author: Ruffin, Judge. Beasley, Chief Judge,

text:
    A95A2693.
    In the Interest of J. P., a child.
    (470 SE2d 706)
   Ruffin, Judge.

Anthony Pride appeals from the juvenile court’s final order in this deprivation proceeding. He argues that the court’s order, which returned his daughter J. P. to him, should be reversed and remanded with direction that the court dismiss the deprivation petition initially filed by the Richmond County Department of Family & Children Services (“DFACS”). For reasons which follow, we dismiss the appeal.

On March 20, 1995, DFACS took custody of Pride’s daughter. DFACS did so following the conversation of one of its caseworkers with Dr. Barnard, a psychiatrist who was treating Pride. Dr. Barnard had treated Pride for a host of psychological problems, including substance abuse, paranoia, and post-traumatic stress disorder. Following the conversation, DFACS filed an affidavit by the caseworker and sought emergency custody of the child. After reciting the various psychological problems from which Pride suffered, the affidavit stated that Pride “reported [to Dr. Barnard] that he is afraid that he will hurt his daughter as he gets angry at her for crying and puts the child in a room and shuts the door to keep himself from hurting her.” The petition stated that according to Dr. Barnard, “with Mr. Pride’s condition, there are suicidal, homicidal and violent tendencies that should not be ignored.”

A temporary custody hearing was held on March 29, 1995, but the hearing was not transcribed. On May 31, the juvenile court heard evidence on the deprivation petition, appointed a guardian ad litem, and continued the case until June 23, 1995. At that time, Dr. Barnard testified that based on his conversations with Pride and the results of neuropsychological tests Pride had taken, he felt it was his duty to call DFACS. Although he did not think that Pride presented an immediate danger to his daughter, Dr. Barnard did not disavow the affidavit; rather, he stated that “it had been rather compressed, that it needed some time and space in there. It made it all of a sudden look like . . . [Pride] was a monster. If you stretch out his history you’ll see that Mr. Pride has had problems over time.” Dr. Barnard also confirmed the statement in the affidavit concerning Pride’s fear of hurting his daughter.

1‘. The Department of Human Resources (“the Department”) contends that Pride’s appeal should be dismissed because he failed to make an application for discretionary appeal; the Department argues that under OCGA § 5-6-35 (a) (2), all appeals concerning a change in child custody must be made by application. We disagree.

In In the Interest of D. S., 212 Ga. App. 203 (441 SE2d 412) (1994), we granted a discretionary appeal “to review the trial court’s order placing . . . custody of the . . . children in the Department of Family & Children Services. ...” But in In the Interest of A. L. L., 211 Ga. App. 767 (1) (440 SE2d 517) (1994), decided the same term as In the Interest of D. S., we specifically addressed the jurisdiction issue and found that appeals from a deprivation proceeding do not involve child custody and therefore do not require an application to appeal. We held that “[a] deprivation proceeding is to determine whether the child is a deprived child. OCGA § 15-11-33 (a). If the child is found to be deprived, the court is authorized to allow the child to remain with his parents, or other custodian, or transfer temporary legal custody to another individual or agency. OCGA § 15-11-34 (a). Although the juvenile court is authorized to determine who will exercise custody over a ‘deprived’ child, the proceeding itself is to determine whether the child is deprived and is not an action brought to decide custody matters concerning the child. . . . Anderson v. Sanford, 198 Ga. App. 410, 411 (401 SE2d 604) (1991).” (Punctuation and emphasis omitted.) In the Interest of A. L. L., supra. We held that an application for discretionary appeal was appropriate in In the Interest of L. W., 216 Ga. App. 222 (453 SE2d 808) (1995), because although the case had begun as a deprivation proceeding, “custody orders arising out of such proceedings are subject to the discretionary appeal procedures of OCGA § 5-6-35 (a) (2). [Cits.] We therefore reject appellant’s assertion that we must look at the nature of the underlying proceeding rather than the substance of the order complained of in determining whether the discretionary appeal procedures apply. Thus, orders dealing with child custody are subject to the discretionary appeal procedures of OCGA § 5-6-35 (a) (2); [cit.].” We note that this did not conflict with our holding in In the Interest of A. L. L., supra at 769 (5), because the appellant in A. L. L. did not enumerate as error the order of temporary custody to his former wife, but rather, the juvenile court’s determination that the children were deprived. Pretermitting whether an application was the proper vehicle for appeal in In the Interest of D. S., both the underlying proceeding and the order complained of in the instant case address whether Pride’s child was deprived, not custody. Accordingly, under In the Interest of A. L. L., supra, and In the Interest of L. W., supra, we have jurisdiction to consider this appeal.

2. Pride contends that the deprivation petition should have been dismissed because, in violation of OCGA § 15-11-21, there is no evidence that after J. P.’s removal from his home on March 17, an immediate investigation commenced which “sought a fuller explanation from Dr. Bernard [sic].” We disagree.

OCGA § 15-11-21 (a) provides that “ [i]f a child is brought before the court or delivered to a detention or shelter care facility designated by the court, the intake or other authorized officer of the court shall immediately make an investigation and release the child unless it appears that his detention or shelter care is warranted or required under Code Section 15-11-18.” Under OCGA § 15-11-18, “[a] child taken into custody shall not be detained or placed in shelter care prior to the hearing on the petition unless: (1) [h] is detention or care is required to protect the person or property of others or of the child. . . .” In this case, the caseworker’s conversation with Dr. Barnard revealed Pride’s serious psychological problems and his fear that he might hurt his daughter. It is clear that detention of J. P. was warranted under OCGA § 15-11-18 in order to protect the child. In addition, the order for shelter dated March 20, 1995, states that “the court from finding information brought before it that continuation in the home at this time would be contrary to the welfare of said [child] and it is necessary for the protection of said [child] that . . . she be placed in shelter care. . . .” (Emphasis supplied.) Although we find that in these circumstances, the acquisition of information by the court was an investigation under OCGA § 15-11-21 (a), it is not clear the investigation was done “immediately” as the statute requires.

However, “[t]here is no transcript or record of the [March 29 temporary custody] hearing [or the May 31 deprivation hearing], nor is there any indication that appellant raised an objection to noncompliance with the [alleged lack of an immediate investigation] at the . . . hearing [s]. Although the procedural requirements of the juvenile court code have been held to be mandatory, such requirements can be waived. [Cit.] In this case appellant apparently appeared at [both] hearing[s], but failed to properly raise the alleged procedural defect, thereby waiving [his] objection. [Cits.]” Irvin v. Dept. of Human Resources, 159 Ga. App. 101, 102 (282 SE2d 664) (1981). See also In re M. E. H, 180 Ga. App. 591 (349 SE2d 814) (1986).

3. Pride also contends the juvenile court erred in failing to dismiss the deprivation petition under OCGA § 15-11-33 once it found that J. P. should be returned to her father. That Code section provides that “[a]fter hearing the evidence on any petition alleging . . . deprivation, the court shall make and file its findings as to whether the child is a deprived child. ... If the court finds that the child is not a deprived child . . ., it shall dismiss the petition and order the child discharged. . . .” After ordering that J. P. be returned to Pride, the court’s order states that “[o]ut of an abundance of caution, and not based on any finding that Anthony Pride has ever done any harm to the child, the Court is conditioning the return of the child on the following terms. . . .” The conditions included that Pride continue to undergo counseling, that the child be placed in licensed daycare at DFACS’s expense, and that DFACS be allowed to visit Pride’s home as often as it determined necessary to monitor the child’s status. Finally the court ordered that Pride’s name be removed from the State’s child abuse registry.

At the outset, we note that there is nothing in the record showing that Pride moved for dismissal of the petition. Furthermore, in light of the fact that the court’s order specifically states that the conditions would remain in effect until January 5, 1996, any argument about the court’s authority to impose the conditions is now moot. Accordingly, the appeal is hereby dismissed.

Appeal dismissed.

Pope, P. J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur in the judgment dismissing the appeal, but it is because there should have been an application for discretionary appeal as required by OCGA § 5-6-35 (a) (2). I acknowledge that the appeal is moot in that the contested conditions in the order appealed from have expired, but we would not reach that issue if it were recognized that the proper procedure was not followed.

OCGA § 5-6-35 (a) (2) states that appeals from “domestic relations cases” shall be by application. This expressly means even those which are from judgments or orders in cases “other” than divorce, alimony, and child custody. Whether we look at the deprivation petition which instituted the action and sought a change of the child’s custody from her father to DFACS temporarily, or at the final order returning custody to the father after having given it to DFACS in the interim, it is not only a child custody case but it also fits into the broad category of domestic relations cases. Aspects of the relationship between the father and the daughter being adjudicated by the trial court involved domestic relations by definition.

As to it being a custody case, alleged deprivation was merely the cause which was asserted as the driving force warranting an interruption of the father’s custody. The primary and initial concern, of course, is whether the child is “deprived” within the meaning ascribed to the word by OCGA § 15-11-2 (8). That is what this Court recognized in Anderson v. Sanford, 198 Ga. App. 410, 411 (401 SE2d 604) (1991), citing OCGA § 15-11-33 (a). But that is only one-half of the issues in petitions seeking relief for deprived children. The other half is what to do about it. OCGA § 15-11-34 sets out the variety of actions which the court may take to assure the protection and welfare of the child. Each involves custody, with or without conditions.

There is good reason for such cases to be included in the discretionary category. A child’s well-being is at stake, and the application, which must be filed in this Court within 30 days of the order complained of (OCGA § 5-6-35 (d)), gets an immediate review by this Court. If there is a possibility of reversible error demonstrated by the application and relevant parts of the record submitted as exhibits (OCGA § 5-6-35 (b) & (c)), the application can be granted and the appeal can be expedited so that possible interim harm to the child will be minimized. In fact, although it is not done currently, the Court can in its order granting the appeal provide that the preparation of the record by the trial court be expedited.

