author: Mikell, Judge.

text:
    A02A0768.
    In re WAITZ.
    (567 SE2d 87)
   Mikell, Judge.

This is attorney Joseph L. Waitz’s appeal of the trial court’s order holding him in civil and criminal contempt. For the reasons that follow, we affirm.

The record shows that Waitz filed a Racketeer Influenced and Corrupt Organizations Act (RICO) action on behalf of a client against several defendants in Rockdale County Superior Court in November 2000. On January 25, 2001, Waitz and defense counsel entered into a consent protective order, which governed the disclosure and use of the information obtained from the defendants during the course of the litigation. On or about September 29, 2001, Waitz voluntarily withdrew as plaintiffs counsel due to health reasons. Several days later, Waitz, naming himself as the plaintiff, filed a lawsuit in federal court against several defendants, including three of those named in the superior court action.

The defendants filed a motion for an immediate hearing for sanctions and/or contempt, alleging that Waitz violated the consent protective order by using information gained through the state action to file his federal lawsuit. After a hearing during which Waitz testified extensively, the trial court found Waitz in civil and criminal contempt of court for violating the protective order. This appeal followed.

As this case involves criminal and civil contempt, we must apply two standards of review. “[0]n appeal of a criminal contempt conviction the appropriate standard of appellate review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” In civil contempt appeals, if there is any evidence from which the trial court could have concluded that its order had been violated, we are without power to disturb the judgment absent an abuse of discretion. Under both standards of review, we affirm.

There is no dispute that Waitz consented to the protective order in the previous litigation. Paragraph five of the protective order provided that “[a] 11 items and information designated as Confidential Information pursuant to paragraph 2 above shall be used only for the purpose of prosecution, defense, or settlement of the above-styled civil action, and for no other purpose.” Waitz testified that he understood that the protective order prohibited the use of information designated as confidential by the parties.

At the hearing on defendants’ motion, the defendants questioned Waitz about the sources of information that he used to draft numerous allegations of his federal complaint and to answer the mandatory disclosures. Waitz testified on his own behalf and was provided an opportunity to submit evidence in his defense. In his brief, Waitz, in an effort to identify his independent sources, recounts his testimony and refers to certain documents that he filed in response to defendants’ motion and conversations that he had with various individuals. After reviewing the record, we find that there was evidence to support the trial court’s finding that Waitz used information prohibited by the order in his federal action. Moreover, there was sufficient evidence to support that finding beyond a reasonable doubt. We discuss below some of the evidence upon which the trial court could have relied.

Waitz was asked, ‘You have utilized and cited a letter from these auditors to [defendant] OLMC, dated November, 13, 1998? Correct?” Waitz replied, “If you say I have, I have.” Waitz then testified that he obtained the information from an individual who obtained it from the Georgia Secretary of State’s Office. However he offered no testimony from that person or documents to prove the independence of his source. Waitz acknowledged that the January 8, 1992 OLMC board minutes were confidential and that he would have violated the protective order by using them, yet paragraph ten of his federal complaint reads in part, “[t]he fact that OLMC was designated by Mr. Hughes in the Minutes of January 8, 1992. . . .” Again, Waitz claimed that he gleaned the information from other sources but offered no such sources into evidence.

When asked about information that was contained in depositions that had been marked confidential, Waitz replied that he learned the information from another lawyer in the case but had not actually used the deposition transcripts to form the allegations in his complaint. In another instance, Waitz admitted that the only conversation that he had with a certain witness was when he deposed the witness, yet he based one of the paragraphs in his complaint on that witness’s deposition testimony. Waitz testified that he did not check to see if the deposition was marked confidential, but if it had been so marked, he was in error for using the information.

When asked if he wished to present evidence, Waitz indicated that he needed additional time to submit his documentary evidence and witness statements. Thus, the only evidence that Waitz offered at the hearing was his testimony and the documents he filed initially with his response to the motion for sanctions. Without documentary evidence of Waitz’s independent sources, we are left only with Waitz’s credibility to consider, which we cannot do. “Credibility of witnesses is necessarily a question for the trier of fact, in this case the trial court.” Therefore, viewed most favorably toward the defendants, we find that there was evidence to support the trial court’s finding of criminal contempt beyond a reasonable doubt. Furthermore, the same evidence supports the trial court’s judgment holding Waitz in civil contempt.

Decided June 14, 2002.

Darel C. Mitchell, for appellant.

Baker, Donelson, Bearman & Caldwell, Michael J. Powell, DeLong, Caldwell, Novotny & Bridgers, Edmund J. Novotny, Jr., Charles R. Bridgers, Suzanne K. Lehman, for appellee.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       That action is styled Nancy Fowler v. Our Loving Mother’s Children, Inc., Robert J. Hughes, Bernice A. Hughes, Jack Sweeney and Michael O’Conner.

       Waitz’s federal action is styled Joseph L. Waitz v. Robert J. Hughes, St. Josaphat Ukrainian Catholic Diocese, Bernice A. Hughes, Stephen H. Debaun, Michael J. Powell, Jack Sweeney and Ron Tesoriero.

         (Citation and punctuation omitted.) In re Irvin, 254 Ga. 251, 256 (2) (328 SE2d 215) (1985).

        Head v. Head, 234 Ga. App. 469, 472 (1) (507 SE2d 214) (1998).

        Brown v. Thomas, 257 Ga. 68, 69 (2) (354 SE2d 830) (1987).

        In re Irvin, supra.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A02A0217.
    ESTATE OF ANDERSON et al. v. MARTIN MARIETTA MATERIALS, INC. et al.
    (567 SE2d 33)
   Miller, Judge.

Musa Anderson (administrator of Jut Anderson’s estate) and others appeal from the trial court’s order granting summary judgment to Martin Marietta Materials, Inc. (“Martin Marietta”) and CSX Transportation, Inc. (“CSXT”) on plaintiffs’ claims under the Federal Employers’ Liability Act (“FELA”). 45 USC § 51 et seq. Appellants contend that the trial court erred by finding (1) that Jut Anderson was not an employee of CSXT, thereby shielding CSXT from liability under the FELA, and (2) that Martin Marietta was not a common carrier subject to liability under the FELA. We discern no error and affirm.

Viewed in the light most favorable to plaintiffs, the evidence reveals that Jut Anderson died after suffering severe injuries on his job. Anderson, a Martin Marietta employee since 1974, was injured while cleaning a Martin Marietta rail scale located on a sidetrack owned and maintained by Martin Marietta. The sidetrack was connected to CSXT’s main rail line, but was used solely for moving Martin Marietta product to be delivered to CSXT for transport. Martin Marietta employees would switch the CSXT rail cars onto the Martin Marietta sidetrack to facilitate the loading of the rail cars. The portion of the sidetrack where the accident occurred was located entirely on Martin Marietta’s property. Martin Marietta is not licensed to operate as a railway company.

The process of loading the CSXT rail cars consisted of CSXT delivering empty rail cars to Martin Marietta’s Camak quarry, where they were loaded with crushed stone by Martin Marietta employees. Once loaded, the cars were dropped into a storage area before being weighed. A loader was used to push the cars forward so that they would couple to a Martin Marietta locomotive parked in front of the scales. Before being moved from the quarry, the filled rail cars were weighed on a scale owned by Martin Marietta. A Martin Marietta locomotive then moved the cars on the sidetrack to a point where they were deposited for CSXT to pick up for transport on CSXT’s main line.

In order to facilitate this process of loading and weighing CSXT cars on the Martin Marietta sidetrack, Martin Marietta and CSXT entered into a “Sidetrack Agreement.” Under the agreement, Martin Marietta was required to “own and maintain in a manner satisfactory to the Chief Engineer of [CSXT], a weigh-in-motion track scale in the . . . Sidetrack. . . .” However, there is no mention in the agreement of CSXT having any supervisory authority whatsoever over any of Martin Marietta’s employees or the ability to use Martin Marietta’s scale.

On the day of his injury, Anderson was employed as the lead man for Martin Marietta’s load-out crew. He was cleaning one of the rail scales while a locomotive with ten loaded rail cars was approximately three feet behind him. When another Martin Marietta employee moved four additional rail cars to couple with the ten other cars attached to the locomotive, the impact caused the locomotive to roll forward, fatally injuring Anderson.

The administrator of Anderson’s estate and others sued Martin Marietta and CSXT under the FELA. Martin Marietta and CSXT moved for summary judgment, which the trial court granted, and plaintiffs now appeal.

1. Appellants argue that, contrary to the trial court’s findings, Anderson was actually an employee of CSXT at the time of his injury. We find this contention to be without merit.

On appeal from the grant of summary judgment, we conduct a de novo review of the evidence, viewed in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact remains and whether the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250-251 (510 SE2d 541) (1998).

