text:
    A92A0241.
    HORNEY et al. v. PANTER.
    (420 SE2d 8)
   Andrews, Judge.

Mr. and Mrs. Horney appeal the grant of summary judgment to Panter in their suit arising from an electrical accident in which Mr. Horney was seriously injured.

Viewed in favor of the Horneys’ opposition to the summary judgment, OCGA § 9-11-56; Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the undisputed facts were that Panter, an attorney, owned an apartment complex where Horney served as resident manager. Horney was a Navy enlisted man who worked on electrical avionics systems for aircraft. As part, of his training, he had taken courses, including basic electricity and one on Ohm’s law, dealing with figuring out voltage, current, resistance, etc. While a teenager, Horney had assisted his father in building houses from the “ground up.” He had pulled wiring and finished outlets as well as connected appliances. While working for his father, he had learned by watching the electrician on the jobs. While in the Navy before coming to Georgia, he had also served as resident manager for an apartment complex. As part of his duties there, he had replaced circuit breakers and added circuits to electrical systems. Also, he had remodeled a basement, turning a two-car garage into a family room and bedroom, including pulling all new wires and installing outlets. He was aware that, when working with electricity, one should never work on an energized system and that a current of .5 amperes could kill. Part of his avionics training and responsibilities involved working on electric powered computer systems. He was aware that a Navy technician had been killed on the job by coming in contact with a live system.

When he came to Georgia, Horney contacted the base housing office and presented letters of recommendation from his previous jobs as resident manager. He was referred to Panter who hired him, giving him an apartment rent free in exchange for his services. Panter had no experience in working with installation or repair of electrical systems. Horney took over the apartments about two months before his accident. Panter hired him partly due to Horney’s assurances that he could handle household maintenance and construction tasks, including wiring.

At Panter’s home, a single family dwelling separate from the apartments, Horney had charged the air conditioning system and replaced an electrical socket. For jobs at his home, Panter paid Horney separately.

Panter was aware that Horney had installed an electrical fan in his own apartment and asked him if he would install one in Panter’s home. Horney agreed to do so for $50.

During the installation process, Horney and Mrs. Panter attempted to ascertain which of the unlabelled electrical circuits controlled the bedroom where the fan was to be installed. Believing he had turned the circuit off, Horney began working. In order to install the fan, he had to run a new line into the ceiling and he was also going to rewire electrical outlets and switches in the room. He received a mild shock while working. After taking unspecified steps to correct this problem, he continued working and received a full shock and suffered severe neurological damage. When Panter entered the room in response to Horney’s cry, the fan was on and operating.

Suit was filed against Panter, contending that Panter failed to exercise ordinary care by hiring an unqualified person to perform a dangerous activity and by hiring a non-licensed person to perform electrical contracting work, in violation of OCGA Title 43, Chapter 14. Horney further alleged, in Counts 2 and 3, that an oral agreement was made by Panter to pay him $1,000 a month or to take care of his financial needs in consideration of Horney not filing suit. The last count was for loss of consortium by Mrs. Horney.

Panter filed his motion for summary judgment on March 1, 1991, contending that he breached no legal duty to Horney because the electrical system in the house was not defective and Horney had knowledge that working on an energized system was dangerous. In support of this motion, the affidavit of electrical engineer Landers was submitted. Landers made an inspection of the premises in August 1990 and concluded that the circuit breaker and receptacle for the bedroom were adequate and that the electrical system was properly grounded. He found no defects in the wiring at that time. He also noticed the presence on the circuit box of the county certification of inspection of the wiring after installation and certification that it met county specifications.

1. As to the alleged oral agreements, Horney acknowledged during his deposition that no such agreements were made and summary judgment for Panter on these counts was appropriate. OCGA § 9-11-56 (e).

2. Plaintiffs Horney first contend that Panter committed negligence per se in hiring Horney to do electrical work because he, Horney, was not a licensed electrical contractor. OCGA § 43-14-8 (a) provides that “[n]o person shall engage in the electrical contracting business as an electrical contractor unless such person has a valid license . . . and a certificate of competency, ...” Electrical contracting is defined as “installation, maintenance, alteration, or repair of any electrical equipment, apparatus, control system, or electrical wiring device which is attached to or incorporated into any building or structure in this state. . . .” OCGA § 43-14-2 (6). The only exception to the licensing requirement arguably applicable here is OCGA § 43-14-16 (d), which allows an individual to install, alter or repair utility systems or electrical wiring services in a “single-family dwelling owned or occupied by him.” Since, however, the home was not owned or occupied by Horney and the electrical work was not performed by Panter, this provision would not excuse the license requirement. See Op. Atty. Gen. 88-29.

Panter argued below that Horney was not among the class of people which the licensing statute was intended to protect. Lively v. Trust, 184 Ga. App. 361, 362 (361 SE2d 516) (1987); Potts v. Fidelity Fruit &c. Co., 165 Ga. App. 546 (301 SE2d 903) (1983).

“In determining whether the violation of a statute or ordinance is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against. [Cits.]” Potts, supra at 547.

OCGA § 43-14-1 states that Chapter 14 of Title 43 “is enacted for the purpose of safeguarding homeowners, other property owners, tenants, and the general public against faulty, inadequate, inefficient, or unsafe electrical . . . installations.” Electrical contracting is declared to be a profession or business affecting the public interest and the chapter is to be liberally construed to fulfill its purpose. .

Horney argues that he, as a member of the “general public,” is within the class sought to be protected. “ ‘Where general words follow a list of particulars, the general words are construed to embrace only objects similar in nature to the particulars.’ [Cit.]” Lively, supra at 363. Here, the particulars listed are all categories of persons who would be using electrical installations, not the installers thereof.

While Horney was clearly engaging in electrical contracting so that he was required to have the requisite license before working on another’s property, Panter’s hiring of him was not negligence per se under this analysis since Horney was not within the protected class.

3. Since Horney was an invitee, Panter owed him the same duty he owed all invitees, that of ordinary care. OCGA § 51-3-1. “The general rule, however, is ‘that a landowner is not liable for injuries to an invitee arising from a patent defect on the premises preexisting the arrival of the invitee and of which the invitee knew or had the means of knowing equal to the landowner. . . . The true ground of liability is the landowner’s superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property. It is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted. (Cit.)’ [Cit.]” Roth v. Wu, 199 Ga. App. 665, 666 (1) (405 SE2d 741) (1991).

When the movant in summary judgment is the defendant, he must pierce the plaintiff’s pleadings and affirmatively negate one or more essential elements of the complaint. Corbitt v. Harris, 182 Ga. App. 81, 83 (354 SE2d 637) (1987). To the degree that the claim is based on the allegation that Panter failed to label the circuits, Panter has shown, and Horney acknowledges, that Horney was fully aware that the circuits were not labelled and had taken steps to identify the appropriate circuits. It is also undisputed that the injury occurred after Horney, without any direction from Panter as how to conduct the work, had taken the covers off electrical switches and was working on the wiring itself with full knowledge that electricity could harm him. In fact, he had been mildly shocked by this system prior to the larger shock.

“In the instant case, there was no breach of the duty to keep the premises safe for invitees because there is no assertion of the existence of any defects or conditions which were in the nature of hidden dangers, traps, and the like, such that they would not be known to appellant and would not be observed by him in the exercise of ordinary care.” Johnson v. Richardson, 202 Ga. App. 470, 471 (414 SE2d 698) (1992). Panter met his burden on summary judgment of showing that he “ ‘ “had no superior knowledge of any defect of which he should have warned, or was under the duty to warn, [Horney] as a part of [Panter’s] ordinary diligence.” ’ ” Anderson v. Saffold, 134 Ga. App. 31, 34 (213 SE2d 127) (1975) (emphasis in original), cited in Johnson, supra. Here, Horney was aware that the circuits were not labelled and was aware that a danger of electrical shock was present.

4. In the second enumeration, it is argued that summary judgment was improper due to factual issues as to whether the electrical system in the residence posed an “open and obvious risk” sufficient to bar the claim. The dispute in facts was premised upon the Biermann affidavit submitted in opposition to the summary judgment motion.

Decided May 19, 1992

Reconsideration denied June 8, 1992.

Garland & Samuel, Kathleen V. Duffield, for appellants.

Swift, Currie, McGhee & Hiers, Eric D. Miller, Stephen L. Cotter, for appellee.

The affidavit reflected Biermann’s qualifications as an electrical contractor. Biermann claimed no personal knowledge of the Panter residence or the events surrounding Horney’s injury. He had met with Horney’s attorney “concerning the factual background” of the injury. The remainder of the affidavit was based on suppositions and suggestions of possible violations of the National Electrical Code which might be found upon examination of the Panter premises.

“[A] party resisting summary judgment, in addition to coming forward with evidence which is sufficient to create a genuine issue of material fact, must present some credible warrant for its admissibility.” Wilson v. Nichols, 253 Ga. 84, 86 (3) (316 SE2d 752) (1984). Jones v. Campbell, 198 Ga. App. 83, 85 (2) (400 SE2d 364) (1990). In addition to failing in this particular, since the basis for his conclusions is predominately hearsay, the affidavit is not based on his personal knowledge, at least regarding the premises and the injury, in violation of OCGA § 9-11-56 (e). Sullivan v. Fabe, 198 Ga. App. 824, 828 (3) (403 SE2d 208) (1991).

Therefore, no dispute of fact is created and the grant of summary judgment was not error.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

       To the extent that Horney relies on OCGA § 43-14-6 (a) (5) (E) for support, it is misplaced. That section allows for the e.g., suspension and revocation of an electrician’s license upon assisting an unlicensed person to practice electrical contracting. Since Panter had no such license, this provision is inapplicable.