If a child is not where he or she ought to be, the matter must be set right as soon as possible; otherwise, the judicial process itself contributes to harm. If, on the other hand, it appears upon review of the application that there is no reason for disturbing the trial court’s order or judgment, quick disposition can be made and the apprehensions and instability which attend the inconclusiveness of such actions while pending will be dissipated. There is no supersedeas in such matters except in the discretion of the judge. OCGA § 15-11-64.

Direct appeals are elongated. This Court is not notified when a notice of appeal, which also is to be filed within 30 days of the order or judgment complained of (OCGA § 5-6-38 (a)), is filed in the trial court. The transcript is to be filed within 30 days of the notice of appeal or appellee’s designation, but this period can be extended if “necessary” by the trial court. Although the record is to be prepared and transmitted for docketing in the appellate court within five days thereafter (OCGA § 5-6-43 (a)), that is often not the case due to the heavy caseloads in the trial court and the inadequacy of resources to prepare the records. This Court has no control over such delays because it is unaware that an appeal has been taken and does not become aware of it until the record is received for docketing of the case. That could be many months after the entry of the order appealed from. Although the Court can sua sponte, and mostly does, expedite child custody cases from docketing forward, it is apparent that there has already been potentially damaging delay. Even if the order or judgment is ultimately affirmed, lengthy inconclusiveness leaves the status of the child uncertain.

This case illustrates some of the problem of delay occasioned by the direct appeal track for such cases. The order with the six-month conditions complained of was entered July 7, 1995, without supersedeas, and the notice of appeal was filed on August 3. There is no motion to expedite the case, and it was not expedited sua sponte in accordance with the Court’s policy. Now it is moot.

It is true that the applications which are granted must go through the direct appeal process so that these cases suffer the same delays from the date of docketing as though they were direct appeals. For these, the application process adds a maximum of 40 days. OCGA § 5-6-35 (d) through (g). But the Court is alerted at a much earlier stage that the case involves a child’s ongoing welfare and can take steps to assure early resolution, such as by ordering strict compliance with OCGA § 5-6-43 for these sensitive cases.

Another reason the legislature may have had for including such cases within the discretionary appeal categories is that decisions in domestic relations cases are largely discretionary and thus not subject to reversal on appeal absent abuse. See, e.g., Villenueve v. Richbourg, 217 Ga. App. 354 (457 SE2d 821) (1995); In the Interest of S. D. J., 215 Ga. App. 779 (452 SE2d 155) (1994) and cits.

Although the Court in In the Interest of A. L. L., 211 Ga. App. 767 (1) (440 SE2d 517) (1994), ruled that it had jurisdiction of a father’s direct appeal from, an order which found children deprived and placed temporary custody in their mother, it did so on the authority of Anderson, but Anderson was not an appeal from a final judgment. The same month, and in fact a few days before the opinion in A. L. L., another panel issued an opinion in a deprivation proceeding in which it had granted a discretionary appeal. In the Interest of D. S., 212 Ga. App. 203 (441 SE2d 412) (1994). The day before A. L.

L. was issued, a third panel (but for one judge who was part of the D. S. panel) issued an opinion in a deprivation case in which it had granted a discretionary application. In the Interest of M. D. S., 211 Ga. App. 706 (440 SE2d 95) (1994). A few months later, in an attempted direct appeal in a child custody case, the Court affirmed its repeatedly quoted broad statement that “[t]his court has held that appeals from orders dealing with child custody which are not filed pursuant to OCGA § 5-6-35 . . . must be dismissed for lack of jurisdiction.” (Citations and punctuation omitted.) In the Interest of A. M. D., 212 Ga. App. 291 (444 SE2d 166) (1994).

The majority cites last year’s case of In the Interest of L. W., 216 Ga. App. 222 (453 SE2d 808) (1995), but that is only the opinion of a single judge on a motion for reconsideration. However, the entire division had agreed to dismiss the direct appeal from the final order in a deprivation proceeding. The judge cited three earlier deprivation cases, two in which this Court granted applications to appeal (In the Interest of M. D. S., supra, and In the Interest of M. A. V., 206 Ga. App. 299 (425 SE2d 377) (1992)), and one in which the Court dismissed a direct appeal because the application track had not been taken (In the Interest of N. A. B., 196 Ga. App. 819 (397 SE2d 301) (1990)).

Decided March 14, 1996

Reconsideration denied March 28, 1996

Surrett & Coleman, Edward J. Coleman III, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Bauldauff, Assistant Attorneys General, Glover & Blount, Gary A. Glover, for appellee.

This case must be dismissed for the same reason given in the last case cited.

        Anderson was an interlocutory appeal and does not govern whether a deprivation case must follow the direct appeal track or the application track. The Court in Anderson held that the grandparents’ intervention in an earlier deprivation proceeding did not constitute “another custody action” which, because of the curb in OCGA § 19-7-3 (c), would foreclose their original action for visitation rights filed in the same year. However, the Court did not question the grandparents’ authority to intervene in the deprivation proceeding. Yet intervention is permitted only “in any action in which any court in this state shall have before it any question concerning the custody of a minor child,” divorce, parental rights termination, visitation rights, or adoption. Custody was the only possible category into which the deprivation proceeding fit in that case.

       That is not true in this case, where the transcript was filed on August 18 or 19 and the record was transmitted on about the same date and the record was docketed on August 23.

       There is no statutory mandate to expedite cases involving a child’s well-being, as there is for incarcerated defendants. OCGA § 5-6-43 (c).


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A95A2714.
    GRUBB v. WOODGLENN PROPERTIES, INC.
    (470 SE2d 455)
   Judge Harold R. Banke.

Timothy A. Grubb appeals a final judgment in favor of the builder, Woodglenn Properties, Inc. (“Woodglenn”), for breach of contract for the construction of his house. Woodglenn sued Grubb under the contract to enforce a claim for final payment and payment for certain extras which Grubb had requested. The trial court entered judgment on the jury’s verdict and awarded Woodglenn judgment in rem and a special lien.

At the outset we note that two different contracts controlled the parties’ relationship. The new construction purchase and sale agreement (“construction agreement”) was a contract between Grubb and Woodglenn and had a rider whose terms are the focus of the underlying litigation. The single closing construction loan agreement (“loan agreement”) between the Grubbs, Woodglenn and Norwest Mortgage, Inc. (“Norwest”) contained conditions at variance from the terms of the rider.

Under the terms of the construction agreement, Grubb agreed to pay $549,300 to Woodglenn for the construction of his residence. The contract provided that after construction began, Grubb could request modifications which Woodglenn would honor as long as Grubb paid all the additional costs for materials and labor. As construction progressed, Grubb made numerous requests for “extras.” Grubb financed construction by obtaining a permanent loan from Norwest who, during construction, made periodic payments on behalf of Grubb to Woodglenn. Payments were controlled by the loan agreement with Norwest. To obtain a draw, Woodglenn would notify Norwest that it was requesting a draw, Norwest then would dispatch an inspector to assign a percentage completion and then Norwest would wire transfer funds to a designated account.

In November 1993, as construction was nearly completed, Grubb took possession of the house and denied Woodglenn permission to enter the premises. At this point, Woodglenn had substantially completed its contractual obligations under the construction agreement but was not able to finish several punchlist items due to Grubb’s lockout. Woodglenn requested final payment from Norwest and faxed a document to Norwest on November 19, 1993, to induce the release of the final draw. Norwest refused to release the final draw because Grubb specifically instructed it not to do so.

To obtain the final payment according to the rider to the construction agreement, Woodglenn had to satisfy four conditions precedent, only two of which are at issue here: “(iii) the forwarding by Builder to Purchaser of all warranties and guaranties provided by the Builder, subcontractors and material providers employed in the performance of the Work (as applicable), and (iv) a fully executed General Contractor’s Affidavit and Final Lien Waiver from Builder.” To obtain final payment according to the terms of the loan agreement, Woodglenn had to furnish completed waivers of liens and a certificate that lien waivers were executed by all parties furnishing labor and materials.

After several unsuccessful efforts to collect payment, Woodglenn filed a lien and then filed suit. Held:

1. We disagree with Grubb’s contention that the trial court erroneously denied his motion for directed verdict and motion for judgment notwithstanding the verdict because Woodglenn failed to present evidence that it satisfied two of the four requirements of the above rider. Specifically, Grubb claims that there was no evidence: 1) that Woodglenn fully executed a general contractor’s affidavit and final lien waiver and 2) that Woodglenn forwarded Grubb the warranty documents required by the contract.

“A directed verdict is proper only ‘(i)f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict(.)’ OCGA § 9-11-50 (a).” Vickery Ins. Agency v. Chambers, 215 Ga. App. 48, 50 (449 SE2d 885) (1994). “In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test. [Cit.]” Southern R. Co. v. Lawson, 256 Ga. 798, 799 (1) (a) (353 SE2d 491) (1987). The standard for granting j.n.o.v. is the same as for directed verdict. Russell v. State, 155 Ga. App. 555, 556 (2) (271 SE2d 689) (1980).

Applying the above standard, in our view the evidence did not demand a verdict or judgment in favor of Grubb on the affidavit or warranty documents issues.

(a) Affidavit. Grubb seeks to capitalize on apparent inconsistencies between the loan agreement and construction agreement’s requirements for final payment. He claims that because Woodglenn failed to provide a fully executed affidavit and fined lien waiver, he was entitled to a directed verdict or judgment in his favor. We disagree.

