text:
    A99A0373.
    DAVITTE v. THE STATE.
    (520 SE2d 239)
   Ruffin, Judge.

Following a bench trial, Mark Davitte was convicted of one count of violating Georgia Racketeer Influenced & Corrupt Organizations (RICO) law and one count of aiding and abetting the possession of marijuana with intent to distribute. Davitte appeals, asserting that the evidence was insufficient to support a conviction on both counts and that the State failed to prove venue. For reasons that follow, we affirm.

1. The standard of review applicable to a challenge to the sufficiency of the evidence is well established:

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. To sustain the conviction, the evidence must be sufficient to authorize the [trier of fact’s] finding of the defendant’s guilt of the crime charged beyond a reasonable doubt.

(Punctuation omitted.) James v. State, 227 Ga. App. 907, 908 (1) (490 SE2d 556) (1997).

Applying this standard, the evidence showed that Carroll County Deputy Sheriff Clay Culver discovered marijuana at the home of Kenneth Stamps following a search in April 1997. Kenneth agreed to become an informant, and he identified as his immediate supplier his cousin, Joseph Stamps, who resided in Douglas County. Kenneth told Deputy Culver that Stamps, in turn, got his marijuana from a man who lived in south Georgia whom Kenneth knew only as the “Big Man.” According to Deputy Culver, Kenneth informed him that every Sunday the “Big Man” — later identified as John Brannon — would drive to a house in Cobb County owned by Davitte. There, Brannon would deliver marijuana to Stamps and several other mid-level dealers. Stamps would then return home to Douglas County and distribute marijuana to approximately 20 lower-level dealers, including Kenneth. Kenneth testified that Brannon “fronted” the marijuana to Stamps, meaning that Stamps did not pay for the marijuana until after he had sold it, and that Stamps in turn “fronted” marijuana to Kenneth. Kenneth further testified that he had been present at Stamps’ residence when Brannon arrived to resupply Stamps directly with marijuana, and on one occasion, Kenneth accompanied his cousin to Davitte’s Cobb County home to pick up marijuana.

Based on this information, Deputy Culver planned for Kenneth to execute a controlled purchase of marijuana from Stamps on Sunday, April 6, 1997. The plan failed, however, when Stamps called Kenneth to his home that morning and “fronted” him marijuana, without requesting immediate payment. Kenneth delivered the marijuana to Culver, who turned it over to Douglas County authorities and later gave Kenneth marked currency to pay Stamps for it.

Several days later, Kenneth told Culver that Stamps would be distributing more marijuana the following Sunday, April 13. Anticipating that Stamps would first pick up marijuana from Brannon at Davitte’s Cobb County home in the manner described by Kenneth, a surveillance team followed Stamps that morning in an effort to discover the location of Davitte’s residence. The team lost Stamps at a red light, however. Later that day, Stamps called Kenneth to come pick up more marijuana, which Kenneth did. Kenneth then turned the marijuana over to police and was given marked currency to pay Stamps.

According to Kenneth, the next marijuana pickup was scheduled for Monday, April 21, 1997. Police again followed Stamps from his Douglas County residence and saw him drive to Davitte’s house in Cobb County. Stamps entered the house, followed shortly thereafter by another, unidentified man. The two men later emerged, with Stamps carrying a guitar case and the unidentified man carrying a nylon bag. Both men conversed briefly with Davitte, who also came outside, and then drove away. Later that day, Kenneth obtained more “fronted” marijuana from Stamps, turned it over to police, and was given more marked money to pay for it.

The next Sunday, April 27, law enforcement once again followed Stamps’ vehicle to Cobb County, where Stamps and his wife entered Davitte’s residence. Brannon arrived approximately five minutes later and also entered the residence. Stamps, Brannon, and Davitte exited the residence shortly thereafter, conversed briefly, and went back inside. Stamps and his wife, who was carrying a large beach bag, then left the house and drove away. Brannon left after speaking further with Davitte. Police stopped Brannon soon after he left. A search of Brannon’s vehicle and person yielded one pound of marijuana and $4,650 in cash, including $340 in marked bills that police previously had given to Kenneth to pay Stamps. Police also searched Davitte’s house and found a small quantity of dried marijuana, ten live marijuana plants under a grow lamp, scales commonly used to weigh small quantities of drugs, notes and records commonly kept by drug dealers to document amounts owed to them, and other drug paraphernalia. Finally, police searched the Stampses’ residence after the Stampses arrived home and discovered approximately three pounds of marijuana in a beach bag on the kitchen floor.

At trial, the State presented telephone records showing that the April 13, 21, and 27 transactions were all preceded by one or more telephone calls from Brannon’s residence to Stamps’ residence. The State also showed that on the morning of Sunday, March 23 — before police began their investigation — a telephone call was placed from Davitte’s residence to Brannon’s residence.

A Douglas County grand jury returned an indictment against Davitte, Brannon, Stamps, and Mrs. Stamps, charging all four with violating Georgia’s RICO and controlled substances laws. Four RICO predicate crimes were alleged against Davitte, including (1) aiding and abetting Brannon’s transfer of marijuana to the Stampses on April 27 for transport to and distribution in Douglas County by making his home available as the location for such transfer; (2) aiding and abetting Brannon’s possession of marijuana with intent to distribute on April 27 by making his home available as the location for such possession; (3) possession and manufacture of marijuana in his Cobb County home; and (4) using a telephone facility to further a violation of the drug laws by calling Brannon’s residence on March 23. In addition to the RICO count, Davitte also was charged with three counts of aiding and abetting the possession of more than one ounce of marijuana with intent to distribute (on April 13, 21, and 27) and one count of conspiring to possess with intent to distribute more than one ounce of marijuana on April 27. Following the trial of Davitte and Brannon, the trial court found Davitte guilty of the RICO violation and possession with intent to distribute marijuana on April 21 and acquitted him of the remaining counts.

(a) Davitte asserts that the evidence was insufficient to support his RICO conviction. Before a defendant may be convicted of a RICO violation, he must have engaged in “at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents.” OCGA § 16-14-3 (8); see also Chancey v. State, 256 Ga. 415, 417-418 (349 SE2d 717) (1986). Davitte argues that the State failed to prove that he engaged in at least two of the four predicate acts with which he was charged. We disagree.

First, Davitte argues that the first two predicate acts with which he was charged — aiding and abetting the Stampses’ possession of marijuana and aiding and abetting Brannon’s possession of marijuana — are in reality one act: the April 27 transaction in which Brannon transferred three pounds of marijuana to the Stampses and retained one pound for himself. Davitte asserts that this single transaction cannot be broken down into two predicate acts. However, Davitte does not challenge the sufficiency of the evidence to support the existence of one predicate act arising from the April 27 transaction. For the purpose of our analysis, we will assume that the evidence was sufficient to establish only one predicate act.

As to the third predicate act with which Davitte was charged, possessing and manufacturing marijuana at his residence, Davitte contends that the State failed to prove any interrelationship between this act and either the other charged predicate acts or the enterprise itself. To satisfy the interrelatedness requirement, the State must show that the defendant engaged in at least two “similar or interrelated incidents of racketeering activity.” (Punctuation omitted.) Caldwell v. State, 253 Ga. 400, 402 (1) (321 SE2d 704) (1984). Here, the State showed that Davitte had ten live marijuana plants in his home, photographs of previous grows, scales used to weigh small quantities of drugs, and notes indicating amounts owed to him for drugs. The State presented testimony that these items are commonly used in connection with drug distribution schemes. Based on this evidence, the trial court could infer that Davitte’s possession of marijuana and drug paraphernalia was similar or related to the other predicate acts (which charged facilitation of marijuana distribution) as well as the enterprise (the purpose of which was marijuana distribution). See, e.g., Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546) (1989) (presence of drug paraphernalia along with drugs supports inference of intent to distribute). Accordingly, the evidence was sufficient to support the trial court’s conclusion that Davitte committed at least two of the predicate acts charged against him, thereby establishing Davitte’s RICO violation.

(b) Davitte also claims that the evidence was insufficient to support his conviction of possession of marijuana with intent to distribute on April 21, 1997. Essentially, Davitte argues that there was no evidence that Stamps obtained any drugs at his house that day. We disagree.

The State presented evidence that Stamps drove to Davitte’s residence on April 21, entered the house, and emerged carrying a guitar case. He talked briefly with Davitte before leaving. Stamps then returned to Douglas County, where he later gave marijuana to Kenneth. This transaction is typical of the scheme described by Kenneth and is similar to the April 27 transaction, in which Mrs. Stamps emerged from Davitte’s home carrying a beach bag later found to contain marijuana. Thus, the trial court could have inferred that Stamps obtained marijuana at Davitte’s house on April 21 and that he carried it from the house in the guitar case. See Lobdell v. State, 256 Ga. 769, 773 (7) (353 SE2d 799) (1987) (jury could infer guilt based, in part, on defendant’s pattern of similar crimes). The court could have further concluded that, by providing his home for use as the distribution center, Davitte aided and abetted Stamps’ possession of the marijuana. “A person who intentionally aids or abets in the commission of a crime . . . may be convicted of the crime as a party to the crime.” Burks v. State, 268 Ga. 504, 505 (491 SE2d 368) (1997).

That the evidence of Davitte’s guilt is circumstantial does not mean the evidence was insufficient. To support the verdict,

circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Under this rule, the state is not required to remove every possibility of innocence of the crime charged.

Brown v. State, 236 Ga. App. 166 (511 SE2d 276) (1999); see also Shreve v. State, 172 Ga. App. 190, 192 (322 SE2d 362) (1984).

2. Davitte contends that the State failed to prove beyond a reasonable doubt that venue was proper in Douglas County as to both the RICO count and the drug possession count. We find venue was proper on both charges.