       The discussion of the “open and obvious,” rule applicable to products liability situations, compare Weatherby v. Honda Motor Co. Ltd., 195 Ga. App. 169, 170 (393 SE2d 64) (1990) with Ogletree v. Navistar Intl. Transp. Corp., 194 Ga. App. 41 (390 SE2d 61) (1989), is inapposite here.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A92A0252, A92A0439.
    CARREKER v. SOUTHERN GENERAL INSURANCE COMPANY; and vice versa.
    (419 SE2d 724)
   Andrews, Judge.

Carreker was injured in an automobile collision on May 7, 1990, while riding as a passenger in Miles’ car, and incurred $3,250 in medical expenses as a result of her injuries. Miles was insured under an automobile liability insurance policy issued by Southern General Insurance Company (SGIC) providing minimum personal injury protection (PIP) coverage under OCGA § 33-34-4, and containing a $1,500 deductible applicable to medical expenses and lost wages as provided by OCGA § 33-34-4 (d). As an insured person entitled to PIP coverage under the policy, Carreker sued SGIC under OCGA § 33-34-6 claiming that the insurance company failed to pay $750 of the PIP benefits she was entitled to receive, and also seeking the statutory penalty, attorney fees, and punitive damages for bad faith refusal to pay the benefits. Finding no evidence of bad faith, the trial court granted SGIC’s motion for summary judgment on Carreker’s claim for a penalty, attorney fees and punitive damages, and Carreker appealed from this order in Case No. A92A0252. In the same order, the trial court granted Carreker’s motion for summary judgment as to the $750 sought as unpaid benefits, and SGIC cross-appealed from this ruling in Case No. A92A0439.

1. We first address the cross-appeal of SGIC in Case No. A92A0439. The first impression issue raised in this case is the manner in which the deductible authorized by OCGA § 33-34-4 (d) is to be applied.

It is undisputed that Carreker sustained $3,250 in medical expenses as a result of her injuries. The first medical bill submitted to SGIC for payment of PIP benefits was in the amount of $1,795. In return for a lesser premium, the insurance policy contained a $1,500 deductible applicable to PIP coverages for medical expenses and lost wages. See OCGA § 33-34-4 (d). Applying the deductible, SGIC deducted $1,500 from the $1,795 and timely paid the remaining $295 in benefits. Thereafter, SGIC timely paid an additional $705 in PIP medical expense benefits for a total payment of $1,000.

The insurance policy provided the minimum statutory PIP coverage, so the limit for medical benefits payable under the policy was $2,500 under OCGA § 33-34-4 (a) (2) (A). SGIC contends that, as authorized by OCGA § 33-34-4 (d) and implemented in the insurance policy, the $1,500 deductible made Carreker liable for the first $1,500 in medical expenses, and reduced the coverage limit and SGIC’s liability for payment of PIP medical expenses from $2,500 to $1,000. Carreker agrees the deductible makes her responsible for the first $1,500 of medical expenses incurred, but claims that after the deductible was satisfied SGIC remained responsible for payment of the entire limit of coverage for sums up to $2,500. In other words, Carreker argues that the deductible should not be subtracted from the coverage limit, but is simply a threshold amount for which the insured is responsible before the insurer’s contractual obligation to pay policy benefits is triggered. Under Carreker’s contentions, the $3,250 in medical expenses was reduced by the $1,500 deductible to $1,750. Since SGIC paid only $1,000 in benefits, Carreker claims an additional $750 is due.

OCGA § 33-34-4 (d) provides that: “An insurer may make the coverages described under subparagraphs (a) (2) (A) [medical expenses] and (a) (2) (B) [lost wages] of this Code section and (a) (1) (A) and (a) (1) (B) of Code Section 33-34-5 available on a deductible basis at the option of the named insured and at a reduced price. Such a deductible shall not, however, apply to compensation ... to any insured whose injury results in death, dismemberment, permanent blindness in one or both eyes, total and permanent paralysis, or a compound fracture of an arm or leg. Subject to the foregoing limitation, such a deductible shall apply to reduce the total benefits limits specified by subsection (c) of this Code section, except that if there exist two or more policies providing coverage under this Code section, then with respect to each such policy the benefits limits specified by subsection (c) of this Code section shall be reduced only by the amount of the deductible specified in that policy.”

Subsection (c) of OCGA § 33-34-4 provides that: “The total benefits required to be paid under this Code section without regard to fault as the result of any one accident shall not exceed the sum of $5,000.00 per each individual covered as an insured person or such greater amount of coverage as has been purchased on an optional basis as provided in Code Section 33-34-5, regardless of the number of insurers providing such benefits or the number of policies providing such coverage.”

In the absence of a deductible, SGIC was responsible for a benefit limit of up to $2,500 for medical expenses under subsection (a) (2) (A) and the insurance policy. Although no specific dollar limit is placed on lost wages under subsection (a) (2) (B) lost wages and other economic loss under subsections (a) (2) (C) and (D), along with medical expenses, are component elements of the $5,000 total minimum benefits specified in subsection (c). Thus, in addition to the specific limit on medical expenses, other economic loss including lost wages is limited to a sum which when added to medical expenses not exceeding $2,500 would reach a combined limit of $5,000 in PIP benefits per insured person per accident.

The statute provides that coverage for medical expenses and coverage for lost wages may be made available on a deductible basis, and that the deductible shall be applied in a manner that “reduce[s] the total benefits limits specified by subsection (c). . . .” OCGA § 33-34-4 (d). As defined under the statute, the deductible is applied not as a threshold after which the insurer remains potentially responsible for the full limits of coverage, but as a reduction in the limits of coverage applicable under subsections (a) (2) (A) (medical expenses) and (a) (2) (B) (lost wages) as component elements of the $5,000 total benefits limit specified in subsection (c). Since all of Carreker’s claim in the amount of $3,250 was for medical expenses which are limited to $2,500, the deductible applied to the first $1,500 of claims, and reduced the medical benefit limit leaving SGIC responsible for only $1,000 in payments.

Decided May 20, 1992

Reconsideration denied June 8, 1992

W. Douglas Adams, for appellant.

Freeman & Hawkins, Paul M. Hawkins, Michael J. Goldman, for appellee.

We find no ambiguity in the insurance policy provisions which implemented the deduction authorized in OCGA § 33-34-4 (d). To obtain a lower premium, Carreker requested in the insurance application that the policy be issued with a $1,500 deductible applicable to basic PIP coverage. In defining the deductible applicable to PIP coverage, the insurance policy clearly provides that for a reduced premium SGIC will “reduce by $1,500.00 per accident the amount we will pay to each eligible injured person for any combination of expenses for medical expenses incurred and actually paid, or work loss suffered. . . . The deductible, if applicable shall reduce the total benefits limits for medical expenses and work loss but the deductible will not total more than $1,500.00 per eligible injured person per accident.” The insurance policy was also issued with a “Private Passenger Basic PIP Deductible Endorsement” which provided that the $1,500 deductible be applied “to reduce the total benefits limits for medical expenses and work loss. . . .” and clearly indicated that the deductible reduced the limits of liability for those PIP coverages under the policy. The policy provisions were clear and consistent with the intent of the statute.

Accordingly, SGIC properly applied the $1,500 deductible, and paid the full amount of benefits for which it was liable in the sum of $1,000. The trial court erred by determining that SGIC owed $750 in additional benefits, and by granting summary judgment for that amount in favor of Carreker. The judgment in Case No. A92A0439 must be reversed.

2. In view of our holding in Division 1, the grant of summary judgment in favor of SGIC in Case No. A92A0252 on the claim for statutory penalties, attorney fees and punitive damages was proper.

Judgment affirmed in Case No. A92A0252, and reversed in Case No. A92A0439.

Birdsong, P. J., and Beasley, J., concur.

       There is no claim here that Carreker sustained an injury to which the deductible may not be applied.


author: Birdsong, Presiding Judge.

text:
    A92A0316.
    BEASLEY et al. v. PARKS.
    (420 SE2d 3)
   Birdsong, Presiding Judge.

Appellants Betty Jo Beasley and James Beasley appeal the grant of summary judgment to appellee uninsured motorist (UM) carrier Windsor Insurance Company, as to a cause of action which arose December 24, 1988. Appellants filed suit against the personal injury defendant on December 17, 1990. Appellants sent the UM carrier a courtesy copy of the lawsuit but did not serve the lawsuit on the UM carrier pursuant to OCGA § 33-7-11 (d), until May 9, 1991, after expiration of the statute of limitation on December 24, 1990. Windsor Insurance Company filed a motion for summary judgment on those grounds.

Appellants contended, and gave evidence to show, that their counsel sent a courtesy copy of the lawsuit to an adjustor at Windsor’s office and had several conversations and written communications with specific adjustors concerning settlement, during which Windsor transferred the file amongst adjustors and offers were proposed and rejected. Held:

Appellants contend the insurer’s conducting settlement negotiations or indicating that settlement might occur, should operate to prevent summary judgment on grounds of failure to serve the lawsuit on the UM carrier before expiration of the statute of limitation.

' Appellee relies upon Drohan v. Carriage Carpet Mills, 175 Ga. App. 717 (334 SE2d 219) as holding that the conduct of settlement negotiations by the insurer did not revive a suit filed after expiration of the statute of limitation. Appellants contend Drohan is inapposite, because here the suit was filed within statutory limitation. We are not impressed with this distinction, for it is based on the faulty deduction that if settlement negotiations by an insurer do not revive a suit filed after statutory limitation, then if a suit was filed within statutory limitation and the insurer engages in settlement negotiations, a plaintiff may ignore the statutory requirement to serve the UM carrier. This reasoning, consistent with appellants’ entire position in this case, would gut the requirement of OCGA § 33-7-11 (d) to serve a copy of the lawsuit on the UM insurer and would provide distinct opportunity for fraud and unfair tactics.

