text:
    A00A0540.
    A00A0541.
    A00A0542.
    RESULTS ORIENTED, INC. v. CRAWFORD. CAVALIER HOMES OF ALABAMA, INC. v. CRAWFORD. GREEN TREE FINANCIAL SERVICING CORPORATION v. CRAWFORD.
    (538 SE2d 73)
   Andrews, Presiding Judge.

The interlocutory appeals of Results Oriented, Inc. d/b/a Assured Housing (Assured) (mobile home retailer), Cavalier Homes of Alabama, Inc. (Cavalier) (mobile home manufacturer), and Green Tree Financial Servicing Corporation (Green Tree) (lender) were granted to consider whether, as held by the trial court in denying appellants’ motions to compel arbitration, agreements to arbitrate contained in documents effecting the sale and financing of a mobile home were unconscionable and whether the Magnuson-Moss Warranty Act, 15 USC § 2301 et seq., precludes arbitration of warranty claims.

In opposition to the motions to compel arbitration, Ray Marlin Crawford submitted his affidavit which stated that he and his wife began looking at new mobile homes in the summer of 1997. They visited Assured’s lot in Villa Rica and looked at different mobile homes, some fully set up and some not. On their second visit to the lot, Mr. Crawford advised one of the Assured representatives that he could not pay more than $500 per month. It was agreed that Assured would give Crawford $11,750 on trade-in of his old mobile home (fairly valued at $2,000) and charge more for the home so that Crawford could get more favorable financing terms and payments of $500. In response, Crawford “took some more time to think about this.” The Crawfords returned to the lot again and told Don Gilbert, another Assured representative, they were ready to buy the Cavalier mobile home which they had toured on the lot. That home had been manufactured in Alabama.

Crawford described the signing of documents as follows:

[Gilbert] called us into an office to sign paperwork and had a stack of documents approximately 1 inch thick. I kind of joked “Do I have to sign all that?” Mr. Gilbert said, “Oh, its [sic] just standard documents we have in the sale of all mobile homes.” Mr. Gilbert never mentioned to me any limitations or exclusions of warranties. He did not tell me the documents required that I waive a jury trial or submit any dispute with any party to mandatory binding arbitration at my expense before a retired judge or practicing attorney in the State of Alabama. I certainly would not have agreed to waiving my legal rights had I known that such was in the documents. Mr. Gilbert placed the documents on a desk and flipped through them indicating by pointing where I was to sign or initial. I have nor [sic] recollection of the number of documents that I signed. I signed or initialed where I was told by Mr. Gilbert. While I can read, I am not a sophisticated business man and even today, after having many hours to pore over the documents, I do not understand all the language in them. I do not know that I ever received copies of the documents I signed because I did hot have a copy of the “acknowledgment and agreement” form that was sent to my attorney by Mr. Lowe from Cavalier in my paperwork in my possession where we kept all the documents given to us.

Among the documents signed by Crawford were the contract of sale between Assured and Crawford, a Manufactured Home Retail Installment Contract and Security Agreement (Installment Contract) signed by Crawford and assigned by Assured to Green Tree, and an Acknowledgment and Agreement signed by Crawford as well as representatives of Assured and Green Tree. Paragraph 14 of the Installment Contract, pursuant to which Green Tree seeks to compel arbitration, states:

14. ARBITRATION: All disputes, claims or controversies arising from or relating to this Contract or the parties thereto shall be resolved by binding arbitration by one arbitrator selected by you [seller or assignee after assignment] with my [buyer] consent. This agreement is made pursuant to a transaction in interstate commerce and shall be governed by the Federal Arbitration Act at 9 U.S.C. Section 1. Judgment upon the award rendered may be entered in any court having jurisdiction. The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right to litigate disputes in court, but that they prefer to resolve their disputes through arbitration, except as provided herein. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION BY YOU (AS PROVIDED HEREIN). The parties agree and understand that all disputes arising under case law, statutory law and all other laws including, but not limited to, all contract, tort and property disputes will be subject to binding arbitration in accord with this Contract. The parties agree that the arbitrator shall have all powers provided by law, the Contract and the agreement of the parties. These powers shall include all legal and equitable remedies including, but not limited to, money damages, declaratory relief and injunctive relief. Notwithstanding anything hereunto the contrary, you [Green Tree] retain an option to use judicial (filing a lawsuit) or non-judicial relief to enforce a security agreement relating to the Manufactured Home secured in a transaction underlying this arbitration agreement, to enforce the monetary obligation secured by the Manufactured Home or to foreclose on the Manufactured Home. The institution and maintenance of a lawsuit to foreclose upon any collateral, to obtain a monetary judgment or to enforce the security agreement shall not constitute a waiver of the right of any party to compel arbitration regarding any other dispute or remedy subject to arbitration in this Contract, including the filing of a counterclaim in a suit brought by you pursuant to this provision.

The portions of the clause which are capitalized are also in bold print in the Contract. Paragraph 14 is the last numbered paragraph in the Installment Contract, and a portion of it is printed on the same page as Crawford’s signature. Immediately above his signature, in large bold type, is “NOTICE TO BUYER: 1. DO NOT SIGN THIS CONTRACT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACES. 2. YOU ARE ENTITLED TO A COPY OF THIS CONTRACT YOU SIGN. KEEP IT TO PROTECT YOUR LEGAL RIGHTS.”

Sections (d), (e), and (f) of Paragraph 1 of the Acknowledgment and Agreement, signed by Crawford, Assured, and Cavalier, state that Assured is not an agent of Cavalier but dealt with Crawford as an independent party; that Crawford has received a packet of materials, including the Manufacturer’s Warranty; and that “[a]ll warranty claims against MANUFACTURER . . . are to be handled as provided in the MANUFACTURER’S Warranty which PURCHASER has read and understands or will read and be familiar with.” Paragraph 10, titled “ARBITRATION,” provides that:

All parties acknowledge and agree that this Agreement and the performance of the transactions contemplated hereby evidence transactions which involve a substantial nexus with interstate commerce. Accordingly, any dispute, controversy or claim of any kind or nature which has arisen or may arise between the parties, their successors, assigns, heirs, representatives, parent companies, divisions, subsidiaries, affiliates, officers, directors, employees, agents, and contractors (including any dispute, controversy or claim relating to the validity of this arbitration clause), whether arising out of past, present or future dealings between the parties, their successors, assigns, heirs, representatives, parent companies, divisions, subsidiaries, affiliates, officers, directors, employees, agents and contractors shall be governed by the Federal Arbitration Act and shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Such arbitration proceedings shall be held at the principal place of business of the Manufacturer or at such location as shall be designated by Manufacturer, and shall be heard by an arbitrator who is either a (i) retired judge or (ii) practicing attorney who has conducted more than three (3) arbitrations during the preceding five (5) years. Without limiting the generality of the foregoing, it is the intention of the parties to resolve by binding arbitration, as provided herein, all past, present, and future disputes, whether in tort, contract or otherwise, concerning or related to (i) the manufactured home, its sale, warranty, set up, repair, installation, manufacture, financing, insurance, [and] its condition, (ii) the validity of this Agreement, and (iii) any other dealings, business or otherwise, between the parties, their successors, assigns, [and] heirs. . . . The parties understand and agree that the arbitrator shall have all powers provided by law, and may award any legal or equitable relief, including, without limitation, money damages, declaratory relief and injunctive relief; provided, however, that the arbitrator will have no power to award punitive damages or other damages not measured by the prevailing party’s actual damages. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY CONTROVERSY BETWEEN THE PARTIES, THEIR SUCCESSORS, ASSIGNS, HEIRS, REPRESENTATIVES, PARENT COMPANIES, DIVISIONS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND CONTRACTORS.

Immediately below this paragraph appeared “I HAVE READ AND UNDERSTAND SECTION 10 WHICH RELATES TO ARBITRATION AND WAIVER OF JURY TRIAL.” In the space provided for “PURCHASER’S INITIALS,” Crawford initialed.

The Acknowledgment and Agreement, in addition to invoking the Federal Arbitration Act (FAA), 9 USC §§ 1-16, provides that “[t]his Agreement shall be governed by the laws of the State of Alabama.”

The trial court determined that the two arbitration clauses were unconscionable, using the standards set out in NEC Technologies v. Nelson, 267 Ga. 390 (478 SE2d 769) (1996), and that arbitration was precluded by the Magnuson-Moss Warranty Act as to all three defendants.

Case No. A00A0542

1. We consider first the appeal of Green Tree. Green Tree urges in its first enumeration, and we agree, that the trial court committed legal error by not following substantial precedent holding that arbitration clauses in consumer contracts are enforceable under the FAA and further in refusing to determine whether the validity of the arbitration clause itself was required to be arbitrated.

(a) The FAA, according to the United States Supreme Court, creates a body of federal substantive law and preempts state laws that undermine enforcement of private arbitration agreements. Southland Corp. v. Keating, 465 U. S. 1, 16 (104 SC 852, 79 LE2d 1) (1984).

“[T]o the extent that (a state law) stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” it will be preempted by the FAA. (Citation and punctuation omitted.) Volt Information Sciences v. Bd. of Trustees &c., 489 U. S. 468, 477 (109 SC 1248, 103 LE2d 488) (1989).

Simmons Co. v. Deutsche Financial &c. Corp., 243 Ga. App. 85, 88 (1) (532 SE2d 436) (2000).