Under the FELA, “[e]very common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier. . . .” (Emphasis supplied.) 45 USC § 52.

Under common-law principles, there are basically three methods by which a plaintiff can establish his “employment” with a rail carrier for FELA purposes even while he is nominally employed by another. First, the employee could be serving as the borrowed servant of the railroad at the time of his injury. Second, he could be deemed to be acting for two masters simultaneously. Finally, he could be a subservant of a company that was in turn a servant of the railroad.

(Citations omitted.) Kelley v. Southern Pacific Co., 419 U. S. 318, 324 (II) (95 SC 472, 42 LE2d 498) (1974).

The evidence is clear that Anderson was an employee of Martin Marietta and not CSXT. Anderson had been an employee of Martin Marietta since 1974 and was never employed by CSXT. There is no evidence that CSXT had control over Anderson or over any other Martin Marietta employees or that CSXT was affiliated with Martin Marietta in any way other than as that of a business partner. There is no evidence that CSXT owned Martin Marietta or had any sort of controlling interest in the company. The trial court did not err in granting summary judgment to CSXT.

2. Appellants further argue that the trial court erred by granting summary judgment to Martin Marietta, because the court erroneously concluded that Martin Marietta was not a “common carrier” under the FELA. We disagree with Anderson and affirm the judgment of the trial court.

A “common carrier by railroad” under the FELA is “one who operates a railroad as a means of carrying for the public, — that is to say, a railroad company acting as a common carrier.” Wells Fargo & Co. v. Taylor, 254 U. S. 175, 187 (3) (41 SC 93, 65 LE 205) (1920); see also Thaxton v. Norfolk Southern R. Co., 239 Ga. App. 18, 20-21 (1) (520 SE2d 735) (1999). “The term ‘common carrier’. . . shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier.” 45 USC § 57.

There is no evidence that Martin Marietta operated a railroad as a means of transporting the public. It merely operated a locomotive on its own property to load rail cars with its own product. There is no evidence that Martin Marietta had any ownership interest in CSXT. The undisputed facts establish that Martin Marietta operated its own business separate from that of the common carrier CSXT and in no way operated a public rail service. Since there is no evidence that Martin Marietta is a common carrier as that term is defined under the FELA, the trial court properly granted summary judgment to Martin Marietta.

Judgment affirmed.

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

Decided June 4, 2002

Reconsideration denied June 17, 2002

John M. Brown, for appellants.

Hill & Bleiberg, Gary Hill, Fulcher, Hagler, Reed, Hanks & Harper, James W. Purcell, Amy R. Snell, for appellees.


author: Barnes, Judge.

text:
    A02A0534.
    BOGGS RURAL LIFE CENTER, INC. v. IOS CAPITAL, INC.
    (567 SE2d 94)
   Barnes, Judge.

IOS Capital, Inc. sued Boggs Rural Life Center, Inc. on account, seeking accrued rent and accelerated rent on a copier in the amount of $25,819.74, plus additional interest, attorney fees, and costs. Boggs’ registered agent was served on May 1, 2001, but the nonprofit organization failed to answer the complaint. Boggs moved to open the default on September 5, 2001, but the trial court entered judgment against it on September 10, 2001. Boggs argues on appeal that the trial court erred in failing to rule on its motion to open the default before entering judgment against it. We agree and therefore reverse and remand.

Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds: providential cause, excusable neglect, or a proper case. The statute

conveys very ample powers as to opening defaults; not only providential cause, which is broad, and excusable neglect, which is still broader, but finally, as if reaching out to take in every conceivable case where injustice might result if the default were not opened, the section goes on to say, “where the judge from all the facts shall determine that a proper case has been made,” etc.

Axelroad v. Preston, 232 Ga. 836, 837 (1) (209 SE2d 178) (1974). The “proper case” ground “is broader than the other two. Its essence is the discretion of the trial judge.” Houston v. Lowes of Savannah, 136 Ga. App. 781, 782 (1) (222 SE2d 209) (1975).

The defendant must meet four conditions before the trial court may consider whether it met any of these three grounds. It must (1) make a showing under oath; (2) offer to plead immediately; (3) announce ready for trial; and (4) set up a meritorious defense. Boggs met the first requirement, a showing under oath, by filing the affidavit of one of its directors setting out both the reasons for the default and the company’s meritorious defense. Rapid Taxi Co. v. Broughton, 244 Ga. App. 427, 429 (2) (535 SE2d 780) (2000). It offered to plead immediately, attaching a copy of its proposed answer to the motion, tendered court costs, and announced ready for trial. Finally, it raised a meritorious defense “by showing that if relief from default is granted, the outcome of the suit may be different from the result if the default stands.” Exxon Corp. v. Thomason, 269 Ga. 761 (1) (504 SE2d 676) (1998).

Decided June 17, 2002.

Sutherland, Ashill & Brennan, Charles T. Lester, Jr., Valerie S. Sanders, for appellant.

David G. Crockett, for appellee.

A statute that confers discretion on a judge to decide a particular question “also imposes a correlative duty to exercise that discretion when the occasion arises.” Patel v. Gupta, 234 Ga. App. 441, 443 (507 SE2d 763) (1998). We have remanded for the exercise of that discretion in situations when, for example, a trial court determined, incorrectly, that a default judgment as to liability was a final order that could only be set aside under OCGA § 9-11-60. Cryomedics, Inc. v. Smith, 180 Ga. App. 336, 338 (349 SE2d 223) (1986); Daniell v. Heyn, 169 Ga. App. 772, 773 (1) (315 SE2d 284) (1984). Similarly, we remand this case to the trial court for a valid exercise of the judge’s discretion.

IOS Capital contends that Boggs should have moved to set aside a default judgment under the stricter requirements of OCGA § 9-11-60 instead of moving to open the default under OCGA § 9-11-55 (b), because the judgment was entered when it was signed on August 9, 2001. That is not the law, however. “The filing with the clerk of a judgment, signed by the judge, constitutes the entry of the judgment, and, unless the court otherwise directs, no judgment shall be effective for any purpose until the entry of the same, as provided in this subsection.” OCGA § 9-11-58 (b). Therefore, no default judgment had been entered in this case before Boggs properly moved to open the default pursuant to OCGA § 9-11-55 (b).

The judgment is reversed and the case is remanded with direction to the trial court to exercise its discretion in considering Boggs’ motion to open the default.

Judgment reversed and case remanded with direction.

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


author: Smith, Presiding Judge.

text:
    A02A0679.
    LEROY v. ATLANTA PROTECTIVE ASSOCIATES, INC.
    (567 SE2d 93)
   Smith, Presiding Judge.

D. Leroy McSmith, who also signs his name as “D. Leroy,” appeals pro se from the trial court’s order dismissing his complaint against defendant Atlanta Protective Associates, Inc. (APA). Finding no error, we affirm.

1. APA complains, with some justification, that Leroy’s brief is so minimal that “there is nothing for this Court to consider and Appellant’s Enumerations of Error should be deemed abandoned.” The brief, other than the cover sheet and certificate of service, consists of three partially complete pages. The entire argument comprises five sentences, with no citations to the record and only one citation of authority, to a Code section of general application. The argument contains only assertions of fact with no supporting citations or “reasoned argument in support thereof.” Joint Venture v. McDaniel, 224 Ga. App. 716 (1) (481 SE2d 836) (1997). The enumeration of error appears to complain that the trial court failed to issue a protective order, possibly referring to Leroy’s motion to compel, while the notice of appeal complains of the granting of a motion to dismiss. This brief is entirely inadequate.

“Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” Court of Appeals Rule 27 (c) (3) (i). “Any enumeration of error which is not supported in the brief by citation of authority or argument shall be deemed abandoned.” Court of Appeals Rule 27 (c) (2). “Moreover, even giving due consideration to appellant[’s] pro se pleadings, enumerations of error may not be enlarged by brief on appeal to cover issues not enumerated.” (Citations and punctuation omitted.) Howard v. DeKalb County Jail Staff, 205 Ga. App. 116, 117 (1) (421 SE2d 309) (1992). “Appellate judges should not be expected to take pilgrimages into records in search of error without the compass of citation and argument.” Sulejman v. Marinello, 217 Ga. App. 319, 320 (1) (457 SE2d 251) (1995).

