author: Smith, Judge. Beasley, Judge,

text:
    A97A0255.
    WILLIS v. UNITED FAMILY LIFE INSURANCE.
    (487 SE2d 376)
   Smith, Judge.

Appellant George Willis brought this action alleging defamation, tortious interference with contract, and intentional infliction of emotional distress following the distribution by appellee United Family Life Insurance (“United”) of two letters to its policyholders. The trial court granted United’s motion to dismiss; this appeal followed.

Willis’s complaint alleges that United wrongfully sent two letters to its policyholders. The first letter states: “Based on our records, Ms. Freida White, an employee of United Family, may have been collecting premiums for you on your policy. You may have also paid your monthly premiums to a local funeral home. NO ONE FROM UNITED FAMILY WILL COME TO YOUR HOME TO COLLECT PREMIUMS ANY MORE AND YOU SHOULD NOT PAY ANY PREMIUMS TO A LOCAL FUNERAL HOME, MS. WHITE OR ANYONE ELSE. INSTEAD, PLEASE FORWARD ALL PAST DUE, CURRENT OR FUTURE PREMIUM PAYMENTS TO UNITED FAMILYS HOME OFFICE.”

Although the letter does not specifically mention Willis or his business and does not state any reason for the change, Willis alleges that it was sent in response to the termination of White for misappropriation of premium payments. According to Willis, White “worked out of” Willis’s funeral home, collecting premiums on behalf of United, until United opened a local office in 1989 and required that all premium payments be made there instead of to White or at Willis’s business. The complaint alleges that White continued to collect premiums despite this change and appropriated them to her own use; her conduct was discovered in 1994 when several policies lapsed for nonpayment of premiums. According to Willis, the letters forming the subject of his complaint were mailed approximately one month after the discovery of White’s misconduct.

Appellant asserts that his reputation was sullied by the reference to an unidentified “local funeral home” in a letter that also mentioned White. Although the letter identified White as an employee of United rather than of Willis, Willis asserts that his customers would assume that he or his funeral home could also be involved in White’s improprieties.

The second letter, sent two days after the first, did not mention White. It informed United’s customers that their insurance records were being moved from Willis’s business to another facility and once more gave the new address for payment of premiums. Willis contends that, since the records had actually been moved earlier, the statement in the letter was false and therefore supports his claim against United under all three theories of recovery. We disagree and affirm the judgment of the trial court.

“When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, the rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.” (Citation and punctuation omitted.) Hartsfield v. Union City Chrysler-Plymouth, 218 Ga. App. 873, 874 (463 SE2d 713) (1995).

1. Willis appeals the dismissal of his defamation claim, contending that issues remain to be tried. The complaint here “is subject to the requirements of OCGA § 9-11-8 (f) that pleadings be construed liberally and reasonably to achieve substantial justice consistent with the statutory requisites of the CPA. Nonetheless, when the claim alleged is a traditionally disfavored cause of action, such as malicious prosecution, libel, and slander, the courts tend to construe the complaint by a somewhat stricter standard.” (Citations, punctuation and emphasis omitted.) Jacobs v. Shaw, 219 Ga. App. 425, 427 (2) (465 SE2d 460) (1995). Applying this rule, we conclude that the face of Willis’s complaint demonstrates that he can prove no set of facts amounting to defamation. The trial court therefore correctly held that the unambiguous statements in the letters are not capable of a defamatory interpretation.

(a) When an allegedly libelous statement is unambiguous, the trial court may decide as a matter of law whether or not the statement is libelous. Southern Co. v. Hamburg, 220 Ga. App. 834, 838 (470 SE2d 467) (1996). The court may not “ ‘hunt for a strained construction in order to hold the words used as being defamatory,’ . . . [cit.],” Webster v. Wilkins, 217 Ga. App. 194, 195 (1) (456 SE2d 699) (1995), but must give the words the plain and ordinary meaning that would be given to them by the average reader. Id.

Georgia law is abundantly clear that Willis cannot rely on rumor, innuendo, and extraneous circumstances to create an inference of defamation. Even express mention of one’s name with another accused of misconduct, which did not occur here, does not constitute defamation, and such a complaint is subject to dismissal. Stevens v. Morris Communications Corp., 170 Ga. App. 612, 614 (317 SE2d 652) (1984). In Stevens, this Court affirmed dismissal of a “patently absurd” complaint alleging that plaintiff was defamed by being named as counsel for a nursing home in a newspaper article reporting poor conditions there. In Chance v. Munford, Inc., 178 Ga. App. 252 (342 SE2d 746) (1986), we held no libel existed when the defendant posted a notice stating that the plaintiff was not allowed in its store, regardless of what readers of the notice might speculate as to the reasons for plaintiff’s exclusion. Finally, when a termination notice on its face contained no criticism of the plaintiff, it was not actionable even though it was contemporaneous with a theft investigation in which the plaintiff was a suspect, and even though defendant had held an earlier meeting of all its employees informing them that the plaintiff had been suspended for being “involved” in the theft. Zielinski v. Clorox Co., 215 Ga. App. 97, 99 (2) (450 SE2d 222) (1994).

Willis’s contention that innuendo renders these letters defamatory is without merit. “Appellant argues that the [letters are] libelous by innuendo because persons reading [them] would assume that [he] had done something terrible. . . . We believe appellant misconstrues the meaning of ‘innuendo.’ The office of an innuendo is to explain that which is of doubtful or ambiguous meaning in the language of the publication, but [it]- cannot enlarge the meaning of words plainly expressed therein. Innuendo means only that where words are capable of two meanings, one of which would be libelous and actionable and the other not, it is for the jury to say, under all the circumstances surrounding its publication, which of the two meanings will be attributed to it by those to whom it is addressed or by whom it may be read. If the words of the alleged defamatory publication are unambiguous and are incapable of the meaning ascribed to them by innuendo, no action for libel will lie.” (Citations and punctuation omitted.) Chance v. Munford, Inc., supra, 178 Ga. App. at 252.

Compare Southern Co. v. Hamburg, supra, in which an employer distributed two press releases. The first stated that the plaintiff was being placed on administrative leave during an internal investigation of ethical standards in his department, and the second stated that the internal investigation resulted in the plaintiff’s discharge and quoted the employer’s executive vice president as stating “ ‘we’re committed to taking decisive actions when our business standards are not met.’ ” 220 Ga. App. at 839 (1). We declined to hold that these statements were not defamatory as a matter of law. Id.

In contrast, “[t]he words ... in this case are clear and unambiguous and do not tend to injure appellant’s reputation or expose [him] to ‘public hatred, contempt, or ridicule.’ [Cits.] The words of the [letters] contain no hurtful innuendo regarding appellant’s character or behavior and a reader’s subjective decision to impute such innuendo to the [letters] is not actionable as a defamation. [Cit.]” Chance, supra, 178 Ga. App. at 253.

Even construing the letters favorably toward Willis, we find that he could not prove any state of facts entitling him to relief. The first letter does not mention Willis or his business by name, nor does it allege wrongdoing on the part of any person. It simply instructs policyholders to transfer their premium payments to a new location. A defamatory interpretation cannot be extracted from the mere mention of “a local funeral home” in a letter that also mentions White, without any reference to criminal activity or wrongdoing on the part of anyone. Nor can a defamatory interpretation be extracted from a simple clerical notation regarding the transfer of records to and payment of premiums at a new location, even if those records had already been transferred. To do so requires the liberal application of speculation, rumor, and innuendo in precisely the fashion forbidden by Zielinski and Chance. Dismissal of the claim was proper.

(b) Moreover, it is apparent from the allegations of Willis’s complaint that United’s letters were privileged communications under OCGA § 51-5-7 (2) and (3). Statements made in the good faith performance of a private duty, such as reports from an independent investigator to an insurance company, are privileged. Haezebrouck v. State Farm Mut. &c. Ins. Co., 216 Ga. App. 809, 813 (455 SE2d 842) (1995); see also Kitchen Hardware, Ltd. v. Kuehne & Nagel, Inc., 205 Ga. App. 94, 96 (2) (421 SE2d 550) (1992). Compare Zielinski, supra, 215 Ga. App. at 98 (1) (general announcement of theft investigation to employees “without a duty and authority to control or have knowledge” constituted publication).

We conclude that an insurer has a duty to communicate to its policyholders information which might, if not revealed, cause their coverage to lapse or be cancelled. Once United Family was made aware of White’s misappropriation of premiums and consequent lapses of coverage, it was appropriate for United to notify its policyholders of the potential problem, without making explicit reference to criminal or improper conduct on anyone’s part. Because White had worked out of Willis’s funeral home, it was also appropriate for United to notify its policyholders not to make payments at a place where White might receive and divert them. Had. a claim been made on a policy that lapsed due to diversion of premiums after United Family became aware of White’s conduct but failed to notify its policyholders, United Family could have been subjected to claims for bad faith penalties and attorney fees under OCGA § 33-4-6. See, e.g., Globe Life &c. Ins. Co. v. Ogden, 182 Ga. App. 803 (357 SE2d 276) (1987) (insurer liable for bad faith penalties after its agent misappropriated premiums and policy lapsed).

The communications also were appropriately limited to those authorized to receive them. United Family did not publish notices in a newspaper, poster, or circular exposed to the view of the general public, nor did it send a general mailing including past and prospective customers. Instead, it mailed individually addressed notices to its policyholders. As in Haezebrouck, supra, only those directly concerned were notified. Even construing the allegations of the complaint in his favor, Willis can prove no set of facts defeating this privilege; the status of the letters’ recipients as policyholders was alleged by Willis himself. The trial court did not err in granting United’s motion to dismiss on Willis’s defamation claims.

2. Willis’s claim alleging tortious interference with business relations is based entirely on the same actions that he contends constituted defamation. To make out a case of tortious interference a plaintiff must show that a defendant: (1) acted improperly and without privilege, (2) acted purposely, with malice, and with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) caused the plaintiff to suffer some financial injury. Jenkins v. Gen. Hosps. of Humana, 196 Ga. App. 150, 151 (395 SE2d 396) (1990). The trial court correctly concluded that Willis could prove no set of facts , that would entitle him to relief, even considering his response to United’s motion and assuming all allegations in the complaint are true. Robin v. BellSouth Advertising &c. Co., 221 Ga. App. 360, 361-362 (3) (471 SE2d 294) (1996) (illustrating stringency of requirements).