In the Installment Contract, the FAA is specifically relied upon, and there is no choice of law provision calling into question any conflict with state law, such as those contained in Volt, supra, and North Augusta Assoc. v. 1815 Exchange, 220 Ga. App. 790, 791 (1) (469 SE2d 759) (1996). Also, even when there is a choice of law provision, if the intent of the parties indicates that arbitration would be governed by the FAA, this Court will enforce the intentions of the parties. Primerica Financial Svcs. v. Wise, 217 Ga. App. 36, 37 (1) (456 SE2d 631) (1995).

Georgia has also enacted an Arbitration Act, OCGA § 9-9-1 et seq., evidencing the legislature’s conclusion that arbitration is not in violation of the public policy of this State and, therefore, cannot be said, per se, to be unconscionable. “What the Legislature allows cannot be contrary to public policy. [Cit.]” NEC Technologies, supra at 394 (3). See also W. J. Cooney, P.C. v. Rowland, 240 Ga. App. 703, 704 (524 SE2d 730) (1999).

In the case of Green Tree and Crawford, the Installment Contract without question invokes both the substantive law and procedure of the FAA. There was no argument below that the transaction did not involve interstate commerce nor that the FAA would not apply pursuant to the Installment Contract, only that there was unconscionability, which is considered further, infra.

(b) The trial court’s sole allusion to the issue of which forum, court or arbitrator, should decide if the Installment Contract and the Acknowledgment and Agreement provided that the threshold issue of arbitrability be arbitrated was the following footnote:

The Court is unpersuaded by the notion that the arbitration provision itself, allegedly requiring that its very validity, when challenged, must be arbitrated as if it were somehow self-validating, can control this issue. See, Allstar Homes, Inc. v. Waters, [711 S2d 924] (1997).

First, pursuant to the FAA and in the absence of conflicting Georgia or Alabama law, we apply the federal law of arbitrability to the Installment Contract. Volt, supra; Hilton Constr. Co. v. Martin Mechanical Contractors, 251 Ga. 701, 703 (308 SE2d 830) (1983), following Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U. S. 1, 24 (103 SC 927, 74 LE2d 765) (1983).

Sections 2 and 3 of the FAA provide that:

[a] written provision in any . . . contract evidencing a transaction involving [interstate] commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof,. . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. If any suit or proceeding be brought. . . upon any issue referable to arbitration under an agreement in writing for such arbitration, the court[,] . . . upon being satisfied that the issue involved . . . is referable to arbitration[,] . . . shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement. . . .

(Emphasis supplied.)

The United States Supreme Court, in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 402 (87 SC 1801, 18 LE2d 1270) (1967), determined that, in a contract with a broad arbitration clause, a claim of fraud in the inducement of the entire contract, as opposed to fraud in the inducement to agree to the arbitration clause, is to be determined by the arbitrator, not the court. See Green Tree Financial Corp. &c. v. Wampler, 749 S2d 409, 413 (Ala. 1999) (Identical arbitration clause involved here found “broad enough to include an agreement to arbitrate the issue of the enforceability of the agreement containing the provision for arbitration.” Id. at 414.).

In this case, the only evidence presented to the court regarding this issue was Crawford’s affidavit, quoted in part above. The only deduction to be made from that affidavit is that Crawford did not read the documents which he signed. As acknowledged by the trial court in its order, however, “[t]here is no evidence that [Crawford] was prevented from reading the documents” by the actions of Assured employees. Assured is the only defendant whose representative was present, in addition to Crawford, at the signing of the documents.

Therefore, absent Crawford’s proof of unconscionability under Georgia or Alabama law, the only claim presented to the trial court was that of fraud in the inducement of the entire contract, which must be arbitrated.

This is consistent with the Georgia principle that:

“a party to a contract who can read, must read or show a legal excuse for not doing so, and ordinarily if fraud is an excuse, it must be such fraud as would prevent the party from reading the contract. One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relationship or trust or confidence exists. Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud.” (Citations and punctuation omitted.) [Cit.] “One not prevented from reading the contract, and having the capacity and opportunity to do so, cannot after signing it claim he was fraudulently induced to sign by promises which contradict the express terms of the contract.” [Cit.]

(Emphasis supplied.) Hovendick v. Presidential Financial Corp., 230 Ga. App. 502, 504-505 (2) (497 SE2d 269) (1998). See also Bumgarner v. Green, 227 Ga. App. 156, 160 (489 SE2d 43) (1997).

(c) We now look to the issue of unconscionability under NEC Technologies, supra. That case, in the context of the Uniform Commercial Code, holds that “the unconscionability of a contract is not to be judged based on subsequently-acquired knowledge.” Id. at 595 (3). Further, unconscionability is to be determined “on the circumstances existing at the time the contract was made, rather than those existing . . . later.” (Emphasis supplied.) W. J. Cooney, P.C., supra at 704.

The trial court, in concluding the two arbitration clauses here were unconscionable, focused on the fees and costs of arbitration as compared to the filing fee in the State Court of Carroll County and Crawford’s lack of sophistication.

Having reviewed the record, however, we find no evidence that, at the time of signing the documents, Crawford had any idea of the costs of arbitration. In fact, he denies any knowledge of the requirement to arbitrate at all at that time. Additionally, there was only hearsay evidence of the after acquired knowledge of Crawford regarding costs. Hearsay, even if unobjected to, proves nothing. OCGA § 24-3-1; Waddington v. Stores Mut. &c. Assn., 52 Ga. App. 331 (183 SE 143) (1935).

Georgia has not specifically addressed the issue of unconscionability in the context of the FAA and agreements to arbitrate.

Even before considering unconscionability, however, we again address the issue of arbitrability. For this purpose only, we assume that Crawford’s position that he attacked only the arbitration clause as fraudulently induced and unconscionable had been supported by evidence. In First Options of Chicago v. Kaplan, 514 U. S. 938 (115 SC 1920, 131 LE2d 985) (1995), the United States Supreme Court addressed the standards of review under the FAA on two issues: (1) how a trial court should review an arbitrator’s decision that the parties agreed to arbitrate a dispute, and (2) how a court of appeals should review a trial court’s decision confirming or refusing to vacate an arbitration award. In Kaplan, Manuel Kaplan’s wholly owned investment company, MKI, had signed a workout document containing an arbitration clause with First Options after the 1987 stock market crash. While Mr. and Mrs. Kaplan had also signed other documents in relation to the workout, none of those signed by them contained an arbitration clause. First Options tried to compel the Kaplans individually to arbitrate, and the Kaplans filed, with the arbitrators, their objections that their dispute with First Options, as opposed to that of MKI, was not arbitrable.

The Court held that courts, in determining whether the parties have agreed to submit the issue of arbitrability itself to arbitration, should not assume that the parties agreed to “arbitrate arbitrability” unless the evidence is clear and unmistakable that they have so agreed. On this question, the presumption on review opposes arbitration.

While the arbitration provision in the Installment Contract is very broad, that contract also contains a severability clause in Paragraph 13, immediately preceding the arbitration provision. We find persuasive and adopt the rationale of the Alabama Supreme Court which held that, in such a situation, the severability clause created an ambiguity as to whether a court or arbitrator would decide the issue of arbitrability and, under Kaplan, supra, the trial court properly determined the issue. See Premiere Chevrolet v. Headrick, 748 S2d 891, 894-896 (Ala. 1999); Commercial Credit Corp. &c. Ins. Co. v. Leggett, 744 S2d 890, 892-894 (Ala. 1999). Compare Galindo v. Lanier Worldwide, 241 Ga. App. 78, 82-83 (2) (526 SE2d 141) (1999) (Trial court applied incorrect presumption in favor of arbitration where party denied signing contract containing arbitration clause. Order confirming arbitration award reversed.).

Therefore, it would have been proper for the trial court to determine that Crawford had not agreed to “arbitrate arbitrability” had Crawford presented evidence that he was aware of the arbitration clause and shown that it was unconscionable or induced by fraud.

Contrary to the trial court’s finding, the Installment Contract was not unconscionable.

“An unconscionable contract is one abhorrent to good morals and conscience. It is one where one of the parties takes a fraudulent advantage of another.” (Punctuation and emphasis omitted.) F. N. Roberts Pest Control Co. v. McDonald, 132 Ga. App. 257, 260 (3) (208 SE2d 13) (1974). “It is an agreement that no sane person not acting under a delusion would make and that no honest person would take advantage of. [Cits.]” W. J. Cooney, P.C., supra at 704.

As we have held, the mere existence of an arbitration clause does not amount to unconscionability. Further, lack of sophistication or economic disadvantage of one attacking arbitration will not amount to unconscionability. See Green Tree Financial Corp. &c. v. Vintson, 753 S2d 497 (Ala. 1999); Wampler, supra; Ex parte Smith, 736 S2d 604, 612-613 (Ala. 1999); Ex parte Parker, 730 S2d 168 (Ala. 1999); see also Pridgen v. Green Tree Financial Servicing Corp., 88 FSupp.2d 655, 658-659 (S.D. Miss. 2000); Rhode v. E & T Investments, 6 FSupp.2d 1322, 1328 (M.D. Ala. 1998).

Therefore, Crawford has failed to show such coercion, either procedural or substantive, that would be a defense to Green Tree’s motion to compel arbitration of the merits of the dispute or that would merit the trial court’s order that the payments due Green Tree be made into the registry of the court pending resolution of the dispute.

2. Also, the trial court erred in finding that arbitration was precluded as to Green Tree based on the Magnuson-Moss Warranty Act, supra.

