author:
Banke, Presiding Judge. Deen, Presiding Judge,
      Benham, Judge,

text:
    75378.
    75379.
    75380.
    FERGUSON v. CITY OF DORAVILLE et al. CITY OF DORAVILLE v. FERGUSON. RIFFE v. FERGUSON.
    (367 SE2d 551)
   Banke, Presiding Judge.

William H. Ferguson brought suit against the City of Doraville and an as yet unidentified Doraville police officer to recover for personal injuries which he sustained when he was struck by an automobile while attempting to walk across a seven-lane highway at night in a highly intoxicated condition. Ferguson later amended his complaint to substitute Doraville police lieutenant Robert Riffe for the unidentified “John Doe” defendant named in the complaint. Both defendants counterclaimed pursuant to OCGA § 9-15-14 and Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), based on allegations that Ferguson’s claim was substantially frivolous, substantially groundless, and substantially vexatious. Ferguson responded to these counterclaims by amending his complaint to assert abusive litigation claims against the defendants, thereby prompting Lt. Riffe to amend his counterclaim to assert an additional abusive litigation claim against Ferguson. The trial court granted summary judgment to the defendants with respect to Ferguson’s personal injury claim but granted summary judgment to Ferguson with respect to the defendants’ counterclaims. These appeals followed.

The relevant facts are, for the most part, undisputed. At approximately 12:25 a.m. on March 2, 1986, Lt. Riffe observed Ferguson asleep behind the wheel of a parked car on the premises of a “fast-food” restaurant located alongside the highway. Ferguson had pulled into the parking lot of this restaurant to sleep after attempting to drive home from a bar and realizing he was, in his words, “too drunk” to do so. Lt. Riffe approached Ferguson’s vehicle, opened the door, and asked for and obtained Ferguson’s driver’s license. After determining that the vehicle was not stolen, he then instructed Ferguson not to attempt to drive the car. Ferguson’s specific recollection of what Lt. Riffe told him was as follows: “He said something to the effect that I had better make a phone call and get somebody to come get me because he wasn’t going to baby-sit me. He said anybody could have opened this door; I just did; and you better not move this damn car.” Lt. Riffe’s recollection of his instructions to Ferguson was somewhat different. He testified that he told Ferguson it would be “fine” if he wished to stay in the car and sleep but to “lock the doors and roll the windows partially up so he wouldn’t get mugged.”

Lt. Riffe left the scene immediately after this encounter, having made no attempt to take Ferguson into custody or to secure the keys to his vehicle. Ferguson subsequently left his vehicle and walked to the other side of the highway, where he entered a bar/lounge called the Lemon Peel. While inside, he telephoned his wife to ask her to come and pick him up and consumed at least two more drinks while waiting for her. He ultimately grew tired of waiting, left the bar and attempted to walk back across the highway. In the process, he was struck and severely injured by an unidentified hit-and-run motorist. The accident occurred at approximately 2:50 a.m., or about two-and-a-half hours after his encounter with Lt. Riffe. Ferguson’s blood-alcohol content upon his arrival at the hospital for. treatment following the accident was .29 percent.

Ferguson alleged in his complaint that his injuries were the proximate result of Lt. Riffe’s breach of a “mandatory duty to arrest one who has operated a motor vehicle while under the influence of an intoxicant.” He sought to hold the City of Doraville liable under the doctrine of respondeat superior, asserting that the defense of sovereign immunity had been waived to the extent of certain liability insurance purchased by the city. The trial court did not reach the immunity issue but granted summary judgment to the defendants based on a conclusion that no actionable breach of duty had occurred. On appeal, Ferguson no longer contends that Lt. Riffe breached a legal duty to arrest him but instead contends that the officer’s instructions to him imposed a sufficient restraint on his freedom that he could be considered to have been under the officer’s constructive care and custody at the time of the accident. Held-.

1. Even accepting as accurate Ferguson’s version of what Lt. Riffe told him during their encounter, it is apparent that the officer placed him under no greater restrictions with respect to the operation of his automobile than he was already under by virtue of the general criminal prohibition against driving a motor vehicle while under the influence of alcohol. See OCGA § 40-6-391 (a). By no reasonable stretch of the imagination could it be inferred from any of the evidence in this case that Ferguson was under actual or constructive police custody at any time relevant to these proceedings.

With regard to Ferguson’s original theory of liability, i.e., that Lt. Riffe breached a mandatory duty to make an arrest, we observe that it is by no means evident that Lt. Riffe was authorized to make an arrest under the circumstances. It is no crime merely to be intoxicated, see OCGA § 16-14-41, nor is it a crime merely to occupy a parked automobile while under the influence of alcohol. See generally OCGA § 40-6-391 (a); Carr v. State, 169 Ga. App. 679 (314 SE2d 694) (1984). Thus, it is certainly conceivable that had Lt. Riffe in fact arrested Ferguson, he would thereby have subjected himself to suit for false arrest or false imprisonment rather than for negligence. As observed by former Chief Justice Warren in Pierson v. Ray, 386 U. S. 547, 555 (87 SC 1213, 18 LE2d 288) (1967), overruled on other grounds in Harlow v. Fitzgerald, 457 U. S. 800 (102 SC 2727, 73 LE2d 396) (1982), “A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.”

It being apparent without dispute from the uncontroverted evidence of record in this case that Lt. Riffe did nothing to restrict Ferguson’s liberty, expose him to greater danger, or otherwise adversely affect his position, we must agree with the trial court that the officer acquired no legal duty to protect him either from the consequences of his own behavior or from the negligence of others. See generally Ficken v. Southern Cotton Oil Co., 40 Ga. App. 841 (1) (151 SE 688) (1929); Handiboe v. McCarthy, 114 Ga. App. 541, 543 (3) (151 SE2d 905) (1966). Accord Barratt v. Burlingham, 492 A2d 1219 (R.I. 1985); Hildenbrand v. Cox, 369 NW2d 411 (Iowa 1985). Cf. Hostetler v. Ward, 41 Wash. App. 343 (704 P2d 1193) (1985); Trautman v. City of Stamford, 32 Conn.Sup. 258 (350 A2d 782) (1975). Compare Thomas v. Williams, 105 Ga. App. 321, 326 (3) (124 SE2d 409) (1962). We accordingly hold that the trial court did not err in granting summary judgment to the defendants with respect to Ferguson’s personal injury claim.

2. The issue of whether the trial court erred in granting summary judgment to Ferguson on the defendants’ counterclaims is more problematical, thrusting us unavoidably into mind-numbing battle with the many-headed hydra of “abusive litigation” law.

(a) Subsection (a) of OCGA § 9-15-14 mandates that “reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” (Emphasis supplied.) Subsection (b), on the other hand, provides that “[t]he court may assess reasonable and necessary attorney’s fees and expenses of litigation ... if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification. . . -”

It would appear from the Supreme Court’s decision in Yost v. Torok, 256 Ga. 92, supra, that either of the above specified types of litigation abuse will also support a recovery of damages in tort. Id. at 96 (13). However, the elements of such a recovery are entirely different. Whereas the Code section provides solely for the assessment of “reasonable and necessary attorney’s fees and expenses of litigation,” the damages recoverable under Yost consist of “special damages other than attorney fees and expenses of litigation; damages for mental distress, where there is either wilfulness, or wanton and reckless disregard of consequences which is the equivalent of wilfulness [cit.]; or nominal damages pursuant to OCGA § 51-12-4.” Id. at 95 (10).