3. Finally, based on the same factual allegations, Willis contests the dismissal of his claim for intentional infliction of emotional distress. The Jenkins court summarized the law in this area as well, stating that “Georgia permits a recovery for the tort of intentional infliction of emotional distress only for conduct which is of an outrageous or egregious nature or so terrifying or insulting as to humiliate, embarrass, or frighten the plaintiff. [Cit.]” 196 Ga. App. at 152. A claim under this theory, however, may not succeed where the defendant uttered “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. [Cit.]” Id. The trial court dismissed Willis’s claim on two grounds: (1) there was no outrageous conduct present; and (2) the conduct at issue was not directed at the appellant.

It was proper for the trial court to dismiss this claim on either ground. The conduct in this Case, the sending of the allegedly objectionable letters at issue, was not “outrageous.” This is a question of law and one resoundingly settled in favor of defendants. Johnson v. Savannah College of Art &c., 218 Ga. App. 66, 67 (460 SE2d 308) (1995); see Peoples v. Guthrie, 199 Ga. App. 119, 121-122 (2) (404 SE2d 442) (1991) (though accusations of dishonesty or lack of integrity in individual’s employment may be horrifying or traumatizing, they do not constitute intentional infliction of emotion distress); Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 772-773 (324 SE2d 593) (1984) (warnings, job transfers, and harassment directed towards “whistleblower” do not constitute intentional infliction of emotional distress). Compare American Finance &c. Corp. v. Coots, 105 Ga. App. 849 (125 SE2d 689) (1962) (bill collector terrorized plaintiff and his pregnant wife at gunpoint); Stephens v. Waits, 53 Ga. App. 44 (184 SE 781) (1936) (defendant physically intimidated mourners at graveside).

The conduct in this case,' moreover, was not directed at Willis. Willis’s failure to show this essential element also supports the dismissal of his claim. See Tucker v. News Publishing Co., 197 Ga. App. 85, 87 (2) (397 SE2d 499) (1990) (student injured in attack unsuccessfully sued defendant newspaper for merely printing stories about the attack); see also Carter v. Willowrun Condo. Assn., 179 Ga. App. 257, 260 (5) (345 SE2d 924) (1986) (condominium renters unsuccessfully sued president of association after president sent objectionable letter to condominium owners). The mere sending of letters not directed at Willis’s person and containing only a collateral reference to Willis’s place of business will not support a claim for intentional infliction of emotional distress.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., and Ruffin, J., concur. McMurray, P. J., Beasley and Eldridge, JJ, concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I respectfully dissent. Defendant United Family Life has not shown as a matter of law that Willis’ complaint, which incorporates the two letters as exhibits, fails to state a claim upon which relief can be granted on the claim of libel pursuant to OCGA § 51-5-1. On United Family Life’s motion, Willis’ pleadings “must be construed most favorably for [him] and all doubt resolved in [his] favor. [Cit.]” Quetgles v. City of Columbus, 264 Ga. 708 (450 SE2d 677) (1994).

Because the complaint is not sworn, the letters are not evidence and thus the motion brought under OCGA § 9-11-12 (b) (6) was not converted into one for summary judgment. SunAmerica Financial v. 260 Peachtree St., Inc., 202 Ga. App. 790, 797 (3) (b) (415 SE2d 677) (1992). Willis has not had an opportunity to submit any evidence at this stage. The question is whether a jury is precluded from finding the letters or either of them libelous. This should not be decided only on a consideration of the letters taken out of context. “A publisher of matter is responsible, not only for the actual words published, but for the innuendo that may arise from such words. Words apparently innocent may convey a libelous charge when considered in connection with the innuendo and circumstances surrounding the publication.” Montgomery v. Pacific & Southern Co., 131 Ga. App. 712, 715 (5) (206 SE2d 631) (1974), overruled on other grounds, Diamond v. American Family Corp., 186 Ga. App. 681, 684 (1) (368 SE2d 350) (1988). “ ‘Words harmless in themselves may become libelous when the circumstances under which they are published are such as to convey a covert meaning to the reader reflecting injuriously upon the reputation of the person to whom they refer.’ ” Brandon v. Arkansas Fuel-Oil Co., 64 Ga. App. 139, 144 (12 SE2d 414) (1940). The office of innuendo is explained in Reece v. Grissom, 154 Ga. App. 194, 195 (1) (267 SE2d 839) (1980).

When a writing is capable of two meanings, one libelous and one not, “it is for the jury to say, under all the circumstances surrounding its publication, including extraneous facts admissible in evidence, which of the two meanings would be attributed to it by those to whom it is addressed or by whom it may be read.” (Citations and punctuation omitted.) Southern Co. v. Hamburg, 220 Ga. App. 834, 838 (1) (470 SE2d 467) (1996).

Willis claims the evidence would show that the policyholders learned that their policies lapsed because Freida White had misappropriated their premiums, and that United Family Life had terminated her as an agent for this reason. Willis further alleges that White initially worked out of the funeral home, of which he was the second-generation owner and operator, and from which he also sold United Family Life insurance as a licensed salesman. Many of White’s clients were referrals and were introduced to her by Willis, which was another connection between the two. The letters, written to rectify the misappropriation known to the recipients, did not dissociate the funeral home or its owner from the theft but instead treated them together with the thief. It would have been a simple matter to isolate White as the wrongdoer and her independent activity as the sole reason for the changes in procedure.

Willis also alleges that shortly after the thefts were discovered by the policyholders and United Family Life, the latter wrote a general letter to the policyholders. It stated that based on the company’s records, the policyholders may have been paying premiums to Freida White or “to” a local funeral home. In capital letters, the company warned that the policyholders “SHOULD NOT PAY ANY PREMIUMS TO A LOCAL FUNERAL HOME, MS. WHITE OR ANYONE ELSE.” Instead, they were to be mailed directly to the home office. Two days later, it is alleged, a second letter told the policyholders that their records were being relocated from the “Willis Peoples Funeral Home” to the home office and that all future premium payments should be mailed there “[effective immediately.” It also assured policyholders that the relocation of records would not affect the “excellent service” of the insurance company. In fact the records had been moved in 1989 as a result of the company’s opening an office in Fort Valley.

A policyholder receiving these letters, knowing the other facts alleged, could infer that Willis refused to relinquish records in 1989 and had retained some which by company action were finally being moved to the home office. Such a policyholder could also infer that Willis had continued to collect premiums at the funeral home since 1989, just as White had, despite the company’s change of practice in 1989. What was allegedly written, in the context of what had transpired previously, could be found libelous by innuendo. “To maintain an action for libel, the matter published must either be libelous per se, or it must be so stated that it may reasonably be construed, by innuendo at least, to be libelous.” McCravy v. Schneer’s, 47 Ga. App. 703 (171 SE 391) (1933). “The pivotal questions are whether [the] statements can reasonably be interpreted as stating or implying defamatory facts about plaintiff and, if so, whether the defamatory assertions are capable of being proved false.” Eidson v. Berry, 202 Ga. App. 587, 588 (415 SE2d 16) (1992). United Family Life does not contest the fact that Willis had nothing to do with its agent White’s misdeeds.

Considering the circumstances alleged, I cannot conclude that “the published words are incapable of any other construction other than that they are not defamatory of the plaintiff” when read from the viewpoint of a policyholder. (Citations and punctuation omitted.) Southern Co., supra at 838 (1). The meaning of the two letters, particularly taken together in light of what preceded them, is not “so unambiguous as to reasonably bear but one interpretation” insofar as Willis and his funeral home are concerned. (Citations and punctuation omitted.) Id. A jury could reasonably find, if what Willis alleges is proved by competent evidence, that the letters snare him into the misappropriation problem with White, imply that he has been accepting premiums at the funeral home even though the practice was to stop in 1989, and further imply that he has covered up misappropriation by keeping the company’s records in the intervening years.

Decided May 13, 1997

Reconsideration denied June 4, 1997

Before Judge Goger.

Adams & Jordan, Virgil L. Adams, for appellant.

Alston & Bird, Jay D. Bennett, Cynthia L. Counts, for appellee.

“Though a defamatory charge may be made in indirect terms or by insinuation, the publication must be construed as a whole, and the words charged as being defamatory are to be taken in their plain, natural, and ordinary meaning, to be understood by the court as other people would understand them, according to the sense in which they appear to have been published and the idea they were meant to convey.” Garland v. State, 211 Ga. 44, 46 (84 SE2d 9) (1954), a criminal case but citing civil cases for these principles. The real meaning of ambiguous expressions can be “explained by reference to the circumstances.” Central of Ga. R. Co. v. Sheftall, 118 Ga. 865, 867 (1) (45 SE 687) (1903). The question of “the meaning and import of the language contained in the publication[s]” is within the province of the jury. Park & Iverson v. Piedmont &c. Life Ins. Co., 51 Ga. 510, 514 (1874).

I concur in affirmance of dismissal of the remaining claims.

I am authorized to state that Presiding Judge McMurray and Judge Eldridge join in this opinion.

       We do not reach the issue of whether United’s letters are subject to the exception to the publication rule as established in Kurtz v. Williams, 188 Ga. App. 14 (3) (371 SE2d 878) (1988).

       This would be of particular importance to policyholders who did not happen to recall White’s name.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A97A0623.
    SHROPSHIRE v. THE STATE.
    (487 SE2d 384)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of aggravated sodomy, sodomy, aggravated child molestation, three counts of child molestation and three counts of cruelty to children. The nine-year-old victim’s trial testimony reflects an account of events which are the basis of the crimes charged. The victim reported defendant’s criminal acts to her aunt, Robin Brown, and defendant’s spouse, Danielle Shropshire. Danielle Shropshire testified for defendant at trial, commenting that she “didn’t believe [the victim when she first reported defendant’s criminal conduct] and [that] she still [does not believe the victim].” This appeal followed the denial of defendant’s motion for new trial. Held:

In his sole enumeration of error, defendant contends the trial court erred in allowing the State to impeach Danielle Shropshire by introducing evidence of an inconsistent statement she uttered in the presence of Robin Brown, shortly after the victim reported defendant’s sexual assaults, indicating Danielle Shropshire’s view that defendant had committed the crimes charged.