It is undisputed that the document titled “Affidavit as to Liens and Encumbrances” which Woodglenn’s president, James Crawford, submitted to Norwest for the final payment is not a fully executed affidavit because it is not notarized. However, Norwest’s branch manager testified that Norwest provided this form to Crawford, had him sign it and fax it back to Norwest. Later Norwest required Crawford to come to Norwest’s office to put his original signature on another copy of the same document in front of witnesses. Norwest’s branch manager testified that Woodglenn satisfied its prerequisites for final payment under the loan agreement and that the unnotarized “affidavit” satisfied Norwest’s affidavit requirement. He further attested that Norwest routinely did not require that builders’ affidavits be notarized.

Nevertheless, the evidence shows that Woodglenn did not provide a fully executed affidavit as to liens and encumbrances such as would satisfy the rider to the construction agreement. However, there is no evidence that Crawford refused to sign an affidavit in the presence of a notary, and it is not clear that he was afforded an opportunity to do so. Said affidavit is important to protect purchasers like Grubb. But under the facts of this case, it should not preclude final payment. Accordingly, we affirm the trial court’s judgment on the condition that Woodglenn provide to the trial court a fully executed general contractor’s affidavit and final lien waiver within 15 days of the date of this opinion; otherwise, the part of the judgment in favor of Woodglenn will stand reversed. See Bearden v. City of Austell, 212 Ga. App. 398, 400 (4) (441 SE2d 782) (1994).

(b) Warranty. The record and transcripts contain some evidence showing that Woodglenn provided warranties to Grubb. Woodglenn’s president, Crawford, testified that he left copies of all the warranties provided for heating, air conditioning, plumbing and major appliances in a kitchen drawer in Grubb’s home. Crawford also testified that he delivered a comprehensive warranty to Norwest with the understanding that when Grubb came to Norwest’s office to pick up some checks, Norwest would have Grubb sign off on the warranty. Because the rider by its plain terms does not require actual receipt of the warranties, this evidence was sufficient to let the jury decide whether Woodglenn satisfied the rider.

Decided March 12, 1996

Reconsideration denied March 28, 1996

Phillips & Reid, Gregory K. Morgan, Christopher H. Dunagan, for appellant.

Wright & King, Judy C. King, for appellee.

2. We reject Grubb’s contention that the trial court erred in allowing Woodglenn to reopen its case after the close of evidence because Grubb failed to show an abuse of discretion. Payne v. Jones & Kolb, 190 Ga. App. 62, 64 (2) (378 SE2d 467) (1989).

3. We find no merit to Grubb’s claim that the trial court abused its discretion in admitting into evidence Woodglenn’s Exhibits 88 and 89. Mattox v. MARTA, 200 Ga. App. 697, 700 (8) (409 SE2d 267) (1991). The jury heard testimony that Exhibit 88 was not a legal affidavit and that Exhibit 89, a builder’s warranty, had not been discovered until the night before the last day of trial. Where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the jury. Ga. Farm Bureau Mut. Ins. Co. v. Latimore, 151 Ga. App. 786 (261 SE2d 735) (1979).

4. We reject Grubb’s contention that he was entitled to a directed verdict or j.n.o.v. because Woodglenn failed to comply with OCGA § 44-14-361.1 (a) (2) by not sending him a copy of the claim of lien by registered or certified mail and by using an inaccurate property description. The record shows that Grubb’s wife was served with a copy of the lien when she accepted service for the complaint. By serving a copy of the lien instead of mailing it, Woodglenn exceeded the statutory requirement.

As to Grubb’s inaccurate deed description contention, we rejected a similar argument in Blanton v. Major, 144 Ga. App. 762 (1) (242 SE2d 360) (1978) (lien description sufficient where it states property owner, land lot, district, lot number, block, county, and subdivision). Here, although the deed description on the lien contains an incorrect plat book page number, it is correct in every other respect. See id. at 762.

Judgment affirmed on condition.

Andrews and Blackburn, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A95A2811.
    HARKLEROAD & HERMANCE, P.C. et al. v. STRINGER et al.
    (472 SE2d 308)
   Birdsong, Presiding Judge.

Harkleroad & Hermanee, P.C. and Donald R. Harkleroad, individually and in his capacity as president of Harkleroad & Hermanee, P.C. (collectively “Harkleroad & Hermanee”), appeal the denial of their motion under OCGA § 9-15-14 (a) and (b) seeking sanctions for abusive litigation from W. Kenneth Stringer III, individually, and Monarch Capital Group, Inc. (formerly known as Stringer, Wyatt & Williams) (collectively “Stringer”), Morris, Manning & Martin, Joseph R. Manning, Anthony E. Diresta, and George T. Hibbs (“the attorneys”). This is the second appeal arising from Harkleroad & Hermance’s claim against Stringer seeking fees owed for legal services Harkleroad & Hermanee provided Stringer. The attorneys who are appellees were counsel for Stringer in this action.

In summary, Harkleroad & Hermanee provided legal services to Stringer, and when Stringer did not pay Harkleroad & Hermance’s bills for the services provided, Harkleroad & Hermanee sued. After protracted litigation, Harkleroad & Hermanee ultimately recovered damages. For a more extensive discussion concerning this litigation, see Stringer v. Harkleroad & Hermance, 218 Ga. App. 701 (463 SE2d 152), in which this Court affirmed the judgment in favor of Harkleroad & Hermanee and assessed a penalty against Stringer under OCGA § 5-6-6 because we found the appeal was taken only for purposes of delay. In reaching that conclusion we found that “[w]hat was a fairly routine collection case on a delinquent account spiralled into vituperative and vitriolic litigation.” Stringer v. Harkleroad & Hermance, supra at 704.

Upon entry of the judgment in the trial court, Harkleroad & Hermanee timely moved for sanctions against Stringer and the attorneys who represented him below because Harkleroad & Hermanee contended Stringer and the attorneys violated OCGA § 9-15-14 through a litigation strategy that avoided a decision in a routine action for almost three years by delaying and harassing tactics and by filing eight counterclaims, including claims for malpractice and fraud and a claim against Harkleroad individually. Although the trial court’s comments at the hearing on the motion reflect the opinion that some sanctions might be warranted because Stringer contested the arbitration award after he requested binding arbitration, the motion for § 9-15-14 sanctions was denied.

Harkleroad & Hermanee now appeals, contending that the trial court erred by denying the motion for sanctions without a review of the record and also erred by denying the motion because Stringer and the attorneys failed to produce evidence in support of their defenses and counterclaims.

The record shows that Stringer vigorously defended Harkleroad & Hermance’s action. Yet, summary judgment was granted to Harkleroad & Hermanee on most of Stringer’s counterclaims, and then at Stringer’s request the case was referred to binding arbitration. This Court found that “Stringer did not present any evidence [at the arbitration] that the legal services were in any way unsatisfactory. Neither Stringer nor anyone else presented any evidence of a breach of fiduciary duty, fraud, negligent misrepresentation or usury. All the testimony and record evidence concerned billing, and during arbitration Stringer attempted to controvert only about $30,000 of nearly one-half million dollars in billing. Stringer’s office assistant admitted she routinely filed the legal bills without the bills being paid and conceded that she was aware that Stringer had discontinued making regular monthly payment to the firm.” Stringer v. Harkleroad & Hermance, supra at 704. Nevertheless, even after having requested binding arbitration, Stringer disputed the arbitration award in the trial court even though Stringer made no real effort in the arbitration to prove his counterclaim or defend against Harkleroad & Hermance’s claims. Held:

1. As Harkleroad & Hermanee has filed a notice showing that W. Kenneth Stringer III has filed a Chapter 7 bankruptcy petition and therefore is entitled to the automatic stay of proceedings under 11 USC § 362 (a), this appeal, as it concerns Stringer; individually, must be stayed pending disposition of the bankruptcy proceedings. Accordingly, the case as to W. Kenneth Stringer III is remanded to the trial court until the stay of proceedings is lifted. Because Monarch Capital Group, Inc. and the attorneys are not entitled to the protection of the stay of proceedings, however, we will address the issues on appeal as they concern the remaining appellees only.

2. Harkleroad & Hermance’s contention that the trial court erred by denying its motion under OCGA § 9-15-14 without reviewing the record is without merit. Even though the trial court did not review the transcript of the arbitration hearing, we do not find the trial court was so unfamiliar with the record of the litigation that the failure to consider the arbitration transcript alone would provide a basis for reversal. Therefore, we find that this contention is without factual support.

3. Harkleroad & Hermanee also contends the trial court’s decision on the merits of the motion was error. When reviewing a trial court’s decision on a motion seeking sanctions under OCGA § 9-15-14 (a) and (b), two standards of review are involved: A decision under subsection (a) must be sustained if any evidence supports the trial court’s decision, and a decision under subsection (b) must be sustained unless the trial court has abused its discretion. Haggard v. Bd. of Regents &c., 257 Ga. 524 (360 SE2d 566); Gibson v. Southern Gen. Ins. Co., 199 Ga. App. 776 (406 SE2d 121). Under OCGA § 9-15-14 (a), “reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” (Emphasis supplied.) Further, a “court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification[, i.e., was substantially frivolous, substantially groundless, or substantially vexatious,] or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct.” OCGA § 9-15-14 (b).