The remedy available under the Code section also differs from that available under Yost in at least two other important regards. First, the precepts of Yost, being founded upon the ruins of the preexisting torts of malicious use and abuse of process, have been held to be retroactive. See Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790 (359 SE2d 920) (1987). The remedy created by the Code section, on the other hand, is available only with respect to “any claim, defense, or other position which is first raised in an action on or after July 1, 1986.” Ga. L. 1986, pp. 1591, 1593, § 3. With regard to abusive litigation claims arising prior to July 1, 1986, the Supreme Court specified in Yost that “the recoverability of attorney fees and expenses of litigation must be determined by [pre-] existing principles of law.” Id. at 96 (17). However, pre-existing law avails the defendants in the present case very little, because prior to the effective date of OCGA § 9-15-14, the general recoverability of expenses of litigation (including attorney fees) in civil actions was governed by OCGA § 13-6-11, which was not available to a defendant in the absence of a “viable independent counterclaim[ ] asserting [a] claim[ ] for relief independent of the assertion of the [plaintiff’s] harassment, litigiousness and bad faith in bringing . . . suit[ ].” Fla. Rock Indus. v. Smith, 163 Ga. App. 361, 363 (3) (294 SE2d 553) (1982).

A final respect in which the remedy created by § 9-15-14 differs from the remedy announced in Yost lies in the procedure for adjudicating claims thereunder. Claims asserted pursuant to the Code section are to be adjudicated by the trial court without a jury, see OCGA § 9-15-14 (f), whereas claims asserted under Yost are to be adjudicated immediately after the disposition of the underlying action “by the same factfinder — that is, by the judge or jury of the underlying action.” Id. at 96 (15).

(b) The original complaint in this case was filed on June 6, 1986, and was thus subject to the precepts of Yost but not to those of OCGA § 9-15-14. It follows that neither of the defendants is entitled to assert a claim for attorney fees and expenses of litigation on the basis of the original complaint. However, Lt. Riffe was not identified by name in the original complaint, and it was not until after July 1, 1986, that Ferguson amended his pleadings to identify the officer as the John Doe defendant referred to in the original complaint. Since it was not until then that Lt. Riffe was called upon to defend the suit, which sought an assessment of damages against him personally in excess of $6,750,000, we conclude that in filing this amendment Ferguson asserted a “position” against Lt. Riffe which was “first raised in the action on or after July 1, 1986.” Accordingly, we hold that Lt. Riffe was entitled to assert a counterclaim pursuant to § 9-15-14 for litigation expenses and attorney fees reasonably incurred in responding to Ferguson’s original personal injury claim but that the city was not entitled to seek such a recovery. However, we hold that both defendants may seek recovery of litigation expenses and attorney fees reasonably incurred in responding to Ferguson’s abusive litigation claims, since those claims were, with respect to both defendants, first asserted by Ferguson in amendments filed subsequent to July 1, 1986.

(c) We now turn to the question of whether the trial court was authorized to conclude as a matter of law from the evidence of record that Ferguson could not be held liable in damages for abusive litigation.

This court has previously cautioned that “zealous favoring of abusive litigation allegations can create a bar to access to the courts for civil litigants.” Guernsey Petroleum Corp. v. Data Gen. Corp., supra, 183 Ga. App. at 796. Such overzealousness could be particularly discouraging to litigants who are compelled to argue for a change in existing law in order to obtain just redress for their grievances. Abusive-litigation litigation is itself subject to abuse, and we must constantly be on our guard not to allow it to become a source of stagnation or inflexibility in our jurisprudence, i.e., to become the “tail that wags the dog.” On the other hand, these remedies were created in response to a very real need, and we should not shrink from enforcing them where their application is appropriate.

With these considerations in mind, we ask ourselves whether the evidence of record, construed in this instance most favorably towards the defendants as respondents on motion for summary judgment, see Burnette Ford, Inc. v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971), establishes as a matter of law a reasonable justification for Ferguson’s claims. We conclude that it does not. In the first place, it is something of an affront to common sense for Ferguson to argue that Lt. Riffe was the proximate cause of his (Ferguson’s) own conduct in continuing to consume alcoholic beverages to the point where, some two-and-a-half hours after his encounter with the officer, his blood-alcohol content reached .29 percent. Ferguson was, after all, laboring under no legal incapacity or disability which would relieve him of responsibility for his own behavior. Cf. Knight v. State, 12 Ga. App. 111 (3) (76 SE 1047) (1913).

Considerations of proximate cause aside, a jury might also legitimately question the reasonableness of charging Lt. Riffe with the breach of a duty owed to Ferguson in the first instance. There is clearly no existing statutory, constitutional or common law basis in Georgia for the assertion of a right to be arrested. Cf. Blackwell v. State, 139 Ga. App. 477, 478 (3) (228 SE2d 612) (1976). Even with respect to claims brought by third persons to recover for injuries suffered at the hands of lawbreakers, it is generally held that “the specific duty to preserve the peace is one which the officer owes to the public generally, and not to particular individuals, and that the breach of such duty accordingly creates no liability on the part of the officer to an individual who was damaged by the lawbreaker’s conduct.” Anno.: Personal Liability of Policeman [etc.] for Injury Suffered as a Result of Failure to Enforce Law or Arrest Lawbreaker, 41 ALR3d 700, p; 703, § 2.

In ruling that Ferguson was entitled to summary judgment on the defendants’ counterclaims, the trial court did not actually determine that a reasonable basis or substantial justification existed for Ferguson’s complaint but instead reasoned as follows: “Although this action is highly unusual, if not bizarre, the extensive research of the plaintiff into the law of other jurisdictions and the absence of any Georgia law on point leads this court to conclude that plaintiff was raising justiciable issues in good faith.” In concluding that the exercise of good faith would insulate Ferguson from liability for bringing a frivolous claim, the trial court was evidently relying on subsection (c) of OCGA § 9-15-14, which provides as follows: “No attorney or party shall be assessed attorney’s fees as to any claim or defense which the court determines was asserted by said attorney or party in a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority(Emphasis supplied.)

We cannot agree that § 9-15-14 (c) operates to insulate Ferguson from liability in this case, for two reasons. First, the subsection is applicable on its face only to claims for attorney fees and not to expenses of litigation or to the types of damages available under Yost v. Tor ok. Secondly, the foreign authorities cited by Ferguson do not provide arguable support for his claim. In Parvi v. City of Kingston, 41 NY2d 553 (362 NE2d 960) (1977), for example, the plaintiff’s claim was upheld on the basis of evidence that the police had taken him into custody while he was in an inebriated condition, transported him outside the city limits, and deposited him against his will at a location near a superhighway, from whence he had been forced to try to find his way home on foot. As previously emphasized, there is no similar evidence in the present case to suggest that Lt. Riffe adversely affected Ferguson’s position in any way. Compare Thomas v. Williams, 105 Ga. App. 321 (124 SE2d 409). Thus, Ferguson’s contention on appeal that “there is no difference of substance” between his situation and that of the plaintiff in Parvi is transparently without merit.

Ferguson’s reliance on Endy v. Village of Nyack, 576 FSupp. 1562 (SD NY 1984), is similarly misplaced. The decision there was not issued by an appellate court but was merely a ruling by a trial judge denying a motion to dismiss for failure to state a claim. The issue before us in the present case is not whether Ferguson’s complaint stated a claim on which relief could be granted (i.e., whether there was any conceivable state of facts which might have supported a recovery within the framework of the complaint) but whether there was any justification for charging the defendants with liability for his injuries on the basis of the facts as they actually existed. Whereas the complaint in Endy alleged that the defendant municipality’s police officers “took custody” of the plaintiff’s decedent by appropriating his car keys while he was in a helpless condition and leaving him in his automobile to die, the evidence in the present case reveals without dispute that the plaintiff was lucid and capable of responding to questions at the time the officer spoke to him, that he was not sick, wounded, or otherwise in need of immediate medical attention, and that his position was not adversely affected in any way by his encounter with the police.