(a) The venue provision in Georgia’s RICO statute is as follows:

In any criminal proceeding brought pursuant to this chapter, the crime shall be considered to have been committed in any county in which an incident of racketeering occurred or in which an interest or control of an enterprise or real or personal property is acquired or maintained.

OCGA § 16-14-11. Thus, at least one of the predicate acts for the RICO charge must have been committed in the county in which the criminal proceeding is brought. Chancey, supra at 432-433 (6); Dover v. State, 192 Ga. App. 429, 432-433 (2) (385 SE2d 417) (1989). Davitte argues that none of the four predicate acts with which he personally was charged took place in Douglas County, so venue was improper as to him. The State responds that the law requires that only one racketeering incident occur in the county of prosecution; it does not require that the defendant, rather than another member of the enterprise, must have committed that act. Because other members of the drug ring committed predicate crimes in Douglas County, the State maintains that venue in Douglas County is proper as to Davitte. We need not resolve the question of whether venue is proper in a county where the defendant did not personally commit a predicate crime, however, because Davitte committed a predicate crime in Douglas County.

As discussed above, the evidence was sufficient to show that Davitte committed the predicate act of being a party to possession of marijuana with intent to distribute by allowing his residence to be used on April 27 as a location where Brannon transferred marijuana to the Stampses, who thereafter transported it to Douglas County for the purpose of distributing it. Davitte argues that the Stampses’ possession of the marijuana in Douglas County with the intent to distribute it there is not attributable to him because his only involvement in the transaction occurred in Cobb County. It is true that there was no evidence that Davitte personally possessed marijuana in Douglas County. However, as noted, “[a]ny party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto.” OCGA § 16-2-21. This rule

embodies the theory of conspiracy insofar as it renders one not directly involved in the commission of a crime responsible as a party thereto. Thus, where the crime is completed, a defendant may be convicted of it based on his activities as a conspirator, even though conspiracy is not alleged in the indictment. Venue in such a case is properly laid in the county in which the substantive offense is committed, even though the defendant may never have entered that county.

(Citations and punctuation omitted.) Osborn v. State, 161 Ga. App. 132, 133 (291 SE2d 22) (1982). Because the first predicate crime charged against Davitte involved possession of marijuana in Douglas County with the intent to distribute it there, the crime took place in Douglas County and venue is proper there.

The fact that the predicate act at issue involved “fronting” drugs, with the expectation of later payment, underscores the propriety of venue in Douglas County. See Hernandez v. State, 182 Ga. App. 797, 798-800 (1) (357 SE2d 131) (1987); Osborn, supra. The defendants in both Hernandez and Osborn “fronted” drugs to individuals who in turn sold them in other counties. Under such circumstances, we held that venue was proper in the county where the drugs were sold:

It has been held that the mere agreement of one person to buy contraband which another agrees to sell does not establish that the two acted in concert so as to support a finding of conspiracy. However, where the supplier “fronts” contraband to a recipient with the expectation that the latter will sell it and pay him from the proceeds, it has been held that he retains a sufficient interest in the subsequent sale to establish that he acted in concert with the recipient to distribute the contraband.

(Citations omitted.) Osborn, supra at 133-134; Hernandez, supra at 800. Here, the evidence showed that Brannon “fronted” the marijuana to the Stampses with the expectation that they would pay him from their proceeds of selling the marijuana in Douglas County. As an aider and abettor in this transaction, Davitte is criminally responsible although he may not personally have “fronted” the drugs; thus, venue is proper as to Davitte in Douglas County.

Davitte’s citation to Mullinax v. State, 227 Ga. App. 670 (490 SE2d 201) (1997) is unavailing. In Mullinax, the defendant’s acquaintance stole drugs from him in Douglas County and then transported them to Paulding County, where the defendant pursued her in an unsuccessful effort to retrieve the drugs. We held that the defendant could not be prosecuted for possession of the drugs in Paulding County because he “lost both actual and constructive possession [of the drugs] in Douglas County and never regained possession in Paulding County.” Id. at 673 (1). Mullinax is not controlling because the defendant in that case did not aid and abet the transfer of the drugs to Paulding County; rather, the drugs were stolen from him and taken there against his will. Here, by contrast, Davitte facilitated Brannon’s transfer of the drugs to the Stampses and thus was a willing participant in the transportation of the drugs to Douglas County for purpose of distribution there. Accordingly, the RICO claim could properly be prosecuted against Davitte in Douglas County.

Decided June 28, 1999.

Akin & Tate, Samuel L. Tate III, Thomas N. Brunt, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

(b) Davitte also argues that venue was improper as to the April 21 drug possession count. This argument fails for the same reason Davitte’s RICO venue argument fails. The evidence was sufficient to show that on April 21, Stamps picked up “fronted” marijuana at Davitte’s house in Cobb County, returned to Douglas County with the marijuana, distributed it there, and then paid Brannon the following weekend with proceeds from the sale. Because Davitte aided and abetted this transaction and the transaction took place partly in Douglas County, Davitte could be prosecuted on this count in Douglas County.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       For the sake of clarity, we will refer to Kenneth Stamps as “Kenneth” and to Joseph Stamps as “Stamps.”

       The trial court granted a defense motion for severance and tried Davitte and Brannon separately from the Stampses.

       Having so found, we need not consider whether the evidence was sufficient to support the fourth predicate act charged against Davitte, use of the telephone to facilitate a drug transaction.

       As Davitte points out, the trial court found that Davitte never entered or telephoned Douglas County.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A99A0699.
    MERCHANT et al. v. CANAL INSURANCE COMPANY.
    (520 SE2d 57)
   Smith, Judge.

This is the fourth appearance of this case before this court, and the facts of the underlying vehicular collision are fully set forth in our earlier decisions. In the case’s most recent published appearance, we determined the priority of two uninsured motorist insurers for purposes of “stacking” coverage, finding that Northbrook Property & Casualty Company rather than Canal Insurance Company was the primary uninsured motorist carrier for Larry Merchant and the other individual plaintiffs. Canal Ins. Co. v. Merchant, 225 Ga. App. 61, 63 (483 SE2d 311) (1997). We now reach the question of the apportionment of coverage among three insurers: Northbrook, Canal, and the insurer of Rufus Wiggins, the driver originally at fault in the collision. On cross-motions for summary judgment, the trial court found that Canal was entitled to a complete set-off under OCGA § 33-7-11 (b) (1) (D) (ii) because Wiggins was an underinsured rather than uninsured motorist. Because the trial court misapplied the controlling law and because the record contains insufficient facts to determine the amount of set-off to which Canal is entitled, we reverse the grant of summary judgment to Canal and remand for further proceedings consistent with this opinion.

This court has already determined that Northbrook is the primary uninsured motorist carrier and Canal is the secondary carrier. Canal Ins. Co. v. Merchant, supra at 63. Northbrook was held entitled to a set-off for the amounts it paid as workers’ compensation, Northbrook, supra, but its original coverage limits are not revealed by the record. It is undisputed, however, that Rufus Wiggins, the driver at fault, had liability coverage in the amount of $15,000/$30,000 (the so-called “minimum limits” under OCGA § 33-7-11 (a) (1) (A)) and that Canal’s uninsured or underinsured motorist coverage was also in the amount of $15,000/$30,000.

OCGA § 33-7-11 (b) (1) (D) provides as follows:

“Uninsured motor vehicle” means a motor vehicle, other than a motor vehicle owned by or furnished for the regular use of the named insured, the spouse of the named insured, and, while residents of the same household, the relative of either, as to which there is:
(i) No bodily injury liability insurance and property damage liability insurance;
(ii) Bodily injury liability insurance and property damage liability insurance with available coverages which are less than the limits of the uninsured motorist coverage provided under the insured’s insurance policy, but the motor vehicle shall only be considered to be uninsured for the amount of the difference between the available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle and the limits of the uninsured motorist coverage provided under the insured’s motor vehicle insurance policy; and for this purpose available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle shall be the limits of coverage less any amounts by which the maximum amounts payable under such limits of coverage have, by reason of payment of other claims or otherwise, been reduced below the limits of coverage.

Decided June 28, 1999.

Killian & Boyd, Robert P. Killian, for appellants.

McNatt, Greene & Thompson, Troy L. Greene, for appellee.

(Emphasis supplied.) A vehicle therefore is considered “uninsured” only to the extent of the difference between the “available” liability coverage on the vehicle and the limits of the uninsured motorist coverage at issue, but “available” coverage is construed as only those amounts not already expended in the payment of other claims. In the amendment of this Code section in 1980, the definition of uninsured motor vehicles “was expanded to include the underinsured motor vehicle situation.” Hall v. Regal Ins. Co., 202 Ga. App. 511, 512 (1) (414 SE2d 669) (1991).

The trial court’s order erroneously recites that this court’s previous opinion in Canal Ins. Co. v. Merchant, supra, held that “Canal was not the ‘primary’ uninsured motorist carrier and therefore did not afford uninsured motorist coverage to the ‘Movants.’ ” This court did find that Canal was not the primary uninsured motorist carrier, but we also noted that “[w]hen more than one source of uninsured or underinsured motorist coverage is available, claimants may ‘stack’ the policies, but the priority of the multiple UM carriers must be determined.” Id. at 62. While the trial court concluded and the appellee argues that underinsured motorists are not entitled to coverage, that rule was eliminated by the amendment of OCGA § 33-7-11 (b) (1) (D) (ii) in 1980 as well as the amendment effective January 1, 1987, adding the language emphasized above. Compare Bohannon v. Futrell, 189 Ga. App. 340, 343-344 (3) (375 SE2d 637) (1988), aff’d, 259 Ga. 162 (377 SE2d 853) (1989), with Harwell v. Continental Ins. Co., 183 Ga. App. 410, 412 (359 SE2d 172) (1987). Neither Dewberry v. State Farm Ins. Co., 197 Ga. App. 248, 249 (398 SE2d 266) (1990), nor Futch v. J.C. Penney Ins. Co., 182 Ga. App. 169 (354 SE2d 869) (1987), cited by appellee, involved multiple claimants.