Drohan applies to this case for the proposition that legal requirements which are condition precedent to a judgment of liability may not be excused or avoided by the ordinary conduct of settlement negotiations. The question here is whether such negotiations excuse a plaintiff from the statutory requirement to serve the UM carrier. We have held the statute of limitation might be avoided where an insured was in effect misled to believe a claim would be paid without litigation (Georgia Farm &c. Ins. Co. v. Nolan, 180 Ga. App. 28-29 (348 SE2d 554)), but such mitigation is similar to constructive fraud. Appellants do not contend Windsor Insurance Company committed fraud in this case, or misled them to believe a settlement had been reached. The mere conduct of settlement negotiations by the parties is not a good excuse for failure to file an answer to a suit “when there was no act upon which the movant could place confidence that the other party would not seek a judgment, or no act that prevented the movant from presenting its defense.” First Dixie Prop. v. Chrysler Corp., 202 Ga. App. 145, 146 (413 SE2d 464) (1991). That holding is analogous to this case.

Decided April 9, 1992

Reconsideration denied June 8, 1992.

Edward W. Clary, for appellants.

Teresa J. Parks, pro se.

We decline to hold that mere settlement negotiations may excuse a plaintiff from the statutory requirement of OCGA § 33-7-11 (d) to serve a suit by legal process on the insurer. Accordingly, the trial court did not err in granting summary judgment to appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Sognier, Chief Judge.

text:
    A92A0575.
    CHEATHAM v. THE STATE.
    (419 SE2d 920)
   Sognier, Chief Judge.

Richard Blake Cheatham was tried before a superior court judge and convicted on drunk driving, weapons, and habitual violator charges. He appeals, enumerating as error the denial of his motions to suppress.

1. Appellant first contends all evidence seized from his vehicle after his arrest should have been suppressed as the fruits of an illegal arrest because the police officers who stopped him did not have a reasonable suspicion for doing so. Testimony adduced at the hearing on this motion to suppress established that on the morning of October 22, 1990, Frederick Anderson, an employee at a warehouse on Southlake Parkway in Clayton County, dialed 911 and reported hearing gunshots in a wooded area near the warehouse between 4:30 and 5:30 a.m. Officers Crenshaw and Branham each responded to a radio call concerning the gunshots and arrived at the warehouse at approximately 6:15 a.m. After talking with a warehouse employee concerning the location of the shots, the officers observed appellant driving on a dirt road heading from the wooded area toward Southlake Parkway. His truck was the only vehicle the officers saw in the vicinity of the wooded area. After observing the location from which appellant came and noticing the mud covering his truck, the officers followed him and stopped him a few blocks away. As appellant got out of his truck and walked toward the officers, they observed that he walked unsteadily and had an odor of alcohol about his person. Appellant informed the officers he had no driver’s license because he had been declared a habitual violator. Officer Crenshaw looked inside appellant’s truck and saw several rifles and an open beer can. The officers took appellant into custody and transported him to headquarters for an intoximeter test.

“Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Investigative stops of vehicles are analogous to Terry-stops, [Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)], and are invalid if based upon only [an] unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Punctuation and citations omitted.) Tarwid v. State, 184 Ga. App. 853, 854 (363 SE2d 63) (1987). This specific, articulable suspicion must be based on the totality of the circumstances — e.g., objective observations, information from police reports, the modes or patterns of certain kinds of lawbreakers, and the inferences drawn and deductions made by a trained law enforcement officer. United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).

Analyzing the instant case according to these principles, we do not agree with appellant that the officers’ action in stopping him was either arbitrary or pretextual. Given the report of recent unlawful discharge of a firearm (see OCGA §§ 16-11-103, 16-11-104); the appearance of only one vehicle, appellant’s truck, coming from the direction where the shots were fired; and the presence of fresh mud on his truck, which suggested he had been in the wooded area where the shots were fired, the totality of the circumstances would have authorized a law enforcement officer to conclude that appellant likely had been engaged in criminal activity. Accord Cortez, supra at 418-422; Brisbane v. State, 233 Ga. 339 (211 SE2d 294) (1974); Allen v. State, 140 Ga. App. 828 (1) (232 SE2d 250) (1976). Accordingly, the brief investigatory stop of appellant was permissible even though the officers did not personally observe appellant commit a traffic violation or any other criminal act before they made the stop. See Watson v. State, 190 Ga. App. 696 (379 SE2d 817) (1989); see also Allen, supra at 831.

Once appellant had been stopped, the officers observed that he appeared to be intoxicated, and he admitted being a habitual violator. The officers thus were justified in arresting appellant for DUI and operating a vehicle after being declared a habitual violator. OCGA § 17-4-20 (a). Officer Crenshaw saw several firearms in plain view and discovered additional evidence after appellant consented to a search of the truck. Accordingly, the evidence obtained was admissible at trial, and the denial of this motion to suppress was proper. Watson, supra at 697.

Decided May 26, 1992

Reconsideration denied June 8, 1992.

George T. Brown, for appellant.

Robert E. Keller, District Attorney, Deborah Benefield, Assistant District Attorney, for appellee.

2. Appellant also enumerates as error the denial of his motion to suppress the results of his intoximeter test made on the ground that his right to obtain an independent blood test was improperly abridged. However, since the results of the intoximeter test were not introduced into evidence at appellant’s trial and were not part of the evidence stipulated by appellant and the State (appellant having been convicted of violating OCGA § 40-6-391 (a) (1)), appellant has failed to demonstrate any harm to him as a result of the denial of this motion, and thus has presented no basis for reversal. See generally Terry v. State, 190 Ga. App. 570, 571-572 (2) (379 SE2d 604) (1989).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A92A0087.
    THE STATE v. LAND-O-SUN DAIRIES, INC. et al.
    (419 SE2d 743)
   Cooper, Judge.

This appeal originates from a criminal indictment obtained by the State against two dairies and an individual employee of each dairy. The indictment charged the defendants with conspiracy in restraint of trade in the sale of milk to certain public school districts and detailed specific acts of bid rigging involving the defendants in the sale of milk to the school boards. On the day the trial of the case was scheduled to begin, the trial court heard argument on the defendants’ motion in limine to exclude the testimony of two óf the State’s witnesses. The witnesses were two former employees of one of the defendant dairies whose testimony allegedly would implicate themselves, and therefore implicate their employer, on the conspiracy charge. The basis for the motion in limine was that the State had previously dismissed the two witnesses with prejudice as defendants in a federal civil antitrust action predicated on the same facts; that the dismissal acted as an adjudication on the merits that the witnesses did not commit the acts alleged in the federal action; that the acts alleged against the witnesses in the federal action were the same acts alleged in the state criminal action as a basis of criminal liability against the dairies; and that the State’s voluntary dismissal of the witnesses with prejudice from the federal action operates as a bar, under res judicata and collateral estoppel, to the introduction of any evidence which could implicate the two witnesses in the illegal conspiracy. The trial court granted the defendants’ motion in limine and excluded any evidence which may implicate the two witnesses in the conspiracy. The court ruled that such evidence could not be introduced against any of the state criminal defendants. After the trial court granted the motion in limine, the State indicated that it was unable to present its case without the excluded evidence and requested the court to treat the motion as a motion to quash the indictment so that it could appeal the order. Over the objection of the defendants, the court ruled that it would consider the motion as both a motion in limine and a motion to quash and then granted the motion to quash. The State then appealed the trial court’s order to this court, yet dismissed its appeal as to all defendants except Land-O-Sun Dairies, Inc. (“appellee”).

We first entertain appellee’s motion to dismiss the appeal. For the reasons hereinafter stated, we agree with appellee that the State has no authority to bring this appeal; that we have no jurisdiction over this appeal; and that this appeal must be dismissed. The State’s right of appeal in a criminal case is regulated by OCGA § 5-7-1. In its brief, the State argues that it has the right to appeal the trial court’s order pursuant to OCGA § 5-7-1 (3), which allows the State to appeal from an order sustaining a plea in bar if jeopardy has not attached. The State contends that appellee’s motion in limine was in substance a plea in bar, since it effectively prevented the prosecution of their case. We disagree. “ ‘(A) plea in bar is one “which goes to bar the . . . state’s action; that is, to defeat it absolutely and entirely.” ’ [Cit.]” Parrish v. State, 160 Ga. App. 601, 607 (7) (287 SE2d 603) (1981). The suppression of evidence does not bar a criminal prosecution. State v. Brown, 198 Ga. App. 239, 241 (401 SE2d 295) (1990). Notwithstanding the fact that the exclusion of the evidence in the instant case eliminated the State’s key evidence, the prosecution itself was not barred thereby. See Id.; State v. McIntyre, 191 Ga. App. 565, 566 (382 SE2d 669) (1989). This court has heretofore declined to find appellate jurisdiction when the State appealed an order granting a defendant’s motion in limine on general evidentiary grounds. See State v. Brown, 185 Ga. App. 701, 702 (365 SE2d 865) (1988); State v. Thomas, 176 Ga. App. 106 (335 SE2d 697) (1985). If the trial court’s ruling in this case were directly appealable by the State under OCGA § 5-7-1 (3), any adverse pre-trial evidentiary ruling which excluded key evidence in a criminal case would be subject to direct appeal by the State. See Brown, 185 Ga. App. at 702. The cases cited by the State in support of its position, Parrish, supra and State v. Williams, 246 Ga. 788 (272 SE2d 725) (1980), are distinguishable and are not controlling. In Parrish, the trial court’s ruling absolutely precluded the State from establishing the defendant’s recidivism and therefore .was a bar to that action. In Williams, the court examined the substance of a directed verdict of acquittal to determine if it was based on the merits. Williams does not give this court authority to re-characterize the grant of a general evidentiary motion as a plea in bar of prosecution. Further, at the hearing on the motion in limine, appellee never requested that the prosecution be barred, in fact, appellee stated that it was ready to proceed with the trial. We conclude that the motion in limine was not a plea in bar as argued by the State and this appeal is not authorized under OCGA § 5-7-1 (3). We also note that the State is allowed to appeal an order dismissing an indictment under OCGA § 5-7-1 (1). However, there is also no jurisdictional basis for this appeal under this section because the order became one quashing the indictment only at the State’s request. The State cannot circumvent the statute and create avenues for appeal by requesting a trial court to convert an adverse evidentiary ruling into a motion to quash the indictment and then appeal the adverse ruling that it requested. Construing OCGA § 5-7-1 strictly against the State, as we are bound to do, see McIntyre, supra, we determine that the instant appeal does not fall within any of the categories set forth in the statute, and therefore this appeal must be dismissed. “In so holding, we express neither approval nor disapproval of the trial court’s ruling. Our holding is that, under existing statutory authority, we have jurisdiction neither to affirm the ruling if correct nor to reverse it if erroneous.” Brown, 185 Ga. App. at 702.

