text:
    A93A0287.
    WHITE et al. v. FULTON COUNTY.
    (450 SE2d 232)
   Blackburn, Judge.

In White v. Fulton County, 264 Ga. 393 (444 SE2d 734) (1994) the Supreme Court vacated this court’s decision in Fulton County v. Dangerfield, 209 Ga. App. 298 (433 SE2d 335) (1993). In overruling Dangerfield, the Supreme Court held that Dept. of Transp. v. Olshan, 237 Ga. 213 (227 SE2d 349) (1976) did not require the conclusion we reached. In Dept. of Transp. v. Franco’s Pizza &c., 200 Ga. App. 723 (409 SE2d 281) (1991) and Dept. of Transp. v. McLaughlin, 163 Ga. App. 1 (292 SE2d 435) (1982), the same issues were presented and resolved by this court as in Dangerfield, below. The Supreme Court denied tbe petitions for certiorari filed in Franco’s Pizza and McLaughlin, declining to rule on the conclusion they now hold was incorrect. The Supreme Court now overrules Franco’s Pizza and McLaughlin and contends that our interpretation of Olshan was erroneous. If so, it was wrong in the prior cases they allowed to stand.

Decided October 5, 1994

Reconsideration denied November 10, 1994.

Robert G. Young, for appellants.

Peek & Whaley, James G. Peek, J. Corbett Peek, Jr., Culbreth & Sharony, Abraham A. Sharony, for appellee.

The Supreme Court remanded the case to this court to determine whether the error found in the first appeal of this case affects White’s judgment as to the value of his interest in the condemned property as the lessee. In the first appeal of this case, the Georgia Supreme Court determined that the trial court erred in admitting “testimony concerning the subjective intent of the city council in refusing to grant a permit for a sign which violated zoning requirements.” Fulton County v. Dangerfield, 260 Ga. 665, 666 (398 SE2d 14) (1990).

“The correct measure of damages for the loss of use of leased property is the diminution in the market value of the leasehold during the remainder of the unexpired term of the lease, less any rents to be paid by the lessee.” (Emphasis supplied and omitted.) (Citations and punctuation omitted.) Ellis v. Dept. of Transp., 175 Ga. App. 123, 124 (333 SE2d 6) (1985).

It is undisputed that the Dangerfields, not White, submitted the improper evidence to show that the property had extra value as a site for an advertising sign. It is also clear that the value of the property as a site for an advertising sign is not relevant to the diminution in the market value of White’s leasehold interest.

In White v. Fulton County, supra, the Supreme Court specifically found that “the aggregate value of White’s leasehold and [the Dangerfields’] ownership interest [was] not limited to the fair market value of the subject property.” Therefore, as the jury was properly charged with the correct measure of damages for the loss of a leasehold interest, and the improperly admitted evidence did not apply to such damages, the trial court was correct in granting White’s motion to dismiss.

Judgment affirmed.

Johnson and Smith, JJ., concur in judgment only.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A1350.
    SCHLACHTER v. GEORGIA STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS.
    (450 SE2d 242)
   McMurray, Presiding Judge.

The Georgia State Board of Examiners of Psychologists (“appellee”) served Paul Schlachter (“appellant”) with notice of a hearing of charges that he had failed to maintain appropriate treatment boundaries with a former patient in that he had engaged in a sexual relationship with the patient. Appellant submitted a number of pre-hearing motions for ruling by the hearing officer. The hearing officer entered orders denying appellant’s motion to dismiss (based on appellee’s delay in bringing and prosecuting the charges stated in the notice of hearing), request for the investigative file, and objection to application to take testimony of Scott Morton. Appellant petitioned the superior court for review of the orders denying these motions pursuant to OCGA § 50-13-19 (a). The superior court denied appellant’s petition for judicial review “because review is not appropriate at this juncture in the proceedings.” This court then granted appellant’s petition for interlocutory appeal. Held:

Appellant enumerates as error the superior court’s refusal to review and reverse the hearing officer’s decisions on his above noted motions. In support of his contention that judicial review of the hearing officer’s decisions is appropriate, appellant cites Wills v. Composite State Bd. of Med. Examiners, 259 Ga. 549, 550 (1) (384 SE2d 636). In that case the Supreme Court applied the last sentence of OCGA § 50-13-19 (a) which states that: “A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.” Based on this statutory language and the possibility that irreparable harm could result in the absence of a resolution of whether the licensee was entitled to receive certain information from the board to aid in the preparation of a defense prior to a hearing, the Supreme Court determined that judicial review was appropriate.