Accordingly, we must reverse and remand this case so that the trial court may first determine the coverages “available” to each plaintiff under the tortfeasor’s policy, as defined in OCGA § 33-7-11 (b) (1) (D) (ii), and then calculate the difference between that amount and “the limits of the uninsured motorist coverage provided” by Northbrook and Canal, id., “stacking” them in the order previously determined by this court.

Judgment reversed and remanded.

Pope, P. J., and Eldridge, J., concur.

       See also Northbrook Property &c. Co. v. Merchant, 215 Ga. App. 273 (450 SE2d 425) (1994); Merchant v. Canal Ins. Co., 233 Ga. App. XXVII (1998).


author: Barnes, Judge.

text:
    A99A0706.
    A99A0707.
    PHYSICIAN SPECIALISTS IN ANESTHESIA, P.C. v. WILDMON et al. WILDMON v. PHYSICIAN SPECIALISTS IN ANESTHESIA, P.C.
    (521 SE2d 358)
   Barnes, Judge.

This appeal and cross-appeal arise out of a lawsuit filed by Physician Specialists in Anesthesia, P.C. (“Physician Specialists”) against its former employees Robert Wildmon and Shannyn Duddles. In its complaint, Physician Specialists alleges Wildmon and Duddles breached their duty of employee loyalty (Count 1) and their fiduciary duty (Count 2) by providing confidential information to a competing group of doctors while still employed by Physician Specialists. Wildmon and Duddles subsequently moved for summary judgment. The trial court granted complete summary judgment to Duddles and partial summary judgment to Wildmon. In Case No. A99A0706, Physician Specialists appeals the portion of the trial court’s order granting summary judgment. In Case No. A99A0707, Wildmon appeals the partial denial of his motion for summary judgment. For reasons that follow, we affirm the trial court’s grant of summary judgment and reverse its denial of complete summary judgment to Wildmon.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.

(Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering, 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997).

Construed in this light, the record shows that Physician Specialists is a professional corporation with physician shareholders who specialize in the fields of anesthesia, critical care, and pain management. Physician Specialists in Pain Management, Inc. (“Pain Management”) is a separate legal corporation formed by these physician shareholders and three non-shareholders “for various reasons, including separation of [Physician Specialists’] pain practice in furtherance of. . . accounting considerations and for the collection of facility fees.” At all relevant times, the physician shareholders of Physician Specialists were also shareholders of Pain Management, controlling the operations and management of Pain Management.

Duddles worked for Pain Management as its Assistant Practice Administrator from June 1,1994 until she resigned on November 15, 1995, effective December 1, 1995. Although she was paid by Physician Specialists, Duddles worked exclusively for Pain Management pursuant to a “Contract Labor Agreement” between Physician Specialists and Pain Management. This Agreement required Pain Management to reimburse Physician Specialists for the cost of her salary and fringe benefits.

Duddles’ responsibilities as Assistant Practice Administrator included managing the day-to-day operations of Pain Management, supervising front office personnel, and acting as a liaison between the nurses and the front office personnel. According to Physician Specialists’ president, Duddles “also negotiated on behalf of [Physician Specialists] and [Pain Management] with managed care organizations.” However, it is undisputed that Duddles did not have the authority to (1) enter into contracts on behalf of either Physician Specialists or Pain Management; (2) hire or fire personnel of either entity; or (3) sign checks or make payments on behalf of either entity.

Wildmon was employed by Physician Specialists from May 1993 until December 31, 1995. He was hired as a billing clerk and promoted to the position of Assistant Practice Administrator in the fall of 1993. When Physician Specialists terminated its Practice Administrator in September 1995, Wildmon acted as its Practice Administrator until he resigned on November 6, 1995, effective December 31, 1995.

Wildmon’s responsibilities as Assistant Practice Administrator involved human resource and personnel issues, including physician expense accounts and health disbursement accounts. He also provided general assistance to the Practice Administrator. It is undisputed that during Wildmon’s employment as Assistant Practice Administrator, he did not have the authority to (1) sign contracts on behalf of Physician Specialists, or (2) hire or fire employees of Physician Specialists.

The parties disagree about Wildmon’s responsibilities and authority after he became the acting Practice Administrator in September 1995. Wildmon asserts he never had express authority to enter into contracts on behalf of Physician Specialists. In an OCGA § 9-11-30 (b) (6) deposition, a corporate representative of Physician Specialists testified that Wildmon had authority to enter into contracts on its behalf after he became the acting Practice Administrator. There is no evidence in the record that Wildmon actually entered into contracts on Physician Specialists’ behalf.

1. Physician Specialists contends the trial court erred by concluding Wildmon owed no fiduciary duty while he was employed as Assistant Practice Administrator and that Duddles owed no fiduciary duty whatsoever.

In Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 606 (1) (503 SE2d 278) (1998), the Supreme Court held that fiduciary duties are owed by those in confidential relationships as defined by OCGA § 23-2-58. This Code section provides:

Any relationship shall be deemed confidential, whether arising from nature, created by law, or resulting from contracts, where one party is so situated as to exercise a controlling authority over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.

OCGA § 23-2-58.

Physician Specialists asserts a question of fact remains as to whether Wildmon and Duddles were its agents and therefore owed a fiduciary duty to it, their principal. It also asserts a confidential relationship existed between itself and the defendants because they could exercise control over its will or conduct.

(a) OCGA § 10-6-1 explains that “[t]he relation of principal and agent arises whenever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” Although an employee may at times act on behalf of his employer, an employer-employee relationship does not typically create a principal-agent relationship. See Cochran v. Murrah, 235 Ga. 304, 307 (219 SE2d 421) (1975); Atlanta Market, supra, 269 Ga. at 607. The distinguishing characteristic of an agent is that “[h]e is vested with authority, real or ostensible, to create obligations on behalf of his principal, bringing third parties into contractual relations with him.” Southeastern Fidelity Ins. Co. v. Heard, 123 Ga. App. 635, 639 (3) (b) (182 SE2d 153) (1971). See also Atlanta Market, supra, 269 Ga. at 606. Thus, in Atlanta Market, the Supreme Court held that the trial court properly granted summary judgment to a defendant on the plaintiff’s breach of fiduciary duty claims because there was no evidence that the parties could create obligations on each other’s behalf. Id. at 606-607.

In this case, there is no evidence in the record showing that Duddles could create obligations on behalf of Physician Specialists or bring third parties into contractual relations with it. Likewise, no evidence in the record shows Wildmon could do the same when he was employed as its Assistant Practice Administrator.

Physician Specialists asserts the following statement in the affidavit of Physician Specialists’ president, Dr. Sween, nonetheless creates an issue of fact on the agency issue:

[Duddles] and Wildmon were employed by [Physician Specialists] in high-level, well-paid positions as Assistant Practice Administrators with total and unrestricted access to virtually all corporate records and files of [Physician Specialists] and were agents of [Physician Specialists].

(Emphasis supplied.) Relying upon Commercial Union Ins. v. Taylor, 169 Ga. App. 177, 180 (3) (312 SE2d 177) (1983), Physician Specialists argues that Dr. Sween’s declaration that Duddles and Wildmon “were agents” is a statement of fact that creates a genuine issue as to whether they were its agents. We disagree.

In Salters v. Pugmire Lincoln-Mercury, 124 Ga. App. 414, 415 (184 SE2d 56) (1971), we crafted the often cited principle that “one who is a party to the relationship (principal or agent) may testify as a fact as to the existence or non-existence of the relationship.” However, one of the cases cited in Salters to support this principle demonstrates that the specific facts of a case may render such a statement a mere conclusion. In Great Southern Accident &c. Co. v. Guthrie, 13 Ga. App. 288, 292-293 (6) (79 SE 162) (1913), we stated:

Testimony of Lockridge & Tanner and Moore, that Lockridge & Tanner were agents of the corporation, stated a mere conclusion, not supported by the proven facts. Standing alone, it would be the statement of a fact, but other facts having been proved which show that in law there was no such agency, the statement became merely an erroneous conclusion.

In this case, as in Great Southern, the proven facts show that Duddles and Wildmon, when acting as Assistant Practice Administrators, were not agents who could enter into obligations on behalf of Physician Specialists. As a result, the trial court did not err when it concluded they were not agents owing a fiduciary duty to Physician Specialists.

(b) Our inquiry, however, does not end here. As outlined above, the confidential relationship giving rise to a fiduciary duty is not limited to that between a principal and agent. See OCGA § 23-2-58. In Cochran v. Murrah, supra, the Supreme Court noted that the relationship between an employer and its employee is not the type of relationship from which a confidential relationship will be implied as a matter of law. Id. at 307. However, it also left the door open for our courts to find a confidential relationship on a case-by-case basis with the following statement:

Generally, the relationship between an employer and employee is that of arms-length bargaining. This is not to say, however, that under a particular fact situation a confidential relationship can never exist between an employer and his employee (e.g., an employer signing checks prepared by his secretary-bookkeeper).

Id. After reviewing the particular facts of this case, we find they do not demonstrate a confidential relationship between Physician Specialists and Duddles or Wildmon, when he acted as Assistant Practice Administrator. “[T]he mere circumstance that two people have come to repose a certain amount of trust and confidence in each other as the result of business dealings is not, in and of itself, sufficient to find the existence of a confidential relationship.” Parello v. Maio, 268 Ga. 852, 853 (1) (494 SE2d 331) (1998). As a result, the trial court properly granted summary judgment to Duddles and partial summary judgment to Wildmon on Physician Specialists’ breach of fiduciary claim against them.

2. In Case No. A99A0707, Wildmon contends the trial court should have granted complete summary judgment in his favor. Although we conclude the trial court properly found an issue of fact as to whether Wildmon was an agent of Physician Specialists during the period he was its “acting Practice Administrator,” its analysis should not have ended there.