2. To the extent that we can determine Leroy’s basis for complaint, which seems to be in the nature of fraud, the record does not show that the trial court erred in dismissing his complaint for failure to state a claim upon which relief could be granted. Even under the strict standard applicable to a motion to dismiss, see English v. Liberty Mtg. Corp., 205 Ga. App. 141, 142 (421 SE2d 286) (1992), Leroy’s complaint does not sufficiently allege a cause of action in fraud. He appears to contend that APA offered a life insurance policy as a benefit of employment, that he provided certain unspecified “personal information on the benefit card” in order to obtain that policy, but that he does not know if a policy was issued to him and seeks to “initiate discovery to determine if, in fact, plaintiff was ever issued a life insurance policy.” He alleges that discovery will show he does not have a policy. Even if we construe these pleadings in the light most favorable to Leroy, fraud requires five essential elements: “a false representation, scienter, inducement, reliance, and injury resulting from reliance on the false representation. [Cit.] Further, fraud must be pled with particularity. OCGA § 9-11-9 (b).” Little v. Fleet Finance, 224 Ga. App. 498, 500 (1) (481 SE2d 552) (1997). In this case, even if Leroy’s allegations are considered as true on a motion to dismiss, he has not alleged sufficient facts to make out a prima facie case. Id.

Decided June 17, 2002.

Smith, Gambrell & Russell, Robert P. Brown, for appellee.

3. APA’s motion for sanctions against Leroy for filing a frivolous appeal is denied.

Judgment affirmed.

Eldridge and Ellington, JJ, concur.


text:
    A02A0915.
    MORENO v. STRICKLAND.
    (567 SE2d 90)
   Barnes, Judge.

Jeremy David Strickland, an incapacitated adult represented by his guardian Shree Strickland, sued Brigido Servin Moreno for personal injuries he suffered while riding a motorcycle that collided with Moreno’s truck. In his answer, Moreno asserted the affirmative defense of accord and satisfaction. Strickland moved for partial summary judgment on Moreno’s accord and satisfaction defense, and after a hearing, the trial court granted partial summary judgment on this issue to Strickland. The court held that, as a matter of law, the parties did not reach a settlement agreement in this case.

On appeal, Moreno makes four arguments: (1) whether the parties reached a settlement agreement is a jury question; (2) no writing was required to make the agreement effective, but if one were, a writing exists; (3) the trial court improperly shifted the burden of production to the nonmovant, Moreno; and (4) a motion for summary judgment is not the proper avenue to defeat the affirmative defense of accord and satisfaction. Because we agree that, under these facts, whether the parties reached a settlement agreement is a jury question, we reverse the trial court’s grant of partial summary judgment to Strickland.

On appeal from the grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802-803 (500 SE2d 591) (1998).

Viewed in that light, the evidence shows that, on June 22, 2000, Strickland offered by letter to settle his claim with Moreno for liability insurance limits of $25,000, $500 property damages, $432 for a guardian bond, an affidavit that Moreno had no assets, and certain release language, specifying that the offer would expire on July 21, 2000. The attorneys for Strickland and Moreno agree that they spoke on the phone on July 18, 2000, but disagree on exactly what was said. Moreno’s attorney testified at deposition that the insurance company offered to pay policy limits before a demand was even made, and that he called Strickland’s attorney on July 18, 2000, to tell him he was authorized to accept the terms of the settlement offer, but did not have Moreno’s affidavit of no assets in hand. Moreno’s attorney further testified that he made a note to file on July 18, 2000, that said: “7/18/2000, telephone conference with Plaintiff’s attorney. I agreed to settle with indemnification language out of release, will pay bond premium. He said, no problem, I’m waiting on affidavit from Defendant.”

On July 26, 2000, Strickland sent another letter that stated: “This serves to confirm that our compromise offer of 6/22/00 has not been accepted. The offer expired at 5:00 p.m. local time on July 21, 2000. Specifically, I have not received the release nor monies.”

On July 27, 2000, Moreno hand-delivered a letter to Strickland, the contents of which are as follows:

This will confirm our conversation of Thursday, July 27, 2000. Furthermore, please find a draft and the settlement documents which you requested in the above-referenced case. Specifically, there is a Limited Release and three drafts, one for $25,000 for Shree Strickland, one for $500.00 for property damage and one for $432.00 for the Bond. As I told you when we spoke on July 18, 2000, I accepted all of the terms and conditions of your letter of June 22, 2000, and I was waiting to receive the Affidavit back from my clients. I received the Affidavit back, but it was not notarized. I am hand delivering this package to you today, and I certainly feel like with all the great lengths that we have gone to in this case, we have reached an amicable settlement. I am sorry if you misconstrued any of my statements to you, and I hope this resolves any and all issues. Please keep any and all settlement monies in your escrow account until the necessary approval is obtained from the Probate Court.

Moreno’s attorney sent another letter on September 13, 2000, enclosing the affidavit he “finally received back” from his client, and continuing:

I have heard nothing from you since our last meeting, and it was my understanding that your clients were going to discuss whether or not they would settle this case pursuant to a Limited Release as we agreed upon earlier and get back with me. On behalf of the defendant, Progressive still stands ready to pay your clients the policy limits in exchange for a Limited Release.

Finally, on September 19, 2000, Strickland’s lawyer replied to Moreno’s lawyer, stating among other things that Moreno failed to tender a release and affidavit “within the time limit set out in the offer.” He further stated, “I could not agree to a settlement without seeing the language of the limited liability release and affidavit to ensure their compliance with our offer of settlement.” Strickland filed suit against Moreno on October 12, 2000.

1. An accord and satisfaction is a contract, which requires a meeting of the minds to render it valid and binding. Woodstock Road &c. v. Lacy, 149 Ga. App. 593, 594 (1) (254 SE2d 910) (1979). A definite offer and complete acceptance, for consideration, create a binding contract. Herring v. Dunning, 213 Ga. App. 695 (446 SE2d 199) (1994). While an agreement may be oral, if the parties disagree on whether an agreement was reached, the agreement must be memorialized in a writing to be enforceable, Scott v. Carter, 239 Ga. App. 870, 873 (521 SE2d 835) (1999), and the absence of a writing prevents enforcement. LeCroy v. Massey, 185 Ga. App. 828 (366 SE2d 215) (1988).

This requirement of a writing goes to the certainty that an agreement exists and to the certainty of the terms of the agreement. . . . The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.

Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 676 (308 SE2d 544) (1983).

An attorney’s letter confirming an oral agreement in which one party accepted another party’s offer may constitute such a writing, Stacey v. Jones, 230 Ga. App. 213, 215 (2) (495 SE2d 665) (1998). Transcripts of telephone conversations between attorneys may “satisfy the writing requirement by providing certainty and finality as to the exact terms of the agreement.” Tranakos v. Miller, 220 Ga. App. 829, 833 (1) (470 SE2d 440) (1996). We have also held that an attorney’s handwritten notes may provide “some evidence upon which the court could base its decision about the existence and terms of the purported agreement,” although in that case the notes did not constitute a full and binding statement of the essential terms of the agreement. Tekin v. Whiddon, 233 Ga. App. 645, 647 (1) (504 SE2d 722) (1998).

In this case, the parties do not dispute the terms of the agreement, only whether the defendant accepted the offer. The file notes of Moreno’s attorney therefore provide some evidence regarding the existence of the agreement, as do the July 26, 2000 and September 19, 2000 letters from Strickland’s lawyer indicating he thought the offer had expired because he had not received the release, money, and affidavit in time. Additionally, the July 27, 2000 letter from Moreno’s attorney accepting the offer provides further evidence, sufficient to create a question of fact regarding whether the parties settled this claim, despite the fact that it was not written contemporaneously. See Stacey v. Jones, supra, 230 Ga. App. at 215. Therefore, the trial court erred in granting partial summary judgment to Strickland on Moreno’s affirmative defense of accord and satisfaction.

In this case, Strickland contends that Moreno’s failure to deliver the affidavit and release before the time limit expired means he did not accept the offer to settle. “An offer may be accepted, however, either by a promise to do the thing contemplated therein, or by the actual doing of the thing. The offer must be accepted in the manner specified by it; and if it calls for a promise, then a promise must be made; or if it calls for an act, it can be accepted only by the doing of the act.” (Citation and punctuation omitted.) Herring v. Dunning, supra, 213 Ga. App. at 699. Strickland’s offer to settle did not include the requirement that he receive the affidavit and release before the time limit expired, and his statement that he “could not agree to settlement without seeing” the papers reveals his misapprehension of the process. He is saying he offered settlement terms, but could not settle without ensuring that the documents complied with those terms. To the contrary, “the presentation of a proper release in a form acceptable to plaintiff may have been a condition of defendant’s performance but it was not an act necessary to acceptance of plaintiff’s offer to settle for the policy limits.” Id.

Decided June 17, 2002.

Downey & Cleveland, Joseph C. Parker, Sean L. Hynes, Gambrell & Stolz, Irwin W. Stolz, Jr., for appellant.

McNally, Edwards, Bailey & Lander, Donald W. Osborne, Vinson, Talley, Richardson & Cable, James G. Richardson, Michael T. Camp, for appellee.

