‘impact’ on the consumer marketplace and any act or practice which is outside that context, no matter how unfair or deceptive, is not directly regulated by the FBPA.” (Citation and punctuation omitted.) Gross v. Ideal Pool Corp., 181 Ga. App. 483, 484 (1) (352 SE2d 806) (1987); accord Zeeman v. Black, 156 Ga. App. 82, 84 (273 SE2d 910) (1980).

The transaction at issue here was an essentially private transaction. The school’s alleged acts and conduct did not arise in the context of the consumer marketplace. Based on a review of the daughter’s private medical records, the school director determined that her particular placement at the school was appropriate. In light of the daughter’s misbehavior at the school (which was not fully communicated to the mother) and a further review of the records, the succeeding school director determined that dismissal of this particular student was appropriate. A partial tuition refund was given (despite the school’s policy of giving no refunds). Even if the original decision to admit the daughter was a ruse, or if the decision to dismiss her violated a duty owed to the mother or daughter, or if the refund was too small, these acts were “not introduced into the stream of commerce,” nor were they “reasonably intended to impact on any market other than” Pryor and her daughter. (Citation and punctuation omitted.) Lynas, supra, 216 Ga. App. at 437 (3) (b). Accordingly, “there exists no viable cause of action . . . under the FBPA.” Id.

Decided September 18, 2002.

2. There is no viable cause of action for negligent infliction of mental distress. “In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” (Punctuation and footnote omitted.) Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 584 (I) (533 SE2d 82) (2000), quoting Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992). As it is undisputed that neither Pryor nor her daughter was physically injured by the school’s actions, this claim must fail.

3. Although not expressly stated in the complaint, a breach of contract claim may have been implied in the allegations. Pryor and her daughter seem to contend that the school owed them a contractual duty to not dismiss the daughter, or at least owed them a duty to give Pryor a full refund if it did. The undisputed evidence defeats this implied claim. Pryor admitted that a one-page document governed the financial arrangement and that this document clearly stated that “[t]uition is NON-REFUNDABLE.” She further testified that no one told her the tuition would be refunded.

Pryor also testified that no one told her that her daughter “was guaranteed enrollment in the school and that she would never be dismissed from the school, under any circumstances.” Dismissal was not discussed with her at all, including the policies and procedures regarding such. She did testify that a dismissal based on assaulting other students would have been proper. Thus, the undisputed evidence shows no breach of contract.

4. Pryor asserts that an unjust enrichment claim for the refund of more tuition could also be implied. Even if it could, the claim fails. She testified that the document stating that the tuition was nonrefundable governed the financial arrangement. An unjust enrichment theory does not lie where there is an express contract. Kwickie/Flash Foods v. Lakeside Petroleum, 246 Ga. App. 729, 730 (541 SE2d 699) (2000).

Judgment affirmed.

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

John H. Bedford, for appellants.

Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, Kristy L. Eckhardt, for appellee.


text:
    A02A1413.
    SCOTT et al. v. JOE THOMSON AUTO RENTAL & LEASING, INC.
    (571 SE2d 475)
   Miller, Judge.

Zachary Scott’s estate and children sued Joe Thomson Auto Rental & Leasing, Inc., Joseph LaRosa, and others for injuries Scott received in a collision with a vehicle owned by Auto Rental and leased to LaRosa. Plaintiffs complained that Auto Rental failed to offer and sell LaRosa “spot” insurance as required by law. Auto Rental moved for summary judgment, arguing that its failure to offer and sell the insurance did not proximately cause the collision. The trial court granted the motion, and plaintiffs appeal. The issue on appeal is whether Auto Rental’s failure to require LaRosa to have liability insurance on the vehicle (in addition to Auto Rental’s liability insurance) renders Auto Rental personally liable for the injuries caused by the collision. We hold that the failure to require the additional insurance did not proximately cause the accident and accordingly affirm summary judgment in favor of Auto Rental.

Construed in favor of the plaintiffs, the evidence showed that Auto Rental rented a car to LaRosa with only John Foster as an additional authorized driver. In violation of OCGA § 40-9-102, even though Auto Rental learned that LaRosa personally had no liability insurance covering the rental vehicle, it failed to require him to purchase “spot” liability insurance on the vehicle. However, Auto Rental itself had liability insurance on the vehicle through Empire Fire & Marine Insurance Company.

Despite the rental agreement’s prohibition against unauthorized persons driving the vehicle, Foster apparently allowed this to happen, and the unauthorized driver (who was smoking marijuana at the time) collided with a motorcycle driven by Scott, causing serious injuries to Scott that resulted in his death. Scott’s children and estate sued Auto Rental and others, alleging, inter alia, that Auto Rental’s failure to require LaRosa to have liability insurance rendered Auto Rental liable for the injuries and death. Finding that Auto Rental’s actions could not have proximately caused the damages at issue, the court granted Auto Rental’s motion for summary judgment, which plaintiffs appeal.