Wildmon argues that even if a question of fact exists on whether he was an agent owing a fiduciary duty during the time period he acted as the Practice Administrator, there is no evidence he violated his fiduciary duty during this time. We agree. “[A]n employee breaches no fiduciary duty to the employer by making plans to enter a competing business while he is still employed.” E. D. Lacey Mills v. Keith, 183 Ga. App. 357, 362 (9) (359 SE2d 148) (1987). “ ‘[Before the end of his employment, he can properly purchase a rival business and upon termination of employment immediately compete.’ Restatement 2nd of Agency.” Id. at 363.

In this case, Physician Specialists argues an issue of fact was created by an insurance document signed by Wildmon on November 15, 1995, certifying that he was the Vice President of Financial Operations for a competitor of Physician Specialists. We disagree. This document, which was a corporate officer’s rejection of workers’ compensation insurance, was signed by Wildmon after he had tendered his notice to Physician Specialists and demonstrates nothing more than a plan to compete. There is no evidence that Wildmon failed to carry out his assigned duties, solicited Physician Specialists’ patients, or directly competed with Physician Specialists during his tenure as acting Practice Administrator. See Kitfield v. Henderson, Black & Greene, 231 Ga. App. 130, 135 (7) (498 SE2d 537) (1998); E. D. Lacey Mills, supra, 183 Ga. App. at 363. As a result, the trial court erred when it granted only partial summary judgment to Wildmon on Physician Specialists’ breach of fiduciary duty claim.

Decided June 28, 1999.

Decker & Hallman, Richard P. Decker, E Edwin Hallman, Jr., for appellant.

Parker, Hudson, Rainer & Dobbs, John H. Parker, Jr., Leo E. Reichert, David L. Fenstermacher, for appellees.

3. The trial court did not err by granting summary judgment to the defendants on Physician Specialists’ claim for “breach of duty of employee loyalty.” During oral argument, we requested the parties to brief whether any Georgia authority recognizes or creates a cause of action for breach of loyalty against an employee who does not also owe a fiduciary duty. The research of both this Court and the parties revealed no such authority, and we decline to create it here. Allowing an employer to sue an at-will employee for breach of loyalty when our law allows an employer to terminate an at-will employee for “any or no reason” would create an unfair and unjust advantage for employers.

Thus, a cause of action against an employee for breach of loyalty must be based upon a fiduciary duty owed by the employee and must rise and fall with any claim for breach of fiduciary duty. Since we have already held that Duddles and Wildmon were entitled to summary judgment in their favor for Physician Specialists’ breach of fiduciary duty claims, the trial court did not err by granting summary judgment in their favor on the breach of employee loyalty claim.

Judgment affirmed in part and reversed in part.

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

       Our decision in Lane Co. v. Taylor, 174 Ga. App. 356, 362 (5) (330 SE2d 112) (1985), is physical precedent only and is not binding in any other case.

       See, e.g., Phinazee v. Interstate Nationalease, 237 Ga. App. 39, 41 (514 SE2d 843) (1999).

       We note that this does not mean, however, that other causes of action, such as misappropriation of trade secrets or interference with business relations, are not available to employers.


author: Judge Harold R. Banke.

text:
    A99A0959.
    DAVIS v. THE STATE.
    (520 SE2d 475)
   Judge Harold R. Banke.

After Douglas Davis was found guilty of battery by reason of intentionally causing visible bodily injury to the victim, he received First Offender treatment. Following the denial of his motion for new trial, he appeals.

The victim was Davis’ estranged wife. The State’s evidence showed that she became extremely upset when she was served with a complaint for divorce filed against her by Davis. She later went to his condominium to confront him. After she spit on him, he pushed her down and began banging her head against the floor and hitting her with his fists. Upon returning to her home, she summoned the police at the insistence of a friend.

Officers Rogers and Ayers responded to the call several hours after the incident had taken place. Rogers testified that the victim had sustained numerous physical injuries. She had a broken lip that was still bleeding, facial abrasions, contusions to her hip and forearm areas, and a sprained wrist. On her head, she also had a knot that was forming. The officers swore out a domestic violence warrant against defendant because the victim was too scared to do so. At trial, defendant testified that the victim was stalking his residence on the night in question. According to defendant, the victim physically attacked him, and he did nothing more than defend himself. Held:

1. Davis first contends that the trial court erred in denying his motion in limine.

Before the trial court, Davis argued that at a prior hearing the victim had given unsolicited testimony concerning adultery by him, and the defense moved in limine to exclude any evidence on this subject. The court refused to grant the motion, ruling that defendant’s adultery might become relevant depending on what the evidence showed. The court did, however, direct the prosecuting attorney to frame her questions so as to elicit relevant information from State’s witnesses and to instruct the witnesses to respond to questioning in like fashion. On appeal, Davis argues that other, more explicit directions should have been given, although none was requested. Under the circumstances, we find no abuse of discretion in the court’s ruling on the motion. Wright v. State, 233 Ga. App. 358, 359 (1) (504 SE2d 261) (1998).

2. Davis contends that the court erred in refusing to declare a mistrial when during the course of the victim’s testimony she implied that he had battered her before.

Davis claims that this testimony constituted similar transaction evidence of which he had not been given the pretrial notice required by Uniform Superior Court Rule 31. However, it has been held that Rule 31 does not apply to instances of prior difficulties between the defendant and victim. Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998). Consequently, this enumeration is without merit.

3. Davis charges the court with error in denying his motions for mistrial because the State introduced evidence which improperly placed his character in issue.

On direct examination, the victim testified that as she was approaching defendant’s residence on the night in question, she observed a car enter the driveway, thought it was defendant’s girlfriend, and hid behind a tree to avoid a confrontation. When the victim discovered that the person in the car was Davis’ roommate, she proceeded into the house. Davis did not object to this testimony, as it was properly admitted to explain the victim’s conduct. Davis did, however, move for a mistrial when the victim, in later explaining why she directed certain comments at Davis before their altercation, again alluded to the fact that he had a girlfriend. Davis later moved for a mistrial when the victim referred to him as “a snake in the grass.” A mistrial was also sought when Officer Rogers, in describing the victim’s fear of Davis, testified that she had told him that Davis had come into her house several times through a back door.

When prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial. [Cit.] Whether the statements are so prejudicial as to warrant a mistrial is within the trial court’s discretion. [Cits.] A trial court’s denial of a motion for mistrial based on the improper admission of bad character evidence is reviewed for abuse of discretion by examining factors and circumstances, including “the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.” [Cits.]

White v. State, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997).

Given the nature of the witnesses’ statements and the other evidence introduced at trial, the court was authorized to find that nothing which was introduced was so prejudicial as to require the declaration of a mistrial.

4. Davis contends that the court erred in denying his motions for mistrial as a result of Officer Rogers being asked whether, at the time of his arrest, Davis had admitted striking the victim.

Davis complains that the question called for the witness to make an impermissible comment on his post-arrest silence. See Cromwell v. State, 218 Ga. App. 481 (1) (462 SE2d 388) (1995). While that is true, Rogers’ response to the question was that he could not recall whether Davis had made such a statement. Consequently, there was no harm. Wilson v. State, 229 Ga. App. 541, 543 (4) (494 SE2d 238) (1997). Moreover, the court instructed the jury to disregard the question and answer, and Davis did not renew his motion for mistrial after this curative instruction was given.

Decided June 28, 1999 — Cert. applied for.

Ray B. Gary, Jr., for appellant.

Barry E. Morgan, Solicitor, Katherine L. Kissam, Assistant Solicitor, for appellee.

5. Davis contends that the court erred in instructing the jury that the criminal charges had been brought against him by the court rather than the State.

In the course of instructing the jury, the court made repeated references to the criminal “charges” against the defendant and the court’s “charges” to the jury. At one point, the court commented that “the court has charged the defendant” with battery. In this case, as in Moak v. State, 222 Ga. App. 36, 40 (4) (473 SE2d 576) (1996), the asserted error was a slip of the tongue which apparently went undetected until a post-trial review of the transcript. Since it in no way appears that this verbal slip could have contributed to the verdict, the error was harmless. Banks v. State, 191 Ga. App. 344, 345 (3) (381 SE2d 548) (1989).

6. Finally, Davis challenges the sufficiency of the evidence to support the verdict.

Whether Davis caused the victim’s bodily injuries under circumstances constituting the criminal offense of battery was a question for the jury. Construed in a light most favorable to the verdict, the evidence supports the jury’s finding that Davis is guilty of battery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


author: Ruffin, Judge.

text:
    A98A1229.
    GARNER v. ROBERTS.
    (520 SE2d 255)
   Ruffin, Judge.

Nathaniel Garner appeals the trial court’s order granting summary judgment to Dr. Marc Roberts in this action to collect on an account for dental services rendered. We affirm for reasons that follow.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). “[A] grant of summary judgment must be affirmed if it is right for any reason.” Bob v. Hardy, 222 Ga. App. 550, 551 (1) (474 SE2d 658) (1996).

In March 1994, Garner signed a contract guaranteeing payment for dental services provided by Dr. Roberts to Garner and his wife. Dr. Roberts provided professional dental services to Gamer and his wife through August 1994. Although Garner was billed for those services, he paid only a portion of his debt, leaving an outstanding balance of $2,997.67. On September 18, 1995, Dr. Roberts sued Garner to collect on the account. He attached to the complaint a copy of Garner’s patient history report which itemized the bill and listed, in a very abbreviated form, the services and products provided to Garner and his wife. On October 30, 1995, Garner filed a pro se answer admitting that he owed Dr. Roberts $2,997.67. Garner also filed a counterclaim alleging Dr. Roberts violated his privacy rights by attaching a copy of the patient history report to the complaint. On November 27, 1995, Dr. Roberts moved for summary judgment. On January 2, 1996, while the motion for summary judgment was pending, Garner filed a motion to dismiss the complaint on the ground that Dr. Roberts had failed to respond to Garner’s discovery requests. On January 8, 1996, Dr. Roberts filed a motion for protective order. On January 11, 1996, the trial court granted summary judgment in favor of Dr. Roberts on the complaint and on Garner’s counterclaim. The court stated that its ruling rendered Garner’s motion to dismiss and Dr. Roberts’ motion for protective order moot.