(a) Considering the motion based on OCGA § 9-15-14 (a), we find that the trial court’s decision denying the motion is not supported by the evidence. “Notwithstanding the any evidence standard of review, when considering an appeal from an award of attorney fees made under OCGA § 9-15-14 (a), we must determine whether the claim asserted below either had some factual merit or presented a justiciable issue of law.” (Citation and punctuation omitted.) Moore v. Harris, 201 Ga. App. 248, 249 (410 SE2d 804). Here, we find the record shows the counterclaims asserted by the attorneys in this case were without factual or legal support. The tactics of Stringer and his attorneys in this case, including the absence of evidence supporting the defenses and counterclaims that were raised and the lack of any genuine defense when the issue was finally joined, described in greater detail in Stringer v. Harkleroad & Hermance, supra, fully warrant the imposition of sanctions. Brown v. Kinser, 218 Ga. App. 385 (461 SE2d 564). In particular, we note that the attorneys procured an expert to sign an affidavit which they drafted that was intended to satisfy the requirements of OCGA § 9-11-9.1 (a procedure that was intended to reduce frivolous malpractice claims, 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 288 (378 SE2d 708)), but when the expert was deposed about his affidavit, he disavowed the opinions stated in the affidavit and disclaimed any real awareness of the matters stated therein. Moreover, the record shows that the attorneys attempted to assert claims that were barred by the statute of limitation because they maintained that the statute had been tolled by fraud. Nevertheless, they produced no evidence of such fraud. Under these facts, sanctions under OCGA § 9-15-14 (a) are warranted. Brown v. Kinser, supra.

(b) In the same manner, we find the trial court abused its discretion by not making an award under OCGA § 9-15-14 (b) because of the tactics employed below to delay disposition of the case and to harass and expand the proceedings. Although it may be difficult in this case to discern which of appellees’ conduct violated subsection (a) or (b), we are satisfied that appellees’ litigation strategy in its totality violated both subsections.

(c) We find no merit to appellees’ assertion that Harkleroad & Hermanee failed to support its motion with evidence of the fees and expenses required by OCGA § 9-15-14. The transcript of the hearing on the motion for sanctions under OCGA § 9-15-14 shows that affidavits from counsel showing the fees requested were submitted and were objected to by appellees, but the trial court did not rule on the objection. Moreover, as the trial court denied the motion on the merits and did not reach the issue of proof of fees, we do not find the absence of the affidavits from the record on appeal to be dispositive. Upon remand, the trial court has authority to consider evidence as it deems appropriate on the reasonableness of and necessity for the fees and expenses of litigation.

(d) Further, we find no merit in appellees’ contention that the arbitrator’s award denying attorney fees under OCGA § 13-6-11 is somehow dispositive of this issue. The arbitration award could be based only on matters which were submitted to arbitration. Therefore, the arbitrators could not consider the counterclaims that were dismissed previously and, in particular, could not consider Harkleroad & Hermance’s motion under OCGA § 9-15-14 which was not brought until after arbitration was completed. Moreover, a claim under OCGA § 13-6-11 applies to a defendant’s conduct before the commencement of litigation, and necessarily does not encompass conduct in the course of litigation. Padgett v. Moran, 167 Ga. App. 244, 245 (306 SE2d 96); Raybestos-Manhattan, Inc. v. Friedman, 156 Ga. App. 880, 883 (275 SE2d 817). Additionally, as defendant in counterclaim, Harkleroad & Hermanee was not entitled to seek damages under OCGA § 13-6-11 because of the attorneys’ actions in pursuing Stringer’s counterclaims. See Steele v. Russell, 262 Ga. 651 (424 SE2d 272); Gibson v. Southern Gen. Ins. Co., supra.

Accordingly, the case is remanded to the trial court to determine what award, if any, should be assessed against which of the appellees under OCGA § 9-15-14 (a) or (b) for their roles in this litigation.

Judgment remanded in part and reversed and remanded in part with direction.

Johnson and Smith, JJ., concur.

Decided February 28, 1996

Reconsideration denied March 28, 1996

Schwall & Schwall, Emory A. Schwall, Harkleroad & Hermanee, Donald R. Harkleroad, for appellants.

Morris, Manning & Martin, Joseph R. Manning, George E. Hibbs, The Wilson Law Firm, L. Matt Wilson, J. Phillip London, Jr., Anthony E. Diresta, for appellees.


text:
    A96A0123, A96A0485.
    SHY v. THE STATE (two cases).
    (470 SE2d 484)
   Judge Harold R. Banke.

Joshua Isaac Shy and his brother and co-defendant, Joseph Louis Shy, were convicted of burglary. On appeal, they challenge the sufficiency of the evidence and the propriety of a jury instruction on possession of stolen property. Joshua Shy also enumerates as error a jury charge on impeachment of witnesses in which the court inserted a defense witness’ name.

The State’s evidence shows that the victim’s Oconee County home was burglarized during the day while he was at work. He testified that someone kicked in a door and took numerous items including two rifles, one of which had a scope and a leather strap.

On the morning of the burglary, the son-in-law of the victim’s neighbor gave directions to two men who had driven about halfway up the neighbor’s driveway. The son-in-law subsequently identified the passenger as Joshua Shy. He could not identify the car or the driver, who had worn a hat, but testified that the driver appeared to be Hispanic or black and had lighter skin than the passenger.

Four nights after the burglary, a police investigator conducting surveillance in Atlanta with high-powered binoculars, observed Joseph Shy exit a car carrying what appeared to be a rifle with a scope and a sling. The officer testified that when Shy ran out of his sight, he radioed for other units to investigate, and within 20 seconds they arrived in Shy’s location. However, when the investigator reached the scene several minutes later and observed Joseph Shy in custody standing with his brother by a car the latter had formerly occupied, the rifle could not be found. The car was parked near the home of the brothers’ aunt. The officers finally located the rifle after they noticed a spent casing in the car’s back seat and checked its trunk, where they discovered two rifles matching the description and the serial numbers of those taken from the victim. Joseph Shy denied possessing any weapons, and Joshua Shy stated that the guns in the trunk belonged to his father. Held:

Case Nos. A96A0123 and A96A0485

1. The evidence, viewed in the light most favorable to the State, was sufficient for a rational trier of fact to find all the essential elements of burglary as to Joshua Shy. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The essential elements of burglary are: (1) entering into the dwelling house of another (2) without authority (3) with the intention of committing a felony or theft. OCGA § 16-7-1 (a); Hambrick v. State, 174 Ga. App. 444, 445-447 (1) (330 SE2d 383) (1985). Where a theft is proved, “recent unexplained possession of the stolen goods by the defendant creates an inference or presumption of fact sufficient to convict.” Wells v. State, 151 Ga. App. 416 (1), 417 (260 SE2d 374) (1979).

The identification of Joshua Shy in the vicinity of the burglary the day it occurred, the discovery of the stolen rifles in the trunk of a car he had occupied, and Joshua Shy’s statement that the rifles belonged to his father, coupled with the conflicting testimony of his alibi witness Dedrick Jones, who claimed he was present when Joshua Shy purchased the guns from a foreign black man, provided sufficient evidence to support Joshua Shy’s conviction.

However, Joseph Shy’s conviction must be reversed. The State presented no evidence connecting him with Oconee County or the burglary. Nor was he discovered with the rifles in his possession. The State presented no evidence that he owned the car in which the rifles were found, and the police investigator could not testify with certainty that the rifle in the trunk was the same gun he saw Joseph Shy carrying. The State’s case is further undermined by the fact that when the neighbor’s son-in-law initially identified Joshua Shy as the passenger in the car, he stated that the driver had lighter skin; however, the record indicates that Joseph Shy has darker skin than his brother. In addition, we reject the State’s contention that Joshua Shy’s presence in Oconee County and his statements about the ownership of the guns constitutes evidence of Joseph Shy’s guilt. Taken as a whole, the evidence simply is not sufficient to allow a rational trier of fact to find all the essential elements of burglary. It raises a suspicion, but “[a] conviction cannot rest upon mere suspicion. [Cit.]” Curtis v. State, 150 Ga. App. 507, 508 (258 SE2d 247) (1979). Therefore, the following divisions apply only to Joshua Shy.

Case No. A96A0123

2. We reject Joshua Shy’s argument that the pattern jury charge given on recent unexplained possession of stolen goods shifted the burden of proof to him. The charge, or its functional equivalent, has long been approved and has been found not to shift the burden of proof. Collins v. State, 193 Ga. App. 526 (1) (388 SE2d 391) (1989). Moreover, the evidence relating to Joshua Shy discussed in Division 1 corroborates the inference which arose by finding the stolen rifles in the car he had occupied. In addition, the court gave a full and accurate charge on burden of proof.

Decided March 28, 1996.

Anthony T. Pete, D. Todd Wooten, for appellant (case no. A96A0123).

Jimmie E. Baggett, Jr., for appellant (case no. A96A0485).

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

We also reject the argument that the four-day time span between the burglary and the arrest was not sufficiently “recent” to warrant the charge. Whether the possession was recent is a jury question. Funderburk v. State, 195 Ga. App. 441, 442 (2) (393 SE2d 727) (1990); see Dearmore v. State, 196 Ga. App. 865, 867 (4), 868 (397 SE2d 200) (1990), overruled on other grounds, McCoy v. State, 262 Ga. 699, 701 (2) (425 SE2d 646) (1993).

3. The insertion of the name of Dedrick Jones, Joshua Shy’s alibi witness, into the jury charge on impeachment of witnesses was not reversible error. After Jones testified, the State recalled the investigative officer and followed the statutory procedure for impeachment on general bad character, asking the officer whether he was familiar with Jones’ reputation and whether he would believe Jones under oath. OCGA § 24-9-84. The charge simply acknowledged the fact that Jones was the only witness impeached under OCGA § 24-9-84. The court further instructed the jury that it did not intend to express any opinion on the facts in the case or the credibility of witnesses. Notwithstanding Shy’s contrary contention, the trial court at no time suggested that it found Jones’ testimony less than credible or otherwise impermissibly commented on the evidence by simply recognizing that character evidence was offered as to only one witness. See Mullinax v. State, 255 Ga. 442, 445 (4) (339 SE2d 704) (1986); Willis v. State, 214 Ga. App. 479, 481 (5) (448 SE2d 223) (1994).

Judgment affirmed in Case No. A96A0123. Judgment reversed in Case No. A96A0485.

Andrews and Smith, JJ., concur.