Appellant maintains that each of the decisions of the hearing officer contested in the case sub judice is of the nature described in the above quoted portion of OCGA § 50-13-19 (a) and thus ripe for judicial review. Appellee argues that appellant seeks an overly broad construction of the statute which will permit judicial review any time an administrative ruling risks duplication of effort or expense by the licensee and suggests a more restrictive standard from Thomas v. Ga. Bd. of Dentistry, 197 Ga. App. 589 (398 SE2d 730) and predicated upon Moss v. Central State Hosp., 255 Ga. 403, 404 (339 SE2d 226).

Decided October 20, 1994

Reconsideration denied November 10, 1994

Wilson, Strickland & Benson, Frank B. Strickland, Anne W. Lewis, Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellant.

Michael J. Bowers, Attorney General, Stephanie B. Manis, Deputy Attorney General, Beverly B. Martin, Senior Assistant Attorney General, Kevin H. Hudson, Assistant Attorney General, Wayne B. Mangum, for appellee.

In our view, neither of the parties is entirely correct. The Thomas and Moss cases deal with the propriety of relying upon declaratory judgment actions where administrative remedies are inadequate. The above quoted provision of OCGA § 50-13-19 (a) which appellant seeks to assert is one providing for interlocutory appeal within the context of contesting a case under the Administrative Practice Act. The issues in Wills concerning access to board records were held to fall within the parameters of the quoted portion of OCGA § 50-13-19 (a) based on contentions that a defense could not be adequately prepared without the requested records and the Supreme Court’s conclusion that irreparable injury could result without resolution of the issues concerning access to the records prior to a final hearing on the merits. The Supreme Court considered further issues in Wills as a matter of judicial economy.

The provision for immediate appeal under OCGA § 50-13-19 (a) is not applicable simply because an administrative ruling risks duplication of effort or expense. Such would render virtually every interlocutory administrative decision subject to immediate review. Instead there must be some suggestion that the administrative ruling, if incorrect, could not be remedied so as to cause irreparable harm.

We granted appellant’s application for permission to file this appeal from concern that the facts presented here amounted to a repetition of the errors committed in Wills. Since the record shows that appellant has been provided with all exculpatory matter from appellee’s file, all that is required by Wills, that supposition is shown to be incorrect. Review of the final administrative decision will provide an adequate remedy concerning appellant’s continuing demand for the remainder of appellee’s investigative file. Nor is an immediate review of appellant’s remaining issues necessary to assure an adequate remedy. We find no error in the denial of appellant’s petition for judicial review, although we explicitly note that no inference should be taken from this opinion as to the merits of the issues which appellant sought to have reviewed by the superior court.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

Arnall, Golden & Gregory, Karen Bragman, amicus curiae.


author: Beasley, Presiding Judge.

text:
    A94A1677.
    MILLER et al. v. SOUTHERN HERITAGE INSURANCE COMPANY. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. SOUTHERN HERITAGE INSURANCE COMPANY.
    A94A1678.
    (450 SE2d 432)
   Beasley, Presiding Judge.

Southern Heritage issued an insurance policy to Donald E. Chambers, Sr., covering an automobile used primarily by his son, Donald E. Chambers, Jr. While the car was being driven by 15-year-old Stephen Adams, it was involved in a collision injuring David Miller, a passenger. Since Adams possessed only a learner’s permit and Miller was only 17 years old, Adams was driving illegally. OCGA § 40-5-24 (a). Nevertheless, he had been given permission to drive the car by Donald E. Chambers, Jr. Adams was insured by State Farm, although it disputes coverage.

Southern Heritage paid Miller’s medical expenses under liability coverage for bodily injury until those expenses reached something over $11,000, less than the $15,000 it then believed it was obligated to pay by law. After failing to negotiate a settlement, Southern Heritage sought declaratory judgment. It alleged that it had mistakenly made payments and was not liable for any of the expenses at all. It asserted in the alternative that it was liable for not more than $15,000, the statutory minimum automobile liability insurance required. See OCGA §§ 33-34-4; 40-9-34 (2); 40-9-37. The declaratory judgment action was based on a clause in Chambers’ policy that excluded liability coverage “for any person ... (8) [u]sing a vehicle without a reasonable belief that the person is entitled to do so.” By cross-complaint, the Millers claimed damages substantially in excess of $15,000.