Decided June 8, 1992.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, W. Glenn Thomas, Jr., District Attorney, for appellant.

Bondurant, Mixson & Elmore, Emmett J. Bondurant, George W. Fryhofer III, Dickey, Whelchel, Brown & Readdick, J. Thomas Whelchel, Stroup & Coleman, Gary Flack, Alston & Bird, David P. Cohen, for appellees.

Appeal dismissed.

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


text:
    A92A0163.
    PARNELL v. THE STATE.
    (420 SE2d 42)
   Cooper, Judge.

Appellant, who was convicted of aggravated sodomy, enticing a child, child molestation and aggravated child molestation, appeals from the denial of his motion for new trial.

Appellant was the maintenance person at the mobile home park where the five-year old victim lived. Appellant resided in the mobile home park in a small trailer. The victim’s mother testified that the victim related to her that appellant had fondled his genital area and had performed oral sex on the victim. The victim testified at trial and made the same statements. At the time of appellant’s arrest, a search of his trailer revealed several magazine pictures of semi-nude women posted on the walls of the trailer. Also, additional magazines containing pictures of nude women were found in appellant’s trailer, as well as a large quantity of women’s lingerie, women’s makeup and two wigs.

1. Appellant’s first enumeration of error states that the verdict was contrary to law. Since this enumeration of error was not supported by argument, reference to the transcript, or citation of authority, it is deemed abandoned. Court of Appeals Rule 15 (c) (2); Grier v. State, 198 Ga. App. 840 (2) (403 SE2d 857) (1991).

2. Appellant next contends that the trial court erred in admitting into evidence the pictures of nude women that were found in appellant’s trailer. Appellant objected to the introduction of the pictures only on the ground of their relevancy. After appellant objected, the trial court reserved decision and the record does not reflect the court’s final decision. However, the evidence was admitted and is included in our official transcript. “ ‘[T]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.’ [Cit.]” Barnwell v. State, 197 Ga. App. 116 (5) (397 SE2d 717) (1990). Further, “ ‘[o]ur appellate courts have consistently adhered to the rule that an objection to the admission of evidence on the sole ground that it is “irrelevant” is insufficient to show error requiring reversal. (Cits.)’ [Cit.]” Carson v. State, 192 Ga. App. 52 (3) (383 SE2d 619) (1989). See Brown v. State, 122 Ga. App. 59 (176 SE2d 240) (1970). Although on appeal, appellant argues error on the ground of similar transaction evidence, this ground was not raised at trial and the only objection presented to the trial court was one of relevancy.

Judgment affirmed.

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

Decided June 8, 1992.

William J. Robinson, Jr., for appellant.

Darrell E. Wilson, District Attorney, Brett W. Ladd, Assistant District Attorney, for appellee.


author: Carley, Presiding Judge.

text:
    A92A0169.
    TAYLOR v. THE STATE.
    (419 SE2d 745)
   Carley, Presiding Judge.

As the result of the death of the passenger in a car that he was operating, appellant was tried before a jury and found guilty of vehicular homicide. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. The evidence adduced at trial was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Over appellant’s hearsay objection, an officer was allowed to testify that, in his presence, appellant had been read the “implied consent” rights by another officer. There was no error in failing to sustain appellant’s hearsay objection. Brackett v. State, 142 Ga. App. 578, 579 (2) (236 SE2d 538) (1977). See also Walker v. State, 187 Ga. App. 631, 633 (1) (371 SE2d 199) (1988).

3. On direct examination, the State asked an officer “what is the legal limit for DUI in this state?” Appellant objected that that was “a matter for the court.” However, the trial court held that the officer could respond to the question, “if he knows [the answer].” The officer then gave as his answer “.10.” Appellant enumerates as error the failure to sustain his objection to allowing the officer to testify as to “what is the legal limit for DUI in this state.”

The trial court erred in failing to sustain appellant’s objection. “To allow testimony of this kind, would be to allow a witness to testify what the law is. Witnesses must testify to facts, and the court is responsible for the law.” Central Railway v. DeBray, 71 Ga. 406, 421 (4) (1883). Shaw v. State, 201 Ga. App. 456 (411 SE2d 537) (1991) is not authority for the admission of the testimony in the instant case. Not only does Shaw have no precedential value, it is distinguishable. Shaw stands only for the narrow proposition that a witness for the State who is himself facing criminal charges is subject to cross-examination concerning his potential sentence. “[I]t does not matter whether there [is] an actual agreement to allow [the State’s witness] to receive [favorable sentencing treatment]. What is relevant [is] what [the State’s witness] believe [s] as it reflects] on his motives in testifying. . . . [I]t [is] a relevant subject of cross-examination to determine if [the State witness] believe [s] he might get a [favorable] sentence.” Owens v. State, 251 Ga. 313, 316-317 (1) (305 SE2d 102) (1983) (cited as controlling authority in Shaw, supra.) Shaw does not stand for the broad proposition that any lay witness who purports to have personal knowledge of the law may testify thereto. The extent of the personal knowledge of the witness in the instant case as to the “legal limit for DUI in this state” was not a relevant factual inquiry and the question posed to him cannot be construed as seeking merely to elicit “a fact which incidentally involves a legal word or phrase. . . . [Cit.]” Gage v. Tiffin Motor Homes, 153 Ga. App. 704, 709 (2) (266 SE2d 345) (1980). The question sought to elicit from the witness a direct response as to the provisions of statutory law. It was error for the trial court to allow the witness to respond to this question.

Decided June 8, 1992.

Robert G. Rubin, for appellant.

The issue yet remains, however, as to whether this error warrants reversal. The record demonstrates that the probative effect of the officer’s inadmissible testimony on direct examination was negated when, on cross-examination, the witness acknowledged that he really did not know “the actual legal limit.” Moreover, the State’s evidence showed that appellant’s blood-alcohol level was .24. It was, therefore, presumed that appellant was under the influence of alcohol pursuant to both former and existing OCGA § 40-6-392 (b). Appellant made no effort to rebut this presumption that he was under the influence of alcohol. Instead, his defense was premised upon the contention that the proximate cause of the death of his passenger had not been his own intoxication, but the intoxication of his passenger and her lack of use of seat belts. Indeed, in the closing argument of appellant’s counsel, the sufficiency of the evidence as to appellant’s driving under the influence was, in. effect, conceded and only the sufficiency of the evidence as to appellant’s guilt of vehicular homicide was contested. Under these circumstances, it is highly probable that the trial court’s error in allowing the witness to testify as to the “legal limit for DUI in the state” did not contribute to the guilty verdict and that that error was, therefore, harmless. Wallin v. State, 248 Ga. 29, 32 (5) (279 SE2d 687) (1981). The admissible evidence that appellant was driving while under the influence was overwhelming and was not affected by the officer’s inadmissible testimony as to the terms of the statutory prohibition on so doing.

Judgment affirmed.

Pope and Johnson, JJ., concur.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, D. Victor Reynolds, Rebecca A. Keel, Assistant District Attorneys, for appellee.


text:
    A92A0205.
    BARNETT v. THE STATE.
    (420 SE2d 43)
   Birdsong, Presiding Judge.

Reginald Clay Barnett appeals his judgment of conviction of trafficking in cocaine, driving a motor vehicle with defective equipment (burned-out headlight beam), violation of Georgia no-fault insurance law by operating an automobile without effective insurance as required by the Georgia Motor Vehicle Accident Reparations Act, and the sentence.

Officer Williams stopped a 2-door Chevrolet Monte Carlo, driven by appellant, the car borrowed from a friend, for a traffic violation (an inoperative headlight). No parking was allowed where the vehicle was stopped. Appellant admitted he had been drinking; he was nervous, he smelled of alcohol, his eyes were bloodshot, and his speech was somewhat slurred. Appellant did not perform well on a three-part field sobriety test. Officer Williams testified he then arrested appellant for DUI, driving an automobile without insurance, and driving an automobile with defective equipment. Two passengers were in the car, and they too smelled of alcohol. Officer Williams elected to impound the vehicle, because he could not allow anyone to drive it without effective insurance. Officer Williams further testified that he searched the car, pursuant to an inventory (conducted because the car was being impounded) and also pursuant to his arrest of appellant. Cocaine was found in a “Cheetos” bag stuffed into a slit in the back side of the front passenger’s seat. Although the evidence is contested, Officer Williams testified that the top of the open bag was sticking out of the slit, and he could see inside the bag.