1. Auto Rental’s alleged negligence — namely that in violation of OCGA § 40-9-102 it failed to require LaRosa to carry liability insurance on the vehicle — did not contribute to causing the collision that injured and killed Scott. Thus, the trial court did not err in granting summary judgment to Auto Rental.

OCGA § 40-9-102 requires a rental car company to ensure that a renter has his own liability insurance on the vehicle or to offer the renter “spot” insurance, which shall be purchased by the renter before the rental car company may turn the vehicle over to the renter. See Atlanta Rent-A-Car v. Jackson, 204 Ga. App. 448, 450-451 (419 SE2d 489) (1992). Although the rental car company is not exempt from its duty under OCGA § 33-34-4 to insure the cars it owns, OCGA § 40-9-102 affords it special treatment in terms of priority of coverage. Jordan v. Spirit Rent-A-Car, 252 Ga. App. 117, 119 (1) (555 SE2d 734) (2001). “Under OCGA § 40-9-102, the liability insurance coverage the renter provides is the primary liability coverage in the case of liability arising from the use of the rental car; the U-drive-it owner’s liability insurance coverage is then secondary or excess. [Cit.]” Id. However, failure by the rental car company to ensure the renter has coverage voids the exemption and causes the company’s insurance coverage to become primary. OCGA §§ 40-9-102; 40-9-4; A. Atlanta Autosave v. Generali U. S. Branch, 270 Ga. 757, 759-760 (2) (514 SE2d 651) (1999); see Jones v. Wortham, 201 Ga. App. 668, 670 (411 SE2d 716) (1991).

Generali explained the purpose of this statute:

OCGA § 40-9-102 is plainly remedial. Its focus is not the effectiveness of the rental agency in ascertaining the renter’s coverage, nor is its ultimate aim to sanction the rental agency for a less-than-diligent or unsuccessful effort in that regard. The obvious purpose of the statute is to protect the public against injury by an irresponsible renter of a U-drive-it vehicle. It does not do this by attempting to prevent tortious acts by the renter; it does not address such a problem, but rather assures that there is insurance coverage for the rental. That is the object of OCGA § 40-9-102.

(Citations omitted.) 270 Ga. at 759 (2).

Decided September 18, 2002.

Lester B. Johnson III, for appellants.

Thus, where the rental car has injured plaintiffs, the rental car company’s “failure to comply with OCGA § 40-9-102 was not the cause of any harm to plaintiff [s].” Alamo Rent-A-Car v. Hamilton, 216 Ga. App. 659, 661 (455 SE2d 366) (1995); see Rabinovitz v. Accent Rent-A-Car, 213 Ga. App. 786-787 (446 SE2d 244) (1994) (physical precedent only). The purpose of the statute “is not specifically to prevent tortious acts by the operators of rental vehicles, but rather to assure that such operators are not uninsured.” Alamo, supra, 216 Ga. App. at 661. Where the rental car company has maintained liability insurance on the car as required by OCGA § 33-34-4, the object of OCGA § 40-9-102 has been met, for then the vehicle is covered by insurance even if the renter personally has no insurance. Id.; see Generali, supra, 270 Ga. at 760 (2).

As there is no proximate causal link between a renter’s lack of personal insurance and a collision, rental car companies are entitled to summary judgment unless they are self-insured. Compare Alamo, supra, 216 Ga. App. at 661 (summary judgment to rental car company that maintained liability insurance), and Rabinovitz, supra, 213 Ga. App. at 787 (same), with Generali, supra, 270 Ga. at 758, n. 2, 760 (2) (self-insured rental car company not entitled to summary judgment), and Jordan, supra, 252 Ga. App. at 119 (1), (2) (same). Likewise, Auto Rental’s failure to confirm that LaRosa had personal insurance did not cause the accident which injured Scott. Inasmuch as Auto Rental had liability insurance from Empire that covered the vehicle in question, the purpose of OCGA § 40-9-102 was fulfilled, and the trial court did not err in granting summary judgment to Auto Rental.

2. Plaintiffs complain that the trial court relied on inadmissible evidence in granting summary judgment. Specifically, plaintiffs point to a reference in the summary judgment order that Foster gave the vehicle to the unauthorized driver in exchange for crack cocaine (information found only in a police report). The proximate cause analysis set forth in Division 1 above does not rely on this evidence in concluding that summary judgment was proper. “[A] grant of summary judgment is to be affirmed if it is right for any reason. . . .” (Punctuation omitted.) Abellera v. Williamson, 274 Ga. 324, 326 (2) (553 SE2d 806) (2001). This enumeration is therefore moot.

Judgment affirmed.

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

Brennan & Wasden, Marvin W. McGahee, Carter & Ansley, Ben Kingree III, for appellee.

       This is the second appellate decision in this action. The first arose out of a summary-judgment granted to LaRosa’s alleged employer on different grounds. See Scott v. LaRosa & LaRosa, Inc., 253 Ga. App. 489 (559 SE2d 525) (2002).

       We do not address whether Auto Rental’s policy with Empire covered the particular circumstances of this collision involving an unauthorized person driving the vehicle.