1. Garner contends the trial court erred in granting Dr. Roberts’ motion for summary judgment on his complaint. Garner does not argue that any genuine issue of material fact precluded the entry of summary judgment. Instead, Garner acknowledges liability for payment of the debt. However, Garner argues that the grant of summary judgment constituted procedural error because (1) Dr. Roberts had not responded to Garner’s discovery requests, (2) Dr. Roberts’ brief in support of his motion did not contain a statement of material facts, and (3) the court should have dismissed Dr. Roberts’ complaint as a sanction for failing to respond to his discovery requests. These arguments lack merit.

First, the trial court did not abuse its discretion by hearing Dr. Roberts’ motion for summary judgment before discovery was complete. To the extent Garner argues that the motion was premature, OCGA § 9-11-56 (a) provides that a party may move for summary judgment “at any time after the expiration of 30 days from the commencement of the action.” If the pleadings and evidence on file show entitlement to judgment, it shall be granted forthwith. OCGA § 9-11-56 (c). Thus, the trial court clearly had authority to entertain the motion. Moreover, Garner’s failure to obtain discovery on his counterclaim had no bearing on his ability to prepare a response to Dr. Roberts’ motion for summary judgment on the complaint, on which Garner admitted liability. See Reeder v. Gen. Motors Acceptance Corp., 235 Ga. App. 617, 620-621 (4) (510 SE2d 337) (1998).

Second, the trial court did not err by considering Dr. Roberts’ motion despite his failure to attach a statement of material facts as to which there was no genuine issue to be tried. The record shows that Dr. Roberts’ motion itself contained a clear and concise statement of the relevant contentions. Thus, “the failure to file a separate pleading resulted in no confusion or disadvantage to [Garner] in defending the motion.” (Punctuation omitted.) Balke v. Red Roof College Park Co., 190 Ga. App. 779, 781 (3) (380 SE2d 61) (1989).

Third, the trial court did not err in failing to dismiss Dr. Roberts’ complaint as a sanction for his failure to respond to discovery. Trial courts have broad discretion to control discovery, including the imposition of sanctions, and will not be reversed in the absence of a clear abuse of discretion. Daniel v. Corporate Property Investors, 234 Ga. App. 148 (505 SE2d 576) (1998). Because the “harsh” sanction of dismissal is appropriate only in extreme cases, we find no abuse of discretion here. Champion Mgmt. Assn. v. McGahee, 227 Ga. App. 895, 896 (1) (490 SE2d 215) (1997).

2. Garner also maintains that the trial court erred in granting summary judgment in Dr. Roberts’ favor on Garner’s counterclaim. Garner argues that Dr. Roberts invaded his privacy by attaching to the complaint an itemized list of dental services rendered and the prices for those services. We disagree.

Pursuant to OCGA § 51-5-8, “[a]ll charges, allegations, and averments contained in regular pleadings . . . which are pertinent and material to the relief sought. . . are privileged.” Exhibits attached to complaints are part of the pleadings. Gibson v. Castro, 233 Ga. App. 403, 405 (2) (504 SE2d 705) (1998). This privilege “rests on public policy, which allows all suitors (however bold and wicked, however virtuous and timid,) to secure access to the tribunals of justice with whatever complaint . . . they choose to present. . . .” O’Neal v. Home Town Bank of Villa Rica, 237 Ga. App. 325, 333 (8) (514 SE2d 669) (1999). The privilege is absolute, “entirely freeing the party from any liability to the person injured by the words or the publication.” Id. at 332.

Here, Dr. Roberts sued Garner for nonpayment of a bill. Dr. Roberts attached to the complaint a copy of the bill, which is clearly both relevant and material to his suit to collect payment of that bill. Garnér suggests that Dr. Roberts did not need to attach a copy of the bill to the complaint because Gamer had not contested liability for the debt. Dr. Roberts’ motive in attaching the bill is irrelevant, however, so long as the bill was “pertinent and material to the relief sought.” OCGA § 51-5-8; see O’Neal, supra at 332 (“[w]hen the privilege is absolute, the motive of publication is immaterial”). Moreover, Garner did not definitively admit liability until he filed his answer, which necessarily occurred after Dr. Roberts filed the complaint. Accordingly, Gamer’s counterclaim was without merit, and the trial court did not err in granting summary judgment.

Decided June 29, 1999.

Nathaniel Garner, pro se.

Shaka M. Shedeke, for appellee.

Judgment affirmed.

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


author: Ruffin, Judge. McMurray, Presiding Judge,

text:
    A99A0123.
    STOKES v. CANTRELL.
    (520 SE2d 248)
   Ruffin, Judge.

Margaret Stokes, as guardian of Martha Bearden, sued Edna Christine Montgomery and Matthew Clark Cantrell for injuries Bearden sustained in an automobile collision. According to the complaint, Montgomery’s automobile negligently collided with Cantrell’s truck, causing Cantrell in turn to strike Bearden’s automobile. The complaint alleges that Cantrell also was negligent and thereby caused or contributed to Bearden’s injuries. The trial court granted Cantrell’s motion for a directed verdict, and Stokes appeals. Because there is no evidence from which a jury could find that Cantrell was negligent, we affirm.

“[A] directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions and construed in favor of the non-moving party, demands a certain verdict. OCGA § 9-11-50 (a).” (Punctuation omitted.) Cagle v. Ameagle Contractors, 209 Ga. App. 712-713 (434 SE2d 546) (1993). So construed, the evidence shows that on April 13, 1993, around 5:30 p.m., Cantrell was traveling north on Georgia Highway 61, and Bearden was traveling south. Both drivers were approaching the intersection of Highway 61 and Scoggin Road, and neither had a stop sign. As Cantrell neared the intersection, he saw Montgomery’s car stopped at a stop sign on Scoggin Road, facing east, and he saw Montgomery look to her left. Cantrell testified that he did not see Montgomery look to her right, in the direction of his truck, but that he had no reason to believe that she either would not look right or had not already done so. As Cantrell drove through the intersection at or below the posted speed limit of 55 mph, Montgomery pulled into the intersection and struck the left rear of his truck. Cantrell testified that upon impact, his truck spun sideways out of control and hit another object — which turned out to be Bearden’s vehicle — after which he lost consciousness. Cantrell testified that he never saw Bearden’s vehicle, and Bearden has no memory of the collision.

Cantrell explained that he did not apply his brakes before Montgomery struck him because “by the time she pulled out she was right there at me.” Cantrell further testified that he had no reason to brake or veer away from Montgomery because he was past her, and she struck the rear of his truck. Cantrell could not remember whether he applied his brakes after Montgomery hit him. Cantrell testified that he crosses this intersection daily and that he knew it was dangerous. Cantrell admitted that he was playing his radio loudly when Montgomery hit him, but there is no evidence that Cantrell failed to hear a horn or was otherwise distracted by the radio.

Trooper Chris Burger of the Georgia State Patrol was dispatched to the scene where he found Montgomery leaning against her vehicle, smelling strongly of alcohol. Burger administered a field sobriety test, which Montgomery failed. Burger testified that Montgomery said she did not see Cantrell’s truck as she started across the highway. According to Burger, Montgomery “clipped” the left rear bumper of Cantrell’s truck, causing it to spin 360 degrees, cross into the oncoming lane of traffic, and hit Bearden’s car. Burger described the impact between Montgomery’s and Cantrell’s vehicles as a “glancing blow” and stated that the impact was consistent with Montgomery’s having been stopped at the stop sign before entering the highway. Burger further stated that Cantrell’s truck traveled approximately 94 feet before hitting Bearden’s car and another 97 feet afterward, leaving tire marks on the highway. Burger estimated Cantrell’s speed at the time of the collision as 50 mph.

Stokes argues that the trial court erred in directing a verdict in favor of Cantrell because the evidence permitted an inference that Cantrell was negligent in failing to avoid the collision with Montgomery. First, Stokes contends that the jury could have found that Cantrell exceeded the posted speed limit of 55 mph and was therefore negligent per se, based on an interrogatory answer by Cantrell that he was driving “approximately” 55 mph and on the length of the tire marks left by Cantrell’s truck. Stokes also argues that even if Cantrell was driving within the posted speed limit, he nevertheless violated OCGA § 40-6-180 by failing to slow down for the intersection because he knew the intersection was dangerous and he had not seen Montgomery look in his direction. Finally, Stokes argues that Cantrell was negligent in failing either to honk at Montgomery or to swerve or brake to avoid her. We reject each of these arguments.

First, there is no evidence that Cantrell exceeded the posted speed limit. Neither Cantrell’s interrogatory answer, drafted by his lawyer, that he was driving “approximately” 55 mph nor the length of the tire marks left by Cantrell’s truck permits an inference that Cantrell was speeding, in the absence of any positive evidence of speeding in the record. Cantrell testified at trial that he was traveling at the speed limit, while Trooper Burger estimated Cantrell’s speed at 50 mph. Stokes presented no expert evidence at trial that the length of the tire marks indicated Cantrell was driving faster than 55 mph, and in the absence of such evidence, there was no basis for the jury to conclude that Cantrell was speeding. Moreover, Burger, who measured Cantrell’s tire marks and who has investigated nearly 1,000 accidents during his career with the Georgia State Patrol, testified that he found no evidence that Cantrell had been speeding.