2. In light of our holding in Division 1, we need not address the appellant’s remaining enumerations of error.

Judgment reversed.

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

       The affidavit Strickland initially drafted included a provision that Moreno owned no vehicles, but because he owned a truck, his lawyer redrafted it and sent it to Strickland. The redraft stated that Moreno had no real property “in the United States,” which Moreno’s counsel then redacted per Strickland’s request. This draft was sent to the wrong address for Moreno’s signature and then resent to the correct address, but Moreno returned it without having it notarized.


author: Johnson, Presiding Judge.

text:
    A02A1018.
    SECHLER FAMILY PARTNERSHIP et al. v. PRIME GROUP, INC. et al.
    (567 SE2d 24)
   Johnson, Presiding Judge.

This case involves an appeal by nonparties from a contempt order entered after the nonparties failed to comply with a court order directing them to respond to a party’s subpoenas. The thrust of the appeal is a challenge to the correctness of the discovery order compelling the nonparties to respond to the party’s subpoenas. Because we find that the trial court did not abuse its discretion in ordering the nonparties to respond to the party’s subpoenas, we affirm the trial court’s contempt order.

The underlying lawsuit is a contract dispute arising out of three agreements executed by plaintiffs Prime Group, Inc., Victor Mills, and Oliver Owens (“Prime Group”) and defendant Tucker Federal Bank on November 23, 1992. The three agreements at issue are: (1) an operating agreement between Prime Group and Tucker Federal Bank pursuant to which Prime Group agreed to sell and service construction loans and permanent residential loans for Tucker Federal Bank, (2) an employment agreement between Tucker Federal Bank I and Mills, and (3) an employment agreement between Tucker Federal Bank and Owens. The claims to be tried in the underlying suit involve breach of contract arising out of the operating agreement and employment agreements.

On September 30, 1999, Prime Group directed subpoenas for the production of documents to appellants Sechler Family Partnership, Empire Mortgage & Investment Company, Central Underwriters, Inc., Atlas Smith, Inc., Gwinnett Development & Investment Corporation, Georgia Commercial Properties Corporation, Key Property Management Services, Inc., Daniel Park Community Association, Inc., Baltimore Insurance, Sechler & Associates, and DeFoore House, Inc. (“the Sechler entities”). The subpoenas directed the Sechler entities, none of whom are parties to the underlying proceeding, to appear for deposition and produce the following designated documents:

(1) All documents evidencing, or referring or relating to work performed by Conrad J. Sechler, Sr., Conrad Sechler, Jr. or Frank Barton from November 23, 1992 to the present. (2) All documents evidencing, or referring or relating to any transactions, contracts or agreements between you and Tucker Federal Bank. (3) All documents constituting communications between you and any financial institution from November 23, 1992 to present. (4) All documents referring or relating to any corporation, partnership or other business entity in which Conrad J. Sechler, Sr., Conrad J. Sechler, Jr. or Frank Barton, individually or collectively, are believed by you to have or to have had an interest. (5) All documents evidencing, or referring or relating to any loan or other extension of credit obtained by you from November 23,1992 to the present.

Conrad Jerome Sechler, Jr. (“Sechler”) is the chairman and CEO of Tucker Federal Bank. Either Sechler or his father is an officer, director, managing partner, and/or stockholder of the Sechler entities.

On October 7, 1999, the Sechler entities filed a joint motion to quash the subpoenas, arguing that the subpoenaed documents are not relevant to the underlying action, the subpoenas were promulgated solely for the harassment of Sechler and improperly sought sensitive financial information, and the subpoenas failed to allow sufficient time for the Sechler entities to respond. Prime Group argued that the subpoenaed documents are relevant to their defense to Tucker Federal Bank’s counterclaim that Owens breached the terms of his employment agreement. Following oral argument, the motion to quash was denied, although compliance was limited to include only documents that concerned the activities of Sechler.

Rather than respond to the trial court’s order, the Sechler entities attempted to appeal the order to this Court. We denied review, holding that the trial court’s discovery order was a nonfinal order not subject to direct appeal. The Sechler entities sought review by the Supreme Court of Georgia, and review was denied. Prime Group subsequently filed a motion for contempt, which the trial court granted. The Sechler entities appeal from this contempt order, arguing that the trial court abused its discretion in denying their motion to quash the subpoenas issued by Prime Group and in entering its order of contempt.

1. Before reaching the merits of the Sechler entities’ enumerations of error, we must first address Prime Group’s argument that the sole issue on appeal is whether the trial court abused its discretion in ruling that the Sechler entities wilfully violated its discovery order. According to Prime Group, the merits of the discovery order, which the Sechler entities admit they violated, are not relevant to the issue of contempt, and the Sechler entities are limited to arguing error in the trial court’s contempt order, and not error in the trial court’s original order directing the Sechler entities to respond to Prime Group’s subpoenas. We disagree.

This Court has previously held that in every case where a person is charged with contempt of court for alleged violations of a court’s order, the legal correctness of the underlying order may be challenged on appeal. Thus, the Sechler entities have the right in this appeal to challenge the correctness of the discovery order compelling them to respond to Prime Group’s subpoenas.

2. We also must address the Sechler entities’ request that this Court adopt a standard of review other than abuse of discretion in this case. The Sechler entities acknowledge that, ordinarily, discovery matters are within the trial court’s sound discretion and, absent a clear abuse of that discretion, this Court will not interfere with the trial court’s decision. The rationale for the rule is clear: the trial judge, who is familiar with the particulars of the case, is in the best position to rule on discovery matters. However, citing federal district cases from Texas, New York, and South Carolina, the Sechler entities urge this Court to adopt a standard of review recognizing that a non-party who receives discovery is entitled to additional deference so as to protect against harassment, inconvenience, or unnecessary disclosure of confidential documents. We decline to adopt such a standard.

OCGA § 9-11-34 (a) (1) provides that a party may request that another party produce documents containing matter discoverable within the scope of OCGA § 9-11-26 (b), which is the general discovery provision establishing that parties may discover any non-privileged matter which is relevant to the subject matter involved in the pending action. OCGA § 9-11-34 (c) (1) establishes that the discovery of nonprivileged documents also applies to nonparties. As with discovery requested from parties, the only requirements placed by the Georgia legislature on discovery requested from nonparties is that the documents must be relevant and nonprivileged.

Furthermore, the trial court has wide discretion in the entering of orders permitting or preventing the use of discovery which is oppressive, unreasonable, unduly burdensome or expensive, harassing, harsh, insulting, annoying, embarrassing, incriminating, or directed to wholly irrelevant and immaterial or privileged matters or as to matter concerning which full information is already at hand. This use of discretion applies to nonparties as well as parties to an action. In fact, using the abuse of discretion standard, this Court has previously reversed a trial court’s grant of a protective order to non-parties, holding that the trial court improperly limited a party’s document requests from nonparties. We will employ the abuse of discretion standard in this case.

3. In their first enumeration of error, the Sechler entities argue that the trial court abused its discretion in denying their motion to quash the subpoenas and entering its order of contempt based on the expression, “what’s good for the goose is good for the gander.” According to the Sechler entities, this rule is inapplicable to discovery disputes and has been rejected by various federal courts. Moreover, since the Sechler entities are neither plaintiffs nor defendants in the underlying action, they cannot be characterized as the “goose” or the “gander.”

While the trial court’s use of this expression was unfortunate, it does not negate the fact that the trial court used the correct standard in ruling on the discovery issue. The record in the present case clearly shows that the trial judge understood the requirement that the discovery requested be relevant to the litigation. Moreover, even if the trial judge considered the fact that Tucker Federal Bank had received comparable discovery in issuing his order, the Sechler entities have cited no authority prohibiting such consideration. Here, the record shows that the trial court considered whether the documents subpoenaed by Prime Group are relevant to their claims and defenses and ruled that the documents are relevant. The Sechler entities have failed to demonstrate a clear abuse of discretion by the trial court.

4. The Sechler entities contend the trial court abused its discretion in denying their motion to quash the subpoenas and entering its order of contempt because the subpoenaed documents concern transactions and activities of nonparties and are irrelevant. The Sechler entities argue that Sechler’s employment, and evidence that Tucker Federal Bank tolerated certain behavior by him, is not relevant to Tucker Federal Bank’s counterclaim against Owens for breach of his employment agreement. They argue that the employment agreements with Mills and Owens differed from Sechler’s employment agreement, which expressly permitted Sechler to engage in business with third parties.

Tucker Federal Bank asserts in its counterclaim that Owens violated the “full time” provision of his employment agreement by engaging in certain outside business with third parties. According to Tucker Federal Bank, Owens was terminated because he did not devote his full time to the business of Tucker Federal Bank. The bank relies on a provision in Owens’ employment agreement stating that Owens “shall devote his best efforts and his full time to the duties and responsibilities assigned to him in the furtherance of the business of Tucker Federal.”