During the State’s case, the trial court sustained defendant’s objection when Robin Brown alluded to Danielle Shropshire’s statement that she believed defendant had committed the crimes charged. But later — after Danielle Shropshire testified during defendant’s case that she “didn’t believe [the victim when the victim first reported defendant’s sexual assaults] and [that] she still [does not believe the victim]” — the trial court allowed the State’s attorney to use this prior inconsistent statement to impeach Danielle Shropshire. To this end, the trial court allowed the State’s attorney to ask Danielle Shropshire the following question during cross-examination: “Did you make the statement to Robin Brown after [the victim] had told what [defendant] had done to her that you believed he had done it?” Danielle Shropshire responded negatively and, on re-direct examination, restated her view that she does not “believe” the victim. The State’s attorney responded by recalling Robin Brown. She testified that Danielle Shropshire — during an emotional outburst after the victim reported defendant’s criminal assaults — “said, T think he’s done it.’ ”

Citing OCGA § 24-9-83, defendant asserts that his wife’s prior inconsistent statement is inadmissible for impeachment purposes because it is not relevant to her testimony or to the case. This argument is without merit. Danielle Shropshire’s direct testimony that she “didn’t believe [the victim when the victim first reported defendant’s sexual assaults] and [that] she still [does not believe the victim]” is contradicted by her prior statement to Robin Brown that “ T think he’s done it.’ ” This prior inconsistent statement is admissible for impeachment purposes. Bates v. State, 4 Ga. App. 486, 489 (1) (61 SE 888). Defendant, nonetheless, asserts that his wife’s prior inconsistent statement should not have been admitted because it is inadmissible opinion evidence as to the victim’s veracity, which is a matter reserved exclusively for the jury. This argument is also without merit.

“The Supreme Court rule which permits evidence of contradictory pre-trial statements as substantive evidence of a fact, in our view, must refer to admissible evidence and not that which is inadmissible or incompetent. So construed, we have consistency in the law. If the pre-trial statement could have been made during the trial, then it may be introduced to contradict that witness’ testimony at trial and when thus admitted it stands as substantive evidence of the fact shown. If the evidence is not of the type ordinarily admissible at trial then it should be restrictively allowed only for the purpose of impeachment, not as substantive evidence of the fact, and the jury should be so instructed.” Jackson v. Ensley, 168 Ga. App. 822, 825 (1), 827 (310 SE2d 707).

Decided May 21, 1997

Reconsideration denied June 4, 1997

Before Judge McWhorter.

Hudson & Montgomery, James E. Hudson, J. Richardson Bran-non, for appellant.

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

Although we agree with defendant, in the case sub judice, that Danielle Shropshire’s prior inconsistent statement regarding the victim’s veracity is inadmissible opinion evidence, the trial court instructed the jury immediately after the State offered proof of this inconsistent statement that it is admitted solely for impeachment purposes. Under these circumstances, we cannot say the trial court erred in allowing Robin Brown to testify that Danielle Shropshire — during an emotional outburst after the victim reported defendant’s criminal assaults — “said, ‘I think he’s done it.’ ” See Jackson v. Ensley, 168 Ga. App. 822, 825 (1), supra. Further, since Danielle Shropshire set herself up for impeachment by injecting her opinion that the victim is unbelievable and since defendant offered the same illegal testimony (as substantive evidence) in rebuttal to Robin Brown’s impeachment testimony, we reject defendant’s claim that the prejudicial impact of this impeachment evidence outweighed its worth. Defendant “opened the door” to this line of inquiry and therefore cannot complain. Krebsbach v. State, 209 Ga. App. 474 (1), 475 (433 SE2d 649).

Garrett v. State, 169 Ga. App. 327, 328 (312 SE2d 621), cited by the defendant, is distinguishable from the case sub judice because the prior inconsistent statement of the witness targeted for impeachment in Garrett did not involve the witness’ view of a relevant matter involving the witness’ opinion.

Judgment affirmed.

Beasley and Smith, JJ, concur.

       This child, even after thorough (but considerate) cross-examination, did not waver in her description of the manner in which defendant committed the crimes charged.


author: Eldridge, Judge.

text:
    A97A0968.
    ANDERSON et al. v. MULLINAX et al.
    (487 SE2d 607)
   Eldridge, Judge.

Appellants, Kathleen Anderson and William Anderson, individually, as parents, and as next friend for their daughter, Jamie Anderson, a minor, sued appellees Randy J. Mullinax and Shawn A. Mullinax, individually and as guardians for their daughter, Meagan Ann Mullinax, a minor, under the family purpose doctrine for injuries to Jamie Anderson while she was a passenger in a vehicle owned by Randy J. Mullinax and Shawn A. Mullinax caused by the negligence of Meagan Ann Mullinax. Appellants’ daughter suffered personal injuries requiring medical attention. Appellants served their own insurer, State Farm Mutual Insurance Company (“State Farm”), under their uninsured motor vehicle provision, because Meagan Ann Mullinax had been declared an uninsured motorist, because she did not come under her parents’ policy with insurer Cincinnati Insurance Company. State Farm answered.

State Farm settled the claim of Jamie Anderson and did not include any payment for past medical expenses incurred while she was a minor. Appellants proceeded with the instant suit to recover $30,000 in medical expenses that State Farm refused to pay. State Farm asserted that, as an uninsured motorist carrier, it was entitled to a setoff for medical insurance coverage payments that appellees’ carrier Cincinnati Insurance Company paid to appellants under the medical coverage to passengers provisions in appellees’ comprehensive liability policy; appellants had received payments for the medical expenses from Cincinnati Insurance Company under its no-fault and medical coverage. By final order dated December 12, 1996, the trial court gave the uninsured motorist carrier, State Farm, a setoff of $30,000 for medical insurance claims paid to appellants by Cincinnati Insurance Company. The parties stipulated that the medical expenses incurred were $38,714.50.

Appellants’ sole enumeration of error is that the uninsured motorist carrier cannot setoff against liability for medical expenses those medical payments made to appellants by the tortfeasors’, appellees, insurance carrier.

Coverage for uninsured motorists is a matter of insurance contract under the statutory requirements of OCGA § 33-7-11 and not a matter of tort law and damages. State Farm &c. Ins. Co. v. Bd. of Regents &c. of Ga., 226 Ga. 310 (174 SE2d 920) (1970); see also Darby v. Mathis, 212 Ga. App. 444 (441 SE2d 905) (1994). The policy coverage insures only against actual loss. St. Paul Fire &c. Ins. Co. v. Goza, 137 Ga. App. 581 (224 SE2d 429) (1976); see also State Farm &c. Ins. Co. v. Murphy, 226 Ga. 710 (177 SE2d 257) (1970).

Decided May 22, 1997

Reconsideration denied June 4, 1997

Before Judge Cook.

Jewett & Clark, C. Lawrence Jewett, Jr., Robin F. Clark, for appellants.

Gary M. Cooper, for appellees.

“When faced with various facts, the cases examined have sought to make the insured whole within his policy limits, yet have confined recovery to actual losses. . . . The clause at issue here specifically states that ‘[t]his does not reduce the limits of liability of this coverage.’ It does not operate to bar stacking of coverage; it is only a non-duplication of benefits provision that addresses the concern of double recovery. See McCombs v. State Farm Mut. Ins. Co., 200 Ga. App. 28 (406 SE2d 549) (1991). The sole effect is to prevent double recovery when the insured has already received medical payments and the balance of the judgment will be within the uninsured policy limits.” Johnson v. State Farm &c. Ins. Co., 216 Ga. App. 541, 543-544 (455 SE2d 91) (1995).

Since uninsured motorist coverage is a matter of contract, then the tort damage “collateral source rule” prohibiting a tortfeasor from offsetting damage liability by any collateral source has no application; in fact, uninsured motorist coverage is a collateral source. “Neither OCGA § 33-7-11 nor the collateral source rule requires that [appellants] receive double recovery.” Johnson v. State Farm &c. Ins. Co., supra at 545. “The collateral source rule has never applied so as to require an insurance company to pay ‘duplicate damages’ to a claimant. [Cit.]” Orndorff v. Brown, 197 Ga. App. 591, 592 (1) (399 SE2d 77) (1990).

The trial court did not err.in granting State Farm a setoff for the medical expenses that appellants had already recovered, because appellants are not allowed under uninsured motorist coverage to recover in excess of their actual losses.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       See Cincinnati Ins. Co. v. Mullinax, 215 Ga. App. 331 (450 SE2d 336) (1994).


text:
    A97A1123.
    WALTON ELECTRIC MEMBERSHIP CORPORATION v. SNYDER.
    (487 SE2d 613)
   Eldridge, Judge.

This case arose over a disputed electrical bill in the amount of $301.28. The chronology of events is as follows:

On August 26, 1992, Deborah Patton, while residing at Kings Mill Run in Clarke County, signed a contract with appellant Walton Electric Membership Corporation (“Walton Electric”) and was assigned member account number 402678-01. In September of the following year, 1993, appellee Howard Snyder signed a contract with Walton Electric and was assigned member account number 410826-01; Snyder resided at the Creekview Court apartments in Clarke County.

In October 1993, after she had resided at Kings Mill Run for over a year, Deborah Patton moved into the Creekview Court apartment with Howard Snyder; when she left Kings Mill Run, she had an overdue balance on her electric bill in the amount of $301.28.

Patton and Snyder were married in December 1994. In January 1995, Snyder purchased the Kings Mill Run residence that had been occupied by Deborah Patton, now Snyder, approximately a year and a half earlier. Appellee Snyder applied for electricity to the residence under his existing account; as Walton Electric notes, “no new membership application was required,” since Snyder had previously signed such application.

Electric service was begun at appellee Snyder’s new residence under Snyder’s membership account; however, Walton Electric had become aware that past due account member Deborah Patton was now Snyder’s wife. Walton Electric transferred her outstanding debt to Snyder’s membership account, which was also assigned a new account number, 410826-02. Snyder protested, and a series of telephone calls ensued which evidently served only to create and increase hostilities between both parties. As an apparent result, Snyder refused to pay the outstanding bill. Snyder claimed that he had not incurred the debt; that his membership account was current; and that Walton Electric could not assess him with a debt belonging to another person. After notice, Walton Electric disconnected Snyder’s electricity for approximately 24 hours for the failure to pay the $301.28 plus late fees. Snyder was forced to reside in a motel overnight, and paid the debt “under protest.”