Second, there is no evidence that Cantrell drove “at a speed greater than [was] reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing.” OCGA § 40-6-180. The record does not indicate the presence of precipitation, darkness, or any other environmental or highway hazard. Moreover, Cantrell’s unrefuted testimony was that he saw Montgomery’s vehicle stopped at the intersection, that he observed Montgomery look to her left, that he had no reason to believe that she had not or would not look to her right, and that she did not pull into the intersection until his truck was already there. A driver with the right of way at an intersection may assume that other drivers “will obey the rule of the road and will yield the right of way to him,” and he may “proceed at a reasonable speed even though he sees another vehicle approaching.” Kicklighter v. Jones, 202 Ga. App. 654 (415 SE2d 302) (1992); see also Butler v. Huckabee, 209 Ga. App. 761, 763 (3) (434 SE2d 576) (1993). Here,

[a]t the intersection, it was [Montgomery] who had a stop sign and [Cantrell] who had the right-of-way and there is no evidence that, as [Cantrell] approached the intersection, [he was] not proceeding at a reasonable speed. Accordingly, it is not material that, as [Cantrell] was approaching the intersection, [he] did not slow or stop after seeing that [Montgomery was stopped at] the intersection. . . . What would be material is whether [Cantrell] had an opportunity to avoid the collision after Die] saw or should have seen that [Montgomery] was entering into the intersection so as to cross [Cantrell’s] lane of traffic.

Kicklighter, supra. The unrefuted evidence shows, however, that Montgomery did not start across the highway until it was too late for Cantrell to act and that Montgomery only “clipped” the rear of Cantrell’s truck, nearly missing him. There is “no evidence to authorize a finding that, in the exercise of ordinary care, [Cantrell] could have avoided the collision after [he] saw or should have seen that [Montgomery] had entered into the intersection and was crossing [his] lane of traffic.” Leonard v. Miller, 207 Ga. App. 602, 603 (2) (428 SE2d 646) (1993). See also Morgan v. Braasch, 214 Ga. App. 82, 84-85 (2) (446 SE2d 746) (1994).

Franklin v. Hennrich, 196 Ga. App. 372 (395 SE2d 859) (1990), cited by Stokes, is distinguishable. In Franklin, a driver who had just stopped at a stop sign inched out into an intersection where her view was obstructed and was then hit by another driver crossing the street who did not have a stop sign. Even though the second driver had the right of way, this Court held that the jury was entitled to find that she was negligently driving too fast under the circumstances because she had just crested a hill and was approaching an obviously obstructed intersection. Id. at 375 (2) (b). No such facts are present here which could permit an inference of negligence on the part of Cantrell.

Lozynsky v. Hutchinson, 159 Ga. App. 715 (285 SE2d 70) (1981), also cited by Stokes, is likewise inapposite. Lozynsky merely states that a driver has no “absolute right to assume that, in all cases, other drivers will obey the law and will drive in a reasonable manner.” Id. at 716. Lozynsky does not disturb the general rule that, in the absence of special circumstances such as those present in Franklin, a driver who has the right of way and is observing applicable traffic laws may assume that other drivers, too, will obey the law.

Finally, there is no evidence that Cantrell was negligent in failing to honk, brake, or swerve around Montgomery’s car. As discussed above, there is no evidence that Cantrell saw or should have seen Montgomery’s car pulling out in time to take preventive or evasive measures.

Negligence may not be presumed, but must be affirmatively proven, and in the absence of such proof, “we must presume performance of duty and freedom from negligence.” Kicklighter, supra at 655. Because there is no evidence that would permit an inference of negligence on the part of Cantrell, the trial court properly granted Cantrell’s motion for a directed verdict. Id.

Judgment affirmed.

Johnson, C. J., Pope, P. J., Andrews, Smith and Eldridge, JJ, concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I do not believe this case marks one of those extraordinary circumstances in which the jury’s accountability as factfinder should be displaced by judicial findings and conclusions as to the disputed questions of diligence, negligence, contributory negligence and proximate cause. Georgia has long recognized that,

“ ‘[qjuestions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases.’” Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25). Added to that list are related issues of assumption of risk, lack of ordinary care for one’s safety, lack of ordinary care in failing to foresee a condition which could cause injury (Cowart v. Five Star Mobile Homes, 161 Ga. App. 278, 279 (291 SE2d 13)), and even where there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable man. James v. Sears, Roebuck & Co., 140 Ga. App. 859 (232 SE2d 274). “ ‘Unless no other conclusion is permissible, questions of negligence are matters for jury resolution and are not ordinarily susceptible to summary adjudication.’ ” Epps Air Svc. v. DeKalb County, 147 Ga. App. 195, 196 (248 SE2d 300).

Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 836 (331 SE2d 899). In the case sub judice, Cantrell admitted that he knew the collision site was a dangerous intersection; that his truck’s velocity was approaching the maximum 55-mph speed limit just before the collision, and that he did not see Montgomery look out for vehicles approaching from his northerly direction before he drove through the intersection. I believe this evidence, proof that Cantrell did not reduce his truck’s speed before traversing this hazardous area, and evidence that Cantrell’s radio was blasting at the time of the collision, would authorize a jury’s finding that Cantrell’s negligence was a proximate cause of the collision. It is therefore my view that the trial court erred in granting Cantrell’s motion for directed verdict.

Decided June 29, 1999.

Talley & Darden, Jeffrey B. Talley, George A. Pennebaker, for appellant.

Magruder & Sumner, J. Clinton Sumner, Jr., John A. Owens, for appellee.

On a motion for directed verdict, the trial judge may not weigh the evidence or decide any issue of fact, but in order to direct a verdict must find that there is no evidence at all supporting the opposing party’s position. Parsons, Brinckerhoff &c. v. Johnson, 161 Ga. App. 634 (288 SE2d 320) (1982); Barber v. Atlas Concrete Pools, 155 Ga. App. 118 (270 SE2d 471) (1980). Only where reasonable persons may not differ as to the inferences that are to be drawn from the evidence is it proper for the trial judge to withhold the case from the jury. Brown v. Truluck, 239 Ga. 105 (236 SE2d 60) (1977); Plough Broadcasting Co. v. Dobbs, 163 Ga. App. 264 (293 SE2d 526) (1982). This is truly a fortiori when there are present in the case questions of negligence, diligence, contributory negligence, and proximate cause, all of which are peculiarly matters for the jury. Cowart v. Five Star Mobile Homes, 161 Ga. App. 278[, supra]; Eyster v. Borg-Warner Corp., 131 Ga. App. 702 (206 SE2d 668) (1974).

Mansour v. McWilliams, 172 Ga. App. 377, 378 (1) (323 SE2d 262).

       Stokes settled her case against Montgomery at trial.

       In pretrial briefing and during the trial, Stokes argued that Cantrell also was negligent in failing to brake after his collision with Montgomery, but Stokes has not raised this issue on appeal, and we therefore do not consider it. In any event, there is no evidence in the record that Cantrell could have avoided the collision with Bearden once Montgomery hit him.


text:
    A99A0299.
    WILSON et al. v. MALLARD CREEK HOLDINGS.
    (519 SE2d 925)
   Ruffin, Judge.

Brenda Wilson and Michael Murphy sued Mallard Creek Holdings d/b/a Calloway Run Apartment Homes for negligent installation and maintenance of a natural gas water heater and negligent hiring and supervision of maintenance personnel. The plaintiffs contend that they were injured by carbon monoxide poisoning from an improperly installed heater. The defendant moved for summary judgment, asserting that there was no evidence that the plaintiffs’ injuries were caused by carbon monoxide poisoning. The trial court granted the motion, and we affirm.

In order to prevail on a motion for summary judgment, the movant must demonstrate that there is no genuine issue of material fact and that the facts, viewed in the light most favorable to the nonmovant, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The defendant may do this by showing that there is an absence of evidence to support an essential element of the plaintiffs case. Id. Once the defendant demonstrates the absence of evidence, it is incumbent upon the plaintiff to point to specific evidence which gives rise to a triable issue of fact. Id.

The following elements are essential to a claim for negligence:

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

(Punctuation omitted.) Tuggle v. Helms, 231 Ga. App. 899, 901 (2) (499 SE2d 365) (1998).

In granting summary judgment to the defendant, the trial court concluded that the plaintiffs failed to establish the element of causation. On appeal, plaintiffs contend that there was some medical evidence that supported their claim that they had been injured by carbon monoxide poisoning. In their brief to this Court, however, plaintiffs fail to provide a single citation to the record to support this contention, in violation of this Court’s rules. Court of Appeals Rule 27 (a) (1) & (c) (3) (i). Thus, we are authorized to dismiss this appeal. Beman v. Kmart, 232 Ga. App. 219, 220 (1) (501 SE2d 580) (1998). If an enumeration of error is not supported in the brief by specific reference to the record, we will not consider such enumeration. Id. “It is not the function of appellate judges to engage in the insipid search for support of alleged error without citation to relevant parts of the record.” (Punctuation omitted.) Gentile v. Bower, 222 Ga. App. 736, 738 (477 SE2d 130) (1996).

Moreover, the only evidence the plaintiffs point to in support of their argument is the testimony of Dr. Dallas Petrey. Without citing to the record, plaintiffs suggest that Dr. Petrey’s testimony that they had a “flushed appearance” (which can be a sign of carbon monoxide poisoning) is sufficient to create a jury issue with regard to causation. This is a complete misrepresentation of Dr. Petrey’s testimony. In fact, Dr. Petrey testified that, with respect to Murphy, he “did not notice a cherry red appearance” that is characteristic of carbon monoxide poisoning. With respect to Wilson, Dr. Petrey made no comment whatsoever on the appearance of her skin. Plaintiffs point to no other evidence in support of their claims, and “it is not the function of an appellate court to cull the record in search of error on behalf of a party.” Rice v. State Farm Ins. Co., 208 Ga. App. 166, 172 (3) (430 SE2d 75) (1993). Accordingly, we affirm. See Diffley v. Marshall’s at East Lake, 227 Ga. App. 343, 345-346 (489 SE2d 123) (1997).