While that Act does preclude a warrantor from denying the right of a consumer to litigate instead of arbitrate a warranty dispute, Green Tree is neither “a supplier, warrantor, or service contractor” covered by that Act. 15 USC §§ 2301 (4), (5), (8); 2310 (d), (f).

Case No. A00A0540

3. Assured also enumerates as error the trial court’s finding that the arbitration clause was unconscionable. That issue is controlled by our holdings, supra. The trial court erred in denying the motion of Assured to compel arbitration of the merits of the dispute.

Case No. A00A0541

4. Cavalier’s enumeration that the trial court improperly denied its motion to compel arbitration of nonwarranty issues based on unconseionability is controlled by our holdings in Case No. A00A0542.

Decided July 31, 2000

Phears & Moldovan, Victor L. Moldovan, for appellant (case no. A00A0540).

Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Ian R. Rapaport, Beth S. Reeves, for appellant (case no. A00A0541).

Kenney & Solomon, Thomas S. Kenney, Debbie W. Flesch, for appellant (case no. AOOA0542).

T. Michael Flinn, for appellee.

David A. Webster, amicus curiae.

5. Cavalier also contends that the trial court improperly denied its motion based on the Magnuson-Moss Warranty Act, supra. The trial court relied on Southern Energy Homes v. Lee, 732 S2d 994 (Ala. 1999) for its conclusion that express warranty claims had to be litigated under that Act.

That case, however, has recently been reversed by Southern Energy Homes v. Ard, 772 S2d 1131 (Ala. 2000), based on an extensive analysis by Justice See (originally contained in his dissent in Lee) of United States Supreme Court cases discussing the FAA and its relationship with other federal statutes. That analysis is hereby adopted by this Court, and we conclude that the Magnuson-Moss Warranty Act does not preclude arbitration of express warranty claims.

Implied warranty claims have previously been found subject to arbitration by federal district courts, and we adopt their rationale regarding those claims. Rhode, supra; Boyd v. Homes of Legend, 981 FSupp. 1423 (M.D. Ala. 1997).

Therefore, the trial court also erred in not granting Cavalier’s motion to compel arbitration of the express and implied warranty claims.

Judgments reversed and cases remanded.

Ruffin and Ellington, JJ., concur.

       Regarding this Court’s jurisdiction to consider these appeals, which are consolidated for review, see generally Simmons Co. v. Deutsche Financial &c. Corp., 243 Ga. App. 85 (532 SE2d 436) (2000) (the Federal Arbitration Act (9 USC §§ 1-16) does not preempt Georgia procedural law allowing appeal of orders regarding arbitration).

       It is this paragraph pursuant to which Cavalier and Assured seek to compel arbitration.

       As set out supra, Paragraph 5 of the Acknowledgment and Agreement invokes the laws of Alabama in addition to the FAA.

       The clause at issue in Prima Paint stated that “[a]ny controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration. . . .”

       This is also the law of Alabama. See, e.g., Green Tree Financial Corp. &c. v. Vintson, 753 S2d 497 (Ala. 1999) (same arbitration clause involved here found binding and not unconscionable).

       This is the opposite of the presumption on review of whether a merits-related dispute is arbitrable. There, the presumption favors arbitration. Moses H. Cone Mem. Hosp., supra.

       As requested by Crawford, because the trial court did not specifically rule on the applicability of Magnuson-Moss to Assured, upon remand Crawford shall have an opportunity to brief and argue this matter.

       There is no United States Supreme Court case addressing the Magnuson-Moss Warranty Act and the FAA.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A00A1205.
    LEAL v. HOBBS et al.
    (538 SE2d 89)
   Ruffin, Judge.

Darryl Hobbs died after a cardiac arrest in an ambulance en route to Grady Hospital. His widow, Sherry Hobbs, brought this wrongful death action against Jacob Leal, a student intern riding along in the ambulance, as well as other defendants. The trial court denied Leal’s motion for summary judgment, and he appeals. Because Ms. Hobbs failed to present evidence that Leal acted negligently, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the undisputed facts, taken in the light most favorable to the nonmoving party, warrant judgment as a matter of law in favor of the moving party. Our review is de novo.

The record shows that on June 23, 1996, police stopped Hobbs and used pepper spray to subdue him. Police called for an ambulance and reported that Hobbs appeared to be having a seizure. A Grady Hospital ambulance arrived with Ron Puckett, a paramedic; Pamela Ray, an Emergency Medical Technician (EMT); and Leal, who was training to become a paramedic. Hobbs was lying facedown on the ground wearing handcuffs and a leg restraint. He was talking incoherently, but showed no signs of any breathing difficulty. Puckett decided to take Hobbs to the hospital because he felt that Hobbs’ incoherent speech indicated an “altered mental status.” Hobbs was placed on his stomach on a stretcher, still handcuffed, and loaded into the ambulance. Leal testified that he saw a bag containing a powdery substance at the scene and suspected that Hobbs’ condition might be drug-related.

Inside the ambulance, Puckett attached a heart monitor to Hobbs while Leal tried to take his blood pressure. Before Leal could obtain a reading, however, the heart monitor indicated that Hobbs’ heart rate had dropped dangerously low, so Hobbs was uncuffed and turned over onto his back. At some point, Hobbs suffered a cardiac arrest. Puckett and Ray gave Hobbs oxygen, intubated him, and started an IV. At Puckett’s direction, Leal administered three different drugs — atropine, epinephrine, and Narcan — to Hobbs through the IV. The first two drugs were intended to increase Hobbs’ heart rate, while the third drug was meant to counteract the effects of opiates.

Hobbs died. The Fulton County Medical Examiner concluded that he died of “acute intoxication by a combination of cocaine and heroin.”

At the time, Leal was a student in the paramedic training program at Ricks College in Idaho. To fulfill the program’s requirement that he complete 360 hours of paramedic training, Leal was serving for eight weeks as an unpaid student intern at Grady. Although Leal had fulfilled all the requirements necessary to be an EMT — and, in fact, had received specialized additional training — he had riot obtained his Georgia EMT license on the day Hobbs died. According to both Leal and Puckett, Leal was supposed to participate in providing medical treatment as part of his internship — but only under the supervision of a licensed paramedic, or “preceptor.”

On the day Hobbs died, Puckett was acting as Leal’s preceptor. Leal testified that he acted under the direct supervision of Puckett and did exactly what Puckett told him to do. According to Leal, Puckett closely monitored his administration of drugs to Hobbs: “I would take the drug, I would fill it, and I would show him the drug, and he would nod. And so I would draw it up, show him how much I drew it up, and put it in the patient, and he watched while I was putting it in the patient.”

Ms. Hobbs sued Puckett, Ray, Leal, Fulton-DeKalb County Hospital Authority, and the police officers who arrested Hobbs. She claimed, among other things, that Puckett, Ray, and Leal failed to follow Grady’s policies and procedures with respect to patients sprayed with pepper spray and “fail[ed] to exercise reasonable care in the assessment, treatment and transport of Hobbs.” Leal sought summary judgment on the grounds that the complaint did not allege that he had performed any negligent acts himself and that he was not an employee, agent, or independent contractor of Grady. The trial court denied the motion for summary judgment, ruling that genuine issues of material fact existed as to whether Leal violated Grady’s policies and whether he was an independent contractor or agent of Grady. We granted Leal’s application for interlocutory appeal.

1. Initially, we note that whether Leal was an employee, independent contractor, or agent of Grady Hospital is irrelevant to Leal’s liability. Under Georgia law, a hospital may be held vicariously liable for the negligent acts of its employees, contractors, or agents. But the doctrine of vicarious liability does not make the agent liable for the acts of the principal. As the issue before us is whether Leal was entitled to summary judgment, we are concerned only with whether Leal negligently breached a duty of care to Hobbs.

2. (a) In his motion for summary judgment, Leal argued that “there is no evidence of a breach of a duty of care by Jacob Leal” because he was simply following the instructions of Puckett and had no decision-making authority with respect to Hobbs’ care and treatment. In response to Leal’s motion, Ms. Hobbs argued that Leal acted negligently by violating Grady’s policy concerning student ambulance riders. We disagree.

On the day in question, Grady had in effect a policy pertaining to “student/third riders,” or “all persons requesting to act as an observer on any Grady EMS vehicle.” Under this policy, such persons were to

function in an observer only status. This decision is based on both the state regulations and the hospital’s legal staff recommendations. The ONLY exception to this policy is with the Emergency Medical Residents. These individuals would be able to be involved in patient care, but it would remain the responsibility of the EMS crew to obtain any needed physician’s order through the normal radio procedures.

(Emphasis in original.) Ms. Hobbs argues that this policy applied to Leal and prohibited him from rendering care to Hobbs. Leal, on the other hand, argues that the “observer only” policy did not apply to him because, by its terms, the policy applies only to students who “ride three times on 3 separate shifts, for a maximum of 30 hours total.” According to Leal, the “ ‘observer only’ policy does not accurately reflect the [unpaid] student paramedic internship program arrangement between Rick’s College and Grady Hospital.” Thus, there is a factual dispute as to whether Grady’s “observer only” policy applied to Leal.