The holding in Weldy v. Town of Kingston, 514 A2d 1257 (NH 1986), similarly establishes no basis for recovery under the facts of the present case. There, the police had stopped a car full of teenagers and then let them go, after having determined that they were unlawfully transporting and consuming alcoholic beverages. Concluding on the basis of New Hampshire law that the officers had breached a statutory and common law duty to make an arrest for a crime committed in their presence, the court held that the occupants of the vehicle could recover against the municipality for injuries which they later sustained when their vehicle was involved in an accident due to the then driver’s intoxication. This holding represents perhaps the most extreme example of a nascent tendency in some jurisdictions to hold municipalities liable to third persons for injuries caused by the negligent failure of police officers to remove from the streets drivers who are under the influence of alcohol. See, e.g., Irwin v. Town of Ware, 392 Mass. 745 (467 NE2d 1292) (1984); Anno.: Failure to Restrain Drunk Driver as Ground of Liability of State or Local Government Unit or Officer, 48 ALR 4th 320, 345-348, §§ 11 & 12. However, even if such a theory of liability were adopted in Georgia, it would avail the plaintiff in the present case nothing, for, as previously indicated in Division 1, supra, it is far from evident that Lt. Riffe would have been authorized to arrest Ferguson at any time during their encounter. See generally OCGA § 17-4-20; Croker v. State, 114 Ga. App. 492, 494 (1) (151 SE2d 846) (1966). We know of no jurisdiction which would require a police officer to expose himself to suit for false arrest or false imprisonment by making an arrest under such circumstances. Moreover, Ferguson did not injure another traveler as the result of his inebriation. If he injured anyone, it was himself.

In summary, while it would appear that the research conducted by Ferguson’s counsel has been thorough, and while we have no reason to doubt that his pursuance of the present action has been characterized by good faith in a subjective sense, we are left at the end with nothing which could be said to establish as a matter of law a reasonable or substantial justification for Ferguson’s claims. Consequently, we are constrained to hold that the trial court erred in granting summary judgment to Ferguson with respect to the defendants’ counterclaims. However, inasmuch as we have previously concluded that the city has no right of recovery pursuant to OCGA § 9-15-14 based on Ferguson’s personal injury claim, the city will, with respect to that claim, be entitled to pursue only those elements of recovery authorized by Yost v. Torok, 256 Ga. 92, supra. There being no suggestion that the city has incurred any special damages as the result of this litigation other than litigation expenses and attorney fees, and it appearing obvious that a corporate body is incapable of suffering mental distress, this means that the city will, with respect to its cause of action for abusive litigation arising from Ferguson’s original claim, be limited to a recovery of nominal damages. Id. at 95 (10).

Judgment affirmed in Case No. 75378. Judgment reversed in Case Nos. 75379 and 75380. Birdsong, C. J., Carley, Sognier, Pope, and Beasley, JJ., concur. McMurray, P. J., concurs in judgment only.

Deen, P. J.,- and Benham, J., concur in part and dissent in part.

Deen, Presiding Judge,

concurring in part and dissenting in part.

It is difficult to agree with all that is said in the majority opinion as to “problematical, thrusting us . . . into mind-numbing battle . . . many-headed hydra . . . tail that wags the dog . . . nascent tendency” as applied to abusive litigation counterclaims, and with the position of dissent offered for the purpose of easing “the collective mind of the bench and bar.” I do agree, however, with the result and basic rationale advanced in Judge Benham’s concurrence in part and dissent in part.

Benham, Judge,

concurring in part and dissenting in part.

While in full accord with Division 1 of the majority opinion, I am compelled to dissent from Division 2 due to its rejection of a good faith defense to a claim based upon the Supreme Court’s decision in Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986).

The trial court granted summary judgment to Ferguson on the Yost and OCGA § 9-15-14 counterclaims after concluding that “plaintiff was raising justiciable issues in good faith.” The majority surmises that the trial court applied OCGA § 9-15-14 (c) and, while acknowledging that pursuance of the case by Ferguson’s counsel “has been characterized by good faith in a subjective sense,” holds that the good faith concept contained in OCGA § 9-15-14 (c) is not applicable to a Yost suit. The majority goes on to distinguish the case at bar from the cases cited by Ferguson’s counsel, and concludes that Ferguson did not present “arguable support” for his claim.

In Yost v. Torok, supra, the Supreme Court adopted the legislative language of OCGA § 9-15-14 to define the single cause of action now called abusive litigation. The Supreme Court “re-define[d] the elements of the common-law claim” by liberally borrowing from OCGA § 9-15-14 (a) and (b). Its failure to include language from § 9-15-14 (c) should not be read as a rejection of the concepts contained therein, but recognized as logical since subsection (c) does not contain terms defining the substance of the tort of abusive litigation. Instead, it contains what can only be termed a defense: should it be determined by the court that a claim or defense was asserted by an attorney or a party “in a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority,” attorney fees will not be assessed. Following the lead of the Supreme Court, I would adopt the legislative language of OCGA § 9-15-14 (c) and hold that potential tort liability for abusive litigation is negated if the factfinder determines the claim or defense was asserted in a good faith attempt to establish a new theory of law in Georgia if such new theory is based on some recognized precedential or persuasive authority.

The failure to recognize a “good faith defense” to a Yost claim, a claim which exposes its defendants to potential liability greater than that under OCGA § 9-15-14, creates an atmosphere of stagnation within the law by inhibiting attorneys from taking a case that requires the presentation of a novel approach to the law in Georgia. The studied development of the law will be stymied should counsel fear to suggest change because the shadow of a Yost claim looms over them. Without establishing good faith as a defense to a Yost claim, development of the law will grind to a halt, and the State of Georgia will be the worse for it.

After holding that OCGA § 9-15-14 (c) is not applicable to a Yost claim, the majority goes on to distinguish each of the several foreign authorities cited by Ferguson in support of his position, and concludes that they “do not provide arguable support for his claim.” Majority opinion, p. 435. Ferguson’s inability to present a previously-decided case factually identical to the one at bar should not expose him to liability for abusive litigation. The fact that Ferguson, in good faith (as recognized by the majority), presented case law establishing a springboard from which a court of this State could leap should it choose to extend the existing law of Georgia should insulate Ferguson from Yost liability. The ability of the court to distinguish Ferguson’s authority should not vitiate his good faith. If that authority can be seen as stepping stones leading toward recognition of Ferguson’s theory, it should be accepted as “precedential or persuasive authority” (OCGA § 9-15-14 (c)), insulating the proponent from abusive litigation rather than rejected as distinguishable and subjecting the party to a penalty for proposing a novel approach. While I agree with the majority that Ferguson’s claims against the City of Doraville and Lt. Riffe cannot withstand motions for summary judgment under Georgia law as it presently stands, I am not willing to condemn Ferguson or his counsel for filing the suit recognized as having been brought in good faith.

Had a position such as that now espoused by the majority been taken by the state and federal appellate courts at an earlier time, we might still be grappling with notions such as “separate but equal” (Brown v. Bd. of Education, 347 U. S. 483 (74 SC 686, 98 LE 873) (1954)); the husband as the head of the household (Orr v. Orr, 440 U. S. 268 (99 SC 1102, 59 LE2d 306) (1979)); the imposition of the death penalty for armed robbery (Gregg v. Ga., 428 U. S. 153 (96 SC 2909, 49 LE2d 859) (1976)); unlimited sovereign immunity (McCafferty v. Medical College of Ga., 249 Ga. 62 (287 SE2d 171) (1982)); as well as malicious use of process and malicious abuse of process (Yost v. Tor ok, supra). These notions have fallen to the wayside as the law evolved, championed by attorneys who were willing to take on an uphill struggle in pursuit of an ideal whose time had come but had not yet been recognized. While it has been acknowledged that “zealous favoring of abusive litigation allegations can create a bar to access to the courts for civil litigants” (Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790 (4) (359 SE2d 920) (1987)), we must do more than recognize danger — we must establish its parameters. The trial courts of this State have been the Yost battlefield up to this point. They, as exemplified by the judge in the case at bar, have attempted to curb abusive litigation while giving parties and counsel the latitude necessary to foster an atmosphere in which the law progresses due to the presentation of novel positions. I propose that we, as an appellate court, ease the collective mind of the bench and bar by applying the legislative language of OCGA § 9-15-14 (c) to Yost claims.