Howard Snyder filed suit, claiming an unjustified, wrongful termination of electrical services and seeking actual, as well as punitive, damages; Snyder moved for partial summary judgment on the issue of liability. Walton Electric filed a cross-motion for summary judgment, claiming that the contractual relationship between Walton Electric and Snyder permitted the termination of appellee’s service and thus, Walton Electric was entitled to summary judgment as a matter of law; further, appellant asserted that since Snyder’s claim was really one in contract, as opposed to tort, it was entitled to summary judgment on the issue of punitive damages as a matter of law. The trial court granted Snyder’s motion for summary judgment as to Walton Electric’s tort liability; the trial court denied Walton Electric’s cross motions for summary judgment based upon its membership contract with Snyder and as to the issue of punitive damages. Walton Electric appeals. Held:

1. First, Walton Electric challenges the trial court’s denial of its motion for summary judgment as to the merits of appellee’s claim. Appellant contends that judgment in its favor is warranted as a matter of law because under the regulations and bylaws of Walton Electric, by which terms he agreed to be bound, Snyder became liable for the debt owed to it by Deborah Patton either: (1) when she moved in with appellee Snyder and received Walton Electric services under Snyder’s membership account; or (2) when Snyder married her and they became “joint” members; thus, Walton Electric argues that it was justified in disconnecting appellee’s electricity for failure to pay the outstanding debt pursuant to his contract terms.

We find that the trial court correctly determined that appellee Snyder is not liable for the individual debt of another without assuming such debt in writing. OCGA § 13-5-30 (2). This result does not change because the individual debt was accrued by a spouse. OCGA § 19-3-9; Orr v. Orr, 440 U. S. 268 (99 SC 1102, 59 LE2d 306) (1979); Sessions v. Parker, 174 Ga. 296 (162 SE 790) (1932); Bradley v. Tenneco Oil Co., 146 Ga. App. 161, 164, n. 1 (245 SE2d 862) (1978); Butler v. Godley, 51 Ga. App. 784 (181 SE 494) (1935). While a promise to pay the debt of another which is an “original undertaking” is not within the statute, such promise has been described as “an original undertaking in which the new promisor, for valuable consideration, substitutes himself as the party who is to perform and the original promisor is released” (Emphasis in original.) Donald H. Gordon Co. v. Carswell, 184 Ga. App. 701, 704 (362 SE2d 483) (1987). Obviously, this is not the situation before the court, wherein Snyder has always denied liability on the debt, and Deborah Patton has always insisted the debt is hers. Thus, contrary to Walton Electric’s assertions, the terms of the contract, itself, signed by Snyder could not and did not create an enforceable “original undertaking” to assume another person’s debt, at some unknown time in the future, without consideration therefor. Besides, “[a] promise to pay the pre-existing debt of another, without any detriment or inconvenience to the creditor, or any benefit secured to the debtor in consequence of the undertaking is a mere nudum pactum.” (Citations and punctuation omitted.) Davis v. Tift, 70 Ga. 52, 56 (2) (1883); OCGA § 13-3-40. Accordingly, to the extent that any of the bylaws, rules, or regulations of Walton Electric may be fairly read to permit such assumption of debt, they are in violation of Georgia law and are unenforceable. OCGA § 46-3-201 (a) (2), (b) (26), (d).

Perhaps more important, however, is the recognition that the bylaws and regulations upon which appellant Walton Electric relies cannot be fairly read to support its contentions.

First, Walton Electric cites its Service Rules & Regulations, No. 604 (A) (5), which provides that “service will be disconnected immediately and without notice” for: “Member having old debt living at location with account in some other name.” Clearly, this provision, albeit unartfully drawn, provides for the disconnection of a member who obtains electric services fraudulently by opening an account in another name in order to avoid paying an old bill, i.e., the member has an account in “some other name” and not, as appellant attempts to read it, the location has an account in some other name. As appellant notes in its brief, such provision “prevents members from avoiding bills by putting the membership in a different name.” The cited provision seeks to deter and punish the delinquent member; it does not intend to penalize another member’s bona fide account in good standing because of an association with the delinquent member. Common sense and due process would dictate that the mere presence of an offending member as a co-resident in a location cannot “taint” another resident’s bona fide and current membership account so as to permit the disconnection of service thereon immediately and without notice until the transgressing member/resident’s old bill is paid.

Next, appellant cites from the Bylaws of the Walton Electric Membership Corporation, § 1.04, which states in pertinent part: “The term ‘member’ as used in these Bylaws shall mean a husband and wife holding a joint membership and any provisions relating to the rights and liabilities of membership shall apply equally with respect to the holders of a joint membership, unless one or both request in writing that the membership be singular and held by only one of them.” (Emphasis supplied.) Clearly, this provision relates to a husband and wife who apply for membership and, by virtue of their status at the time of application, “hold” joint membership, unless such is designated otherwise via a written request. This language does not and cannot be read to impact in any way upon an individual’s preexisting singular membership contract, such as the one signed by appellee.

In fact, the contract signed by appellee Snyder specifically provides that “membership of a husband and wife shall be a joint membership unless one or both request in writing that the membership shall be singular.” (Emphasis supplied.) The contract provided spaces for a spouse’s name and employer; Snyder, being single at the time the contract was entered into, left these spaces blank, and a singular membership was formed. Upon his marriage to Deborah Patton, Snyder did not have to write Walton Electric and request that his membership be made singular pursuant to the above contract provision, because his membership was already singular. Further, common sense would, again, seem to impose the notion that if a specific writing is necessary to turn an existing joint membership into a singular one, the same process must be utilized to turn an existing singular membership into a joint one. An existing singular contract cannot automatically become “reformed” by virtue of the established member’s subsequent marriage. See generally Cotton States Mut. Ins. Co. v. Woodruff, 215 Ga. App. 511 (451 SE2d 106) (1994) (reformation of contract is equitable remedy reflecting true intent of parties, which intent must be pled and proved).

In sum, Walton Electric has provided no legitimate basis for assigning contract liability to appellee Snyder for the previously accrued debt of his wife. Such liability has no support in either Georgia law or in a fair reading of Walton Electric’s own bylaws and regulations. Accordingly, summary judgment based on such ground was not warranted as a matter of law, and the trial court properly denied Walton Electric’s motion thereon. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. Appellant Walton Electric also challenges the trial court’s granting of summary judgment as to its liability under appellee Snyder’s claim of tortious termination of services. In support of this challenge, appellant contends that appellee’s complaint sets forth a claim ex contractu and thus, recovery for the tort of wrongful termination of services is precluded as a matter of law.

The complaint of appellee Snyder which alleges that Walton Electric terminated “his electricity wrongfully and without justification” in actions that were “willful, wanton, and done to coerce him into compliance with Defendant’s demands,” obviously sets forth a cause of action sounding in tort. Moreover, such cause of action has been recognized in this state. Freeman v. Macon Gas &c. Co., 126 Ga. 843 (56 SE 61) (1906); Hunnicutt v. Ga. Power Co., 168 Ga. App. 525 (309 SE2d 862) (1983); see also Milledgeville Water Co. v. Fowler, 129 Ga. 111, 113-114 (58 SE 643) (1907).

Further, it is well settled that misfeasance in the performance of a contractual duty may give rise to a tort action. Manley v. Exposition Cotton Mills, 47 Ga. App. 496, 497 (170 SE 711) (1933). “[I]n order to maintain an action ex delicto because of a breach of duty growing out of a contractual relation, the breach must be shown to have been a breach of a duty imposed by law and not merely the breach of a duty imposed by the contract itself.” Mauldin v. Sheffer, 113 Ga. App. 874, 879-880 (150 SE2d 150) (1966). Walton Electric’s duty to its members arises from its special relationship to them as the sole supplier of electricity to their area and its duty under the law to furnish electrical energy and service to its members. OCGA §§ 46-3-2; 46-3-12; 46-3-200; see also Freeman, supra at 846-847; Hunnicutt, supra. Furthermore, appellant’s contention that it is an “electrical membership” rather than an electric company is a distinction without a difference with regard to its tort liability for wrongful termination of services. OCGA §§ 46-3-12; 46-3-201 (a) (3) (C); see also Sowell v. Douglas County EMC, 150 Ga. App. 520 (258 SE2d 149) (1979) (citing 4 ALR3d 594; see § 9, recognizing that electric company or membership owes legal duty to consumer not to shut off power unjustifiably, which action creates liability in tort, not contract). Thus, contrary to appellant’s assertions, appellee Snyder’s claim for the wrongful termination of electrical services, which claim was properly raised by the pleadings, is not precluded as a matter of law.

Herein, the trial court correctly determined that appellee Snyder demonstrated through evidence of record that Walton Electric disconnected his electricity because of a debt incurred by another; that such act was without justification since he was not liable for said debt; and that such wrongful action resulted in damage to him. See Hunnicutt, supra. This prima facie showing was sufficient to shift the burden to appellant Walton Electric to come forward with rebuttal evidence demonstrating a genuine issue of material fact for trial. Bates v. Guar. Nat. Ins. Co., 223 Ga. App. 11, 15 (476 SE2d 797) (1996). “If the defendant fails to respond with specific facts . . . summary judgment is properly granted.” (Citations and punctuation omitted.) Id. In the case sub judice, there was no showing of a genuine issue of material fact for trial. Consequently, the trial court did not err in granting Howard Snyder’s motion for summary judgment as to the issue of Walton Electric’s liability on Snyder’s tort claim.

Decided May 22, 1997

Reconsideration denied June 4, 1997

Before Judge Sorrells.

Lambert & Roffman, E. R. Lambert, Marvin J. Reitman, Jr., for appellant.

James M. Green, Gerald W. Bruce, for appellee.

3. In addition, Walton Electric contends that the trial court erred in denying its motion for summary judgment with regard to the issue of punitive damages, since such damages are not authorized in cases arising on contract. Our decision in Division 2 herein renders this assertion meritless. Accordingly, we affirm the trial court’s order on the parties’ summary judgment motions and remand the case for a determination of damages to be awarded.