But assuming for the purposes of summary judgment that the “observer only” rule did apply to Leal, Ms. Hobbs fails to show how his violation of that rule breached any duty of care he owed to her husband. Citing Central Anesthesia Assoc. v. Worthy, Ms. Hobbs argues that Leal’s violation of the policy was negligence per se. In Worthy, we held that a nursing student who administered anesthesia to a patient committed negligence per se because she violated a statute that provided that only “certified registered nurse anesthetists” could administer anesthesia, and then only under the supervision of a physician. But Ms. Hobbs did not argue before the trial court that Leal violated any statute — only an internal policy of Grady Hospital. We find no authority for the proposition that violation of an internal policy can constitute negligence per se.

Not only has Ms. Hobbs failed to show that Leal’s alleged violation of the “observer only” policy was negligence per se, she has failed to present any evidence of negligence at all. To prove that Leal acted negligently, Ms. Hobbs must show:

(1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

In the trial court, Ms. Hobbs merely asserted that the fact that Leal acted at all — as opposed to being an “observer only” — constituted negligence. She did not point to any specific actions or inactions by Leal that supposedly constituted a breach of due care. And she did not dispute Leal’s testimony that he was working under Puckett’s supervision, that he merely followed Puckett’s orders with respect to treating Hobbs, and that lie exercised no decision-making authority over Hobbs’ treatment. Because Ms. Hobbs failed to present any evidence to the trial court that the treatment rendered by Leal was negligent, Leal was entitled to summary judgment.

(b) On appeal, Ms. Hobbs asserts for the first time that Leal was negligent in four other ways: (i) he was negligent per se because he administered treatment even though he was not licensed to do so; (ii) he failed to tell Puckett that he suspected Hobbs may have been under the influence of drugs; (iii) he helped place Hobbs facedown on the stretcher, which inhibited Hobbs’ breathing; and (iv) he failed to properly monitor Hobbs’ breathing. But Ms. Hobbs did not make any of these arguments in the trial court. “This court will not consider arguments neither raised nor ruled on by the court below and that are asserted for the first time on appeal.”

Decided August 2, 2000

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Amy Greenstein, Julia B. Haffke, for appellant.

Shapiro, Fussell, Wedge, Smotherman, Martin & Price, Carol E. DeLoach, Parks, Chesin, Walbert & Miller, Walter H. Beckham III, for appellees.

Even if we did consider these new arguments, they lack merit. The first argument is plainly specious, in light of the Georgia public health regulations specifically authorizing paramedic trainees to perform certain functions under the supervision of a preceptor. Ms. Hobbs does not argue that any of the functions performed by Leal were beyond the scope of a paramedic trainee’s authority as set forth in the regulations.

As for Ms. Hobbs’ other three newly asserted allegations of negligence, she does not explain how Leal’s alleged actions deviated from any applicable standard of due care. She merely asserts — without elaboration and without evidence — that the actions amounted to negligence. For his part, Leal testified that he did monitor Hobbs’ breathing and saw no breathing difficulties. Puckett testified that the ambulance crew placed Hobbs facedown on the stretcher for their own safety because they believed he had been fighting with police and that, to Puckett’s knowledge, placing a patient facedown on a stretcher does not inhibit his breathing. Although Leal testified that he did not remember whether he told Puckett about the powdery substance he saw, Puckett testified that he learned from some source that drug abuse was indicated. In any event, Hobbs was given an injection of Narcan, which Puckett testified is standard treatment in suspected cases of drug abuse. In light of this evidence, Ms. Hobbs’ bare assertions of negligence were insufficient to survive summary judgment.

Judgment reversed.

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

        Brown v. Allied Printing Ink Co., 241 Ga. App. 310 (526 SE2d 626) (1999).

       Both paramedics and EMTs must be certified to work in Georgia, and the services they may perform are regulated by the Department of Human Resources. See Ga. Admin. Code Ch. 290-5-30. Paramedics have more training and are authorized to perform more procedures than EMTs.

       Leal obtained his EMT certificate the month after Hobbs died and later obtained his paramedic certificate. Although obtaining an EMT certificate is not a prerequisite for certification as a paramedic, Puckett testified that it is a normal practice in Georgia for paramedics to also be certified as EMTs.

       See OCGA § 51-2-5; Brown v. Coastal Emergency Svcs., 181 Ga. App. 893, 894-898 (2), (3) (354 SE2d 632) (1987).

       See Mullinax v. Miller, 242 Ga. App. 811, 815 (2) (531 SE2d 390) (2000) (“[P]laintiffs essentially seek to hold the agent . . . liable for the acts of the principal. . . . We find no support for this theory of liability in logic or in case law.”).

       173 Ga. App. 150, 152-153 (325 SE2d 819) (1984).

       We further note that Georgia’s public health regulations allow paramedic trainees to perform any of the functions of a certified paramedic, as long as they are acting under the direct supervision of an approved preceptor. Ga. Admin. Code Rule 290-5-30-.14 (6). Those functions include the administration of “approved intravenous solutions” and other injections under the order of a physician. See Ga. Admin. Code Rule 290-5-30-.14 (3) (a), (5) (a). According to Puckett, the administration of atropine and epinephrine was part of Grady Hospital’s policies and procedures for patients in cardiac arrest, and there was a standing doctor’s order to administer Narcan to “incoherent people with altered mental status.” Thus, Georgia’s administrative code specifically authorized Leal, as a paramedic trainee, to render supervised care to Hobbs.

       (Punctuation omitted.) Meinken v. Piedmont Hosp., 216 Ga. App. 252-253 (454 SE2d 147) (1995).

        Busbee v. Chrysler Corp., 240 Ga. App. 664, 666 (1) (524 SE2d 539) (1999).

       See footnote 7, supra.


text:
    A00A1264.
    GANN v. THE STATE.
    (538 SE2d 97)
   Ruffin, Judge.

Joshua Daniel Gann was convicted of armed robbery and false imprisonment. On appeal, he contends that the trial court erred by refusing to give curative instructions after the jury saw him in handcuffs and by making improper comments during defense counsel’s questioning of a witness. We find these contentions without merit, and we affirm.

1. After the jury was selected but before opening statements, defense counsel told the court that “the defendant informed us the jurors saw him outside in the hallway in handcuffs and we would ask for some sort of instruction as to his guilt.” The judge responded that

I believe there are cases that say the fact the defendant may be in custody at the time of trial, if that’s known to the jury, that that is not any sort of problem, especially if it is a serious charge. The jurors might expect a defendant to be in custody on a serious charge.

Defense counsel then stated, “I just wanted to bring that to the Court’s attention,” and did not press the matter any further. The judge then gave the jury its preliminary charge, instructing it, among other things, that the defendant had pled not guilty, that the burden was always on the State to prove the essential elements of the indictment beyond a reasonable doubt, and that the jury was to decide the case only on the evidence presented in open court.

On appeal, Gann argues that the trial court erred in refusing to give his requested curative instructions. However, Gann’s attorney did not request any particular instruction, but simply asked for “some sort of instruction as to his guilt.” After the trial court stated that it did not believe there was a problem, Gann’s attorney did not press the matter or ask for a formal ruling on his request for a curative instruction. The trial court then proceeded to give its standard preliminary charge, portions of which arguably addressed Gann’s vague request. Gann never expressed any dissatisfaction with these instructions or any desire that the court go any further. Having failed either to request any specific instructions, to insist on a ruling on his request for curative instructions, or to object to the instructions given, Gann cannot now complain that the court did not satisfy his unstated desire for a different or more specific instruction.

Decided August 2, 2000.

Mitchell D. Durham, for appellant.

Patrick H. Head, District Attorney, Dana J. Norman, Assistant District Attorney, for appellee.

2. Gann also contends that certain comments made by the judge during defense counsel’s examination of a witness violated OCGA § 17-8-57 by suggesting the judge’s opinion as to the evidence. “Where the trial judge is alleged to have made a prejudicial remark during the course of the trial in violation of OCGA § 17-8-57, an objection or motion for mistrial must be made in order to preserve the issue for appeal.” Because Gann made no such objection or motion for mistrial, this enumeration is without merit.

Judgment affirmed.

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

       See generally Cobb v. State, 236 Ga. App. 265, 269 (3) (b) (511 SE2d 522) (1999) (defendant cannot acquiesce in ruling and then complain on appeal); Billups v. State, 234 Ga. App. 824, 829 (3) (507 SE2d 837) (1998) (defendant waived right to challenge adequacy of curative instruction by failing to object after instruction given).

       (Punctuation omitted.) Lucas v. State, 197 Ga. App. 347 (1) (398 SE2d 417) (1990). See also Crowe v. State, 265 Ga. 582, 594 (19) (458 SE2d 799) (1995).


author: Andrews, Presiding Judge.

text:
    A00A1431.
    ETCHINSON v. THE STATE.
    (538 SE2d 87)
   Andrews, Presiding Judge.

Antonio Etchinson appeals from the judgment entered after a jury found him guilty of cruelty to children and aggravated battery. For the following reasons, we affirm in part and reverse in part.

The evidence at trial showed that police were called to Etchinson’s home after his four-month-old daughter was taken to the hospital with severe burns. Etchinson at first claimed the baby was burned accidentally, but he could not demonstrate for the investigators how the scalding water could have accidentally burned the baby. Etchinson later admitted that when the baby would not stop crying, he poured a pot of boiling water on her.

At trial, Etchinson admitted to lying to investigators when they first questioned him. He also said that he lied when he confessed to pouring boiling water on the baby. He claimed that he confessed because he was distraught over the injuries to his child and one of the investigators had told him he would never see his daughter again.