Decided January 13, 1988

Rehearing denied March 18, 1988

Michael L. Wetzel, for Ferguson.

James C. Watkins, Edward E. Carter, for City of Doraville.

Edward W. McCrimmon, for Riffe.

On Motion for Rehearing.

On motion for rehearing, counsel for the plaintiff argues that he should not be penalized for making “a good faith argument for an extension, modification, or reversal of the law,” since such advocacy is expressly authorized by Ethical Consideration 7-4 of the Code of Professional Responsibility adopted by the State Bar of Georgia. Interestingly, counsel omits any reference to the remaining language of this provision, which is as follows: “However, a lawyer is not justified in asserting a position in litigation that is frivolous.”

The damages authorized by OCGA § 9-15-14 and, to a lesser extent, those authorized by Yost v. Torok, supra, are intended not merely to punish or deter litigation abuses but also to recompense litigants who are forced to expend their resources in contending with claims, defenses, or other positions “with respect to which there exists] such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” Id. For the reasons stated in our original opinion, we are unable to conclude as a matter of law that the plaintiff’s claim in this case falls outside that category. The motion for rehearing is consequently denied.

       The term “lacked substantial justification” is defined by OCGA § 9-15-14 (b) to mean “substantially frivolous, substantially groundless, or substantially vexatious.”

       In a footnote to the foregoing language, the Supreme Court specified that “[p]unitive damages . . . are excluded as the tort itself is designed as a deterrent. [Cits.]” Id. at fn. 3.

       Presumably, this does not mean that where, as here, the underlying action is adjudicated adversely to the plaintiff by the trial judge on motion for summary judgment, the plaintiff thereby loses the right to a trial by jury on the defendant’s Yost claim.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    75419.
    AUGUSTA TENNIS CLUB, INC. v. LEGER.
    (367 SE2d 263)
   Beasley, Judge.

Augusta Tennis Club, Inc., defendant below, appeals the judgment entered against it after jury trial on plaintiff’s four-count complaint alleging trespass, invasion of privacy, malicious use or abuse of process, and failure to return a security deposit.

Augusta owned the complex in which Leger and his family rented a townhouse pursuant to a written one-year lease which expired on March 31, 1983. The rent was due on the first of each month. Leger fell behind in his rent in the fall of 1982, resulting in the filing on November 1, 1982 of a complaint seeking judgment for past due rent and a writ of possession. Leger answered and on December 9 he, his attorney, and Balangai, the president of Augusta, met and entered into an agreement whereby Leger executed notes for the past due rent as well as paid toward it. The attorney prepared a dismissal of the proceeding after the December meeting, but it was never filed. Thereafter, Leger again fell behind and on February 14, 1983, Augusta obtained a judgment and writ of possession based on the November pleadings. Althoügh court records show notice to Leger’s attorney, who had not withdrawn, the attorney testified that he had notified Leger that he was withdrawing and neither he nor Leger were present for the hearing.

Leger met with Balangai on February 22, 1983, and Balangai prepared a handwritten agreement between Augusta and Leger in which partial payment of the past due amount was acknowledged, leaving a total due of $367.76. It also stated that “this partial payment does not cancel the outstanding judgement [sic]. The judgement [sic] will remain in full force and effect until the balance of $367.76 is paid.”

The March rent became due on the 1st, making the total due $707.76. Leger paid $376 on March 2 and the remainder on March 25.

Leger acknowledges that the written lease expired at the end of March but contends that at one of his meetings with Balangai, they entered into a month-to-month tenancy at will. Balangai denied any such agreement, contending that Leger was told to vacate the premises by March 31, and that Leger told him that he had a place to go but could not move until later. Both agree that on April 11, Leger paid and Balangai accepted the April rent. Leger contended that this was part of the continuing tenancy at will, Balangai contended that Leger was to be out by May 1.

On April 29, Balangai sent a final notice for possession on May 1. The marshal posted a final notice of eviction and Leger was evicted on May 4 pursuant to the writ of possession. That precipitated this lawsuit.

1. The fourth enumeration deals with the trespass count, concerning which Augusta urges it was entitled to a directed verdict. The motion was limited to the issue of punitive damages and claimed lack of proof of actual damage to the furniture. The ground presented here, that the only claim available to plaintiff was for malicious use of process, was never presented to the trial court.

We cannot consider the question. “This is a court for the correction of errors of law committed by the trial court where proper exception is taken thereto, and one may not abandon the only question raised by his petition in the trial court, and for the first time in the brief of counsel in this court raise questions as to rulings not excepted to or not passed upon by the trial court. [Cits.]” Velkey v. Grimes, 214 Ga. 420, 421 (105 SE2d 224) (1958); Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297) (1980).

2. The fifth enumeration claims entitlement to a directed verdict on plaintiff’s count for invasion of privacy because plaintiff had waived any such right. Again, this ground is not reached as it was not presented to the trial court. Fowler, supra.

3. Enumeration 6 is not supported by citation of authority or argument and is deemed abandoned. Rule 15 (c) (2).

4. Enumerations 1, 2, and 3 deal with the court’s rulings as to the count for malicious use or abuse of process. Plaintiff pled malicious use but after the evidence was presented asked the court to conform the pleadings to the evidence, contending that he had proven malicious abuse of process. Augusta moved for directed verdict on the ground that only malicious use was available to plaintiff and that must fail since no termination of the dispossessory proceedings in plaintiff’s favor could be shown.

This case was tried in September after Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986) was decided in June. That case redefined the torts of malicious use and malicious abuse of civil process into the new tort of “abusive litigation,” to be used against any party who asserts a claim, defense, or other position with respect to which there exists such a complete absence of any justiciable issue of law or fact that it reasonably could not be believed that a court would accept the asserted claim, defense, or other position; or against a party who unnecessarily expands a proceeding, i.e., by abusive discovery, etc. “Lacking in substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious. Yost was applicable to this case. Ferguson v. Doraville, 186 Ga. App. 430, 432 (2) (a) (367 SE2d 551) (1988); see Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 795 (4) (359 SE2d 920) (1987).

It is undisputed that when the petition for back rent and writ of possession were filed, plaintiff Leger was behind in his rent. Whatever the landlord’s motives, this entitled it to possession of the premises. Perimeter Mall v. Retail Sense, 162 Ga. App. 465 (291 SE2d 392) (1982); Williams v. Housing Auth. of Columbus, 158 Ga. App. 734, 737 (282 SE2d 141) (1981).

From the date of the filing of the petition until the eviction of plaintiff on May 4 pursuant to the writ issued on February 14, plaintiff did not timely pay his rent. Whether he was considered a tenant at will, as he contends, or a tenant at sufferance, as Augusta contends, does not alter this fact. Thus, even if the payment of past due rent after the due date satisfied the money judgment, it did not resolve the issue of possession.

Under the old definitions of malicious abuse and malicious use of process, the use by a landlord of a writ of possession to obtain possession of his property was not an abuse of process, since the process was being used for the very purpose for which the law intended it. Crawford v. Theo, 112 Ga. App. 83, 87 (3) (143 SE2d 750) (1965). Nor was the writ which plaintiff claimed was used improperly sued out wholly without probable cause, nor did the underlying proceeding end in plaintiff’s favor, making malicious use of process inapplicable. Yost, supra (3) (a); Strickland v. Royal Indem. Co., 230 Ga. 425 (197 SE2d 347) (1973).

Decided March 9, 1988.

Percy J. Blount, for appellant.