Judgment affirmed and remanded for action not inconsistent with this opinion.

Birdsong, P. J., and Ruffin, J., concur.

       Snyder and Walton Electric became contractually bound under the terms of his membership agreement which states “[acceptance of this application by the Cooperative shall constitute a contract between the Applicant and the Cooperative^]” There is no dispute that said application was accepted by Walton Electric.

       There is no dispute that Deborah Patton Snyder owes Walton Electric $301.28 plus late fees under her membership contract. Evidence was introduced demonstrating the Snyders’ intent to pay the bill when it is assessed against Deborah Patton Snyder’s membership account.

       Snyder’s contract specifies that he “will comply with and he hound hy the provisions of the certificate of incorporation and bylaws of [Walton Electric], and such rules and regulations as may from time to time be adopted [thereby].”

       Under Walton Electric’s contract provisions, membership accounts are held by people/ members, not locations; thus, a location cannot have an “account in some other name.” Further, debt remains with the individual member, not the location serviced, thereby making unproductive appellant’s reliance on that limited body of case law permitting a lien against a location for unpaid water usage. See, e.g., Harrison a Jones, 226 Ga. 344 (175 SE2d 26) (1970).

       Such notion would also comport with Georgia law regarding assumption of debt.

       In the area in which appellee lives, one contracts with Walton Electric or one does not receive electricity. Essentially, this is a contract of adhesion, which has been defined as a standardized contract offered on a “take it or leave it” basis and under such conditions that a consumer cannot obtain the desired product or service except by acquiescing in the form contract. Black’s Law Dictionary, 5th ed., p. 38. Such contracts, while permissible, are construed strictly against the drafter. Rossville Fed. Sav. &c. Assn. v. Ins. Co. of North America, 121 Ga. App. 435 (174 SE2d 204) (1970).

       Walton Electric is vested with the power to sue arid be sued (OCGA § 46-3-201 (a) (3)) and is provided with no express statutory immunity from liability for punitive damages. Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 302 (5) (436 SE2d 14) (1993). Compare MARTA v. Boswell, 261 Ga. 427 (405 SE2d 869) (1991).


text:
    A97A0386.
    GIBSON v. GAINESVILLE BANK & TRUST.
    (487 SE2d 460)
   McMurray, Presiding Judge.

James L. Gibson filed this áppeal after the trial court granted summary judgment in favor of Gainesville Bank & Trust (“the Bank”) based upon undisputed proof that Gibson executed a $237,000 “renewal” note in favor of the Bank but did not pay this debt when it came due. We affirm because Gibson’s proof that the Bank offered to compromise the loan before “accelerating its note” does not raise genuine issues of material fact as to whether there was a mutual departure from the “renewal” note so as to constitute a quasi-new agreement between the parties.

On November 10, 1994, Gibson executed a $237,000 “renewal” note in favor of the Bank and granted the Bank security interests in certain realty and three mobile homes. When Gibson “defaulted in his obligation to make monthly payments on the Note . . . and failed to pay the amount due at maturity,” the Bank sold the collateral realty for less than Gibson’s debt and applied to have the nonjudicial foreclosure sale confirmed pursuant to OCGA § 44-14-161. After the superior court confirmed the nonjudicial foreclosure sale, the Bank filed a deficiency judgment action against Gibson and moved for summary judgment based on undisputed proof that Gibson “defaulted in his obligation to make monthly payments on the Note . . . and failed to pay the amount due at maturity.” Gibson filed his affidavit in response and deposed, in pertinent part, as follows:

“Prior to [the Bank] accelerating its note, I had discussions with a prospective purchaser wherein it was orally agreed that a contract would be drawn up for $172,000.00 (without mobile homes) to purchase the property which is the subject matter of the above litigation with [the bank]. Deponent further states that at the time of the negotiations, [the Bank] indicated that they would accept $172,000.00 in full settlement, which was a cash offer less than the amount owed on the note[,] in full satisfaction of my obligations. . . . Prior to the foreclosure advertisement, I contacted [the Bank] and talked to Wilson Livingston, and advised him that I was selling certain mobile homes that were collateral of [the Bank], which funds would be remitted to the bank. At this time, I was led to believe by Wilson Livingston that the foreclosure would be delayed, and I [would] be given thirty (30) days to sell the land and mobile homes to raise the $172,000.00. . . . Contrary to the agreement, the foreclosure advertisements began in May of 1995. I had a verbal offer to purchase of $172,000.00 from Buddy Ralston, but upon the advertisement beginning in the newspaper in May of 1995, he withdrew his offer, stating that he could buy it cheaper at the Courthouse steps. . . . My defense is . . . that I was led to believe that my efforts to sell the land and the mobile homes, and application of those funds to the debt would not only postpone the foreclosure, but created a new agreement for a set pay off of $172,000.00, and of this amount $169,800.00 has been paid [via sale of the collateral realty and mobile homes]. Based upon my understanding of the new agreement, I paid $13,000.00 to the Bank for the mobile homes after the foreclosure. The Bank has not given me credit for this payment.” Held:

Gibson contends,, summary judgment was improper because his sworn statement regarding the Bank’s agreement to compromise his debt before “accelerating its note” raises genuine issues of material fact as to whether there was a mutual departure from the promissory note so as to constitute a quasi-new agreement between the parties. See OCGA § 13-4-4. This argument is without merit.

Decided June 4, 1997.

Before Judge Fuller.

Harmon T. Smith, Jr., for appellant.

Hulsey, Oliver & Mahar, Joseph D. Cooley III, Abbott S. Hayes, Jr., for appellee.

While a quasi-new agreement may arise where the parties mutually depart from the terms of an executory contract, to support such a departure there must be some evidence that money was paid or received under such departure. OCGA § 13-4-4. See Vaughn & Co., Ltd. v. Saul, 143 Ga. App. 74, 82 (7), 83 (237 SE2d 622). In the case sub judice, the only proof Gibson offers that the Bank accepted money under the parties’ alleged quasi-new agreement is his sworn statement that, “[biased upon my understanding of the new agreement, I paid $13,000.00 to the Bank for the mobile homes after the foreclosure.” It is undisputed, however, that Gibson already pledged these mobile homes as collateral for the “renewal” note. Thus, the Bank’s alleged receipt of this $13,000 merely proves that the Bank received what it was already due under the unambiguous terms of the “renewal” note. Such proof would not authorize a finding that the Bank compromised.its right to collect the full amount due under the “renewal” note in lieu of a quasi-new loan agreement with Gibson. Crawford v. First Nat. Bank of Rome, 137 Ga. App. 294, 297 (223 SE2d 488). Since it is undisputed that the “renewal” note was due and not paid by Gibson on demand, the trial court did not err in granting partial summary judgment in favor of the Bank as to liability. Auerbach v. First Nat. Bank of Atlanta, 147 Ga. App. 288, 289 (1) (248 SE2d 551).

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Andrews, Chief Judge.

text:
    A97A0561.
    FERGUSON v. THE STATE.
    (487 SE2d 467)
   Andrews, Chief Judge.

Travis Ferguson appeals from the judgment entered on a jury verdict finding him guilty of trafficking in cocaine. He claims on appeal that the conviction must be reversed because the State violated its duty under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) and Giglio v. United States, 405 U. S. 150 (92 SC 763, 31 LE2d 104) (1972) to disclose material evidence favorable to the accused by: (1) failing to disclose a deal for leniency on federal criminal charges between federal authorities and a witness for the State, and (2) failing to provide the criminal history of the same witness. We disagree and affirm the conviction.

1. The State provided ample evidence to support the trafficking conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

An informant, Ralph Johnson, supplied to DeKalb County police by the Federal Bureau of Investigation (FBI), telephoned Ferguson and arranged to buy cocaine from Ferguson in DeKalb County. DeKalb County police monitored the drug buy, arrested Ferguson at the scene, and found in his possession 244 grams of a powdery mixture with a purity of 83 percent cocaine.

2. Ferguson claims the State violated Brady, supra, and Giglio, supra, by failing to disclose a deal entered into between Johnson and federal authorities making promises or providing leniency to Johnson in return for his cooperation in the prosecution of the present case. Ferguson does not claim that the State had a deal with Johnson. Rather, he contends that there was a deal between federal authorities and Johnson concerning federal criminal charges against Johnson and that the State failed to reveal the federal deal.

Pursuant to Brady, supra, the State is required to disclose evidence favorable to the defendant when such evidence is material to guilt or punishment. United States v. Agurs, 427 U. S. 97 (96 SC 2392, 49 LE2d 342) (1976). This includes disclosure of impeachment evidence which could be used to show bias or interest on the part of a key State witness. Belins v. State, 210 Ga. App. 259, 261 (435 SE2d 675) (1993). Accordingly, “[t]he state is under a duty to reveal any agreement, even an informal one, with a witness concerning criminal charges pending against that witness, and a failure to disclose such an agreement constitutes a violation of the due process requirements of Brady[, supra]. Giglio[, supra].” (Citations and punctuation omitted.) Owen v. State, 265 Ga. 67, 68 (453 SE2d 728) (1995). In order to show that the State violated Brady by failing to reveal a deal with one of its witnesses, a defendant must show that the State possessed evidence of the deal; that the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; that the State suppressed evidence of the deal; and that, had the evidence of the deal been disclosed to the defendant, there existed a reasonable probability that the result at trial would have been different. Burgeson v. State, 267 Ga. 102, 104 (475 SE2d 580) (1996).

Ferguson has failed to carry his burden of showing a Brady violation under these standards. The record shows that the State prosecutor disclosed to Ferguson all of the information that the State had in its possession regarding the federal deal. The prosecutor disclosed to defense counsel prior to trial that there was no deal between the State and Johnson but that, according to conversations the prosecutor had with Johnson, Johnson had a deal with federal authorities for a reduction of his sentence on federal drug charges in return for his cooperation on various drug cases, including the case against Ferguson. Defense counsel acknowledged that the prosecutor disclosed this information to him prior to trial. Moreover, Johnson testified at trial on direct examination by the State and on cross-examination by defense counsel that he was in federal prison pursuant to his guilty plea on a federal drug charge; that, before he was sentenced on the federal charge, he cooperated with the FBI and other law enforcement agencies in the prosecution of other drug cases, including the case against Ferguson; that this cooperation, including his testimony at the trial of the cases, was a requirement of a deal he had with federal authorities for reduction of his federal sentence from 25 years to life in prison to his current sentence of about 12 years.