       The judge charged as follows: “Now, ladies and gentlemen, to impeach a witness is to prove the witness is unworthy of belief. A witness may be impeached by disproving the facts to which the witness testified or [with] proof of contradictory statements previously made by the witness as to matters relevant to the witness’s testimony and to the case or proof of general bad character as applied with respect to the witness, Dedrick Jones. Whether or not that has been proved or not is a matter for your determination. I have no comment on that.”


author: Ruffin, Judge.

text:
    A95A1878.
    A95A2854.
    GRIFFIN v. AAA AUTO CLUB SOUTH, INC. GRIFFIN v. ALL SOUTH SECURITY, INC.
    (470 SE2d 474)
   Ruffin, Judge.

Cynthia Griffin sued her employer, AAA Auto Club South, Inc., (“AAA”) and All South Security Company (“All South”) seeking recovery for injuries sustained when her former boyfriend shot her on a Saturday night in the parking lot outside AAA’s offices. She alleged that AAA breached a non-delegable duty to provide security and a safe environment for its employees, that All South negligently failed to ensure that she reached her car safely, and that AAA was responsible for All South’s failure to do so on the basis of respondeat superior. In Case No. A95A1878, Griffin appeals the trial court’s grant of summary judgment to AAA, and in Case No. A95A2854, she appeals the grant of summary judgment to All South. For reasons which follow, we affirm.

Case No. A95A1878

Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in a light most favorable to Griffin as the respondent below, the record shows that AAA contracted with All South to provide on-site, unarmed security guards at its downtown Atlanta location. On Thursday, two days prior to the shooting, Griffin notified Larry Manuel, an All South security guard, that her former boyfriend, Edward Smith, told her he was “going to buy a gun and come to AAA and shoot her.” Griffin testified that she told Manuel “if you see [Smith] on the premises be on guard. If you see him on the premises or anything funny, let me know.” However, there was no evidence that Smith was seen or should have been seen on Saturday by Manuel or the owner of the premises, AAA. Griffin did not request an escort to her car on Thursday night, but Manuel walked her to the door. Two days later, Griffin left the building at approximately 11:10 p.m. She did not request an escort to her car or leave with other employees, but walked to the parking lot by herself. She testified that she did not ask for an escort because she did not expect Smith to be on the premises and because she believed he had calmed down. After Griffin entered the parking lot, Smith pulled his car from around the corner of the building, jumped out of the car, and ran toward' her. Griffin screamed, turned to run back toward the building, and Smith then shot her repeatedly, inflicting serious injuries.

1. Griffin contends that the trial court erred in granting summary judgment because AAA had a non-delegable duty to keep its premises and approaches safe under OCGA § 51-3-1. That statute obligates an owner or occupier of land “to exercise ordinary care in keeping the premises and approaches safe.” Because the owner or occupier’s duties to keep the premises and approaches safe are statutory (OCGA § 51-3-1), those duties are non-delegable even though the owner has a contract for another party to provide security. OCGA § 51-2-5 (4); Confetti Atlanta v. Gray, 202 Ga. App. 241, 244 (4) (414 SE2d 265) (1991). “An employer is liable for the negligence of a contractor . . . [i]f the wrongful act is the violation of a duty imposed by statute.” OCGA § 51-2-5 (4).

Despite this duty to keep its premises safe, “generally an intervening criminal act by a third party insulates a proprietor from liability, but even an independent criminal act could render the proprietor liable ‘if the defendant (original wrongdoer) had reasonable grounds for apprehending that such criminal act would be committed’ or is ‘reasonably to be anticipated.’ ” Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 161 (342 SE2d 468) (1986). Even in such circumstances, however, the “ ‘true ground of liability ... is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.’ [Cit.]” Howell v. Three Rivers Security, 216 Ga. App. 890, 892 (456 SE2d 278) (1995); see also Sailors v. Esmail Intl., 217 Ga. App. 811, 812-813 (1) (459 SE2d 465) (1995). Although Griffin advised the guard on Thursday of a threat from her boyfriend, it is undisputed that she had superior knowledge of his characteristics and temperament and of the nature of their relationship by Saturday. She thus had a far greater degree of foreseeability. In fact, foreseeability on the part of the security guard was solely dependent upon what Griffin said and did. Her action in going to her car without requesting an escort because she thought Smith had calmed down removed any foreseeability on AAA’s part.

This case also differs significantly from those in which a jury could find a legal failure to keep the premises and approaches safe, so that its invitees in general are not subjected to the risk of foreseeable attacks by unknown assailants. This was not a random stranger attack but rather grew out of a specific private relationship which had no connection with employment whatsoever. The place chosen by the boyfriend for the attack just happened to be the employer’s parking lot. The employer did not create or allow to exist an environment which placed Griffin at risk any more than if she had been at home or on the street.

2. Griffin also contends the trial court erred because material issues of fact remain with respect to whether AAA breached a duty to provide adequate security for its employees and whether it provided security in a negligent manner. In support of this argument, she cites Manuel’s testimony that according to the express written instructions set forth in All South’s post orders, security guards were responsible for making certain that employees got to their cars safely and were required both to regularly patrol the parking lot and to monitor it. However, AAA cannot be liable for performing security negligently, because “an injured person seeking to impose liability upon another for the negligent performance of a voluntary undertaking must show either detrimental reliance or an increased risk of harm.” Adler’s Package Shop v. Parker, 190 Ga. App. 68, 72 (1) (b) (378 SE2d 323) (1989). There is no evidence that Griffin relied upon the guard’s presence and she did not ask for an escort to her car. Nor did Griffin contend that any action on the part of the security guard increased her risk; failing to take all possible actions to prevent an occurrence is not the same as increasing the risk of the occurrence. Accordingly, this enumeration of error is without merit.

3. Given our holding in Case No. A95A2854 that summary judgment to All South was proper, we need not address Griffin’s remaining enumeration of error concerning whether the All South guards were AAA employees.

Case No. A95A2854

4. Griffin contends the trial court erred in granting All South summary judgment because a material issue of fact exists as to whether All South had a duty to ensure that she reached her car safely. We disagree because the proximate cause of Griffin’s injuries was not the breach of any such duty, but her superior knowledge of her boyfriend and of the risks attendant in going to the parking lot on Saturday without asking for an escort. See Sailors, supra at 812-813. Thus, the trial court did not err in granting All South summary judgment.

Decided March 15, 1996

Reconsideration denied March 29, 1996.

C. Lawrence Jewett, Jr., Mitchell G. Brogdon, for appellant.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellee (case no. A95A1878).

Drew, Eckl & Farnham, B. Holland Pritchard, Bruce A. Taylor, Jr., for appellee (case no. A95A2854).

Judgment affirmed.

Beasley, C. J, and Pope, P. J, concur.


text:
    A95A1921.
    WATSON v. ZURICH-AMERICAN INSURANCE COMPANY.
    (470 SE2d 684)
   Ruffin, Judge.

Donald Watson sued Zurich-American Insurance Company (“Zurich”) for breach of contract and fraud arising out of an agreement settling his workers’ compensation claim. Watson also sought to have the matter remanded to the State Board of Workers’ Compensation to set aside the settlement agreement or to have the trial court set aside the agreement and remand to the Appellate Division for further proceedings. The trial court dismissed the claim for breach of contract, and no appeal was taken from that decision. Zurich then moved for summary judgment on the remaining counts. The trial court granted the motion, and this appeal followed. Because Watson failed to show reasonable reliance, an essential element of his fraud claim, we affirm.

Watson, a former truck driver, was injured in 1991 when 400-500 pounds of cargo fell from the back of his trailer and onto his head and right shoulder. He was diagnosed with cervical/lumbosacral strain and suffered blackout spells, sleep disorders, and other symptoms which prevented him from driving. Thereafter, Zurich started paying workers’ compensation medical and income benefits to Watson. The payments ceased on May 18, 1992, when Watson signed a stipulation and agreement settling his workers’ compensation claim for $35,000 and the payment of medical expenses for 12 months. In his deposition, Watson testified that Zurich’s claims adjuster proposed the idea of settlement and stated: “Give me $35,000 and year option on your medical and if you had anymore (sic) problems afterward we would come back and adjust for you.” However, the actual written agreement provided as follows: “It is understood and mutually intended by and between the parties hereto, that the foregoing settlement shall be forever binding and not subject to modification or change in any manner so as to increase or decrease the rights and liabilities of the parties herein.” The State Board of Workers’ Compensation approved the settlement agreement in June 1992, and neither party appealed the order approving the settlement.

In August 1993, Watson filed this action in the Superior Court of Fulton County. In the breach of contract claim, which the trial court dismissed, Watson alleged that Zurich failed to pay for medical expenses. In his fraud claim, Watson alleged that Zurich’s claims adjuster fraudulently induced him to settle his workers’ compensation claim without knowledge of his legal rights or advice of counsel.

In granting Zurich’s motion for summary judgment, the trial court held that Watson did not reasonably rely on Zurich’s alleged misrepresentation because there was no evidence that Zurich’s agents prevented Watson from knowing the terms of the settlement agreement. The court also found that Watson failed to state his fraud claim with particularity as required by OCGA § 9-11-9 and failed to restore the $35,000 to Zurich after he discovered the alleged fraud as is required by OCGA § 13-4-60.

1. In his sole enumeration of error, Watson contends the trial court erred in granting summary judgment to Zurich. Watson argues that issues of fact remain to be tried as to whether Zurich fraudulently induced him to settle his claim while he was suffering from the effects of his injury. Watson also contends that, prior to signing the agreement, the adjuster and Zurich’s unidentified agent told him that he did not need an attorney because they would “take care of it for [him].”