Under both old torts, defendant was entitled to a directed verdict. Under the tort defined in Yost, considering what is set out above, plaintiff has no cause of action either. The trial court is directed to enter judgment for defendant on count 3.

Consideration of the alleged error as to jury instructions is thus unnecessary.

5. Finally, Augusta contends that the verdict on count 4 was contrary to the evidence, with regard to attorney fees only, so that this award should be stricken. Count 4 sought treble damages and attorney fees due to Augusta’s failure to return plaintiff’s security deposit of $400 pursuant to OCGA § 44-7-35 (c), which provides for recovery of “reasonable attorney fees.”

Although plaintiff sought attorney fees on all counts of his complaint, the jury awarded them only with regard to count 4. Plaintiff’s evidence on the attorney fees issue was not broken down by counts, the attorney testifying that he could not so partition them. He stated that he spent 34.25 hours in preparation and trial of the case, entitling him to $2,575 in fees. The jury awarded $2,500. This is for all but $75 of the fees which plaintiff acknowledges were incurred for complaint drafting, trial preparation, and three trial days on a four-count complaint. While defendant does not dispute that attorney fees are due, it does contest the amount.

In order to recover, the fees must be proven and must be shown to be reasonable. While another attorney testified that the total fees were reasonable, he did not testify as to any specific amount considered reasonable with regard to count 4. The proof was inadequate to show what portion of the fees was allocable to count 4. Eberhart v. Morris Brown College, 181 Ga. App. 516, 519 (3) (352 SE2d 832) (1987); see First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (4) (285 SE2d 203) (1981); Price v. Mitchell, 154 Ga. App. 523, 527 (6) (268 SE2d 743) (1980). The trial court is directed to strike the fees.

Judgment affirmed in part and reversed in part, with direction.

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

Ben Swain McElmurray, Jr., for appellee.


author: Sognier, Judge.

text:
    75798.
    PAPP CLINIC, P.A. v. CASH et al.
    (367 SE2d 271)
   Sognier, Judge.

Mary and Claudie Cash brought suit against the Papp Clinic, P.A. (Papp) to recover damages for injuries and loss of consortium arising from Ms. Cash’s fall on the premises of Papp’s medical offices. The trial court denied Papp’s motion for summary judgment but granted a certificate of immediate review, and we granted Papp’s application for interlocutory review.

Mary Cash (hereinafter appellee) alleged in her complaint that appellant had been negligent “in failing to attend an elderly and infirm patient; in leaving said patient in an examining room unattended; in failing to properly supervise the care of an aged, infirm woman; and in failing to install safety equipment for the protection of aged and infirm patients,” and that appellee’s injuries were solely and proximately caused by that negligence. The record reveals that Dr. G. Truett Jarrard, a doctor at appellant’s clinic, had been treating appellee because of a mild stroke she suffered in August 1985. As a result of the stroke, appellee had temporarily lost some strength on her right side, but had made a complete recovery and regained full strength when she visited the clinic approximately one month later for a follow-up appointment with Dr. Jarrard. Appellee was directed to an examining room by a nurse who, after asking if appellee required assistance with disrobing and being told she did not, left appellee in the examining room, unattended, awaiting the arrival of Dr. Jarrard. Appellee followed the nurse’s instructions, and climbed onto the examining table. After several minutes, appellee noticed some magazines which had been left in the room, presumably for the perusal of patients waiting for the doctor, and she stepped down from the examining table to get one. Appellee fell and was injured while attempting to climb back up on the examining table.

In support of its motion for summary judgment appellant proffered the affidavit of Dr. Jarrard, who swore that in his medical opinion, based on personal knowledge, appellee could not be considered infirm, and that there was nothing about appellee’s physical or medical condition which would render it inappropriate to leave her unattended or unsupervised, or which would require the installation of safety equipment for her protection. Dr. Jarrard further testified that there had been no prior incidents involving injuries allegedly arising from the use of the examining table in question, and that neither he nor any other person at the clinic either had been at the time of appellee’s fall, or was now, aware of anything about the examining table which would have made it dangerous or unfit for patient use.

Appellee presented no evidence in her affidavit in response to the motion to rebut Dr. Jarrard’s affidavit. We note that no objection was made to the trial court’s consideration of Dr. Jarrard’s affidavit, and thus we need not consider whether, being in essence an expert opinion affidavit, Dr. Jarrard’s affidavit might properly have been the subject of objection. See Bell v. Sellers, 248 Ga. 424, 425-426 (1) (283 SE2d 877) (1981). Further, appellee agreed with Dr. Jarrará in his assessment of her medical condition, having testified at her deposition that she was not infirm, but felt “like a perfect person” at the time of the incident in question and that she had not felt like she needed help. The record thus presents only one allegation not directly rebutted by Dr. Jarrard’s affidavit, and that was appellee’s statement in her affidavit that “[w]ere it not for the magazine being in the examination room and available for reading during the wait for Dr. Jarrard, I would not have climbed down from the examination table.”

The evidence of record does not indicate the proximate cause of appellee’s fall. However, appellee does not allege that she tripped over the magazines, nor does the evidence reveal that appellee was distracted by the magazines from exercising due care for her own safety when she attempted to step up onto the table she had gotten up onto without difficulty only moments before. See Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 855-856 (1) (360 SE2d 415) (1987). The evidence thus reveals that the magazines themselves were not the proximate cause of appellee’s fall. See generally Western Stone & Metal Corp. v. Jones, 180 Ga. App. 79, 80 (348 SE2d 478) (1986).

Moreover, appellee has not demonstrated that any injury was foreseeable from the mere presence of magazines in the examining room. “Encompassed within the concept of negligence is an element of foreseeability ([cit.]), which need not be as to the specific injury suffered but as to some injury. [Cit.] However, the concept does not include foreseeability of remote or unusual events. [Cit.]” Levangie v. Dunn, 182 Ga. App. 439, 440 (1) (356 SE2d 88) (1987). Thus, we cannot agree with appellee that the record presents an issue of fact concerning any act or omission of appellant which would constitute negligence.

Although as a general proposition, issues of negligence are not susceptible of summary adjudication either for or against the claimant, where the facts show by plain, palpable and undisputed evidence that the defendant was not at fault, such a case may be resolved by summary judgment as a matter of law. Soto v. Roswell Townhomes, 183 Ga. App. 286, 288 (358 SE2d 670) (1987). See also McAuley v. Wills, 251 Ga. 3, 7 (303 SE2d 258) (1983). After reviewing the record, we find that this case is one which is to be included among such cases as may be resolved by summary adjudication. Accordingly, the trial court erred in denying appellant’s motion for summary judgment. See generally Taylor v. McDonald, 183 Ga. App. 320, 321-322 (359 SE2d 1) (1987).

Decided March 11, 1988

Rehearing denied March 18, 1988.

Thomas E. Greer, for appellant.

Steven E. Fanning, for appellees.

Judgment reversed.

Deen, P. J., and Carley, J., concur.


author: Deen, Presiding Judge.

text:
    74305.
    HOSCH v. BROWN.
    (367 SE2d 888)
    Decided March 18, 1988.

      Michael C. Ford, for appellant.

      Bernard Taylor, for appellee.
   Deen, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Hosch v. Brown 258 Ga. 14 (364 SE2d 833) (1988), our decision in Hosch v. Brown, 182 Ga. App. XXIX (1987), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.


author: Beasley, Judge. Sognier, Judge,

text:
    75201.
    BYRD v. THE STATE.
    (367 SE2d 300)
   Beasley, Judge.

Appellant was convicted of theft by taking. OCGA § 16-8-2.

1. The first question is whether the court erred by denying the motion for a directed verdict of acquittal because the evidence does not establish the offense.

Stated briefly, the evidence showed that Graddy contracted with appellant to build a laundry room in Graddy’s basement and paid $800 of the contract price at the time the contract was signed. When appellant did not commence the work pursuant to the contract, Graddy terminated the contract and appellant agreed to refund the initial amount paid less $25 for materials purchased. Appellant did not repay the money.