Etchinson then gave a different explanation for the bums. He stated that he left the baby in the bathroom sink and went into the kitchen. When he heard the baby screaming he went back into the bathroom and found her burned from the tap water. He admitted that after she was burned he could not bear to look at her because her skin was coming off; nevertheless, he did not call 911 first, but instead called his wife and then called his boss.

The jury found him guilty of both counts, and the trial court sentenced him to serve 20 years on each count, to run consecutively. This appeal followed.

1. In his first enumeration of error, Etchinson claims the trial court erred in allowing the prosecutor to question his wife about a previous near-drowning incident when the baby was 28 days old. The trial court ruled before the trial started that the State could introduce the near-drowning incident, but the State rested without doing so. When Etchinson’s wife testified in his defense, she stated that he had been good with the baby “from day one,” was a good father, was “very patient with children,” and was “very good with children.” Then, on cross-examination, the prosecutor asked her if she remembered an incident in which the baby had nearly drowned while Etchinson was taking care of her.

By bringing the subject up himself, Etchinson opened the door for exploration of his past history with the baby. See Sheffield v. State, 184 Ga. App. 141, 142 (361 SE2d 28) (1987). The State is entitled to impeach the defendant or his witnesses by showing the untruth of any statement. See Burke v. State, 186 Ga. App. 335, 336 (367 SE2d 118) (1988). There was no error.

2. Etchinson also argues the trial court erred in not merging the counts of cruelty to children and aggravated battery. OCGA § 16-1-7 provides: “When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if [o]ne crime is included in the other.”

A person commits the offense of cruelty to children in the first degree when that person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain. OCGA § 16-5-70. The section of the aggravated battery statute charged in the indictment provides that a person commits the offense of aggravated battery by maliciously causing bodily harm to another by seriously disfiguring her body. OCGA § 16-5-24. Therefore, the offenses of cruelty to children and aggravated battery are not included offenses as a matter of law because the crimes have different elements. Harmon v. State, 208 Ga. App. 271, 275 (430 SE2d 399) (1993). “Nevertheless, the two crimes may be included as a matter of fact when the same or less than all the facts are used to prove both crimes. OCGA § 16-1-6 (1).” Id.

In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime, we look to the actual evidence introduced at trial. If the State uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact. Haynes v. State, 249 Ga. 119, 120 (288 SE2d 185) (1982).

Decided August 2, 2000.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

In this case, there was evidence of only one act of scalding the baby. This act was necessary to prove both the excessive physical pain and the serious disfigurement suffered by the baby. Accordingly, the two counts merge as a matter of fact. Harmon, supra at 276. Therefore, the trial court erred in sentencing Etchinson on both counts, and we remand the case to the trial court for action consistent with this opinion.

Judgment affirmed in part and reversed in part.

Ruffin and Ellington, JJ, concur.


text:
    A00A1765.
    SMITH v. THE STATE.
    (538 SE2d 95)
   Ruffin, Judge.

A Burke County jury found appellant Willie W. Smith guilty of aggravated assault, criminal damage to property, possession of a firearm during the commission of a crime, carrying a pistol without a license, and discharge of a firearm on or near a public highway. On appeal, Smith asserts that the evidence was insufficient to support his convictions because there was no evidence corroborating his confession. As there was sufficient corroborating evidence, we affirm.

At trial, George Leroy Thomas testified that, on the evening of October 13, 1995, he drove to 816 Washington Drive to meet with Pam Carpenter to discuss insurance. As Thomas was leaving the meeting, he noticed four or five people standing at the curb of the neighboring house. Before Thomas could pull his car out of the driveway, one of the people approached his car and said “[W]ait. Get out. Don’t move. Stop.” As he was pulling away, Thomas saw a different person “pull a gun out of his pants and aim it at me.” A shot grazed Thomas’ face and then shattered his rear window. The next day, Thomas found a bullet in his car, which he gave to the police. Thomas also gave the police a sketchy description of the shooter, but could not identify him from a photographic lineup.

Lieutenant. Frankie Parker testified that the Burke County Sheriff’s Office had information that Smith was involved in the incident. On November 8, 1995, Deputy Jimmy Golden and Sergeant Frank Stevens approached Smith at a convenience store and told him there was a warrant for his arrest. Smith tried to run. Stevens grabbed Smith, and a .25 caliber gun fell from his clothing. The officers then arrested Smith.

On November 10, 1995, Lieutenant Parker advised Smith of his Miranda rights, and Smith signed a form agreeing to waive them. Smith gave a statement which Parker wrote down, and then Smith read and signed the statement. In the statement, Smith said that he and about 11 other people were standing in the street around 816 Washington Drive when “Ronnie Cooper told us that [an] insurance man was coming out of a house and he was going to get him.” Cooper started running toward the man, who jumped into his car and pulled away. Smith also said:

I, Willie Smith, was pointing my .25 caliber pistol toward the insurance man’s car and I shot two times. Shot the first time at the car and then one time in the air. . . . Ronnie had a .38 caliber pistol and was trying to shoot at the insurance man but other people was in Ronnie’s way and he couldn’t shoot.

Mark Maycock, a firearms expert with the Georgia Bureau of Investigation, testified that the bullet removed from Thomas’ car was a .25 caliber bullet. However, Maycock was unable to determine whether the bullet was fired from Smith’s gun.

Smith took the stand and denied shooting Thomas. He admitting being on Washington Drive that day, but he said that Cooper fired the shots. He denied having a gun with him at the time. According to Smith, he told Lieutenant Parker that he did not shoot anyone, but Parker kept insisting that Smith had done it and then asked him to sign a statement that Parker had written.

On appeal, Smith contends that the only evidence against him was his uncorroborated confession, which is insufficient to sustain his convictions. We disagree.

Decided August 2, 2000.

Jeffrey S. Bowman, for appellant.

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

We have held that

[a] conviction may be had on a confession although corroborated only by proof of the corpus delicti. The corroborating evidence or circumstances need not connect the defendant definitely with the perpetration of the offense. Corroboration in any material particular satisfies the requirements of the law.

Here, “the testimony of the victim, which corresponded to [Smith’s] confession, was sufficient to establish the corpus delicti, i.e., that the crimes actually occurred.” In addition, Smith admitted at trial that he was present at the scene of the crime, further corroborating part of his confession. Moreover, at the time of his arrest, Smith was carrying a gun of the same caliber as the one used to shoot Thomas. Finally, Smith attempted to flee when the officers arrested him, indicating a consciousness of guilt.

As there was sufficient corroboration of Smith’s confession, we affirm his convictions.

Judgment affirmed.

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

       This was Smith’s second trial for these crimes. He was first tried and convicted in 1996, but we reversed his convictions on appeal due to the trial court’s failure to properly handle a Batson challenge. See Smith v. State, 229 Ga. App. 765 (494 SE2d 757) (1997).

       While Smith’s appellate brief refers to the confession as a “highly questionable police generated written confession,” he does not challenge its voluntariness on appeal.

       (Punctuation omitted.) Bigham v. State, 222 Ga. App. 353, 354 (474 SE2d 254) (1996).

       Id.; see also Montijo v. State, 238 Ga. App. 696, 699 (2) (520 SE2d 24) (1999).

       See Anderson v. State, 236 Ga. App. 679, 683 (4) (513 SE2d 235) (1999) (defendant’s flight at time of arrest was evidence of consciousness of guilt).


author: Barnes, Judge.

text:
    A00A0904.
    ENSLEY et al. v. CARTER.
    (538 SE2d 98)
   Barnes, Judge.

Walter Slade Ensley and Benny Ensley, co-defendants in a personal injury lawsuit, appeal the denial of a motion for stay filed under the Soldiers’ & Sailors’ Civil Relief Act of 1940 (“Act”), 50 USC Appx § 501 et seq. Because the trial court did not abuse its discretion in refusing to grant a stay in the pending action, we affirm.

Natalie L. Carter filed suit against Walter Slade Ensley alleging that he failed to exercise due care while operating a vehicle that struck her at an intersection as she attempted to walk across the road. Carter also sued Ensley’s father, Benny Ensley, claiming he had negligently entrusted his vehicle to his son and asserting the family purpose doctrine applied. Among other injuries, Carter fractured her right pelvis and left femur.

The collision at issue occurred on March 30, 1994, and Carter filed suit in early September 1994. In an answer filed September 26, 1994, the Ensleys admitted, “Slade Ensley, while operating a vehicle owned by. his father, Benny Ensley, collided with the plaintiff,” but claimed that Carter was the one at fault by “attempting to cross the intersection unlawfully against a red traffic light.” After the completion of most discovery, including at least four depositions, the Ensleys moved for summary judgment. To allow additional time for Carter’s newly retained counsel to depose Walter Slade Ensley, the trial court granted a 45-day extension for Carter to respond to the summary judgment motion. The deposition of Walter Slade Ensley was completed on December 12, 1995.

After the trial court awarded summary judgment to the Ensleys, Carter appealed, and this court reversed. In Carter v. Ensley, 222 Ga. App. 159, 161 (473 SE2d 265) (1996), this court determined that a jury needed to resolve whether Ensley was operating his vehicle with due care and whether Carter could have avoided the injury to herself by exercising due care for her own safety. The case returned to the trial court on July 29, 1996.