To prevail on his fraud claim, Watson must prove the following: (1) Zurich’s agent made a false representation; (2) at the time, the agent knew it was false; (3) the representation was made to induce Watson to act or refrain from acting; (4) Watson justifiably relied on the representation; and (5) damages. Centennial Life Ins. Co. v. Smith, 210 Ga. App. 194, 195 (435 SE2d 498) (1993). Thus, a motion for summary judgment showing that no issue of material fact exists as to at least one of these elements would properly be granted. Id.

“Where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument.” (Citations and punctuation omitted.) Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697, 700 (2) (377 SE2d 210) (1988). “Parol evidence ‘is admissible to demonstrate that both parties to [an agreement] were honestly mistaken as to the legal effect of the instrument, and may establish a question of fact over the scope of the [agreement] which is most appropriate for jury resolution. (Cit.)’. . . [Cits.]” (Emphasis omitted.) Id.

Such is not the nature of Watson’s testimony. Watson does not “seek a reformation of the [settlement agreement] so as to avoid a mutually unintended legal consequence of its execution. Instead, [Watson] urge[s] a total cancellation of the [agreement] so as to avoid [his] unilateral mistake in relying upon an alleged misrepresentation as to its intended legal effect. [Cits.] However, the parol evidence rule will not allow a total evasion of the legal consequences of executing a document by one who merely alleges that the legal effect of his execution of that document was misrepresented to him.” (Emphasis supplied.) Id. at 701. Therefore, Watson’s parol evidence regarding the claims adjuster’s alleged misrepresentations would not be admissible and probative of fraud and, thus, would not create a genuine issue of material fact as to the enforceability of the settlement agreement.

“Even assuming [the claims adjuster] misrepresented the purpose or extent of the [settlement agreement], the record in this case does not disclose any artifice, trick, or fraud perpetrated upon [Watson] to prevent [him] from reading it. The only fraud which would relieve a party from an obligation which he has signed, where that party can read and write and is not otherwise under any disability, is that fraud which prevents him from reading what he signed.” (Citations and punctuation omitted.) Id. at 700.

Furthermore, “[u]nder Georgia law, absent special circumstances plaintiffs may attack a contract in a court of law on grounds of fraud only where they have exercised due diligence in protecting themselves, instead of merely relying blindly upon representations of another later claimed to have been false. [Cits.]” Walsh v. Campbell, 130 Ga. App. 194, 197 (202 SE2d 657) (1973). In Cochran v. Murrah, 235 Ga. 304 (219 SE2d 421) (1975), the court summarized the “special circumstances” as follows: “The rule in this state is that where one who can read signs a contract without reading it, he is bound by the terms thereof, unless he can show that an emergency existed at the time of signing that would excuse his failure to read it, or that the opposite party misled him by an artifice or device which prevented him from reading it, or that a fiduciary or confidential relationship existed between the parties upon which he relied in not reading the contract. [Cit.]” Id. at 305. In Walsh, supra, plaintiffs sued their own uninsured motorist insurance carrier in equity to nullify a release allegedly procured by fraud. The court acknowledged the general rule that there is no confidential relationship between an insurer and its insured. Walsh, supra at 198-199. However, the general rule notwithstanding, the court also acknowledged cases in which plaintiffs made similar allegations and “special circumstances” permitted those plaintiffs to maintain their actions. Id. at 198. See Jackson v. Rich, 227 Ga. 149 (179 SE2d 256) (1971) (allegations of great disparity of mental ability between the parties); Heard v. Johnson, 126 Ga. App. 222 (190 SE2d 455) (1972) (evidence of plaintiff’s disorientation and sickness at the time of signing the release).

In this case, there is no evidence demonstrating that Watson was prevented from learning the terms of the settlement agreement prior to signing it. As the trial court correctly noted, had Watson read the agreement, he would have discovered that it was in direct conflict with what he was allegedly told. Moreover, contrary to Watson’s contention regarding his physical and mental ability to execute the agreement, he has presented no evidence that the symptoms which have prevented his return to employment also prevented him from reading the settlement agreement or understanding its terms. Therefore, special circumstances do not exist which permit Watson to maintain his fraud claim against his former employer’s insurer.

Furthermore, Watson’s reliance on Griggs v. All-Steel Bldgs., 209 Ga. App. 253 (433 SE2d 89) (1993) is misplaced because he did not sustain mentally disabling brain damage as did Griggs. The court in Griggs simply held that the Workers’ Compensation Act did not bar Griggs’ fraud claim against his employer without reaching the merits of the claim. In this case, Watson’s right to maintain a fraud claim was not contested.

The foregoing demonstrates that in its motion for summary judgment, Zurich demonstrated the absence of an essential element of Watson’s fraud claim, thereby casting upon Watson the burden of presenting specific evidence giving rise to a genuine issue of triable fact. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Watson did not meet this burden, and Zurich was entitled to judgment as a matter of law.

2. The trial court also granted summary judgment on Watson’s prayer for equitable relief to set aside the settlement or remand to the State Board of Workers’ Compensation. However, because Watson’s brief does not contain argument or citation of authority pertaining to this claim, it is deemed abandoned. Court of Appeals Rule 27 (c) (2); King v. Codisco, 217 Ga. App. 704, 705 (3) (458 SE2d 881) (1995).

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur.

Reconsideration denied March 29, 1996

William R. Hurst, for appellant.

Barnes, Browning, Tanksley & Casurella, Michael K. Jablonski, Saveli & Williams, Steven R. Thornton, Jennifer H. Chapin, for appellee.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A1926.
    JORDAN et al. v. STEPHENS.
    (470 SE2d 733)
   Blackburn, Judge.

Joyce S. Jordan, individually and as executrix of the estate of Loree A. Veal, Grace A. Ivey, and Ruby Owens (collectively referred to as plaintiffs) appeal the judgment rendered upon the jury’s verdict in the underlying action for damages against Wilbur G. Stephens, Jr.

Prior to her death, Veal executed a general power of attorney in favor of Stephens so that he could invest her assets and provide her with ample funds to live. Thereafter, as payment for his assistance in handling her personal and financial affairs, Veal transferred certain of her assets to Stephens’ name, as a joint tenant with her and with a right of survivorship. Plaintiffs brought the underlying action to recover the property in Stephens’ name alleging fraud, conversion, and breach of fiduciary duty. The jury determined that the asset transfers made to Stephens from Veal were proper with the exception of the transfer of 150 shares of Wisconsin Energy Corporation stock.

1. In several enumerations of error, plaintiffs contend the trial court erred in denying their motion for directed verdict. In their motion for directed verdict, plaintiffs argued that Stephens breached his duty of loyalty to Veal by obtaining a joint tenancy interest in her assets.

The law in Georgia is clear that “[slums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.” OCGA § 7-1-813 (a). See also Godwin v. Johnson, 197 Ga. App. 829, 830 (1) (399 SE2d 581) (1990) (OCGA § 7-1-813 (a) applied equally to certificates of deposit). In Godwin, we determined that issues of fact precluded summary judgment where defendant jointly owned stock certificates with the decedent with a right of survivorship. Therein, prior to his death, the decedent conveyed assets to the defendant. Although the defendant possessed the decedent’s power of attorney, it was not used to make the conveyance. Id. at 830. The primary issue for consideration was determining the decedent’s intent when he established the accounts. Id. at 831. In the present case, there was no evidence presented that Veal did not intend the assets she transferred to Stephens to belong to him at her death. In fact, the evidence indicated that Veal specifically wanted Stephens to have the assets and that Veal knew a lot of people were going to be surprised after she died.

The cases cited by the dissent are factually distinguishable from the present case, as they address situations where the guardian or trustee made transfers for their own benefit without the knowledge or approval of their ward. It is important to recognize that the present case does not involve the administration of a trust or a guardian and ward relationship. The present case is similar to Wheeless v. Gelzer, 780 FSupp. 1373 (N.D. Ga. 1991), wherein the decedent’s second wife obtained a general power of attorney over her husband, who was in ill health. Thereafter, she transferred the ownership of stock certificates from her husband to herself and to herself and her husband in a joint tenancy with right of survivorship. One transfer was made with the husband’s signature, and the other was accomplished by the wife pursuant to her general power of attorney. While recognizing that the power of attorney created a fiduciary relationship which required a duty of loyalty to the principal, the court determined that absent fraud in obtaining the power of attorney, the stock transfers were proper because an agent is not absolutely prohibited, from making gifts of the principal’s property, the power of attorney expressly conferred the right to transfer stocks, and the evidence indicated that the husband intended the transfer to occur. Id. See also LeCraw v. LeCraw, 261 Ga. 98, 99 (401 SE2d 697) (1991).

The standard of review of the trial court’s denial of the plaintiffs’ motion for directed verdict is the any evidence standard. See Williamson v. Echols, 205 Ga. App. 453, 455 (422 SE2d 329) (1992). In the present case, the evidence indicated that Veal intended that Stephens have the assets at issue upon her death. Therefore, the trial court’s denial of plaintiffs’ motion for directed verdict is affirmed.

2. Although plaintiffs enumerate the trial court’s charge on beneficial ownership as error, their actual argument is based upon the trial court’s failure to charge OCGA § 7-1-814. The trial court charged that clear and convincing evidence of a joint tenants’ intentions was to be considered in determining the beneficial ownership of Veal’s joint accounts. Because this is a correct statement of the law, see Godwin, supra, we do not find that the charge was error.

Pretermitting plaintiffs’ improper attempt to enlarge their enumeration of error by their brief, plaintiffs’ argument is without merit as they failed to request a charge on OCGA § 7-1-814.

3. Plaintiffs contend that the trial court erred in denying their motion for new trial in that the verdict was against the weight of the evidence with respect to the transfer of 100 shares of Marine Midland Bank stock. Plaintiffs contend that Veal’s subsequent transfer of these stocks from herself and Owens as joint tenants with right of survivorship to herself and Stephens as joint tenants with right of survivorship was ineffectual because Owens’ signature was not obtained.