Prime Group contends that Tucker Federal Bank’s stated reason for Owens’ termination is pretextual and inconsistent with its interpretation of such requirements with respect to other executives of the bank. In defense of Tucker Federal Bank’s assertion, Prime Group is attempting to show that Tucker Federal Bank’s Chairman of the Board, Sechler, had employment agreements containing substantially the same “full time” provision as Owens’ employment agreement, and yet he engaged in outside business with third parties without any reprisal from Tucker Federal Bank. While Tucker Federal Bank argues that Sechler’s employment contract was different from Owens’ employment contract, the record shows that, at various points in time, Sechler’s employment agreements contained a “full time” provision similar to that in Owens’ employment contract. In addition, while Sechler’s 1997 employment agreement contained an addendum which expressly permitted Sechler to engage in business with certain third parties, not all of the Sechler entities were listed in this addendum.

Given the fact that Tucker Federal Bank has put in issue the propriety of engaging in outside business activities and has taken the position that such conduct violates an executive’s “full time” obligations to the bank, Sechler’s alleged outside business activities become relevant to show that Tucker Federal Bank’s purported reasons for firing Owens are pretextual. Documents showing Sechler’s outside activities, therefore, are relevant to show that Owens did not breach his employment agreement based on Tucker Federal Bank’s own course of conduct and its understanding of what the “full time” provision required. The trial court did not abuse its discretion in finding that Prime Group’s subpoenas requested relevant discovery material.

5. The Sechler entities next argue that the trial court abused its discretion in denying their motion to quash the subpoenas and entering its contempt order because the production of sensitive financial documents invades the nonparties’ rights to privacy. According to the Sechler entities, the inquiry into the relationship between Sechler and the Sechler entities is tantamount to an inquiry into the financial status of these nonparties, and financial privacy has been held to be a right subject to protection when the requested information serves no real purpose. The Sechler entities argue that their right to privacy demands an even more stringent evaluation because they are not parties to the underlying litigation. We find that the trial court’s ruling does not violate the Sechler entities’ privacy rights as nonparties.

Here, the subpoenas request nonprivileged, relevant information. Although the discovery does seek financial information, there is no evidence that the information could be obtained by other means or that Prime Group’s subpoenas are meant merely to embarrass or harass Sechler. In fact, while it is true that Sechler is not a party to the underlying action, Sechler personally fired Owens and helped formulate the reason for his termination on behalf of Tucker Federal Bank.

Moreover, a confidentiality order has been entered in this case, and the Sechler entities may seek an additional confidentiality order if necessary. When parties or nonparties contend that discovery requests unduly invade their privacy, suitable protective orders insuring confidentiality may be sought. The record does not reflect that the Sechler entities requested any such order. And, even if the documents sought to be produced are not themselves admissible evidence, they are still discoverable so long as they appear reasonably calculated to lead to the discovery of admissible evidence. “The discovery procedure is to be given a liberal construction in favor of supplying a party with the facts without reference to whether the facts sought are admissible upon the trial of the action.” The trial court did not abuse its discretion in denying the Sechler entities’ motion to quash the subpoenas and in entering its order of contempt in this case.

Decided May 29, 2002

Reconsideration denied June 18, 2002

Schreeder, Wheeler & Flint, David H. Flint, Alexander J. Simmons, Jr., Julia C. Thompson, for appellants.

King & Spalding, Michael W. Johnston, Rebecca C. Moore, David J. Onorato, Bettina W. Yip, Hull, Towill, Norman, Barrett & Salley, David E. Hudson, for appellees.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

       This Court recently affirmed the trial court’s order granting, in part, and denying, in part, Prime Group’s and Tucker Federal Bank’s cross-motions for summary judgment. Tucker Fed. Bank v. Prime Group, 252 Ga. App. XXVII (November 7, 2001) (not to be officially reported).

        Sechler Family Partnership v. Prime Group, Case No. A00A1836 (decided May 3, 2000).

        Sechler Family Partnership v. Prime Group, Case No. S00C1652 (decided April 6, 2001).

        Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 809 (1) (555 SE2d 175) (2001).

        Pagel v. Lemcke, 245 Ga. App. 243, 244 (2) (537 SE2d 694) (2000).

        Young v. Jones, 149 Ga. App. 819, 824 (4) (256 SE2d 58) (1979).

       See Clayton County Bd. of Tax Assessors v. Lake Spivey Golf Club, 207 Ga. App. 693, 695 (2) (428 SE2d 687) (1993).

        Borenstein v. Blumenfeld, 151 Ga. App. 420 (260 SE2d 377) (1979).

       See Clayton County Bd. of Tax Assessors, supra.

        McGinn v. McGinn, 273 Ga. 292, 294 (540 SE2d 604) (2001); Apple Investment Properties v. Watts, 220 Ga. App. 226, 229 (3) (469 SE2d 356) (1996).

       OCGA § 9-11-26 (b) (1).

       (Citations and punctuation omitted.) Clayton County Bd. of Tax Assessors, supra at 696.


text:
    A02A0188.
    TAYLOR v. GOLDEN CORRAL CORPORATION.
    (567 SE2d 109)
   Barnes, Judge.

This case arises from a slip and fall that occurred at a Golden Corral restaurant. Mildred Taylor sued the Golden Corral Corporation, alleging that she was injured when she fell at the restaurant. The trial court granted summary judgment to Golden Corral, finding that it lacked actual or constructive knowledge of the hazard on its premises. The trial court also found that, even if Golden Corral knew of the hazard, Taylor failed to produce evidence that she lacked knowledge of the hazard despite exercising ordinary care. Taylor contends that a jury issue exists. We agree and thus reverse.

On appeal, we review the trial court’s grant of summary judgment de novo to determine if the evidence demonstrates any genuine issue of material fact. Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 747 (527 SE2d 36) (1999). To prevail, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. Id. “A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

When viewed in the light most favorable to Taylor, the nonmov-ant, the evidence shows that at approximately 11:15 on the morning of January 27, 1999, Taylor went to the Golden Corral restaurant for a lunch meeting with some of her co-workers. The restaurant opened at 11:00 a.m. and was “dry mopped” at that time. “Dry mopping” refers to Golden Corral’s practice of “slightly dampening a mop with clear, hot water, and wiping it across the tiled surface.”

Taylor noticed that there were several “wet floor” cones located on the tile around the buffet food bar area. While attempting to traverse the area to get food from the buffet, Taylor slipped and fell on a tile which she described as “soapy” and “greasy.” The slippery substance left a “greasy” stain on her slacks, which dry cleaning did not remove. After receiving treatment for a broken ankle at the hospital, Taylor called the store’s manager, Galina Pollard, later that evening to report the incident. She said that Pollard told her that shortly before her fall, an employee mopped up spaghetti from that area.

In her affidavit, Pollard denied that there was a spaghetti spill that morning and said that the floors were still clean from the night before. She also averred that “only clear, hot water is used in cleaning the tile floor area and buffets. No soap whatsoever is added to the water during the cleaning of these areas.” She explained that as part of Golden Corral’s policies and procedures, “employees are reminded to be constantly on the lookout for any food, liquid or other substance on the floor.” Pollard also said that she had visually inspected and walked through the area where Taylor fell “numerous times” before Taylor’s fall.

“To recover for injuries sustained in a slip-and-fall action, . . . the invitee must prove (1) that the owner had actual or constructive knowledge of the hazard, and (2) that the plaintiff lacked knowledge of the hazard, despite the exercise of ordinary care, due to actions or conditions within the control of the owner.” (Citations omitted.) Kauffman v. Eastern Food &c., 246 Ga. App. 103, 104 (2) (539 SE2d 599) (2000). With respect to the first element, a defendant moving for summary judgment discharges its burden by “pointing out by reference to the record that there is an absence of evidence to support the [plaintiffs] case.” (Punctuation omitted.) Hardee’s Food Systems v. Green, 232 Ga. App. 864, 865 (502 SE2d 738) (1998). “[T]he plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997). Moreover, premises liability cases are not susceptible to summary adjudication except where the evidence is “plain, palpable, and undisputed.” Id. at 748 (2) (b).

1. Taylor contends that genuine issues of material fact exist as to Golden Corral’s liability, including its knowledge about the greasy substance that created the hazard. She points to the statement made by Pollard the evening of her fall. Taylor testified that, while she was aware that the floor was wet and had “walked on wet places before,” she did not expect the floor to be “greasy” or “soapy.” Golden Corral contends, and the trial court agreed, that Pollard’s statement was inadmissible hearsay and could not be considered on the motion for summary judgment. We do not agree.