Before Officer Williams searched the car, Officer Singleton was standing about two feet away when the passengers got out and he saw a hole in the back of the passenger seat. Although Singleton did not see a bag in view, a bulge made it apparent there was something down in the seat.

Officer Wallace testified that as he was taking defendant Pollard to the police car, Pollard, without solicitation from Wallace, stated crack cocaine was in a slit on the back side of the passenger’s seat. Officer Wallace made no response to Pollard regarding this statement, and he engaged in no conversation with Pollard at the scene. Officer Wallace returned and suggested that Williams search that specific area of the car, but Williams already had found the drugs. Wallace too observed a “self-made” slit in the seat before the search, but saw nothing sticking out of the slit. Held:

1. Appellant asserts the trial court erred in failing to grant his motion to suppress. In considering the legality of a search, an appellate court can consider all relevant evidence of record, wherever located, including that adduced at a pretrial suppression hearing and that adduced at trial. Newsome v. State, 192 Ga. App. 846, 847 (1) (386 SE2d 887).

Appellant argues inter alia that the stop of the vehicle was merely a pretext to investigate three black males. Appellant’s car was lawfully stopped for being operated with defective equipment. As Officer Williams observed appellant violating the traffic laws by driving the vehicle with a defective headlight, he had probable cause to stop the vehicle and investigate the incident. Mallarino v. State, 190 Ga. App. 398, 400 (2) (379 SE2d 210). The trial record does not support appellant’s claims of subterfuge. Officer Williams testified he stopped the vehicle because of its inoperative headlight. The trial court perforce of its ruling on the suppression motion found this testimony credible, and we will not reverse the trial court’s determinations of credibility unless they are clearly erroneous. Id. at 400-401.

Appellant also asserts that the inventory search was a pretext for an investigative search and also was not lawful because the Polk County Police Department has no written or verbal policy regarding impoundment and inventory searches of vehicles, thereby leaving the matter solely within the discretion of the arresting officer. Pretermitting the issue of the legality of the seizure of cocaine resulting from an inventory of the contents of the automobile is the question whether any other lawful basis exists for the seizure of the contraband. We find that at least two independent bases exist for the lawful seizure of the drugs.

(a) The misdemeanor offense of operating a vehicle with defective equipment (an inoperative headlight), see generally OCGA §§ 40-8-7; 40-8-20; 40-8-22; 40-8-30; and 40-8-31, was committed in Officer Williams’ presence; there also existed at the time of appellant’s arrest probable cause for the arresting officer to believe appellant had committed an offense by operating a motor vehicle without the required statutory insurance, as appellant could not produce proof of unexpired, required minimum insurance coverage, see generally § 40-6-10; and, finally there also existed at the time of appellant’s arrest probable cause, albeit minimal, to believe appellant was DUI in the officer’s presence. The fact a subsequent intoximeter test revealed only a .02 alcohol level, and that appellant was not indicted and tried for DUI does not negate the legitimacy of the arresting officer’s determination to arrest appellant, particularly when, in addition to overall physical appearance, appellant did not perform well on the three-part sobriety test. Cf. Brooks v. State, 166 Ga. App. 704 (305 SE2d 436) (subsequent guilt or innocence does not determine legality of arrest). It is the facts and circumstances existing within the knowledge of the arresting officer at the moment arrest is made which are controlling. Hall v. State, 200 Ga. App 585, 586 (1) (409 SE2d 221); see also OCGA § 17-4-20. “ ‘The constitutional validity of an arrest without a warrant depends upon whether the arresting officer had probable cause to believe the defendant was committing, or had committed, an offense in the officer’s presence.’ ” Robinson v. State, 182 Ga. App. 423, 426 (7) (356 SE2d 55). As the arresting officer had made a lawful custodial arrest of appellant (compare Polk v. State, 200 Ga. App. 17 (406 SE2d 548)), he had authority to conduct, as a contemporaneous incident of that arrest, a warrantless search of the vehicle compartment of the automobile which appellant had just been operating. Fortson v. State, 201 Ga. App. 272, 274 (410 SE2d 774); Nichols v. State, 198 Ga. App. 323 (401 SE2d 338). (Note: The transcript establishes the seats in this vehicle were of the type where the backs move forward to allow rear-seat passengers ingress and egress; it may reasonably be inferred from this fact of automobile body design that a driver could have ready access to and immediate control over anything placed within the slit in the back of the passenger seat once that seat back was tilted forward.) Accordingly, the suppression motion should not have been granted; we will not reverse the correct ruling of the trial court regardless of the reason given therefor. Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268).

(b) Additionally, the search was valid for the following reason. Independent of and before Officer Williams’ search of the vehicle, two police officers observed the slit in the back seat in plain view from their lawful vantage points outside the car, although they did not likewise observe a bag in plain view. At least one of these officers also observed a bulge below the slit or hole indicating there was something deposited therein. Officer Wallace observed defendant Pollard sitting in the back, passenger side of the vehicle. Shortly thereafter, as he was being escorted to the patrol car, defendant Pollard made a voluntary and unsolicited statement to Officer Wallace that there was cocaine in the seat back where the slit was located. Although Officer Williams had already conducted his search and found the drugs before this information could be transmitted to him, this information was obtained by the police lawfully and independent of any information gained by Officer Williams during his actual search of the vehicle. Pollard’s voluntary admission against penal interest regarding the precise location of and nature of the drugs was corroborated adequately by the officer’s observation of Pollard’s location and vantage point within the car, the location of the slit and the presence of the bulge, and therefore provided the police with probable cause to believe cocaine was located within the seat back of the front passenger seat of the automobile. Compare Massachusetts v. Upton, 466 U. S. 727, 731 (104 SC 2085, 80 LE2d 721); Starley v. State, 191 Ga. App. 428, 429 (2) (382 SE2d 167). Thus, the police had probable cause to make an immediate, warrantless search of the automobile seat back for cocaine whether exigency existed and regardless of whether the vehicle was then impounded. Compare Westfelt v. State, 192 Ga. App. 791 (386 SE2d 542); Starley, supra; McKinney v. State, 184 Ga. App. 607, 610 (2) (362 SE2d 65). Accordingly, it was inevitable that the cocaine would have been discovered by the police notwithstanding Officer Williams’ search. “[W]hen . . . the evidence in question would inevitably [or ultimately] have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.” Nix v. Williams, 467 U. S. 431, 444, 448 (104 SC 2501, 81 LE2d 377); Delay v. State, 258 Ga. 229, 231 (3) (367 SE2d 806); compare Mack v. State, 189 Ga. App. 261 (1) (375 SE2d 458) (independent source rule). The trial transcript speaks for itself; there exists a preponderance of the evidence, as a matter of law, establishing that the drugs ultimately or inevitably would have been discovered without reference to police error or misconduct, if any, when Officer Williams searched the vehicle. In this regard, a preponderance of the evidence of record more than shows that the inevitable discovery of the cocaine was “more likely than not.” Bourjaily v. United States, 483 U. S. 171, 176 (107 SC 2775, 97 LE2d 144). We will not reverse the correct ruling of the trial court denying the suppression motion. Ely, supra.

2. Appellant asserts two separate errors in his third enumeration; first, that the trial court erred in denying appellant a directed verdict when the evidence was insufficient as a matter of law after excluding the incriminating statements of co-defendants and, secondly, that the trial court erred in failing to grant his motion to sever.

(a) Appellant alleges there was insufficient evidence to support his conviction of trafficking in cocaine. In support of this argument, he claims inter alia that the jury erroneously considered the pretrial statements of the co-defendants against him. He also argues that he was prejudiced by Officer Wallace’s testimony regarding the statement of co-defendant Walker. As a preface to this statement, Wallace stated that Walker had said he “met with two other defendants.” The prosecutor immediately stopped Officer Wallace and directed his testimony away from any further reference to other defendants. Other than a leading question objection, appellant posed no timely objection and made no timely motion to strike the testimony pertaining to defendant Walker’s statements. Likewise, appellant’s counsel made no timely, specific objection or mistrial motion regarding the admissions attributed to the defendant Pollard. Accordingly, we cannot review these issues as appellant failed to make a timely objection at trial on the specific grounds he attempts to assert on appeal. Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629); compare Mundy v. State, 259 Ga. 634 (5) (385 SE2d 666). Further, the trial court instructed the jury that a statement made by one of the defendants is admissible only against the person who has made any such statement, and then only if it was freely and voluntarily made. See also Isaacs v. State, 259 Ga. 717, 737 (38) (386 SE2d 316).

The trial court instructed the jury as to the legal theories of actual and constructive possession of contraband, and of joint possession thereof. Appellant has not raised a charging error as to this instruction in his enumerations of error. Further, “ ‘ “[w]here drugs are found in the ‘immediate presence’ of the defendant, the jury is authorized to find they are ‘in the constructive possession’ of the accused.” ’ ” Sanders v. State, 199 Ga. App. 671, 672 (2) (405 SE2d 727); accord Singleton v. State, 194 Ga. App. 5, 6 (389 SE2d 496). “Possession can be proven by circumstantial as well as direct evidence.” Norton v. State, 195 Ga. App. 737, 738 (395 SE2d 34). All of the competent evidence adduced at trial, which was admissible against appellant, may be considered to show his constructive or joint possession. See Robinson v. State, 175 Ga. App. 769, 771 (1) (334 SE2d 358). On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was knowingly in either joint or constructive possession of the cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

(b) As appellant raised two separate errors within the same enumeration, we elect not to review his claim of error due to failure to grant severance. Robinson v. State, 200 Ga. App. 515, 518 (2) (408 SE2d 820); West v. Nodvin, 196 Ga. App. 825, 830 (4 c) (397 SE2d 567). However, in the interest of judicial economy, we note that “[w]hen two or more defendants are jointly indicted for a non-capital felony, such defendants may be tried jointly or severally, in the discretion of the trial court. OCGA § 17-8-4. ‘(T)he burden is on the defendant requesting a severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. (Cit.) He must make a clear showing of prejudice and a consequent denial of due process.’ ” Emmett v. State, 199 Ga. App. 650, 652 (4) (405 SE2d 707). The record does not support a finding that the trial court abused its discretion by denying the motion to sever.