Southern Heritage was granted summary judgment. The court held that Adams could not have had a reasonable belief that he was entitled to drive the car, that he was not a covered person under the policy, and that Southern Heritage was not liable to the Millers. The Millers’ motion for summary judgment was denied. In Case No. A94A1677, the Millers appeal the denial of their motion and the grant of Southern Heritage’s motion for summary judgment; in Case No. A94A1678, State Farm appeals the grant of Southern Heritage’s motion.

Case No. A94A1677

1. The Millers first argue that their motion for summary judgment should have been granted because Southern Heritage improperly sought a declaratory judgment in that it was seeking confirmation of actions already taken, not guidance. The purpose of the declaratory judgment act, which is to be “liberally construed and administered,” is “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” OCGA § 9-4-1. “ ‘ “ ‘ “The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated.” ’ ” ’ ” Famble v. State Farm Ins. Co., 204 Ga. App. 332, 333-334 (2) (419 SE2d 143) (1992).

As to approximately the first $11,000, Southern Heritage does not need guidance. It has already paid this amount, and there is no controversy with respect to it. Instead, Southern Heritage seeks a declaration that payment of this amount is not required by law or contract. Such would be merely advisory; the only actual controversy as to this money is created by the declaratory judgment action itself, and one cannot create a controversy for declaratory judgment purposes by filing a lawsuit. If the court ruled that insurance law imposed a duty to pay it, no future action would be necessary. If the court ruled that Southern Heritage was not required to pay it, its only possible future action would be to demand reimbursement and file suit to collect it. The avoidance thereof is not the purpose of a declaratory judgment action.

There do remain unanswered questions of Southern Heritage’s obligation to supply a defense to Chambers, and its obligation to pay additional amounts, that is, the unpaid amount up to $15,000 and any amount beyond $15,000. A declaratory judgment action is appropriate as to the issue of these unmet claims. Contrary to the Millers’ contention, the declaratory judgment action was not filed after a denial of a claim; Southern Heritage’s offer to settle the Millers’ future claims did not constitute a denial of coverage and does not make the action advisory. See Atlanta Cas. Co. v. Fountain, 262 Ga. 16 (413 SE2d 450) (1992).

The Millers also contend that their motion for summary judgment should have been granted because Southern Heritage, by paying some medical expenses, waived reliance on the exclusion clause or is estopped from asserting that the clause is operative. Southern Heritage responds that it did not waive the exclusion clause but paid medical expenses to the extent it did because, under its interpretation of Georgia case law, public policy required it to do so.

Southern Heritage produced evidence that it believed it was required by the Supreme Court’s decision in Stepho v. Allstate Ins. Co., 259 Ga. 475 (383 SE2d 887) (1989), to provide coverage up to the $15,000 statutory requirement to comply with public policy. Stepho requires that exclusionary clauses be declared void when “the injured party [or] the unsuspecting insured is left unprotected.” Id. at 476 (1); see also Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 341 (1) (329 SE2d 136) (1985). Having made this determination, Southern Heritage proceeded to pay without seeking a declaratory judgment on that issue, until it had paid about $11,000.

The court did not determine whether Stepho required the payments nor does the record include all the information necessary to determine the issue. Whether public policy would be violated by the operation of the exclusion clause involves a fact specific inquiry; each case “must be individually evaluated to determine whether [the exclusion clause is] against public policy. [Cit.] . . . [and the court] must determine whether in the context of [each] case the exclusion either unfairly penalizes innocent victims or unfairly exposes the insured to liability.” Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355, 356 (359 SE2d 665) (1987).

After the declaratory judgment action was filed, State Farm contended that it was not liable under its policy. The evidence is incomplete to decide if Southern Heritage is obligated beyond what it has paid, up to $15,000. The public policy issue does not affect the amounts paid nor any amount over $15,000.

If Stepho did require the payments, there was no waiver of the exclusion clause because Southern Heritage had no practical choice as a legal matter; it could have been forced to pay. If Stepho did not require the payments, then there was a waiver of the exclusion clause up to the amounts paid, because Southern Heritage did not seek declaratory judgment before making them, instead risking error in its interpretation of Stepho. “An insurer may waive or be estopped from enforcing even valid policy exclusions by failing to assert them in a timely manner. [Cit.]” Daniel v. Safeway Ins. Co., 199 Ga. App. 833, 835 (1) (406 SE2d 266) (1991). Compare Sargent v. Allstate Ins. Co., 165 Ga. App. 863, 866-867 (1) (303 SE2d 43) (1983).

As to Southern Heritage’s obligations over $15,000, it timely asserted the exclusion when payments approached the $15,000 level, by telephone conversation with, and letter to, Miller’s father.