Despite these disclosures, Ferguson contends that the State failed to satisfy its obligation under Brady by disclosing only the information it actually possessed or learned from Johnson about the federal deal. Ferguson claims that, given the degree of interaction and cooperation between the FBI and the DeKalb County: police in prosecuting the case against Ferguson, the FBI was an integral part of the State prosecution team, and information in possession of the FBI regarding the written specifics of the federal deal should be considered within the possession of the State for purposes of Brady, supra.

At trial, the State presented testimony from Johnson and two DeKalb County police officers as to how the case against Ferguson was made. This testimony established that, prior to setting up the drug buy with Ferguson, Johnson was on bond awaiting sentencing after pleading guilty to federal drug charges and entering into an agreement with federal authorities for reduction of his federal sentence in return for his cooperation in the prosecution of other drug cases. Pursuant to the agreement, Johnson told the FBI that he could buy cocaine from Ferguson. At the instigation of the FBI, Johnson telephoned Ferguson and told him he wanted to buy a quarter of a kilogram of cocaine from him and would be coming to the Atlanta area to do so. After the call, the FBI contacted the DeKalb County police and informed them that Johnson would cooperate with them in pursuing a drug conviction against Ferguson in DeKalb County. A day or two after Johnson’s initial call to Ferguson, DeKalb County police met and questioned Johnson at the Atlanta Bureau of the FBI. On the same day, Johnson went to the DeKalb County police headquarters, accompanied by an FBI agent, where he telephoned Ferguson again and made arrangements to meet and buy cocaine from Ferguson that day. An undercover DeKalb County police officer accompanied Johnson to the location of the buy, and other DeKalb County police officers monitored the buy from nearby concealed positions. After Johnson met with Ferguson, DeKalb County police arrested Ferguson with the cocaine in his possession at the scene of the buy. After Johnson arrived at the DeKalb County police headquarters, there is no evidence that FBI agents took any further part in setting up or monitoring the drug buy or in arresting or prosecuting Ferguson on the State drug charges. No FBI agents testified at the trial. Pursuant to a State court order, Johnson was delivered from federal prison to State custody so that he could testify as a witness for the State.

“Brady requires information to be revealed only when it is ‘possessed by the prosecutor or anyone over whom the prosecutor has authority.’ [Cit.]” Zant v. Moon, 264 Ga. 93, 100 (440 SE2d 657) (1994); Owen, supra at 69, n. 2. Although in Kyles v. Whitley, 514 U. S. 419 (115 SC 1555, 131 LE2d 490, 508) (1995), the Supreme Court stated that “the individual prosecutor has a duty [under Brady] to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police,” it is reasonable to surmise that persons “acting on the government’s behalf in the case” refers to those over whom the prosecutor has authority. Whether a person is on the prosecution team and subject to the authority of the prosecutor depends in each case on the extent of interaction, cooperation, and dependence of the agents working on the case. Zant, supra at 100.

Even though there was some degree of initial interaction and cooperation between the FBI and the DeKalb County police, there was no evidence that the FBI or any of its agents worked for or was subject to the control or authority of the State prosecutor. Even assuming the FBI or any of its agents possessed information about Johnson’s federal deal not possessed by the State, we decline to impute such knowledge to the State prosecutor in the absence of any evidence that the prosecutor had authority over the persons possessing such information. Moreover, Ferguson made no effort to obtain information about the federal deal from the FBI or other federal authorities, so he has not demonstrated that he was unable to obtain the information in the exercise of reasonable diligence.

3. We find no merit in Ferguson’s additional contention that the State violated Brady, supra, by failing to disclose Johnson’s criminal history.

Decided June 4, 1997.

Before Judge Mallis.

Kendal D. Silas, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Benjamin M. First, Assistant District Attorneys, for appellee.

There is no evidence that the State was in possession of any criminal history regarding Johnson. “ ‘Brady does not impose an affirmative obligation on the prosecution to seek out information for the defense, even if such information is more accessible to the prosecution than to the defense.’ [Cit.]” Lariscey v. State, 254 Ga. 241, 243 (328 SE2d 213) (1985); Bacon v. State, 207 Ga. App. 39, 40 (427 SE2d 32) (1993). Furthermore, the record shows that, either prior to trial or at the trial, defense counsel became aware of Johnson’s criminal history since he cross-examined Johnson on this issue at trial. “Brady does not require a pre-trial disclosure of material and applies only to exculpatory material unknown to the defendant.” (Citations and punctuation omitted.) Bradford v. State, 205 Ga. App. 383, 384 (422 SE2d 74) (1992).

Judgment affirmed.

McMurray, P. J, and Smith, J., concur.

       The jury also found Ferguson guilty of possession of cocaine with intent to distribute, but the trial court merged that offense with the trafficking conviction.

       Although no Brady request is contained in the record, Ferguson claims he filed a specific request for disclosure of the deal and for Ferguson’s criminal history. Since the State does not controvert this assertion and apparently concedes that the requests were made, we take Ferguson’s statement of these facts as true. Court of Appeals Rule 27 (b) (1).


author: Smith, Judge. McMurray, Presiding Judge,

text:
    A97A0637.
    SAFADI et al. v. THOMPSON.
    (487 SE2d 457)
   Smith, Judge.

Appellants Robert and Mona Safadi sold a car to appellee Heather Thompson. When Thompson took the car in for repairs, her mechanic discovered that it had been “extensively wrecked” and. could not be repaired. Thompson brought suit alleging breach of express warranty and fraud; she later amended her complaint to add counts of breach of warranty of title and subornation of perjury. She sought to rescind the sale, return the car, and recover the purchase price and consequential expenses such as insurance and interest on the loan as well as punitive damages and attorney fees. After a bench trial, the trial court rescinded the sale and awarded Thompson the purchase price, consequential damages, attorney fees, and punitive damages.

1. This appeal raises several procedural issues. The Safadis have not stated the method of preservation of their enumerations of error as required by Rule 27 . (a) (1). Moreover, they did not request findings of fact and conclusions of law, either before trial pursuant to OCGA § 9-11-52 (a) or after entry of judgment pursuant to OCGA § 9-11-52 (c). “When findings or conclusions are not made prior to judgment to the extent necessary for review, failure of the losing party to move therefor after judgment shall constitute a waiver of any ground of appeal which requires consideration thereof.” Id.

“[W]e do not remand the case for written findings of fact and conclusions of law because OCGA § 9-11-52 (c) has since been amended. Their absence is ground for affirmance when they are necessary for resolution of the issue on appeal. [Cit.]” Beeks v. Consultech, Inc., 222 Ga. App. 473, 474 (1) (474 SE2d 675) (1996). All of the Safadis’ enumerations of error go directly to the sufficiency of the evidence to support the trial court’s decision. Their failure to request findings of fact and conclusions of law therefore constitutes a waiver of their grounds of appeal. Id.

2. As we did in Beeks, however, although oral findings are insufficient, we briefly review the evidence and the trial court’s oral statement to demonstrate that appellants’ claims are without merit. Id. The Safadis made oral representations to Thompson and her mother that the car had been in their family since it was new. Each made oral representations and gave a written warranty and hold harmless agreement to Thompson and her mother, stating that the car had never been wrecked.

The previous owner of the vehicle appeared at trial and testified that he purchased the car from a salvage lot as a wrecked vehicle that had been declared a total loss. He paid for some repairs on the car and sold it to Safadi for $7,000, which he considered a low price because it was a salvaged vehicle. The previous owner told Safadi that the salvaged condition of the car would have to be revealed to any subsequent purchaser. He produced the original bill of sale, signed by Safadi, which includes a notation of the car’s rebuilt condition. Moreover, he testified that Safadi contacted him after suit was filed and told him that he was going to testify that he did not know the car had been totalled and salvaged.

Although Safadi told the previous owner he was buying the car for his family, he sold the car to Thompson a few days later for $9,700. Thompson testified to the amount of her cash downpayment and loan, the remaining balance on the loan, and the monthly payments. She also testified to the cost of attempted repairs to the car, the cost of a rental vehicle, and the cost of her insurance policy.

Appellants’ claims have no merit under the clear authority of City Dodge v. Gardner, 232 Ga. 766 (208 SE2d 794) (1974), and Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589 (411 SE2d 518) (1991). In City Dodge, the Supreme Court of Georgia held that an “as is” contract does not negate an express warranty, even in the presence of a merger clause. City Dodge, supra at 767. Moreover, the court allowed parol evidence on the issue of fraud and deceit and permitted an action in tort for fraud. Id. at 769-770. In Crews, this Court held that a purchaser obligated on a car loan to a third party creditor, as Thompson was, need not necessarily tender back the vehicle in order to rescind the contract and sue for fraud. Crews, supra at 591 (1). The trial court having found in favor of Thompson and the Safadis having failed to provide a basis for review of their enumerations of error, we must affirm.

3. Thompson, in several motions, requested affirmance without opinion, an expedited appeal, and the imposition of ten percent damages for frivolous appeal pursuant to OCGA § 5-6-6. Appellants have not responded to any of these motions. Appellee’s motion for an expedited appeal is denied; appellee’s motion for affirmance without opinion is denied.

With respect to Thompson’s motion for frivolous appeal, we are authorized by OCGA § 5-6-6 to impose damages for a frivolous appeal upon the affirmance of any judgment for a sum certain, when in the opinion of the court the appeal was taken for purposes of delay only. Considering the Safadis’ failure to obtain findings of fact and conclusions of law, the existence of clear controlling authority, and the nature of the evidence presented below, we must conclude that there was no adequate legal basis upon which the Safadis could have anticipated that the judgment would be reversed and that the appeal was for the purpose of delay only. We accordingly direct the trial court to enter judgment in favor of Thompson for damages in the amount of ten percent of the judgment awarded, to be entered in the remittitur pursuant to OCGA § 5-6-6. Alpharetta &c. Society v. Dowda, 217 Ga. App. 792, 794 (3) (459 SE2d 443) (1995).

Judgment affirmed with direction.