3. Appellant asserts the trial court erred in failing to grant its motion for directed verdict of acquittal of trafficking in cocaine, because the indictment averred appellant committed the trafficking offense solely by having in his possession 28 grams or more of cocaine, and the evidence of record establishes that the actual amount of cocaine was less than 28 grams. Appellant asserts a fatal variance occurred which voided the conviction of the greater offense of trafficking.

OCGA § 16-13-31 (a) (1) provides in pertinent part that the offense of trafficking may be committed by being in knowing possession of either 28 grams or more of cocaine, or of any mixture with a purity of 10 percent or more of cocaine. The term “cocaine” as used in this statute is as described in Schedule II (OCGA § 16-13-26), and any substance constituting cocaine under that definition cannot include decocainized coca leaves or extractions which do not contain cocaine or ecgonine. Thus, the statute currently defines, somewhat similar to a previous statutory definition, two methods of committing the crime of trafficking. One method deals with pure cocaine and the other with mixtures containing the statutorily required percentage of cocaine. Compare Bassett v. Lemacks, 258 Ga. 367, 369 (1) (370 SE2d 146); see also Robinson v. State, 256 Ga. 564 (350 SE2d 464).

However, for whatever reason it chose to do so, the grand jury returned a trafficking count within the indictment which specifically averred that trafficking had occurred due to defendant’s possession of 28 grams or more of (pure) cocaine; the count did not include an averment that trafficking occurred due to defendant’s possession of a mixture containing at least the statutorily required percentage of cocaine. That is, the trafficking count of the indictment avers: “The grand jurors ... in the name and behalf of the citizens of Georgia, charge and accuse Lester Ray Walker, Reginald Clay Barnett and Darryl Pollard with the offense of trafficking in cocaine for that the accused, in the county aforesaid, on the 7th day of February, 1991, did unlawfully, knowingly possess and have under his control more that 28 grams of cocaine, a controlled substance in violation of the Georgia Controlled Substance Act.”

The uncontroverted testimony of the crime lab chemist established that the substance analyzed had a total mixture weight of 33.9 grams and was 82.5 percent cocaine. Accordingly, the total weight of pure cocaine found in the mixture was only 27.9675 grams; less than the 28 grams averred in the trafficking count of the indictment. Moreover, the substance was weighed at the beginning before any was extracted for testing.

This case is distinguishable from cases where the trafficking count in essence averred trafficking was committed by both means provided by statute, but only one means of offense commission was proven at trial. See e.g., Partridge v. State, 187 Ga. App. 325 (370 SE2d 173) (indictment averred actual possession of 400 grams of cocaine and a mixture with a purity of more than 10 percent cocaine — evidence showed only 319 grams of pure cocaine). We recognized that “ ‘when an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence.’ ” (Emphasis supplied.) Mitchell v. State, 195 Ga. App. 255, 260 (5) (393 SE2d 274); accord Gordon v. State, 199 Ga. App. 704 (406 SE2d 110); compare Walker v. State, 146 Ga. App. 237, 240 (1 b) (246 SE2d 206). But this is not the situation before us. In Lumpkin v. State, 249 Ga. 834, 836 (2) (295 SE2d 86), although finding the facts before them distinguishable, the Supreme Court stated: “In Walker [v. State, supra], the Court of Appeals held that it was reversible error ‘to charge that a crime may be committed by either of two methods, when the indictment charges it was committed by one specific method, and then charge the jury that they may convict the defendant if they find he committed the offense by a method other than the specific type charged in the indictment.’ [Cit.] The court there correctly held that where no remedial instructions were given, the charge was erroneous as a matter of law because of a fatal variance between the proof at trial and the indictment returned by the grand jury.” (Emphasis supplied.) A similar offending charge without benefit of subsequent remedial instructions was given in this case.

Moreover, although the operative facts pertaining to the content of the indictment are not fully developed in Aguero v. State, 169 Ga. App. 462, 466 (3) (313 SE2d 735), it appears that the indictment also averred that appellant was in possession of the requisite mixture of cocaine, as the opinion, after discussing the then statutory requirement, expressly states there was no variance (apparently fatal or otherwise) between the amount alleged in the indictment and the amount proved possessed. Also, Agüero finds controlling the precedent of Belcher v. State, 161 Ga. App. 442, 443 (1) (288 SE2d 299) where it was observed that “[t]he offense ‘Trafficking in Cocaine’ as specifically charged by the indictment is committed whether cocaine is delivered in a pure form or whether the cocaine is present in a mixture containing other substances.” (Emphasis supplied.) Therefore, it is apparent neither of these cases involves an averment charging only one method or means of offense commission. (Note: If not factually distinguishable, we would have serious reservations as to the continued viability of Agüero and Belcher, supra, to' the extent they might be interpreted as conflicting with this opinion.)

In Ross v. State, 195 Ga. App. 624 (1 b) (394 SE2d 418), this court was confronted with a count of aggravated sodomy which averred that appellant had committed the offense in one manner and in one manner only. The evidence failed to prove that the offense was committed in the manner averred, although it was established the offense would have been committed in another statutory manner not averred. This court noted the facts in Ross were distinguishable from those cases where an indictment avers several different manners in which the offense was committed and there exists evidence sufficient to support a finding of guilt as to one (but not all) of these averred manners, and held: “ ‘ “If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. . . . [N]o averment in an indictment can be rejected as surplus-age which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance. (Cits.) ... To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance. . . . (Cits.)” ’ [Cits.]” Accord Feagin v. State, 198 Ga. App. 460 (2) (402 SE2d 80).

Decided June 8, 1992.

Stewart & Holmes, J. Calloway Holmes, Jr., for appellant.

William A. Foster III, District Attorney, Donald N. Wilson, Assistant District Attorney, for appellee.

As only one means of offense commission was averred in the trafficking count of the grand jury’s indictment and as the evidence at trial was insufficient to prove that trafficking had been committed in that manner, a fatal variance occurred within the meaning of Lumpkin, supra, Ross, supra and Feagin, supra. Compare Fulford v. State, 50 Ga. 591, 593; McBride v. State, 199 Ga. App. 527, 529 (1) (405 SE2d 345); Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532). However, as the evidence was sufficient, under a Jackson v. Virginia standard “ ‘to support appellant’s conviction for possession of cocaine, the case is remanded with direction that a conviction and sentence be entered for that offense.’ ” Hogan, supra.

Judgment vacated and case remanded with direction.

Beasley and Andrews, JJ., concur.


text:
    A92A0263.
    CARTER et al. v. MYERS et al.
    (419 SE2d 747)
   Cooper, Judge.

This appeal arises out of a dental malpractice action filed by appellants. Appellants appeal from the trial court’s grant of partial summary judgment to defendants on the issue of punitive damages.

Appellants, husband and wife, filed a verified complaint against Dr. Walter Myers (“Dr. Myers”) and Dr. Abe Shuster (“Dr. Shuster.”) The complaint alleged in relevant part: Dr. Shuster performed dental surgery on Mrs. Henrietta Carter on March 25, 1987, and on March 30, 1987, Mrs. Carter telephoned Dr. Shuster’s office because she was experiencing pain and swelling in the area of the surgery. Dr. Shuster’s office referred Mrs. Carter to Dr. Myers. Mrs. Carter explained her symptoms to Dr. Myers, who then examined Mrs. Carter for approximately five minutes and prescribed Betadine mouthwash. The following day, Mrs. Carter’s symptoms became worse, and she went to see Dr. Shuster who examined her mouth and found nothing wrong. On April 2, 1987, Mrs. Carter’s condition worsened even more, and she again went to Dr. Shuster who again found nothing wrong but prescribed some medication for her. On April 4, 1987, Mrs. Carter sought emergency treatment, and on April 6, 1987 Mrs. Carter was hospitalized for emergency surgery due to an infection in her mouth and throat which had become life threatening. In addition to the special damages prayed for, appellants sought damages for pain and suffering, loss of consortium, punitive damages, costs of litigation, and attorney fees. Drs. Shuster and Myers, respectively, filed motions for partial summary judgment on the issue of punitive damages. Following a hearing, the trial court granted both motions, and appellants appeal that ruling. Subsequent to the docketing of this case in this court, the appeal was withdrawn as to Dr. Shuster but not as to Dr. Myers, appellee herein.

1. Appellants contend in their first enumeration of error that the trial court erred in not admitting the deposition of Mrs. Carter into evidence at the hearing on the motions for summary judgment. It is undisputed that the deposition of Mrs. Carter was not on file at the time of the hearing on appellee’s motion for summary judgment. Since the deposition was not filed, it was not a matter of record for the trial judge’s consideration in ruling on the motion for summary judgment. See Knight v. Bryant-Durham Elec. Co., 169 Ga. App. 502, 503 (313 SE2d 758) (1984). Appellants’ argument that the trial court should have allowed Mrs. Carter’s deposition to be admitted because it allowed another unfiled deposition to be admitted is without merit. The record reflects that a written request was made to file the original deposition of Dr. C. Ray Bennett. At the hearing on the motion for summary judgment, the trial court was informed that the original deposition had not been filed due to a mistaken belief that the court reporter in the State of Tennessee, where the deposition was taken, would provide a sealed original. The trial judge exercised his discretion and allowed the deposition of Dr. Bennett to be included as part of the record. We also note that appellants’ counsel expressed no. opposition to the consideration of Dr. Bennett’s deposition and relied on matters in the deposition during his argument to the court. In contrast, appellants made no written request to file the deposition of Mrs. Carter, and appellee voiced an objection to the consideration of that deposition at the hearing. Accordingly, we find no error in the trial court’s refusal to allow the deposition of Mrs. Carter to be considered as evidence.