2. The court ruled that Southern Heritage had shown there was no question of fact that the exclusionary clause applied. The Millers contend that it is for a jury to decide if the provisions of the exclusion clause were met, arguing that Adams could be found to have had a reasonable belief that he was entitled to use the car.

“Under the instant exclusion the issue is . . . the state of mind of the user. [Cits.]” Ga. Farm &c. Ins. Co. v. Fire &c. Ins. Co., 180 Ga. App. 777, 779 (350 SE2d 325) (1986). “ ‘The use of the term “reasonable belief” in the exclusionary clause provides an objective standard. . . . From the language of the clause it is clear that coverage is excluded if the driver (a) knew he was not entitled to drive the vehicle, or (b) if he claimed he believed he was entitled to drive the vehicle, but was without reasonable grounds for such a belief or claim. [Cit.]’ [Cit.]” Cincinnati Ins. Co. v. Plummer, 213 Ga. App. 265, 267 (2) (444 SE2d 378) (1994).

In the context of a clause such as the one at issue, two types of permission or authority are needed: permission of the person properly in control of the car and permission of the State. Without reasonable grounds for a belief that permission from the owner and authority from the State were granted, it cannot be maintained that Adams reasonably believed he was entitled to use the vehicle. Adams admitted he knew in advance that, as a holder of a learner’s permit, he was not legally authorized to drive any car, including the Chambers’ car on this occasion, without a licensed adult accompanying him. As a matter of law, he cannot be considered to have had any “reasonable belief” that he was entitled to drive the car. The exclusion clause applies.

Safeway Ins. Co. v. Holmes, 194 Ga. App. 160, 162 (2) (390 SE2d 52) (1990), is not controlling. Holmes determined that there was a jury question about an underaged driver’s reasonable belief, but the court in that case was apparently faced only with the existence of the law prohibiting a driver aged 15 from operating a car without a properly licensed adult supervisor, OCGA § 40-5-24 (a). The decision did not focus upon the driver’s state of mind and no facts are recited as to whether the 15-year-old driver in that case knew she was not legally authorized to drive.

Case No. A94A1678

3. State Farm contends that Southern Heritage waived any right to assert that the exclusion barred any coverage because it untimely raised the exclusion. This issue has been addressed in Division 1.

4. State Farm also contends the court erred in granting Southern Heritage summary judgment because it is a question for a jury whether Adams had a reasonable belief that he was entitled to drive the car. This issue is resolved in Division 2.

In sum, there are three different amounts of coverage at issue; (1) the payments already made, as to which a declaratory judgment action does not lie, (2) unpaid amounts up to $15,000, as to which it must be determined whether Stepho applies; (3) amounts over $15,000 (and unpaid amounts up to $15,000 if Stepho does not require payment), as to which the court correctly ruled there had been no waiver.

Decided October 20, 1994

Reconsideration denied November 10, 1994

Duffey & Duffey, Harl C. Duffey, Jr., Rogers, Magruder, Sumner & Brinson, J. Clinton Sumner, Jr., for Miller.

Harper, Waldon & Craig, Thomas D. Harper, Hilliard V. Castilla, for State Farm Ins. Co.

Goodman, McGuffey, Aust & Lindsey, William P. Claxton, Constance C. Russell, for Southern Heritage Ins. Co.

To the extent that the trial court’s grant of summary judgment addressed Southern Heritage’s liability for sums already paid, it was in error and is reversed; the propriety of summary judgment as to Southern Heritage’s liability for unpaid sums below $15,000 cannot be determined under Stepho given the facts on record and must be addressed on remand; the grant of summary judgment on the issue of Southern Heritage’s liability for sums over $15,000 and its duty to defend was correct and is affirmed. As to the Millers’ motion for summary judgment, denial was error as to amounts already paid, liability cannot be determined as to unpaid amounts under $15,000 except on remand, and denial was correct as to amounts over $15,000.

Judgments affirmed in part, reversed in part, and remanded.

Andrews and Johnson, JJ., concur.


text:
    A94A2367.
    McLEOD v. PRUCO LIFE INSURANCE COMPANY et al.
    (449 SE2d 895)
   McMurray, Presiding Judge.