Beasley, J., concurs. McMurray, P. J., concurs specially.

McMurray, Presiding Judge,

concurring specially.

My review of the transcript of this bench trial convinces me that defendant-appellants’ three enumerations of error ultimately are without merit. Accordingly, I concur in Division 2 and in the judgment of affirmance. However, in my view, an unsuccessful appeal is not automatically an improper one, and so I do not participate in any imposition of additional damages as a statutory penalty for frivolous appeal.

Decided June 4, 1997.

Before Judge Fuller.

Fred V. Westberry, for appellants.

Glenville Haldi, for appellee.

“The constitution and laws of this State are liberal in guaranteeing to every suitor the right of appealing to the highest courts, in vindication of all his legal rights. . . . [Certainly], the law does not intend that its liberality shall be abused, and has, therefore, explicitly provided [in OCGA § 5-6-6], that if it appears that a case has been brought to this court for delay only, damages in the sum of ten per cent, on the amount of the judgment in the court below may be awarded. Fearful that any stringent enforcement by [this Court] of this section of the code might have the effect of deterring honest suitors from contesting to the end unjust demands plausibly asserted against them, we [ought to remain] always hesitant to penalize a[n] [appellant] by the award of damages; still we must remember that a frivolous appeal is a grave injustice, not only to the opposite party to the case but to the State itself; for every case brought to this court entails an expense upon the State [far] greater than the sum it receives [($80) as] the maximum costs collectible. So, therefore, when a motion for [additional] damages is filed, we will carefully examine the record and will pass upon the motion in the light of the entire history of the case as there presented. If after reviewing the whole matter we believe that the [appellant] is presenting a bona fide contest over a colorable matter, though his view of the law may not in fact be well founded, or that he is seeking a ruling upon an open or doubtful question, damages will be refused. But when the record discloses that [appellant] has no just case, that no new question of law is involved, and the record is full of those things which every judge and every lawyer recognizes as indicia of an attempt to fight merely for time, justice demands that we overcome any personal hesitancy we may have, and that we add an award of damages to the judgment of affirmance.” Moore & Jester v. Smith Machine Co., 4 Ga. App. 151, 153 (5) (60 SE 1035). In the case sub judice, I cannot conclude the legal issues raised in this appeal are interposed solely for purposes of delay.

       The warranty and hold harmless agreement signed by Safadi was misplaced before trial, hut Thompson and her mother testified that he signed it and presented it to them. Appellants did not object to this testimony.

       The bill of sale at issue here, however, contained no merger clause, so the holdings of both City Dodge and Crews with regard to the effect of a merger clause are inapplicable here.


author: Beasley, Judge.

text:
    A97A0694.
    ROJAS v. THE STATE.
    (487 SE2d 455)
   Beasley, Judge.

Rojas was indicted on three counts of selling cocaine, OCGA § 16-13-30 (b), and one count of possessing cocaine and having it under his control, OCGA § 16-13-30 (a). This direct appeal is from the court’s denial of his plea of former jeopardy. See Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982).

At the time of arrest and afterwards, the State seized a variety of personal property and filed a complaint to forfeit that property under OCGA § 16-13-49 (o). Both Rojas and Universe Wrecker Service, Inc., on whose premises the drug sales took place, filed answers as claimants to the property. The court ruled the answers defective and granted the State’s motion for judgment of forfeiture. Rojas’ motion to dismiss the criminal prosecution against him was denied.

Rojas contends the criminal prosecution following the civil forfeiture subjected.him to multiple punishment for the same offense contrary to the protection against double jeopardy afforded by the state and federal constitutions. He cites the state constitutional provision that “[n]o person shall be put in jeopardy of life or liberty more than once for the same offense . . .,” Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII, but makes no independent argument concerning the state provision and the court below ruled only on the federal grounds. Our analysis is therefore confined to the protection found in the Fifth Amendment to the United States Constitution. See Thomas v. State, 203 Ga. App. 529, 530-531 (1) (417 SE2d 353) (1992).

Forfeiture under OCGA § 16-13-49 does not constitute criminal punishment in that context. “It is plain that a forfeiture proceeding under OCGA § 16-13-49 is intended to be a civil action. [Cits.] . . . The forfeiture proceeding under the statute is legitimately a civil action and does not constitute punishment for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.” Murphy v. State, 267 Ga. 120, 121 (475 SE2d 907) (1996). See also Battista v. State, 223 Ga. App. 369, 370 (1) (477 SE2d 665) (1996).

Rojas argues the forfeiture proceeding nonetheless constituted a criminal punishment because it was in personam rather than in rem. In support of this argument he cites United States v. Ursery, 518 U. S. _ (116 SC 2135, 135 LE2d 549) (1996). First, Ursery was decided in the context of the federal forfeiture statute, not the Georgia statute construed in Murphy, supra. Under our statute the forfeiture is not considered a criminal punishment. This applies to in personam proceedings as the Code subsection providing for such, OCGA § 16-13-49 (p), was specifically cited by Murphy. Murphy, supra at 121.

Second, while Ursery, supra, 135 LE2d at 562-568 recognizes that in personam forfeitures can constitute criminal punishment, the proceeding here was clearly in rem. The complaint specifically names the property as defendants and there is nothing in it or the order granting forfeiture that suggests Rojas would have any personal lia-

Decided June 4, 1997

Before Judge Flake.

Stephen T. Maples, Kathy S. Yang, for appellant.

J. Tom Morgan, District Attorney, Anne Long, Carol M. Kayser, Stephen D. Sencer, Assistant District Attorneys, for appellee.

bility as a result of the forfeiture. See Williamson v. Williamson, 247 Ga. 260, 262 (2) (275 SE2d 42) (1981); Farley v. State, 180 Ga. App. 694, 695 (1) (350 SE2d 263) (1986). “[A]ny ‘punishment’ in a forfeiture proceeding is against the property, not the owner as a criminal defendant. . . . [It] in no way equates to a criminal prosecution or to punishment for a criminal offense by the defendant or owner of the property forfeited, and the fact that the defendant feels he is being punished by a civil forfeiture does not render the civil forfeiture a proceeding putting him in jeopardy.” Murphy v. State, 219 Ga. App. 474, 475 (465 SE2d 497) (1995) aff’d, 267 Ga. 120 (475 SE2d 907) (1996). Rojas has not been subjected to multiple punishments for the same offense. The court correctly denied his motion to dismiss the indictment on the ground of former jeopardy.

Judgment affirmed.

McMurray, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Judge Harold R. Banke.

text:
    A97A0949.
    THE STATE v. TAYLOR.
    (487 SE2d 454)
   Judge Harold R. Banke.

The State of Georgia appeals the trial court’s order granting Benjamin Taylor’s motion to suppress. In its sole enumeration, the State maintains that the trial court clearly erred in finding that the arresting officer illegally searched Taylor.

The following evidence was presented at the suppression hearing. The case arose while the arresting officer engaged in a show of police presence during an early evening in May. He and at least five other officers “were riding two to a car, about three or four cars deep” through an area where drug use was known to occur. As Taylor and another man named Reynolds bicycled up the street toward the patrol cars-, an officer in the first car radioed the arresting officer, urging him to “check out” Reynolds, whom they suspected of involvement in drugs. The convoy of patrol cars then stopped. The arresting officer testified that Taylor approached him and stated, “I believe that you all are looking for me.” This confused the officer, who testified, “I really didn’t know what to think.” As the officer got out of his car, he “said something to the effect [of| is that right, why would we be looking for you, or something like that.” The officer immediately “walked over” to Taylor and “grabbed” his right wrist while another officer took control of his bicycle. The officer “said all right let me pat you down for weapons” and moved Taylor over to his patrol car. The officer then grabbed hold of Taylor’s belt loop, positioned him spread eagle with his hands on the car, and commenced a pat down search. Taylor resisted, which gave rise to two obstruction charges. After a search incident to the arrest, the officer discovered a $20 piece of cocaine in Taylor’s pocket. Held:

We reject the State’s contention that this case falls beyond the Fourth Amendment’s purview as mere communication between the police and the defendant involving no coercion or detention. Here, Taylor approached the arresting officer and simply stated that he believed the police were looking for him, an act with no constitutional implications. State v. Banks, 223 Ga. App. 838, 839 (479 SE2d 168) (1996) (physical precedent only). However, when the officer immediately “grabbed” Taylor, this encounter escalated to a seizure which triggered Fourth Amendment protection. Id.

“ An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.’ ” State v. Wright, 221 Ga. App. 202, 204 (3) (470 SE2d 916) (1996). When such articulable suspicion is present, “a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual” may be conducted. Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968).

Notwithstanding the State’s argument to the contrary, Taylor’s comment did not provide the requisite articulable suspicion justifying his immediate seizure. Nor does the record support the contention that the officer had any reason to believe Taylor was armed and dangerous. Terry, 392 U. S. at 27. The record shows simply that Taylor rode up on his bicycle at a reasonable hour and spoke to the officer from a distance of about ten feet. Nothing in Taylor’s behavior or sole comment, that he believed the police were looking for him, implied that he was committing, or about to commit, a crime. Police seek out citizens for many reasons, such as to serve civil papers on them or to seek assistance in criminal investigations. There is no evidence that the tone or volume of his voice was threatening, that he was fleeing or involved with drugs, or that he was “casing” a store as in Terry. Compare Pace v. State, 219 Ga. App. 583, 585 (466 SE2d 254) (1995) (threatening action justifies safety search); State v. Smalls, 203 Ga. App. 283, 286 (2) (416 SE2d 531) (1992) (flight may provide reasonable suspicion). Nor did the fact that he was bicycling through a “known drug area” give rise to articulable suspicion. Banks, 223 Ga. App. at 841. On the facts before us, we cannot say the trial court lacked a substantial basis for finding that the State did not satisfy its burden of proving that Taylor was legally detained. State v. Armstrong, 223 Ga. App. 350, 351 (1) (477 SE2d 635) (1996); Banks, 223 Ga. App. at 838 (in suppression hearings, the State bears the burden of proving the search was lawful).

Decided June 4, 1997.

Before Judge Allen.

J. Gray Conger, District Attorney, Lori L. Canfield, Assistant District Attorney, for appellant.

Richard O. Smith, David L. Roberts, John R. Mobley II, for appellee.