Byrd argues that the fact he did not commence the work within two days is not a sufficient basis on which to base a criminal conviction. However, appellant’s conviction was based instead on the theory that he was given $800 under an agreement to make a specified application of the funds, and knowingly converted them to his own use in violation of the agreement. This would constitute theft by conversion. OCGA § 16-8-4.

Appellant’s argument that the indictment charged the wrong offense, that is, theft by taking instead of theft by deception, fails. The phrase “regardless of the manner in which the property is taken or appropriated,” found in the theft-by-taking statute, “renders the section sufficiently broad to encompass thefts or larcenies perpetrated by deception . . . and theft by conversion . . .” Jones v. State, 137 Ga. App. 612, 613 (4) (224 SE2d 473) (1976); Ray v. State, 165 Ga. App. 89, 91 (1) (299 SE2d 584) (1983). See also the recent case of Gordon v. State, 181 Ga. App. 391, 392 (1) (352 SE2d 582) (1986), aff'd in part and rev’d in part, Gordon v. State, 257 Ga. 335 (359 SE2d 634) (1987).

The evidence would be sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), except for a fatal problem discussed in Division 2.

2. Appellant alleges error in allowing evidence concerning a mediation proceeding undertaken at the instance of the state court, criminal division, at which appellant signed an agreement to repay Graddy $800, plus interest.

We first point out that the evidence complained about related to mediation and not arbitration, although the parties sometimes erroneously referred to the process they were speaking of as “arbitration.” There are vast differences between the two, but they need not be described at length here. For an arbitration procedure, see OCGA Title 9, Chapter 9. Mediation is not statutorily provided for. A fundamental difference is that in mediation, the parties to the dispute work towards achieving an agreement through facilitation by a mediator, whereas in arbitration, the third party as arbitrator can render a decision to resolve the dispute. See, e.g., Rice, “Mediation & Arbitration as a Civil Alternative to the Criminal Justice System — An Overview and Legal Analysis,” 29 American Univ. Law Review 17, 21 (1979).

As established by the record in this case, the parties were directed to the Neighborhood Justice Center of Atlanta, Inc., by the state court before which the criminal charge was first pending. The purpose was to facilitate a civil settlement for the dispute by way of the mediation process provided by that agency. The criminal charge, brought by warrant, remained pending, to await the outcome of the settlement efforts. If they were successful, the state court would entertain dismissal of the criminal charges. If not, the latter would proceed. After about eight months elapsed without appellant’s compliance with the mediated agreement, he was indicted and bound over to superior court for trial.

By allowing this alternative dispute resolution effort to be evidenced in the subsequent criminal trial, the trial court’s ruling eliminates its usefulness. For no criminal defendant will agree to “work things out” and compromise his position if he knows that any inference of responsibility arising from what he says and does in the mediation process will be admissible as an admission of guilt in the criminal proceeding which will eventualize if mediation fails.

As succinctly stated by Rice with respect to confidentiality, supra at 75 and 80, “The policy is to encourage settlements, but admission of statements made during negotiations tends to defeat that objective . . . Unless [the programs] can assure confidentiality, the programs will be unable to create the atmosphere of openness that is necessary for successful dispute resolution.” Directly to the point, and backed up through demonstration, is Friedman’s statement in the article “Protection of Confidentiality in the Mediation of Minor Disputes,” 11 Capital Univ. Law Review 182, 191: “The integrity of mediation programs is in jeopardy, however, without confidentiality for the proceedings.” See Fed. Rules Evid. 408, 28 USCA; “Protecting Confidentiality in Mediation,” 98 Harv. L. Rev. 441 (1984).

The Federal Rule of Criminal Procedure 11 (e) (6), 18 USCA, protects statements and conduct made in negotiations and plea bargains in criminal cases except in very limited circumstances, as does the 1987 Texas Alternative Dispute Resolution Procedures Act, Sec. 154.073.

The policy reasons for excluding offers of compromise from later court proceedings are synthesized by Friedman, supra at 205, and are particularly applicable here: “(1) offers of compromise are privileged because public policy encourages the settlement of disputes without trial; (2) such offers are irrelevant because they are not intended as admissions; and (3) the negotiation process establishes express or implied agreements that admissions made during negotiations will be excluded and courts will enforce those agreements.” The concept of pretrial diversion programs is part of the public policy of the state. See OCGA § 42-8-80.

In the instant case, as is standard in these referrals, defendant’s mediation-related statements and actions were not made with any warning of rights against self-incrimination, and yet they were prompted by court action itself creating a close procedural tie. A serious Fifth and Fourteenth Amendments Miranda problem is created by the admission of the objected-to evidence. Cf. United States v. Gullo, 672 FSupp. 99, 103 (W.D.N.Y. 1987). This differs from the situation in Williams v. State, 178 Ga. App. 216 (1) (342 SE2d 703) (1986), in which a privately-negotiated agreement, not instigated at court direction during criminal proceedings, was ruled admissible.

Just as a withdrawn plea of guilty “shall not be admissible as evidence against [defendant] at his trial,” OCGA § 17-7-93 (b), so too must be the words and actions which defendant undertakes in an effort to comply with the court’s direction that mediation be pursued to resolve the pending criminal matter.

A new trial is required because we cannot conclude that the inadmissible evidence did not contribute to reaching the verdict. The nature of the evidence and its relation to the charge and the defense render it not harmless. This is so because incriminatory statements tend to establish guilt, Hunter v. State, 180 Ga. App. 501 (349 SE2d 773) (1986), and this is not a case where “proof of the same facts by legally admissible evidence renders harmless the admission of inadmissible evidence. [Cit.]” Riggins v. State, 179 Ga. App. 179, 180 (2) (345 SE2d 897) (1986). Nor can we say that it is “highly probable” that the erroneous admission of this evidence did not contribute to the verdict. Cf. Little v. State, 165 Ga. App. 389, 392 (3) (300 SE2d 540) (1983).

3. Enumerations 3 through 6 relate to incidents which are unlikely to recur at retrial and thus need not be ruled on. Piercy v. State, 92 Ga. App. 599, 601 (2) (89 SE2d 554) (1955).

4. Appellant’s next six enumerations of error relate to allegedly erroneous charges by the court. Since they may be repeated in the new trial, we consider them. OCGA § 5-6-34 (c).

a. Appellant attacks the court’s charge on the meaning and effect of a plea of not guilty. The court charged that such a plea is not evidence, and that by entering such a plea, defendant placed the burden of proof on the State. The court also charged that defendant entered the case with a presumption of innocence, “giving him a slight weight in his favor.” The quoted portion of the charge is claimed to be error.

If the court had stopped at that point, its charge might be construed as error. However, it explained that the charge meant that if the jury voted at the beginning of trial there would be only one verdict — not guilty — because there is a presumption of innocence in appellant’s favor, and as the evidence is presented, it becomes a question for the jury to determine whether the evidence is sufficient to overcome the presumption. Shortly thereafter, the court also charged the jury again on the presumption of innocence, stating that the presumption remains with appellant throughout the trial until and unless the State produces evidence sufficient to satisfy the jurors’ minds beyond a reasonable doubt of appellant’s guilt. This was a correct statement of the law. Reeves v. State, 241 Ga. 44, 48 (4) (243 SE2d 24) (1978).

Thus, even if the few words objected to might be erroneous, the charge as a whole must be considered harmless and nonprejudicial. City Dodge v. Gardner, 130 Ga. App. 502, 505 (2) (203 SE2d 729) (1973) . See also Spencer v. State, 231 Ga. 705, 707 (203 SE2d 856) (1974) .

b. Next at appellant’s request we review the court’s charge on conflicting testimony of witnesses and impeachment of witnesses. They were given substantially in the language found in Volume 2, Suggested Pattern Jury Instructions, Criminal Cases, at pages 12, 37, and 38.