While “ ‘[e]vidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial,’ [cit.],” Hagan v. Goody’s Family Clothing, 227 Ga. App. 585, 586 (490 SE2d 107) (1997), “an out-of-court declaration made by an agent during the existence and in the pursuance of his agency is admissible against the principal as an exception to the rule against hearsay.” (Citation and punctuation omitted.) Watson v. Kroger Co., 231 Ga. App. 741, 742-743 (1) (500 SE2d 631) (1998). In this case, Pollard’s statement was within the scope of her employment with Golden Corral, as it related to Golden Corral’s knowledge of the hazard and its actions regarding the cleanup of an alleged spaghetti spill shortly before Taylor’s fall. Thus, the statement was admissible as an admission against interest. See id. Compare Barich v. Cracker Barrel &c., 244 Ga. App. 550 (536 SE2d 221) (2000) (evidence imputing superior knowledge only at the suggestion of a statement allegedly made by a mystery waitress was hearsay).

Although Pollard denied in her affidavit that there was a spaghetti spill the morning of the incident, a jury could disbelieve this testimony and find that she in fact told Taylor otherwise. Accordingly, Pollard’s statement was sufficient to create an issue of fact regarding whether Golden Corral had actual knowledge that there was grease on the floor and had the opportunity to protect its customers from the hazard of slipping in the substance.

2. Golden Corral argues that even if it is established that it had knowledge of the hazard, Taylor had equal knowledge and failed to exercise care on the slippery floor. It argues that Taylor’s own testimony that she saw “wet floor” signs around the buffet before walking in the area demonstrates this knowledge.

As stated above, a plaintiff’s burden of producing rebuttal evidence that her failure to see the hazard was due to conditions under the defendant’s control arises only after it has been shown that the defendant had knowledge of the hazard, and the defendant presents evidence that the plaintiff’s voluntary or casual negligence proximately caused the plaintiff’s injuries. Robinson, supra, 268 Ga. at 747-748.

Here, Taylor testified that she saw “wet floor” cones all around the buffet area and saw that the area was wet, but she elected to proceed because she had “walked on wet places before” and that she had “to walk on it if you get your food.”

Such testimony might at first seem to foreclose recovery because ordinarily, if an invitee knows of the condition or hazard, the proprietor has no duty to warn and incurs no liability for any resulting injury, because the invitee has as much knowledge as the proprietor does. Denham v. Young Men’s Christian Assn. &c., 231 Ga. App. 197, 199 (499 SE2d 94) (1998) (physical precedent only). See also Cleghorn v. Winn Dixie Stores, 228 Ga. App. 766 (492 SE2d 745) (1997).

However, in construing the evidence most favorably to Taylor, we find that a jury issue remains regarding Golden Corral’s liability. The facts are conflicting as to whether there was a spaghetti spill which left a greasy substance on the floor and whether Golden Corral adequately cleaned the area after the spill. There is also evidence that Golden Corral failed to follow its own policy of cleaning the tiled area using no soap, only “clear, hot water.” If so, this would confirm that the area was not only wet, but slippery. While one might argue that a wet area is by default slippery, we choose not to enter a discourse on degrees of slipperiness or the requisite care one must employ when navigating wet floors.

While not an insurer of the invitee’s safety, the owner/occupier is required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/ occupier has superior knowledge. The owner/occupier owes persons invited to enter the premises a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk or to lead them into a dangerous trap. The owner/occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters.

(Emphasis supplied.) Medley v. Home Depot, 252 Ga. App. 398, 400 (555 SE2d 736) (2001).

Accordingly, given the evidence that there was a substance other than water on the tile surrounding the buffet and that Golden Corral failed to follow its own policies regarding the use of soap on the tile floor, “[t]he question whether [Taylor] should have appreciated the invisible risk imposed by the wet, slippery floor . . . involves proximate cause and comparative negligence. In this case, these are questions for the jury — and not this Court — to determine.” Gourley v. Food Concepts, 229 Ga. App. 180, 183 (493 SE2d 587) (1997).

Thus, we cannot say as a matter of law that Taylor was not exercising ordinary care for her own safety when she traversed the buffet area, despite the wet floor and “wet floor” cones. “It is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely her knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which plaintiff observes and avoids.” (Punctuation omitted.) Gourley, supra, 229 Ga. App. at 180. “[T]he issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.” Robinson, supra, 268 Ga. at 748.

Decided June 18, 2002.

Mayer & Beal, Andrew M. Beal, for appellant.

Webb, Zschunke, Miller & Dikeman, Edward A. Miller, Eric J. Sharon, for appellee.

The evidence in this case is not “plain, palpable, and undisputed,” within the meaning of Robinson, and thus the grant of summary judgment to Golden Corral was in error. See McHenry v. Longhorn Steak, 253 Ga. App. 833, 835 (560 SE2d 731) (2002).

Judgment reversed.

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


text:
    A02A0285.
    ST. GERMAIN v. THE STATE.
    (567 SE2d 107)
   Barnes, Judge.

A jury found Gilíes St. Germain guilty of driving under the influence to the extent it was less safe to drive and driving with an unlawful blood alcohol content. The trial court merged the less safe conviction into the per se DUI conviction for sentencing purposes. St. Germain appeals, contending that the trial court erred by denying his motion to suppress the results of the breath test and in failing to grant a mistrial after a witness had contact with the jurors. He also asserts the general grounds. For reasons that follow, we affirm.

1. St. Germain contends the implied consent warning he received was inadequate under OCGA § 40-5-67.1 (b) because it failed to advise him that the test results would be used against him in a court of law. We find no merit in this enumeration. First, the warnings required by OCGA § 40-5-67.1 (b) do not include language advising that the test results can be used in a trial. Second, our Supreme Court determined in Klink v. State, 272 Ga. 605, 606-607 (1) (533 SE2d 92) (2000), that the implied consent warnings do not violate due process by failing to tell the suspect that the test results can be used at trial.

2. St. Germain contends the trial court should have granted a mistrial after one of the arresting officers spoke to some of the jurors while entering the courtroom. The record shows only that the following transpired after the officer was called to the witness stand by the State:

Decided June 18, 2002.

Richard Young, for appellant.

Carmen D. Smith, Solicitor-General, Cynthia G. Strong, Jody L. Peskin, Assistant Solicitors-General, for appellee.

[DEFENSE COUNSEL]: Judge, can we come on up?
THE COURT: Come on up.
(Discussion ensued off the record.)
THE COURT: Folks, I am charged with the task of keeping this process of your getting evidence and deciding what justice is as pristine so that your verdict is also pristine. Upon this officer’s entry into the courtroom she spoke to several of you, I’m sure trying to be nice, but that would not be proper. You are not to consider that as part of the evidence. Your consideration should be within the parameters of the law that I give to you at the end of the case and based on the evidence, if there is such evidence in documentary form and evidence from the witness stand.

The record shows no objection or motion for mistrial by defense counsel before or after the trial court made this statement to the jury. Likewise, the record fails to show what the officer said to the jurors, precluding this court from determining whether any prejudice resulted. Under these circumstances, appellant waived any alleged error by failing to perfect the record. See Gray v. State, 222 Ga. App. 626, 633 (5) (476 SE2d 12) (1996).

3. In his remaining enumeration, St. Germain disputes the sufficiency of his less safe conviction by pointing to alleged problems with the administration of field sobriety tests.

However, we need not address this enumeration. The trial court merged [the less safe count] into the [per se] conviction for driving with an unlawful blood alcohol content. The only DUI sentence was entered on that count. We need not consider an enumeration of error which addresses the sufficiency of the evidence to convict on a count on which the trial court failed to enter judgment.

Duvall v. State, 250 Ga. App. 87, 89 (3) (550 SE2d 479) (2001). Judgment affirmed. Pope, P. J., and Ruffin, J., concur.


text:
    A02A0462.
    ARBOR STATION HOMEOWNERS SERVICES, INC. v. DORMAN.
    (567 SE2d 102)
   Barnes, Judge.

Arbor Station Homeowners Services, Inc. appeals the trial court’s judgment holding that the declaration of covenants and restrictions recorded in 1976 expired in 1996, awarding $369.40 against a property owner, and denying attorney fees. Because we find that the trial court erred in holding that the declaration expired, we reverse in part. We affirm, however, that portion of the trial court’s order denying an award of attorney fees.

Arbor Station is a homeowners association authorized by a declaration of covenants and restrictions to levy and collect assessments for common expenses from property owners in the Arbor Station development. It sued property owner Catherine M. Dorman for unpaid assessments of $547.47, plus costs, late charges, interest, and attorney fees. After Dorman answered and both parties moved for summary judgment, the trial court issued an order finding that Dorman owed assessments from the date she bought the property through May 6, 1996, the date the restrictive covenants expired.