Decided June 29, 1999.

Douglas R. Daum, for appellants.

Newman, Sapp & Davis, David A. Sapp, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A99A0457.
    WOOD v. NOTTE.
    (519 SE2d 923)
   Smith, Judge.

Henry Wood appeals from the order of the trial court dismissing his appeal. Because the trial court did not make the necessary findings, we cannot determine whether the trial court abused its discretion in dismissing the appeal. We must therefore reverse the trial court’s order and remand this case to the trial court with instruction that findings be made.

The record shows that Wood filed this legal malpractice action against his former divorce attorney, Guy J. Notte, alleging that Notte had consented without authority to a provision in the final divorce decree that ultimately resulted in Wood’s losing the interest awarded him by the jury in a piece of valuable commercial real property formerly owned by his wife. Notte answered the suit and eventually moved for summary judgment or, in the alternative, for dismissal on procedural grounds. The trial court granted Notte’s motion, and Wood filed a notice of appeal. On June 30, 1998, the trial court clerk sent Wood a bill of costs. On August 10, Wood’s counsel informed the clerk by telephone and letter that Wood would pay those costs by the end of the month. On August 31, 1998, Notte filed a motion to dismiss the appeal, on the ground that Wood had failed to pay costs and that failure had caused an unreasonable and inexcusable delay in transmitting the record to this court. In an affidavit filed with the motion, the clerk of the trial court stated that as of August 31, 1998, Wood had not paid costs and the record had not been transmitted to this court. The trial court held a hearing, which apparently was not transcribed, and entered an order on September 15, 1998, granting Notte’s motion to dismiss the appeal.

Decided June 29, 1999.

Craig T. Jones, for appellant.

Arnall, Golden & Gregory, Scott F. Bertschi, Ann S. Infinger, for appellee.

1. Wood contends the trial court erred in dismissing his appeal. OCGA § 5-6-48 (c) authorizes a trial court, in its discretion, to dismiss an appeal if “there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence.” Several elements therefore must be present: an unreasonable delay that was inexcusable and that was caused by failure of a party to pay costs or file an affidavit of indigence. In deciding whether these elements exist, the trial court exercises a legal discretion, and we review that discretion only for abuse. Crenshaw v. Ga. Underwriting Assn., 202 Ga. App. 610, 611 (414 SE2d 915) (1992). A delay of more than 30 days is prima facie unreasonable and inexcusable. Id. But the trial court must make findings on these issues before we may determine whether its discretion was abused. Ga. Dept. of Human Resources v. Patillo, 194 Ga. App. 279 (390 SE2d 431) (1990).

In this case, as in Patillo, the order merely granted the motion to dismiss. Here, as there, the trial court’s failure to make findings with regard to the reasonableness and excusability of the delay, as well as on the issue of causation, mandates a reversal of the trial court’s order and a remand with direction that findings of fact be entered on these issues. Id.

2. Wood’s remaining enumerations address the grant of summary judgment to Notte in the underlying malpractice action. But that appeal was dismissed by the trial court, and we cannot address the issues in the underlying action unless and until Wood’s appeal is reinstated, either by the trial court upon remand, or upon appeal from the trial court’s dismissal of the appeal after making findings upon remand.

Judgment reversed and case remanded with direction.

Pope, P. J., and Eldridge, J., concur.


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    A99A0575.
    DAVIS et al. v. HAWKINS.
    (521 SE2d 10)
   Ruffin, Judge.

Rebecca Ferguson, the executrix of Barnie Hawkins’ estate, reached an agreement with Hazel Hawkins, the decedent’s widow, to settle her claim for a year’s support. Ferguson then petitioned the Superior Court of Richmond County for approval of the agreement. The trial court approved the agreement, and Carol Davis and Robert Hawkins, two beneficiaries under the will, appeal. We affirm.

In October 1997, Barnie Hawkins died testate. According to the terms of his will, he bequeathed his house to his widow “for the remainder of her life or until she remarries.” The remainder of the decedent’s property was left to his four children. Ferguson was appointed executrix under the will.

On April 3, 1998, the widow filed a petition for a year’s support. The executrix and Russell Hawkins filed a caveat alleging, inter alia, that the claim for year’s support was excessive. Russell Hawkins filed a second caveat with Davis requesting that the year’s support petition be denied. On June 10, 1998, the probate judge dismissed the petition, and the widow appealed to superior court.

While the appeal was pending, the executrix and widow reached an agreement compromising the widow’s claim for a year’s support. The agreement called for the estate to sell the children’s remainder interest in the real property to the widow for a sum of $20,000 so that the widow would own the estate in fee simple rather than having a qualified life interest in the estate. Following a hearing at which the executrix, the widow, Carol Davis and Russell Hawkins testified, the superior court approved the agreement.

1. Appellants assert that the executrix lacked the authority to compromise the year’s support claim over the objections of beneficiaries. This assertion lacks merit. Pursuant to OCGA § 53-7-45, the executrix is “authorized to compromise, adjust, arbitrate, assign, sue or defend, abandon, or otherwise deal with or settle debts or claims in favor of or against the estate.” A claim for a year’s support is a claim against the estate. OCGA § 53-5-1 et seq. Thus, the executrix clearly had statutory authority to settle the claim.

Moreover, the executrix did not exceed the scope of her authority under the will, which granted her the power to “sell any and all of [decedent’s] property at private and/or public sale, for any purpose she may see fit, on such terms and consideration which her judgment shall dictate . . . without the order of any court.” See Cannon v. Bangs, 269 Ga. 671, 672-673 (502 SE2d 224) (1998) (will provision that gave executrix, who held life estate in property, “the express power to sell, encumber, use, or do any act with regard to the property” authorized executrix to convey property in fee simple even though sale deprived remaindermen of their interest). Thus, the trial court correctly concluded that the executrix had the authority to compromise the widow’s claim.

According to the appellants, the executrix should not be allowed to settle their caveat without their approval. However, the executrix did not settle the caveats. She settled the widow’s claim, for year’s support, which rendered the caveats moot. See Shepherd v. Carlton’s Nice Cars, 149 Ga. App. 749, 750-751 (2) (256 SE2d 113) (1979) (settlement rendered cross-appeals moot).

To the extent that appellants imply that they had a right to have some input into the settlement, we disagree. There is no statutory provision nor any provision in the decedent’s will that requires that the beneficiaries agree to such settlements. There is a requirement that, in settling the claim, the executrix act in good faith. See Home Ins. Co. v. Wynn, 229 Ga. App. 220, 222 (1) (493 SE2d 622) (1997) (executrix, as fiduciary, must act with good faith). Here, the appellants do not contend that the executrix acted in bad faith in settling the claim, and thus, we do not address this issue on appeal.

2. Appellants next assert that, even if the executrix had the authority to compromise the widow’s claim for year’s support, the trial court erred in allowing her to compromise the claim in such way as to defeat the intentions of the testator. Again, we disagree.

As an initial matter, we note that a claim for year’s support is preferred before all debts notwithstanding the fact that such an award necessarily “contravenes the theory that every competent person should be free to dispose of property at death as the individual desires.” Driskell v. Crisler, 237 Ga. App. 408, 409 (515 SE2d 416) (1999). “[T]he right to a year’s support overrides the testator’s instructions.” (Punctuation omitted.) Richards, supra at 425 (4). Thus, the fact that the settlement of the widow’s claim for a year’s support undermines the intent of the testator is not fatal to the settlement.

3. According to the appellants, the superior court erred in permitting the executrix to establish the value of the property through hearsay testimony. We disagree.

Initially, we question whether this enumeration of error has any bearing on the outcome of this case. The will gave the executrix the power to sell any of the decedent’s property without court approval. Additionally, she had the authority to compromise the claim against the estate. There is no requirement that such settlements be approved by the court. Compare OCGA § 29-2-16 (probate court approval required for certain settlements by guardian on behalf of ward). Thus, if the hearing was not required, we fail to see how the appellants could have been harmed by anything that took place during the hearing. It is well settled that “appellant [s] must show harm as well as error to prevail on appeal.” See Gantt v. Bennett, 231 Ga. App. 238, 242 (3) (499 SE2d 75) (1998); Motherly v. Kinney, 227 Ga. App. 302, 305 (3) (489 SE2d 89) (1997); see also Great Western Bank v. Davis, 203 Ga. App. 473, 474 (2) (416 SE2d 899) (1992).

Pretermitting whether appellants can establish harm, the trial court did not err in admitting the executrix’s value testimony over the appellants’ hearsay objections. As this Court recognized in B & L Svc. Co. v. Gerson, 167 Ga. App. 679 (307 SE2d 262) (1983),

[e]vidence of value is not to be excluded merely because the valuation fixed by the witness as a matter of opinion depends on hearsay, hence the testimony of the [executrix] is not objectionable for the reason stated. Market value may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion.

(Punctuation omitted.) Id. at 681 (4). Accordingly, this enumeration of error lacks merit.

4. Appellants contend that the superior court erred in “failing to preserve” their right to a jury trial on their caveat to the year’s support claim. The case came before the superior court by virtue of the probate court’s denial of the widow’s claim for year’s support. Appellants correctly note that, pursuant to OCGA § 5-3-30, appeals filed to a superior court before July 1, 1998, are to be tried by a jury. Thus, had the year’s support claim not been compromised, the appellants clearly would have had the right to have a jury address the merits of the widow’s claim. However, as the executrix did settle the year’s support claim, any issues that the appellants could have raised were rendered moot. Shepherd, supra. As there were no issues for a jury to decide, the trial court cannot be said to have deprived the appellants of their right to a jury trial. See Harry v. Glynn County, 269 Ga. 503, 505-506 (3) (501 SE2d 196) (1998); Allen v. Tucker Fed. Bank, 236 Ga. App. 245 (2) (510 SE2d 546) (1998).

Decided June 29, 1999.

Timothy S. Mirshak, for appellants.