Contrary to appellant’s assertion, the court did not instruct on perjury by witnesses. Rather, in its charge on conflicting testimony, the court stated it was the jury’s duty to reconcile conflicting evidence “so as to make all the witnesses speak the truth and perjury be imputed to none of them.” The pattern instructions provide that it is the duty of the jury to resolve conflicts “without believing that any witness made a false statement.” Id. at 12. Since a witness under oath who knowingly and wilfully makes a false statement in a judicial proceeding commits the offense of perjury, OCGA § 16-10-70 (a), the phrases “so perjury be imputed to none of them” and “without believing that any witness made a false statement” have the same meaning. Thus, there was no error as respects conflicting testimony.

Appellant’s argument that it was error to charge on impeachment of witnesses, because no witness was impeached, is without merit. The court stated that if any effort had been made to impeach a witness it was for the jury to determine if the effort had been successful. Thus, the charge was qualified to apply only if an effort had been made to impeach a witness.

Further, assuming impeachment was not in issue, an erroneous charge touching on a matter not in issue under the evidence, unless prejudicial or harmful as revealed by the entire record, does not require or demand reversal. Davis v. State, 167 Ga. App. 701, 702 (1) (307 SE2d 272) (1983). We find nothing prejudicial or harmful in this charge when taken in context with the charge as a whole on the subjects of conflicting testimony and credibility of witnesses.

c. We find no error in the court’s charge on reasonable doubt. Appellant again has taken one statement out of the entire charge on reasonable doubt, and the charge as a whole was correct. Spencer, supra.

d. Appellant alleges error in the court’s explanation to the jury of appellant’s theory as to why he was not guilty, because it was a misstatement of his contentions. Once again, appellant has taken a part of one sentence of the court’s charge to support his argument that the court misstated his contentions. When read as a whole, the charge was a correct summary of appellant’s testimony as to why he was not guilty. The enumeration is not supported by the transcript, and this court cannot consider factual representations in a brief which are not supported by the transcript. McCutchen v. State, 177 Ga. App. 719, 722 (3) (341 SE2d 260) (1986).

e. Appellant’s complaint as to the charge on theft by taking is based on his contention that he was improperly charged with theft by taking, rather than theft by deception or theft by conversion. Division 1 effectively disposes of this enumeration.

5. Lastly, we cannot agree that it was error to send the indictment out with the jury, including the names of the grand jurors who returned the indictment. Appellant cites no authority in support of this contention. It has always been the practice in this State to permit the jury to have in their room the indictment in a criminal case. Salem v. State, 228 Ga. 186, 188 (5) (184 SE2d 650) (1971); Chandler v. State, 143 Ga. App. 608, 610 (6) (239 SE2d 158) (1977). The names of the grand jurors are a part of the indictment. Although the Supreme Court has pointed out in Salem the advisability of masking or concealing extraneous or prejudicial matter contained in an indictment, we find nothing prejudicial, per se, in not covering the names of the grand jurors. A new trial without the inadmissible evidence must be had.

Judgment reversed.

Birdsong, C. J., Deen, P. J, Carley, Pope, and Benham, JJ., concur. McMurray, P. J., Banke, P. J., and, Sognier, J., dissent.

Sognier, Judge,

dissenting.

I respectfully dissent. “Any statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of the crime, is admissible against him upon his trial for committing it.” Hixon v. State, 130 Ga. 479, 482 (2) (61 SE 14) (1908); Moon v. State, 154 Ga. App. 312, 315-316 (5) (268 SE2d 366) (1980); Conner v. State, 160 Ga. App. 202, 203 (4) (286 SE2d 441) (1981); Parker v. State, 181 Ga. App. 590, 591 (2) (353 SE2d 83) (1987); Bridges v. State, 246 Ga. 323, 324 (2) (271 SE2d 471) (1980).

This court decides cases based on Georgia law, not on the Federal Rules of Evidence or law review articles expressing the author’s personal opinion on specific subjects. It is only when there is no authority in Georgia on a given issue that we look to foreign jurisdictions or possibly legal encyclopedias to resolve the issue. As seen from the cases cited above, there is ample authority in Georgia to resolve the issue presented.

Decided March 18, 1988.

Glenville Haldi, for appellant.

Lewis R. Slaton, District Attorney, Harvey W. Moskowitz, Assistant District Attorney, for appellee.

United States v. Gullo, 672 FSupp. 99, 103, supra, does not support the statement in the majority that a serious Fifth and Fourteenth Amendments Miranda problem is created by admission of the objected-to evidence. On the contrary, Gullo held specifically that the introduction into evidence of Gullo’s statements made during arbitration did not violate his constitutional rights under the Fifth and Fourteenth Amendments, and did not render his statements involuntary. Id. The basis of the holding in Gullo that evidence from the arbitration proceeding was not admissible was the fact that a New York statute specifically provided that statements made during arbitration would be confidential, and could not be used against a person in subsequent legal proceedings. The New York statute obviously has no application here.

The mediation proceedings in this case occurred while appellant was under criminal charges, and his conduct in signing a mediation agreement acknowledging his liability is conduct indicating a consciousness of guilt. Hence, under the rule enunciated repeatedly in the cases cited above, the evidence was admissible as bearing on appellant’s guilt or innocence. Accordingly, I would affirm appellant’s conviction.

I am authorized to state that Presiding Judge McMurray and Presiding Judge Banke join in this dissent.

       See also Barrett, “Arbitration as a Strategic Alternative,” 33 The Atlanta Lawyer 15 (Winter 1988).


author: Sognier, Judge. Beasley, Judge,

text:
    75239.
    CITY OF WAYCROSS v. REID RENTAL COMPANY, INC. et al.
    (367 SE2d 305)
   Sognier, Judge.

Reid Rental Company, Inc. and others sought a declaration of the validity of an ordinance passed by the City of Waycross by means of which Reid Rental and the other property owners were assessed for various street improvements. The trial court denied the motion to dismiss for failure to state a claim filed by the City. This court granted the interlocutory appeal filed by the City.

We affirm the trial court’s denial of the City’s motion to dismiss. In support of its motion, the City asserted that the declaratory relief sought by appellees was inappropriate because the pleadings presented no justiciable controversy to authorize the trial court to declare the rights of the parties, and that the pleadings revealed appellees’ rights had already accrued and thus no risk of taking future action jeopardizing their interests was involved so as to justify declaratory action by the trial court. The remaining basis for the City’s motion to dismiss was its contention that appellees were “es-topped by the lapse of time and laches” from obtaining the relief they sought.

Addressing first the propriety of the declaratory nature of the relief sought, a review of the pleadings in the record reveals appellees asserted that in 1980, the City passed an ordinance for street improvements, assessing appellees for one third of the cost without properly notifying appellees pursuant to § 242 of the Code of the City of Waycross, derived from Ga. L. 1925, p. 1557. After contacting appellees about the assessment, upon appellees’ failure to pay the assessment the City filed an execution which remains of record as a lien against the titles of appellees’ respective properties. Appellees further asserted in their complaint that their properties derived no benefit from the street improvements. In response, the City admitted that it filed the execution as asserted by appellees, but contended the assessment was proper under the procedures adopted in accordance with Ga. L. 1905, p. 1220, as amended by Ga. L. 1913, p. 1234, and that the 1925 Act provision cited by appellees constituted an additional method for making street improvements which the City was not obligated to follow.