After Arbor Station unsuccessfully sought interlocutory appeal of this order, the trial court held a hearing on damages at which Arbor Station presented evidence that accrued assessments totaled $133.74 principal and $42.66 interest, as well as $93 court costs. Arbor Station also presented evidence that its attorney fees and costs to date totaled $8,978.04. The trial court awarded the assessment, interest, court costs, and “$100 rather arbitrarily as other reasonable expenses,” for a total of $369.40. It declined to award attorney fees.

Arbor Station argues on appeal that the trial court erred in (1) holding that the declaration expired 20 years after it was recorded, so that Dorman was not liable for assessments after May 6, 1996; (2) considering defendant’s late brief in opposition to summary judgment; and (3) awarding no attorney fees and only $100 costs.

1. Arbor Station contends that the trial court erred in holding that the declaration expired after 20 years pursuant to OCGA § 44-5-60 (b), because the document itself provided that the covenants and restrictions in the declaration “shall be automatically extended for successive periods of ten (10) years.” When the declaration was recorded in 1976, the statute provided that “covenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws nor in those areas in counties for which zoning laws have been adopted.” A subsequent amendment provided that these covenants in planned developments of 15 or more plots would automatically renew for 20-year periods, OCGA § 44-5-60 (d) (1), but the statute in 1976 contained no such renewal provision.

However, pretermitting whether the restrictions in the declaration automatically renewed, the covenant that Arbor Station seeks to enforce here does not restrict the use of the land. Rather, it is an annual assessment to be used “exclusively to promote the recreation, health, safety and welfare of the resident of the Properties and in particular for the improvement, maintenance and operation of the Common Area and facilities.” In holding that a trial court erred in finding that a restrictive covenant mandating assessments to maintain amenities in a subdivision had to be affirmatively accepted because it did not pertain to land use, the Supreme Court of Georgia noted that “[t]he purpose of mandatory assessments is to maintain the common property in the subdivision for the use and enjoyment of all owners.” Timberstone Homeowner’s Assn. v. Summerlin, 266 Ga. 322, 324 (467 SE2d 330) (1996).

Because the trial court erred in holding that the covenant mandating payment of assessments expired in 1996, we reverse that portion of the trial court’s order and remand for a determination of the assessments and interest Dorman owes to the association.

2. Arbor Station further contends that the trial court erred in considering Dorman’s late-filed response to its motion for summary judgment. The record shows that Arbor Station’s motion was filed on May 8, 2000, and Dorman’s response was filed June 19, 2000. The trial court held: “Although Defendant’s response to Plaintiff’s Motion for Summary Judgment was untimely, the Court finds the interests of justice are served by considering Defendant’s response, so that the case is decided on its merits.”

The trial court has discretion in determining whether to consider an untimely response. Fowler v. Smith, 237 Ga. App. 841, 843 (1) (516 SE2d 845) (1999). We find no abuse of discretion here.

3. Finally, Arbor Station contends that the trial court erred in refusing to award attorney fees against Dorman. The declaration provides that the assessments, “together with interest thereon and costs of collection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lien,” as well as a personal obligation of the property owner. The declaration later specifies the interest as six percent and provides that the association may bring an action at law against the owner personally obligated or foreclose the lien against the property, but does not mention attorney fees.

“The general rule is that expenses of litigation, including attorney’s fees, are not recoverable by a litigant against the opposite party except in those cases which are specifically provided for by contract or by statute. [Cit.]” Hickman v. Frazier, 128 Ga. App. 552 (1) (197 SE2d 441) (1973). “The record in this case is devoid of any evidence showing an exception to this general rule. Further, there is no statutory provision authorizing recovery of attorney fees by a [plaintiff]. . . .” Johnson v. G.A.B. Business Svcs., 170 Ga. App. 686 (1) (318 SE2d 78) (1984). The trial court did not err in declining to award attorney fees to Arbor Station.

Decided June 18, 2002.

Weissman, Nowack, Curry & Wilco, George E. Nowack, Jr., Charles B. Waters, Jr., Richard S. Loudermilk, for appellant.

Joel E. Dodson, for appellee.

Judgment affirmed in part and reversed in part.

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


text:
    A02A0491.
    CITY OF DECATUR et al. v. DEKALB COUNTY.
    (567 SE2d 332)
   Miller, Judge.

The City of Decatur and several other cities appeal from the trial court’s judgment on the pleadings in favor of DeKalb County, ruling that an agreement between DeKalb and the cities violated the plain language of Georgia’s Homestead Option Sales and Use Tax (“HOST”) statute. OCGA § 48-8-100 et seq. On appeal the cities contend that the trial court erred by (1) holding that the Intergovernmental Agreement between DeKalb County and the cities violated the plain language of the HOST statute, (2) applying the wrong legal standard to DeKalb County’s motion for judgment on the pleadings, and (3) failing to hold that the Intergovernmental Agreement between DeKalb County and the cities was authorized by the Georgia Constitution. Since we find that the agreement in question violates the express provisions of the HOST statute, we discern no error and affirm.

The record reveals that in 1997 DeKalb County voters approved a HOST, which allowed the county to levy a one percent sales tax that would generate tax revenue to be used for a special district. OCGA § 48-8-102 (b). Pursuant to the HOST statute, a portion of the tax revenue, not to exceed 20 percent, must be used to fund capital outlay projects in the county. OCGA § 48-8-104 (c) (2) (A) (i), (ii). In order to facilitate the distribution of this revenue, DeKalb County entered into an Intergovernmental Agreement with several cities whereby it would expend some of the tax funds for capital outlay projects within the incorporated portions of the county. The agreement stated that:

DeKalb County, upon receiving the proceeds of the homestead exemption local option sales and use tax beginning with proceeds collected in the calendar year 1998, for a period of forty nine (49) years, or until such homestead exemption local option sales and use tax is terminated or discontinued by law or referendum, shall disburse on an annual basis to each Municipality a proportionate amount of the 20% allocation of the homestead exemption local option sales and use tax dedicated for capital outlay projects.

Although the cities were required to submit written reports to DeKalb County regarding what was being done with the disbursed proceeds, DeKalb had little power to control how the money was used. As stated in the agreement, the purpose of the written report was “to provide the County with an activities report and [was] not meant to grant or infer in any way project approval powers to the County, except to determine whether a project meets the criteria for a capital outlay project.” If one of the municipalities chose to use the disbursed revenue for an inappropriate purpose (something other than capital outlay projects), DeKalb’s only recourse under the agreement was to terminate the agreement with that municipality.

Pursuant to the sales and use tax, DeKalb County collected over $75 million in tax revenue. When several municipalities received less money than they expected to receive under their agreement with DeKalb, they sued DeKalb for breach of contract and attorney fees. DeKalb County moved for a judgment on the pleadings, contending that the agreement was void. The trial court held that the agreement between DeKalb and the cities violated the plain language of the HOST statute by forcing DeKalb to give the tax revenue to the municipalities without having any real control over how the money would be used, and the court accordingly entered a judgment in favor of DeKalb County. Decatur and the various other cities involved in the agreement appeal from this ruling.

1. Decatur and the other cities contend that the trial court erred by holding that their agreement with DeKalb County violated the plain language of the HOST statute. We disagree.

“On motion for judgment on the pleadings, the trial court is required to accept all well pleaded material allegations of fact as true, but need not adopt a party’s legal conclusions based on these facts. [Cits.]” Lewis v. Turner Broadcasting System, 232 Ga. App. 831, 832 (2) (503 SE2d 81) (1998). In considering such motion, a trial court may properly consider an exhibit contained within the pleadings such as a contract. See id. We review the grant of a judgment on the pleadings to determine whether the undisputed facts that appear from the pleadings show that the moving party is entitled to judgment as a matter of law. Christner v. Eason, 146 Ga. App. 139, 140 (245 SE2d 489) (1978).

In addition, the construction of a contract is a question of law for the court that is subject to de novo review. Deep Six v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000). As the only issue to be resolved here is the legal question of whether the Intergovernmental Agreement violated the plain language of the HOST statute, the trial court’s decision on this legal issue is subject to de novo review. See Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000) (questions of law subject to de novo review); cf. Redfern Meats v. Hertz Corp., 134 Ga. App. 381, 383 (2) (215 SE2d 10) (1975) (“‘The motion for a judgment on the pleadings only has utility when all material allegations of fact are admitted in the pleadings and only questions of law remain.’ [Cit.]”).