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A97A1135.
    GILPATRICK v. THE STATE.
    (487 SE2d 461)
   Birdsong, Presiding Judge.

Appellant Marvin Keith Gilpatrick appeals his final judgment of conviction in a bench trial on the sole ground that the trial court erred in denying his post-judgment motion for correction of sentence.

Appellant was found not guilty of reckless driving and vehicular homicide in the first degree, but was convicted of the lesser included misdemeanor offense of vehicular homicide in the second degree, speeding, passing in a no-passing zone, and improper lane usage. All of these offenses were averred in the indictment as occurring on July 4,1994. At trial, witnesses testified that appellant’s truck was traveling in the opposite direction than decedent’s vehicle when appellant’s truck left its traffic lane on a sharp curve and collided “head-on” with decedent’s vehicle. An expert opined that appellant’s vehicle was traveling between 37 and 49 mph in a 30 mph zone at the time of the collision. Evidence also was introduced that prior to the collision appellant had passed a car, going in the same direction, which was traveling at the speed limit. An accident reconstructionist, called by the State, testified, based on his examination of skid marks at the collision scene, that appellant was speeding at the time of the collision. This testimony was corroborated in part by testimony of the investigating officer based inter alia on his observation of the scene of the collision and the impact damage to the vehicles. (Note: Appellant was not charged with two separate counts of speeding.)

In announcing its findings the trial court pertinently explained: “I have carefully considered the evidence in this case and find as follows. And I’m going to do so in time sequence as to counts. With regard to count four, passing in a no passing zone, I find [appellant] guilty. [In time sequence this event occurred at the same time as the first incident of speeding asserted by the State, nevertheless, no specific finding of speeding at this sequential point is made by the trial court.] With regard to counts one [vehicular homicide], two [reckless driving], three [speeding], and five [improper lane usage], I’m going to consider and discuss these together” (Emphasis supplied.) In discussing the charge of reckless driving, of which appellant ultimately was acquitted, the court stated in its findings: “Here I am persuaded beyond a reasonable doubt that the defendant was driving in excess of the posted speed limit at the time of the collision, and certainly was driving too fast for the conditions then existing on the roadway. . . . However, the evidence does not indicate that the speed was extremely excessive. It indicates that the speed at the time of impact would have been 40 to 46 miles per hour. That would have been at the beginning of the skid, I believe. The evidence revealed that the defendant did attempt to slow his vehicle when it became apparent that he was going too fast. The skid marks indicate as much. Unfortunately, he was unsuccessful and lost control of his vehicle and went across into the other lane where the collision occurred” (Emphasis supplied.) After announcing appellant’s acquittal of reckless driving the court further sequentially found: “I am persuaded, however, that [appellant/defendant] is guilty of exceeding the posted speed limit as charged in count three, and that he is also guilty of improper lane usage as charged in count five, and that these violations were the direct and proximate cause of the death of [the decedent]. And for those reasons, I am going to find that [appellant/defendant] is guilty of homicide by vehicle in the second degree.” (Emphasis supplied.) At no time in these findings did the court announce, in time sequential order or otherwise, that it found appellant guilty of the separate offense of speeding before the events giving rise to the collision.

During the hearing on sentencing conducted two months after trial, the court observed: “I think this is the crucial distinction that has to be made ... if the finding of the couit was that he was speeding at the time of this accident that it would merge. On the other hand, if he was speeding prior to that time, then it would not merge. And I believe the finding was it may not have been specifically clarified on the record that it was prior to that time.” (Emphasis supplied.) Thereafter, the court stated: “Reserving the question of whether or not the finding of the court was in fact a finding of speeding at a time other than the time when the collision occurred, I think it is appropriate to impose a sentence of incarceration [on] each of these counts -to run consecutive with one another, and that that sentence be 12 months.” The court concluded the hearing, after imposing sentence, by stating it would review the transcript and make a determination whether the correct sentence was a total of 24 or 36 months. Appellant ultimately was sentenced for Count 1, second degree vehicular homicide, to 12 months to serve; for speeding, 12 months to serve (consecutive to Count 1); and for passing in a no-passing zone, to 12 months to serve (consecutive to Count 1). Further it was held that the offense of improper lane usage merged with Count 1.

At a subsequent hearing on appellant’s motion for correction of sentence, conducted approximately 11 months after trial, the trial court explained its imposition of a consecutive sentence for the speeding offense as follows: “My recollection of it is that my determination that the defendant was guilty of speeding in the case was based on the determination in the evidence that existed regarding the observation that was made of him by witnesses at the entrance and/or exit of a subdivision, which was some distance down the road from where the . . . actual collision took place. I would agree with [the State] that there really was no evidence as to the speed of the vehicle, with the possible exception of the testimony of the arresting officer, the investigating officer, about the impact damage to the vehicle. And although the transcript reflects that the finding was made that the death of the victim in this case was the result of the speeding as well as improper lane usage, and therefore the underlying offenses for the vehicular homicide suggests that that was the case, but my recollection is that my determination of the . . . guilt of speeding was based upon the observations of witnesses who observed his vehicle some distance down the road.” (Emphasis supplied.) Later in the hearing, after being reminded of the trial testimony of the accident reconstructionist that the skid marks established appellant was traveling in excess of the speed limit at the time of the collision, the trial court responded: “I recall that to be the evidence and I don’t disagree with what you say. I do recall, however, that the court’s determination at the time, although, [I] may have concluded he was speeding as well at the time of the collision, but there was evidence of speeding some distance down the road immediately prior to the collision, and that was the basis for the sentence.” (Emphasis supplied.) (Examination of the trial and hearing transcripts reveals that discrepancies exist between the trial court’s recollection of the findings he made (11 months earlier) and the actual findings as officially reported in the certified trial transcript.)

Although appellant concedes he was properly sentenced for passing in a no-passing zone, as that offense occurred prior to the specific occurrence which led to the vehicular homicide, he contends, however, the 12-month consecutive sentence for speeding is void as that offense merged into the vehicular homicide conviction as a result of the trial court’s specific finding that this offense was one of two offenses which combined as the proximate cause of the vehicular homicide; that is, the speeding offense was one of the contributing causes of the vehicular homicide. Held:

Any person who causes the death of another person, without an intention to do so, by violating any of the provisions of Title 40, OCGA, except for those Code sections thereof which are listed in OCGA § 40-6-393 (a) as supporting a conviction for homicide by vehicle in the first degree, commits the offense of homicide by vehicle in the second degree “when such violation is the cause of said death.” OCGA § 40-6-393 (b).

To constitute the offense of vehicular homicide in the second degree, an offender must commit one or more of the underlying traffic violations specified in OCGA § 40-6-393 (b) and such offense or offenses must be “the cause of said death.” Those traffic violations underlying the offense of vehicular homicide constitute lesser included offenses of vehicular homicide, pursuant to OCGA § 16-1-6 and conviction of both offenses is proscribed under the provisions of OCGA § 16-1-7. Rank v. State, 179 Ga. App. 28, 30 (2) (345 SE2d 75). Accordingly, a conviction for such an underlying offense would merge into the crime of second degree vehicular homicide. Id.; compare Conyers v. State, 260 Ga. 506, 509 (6) (b) (397 SE2d 423), citing Rank, supra, and holding that underlying offense of improper backing merged into the vehicular homicide conviction but the offense of prohibited stopping did not as it was not the underlying cause of the homicide.

It is a general rule that “an accused cannot receive a sentence greater than that prescribed by law for the crime for which he was indicted and convicted.” Black v. Caldwell, 231 Ga. 589, 592 (203 SE2d 208); Mallarino v. State, 190 Ga. App. 398, 399 (1) (379 SE2d 210). In McNabb v. State, 180 Ga. App. 723, 725 (5) (350 SE2d 314), it was held that the trial court erred in sentencing the defendant on the lesser offenses of both reckless driving and DUI when the trial court also had sentenced defendant on the greater offense of vehicular homicide in the first degree. In doing so, we noted: “Had the jury revealed which of the lesser offenses served as the foundation for the homicide verdict a sentence on the remaining lesser offense may have been appropriate, but as such information does not appear in the record the defendant may not be sentenced for either of the lesser included offenses [of reckless driving and DUI].” Id. The facts of this case differ from those in McNabb, supra. The case at bar was a bench trial and the trial transcript reflects the trial court announced it had considered both improper lane usage and speeding as the direct and proximate cause of the vehicular homicide. Further, in announcing its findings the trial court did not affirmatively find, either sequentially or otherwise, that appellant was guilty of a separate speeding offense which was not one of the underlying offenses constituting the direct and proximate cause of the vehicular homicide. Subsequently, however, the trial court stated its recollection that it had based its speeding conviction on an earlier act of speeding by appellant which was unrelated to the vehicular homicide. Examining the trial and subsequent hearing transcripts in their entirety there exists an ambiguity between the trial court’s recollection of the basis for his conviction of appellant for speeding and the basis thereof as announced by him in the official transcript. The latter reflects that the trial court in fact convicted appellant of a speeding offense which was the direct and proximate cause of the vehicular homicide of which appellant was found guilty. “ ‘The rule has been laid down by the Supreme Court, and applied by this court, that sentences for criminal offenses “should be certain, definite, and free from ambiguity; and, where the contrary is the case, the benefit of the doubt should be given to the accused.” ’ ” Dilas v. State, 159 Ga. App. 39, 40 (1) (282 SE2d 690); Favors v. State, 95 Ga. App. 318 (97 SE2d 613) and cases cited therein. Resolving this ambiguity in favor of appellant, as we are required by law to do, we find that the sentence imposed is void, because it exceeds the maximum punishment allowed by law for the vehicular homicide offense and the remaining separate offense of which appellant was convicted (passing in a no-passing zone) which did not merge into the vehicular homicide conviction. The remedy for this error is for the court to recall the ,defendant and sentence him as provided by law and consistent with our above holding. See Sherman v. State, 142 Ga. App. 691, 692 (237 SE2d 5). The case is therefore remanded; defendant shall be resentenced in accordance with this direction.

Decided June 4, 1997.

Before Judge Gault.

Boyce, Ekonomou & Atkinson, William M. Coolidge III, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

Appeal remanded with direction.

Ruffin and Eldridge, JJ, concur.