Construing the pleadings in order to do substantial justice and serve the best interests of the pleader, OCGA § 9-11-8 (f); Loftin v. Brown, 179 Ga. App. 337, 339 (1) (346 SE2d 114) (1986), an actual, justiciable controversy is presented here because of the variance between the provisions of the 1925 enactments and the earlier 1905 and 1913 enactments. The validity of the City’s assessment and the enforceability of the execution, filed against appellees’ property and actively clouding the title to that property, rests upon a determination whether or not the 1925 provision was in direct conflict with the earlier street improvement provisions so as to require application of the later enactment. Ga. L. 1925, § 16, p. 1569. The execution filed by the City as a result of appellees’ nonpayment of the challenged assessment is a viable pending claim which presently clouds the title to appellees’ properties. This case is thus distinguishable from other declaratory judgment opinions such as Gordon v. Southeastern Fidelity Ins. Co., 182 Ga. App. 790 (357 SE2d .146) (1987), in which the relief sought by the petitioner by means of a declaration of rights was not based on any evidence or contention that the petitioner currently had any liability or rights accrued. While we note that this appeal would present a more clear-cut case for declaratory relief if the marshal of the City of Waycross were levying instanter upon appellees’ property, we agree with the trial court that the cloud on the title that the execution represents and the unresolved situation in which appellees are placed by not knowing when or if the City will levy upon the execution of record, constitute matters of “palpable insecurity” as to the rights and status of appellees’ use and enjoyment of their property so as to authorize appellees’ use of the declaratory relief provisions in the case sub judice. See Total Vending Svc. v. Gwinnett County, 153 Ga. App. 109, 110-111 (264 SE2d 574) (1980); see generally Rinker v. Sparks, 109 Ga. App. 810, 812 (2) (137 SE2d 514) (1964).

Although the dissent argues that appellees have forfeited adjudication of their claim by failing to exhaust all administrative remedies before contesting the City’s assessment in the trial court, the administrative remedies set forth in the legislative acts cited by the dissent all presuppose that proper notice was given, thereby affording the interested parties an opportunity to protect their rights by making their objections regarding the assessment decision, the amount assessed, the apportionment of the assessment, etc. Viewing the pleadings to see if any set of facts would support appellees’ claim, see generally Jones v. Phillips, 183 Ga. App. 11-12 (357 SE2d 853) (1987), if the City deprived appellees of notice of the assessment, as alleged, it also deprived them of their opportunity to contest the assessment under the procedures set forth in the applicable enactments. “The mere existence of an unexhausted administrative remedy does not, standing alone, afford a defendant an absolute defense to the institution of a legal action.” Hunnicutt v. Ga. Power Co., 168 Ga. App. 525, 526 (1) (309 SE2d 862) (1983). As has been noted in equity cases, the requirement of exhaustion of administrative remedies “does not apply where the defect urged by the complaining party goes to the jurisdiction or power of the agency to issue the order. [Cits.]” Cravey v. Southeastern Underwriters, 214 Ga. 450, 457 (3) (105 SE2d 497) (1958). Appellees’ complaint challenges the power of the City to assess their property without notice under § 242 of the 1925 Act, and in the absence of an administrative remedy under the Code of the City of Waycross to provide sufficient protection for the rights of appellees under the circumstances as alleged, any failure by appellees’ to pursue other inapplicable remedies cannot be deemed fatal to appellees’ petition for declaratory judgment.

Finally, in regard to the City’s remaining contention that the trial court erred by denying its motion to dismiss because appellees are “estopped by the lapse of time and laches” from obtaining the relief they seek, we find no error in the trial court’s ruling. Laches is an equitable doctrine not applicable in a petition for declaratory judgment, which is an action at law. See Hobgood v. Black, 144 Ga. App. 448, 450 (241 SE2d 60) (1978). Although appellees sought a temporary restraining order in this case, a petition for declaratory judgment “is not converted into an equitable action simply because a temporary restraining order is [requested or] granted in order to maintain the status quo pending adjudication.” Id. Accordingly, the trial court’s denial of the City’s motion to dismiss appellees’ complaint for failure to state a cause of action is affirmed.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Pope, and Benham, JJ., concur. Carley and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent, in that the city was entitled to dismissal.

The petition sought the declaration that certain special assessments levied against the property were illegal, void, and unenforceable.

The action stems from an ordinance adopted by the Board of Commissioners of Waycross on December 2, 1980 providing for the grading, draining, and paving (with curbs and gutters) portions of certain streets in the city. The city proposed to assess one-third of the costs of such improvements against the real estate abutting each side of the street improved according to its footage on the portion of the street improved. Plaintiffs were assessed for paving in the original amount of $45,450.42.

In their initial petition filed on February 6, 1987 plaintiffs alleged that the city failed to give them notice of the special assessment, in violation of the city code and the due process clauses of the federal and state constitutions; that the imposed assessment grossly exceeded any benefit to the property owned by plaintiffs; that the assessment constituted a taking of property for public use without compensation and a deprivation of their property without due process of law, since the property was not benefited by the improvements to an extent substantially equal to the amount of the assessment; that none of their property was or will be benefited by the alleged improvements for which the assessment was levied, and any conclusion that the property or any portion of it is or ever will be specially benefited by the improvement is merely speculative; and that before the levy of the assessment against them, the paving ordinance was not published as required by the city code so as to give them notice that the improvement was to be paid for partly by special assessment against their real property. Plaintiffs claimed that therefore the special assessments were illegal, void, and unenforceable, and prayed for a declaration of the parties’ legal rights, suit costs, and a temporary restraining order to maintain the status quo so as to prevent the city from suing for recovery of any of the assessment pending adjudication of the action.

Following the filing of the city’s motion to dismiss, plaintiffs amended their petition to assert that had the city complied with the notice requirements of the city code that plaintiffs would have had the right to vote down the street improvements as to their property; that on July 8, 1981 the city sent Reid Rental’s president a letter stating that the city commissioners intended to proceed with their normal method of collection with regard to the paving assessments imposed against plaintiffs’ property; and that on August 4, 1981 the city filed an execution against the property. After the court’s denial of the city’s motion, plaintiffs filed another amendment to the action adding a second count to remove cloud from title caused by the filed executions.

The city argues on appeal as it did below that plaintiffs’ petition is properly dismissed because 1) the plaintiffs stood by and saw the improvements completed to their benefit without objecting or availing themselves of their legal or equitable rights until six years after the ordinance was adopted and five years after the paving assessments were made, estopping them by lapse of time and inaction; 2) the trial court does not have the authority to determine whether an ordinance is abstractly valid or invalid; 3) the complaint fails to state a claim in that the allegations affirmatively show that any of plaintiffs’ rights have already accrued and they do not have the risk of taking some future action incident to their rights which, without direction, would jeopardize their interests.

Without reaching the city’s contentions as to why plaintiffs’ petition is defective, the suit suffers from a more basic infirmity. There is no evidence whatsoever that plaintiffs exhausted or even attempted to utilize any administrative remedy for contesting the assessment to the city. See Ga. Laws 1905, p. 1220 et seq., Ga. Laws 1913, p. 1234 et seq., Ga. Laws 1925, p. 1557 et seq. This failure is fatal to the petition for declaratory judgment. See Ledford v. Dept. of Transp., 253 Ga. 717 (324 SE2d 470) (1985); George v. Dept. of Natural Resources, 250 Ga. 491 (299 SE2d 556) (1983).

Furthermore, “[t]he record does not show the existence of any justiciable controversy which would have authorized the trial court to declare the rights of the parties.” Gordon v. Southeastern Fidelity Ins. Co., 182 Ga. App. 790 (357 SE2d 146) (1987). Plaintiffs are not faced with taking any future undirected action incident to their rights which could jeopardize their interests. “ ‘Absent an actual controversy involving palpable insecurity, a court is without power to act by way of declaratory judgment. [Cit.]’ [Cit.]” Id. See also Crowell v. City of Eastman, 182 Ga. App. 489, 490 (1) (356 SE2d 104) (1987).

Decided March 18, 1988.

Wilson G. Pedrick, for appellant.

Terry A. Dillard, Joseph E. East, for appellees.