The HOST statute expressly provides that “the county . . . shall levy a local sales and use tax at a rate of 1 percent.” (Emphasis supplied.) OCGA § 48-8-102 (b). “The sales and use tax levied pursuant to this article shall be exclusively administered and collected by the commissioner for the use and benefit of each county whose geographical boundary is conterminous with that of a special district.” (Emphasis supplied.) OCGA § 48-8-104 (a). Furthermore, “proceeds of the sales and use tax shall be distributed to the governing authority of the county whose geographical boundary is conterminous with that of the special district . . . [and a] portion of such proceeds shall be expended for the purpose of funding capital outlay projects. . . .” (Emphasis supplied.) OCGA § 48-8-104 (c) (2) (A).

Although the statute expressly provides that the county bears the responsibility for expending the tax proceeds for capital outlay projects, the Intergovernmental Agreement seeks to shift that responsibility to the municipalities. Contrary to the structure set forth in the statute, the county has little power under the agreement to control what is done with the tax proceeds once they are given to the municipalities. Absent some form of legislative authority, it is inappropriate for a county to simply give its tax revenue to a municipality and allow that municipality to control what is done with the revenue. See City Council of Augusta v. Mangelly, 243 Ga. 358, 362 (1) (254 SE2d 315) (1979) (“[I]t can never be a valid county purpose to provide [its tax] revenue to a municipality, because municipalities are not citizens of nor creatures of counties — they are an entirely different form of government.”), superseded by statute on other grounds as noted in Nielubowicz v. Chatham County, 252 Ga. 330, n. 1 (312 SE2d 802) (1984). If the legislature had intended for counties to share HOST proceeds with cities in the manner described in the Intergovernmental Agreement, it could have so stated. See Bd. of Commrs. of Taylor County v. Cooper, 245 Ga. 251, 256 (2) (264 SE2d 193) (1980). The agreement here is contrary to the express language of the HOST statute, is not authorized by law, and therefore cannot stand. See Atlanta Independent School System v. Lane, 266 Ga. 657, 659 (4) (469 SE2d 22) (1996) (to be valid, an intergovernmental agreement “ ‘must deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide’ ”) (citation omitted). Since the trial court properly reached this conclusion based on the undisputed facts of the pleadings and the contract at issue, we hold that the trial court did not err by granting a judgment on the pleadings in favor of DeKalb County.

Decided June 18, 2002

Wilson, Morton & Downs, Robert E. Wilson, Bryan A. Downs, Justin H. Hayes, Fowler, Hein, Cheatwood & Passino, Joe L. Fowler, Edward E. Carter, Susan M. Pruett, Ted C. Baggett, for appellants.

King & Spalding, L. Joseph Loveland, Jr., Letitia A. McDonald, Benjamin W. Pope, Charles G. Hicks, Joan F. Roach, for appellee.

2. In light of our holding in Division 1, appellants’ remaining enumerations are moot.

Judgment affirmed.

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


text:
    A02A0507.
    SASS ENTERPRISES, INC. v. SWIFT et al.
    (567 SE2d 329)
   Barnes, Judge.

Sass Enterprises, Inc. appeals a trial court’s order in a declaratory judgment action, contending the court erred in deciding issues that should have been arbitrated pursuant to its contract to purchase a perpetual care cemetery and pre-need dealer of burial merchandise. Because we agree that the trial court improperly decided these issues instead of permitting them to be arbitrated, we reverse.

Sass bought Bellevue Memorial Gardens, Inc. from Cecil Miller and James Swift in February 1994. The sales contract provided:

Any controversy or claim arising out of or relating to this Agreement, the Promissory Note described in Article 4, the Non-Competition Agreement or the Consulting Agreements or the breach thereof shall be settled by the following methods, in this order of priority:
(a) First, the parties shall attempt to resolve any dispute through a formal mediation process, which shall be non-binding;
(b) Secondly, if mediation does not resolve the dispute, then it shall be settled by arbitration in Richmond County, Georgia in accordance with the rules then existing of the American Arbitration Association, with the parties agreeing upon one sole arbitrator who has reasonable experience in the cemetery industry;
(c) Thirdly, if the parties are unable after diligent effort to agree upon one sole arbitrator, then they shall each select an arbitrator, which arbitrators together shall agree on a third arbitrator, and the arbitration shall be conducted by the panel of three arbitrators.
Judgment upon the arbitration award rendered may be entered in any court having jurisdiction thereof. The arbitrator or arbitrators under this provision shall decide who shall pay the expenses of arbitration. Any decision made by an arbitrator or arbitrators under this provision shall be enforceable as final and binding as if it were a final decision or decree of a court of competent jurisdiction.

In November 1999, Sass notified Miller and Swift that, based on its internal audit, it believed that the company had sold products and services without reporting the sales to the Secretary of State and without putting the proceeds into escrow. The company calculated that it was entitled to offset the $415,596 balance on its promissory notes by $391,886 for undisclosed liabilities and excess interest payments on the notes.

Miller and Swift responded by requesting further information, and in March 2000, Sass gave formal notice that a dispute existed arising out of the agreement, and the parties scheduled mediation. Miller and Swift failed to attend the mediation, and after further negotiation, Sass filed a demand for arbitration with the American Arbitration Association (AAA) in July 2000. The record includes Sass’s memorandum of claims, supporting evidence, and witnesses, filed with AAA pursuant to an order on preliminary hearing dated January 9, 2001. These documents outline Sass’s contention that Miller and Swift deeded burial spaces, mausoleum crypts, opening and closing fees, and other burial merchandise to themselves and certain family members at no charge to the cemetery, and without escrowing any funds as required by Georgia law.

In June 2001, Miller’s estate and Swift filed a complaint against Sass for declaratory judgment in Columbia County Superior Court, seeking a declaration that “the Office of the Secretary of State of Georgia is the exclusive entity to determine deficiencies, if any, in . . . preneed accounts.” The sellers argued that the following provision in the parties’ sales agreement precluded Sass from conducting a “self-audit” and mandated that any audit would be performed by the Secretary of State:

The parties recognize that the State of Georgia will not have performed audits with respect to the adequacy of the Funds in connection with this transaction prior to Closing. In the event such audits result in the determination of a deficiency in the principal of any of the Funds as of the Closing Date, Sellers shall be jointly and severally liable for and shall immediately pay such deficiency.

The sellers further noted that the Secretary of State had audited the cemetery’s perpetual care trust fund and pre-need merchandise escrow fund after the sale and issued an order of settlement as well as a plan of compliance which the sellers argued addressed all the concerns that Sass sought to arbitrate.

After a hearing, the trial court held that “the Office of the Secretary of State of Georgia is the sole and exclusive determining entity of the status and sufficiency of any pre-need escrow accounts as required by OCGA § 44-3-134 et seq.” The court restrained and enjoined Sass from pursuing recovery of any alleged deficiency in the pre-need escrow accounts, essentially holding that Sass has no right to arbitrate a contract dispute regarding deficiencies if the Secretary of State also has jurisdiction to determine those deficiencies. The court further held, however, that issues regarding assets transferred to sellers not in the ordinary course of business could be considered under the sales contract’s arbitration provisions.

1. On appeal, Sass argues that the trial court “erred in rendering a decision as to the claims made by appellees in their complaint for declaratory judgment as the claims were and are the subject of a prior pending arbitration in which the parties had contractually agreed to submit all such claims.”

“Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties.” Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (2) (359 SE2d 659) (1987). The construction of an unambiguous contract is a question of law for the court. Sagon Motorhomes v. Southtrust Bank &c., 225 Ga. App. 348, 349 (484 SE2d 21) (1997).

In this case, the sales contract clearly provides that the arbitration provisions apply to “any controversy or claim arising out of or relating to this Agreement.” (Emphasis supplied.) While the contract also provides that the sellers agree to pay immediately any deficiency the Secretary of State finds in a post-sale audit, it nowhere provides that it may not arbitrate the issue of further deficiencies, or that no right to arbitration exists if the Secretary of State has concurrent jurisdiction to determine deficiencies. In Sass’s version of events, an audit by the Secretary of State would not show the deficiency now claimed, because it arises from unreported, unrecorded transfers of burial plots and merchandise. We make no conclusion regarding the validity of these claims or the effect that the Secretary of State’s audit will have in the arbitration, but hold that Sass has a right to arbitrate the issue. Accordingly, the trial court erred in granting declaratory judgment to Miller and Swift regarding arbitration of any alleged escrow deficiencies. See St. Paul Fire &c. Ins. Co. v. Barge, 225 Ga. App. 392, 396 (5) (483 SE2d 883) (1997).

Decided June 18, 2002.

Kaufman, Chaiken, Miller & Klorfein, Robert J. Kaufman, Charlotte K. Perrell, for appellant.

McDonald, Stiles & Thompson, John L. Thompson, Edward B. Stalnaker, Johnston, Wilkin & Williams, William J. Williams, for appellees.

2. Our holding in Division 1 renders moot the remainder of Sass’s arguments.

Judgment reversed.

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