Burnside, Wall, Daniel, Ellison & Revell, Harry D. Revell, Johnston, Wilkin & Williams, Wendell E. Johnston, Jr., William J. Williams, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       Rebecca Ferguson, Carol Davis, Robert Hawkins and Russell Hawkins are the four adult children of the decedent. Russell Hawkins is not a party to this appeal.

       Russell Hawkins is referred to as Wayne Hawkins in the caveat.

       This Code section, which became effective January 1, 1998, replaced OCGA § 53-7-107. Because OCGA § 53-7-45 does not impair the parties’ vested rights of title, year’s support, succession, or inheritance, we apply the new law. For more details, see the Editor’s notes at the beginning of Chapter 7 of Title 53.

       Effective January 1, 1998, the year’s support provisions are set out in OCGA § 53-3-1 et seq. We refer to the previous statute because it is the decedent’s date of death that governs the law applicable to a widow’s claim to a year’s support. Richards v. Wadsworth, 230 Ga. App. 421, 422 (2) (496 SE2d 535) (1998).

       In fact, Davis is the only appellant who actually filed a caveat.

       OCGA § 5-3-30 has been amended to read that appeals from magistrate court to superior court filed after July 1, 1998, are to be tried without a jury unless either party files a demand for a jury trial within 30 days.


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    A99A0710.
    TAYLOR v. THE STATE.
    (520 SE2d 267)
   Ruffin, Judge.

Randall Wade Taylor appeals the trial court’s denial of his motion in autrefois convict and his motion to correct his sentence. For reasons that follow, we affirm in part and reverse in part.

The relevant facts follow. On December 11, 1994, Taylor, who was driving a pickup truck, struck another car and killed the driver. A test administered after the accident showed that Taylor’s blood alcohol level was .35 grams. In addition, Taylor tested positive for both cocaine and marijuana. Taylor was charged with six counts of vehicular homicide, five counts of driving under the influence and one count of reckless driving. Following a trial, the trial court directed a verdict with regard to four counts of vehicular homicide and two counts of driving under the influence. The jury convicted Taylor of reckless driving and three counts of driving under the influence, for which the trial court sentenced him to four consecutive twelve-month sentences. The jury was unable to reach a verdict on the two counts of vehicular homicide, and the trial court declared a mistrial.

1. Taylor argues that subsequent prosecution on the vehicular homicide charges is barred by the double jeopardy clauses of both the state and federal constitutions. Taylor correctly notes that, in order to prove him guilty of vehicular homicide, the State would have to prove the elements of the underlying traffic violations of which he was convicted. See OCGA § 40-6-393 (a). According to Taylor, any trial for vehicular homicide would necessarily include re-litigating the DUI and reckless driving charges, thus violating constitutional double jeopardy protections. Taylor’s argument lacks merit.

The Supreme Court squarely addressed this issue in Rower v. State, 267 Ga. 46 (472 SE2d 297) (1996). In Rower, the defendant was charged with two counts of kidnapping, kidnapping with bodily injury, armed robbery, and malice or felony murder. The defendant was convicted on all counts except murder, and the trial court declared a mistrial with respect to that count. The defendant argued that the State could not retry him for felony murder because the State would have to “rely upon the same evidence that was used to convict him of lesser included offenses in its effort to convict him of the felony murder.” Id. at 47. In rejecting this argument, the Supreme Court held that

where, as here, the State seeks to prosecute a defendant for two offenses in a single prosecution, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense. The case law from around the country is completely in line with this principle that a retrial on a greater, inclusive offense, following a declaration of mistrial because of a hung jury, is not barred by double jeopardy principles notwithstanding the fact that a guilty verdict was accepted and a sentence imposed with respect to a lesser, included offense.

(Citations and punctuation omitted.) Id. at 46-47. There is no meaningful distinction between this case and Rower. Accordingly, the trial court did not err in denying Taylor’s motion in autrefois convict.

2. In his second enumeration of error, Taylor maintains that the trial court erred in sentencing him to three consecutive twelve-month sentences for his three driving under the influence convictions. Taylor contends that the offenses merged under the substantive double jeopardy rule. We agree.

“The substantive aspect of double jeopardy precludes multiple convictions or punishments for crimes arising from the same criminal conduct.” Teal v. State, 203 Ga. App. 440, 441 (1) (417 SE2d 666) (1992). “In making a judicial determination of whether multiple punishment is permissible, the question is: What did the legislature intend?” (Punctuation omitted.) Tabb v. State, 250 Ga. 317, 318 (1) (297 SE2d 227) (1982). In determining legislative intent, we look first to the statute. Id. “[Wlhere the language used by the legislature is plain and unambiguous, judicial construction is unnecessary.” Id.

OCGA § 40-6-391 (a) provides, inter alia, that “[a] person shall not drive or be in actual physical control of any moving vehicle while” (1) under the influence of alcohol, (2) under the influence of drugs, or (3) under the combined influence of alcohol and drugs. The fact that the legislature has criminalized driving under the combined influence of drugs and alcohol indicates a legislative intent to treat a single act of driving under the influence of multiple substances as a single offense. In fact, this Court has recognized that “it is also well-settled that OCGA § 40-6-391 (a) establishes a single crime of driving while in a prohibited condition” and that the subsections “merely define different modes of committing that one crime.” Morgan v. State, 212 Ga. App. 394, 395 (1) (442 SE2d 257) (1994).

Decided June 29, 1999.

Spruell, Taylor & Associates, Billy L. Spruell, Paul McGee, for appellant.

J. Tom Morgan, District Attorney, Anne Long, Assistant District Attorney, for appellee.

As Taylor committed only one offense of driving under the influence, the trial court erred in subjecting him to multiple punishment. Hogan v. State, 178 Ga. App. 534 (343 SE2d 770) (1986). Accordingly, we reverse the sentence and remand only for re-sentencing.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Andrews, J., concur.


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    A99A1018.
    FLUIDMASTER, INC. v. SEVERINSEN.
    (520 SE2d 253)
   Judge Harold R. Banke.

After a toilet in Severinsen’s home overflowed as a result of water seeping out of the tank, he brought this action against Fluidmaster, Inc., the manufacturer of the toilet-tank’s flush valve. The complaint alleged negligent manufacture, negligent design, strict liability, and negligent failure to warn. All claims except the one alleging negligent failure to warn were, however, dismissed as they are barred by the ten-year statute of repose. OCGA § 51-1-11 (c); see Chrysler Corp. v. Batten, 264 Ga. 723 (450 SE2d 208) (1994). We granted Fluidmaster’s application for interlocutory appeal from the denial of its motion for summary judgment on the failure-to-wam claim.

Severinsen’s home was built in 1987, the toilet overflowed in 1996, and this action was instituted in 1998. The toilet-tank valve was tested by Severinsen’s expert Sailing and then by Fluidmaster’s expert Wogomon. Their findings, opinions, and conclusions are set forth in their reports to Severinsen’s insurer, Allstate Insurance Company, and in their affidavits.

When the toilet tank filled with water during testing by both experts, the water flowed out of the valve’s outlet as it was designed to do. But water also flowed out of the top of the valve, which in Sailing’s opinion evidenced a malfunction. The malfunction did not, however, cause the toilet to overflow during testing by either expert, as the float closed the valve and stopped the flow of water from both the outlet and top when the water reached the full level.

Wogomon reported that the valve’s rubber seal showed numerous white deposits and that water ceased flowing out of the top of the valve when the seal was replaced. For these reasons, he concluded that the overflow from the top of the valve could have been caused either by deterioration of the seal as a result of aging or by foreign debris becoming trapped in it and preventing it from closing. He also opined that an outflow of water from the top of the valve could not, in any event, cause the toilet to overflow, because building codes uniformly require that a toilet be equipped with an overflow tube. But according to Sailing, the overflow tube can also malfunction. In Sailing’s opinion, the overflow of Severinsen’s toilet was most likely caused by a combination of these two malfunctions. Held:

Severinsen seeks to hold Fluidmaster liable under a negligent-failure-to-warn theory based on the claim that it had a duty to warn him that the seal of the valve would deteriorate over time when exposed to normal toilet-tank conditions.

Under Georgia law, one who supplies a chattel for use by another is subject to liability “for physical harm” if the supplier (a) knows or should realize that the chattel is or is likely to be “dangerous for the use for which it is supplied,” (b) has no reason to believe that the user of the chattel will realize its “dangerous condition,” and (c) fails to exercise reasonable care to inform them of its “dangerous condition” or of the facts which make it likely to be so. J. C. Lewis Motor Co. v. Williams, 85 Ga. App. 538, 541-542 (69 SE2d 816) (1952) (citing § 388 of the Restatement of Torts); Greenway v. Peabody Intl. Corp., 163 Ga. App. 698, 702 (2) (294 SE2d 541) (1982) (citing § 388 of the Restatement of Torts, Second). So formulated, the duty-to-warn doctrine does not require a product manufacturer to warn of a product-connected danger which is obvious or generally known. Ream Tool Co. v. Newton, 209 Ga. App. 226, 228-229 (4) (433 SE2d 67) (1993).

Even if the risk of product failure as a result of normal wear and tear could be characterized as a “dangerous condition,” it is obvious that the internal component parts of a device such as a toilet tank wear out over time. Therefore, Fluidmaster had no duty to warn Severinsen of any danger thereby posed. Moreover, under the Restatement, a product supplier is liable only for “physical harm” resulting from its failure to warn of a product-connected danger, and Severinsen is seeking property damages. Fluidmaster was thus entitled to summary judgment. Remaining issues are moot.

Judgment reversed.

Blackburn, P. J., concurs. Barnes, J., concurs in judgment only.

Decided June 29, 1999.

Hawkins & Parnell, Charles R. Beans, for appellant.

Webb, Carlock, Copeland, Sender & Stair, Edward A. Miller, Jerome B. McNally, for appellee.