2. Appellants next contend that the trial court erred in ruling that several pages of notes attached to appellants’ verified complaint did not constitute an affidavit for consideration in opposition to appellee’s motion for summary judgment. Attached to appellants’ verified complaint was a document captioned “Notes Regarding Complaint of Mrs. Henrietta Carter — Prepared by Attorney Gordon L. Joyner in anticipation of and preparation for trial of Mrs. Carter’s dental malpractice claims against Dr. Walter L. Myers and Dr. Abe Shuster. 3-13-89.” Appellants’ complaint, verified by Mrs. Carter, states that “the allegations and statements set forth in the foregoing Complaint and the ‘Notes Regarding Complaint of Mrs. Henrietta Carter’ : . . are factual, true, and correct.” Appellants argue that the notes satisfied all legal requirements for an affidavit and should have been considered as such. “ ‘ “In order to make an affidavit there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.” [Cit.]’ [Cit.]” D’Zesati v. Poole, 174 Ga. App. 142, 143 (329 SE2d 280) (1985). It is clear from the face of the “Notes” that no oath had been administered to Mrs. Carter prior to her approving the notes as prepared by her attorney. “In the absence of [a] valid [jurat], the [“Notes”] cannot be deemed [an affidavit.] [Cits.]” Hill-Everett v. Jones, 197 Ga. App. 872 (1) (399 SE2d 739) (1990). Nor can we conclude that Mrs. Carter’s subsequent execution of the verification to the complaint served to convert the “Notes” into an affidavit. Accordingly, we find no error with the trial court’s refusal to consider the “Notes” as an affidavit.

3. Appellants’ argument that the trial court applied the wrong punitive damages standard is without merit. In their respective briefs in support of their motions for summary judgment, both movants argued that punitive damages were not appropriate under the standard set forth in OCGA § 51-12-5.1; which requires clear and convincing evidence of willful misconduct or want of care. However, appellants’ counsel correctly pointed out during the summary judgment hearing that appellants’ cause of action arose prior to July 1, 1987; therefore, the correct standard for awarding punitive damages was that found in OCGA § 51-12-5, which allows punitive damages to be recovered where there is evidence of aggravating circumstances in either the act or the intention. “ ‘It is well established that [the language in OCGA § 51-12-5] means such damages cannot be imposed in any case unless there is willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. The latter expression (conscious indifference to consequences) relates to an intentional disregard of the rights of another, knowingly or willfully disregarding such rights.’ (Citations and punctuation omitted.) [Cit.]” Read v. Benedict, 200 Ga. App. 4 (2) (406 SE2d 488) (1991). The trial court’s order reflects that the correct standard was used in ruling on the motions for summary judgment.

Decided June 8, 1992.

Joyner & Joyner, Gordon L. Joyner, for appellants.

Webb, Carlock, Copeland, Sender & Stair, Douglas W. Smith, Paul R. Vancil, Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Marvin A. Delvin, for appellees.

4. In their final enumeration of error, appellants contend that the trial court erred granting appellee’s partial motion for summary judgment. “ ‘Punitive damages cannot be imposed without a finding of some form of culpable conduct. Negligence, even gross negligence, is inadequate to support a punitive damage award. (Cit.)’ [Cit.]” Morales v. Webb, 200 Ga. App. 788, 790 (409 SE2d 572) (1991). “There was no evidence of an ‘intentional disregard of the rights’ of [Mrs. Carter], nor was there any evidence that [appellee] ‘knowingly or wilfully disregarded such rights’ so as to authorize a finding of conscious indifference to the consequences. [Cit.]” Morales, supra at 791.

For the foregoing reasons, we find no error with the trial court’s grant of partial summary judgment to appellee.

Judgment affirmed.

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


text:
    A92A0270.
    ABELT v. NELSON et al.
    (419 SE2d 749)
   Cooper, Judge.

We granted appellant’s application for interlocutory appeal to consider the trial court’s denial of appellant’s motion for summary judgment based on appellees’ failure to perfect service on appellant within the applicable statute of limitation.

Appellees were charged with simple battery, obstruction of a police officer and criminal trespass in an incident in which appellant, a security guard, removed appellees from a roller skating rink. Appellees were acquitted of all charges in a jury trial and subsequently brought the instant action against appellant for assault, false arrest, false imprisonment and malicious prosecution, filing their complaint on October 9, 1989, one day prior to the expiration of the statute of limitation on the assault, false arrest and false imprisonment claims. However, appellant was not served with a copy of the complaint until August 2, 1990 in North Carolina, ten months after the expiration of the statute of limitation on the assault, false arrest and false imprisonment claims and over four months after the expiration of the statute of limitation on the malicious prosecution claim. The record shows that appellant lived at a Coweta County address until one month before the filing of the complaint and that although appellant left no forwarding address, his mother and other relatives continued to live next door to appellant’s Coweta County address and were never contacted concerning appellant’s whereabouts. Appellant moved for summary judgment, urging the trial court to dismiss appellees’ complaint on the ground that appellees failed to exercise due diligence in perfecting service within the statute of limitation. After a hearing, the trial court denied appellant’s motion, and this appeal followed.

“ ‘The complaint was filed near the expiration of the period provided by the applicable statute of limitation but service of process did not occur within the five days allowed by (OCGA § 9-11-4 (c)) . . . nor within the period of the statute of limitation. Whether [appellant’s motion for summary judgment] to dismiss the complaint as barred by the statute of limitation should be granted is determined by whether [appellees have] shown that [they] acted in a reasonable and diligent manner in attempting to assure that a proper service was made as quickly as possible.’ [Appellees] must carry the burden to show diligent service. [Cits.] Further, ‘the trial court’s exercise of . . . discretion in these matters will not be overturned on appeal, unless it has been actually abused and cannot be supported as a matter of law.’ [Cits.]” Walker v. Hoover, 191 Ga. App. 859, 860 (383 SE2d 208) (1989).

In an effort to demonstrate that appellees exercised due diligence in serving appellant, they submitted the affidavit of Wayne Owens (“Owens”), an employee of the law firm representing appellees, who described his attempts to serve appellant. Owens averred that in December 1990, he received a marshal’s entry of service which indicated that appellant could not be located and was not served. We will assume, giving appellees the benefit of all reasonable inferences, that Owens intended to reference a December 1989 entry of service and not a December 1990 entry, as appellant acknowledges service was perfected on August 2, 1990. Owens stated that upon receipt of the December entry of service, he contacted an investigator to obtain assistance in locating appellant and that during December and January 1990, the investigator’s efforts were unsuccessful. On January 10, 1990, Owens then contacted the sheriff, whose investigation revealed that appellant’s former residence was vacant. During January and February, Owens stated that he contacted appellant’s former employer, the Atlanta Police Department, and was told that appellant no longer worked there. Owens was given appellant’s Coweta County address and a telephone number which Owens averred he called on “numerous occasions” but discovered that “the number was not in working order.” Owens obtained a telephone number for “M. Abelt” which he began calling in February of 1990 to inquire about appellant, but Owens “was never able to talk with anyone at the number.” He continued to call the number until June to no avail. In April 1990, Owens wrote to appellant at the Coweta County address by certified mail and requested that appellant contact him as soon as possible. The certified receipt was signed by someone at the address on April 5, 1990. Finally, Owens averred that another investigator who was retained in April to locate appellant found appellant in North Carolina in late July 1990, and on July 20, the complaint and summons were sent to the Surry County Sheriff’s Department in North Carolina.

In their brief to the trial court, appellees contended appellant eluded service and that they contacted persons believed to be relatives of appellant to discover his whereabouts; however, there is no support for these assertions in the record before this court, and appellees do not contend that any such evidence has been omitted from the record on appeal. To the contrary, appellant averred in an affidavit submitted in support of his summary judgment motion that his mother and other relatives who resided next door to his former residence in Coweta County were never contacted by anyone. Appellees also contend in their brief that service was first attempted contemporaneously with the filing of the complaint; however, the record contains no entry of service evidencing service at that time or in December 1989 as claimed by Owens. The record does show that no attempts were made to locate appellant until two months after the expiration of the statute of limitation and that Owens squandered much of the following months calling invalid telephone numbers and concentrating on a residence which the appellees’ own evidence revealed was vacated at least as of January 1990. Moreover, without additional evidence, the fact that someone signed for the certified letter at appellant’s former residence and that appellant moved out of state one month prior to the expiration of the statute of limitation do not in and of themselves establish that appellant intended to evade service.

It is true that the trial court has wide discretion in the dismissal of complaints for failure of the plaintiff to perfect service in a timely manner. Walker, supra; Dunson v. Golden, 199 Ga. App. 513, 514 (405 SE2d 332) (1991). However, appellees’ lassitude cannot be considered due diligence. We find, therefore, that the trial court’s determination constitutes an abuse of discretion which cannot be supported as a matter of law.

Decided June 8, 1992.

Chambers, Mabry, McClelland & Brooks, James T. Budd, for appellant.

Giddens, Davidson, Mitchell & Eaton, Earl A. Davidson, for appellees.

Judgment reversed.

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


text:
    A92A0308.
    HUSSEY, GAY & BELL v. GEORGIA PORTS AUTHORITY. CLAY-RIC, INC. v. GEORGIA PORTS AUTHORITY.
    A92A0365.
    (420 SE2d 50)
   Cooper, Judge.