“Both as to a motion for directed verdict and motion for new trial based on the general grounds the proper standard on appellate review is the ‘any evidence’ test. . . . The court construes the evidence most favorably towards the party opposing the motion for directed verdict or new trial.” (Citations omitted.) Central Nat. Ins. Co. of Omaha v. Dixon, 188 Ga. App. 680, 681 (373 SE2d 849) (1988). In the present case, evidence was introduced to establish Veal’s intention to remain the owner of her stocks until her death. See OCGA § 7-1-812 (a). Therefore, Veal was the only party with the present right to withdraw or change her accounts, and her signature was sufficient to change the terms of the account. See OCGA § 7-1-816.

4. In their final enumeration of error, plaintiffs contend the trial court erred in failing to give their requested charge on the presumption which arises from the failure of a party to produce evidence. Plaintiffs argue that they served Stephens with a notice to produce all bank statements and deposit slips for accounts at Spivey State Bank in Stephens’ and Veal’s names. Plaintiffs contend that as vice president of Spivey State Bank, Stephens had access to such accounts. However, the notice to produce was sent to Stephens as a party to this litigation in his individual capacity as opposed to his capacity as the vice president of the bank. Stephens’ failure to produce documents not under his individual control cannot be the basis of the requested charge. Therefore, as the charge was not supported by the evidence, the trial court did not err in refusing to give it.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ, concur. McMurray, P. J, dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that Georgia’s long-standing rule requiring fiduciaries to stand in a position of complete loyalty to their charge prevents Stephens from benefiting beyond the compensation specifically provided pursuant to OCGA § 53-12-173.

On August 28, 1987, Loree A. Veal went to Wilbur G. Stephens, Jr., a vice president at Spivey State Bank, and asked him to take over her financial affairs. Stephens agreed and, at first, refused payment for his services. Veal gave Stephens a general power of attorney providing him with express authority to act on Veal’s behalf “to do any and all things that [she] might or could do if [she] were personally present. . . .” Veal also opened a safety deposit box at Spivey State Bank, gave Stephens authority to access the safety deposit box, gave Stephens certificates of deposit and executed a last will and testament in the presence of Stephens’ secretary and another bank employee. Veal named Stephens as executor of her estate, but did not name him as a beneficiary under the will. She later transferred various assets to Stephens as a joint tenant with rights of survivorship. And according to Stephens’ allegations in the pretrial order, this was done because Loree Veal promised that these jointly held assets “would be his at her death.” Stephens altered his story during trial, however, explaining that “everything that was in her name or however at her death would be mine to dispose of as I saw fit. . . .”

In December 1987, Loree A. Veal suffered a stroke. Eight months later, she had a heart attack and died. Veal was then 81 years of age. Soon after the funeral, Stephens claimed the bulk of Veal’s remaining assets and probated Loree A. Veal’s last will and testament. Stephens resigned as the estate’s executor after his fiduciary capacity was challenged by Veal’s cousin, primary testamentary beneficiary and alternate executrix, Joyce S. Jordan. Stephens, however, refused to give up the assets he believed were rightfully given to him in exchange for his fiduciary services to Veal. Jordan, individually and as executrix of Loree A. Veal’s estate, Grace A. Ivey and Ruby Owens (plaintiffs) brought this action against Stephens to recover this property, alleging fraud, conversion and breach of fiduciary duty. The case was tried before a jury, and a verdict was returned for plaintiffs, but only for certain stock that was transferred to Stephens via a tainted transaction.

It is my view, that the case sub judice is controlled by Dowdy v. Jordan, 128 Ga. App. 200 (196 SE2d 160), where a guardian of an estate was estopped from setting up title or interest in property that was once held by him in trust. In Dowdy, this Court held as follows: “ ‘The law will not permit a guardian to act in such way that his own personal interest may come in conflict with the interest of his ward with respect to the estate of the latter in his charge. Code §§ 38-117, 49-205[, now OCGA § 24-4-26]; Clark v. Clark, 167 Ga. 1 (1a) (144 SE 787); Wright v. Thompson, 190 Ga. 173 (2) (8 SE2d 640); Parnelle v. Cavanaugh, 191 Ga. 464, 465 (2) (12 SE2d 877); Gammage v. Perry, 29 Ga. App. 427 (2) (116 SE 126).’ Allen v. Wade, 203 Ga. 753 (1) (48 SE2d 538). A guardian or other trustee ‘must act, not only for the benefit of the trust estate, but also in such a way as not to gain any advantage, directly or indirectly, except such as the law specifically gives him; and he owes an undivided duty to the beneficiary, and must not place himself in a position where his personal interest will conflict with the interest of the beneficiary. . . . The purpose of this rule is to require a trustee to maintain a position where his every act is above suspicion, and the trust estate, and it alone, can receive, not only his best services, but his unbiased and uninfluenced judgment. Whenever he acts otherwise, or when he has placed himself in a position that his personal interest has or may come in conflict with his duties as trustee, or the interests of the beneficiaries whom he represents, a court of equity never hesitates to remove him. In such circumstances the court does not stop to inquire whether the transactions complained of were fair or unfair; the inquiry stops when such relation is disclosed.’ Clark v. Clark, 167 Ga. 1, 5[, supra]. ‘One of the most fundamental duties of the trustee is that he must display throughout the administration of the trust complete loyalty to the interests of the cestui que trust, and must exclude all selfish interest and all consideration of the welfare of third persons. . . . Reasons behind the establishment of the loyalty rule by equity are that it is generally, if not always, humanly impossible for the same person to act fairly in two capacities and on behalf of two interests in the same transaction. Consciously or unconsciously he will favor one side as against the other, where there is or may be a conflict of interest. If one of the interests involved is that of the trustee personally, selfishness is apt to lead him to give himself an advantage. If permitted to represent antagonistic interests the trustee is placed under temptation and is apt in many cases to yield to the natural prompting to give himself the benefit of all doubts, or to make decisions which favor the third person who is competing with the beneficiary . . . The principal object of the administration of the rule is preventative, that is, to make the disobedience of the trustee to the rule so prejudicial to him that he and all other trustees will be induced to keep away from disloyal transactions in the future. The remedies granted for disloyalty often include taking from the trustee property which he has acquired by the disloyal conduct, as, for example, a part of the capital of the trust, or profits made through self-dealing, but such relief is not, it is believed, primarily granted to prevent unjust enrichment of the trustee but for its deterrent effect. It is not necessary that the trustee shall have gained from the transaction, in order to find that it is disloyal. If the dealing presented conflict of interest and consequent temptation to the trustee, it will be stricken down, at the option of the cestui, regardless of gain or loss to the trustee. The loyalty rule is framed for the governance of all fiduciaries and not merely for trustees. As previously shown it is often applied to agents, executors and administrators, guardians, officers and directors of corporations, and others . . .’ Bogert, Trusts and Trustees, § 543, pp. 473-474, 475, 480-481 (2d Ed. 1960).” Dowdy v. Jordan, 128 Ga. App. 200, 204-206 (1), supra, cited with approval in Loftis v. Johnson, 249 Ga. 794, 795 (294 SE2d 511).

Although the disputed issues at trial in the case sub judice related to Stephens’ alleged duplicity in managing and disposing of Loree A. Veal’s assets both before and after her death, certain facts remain undisputed. That is, Stephens was charged with managing Veal’s financial affairs when Veal’s assets were transferred to Stephens as a joint tenant, and Stephens continued to serve as Veal’s fiduciary long after these transfers. It is my view that this evidence bars Stephens from asserting any claim, title or interest in the property that was charged to his trust during Veal’s life. See First Nat. Bank of Paulding County v. Cooper, 252 Ga. 215, 216 (312 SE2d 607). Nonetheless, the majority would draw an exception to Georgia’s longstanding rule requiring complete loyalty of a fiduciary simply because the jury found that Stephens acted, to a large extent, with Veal’s consent in transferring trust assets to himself, as a joint tenant with rights of survivorship. This view, however, ignores the precept (as suggested by the Uniform Trusts Act) that any transaction involving a transfer of trust property is so dangerous to the beneficiary that a beneficiary’s advance consent to such conduct is void, as a matter of policy. See Bogert, Trusts and Estates (2d ed. rev. 1993), p. 422, § 543 (U), p. 439.

Although the asset transfers Stephens made to himself as Veal’s joint tenant were purportedly accomplished with Veal’s express consent, it is undisputed that Veal’s assets were to be managed exclusively for her maintenance and care until her death. Stephens’ loyalty therefore became an ongoing issue the moment Veal promised him an interest in her estate. Consequently, however innocent the transfer of trust assets to Stephens as a joint tenant may have been, it was poisonous from the inception, and Stephens should have thereafter removed the conflict or resigned as trustee. The jury’s findings regarding issues relating to Loree A. Veal’s promises to Stephens or to Stephens’ alleged chicanery were therefore meaningless. Georgia’s loyalty rule prevents Stephens from benefiting as Veal’s fiduciary beyond the compensation specifically provided by law. See OCGA § 53-12-173.

I believe the trial court erred in failing to grant plaintiffs’ motion for directed verdict. As a matter of public policy, Stephens should not be permitted to acquire property that was once held by him in trust for Loree A. Veal. Dowdy v. Jordan, 128 Ga. App. 200, 204 (1), 210, supra.

Decided March 15, 1996

Reconsideration denied March 29, 1996

Karen West, W. W Larsen, Jr., for appellants.

Robert S. Reeves, for appellee.