On January 15, 1997, the trial court entered a consolidated pretrial order. In February 1998, the trial court granted a continuance for one term of court at the request of the Ensleys based on the Act. Nearly two and a half years after the entry of the pretrial order, on July 9, 1999, the Ensleys moved for a stay relying solely on the Act. Benny Ensley testified that his son was stationed in Korea with the U. S. Army until November 2000. Ensley urged, “If the trial of the above-referenced case proceeds despite the absence of Walter Slade Ensley, Walter Slade Ensley and I will not be able to present a proper defense because Walter Slade Ensley’s testimony as an eye-witness is critical to our defense.”

The trial court entered an order on July 28, 1999, temporarily continuing the trial and pretrial conference for another term of court. Three months later, on October 4, 1999, after conducting a regularly scheduled hearing and considering the underlying merits of the motion, the trial court denied the motion for stay and placed the case on the next available trial calendar. The Ensleys obtained a certificate of immediate review, and this appeal followed.

In their only enumeration of error, the Ensleys contend that the trial court erred in denying their motion for stay under the Act. They claim that since Walter Slade Ensley is a member of the U. S. Army and applied for relief under this Act, he is entitled to a stay of the proceedings as a matter of law.

The Ensleys argue that Carter’s tort claims, which arose in March 1994, cannot be resolved until after the completion of Walter Slade Ensle/s military career. Counsel for the Ensleys expressed this position in a letter to Carter’s counsel, stating:

[T]his case will be stayed until Slade Ensley is discharged from the military, whenever that date occurs. If my memory is correct, Slade and I discussed in past conversations that he intends to make a career of military service. Therefore, this case will probably be in a posture for trial sometime in the next 30 to 40 years.

The Ensleys misapprehend the nature of the Act, which expressly states:

At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as [a] plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of [the] plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.

50 USC Appx § 521. Thus, the Act provides that a stay in the proceedings should be granted “unless in the opinion of the trial judge the applicant’s ability to conduct his defense is not materially affected by reason of his military service. [Cit.]” Underhill v. Barnes, 161 Ga. App. 776, 777 (2) (288 SE2d 905) (1982). The determination as to whether a person’s ability to conduct his defense is materially impaired by his military service lies within the discretion of the trial court. Vlasz v. Schweikhardt, 178 Ga. App. 512, 513 (1) (343 SE2d 749) (1986). In deciding whether to grant a stay under the Act, the trial court has a great amount of discretion. Shelor v. Shelor, 259 Ga. 462 (383 SE2d 895) (1989).

Decided August 3, 2000.

Young, Thagard, Hoffman, Scott & Smith, John H. Smith, Jr., for appellants.

Dodd & Dennis, Saleem D. Dennis, Jody D. Peterman, for appellee.

In this case, Benny Ensley, Walter Slade Ensley, and three witnesses were deposed well before the entry of the consolidated pretrial order and long before the filing of the motion for stay. Walter Slade Ensley testified about the collision in December 1995, about a year and a half after his vehicle struck Carter, and three and a half years before seeking the stay. And the Ensleys presented no evidence to prove that Walter Slade Ensley sought military leave to attend the trial. See Foster v. Alexander, 208 Ga. App. 593, 594 (431 SE2d 415) (1993).

Having reviewed the record, we find the Ensleys failed to carry their burden of showing that the trial court abused its discretion in refusing to grant the motion for stay. See Foster, supra, 208 Ga. App. at 594; Vlasz, supra, 178 Ga. App. at 513 (1).

Judgment affirmed.

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

       In another letter dated February 15, 1999, counsel for the Ensleys noted, “[Slade] expressed a desire to have a long term career in the military. Unfortunately, it appears that this case will not be tried until we are well into the 21st century.”


text:
    A00A1377.
    A00A1378.
    NANTHABOUTHDY v. THE STATE. VONGTHONG v. THE STATE.
    (538 SE2d 101)
   Barnes, Judge.

Monday Nanthabouthdy and Bounmy Vongthong were convicted of multiple crimes including armed robbery, kidnapping with bodily injury, kidnapping, aggravated assault, and theft by taking. Nanthabouthdy contends on appeal that the trial court erred in denying his motion to sever, by giving an incorrect jury charge, and by not directing a verdict in his favor. Vongthong contends on appeal that the trial court erred in denying his motion for an interpreter and in denying his motion for new trial, made because potential jurors saw him in the presence of a shackled prisoner. Finding no errors, we affirm.

The evidence established that Nanthabouthdy, Vongthong, and three other men waited until closing time outside a convenience store, planning to steal guns and money. The store owner explained that he had just finishing closing the store and setting the alarm when the assailants arrived armed with guns and wearing masks. One of the assailants, later identified as Nanthabouthdy, fired a pistol into the air to draw the crowd’s attention. Another assailant, later identified as Vongthong, pointed a shotgun at the owner, screamed at him to unlock the door, and issued orders.

Nanthabouthdy forced the owner’s wife and son from their car and herded them into the store along with the owner and five other people who had been in the parking lot. While the victims were going into the store, the store alarm went off. Vongthong fired a single shotgun blast at the crowd, wounding the owner and an employee, and turned away.

Meanwhile the intended getaway driver became frightened when the alarm sounded and drove off. Nanthabouthdy, armed with a Glock automatic pistol, fired his weapon at the building numerous times, then fled on foot. Vongthong and two others drove away in the owner’s car.

The would-be getaway driver and one other participant pleaded guilty to conspiracy to commit armed robbery, and the third participant pleaded guilty to armed robbery and theft by taking of a motor vehicle. They testified in detail against Nanthabouthdy and Vongthong, explaining the anticipated purpose of the robbery, describing the robbery’s botched execution, and narrating when and by whom shots were fired.

The victims as well as the three co-defendants identified Nanthabouthdy as the gunman firing the 9 mm pistol and wearing a bandanna mask. According to the witnesses, it was Nanthabouthdy who fired the first and last shots during the armed robbery. After the shotgun blast, while beginning to flee, Nanthabouthdy fired several 9 mm bullets into the occupied store where the victims crouched and hid in terror.

Case No. A00A1377

1. Nanthabouthdy contends the trial court erred in denying his motion and renewed motion to sever. He claims that he was entitled to a separate trial because no evidence linked him to the two aggravated assault counts, the armed robbery, the kidnapping with bodily injury, and the theft by taking of the Jeep but he was convicted as a result of the substantial evidence adduced against his co-defendant. We disagree that the evidence showing Nanthabouthdy’s participation in these crimes was minimal.

In a noncapital case, whether to sever defendants’ trials lies within the trial court’s discretion, which will not be disturbed unless it is abused. OCGA § 17-8-4; Slaughter v. State, 240 Ga. App. 758, 759 (1) (525 SE2d 130) (1999).

In exercising its discretion, the court must consider three factors: (1) [w]hether a joint trial will create confusion of evidence and law; (2) whether there is danger that evidence implicating one defendant will be considered against the other, despite cautionary instructions to the contrary; and (3) whether the co-defendants will press antagonistic defenses.

Dennard v. State, 263 Ga. 453, 455 (5) (435 SE2d 26) (1993).

The record shows that Nanthabouthdy and Vongthong were indicted for the same crimes and that they acted in concert in committing them. The witnesses consistently identified Nanthabouthdy as the participant who wielded a Glock automatic pistol, who fired the first shot that drew the victims’ attention, and who fired the final shot as the perpetrators left the scene. While Nanthabouthdy argued in his motion that Vongthong was going to assert an antagonistic alibi defense, no such defense was presented; in fact, neither defendant presented any evidence.

2. Nanthabouthdy contends that the trial court erroneously charged the jury on knowledge. The trial court charged:

On the other hand, should you find beyond a reasonable doubt that either defendant had knowledge of the crime that was being committed, or that either defendant knowingly and intentionally participated or helped in the commission of a crime, then you would be authorized to convict the defendant.

The State concedes that the charge does not accurately state the law. It should have been phrased in the conjunctive rather than disjunctive, so that the jury had to find both knowledge and participation in order to convict, and thus did not accurately state the law. See Suggested Pattern Jury Instructions, Vol. II: Crim. Cases (2nd ed. 1991), p. 21.

However, we must consider the charge to the jury as a whole in determining whether one incorrect charge constitutes reversible error. Gardner v. State, 263 Ga. 197, 199 (7) (a) (429 SE2d 657) (1993). The record indicates that the jury was correctly charged that if it found that the defendant had no knowledge and did not participate, it had a duty to acquit. The trial court also properly charged the jury on intent, mere presence, mere association, and party to a crime, as well as the elements of each offense alleged in the indictments. Having reviewed the charge as a whole, we conclude that the trial court’s charge did not mislead or confuse the jury so as to constitute reversible error. Horner v. State, 240 Ga. App. 1, 2 (1) (522 SE2d 483) (1999).

3. Nanthabouthdy contends that the trial court erred in refusing to direct a verdict of acquittal on several charges. He claims that no evidence proved he committed kidnapping with bodily injury, theft by taking, or robbery; Vongthong, not he, had the shotgun, shot the victims, and took the car. Nanthabouthdy points out that he fled on foot even before the car was stolen.

However, direct participation in a particular crime is not required for a conviction when a person is a party to a crime. OCGA § 16-2-21. By intentionally aiding, abetting, advising, or encouraging another to commit a crime, one is a party to that crime. Raines v. State, 186 Ga. App. 239, 240-241 (2) (366 SE2d 841) (1988). Further, after persons have associated themselves together to do an unlawful act, any act done in furtherance of that association by any one of them is considered the act of each of them. Ford v. State, 163 Ga. App. 745, 746 (296 SE2d 85) (1982).