These two appeals mark the second and third appearances of cases arising out of a 1982 contract between Georgia Ports Authority (“GPA”) and Pinehurst Corporation (“Pinehurst”) for the construction of a warehouse extension at GPA’s ocean terminal facility. The construction was to be performed by Pinehurst pursuant to plans and specifications prepared by the architectural engineering firm of Hussey, Gay & Bell (“HG&B”). The plans required that the warehouse have a paved floor which was installed by Clay-Ric, Inc. (“Clay-Ric”) under a subcontract between Clay-Ric and Pinehurst. After installation, the floor became wet due to work being performed on the job site by Pinehurst and other subcontractors and did not pass the load test performed by HG&B. At Pinehurst’s direction, Clay-Ric repaved the floor and incurred costs in excess of $40,000. However, Pinehurst did not pay Clay-Ric for the repaving work, and Clay-Ric subsequently filed a four-count complaint against Pinehurst, HG&B and GPA to recover the amounts owed for the repaving work. Clay-Ric contended that the repaving work was beyond the scope of its original contract with Pinehurst and that it performed the repair work because each of the named defendants represented to Clay-Ric that it would be fully compensated for the work. GPA answered the complaint, denying that it had made any such representations to ClayRic, and filed a third-party complaint against Safeco Insurance Company of America based on the payment bond given by Pinehurst pursuant to OCGA § 36-82-101. GPA subsequently amended its complaint to add as a defense the failure of Clay-Ric to satisfy the bonding requirements for public works contracts with a public body and moved for summary judgment. The trial court granted GPA’s motion for summary judgment. In Case Nos. A92A0308 and A92A0365, HG&B and Clay-Ric, respectively, appeal from the grant of summary judgment to GPA.

Case No. A92A0365

1. The crux of Clay-Ric’s complaint against GPA is that GPA directly and through its agents authorized the paving repair work and represented that Clay-Ric would be paid for the work. “The burden is on the party who moves for summary judgment to produce evidence which conclusively negates the essential elements entitling the respondent to recover under any theory that may be drawn fairly from the pleadings and the evidence. [Cit.]” Dairyland Ins. Co. v. Gay, 193 Ga. App. 65, 67 (386 SE2d 909) (1989). In support of its motion for summary judgment, GPA submitted the affidavit of its Director of Engineering and Construction, who stated therein that Clay-Ric was a subcontractor of Pinehurst; that GPA never had a contract with ClayRic for any of the work covered by GPA’s contract with Pinehurst or for any extra work related to that contract; that GPA never authorized any contract with Clay-Ric; that contrary to the allegations in Clay-Ric’s complaint, GPA neither authorized the paving repair work nor represented that GPA would pay Clay-Ric for the repair work; and that HG&B had no authority to contract with Clay-Ric on GPA’s behalf. “ ‘Once the moving party for summary judgment has carried its burden of making out a prima facie case, the burden shifts and the opposite party must come forward with rebuttal evidence or suffer judgment against him. [Cits.]’ [Cit.]” Powell v. Sadlier, 195 Ga. App. 680, 681 (394 SE2d 614) (1990). In opposition to GPA’s motion for summary judgment, Clay-Ric submitted the affidavit of the president of Clay-Ric who stated that he was instructed by representatives of HG&B that the repair work was to be paid for by GPA. Clay-Ric also submitted the deposition testimony of a Pinehurst employee who stated that one of HG&B’s engineers committed to Clay-Ric’s representative that if Clay-Ric performed the work, he would make sure Clay-Ric was paid for it. Clay-Ric presented no evidence which contradicted GPA’s contention that GPA did not authorize the repair work or represent that it would pay Clay-Ric for the repairs. However, Clay-Ric argues that genuine issues of fact exist as to whether HG&B had authority to contract with Clay-Ric for the extra work on behalf of GPA. “ ‘ “The bare assertion or denial of the existence of an agency relationship is a statement of fact when made by one of the purported parties to the relationship; but when made by an outsider, bare assertions or denials are merely conclusions of law.” [Cits.] “The affidavit . . . denying the existence of agency must be received as evidence of a fact, which cannot be overcome by conclusionary affidavits . . .” [Cit.]’ [Cit.]” Coley Elec. Supply v. Colonial Eggs of Alma, 165 Ga. App. 108 (2) (299 SE2d 165) (1983). It is undisputed that HG&B was the designated engineer charged with overseeing the warehouse construction project for GPA. However, HG&B’s role as the engineer did not automatically confer upon HG&B the power to enter into contracts on behalf of GPA. See Cannon v. Hunt, 113 Ga. 501, 505-506 (38 SE 983) (1901). We conclude that the affidavit of GPA’s Director of Engineering constitutes factual evidence that HG&B had no such authority to authorize or contract for any additional work on behalf of GPA and that the affidavits and deposition testimony submitted by Clay-Ric were insufficient to overcome that evidence. See Coley, supra at 110. Nor do we find that any question of fact exists as to whether HG&B had apparent authority to contract for GPA. There is no evidence that GPA held out HG&B as being any more than the engineer charged with overseeing the project. “[A]n apparent agency relationship binding upon the principal of the alleged relationship is proven by the principal’s conduct in holding out the alleged agent as such. An apparent agency relationship is not proven in an action against a principal solely by proof of the conduct of the alleged agent. [Cits.]” Id.

2. Clay-Ric also contends that the trial court erred in not finding that GPA is liable under implied contract theories of quantum meruit and unjust enrichment. “Under Georgia law, a materialman or subcontractor may not recover against an owner or general contractor with whom it has no contractual relationship, based on the theory of unjust enrichment or implied contract; rather, it is limited to the statutory remedies provided by Georgia’s lien statute, [OCGA § 44-14-360 et seq.] [Cits.]” P. P. G. Indus. v. Hayes Constr. Co., 162 Ga. App. 151 (1) (290 SE2d 347) (1982). Clay-Ric’s attempt to distinguish its case from P. P. G. is unpersuasive. Clay-Ric as the subcontractor had no contractual relationship with GPA, and as we concluded in Division 1, HG&B had no authority to contract on behalf of GPA.

3. Clay-Ric’s argument that GPA’s acceptance of the repair work without compensating Clay-Ric constitutes an unlawful taking of public property without just and adequate compensation is without merit. “The constitutional provisions prohibiting the state or subdivisions from taking private property for a public purpose without just and adequate compensation are applicable only when the acts constitute a ‘taking’ of the property within the meaning of the law. [Cits.]” Bray v. Houston County, 180 Ga. App. 166, 167 (348 SE2d 709) (1986). GPA accepted the work from Pinehurst pursuant to the construction contract. We cannot conclude that Pinehurst’s failure to pay Clay-Ric under the subcontract agreement constitutes a taking of property within the meaning of the law.

Case No. A92A0308

4. GPA has filed a motion to dismiss this appeal brought by HG&B on the grounds that HG&B lacks standing to appeal the grant of summary judgment to GPA. “ ‘(A) co-defendant does not have any standing to appeal an order granting summary judgment in favor of another defendant when (his) right has not been adversely affected thereby. (Cit.)’ [Cits.]” Shackelford v. Green, 180 Ga. App. 617, 619 (349 SE2d 781) (1986). “Only if the co-defendants are sued as joint tort-feasors does the grant of summary judgment as to one potentially affect the other’s right of contribution. Therefore, it is only in this situation that the co-defendant is deemed a losing party and therefore has standing to appeal the grant of summary judgment to another co-defendant. [Cit.]” C. W. Matthews Contracting Co. v. Studard, 201 Ga. App. 741 (2) (412 SE2d 539) (1991). “Defendants are joint tort-feasors when their separate and distinct acts of negligence concur to proximately produce an injury. [Cits.]’ [Cit.]” Shackelford, supra at 618. GPA argues that Clay-Ric’s theory of liability as to GPA is one of vicarious liability for the acts of HG&B and Pinehurst. However, Clay-Ric alleged in its complaint that each of the defendants authorized the repair work and represented that Clay-Ric would be paid for the work and that GPA made false representations to Clay-Ric directly and through its agent, HG&B. In light of those allegations, we cannot conclude that Clay-Ric’s only theory of liability as to GPA is that GPA is vicariously liable for the acts of HG&B. Accordingly, we find that HG&B has standing to maintain the appeal.

5. HG&B contends in its sole enumeration of error, that the trial court erred in holding that Clay-Ric’s claims were barred due to ClayRic’s failure to obtain payment and performance bonds because genuine issues of fact remain regarding whether Clay-Ric was a contractor or a subcontractor. Our examination of the trial court’s order reveals no such holding encompassed within that order. “ ‘(I)ssues raised . . . (which are) not . . . encompassed within the final order from which the appeal has been taken, . . . may not. . . (b)e raise(d) (on appeal), either in enumerations of error or through arguments in briefs of counsel. (Cits.) [Cit.]’ [Cit.]” Costanzo v. Jones, 200 Ga. App. 806 (3) (409 SE2d 686) (1991).

Decided June 8, 1992.

Brannen, Searcy & Smith, Joseph J. Berrigan, for appellant (case no. A92A0308).

Edenfield, Stone & Cox, Gerald M. Edenfield, Susan W. Cox, James B. Rutledge III, E. Lee Davis, Jr., for appellant (case no. A92A0365).

Michael J. Bowers, Attorney General, George H. Chamlee, for appellee.

Judgments affirmed.

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

       In the first appearance of this case, Safeco Ins. Co. of America v. Clay-Ric, Inc., 191 Ga. App. 592 (383 SE2d 138) (1989), we held that the action against the bonding company was barred by the applicable statute of limitation.