       By enumerations of error 2, 4, and 6, plaintiffs attempt to expand the basis of their motion for directed verdict. However, the law is clear that “[a] ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal.” (Citations and punctuation omitted.) Leader Nat Ins. Co. v. Kemp & Son, Inc., 189 Ga. App. 115, 116 (375 SE2d 231) (1988). Furthermore, plaintiffs abandoned enumeration of error 5 by failing to support it with argument or citation of authority. See Court of Appeals Rule 27 (c) (2). Therefore, we do not address plaintiffs’ enumerations of error 2, 4, 5, and 6.


author: Blackburn, Judge. McMurray, Presiding Judge, Ruffin, Judge,

text:
    A95A2042.
    SHERIFF v. HOSPITAL AUTHORITY OF HOUSTON COUNTY.
    (471 SE2d 3)
   Blackburn, Judge.

This is an appeal from the grant of summary judgment to the Hospital Authority of Houston County, Georgia, d/b/a Houston Medical Center (Hospital) in a slip and fall case. OCGA § 9-11-56. Dorothy Sheriff was injured when she fell in the reception area of the Hospital’s emergency room. Sheriff claims the Hospital was negligent in failing to properly inspect and maintain the premises.

Sheriff had accompanied her mother to the Hospital emergency room. While the two waited, Sheriff sat approximately 12 feet away from, and directly in front of, the receptionist’s window. After waiting 29 to 30 minutes Sheriff got up to approach the receptionist’s window, but slipped and fell in what she alleges was an area of water the size of her hand.

In order to recover in a slip and fall case of this nature, Sheriff must show (1) that the hospital had actual or constructive knowledge of a foreign substance, and (2) that she was without knowledge of the presence of such substance or for some reason attributable to the Hospital was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). In this case, no evidence was presented showing the Hospital had actual knowledge of any liquid on the emergency room floor. Therefore, the inquiry is whether the Hospital had constructive knowledge of the allegedly hazardous condition.

Constructive knowledge can be established in one of two ways. First, it can be inferred by showing “ ‘that an employee of the defendant was in the immediate area of the hazardous condition and could have easily seen the substance.’ . . . [Cit.]” Drake v. Kroger Co., 213 Ga. App. 72, 73 (443 SE2d 698) (1994). In the affidavit of the emergency room receptionist, who had been on duty for five hours at the time of Sheriff’s fall, she averred that she had continuously monitored the waiting area, and as far as she could see the area was clean, dry, and free from any foreign substance. She also did not see any wetness or other evidence of a foreign substance on Sheriff’s clothing after the fall. Further, a nurse averred that the emergency room reception area was well lit and that there was no visible dampness on the floor when she took a patient through the area just moments before Sheriff’s fall. The statements of the emergency room receptionist and nurse were unrefuted. There can be no recovery under this theory in the present case.

Second, constructive knowledge can also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, although recovery under this approach requires proof of the length of time the dangerous condition was allowed to exist. Hughes v. Hosp. Auth. of Floyd County, 165 Ga. App. 530, 531 (301 SE2d 695) (1983). However, under the second theory, before the burden shifts to Sheriff to show how long the dangerous condition was on the floor, the Hospital has to demonstrate that a reasonable inspection program was in effect and that it had been carried out on the day of Sheriff’s fall. Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223 (460 SE2d 838) (1995). See also Boss v. Food Giant, 193 Ga. App. 434, 436 (388 SE2d 37) (1989).

Donnie Fletcher, the Hospital’s Director of Environmental Services, deposed that all Hospital employees are responsible for the safety of patients and visitors and any spill or liquid would be immediately reported to the environmental director or immediately cleaned. He also stated that a visual inspection of the premises is made each morning by him or by a supervisor. He explained that although no designated person is responsible for checking the floors on an hourly basis to look for foreign substances, the floors are “patrolled” by the entire staff on a continual basis. Fletcher further testified that the reception area was mopped between 11:00 p.m., May 23 and 7:00 a.m., May 24, and thereafter was not mopped prior to the incident which occurred at approximately 1:45 p.m., May 24. Moreover, his testimony indicated that he and a supervisor visually inspected the area each morning to ensure that night shift workers had performed their assigned cleaning duties. No wet substance was reported in the area at any time on the morning of May 24, 1990, notwithstanding the fact that all Hospital personnel were, as a matter of policy, responsible for reporting any hazardous conditions. Because Sheriff was unable to establish how long the liquid had been on the floor, there was no evidence that the Hospital had constructive knowledge of the hazard.

Therefore, the trial court properly granted summary judgment to the Hospital.

Judgment affirmed.

Beasley, C. J, Birdsong, P. J, Pope, P. J., Andrews, Johnson and Smith, JJ., concur. McMurray, P. J., and Ruffin, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the judgment of affirmance as it is my view that the evidence as recited by the majority, when construed most favorably to the non-movant, authorizes a finding of constructive knowledge of the hazardous puddle of water in the reception area of defendant hospital authority’s emergency room without establishing that plaintiff’s knowledge was equal or greater.

The physical existence of the small puddle is undisputed. Plaintiff was seated 12 feet from the reception window for a period of 29 or 30 minutes and observed no event precipitating the hazardous spill, authorizing the inference that the spill was there all the while. Defendant has no designated person responsible for checking the floors on an interval basis to look for foreign substances. The fact that not one employee among defendant’s entire staff, who purportedly patrol the floors on a continuous basis, discovered the spill during the 29 or 30 minutes plaintiff sat in the emergency room authorizes several favorable inferences: those who “patrolled” did not look; those who looked did so perfunctorily and did not see the spill; or else, those that looked saw the spill and did nothing to cause its removal. “ Tt is the jury’s function to draw an inference from the evidence when more than one inference can be drawn.’ Thompson v. Crownover, 259 Ga. 126, 130 (6) (381 SE2d 283).”Hopkins v. Hudgins & Co., 218 Ga. App. 508, 510 (2) (462 SE2d 393). I respectfully dissent.

Ruffin, Judge,

dissenting.

Slip and fall matters constitute a never ending line of cases for appellate review. It is obvious from the sheer volume of slip and fall appeals that our past decisions have not provided the clarity necessary for lawyers, litigants and trial courts to dispose of the issues at the trial level. I do not see how this case, in which the majority concludes that summary judgment was proper, is any different from the numerous recent cases where we have concluded that triable issues of fact remained. See, e.g., Jackson v. Camilla Trading Post, 218 Ga. App. 164 (460 SE2d 849) (1995) (factual issue remained concerning plaintiff’s knowledge of foreign substance on floor); Sacker v. Perry Realty Svcs., 217 Ga. App. 300 (457 SE2d 208) (1995) (factual issue remained concerning plaintiff’s knowledge of dangerous condition); and Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) (1991) (factual issue remained concerning defendant’s inspection procedures).

Perhaps it is the fiction that judges can decide from the bench the factually intensive question of “reasonableness” that leads to the confusion. The point is, that except in clear, palpable and undisputed cases, questions of reasonableness should properly be left for the jury to decide. Flood, supra. Because this is not a clear, palpable and undisputed case, the facts should be left for a jury to decide.

I agree with the majority and Presiding Judge McMurray that the inquiry is whether the Hospital had constructive knowledge of the puddle on the floor. The majority concludes however, that the Hospital demonstrated, as a matter of law, that it had a reasonable inspection program in place and that the Hospital implemented that program on the day of Sheriff’s fall. I must also infer from the majority’s decision that Sheriff utterly failed to show any facts concerning the length of time the puddle remained on the floor. Under the facts recited by the majority, there are factual issues that should have been left for the jury to decide.

In determining whether a triable issue of fact remains, we must give the non-moving party the benefit of every reasonable doubt. Martin v. Dunwoody-Shallowford Partners, 217 Ga. App. 559 (458 SE2d 388) (1995). The Hospital showed that all hospital employees were responsible for reporting any spills to its environmental director. Is there not a factual issue concerning the reasonableness of such an inspection plan where no one was specifically delegated the responsibility to locate and report hazardous conditions? Could not the jury find that a responsibility given to everyone is a responsibility given to no one? According to the majority, the Hospital also showed that a nurse who took a patient through the area immediately before the fall did not notice the puddle. The receptionist who was on duty for five hours before the incident and sitting twelve feet away from the puddle averred that she had continuously monitored the waiting area. If she continuously monitored the area from 12 feet away, could she, or could she not, have observed the puddle’s source at that time the puddle formed on the floor? All we really know is that the last time anyone inspected the area was earlier that morning. Giving the benefit .of all reasonable doubts to Sheriff, are we to conclude that the puddle was not there immediately before the incident when the nurse passed by with her patient, or should we properly infer for summary judgment purposes that the puddle was on the floor earlier that morning and was not detected by Hospital’s employees? Considering that the incident occurred in an emergency room waiting area, where visitors are legitimately preoccupied with emergency health care matters, is not it reasonable to expect the hospital to exercise heightened inspection procedures?

Decided March 6, 1996

Reconsideration denied March 29, 1996.

Carl A. Veline, Jr., for appellant.

Jones, Cork & Miller, Thomas C. Alexander, James E. Messer, Jr., for appellee.

I dissent.

       Judge Ruffin’s dissent queries how this case may be distinguished from three recently decided cases of this Court. Unlike Jackson v. Camilla Trading Post, 218 Ga. App. 164, 167 (460 SE2d 849) (1995) and Flood v. Camp Oil Co., 201 Ga. App. 451, 453 (411 SE2d 348) (1991), this case does not turn on the failure of defendant to inspect in accordance with the applicable routine procedure nor is this a case in which there is any question that the Hospital altered the area in which the slip and fall occurred after the fact as in Jackson, supra. Neither does it involve a genuine issue of material fact as to whether the Hospital was negligent in the exercise of its duty to ensure reasonably safe premises by failing to timely act on unsafe conditions known to it as in Sacker v. Perry Realty Svcs., 217 Ga. App. 300, 301 (457 SE2d 208) (1995) (material issue of fact existed as to whether defendants negligent in maintaining railroad ties in dimly lit parking lot).