Nanthabouthdy was no innocent bystander to this incident. Armed with an automatic pistol and wearing a mask, Nanthabouthdy accompanied the others to the target of their intended robbery. During the robbery, Nanthabouthdy fired his pistol numerous times. Although the evidence established that another defendant shot the two victims and that three other defendants stole the car, Nanthabouthdy was a party to all the crimes that occurred during the implementation of the armed robbery. Ford v. State, supra, 163 Ga. App. at 746. The trial court did not err in denying Nanthabouthdy’s motion for a directed verdict of acquittal on any of the charges.

Case No. A00A1378

4. Vongthong contends the trial court erred by denying him an interpreter. Several months before trial, Vongthong filed a motion seeking an interpreter, but the record indicates that this issue was not raised at the pretrial motion hearing or at any time during trial. Vongthong’s failure to obtain a ruling by the trial court waived the issue on appeal. Tanthongsack v. State, 265 Ga. 88 (1) (453 SE2d 468) (1995). Additionally, when asked at the motion for new trial hearing whether he thought Vongthong’s case was prejudiced by his not having an interpreter, Vongthong’s trial counsel testified only that it “probably would have helped to have an interpreter, just in general.” He further testified that he thought Vongthong understood the trial proceedings. We find no error. See Choi v. State, 269 Ga. 376, 377 (3) (497 SE2d 563) (1998) (no error where defendant failed to point to specific errors in interpretation).

5. Vongthong contends the trial court erred in denying his motion for new trial because some jurors saw him in the presence of a shackled prisoner and an armed deputy.

Decided August 3, 2000.

Jerry B. Harkness, Sr., Earle W. Angelí, for appellants.

Michael H. Crawford, District Attorney, Earnest J. McCollum, Assistant District Attorney, for appellee.

Before the selection of the jury, counsel noted for the record that several potential jurors saw Vongthong being brought into the courtroom along with a shackled prisoner, escorted by an armed county deputy. After counsel argued that Vongthong’s right to a fair trial may have been prejudiced, the court then offered to let counsel explore the issue in voir dire. The prosecutor then noted for the record that neither defendant wore prison garb or shackles, and the court observed that the defendants were “nicely dressed in oxford shirts, and one of them has on a tie, and they are not restrained in any fashion.”

Subsequently, defense counsel elected not to explore the possibility of bias during voir dire. In the absence of evidence showing a taint, Vongthong cannot satisfy his burden of establishing prejudice that would require a new trial. Casey v. State, 237 Ga. App. 461, 462 (1) (515 SE2d 429) (1999). The trial court did not err in denying Vongthong’s motion for new trial.

Judgment affirmed.

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


author: Mikell, Judge.

text:
    A00A1322.
    GCA STRATEGIC INVESTMENT FUND, LTD. v. JOSEPH CHARLES & ASSOCIATES, INC. et al.
    (537 SE2d 677)
   Mikell, Judge.

GCA Strategic Investment Fund Limited (“GCA”) purchased 2,000 shares of preferred stock in Integrated Medical Resources, Inc. (“IMRI”) three weeks before IMRI declared bankruptcy. GCA sued the seller and broker alleging, inter alia, fraud and misrepresentation. The trial court dismissed the complaint for failure to state a claim upon which relief can be granted, and GCA appeals. We affirm as to the seller but reverse as to the broker.

Construed most favorably to GCA, the complaint shows that GCA purchased a portfolio of five securities, including the IMRI stock, for $2.8 million. The sale was governed by a Securities Purchase Agreement (“Agreement”) executed by GCA and the seller, ProFutures Special Equities Fund, L.P., as represented by ProFutures Fund Management, Inc. and its president, Gary D. Halbert. Barry Hayut, a registered representative of Joseph Charles & Associates, Inc., (“broker”) brokered the transaction on behalf of the seller but did not execute the Agreement.

Shortly after IMRI became insolvent, GCA demanded rescission of the sale of the IMRI securities. GCA tendered the IMRI shares to the seller and requested payment of $1.3 million. In its complaint GCA alleged that it paid $1.6 million for the IMRI stock. The Agreement did not specify a separate price for any of the five securities.

GCA’s demand was declined, prompting this suit against the broker, the seller, the seller’s general partners, and the partners’ principals (collectively “seller”). GCA asserted five counts against all defendants: violation of the Georgia Securities Act, common law fraud, negligent misrepresentation, conspiracy, and attorney fees. GCA also claimed breach of contract, conversion, and rescission against the seller. A consent order was entered dismissing the breach of contract and conversion counts and the claim for attorney fees insofar as it related to those counts. Therefore, in this appeal we are concerned with only the remaining claims.

The complaint alleged as. follows: the seller purchased the IMRI stock on July 15,1998; IMRI’s financial condition substantially worsened thereafter; the seller, knowing that IMRI desperately needed an infusion of cash, “decided to unload the Preferred Stock before IMRI was forced to declare bankruptcy”; the seller retained the broker to find a buyer, and the broker approached GCA; and during the negotiations, the broker told GCA that IMRI “was the best company it had in its portfolio, and that it had good management.”

1. The trial court did not err in ruling that the Agreement barred GCA’s tort claims against the seller.

The general rule is that an attack upon a complaint for failure to state a claim upon which relief can be granted should not be sustained unless the averments in the complaint disclose with certainty that plaintiff would not be entitled to relief under any state of facts that could be shown in support of the claim. But here plaintiff relies upon the written . . . agreement, a copy of which is attached to the complaint as an exhibit.

“Where a party relies on a written instrument as the basis of an action, and attaches a copy of the instrument as an exhibit, the facts shown in the exhibit will prevail over the allegations of the party in the pleading.”

The Agreement, which GCA attached to its complaint, contains five relevant provisions. First, GCA warranted that it was an “accredited investor” and a “qualified purchaser” as defined by federal securities regulations. Second, GCA warranted that it was given access to, and an opportunity to inspect, all relevant financial information that it deemed necessary to make an informed investment judgment. Third, GCA represented that it possessed a level of knowledge and experience sufficient to render it capable of evaluating the merits and risks of the investment and that it could afford to bear the risk of losing the entire investment. Fourth, GCA agreed that the seller made no representation or warranty as to the performance of the securities. Finally, GCA and the seller agreed that the Agreement set forth the entire understanding of the parties and could not be altered or revised except by a writing signed by both parties.

A party who was fraudulently induced by misrepresentations into entering into a contract may elect one of two actions: affirm the contract and sue to recover damages for its breach or rescind the contract and sue in tort to recover the contract’s consideration as well as damages for fraud. However, if the party elects to affirm the contract, he or she is bound by its terms. As such, the contract’s merger clause estops the party from asserting that he or she relied upon representations not contained in the contract.

Relying on Meason v. Gilbert, GCA argues that the Agreement’s merger clause cannot bar its tort claims. In Meason, the Supreme Court of Georgia found unenforceable a stock purchase agreement’s merger clause which stated that no representations other than those contained in the prospectus induced the purchaser to buy certain securities. The purchaser alleged that he had been induced to buy the securities by fraudulent oral misrepresentations. The Supreme Court held that to allow a purchaser to waive all violations of the Georgia Securities Act by contract would eviscerate the protections of that Act and that such a waiver would be void.

Meason is distinguishable for the reason that the purchaser in Meason sought rescission of the contract. In the instant case, however, GCA sought to rescind only the purchase of IMRI stock, while retaining the benefits of the remainder of the Agreement. In fact, GCA originally sued for breach of contract to recover dividends payable on another security purchased pursuant to the Agreement.

To effect a complete rescission, all the parties must be returned as nearly as possible to the status quo ante; there is no room for one party to have its cake and eat it, too. Ordinarily, then, one cannot in equity seek to rescind a contract [(here the sale of the IMRI stock)] on the ground of fraud, and at the same time retain the benefits derived from that contract [(here certain stock dividends)].

In Georgia, partial rescission of a contract cannot occur absent mutual assent of the parties. Moreover, GCA failed to enumerate as error the trial court’s ruling that GCA could not effect a partial rescission. Thus, this Court is precluded from reviewing the propriety of that ruling. Therefore, GCA’s attempted rescission is invalid, and GCA is bound by the merger clause. It follows that the trial court correctly dismissed GCA’s claims for securities fraud, common law fraud, negligent misrepresentation, and conspiracy against the seller.

2. Our affirmance of the dismissal of GCA’s claims against the seller defeats GCA’s conspiracy claim against the broker. “A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means.”

3. However, the trial court erred in dismissing GCA’s fraud and misrepresentation claims against the broker. The broker cannot rely on the merger clause to bar those claims because the broker was not a party to the Agreement.

We will address GCA’s claims of common law fraud and securities fraud together, as they involve similar elements.

The elements essential to an action in tort for damages resulting from a material misrepresentation constituting fraud are: (1) that the defendant made the representations; (2) that at the time he knew they were false . . .; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff [justifiably] relied on such representations; [and] (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.

To evaluate a claim of securities fraud under OCGA § 10-5-12 (a), we look to the similar elements a plaintiff must allege under section 10 (b) of the Securities Act of 1934: “1) a misstatement or omission, 2) of a material fact, 3) made with scienter, 4) on which plaintiff relied, 5) that proximately caused his injury.” Scienter must be pleaded with particular facts that give rise to a strong inference that the defendant acted in a severely reckless manner. “ ‘Severe recklessness is limited to those highly unreasonable omissions or misrepresentations that involve not merely simple or even inexcusable negligence, but an extreme departure from the standards of ordinary care. . . .’ ”

To show justifiable reliance on the misrepresented or omitted information sufficient to constitute securities fraud, GCA must show that “with the exercise of reasonable diligence [it] still could not have discovered the truth behind the fraudulent omission or misrepresentation.” Similarly, the element of justifiable reliance under common law fraud requires GCA to prove that it exercised due care to discover the fraud.

Misrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence. Moreover, a party is not justified in relying on and assuming to be true representations consisting of mere expressions of opinion, hope, expectation, puffing, and the like; rather, representations of this nature must be inquired into and examined to ascertain the truth.

In reviewing the grant of the broker’s motion to dismiss, our inquiry is limited to whether, in light of the representations GCA made in the Agreement, any evidence could be introduced sufficient to warrant a recovery against the broker for fraud or negligent misrepresentation.

Decided July 18, 2000

Reconsideration denied August 4, 2000.

Sutherland, Ashill & Brennan, Steven L. Polk, Lauren E. Wagner, for appellant.

Long, Aldridge & Norman, Terry R. Weiss, James T. Mast, Parker, Hudson, Rainer & Dobbs, David G. Russell, G. Wayne Hillis, Jr., for appellees.

In the Agreement, GCA represented itself as an “accredited investor” and a “qualified purchaser.” As such, the broker argues, GCA is held to the standard of a “sophisticated business [entity] from whom greater diligence is required before reliance upon representations may be considered justified.” Moreover, GCA warranted that it had access to, and an opportunity to inspect, all relevant information and make an informed investment decision concerning its acquisition of IMRI stock. Thus, the broker contends, the Agreement precludes GCA from showing that it justifiably relied on any statement made by the broker. “Questions of fraud, the truth and materiality of representations made by a defendant, and whether the plaintiff could have protected himself by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury.” In reviewing the dismissal of GCA’s claims, we must accept as true GCA’s allegation that the broker stated that IMRI “was the best company it had in its portfolio.” At this procedural juncture we cannot conclude that the broker has demonstrated that GCA “could not possibly introduce evidence . . . sufficient to warrant a grant of the relief sought.”

Accordingly, the trial court erred in granting the broker’s motion to dismiss GCA’s claims of securities fraud, common law fraud, negligent misrepresentation, and attorney fees pertaining thereto for failure to state a claim upon which relief can be granted.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Miller, J., concur.

       Hayut has never been served and thus is not a party.

       OCGA § 10-5-12 (a).

       (Citation omitted.) Sitzer v. Lang, 145 Ga. App. 159 (243 SE2d 95) (1978).

        H & R Block v. Asher, 231 Ga. 780, 781 (204 SE2d 99) (1974).

       See 17 CFR § 230.501 (a); 15 USC § 80a-2 (a) (51) (A).

        Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, 523 (1) (448 SE2d 271) (1994); see also Carpenter v. Curtis, 196 Ga. App. 234, 236-237 (395 SE2d 653) (1990).

       Id.

       236 Ga. 862 (226 SE2d 49) (1976).

       Id. at 863.

       (Citations and punctuation omitted.) Metter Banking Co. v. Millen Lumber &c. Co., 191 Ga. App. 634, 637 (382 SE2d 624) (1989).

        Feely v. First American Bank &c., 206 Ga. App. 53, 57 (2) (b) (424 SE2d 345) (1992).

        Felix v. State, 271 Ga. 534 (523 SE2d 1) (1999); see also Schill v. A. G. Spanos Dev., 217 Ga. App. 260, 262 (457 SE2d 204) (1995) (issues not enumerated as error deemed abandoned on appeal).

       See Hall v. Coram Healthcare Corp., 157 F3d 1286 (11th Cir. 1998) (dismissal of complaint for failure to state a claim under section 10 (b) of the Securities Exchange Act of 1934 affirmed in part due to merger clause in settlement agreement).

         (Citation and punctuation omitted; emphasis supplied.) U. S. Anchor Mfg. v. Rule Indus., 264 Ga. 295, 297 (1) (443 SE2d 833) (1994).

       (Punctuation omitted.) Lister v. Scriver, 216 Ga. App. 741, 745 (456 SE2d 83) (1995).

       17 CFR § 240.10b-5 (1992); see William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 636 (6) (466 SE2d 872) (1995).

        Bryant v. Avado Brands, Inc., 187 F3d 1271, 1281 (11th Cir. 1999).

       Id.

       Id. at 1282

        Gochnauer v. A. G. Edwards & Sons, 810 F2d 1042, 1047 (11th Cir. 1987).

        Todd v. Martinez Paint & Body, 238 Ga. App. 128, 129 (517 SE2d 844) (1999).

        William Goldberg & Co. v. Cohen, supra, 219 Ga. App. at 631 (1) (a).

       (Citation and punctuation omitted.) American Petroleum Products v. Mom & Pop Stores, 231 Ga. App. 1, 6 (2) (497 SE2d 616) (1998).

       (Footnotes omitted.) Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997).


author: Miller, Judge.

text:
    A00A0946.
    ARCE v. THE STATE.
    (538 SE2d 128)
   Miller, Judge.

The question on appeal is whether Miranda warnings must precede field sobriety tests during routine roadside questioning, where the detained driver is not under formal arrest but exhibits many physical manifestations of intoxication amounting to probable cause to arrest. We answer in the negative and affirm.

An officer observed Wanda Arce’s speeding vehicle make a right turn and slide sideways, travel down the wrong side of the road, turn into a service station, and stop. She jumped out and crouched or squatted beside the car. The officer activated his blue lights, pulled up behind her, and exited his patrol car. As he approached Arce, she stood unsteadily and balanced herself against her car. She smelled strongly of alcohol, had red, glassy-looking eyes, and slurred and mumbled her speech. She admitted to having four drinks.

The officer asked for her driver’s license and proof of insurance, neither of which she could find. He asked her to submit to field sobriety tests, to which she consented. She was unable to perform any of the three tests, at which point the officer placed her under arrest. A tow truck immediately arrived to tow her vehicle.

Following a bench trial, Arce was convicted of driving under the influence, having no proof of insurance, and driving left of the centerline. She appeals the denial of her motion to suppress the results of the field sobriety tests, arguing that the officer had her in custody at the time of the tests and thus under Price v. State was required to inform her of her Miranda rights before administering the tests.

No Miranda warnings are required before administering field sobriety tests during a traffic stop unless the suspect is in custody. Here the officer testified that he did not place Arce under arrest until after she completed the field sobriety tests. Arce counters that since the evidence was so overwhelming as to her intoxication and traffic violations, the officer obviously had more than sufficient probable cause to arrest her at the time he asked her to perform the sobriety tests and, therefore, they both understood that she was in custody.

This argument fails for two reasons. First, the officer testified that even though he had seen evidence of impairment, he wanted to do the field sobriety evaluations to see for himself. Second, Arce’s argument “would have us rule that once a police officer has probable cause to arrest, he must arrest and Mirandize. But that is not the law.” Rather, “the proper inquiry is whether the individual was formally arrested or restrained to the degree associated with a formal arrest, not whether the police had probable cause to arrest.” Thus, we have repeatedly held that even though the suspect exhibits obvious and clear signs of intoxication, police during a brief investigatory stop are free to conduct field sobriety tests without first giving Miranda warnings.

Decided August 4, 2000.

William H. Toler III, for appellant.

Gwendolyn R. Keyes, Solicitor, Thomas E. Csider, Lauren E. Waller, Assistant Solicitors, for appellee.

Here there was no evidence that the officer communicated to Arce anything other than that he was conducting a brief investigatory stop. He communicated no farther restraint until he placed her under arrest following the field sobriety tests. Although no evidence shows when the officer called for the tow truck, not until after the field tests did the tow truck appear. Absent the officer making a statement or taking an action that would cause a reasonable person to believe that she was under arrest and not temporarily detained for investigation, the officer’s belief that an arrest was imminent or that probable cause existed does not convert the stop into a custodial situation.

The court correctly denied the motion to suppress.

Judgment affirmed.

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

       OCGA § 40-6-391 (a) (1) (less safe driver).

       OCGA § 40-6-10 (a) (1).

       OCGA § 40-6-40 (a).

       269 Ga. 222, 225 (3) (498 SE2d 262) (1998).

        State v. Peters, 222 Ga. App. 484 (474 SE2d 623) (1996).

        See Nameth v. State, 234 Ga. App. 20, 21 (2) (505 SE2d 778) (1998).

        Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16) (1995).

       (Citations omitted.) Id.

        Lyons v. State, 244 Ga. App. 658, 662 (2) (535 SE2d 841) (2000); Lancaster v. State, 240 Ga. App. 359, 361-362 (2) (522 SE2d 30) (1999); Smith v. State, 236 Ga. App. 548, 550-551 (2) (512 SE2d 19) (1999), rev’d on other grounds, 272 Ga. 83 (526 SE2d 59) (2000); State v. Kirbabas, 232 Ga. App. 474, 475-477 (502 SE2d 314) (1998); State v. Pastorini, 222 Ga. App. 316, 317 (1) (474 SE2d 122) (1996) (whole court); see McConville v. State, 228 Ga. App. 463, 465-466 (1) (491 SE2d 900) (1997).

        Kirbabas, supra, 232 Ga. App. at 476; accord Lyons, supra, 244 Ga. App. at 662 (2); Lancaster, supra, 240 Ga. App. at 362 (2).