Plaintiff Kermit McLeod brought this action against defendant Insignia Management Group and its insurer, defendant Pruco Life Insurance Company, alleging that on May 16, 1991, “Joan F. Chernekau [sic], as agent for [defendants], directed the City of Atlanta Police Department to arrest plaintiff for theft by taking of . . . $561 in cash . . .” from the management office of the apartment building where plaintiff was employed. “Plaintiff was arrested, handcuffed and taken to the Atlanta City Police Department where he was interrogated and subsequently released.” After a hearing in the Atlanta Municipal Court, “the prosecution was terminated in favor of the plaintiff because there was no probable cause . .. [for plaintiff’s arrest].” Defendants denied the material allegations and, after a period of discovery, moved for summary judgment on the ground that plaintiff’s arrest was the independent decision of the police officer, Detective Ron K. English.

Viewed in the light most favorable to plaintiff as the non-movant, the record shows that Ms. Joan Schernekau, Ms. Tanya Smith, and plaintiff worked for Brookwood Valley Apartments. These apartments are owned by defendant Pruco Life Insurance Company and managed by defendant Insignia Management Group, L. P. At all pertinent times, Ms. Schernekau was the office manager of Brookwood Valley Apartments, Ms. Smith was a leasing agent, and plaintiff was a porter. On May 16, 1991, Ms. Smith reported to Ms. Schernekau that $561 in cash was missing from her desk. All employees, plaintiff included, emptied their pockets but the cash was not recovered. Ms. Schernekau reported this loss to the police the next day. At deposition, plaintiff testified that he was interviewed at work by two (unnamed) detectives from the Atlanta Police Department, one week after the theft was discovered. During this interview, Ms. Schernekau approached one of the officers. Plaintiff overheard her as she queried whether plaintiff would be “[taken] to jail or [given] a subpoena[, saying,] It couldn’t have been no one else but him. . . . Either you give him a subpoena or take him to jail anyway because he’s leaving [defendant’s apartment] complex today.” When this officer returned, “[h]e handcuffed [plaintiff] and walked [him] out the door.” Plaintiff “asked why [and was told]: Because Joan said it couldn’t have been no one else but you, directly to jail, do not pass go, do not get $200.” However, plaintiff conceded that “no one from Brookwood accused [him] directly nor [had he heard] from anyone else that anyone from Brookwood accused [him].”

In support of their motion for summary judgment, defendants introduced the affidavit of the arresting officer, Detective Ron K. English of the Atlanta Police Department. He deposed that Ms. Joan Schernekau and Ms. Tanya Smith reported to him that a deposit of $561 had been left in Ms. Smith’s office and that while these two “were outside the office in the front of the apartments, . . . they observed Mr. McLeod coming from the back office area where [Ms. Smith’s] office is situated.” According to Detective English, “[t]he gist of both [witnesses’] statements indicated that it seemed to Ms. Smith and Ms. Schernekau that no one, other than plaintiff, had access to the missing money between the time it was last seen and the time it was discovered missing.” Nevertheless, “[a]t no time did Ms. Smith or Ms. Schernekau or anyone from Brookwood Valley Apartments ever directly accuse [plaintiff] of taking the money, nor did they unduly influence me to charge [plaintiff] or prosecute him.” Finally, Detective English deposed that “[t]he decision to charge [plaintiff] was made by [Detective English] acting independently in [his] profession as an investigator based upon [his] experience combined with the facts as revealed to [him] by the witnesses and the circumstantial evidence which indicated that [plaintiff] had been the only person who had access to the funds [at the pertinent times].” In a subsequent affidavit, Detective English deposed that “[he] would not have arrested [plaintiff] were it not for the statements of Ms. Schernekau and Ms. Smith that [plaintiff] was the only person who had access to the money at the time of the theft.” Ms. Schernekau testified that, “[i]t was a police decision [to arrest plaintiff].” She conceded the possibility “that someone could have come in the side door and taken the money without [her] seeing them” although she thought that “would have been very difficult. . . .” The charge against plaintiff was dismissed, upon a determination that there was no probable cause, after a hearing at which Ms. Smith and Ms. Schernekau testified that the office had been unlocked during the period in question.

The trial court granted defendants’ motion for summary judgment and this appeal followed. Held:

1. In related enumerations, plaintiff contends the trial court erred in granting summary judgment, arguing that it is a jury question whether Ms. Schernekau “urged the police to arrest Plaintiff [based on false information] and [whether] the police officer’s ultimate decision to arrest was based upon false information. . . .”

“ ‘Where a criminal process, valid on its face, has been maliciously sued out without probable cause, an action for malicious arrest or malicious prosecution is the only remedy.’ Grist v. White, 14 Ga. App. 147 (2) (80 SE 519) (1914).” Gillilan v. Still, 199 Ga. App. 118 (1), 119 (404 SE2d 445). See also OCGA § 51-7-1. “ ‘The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. . . . [T]he initiation of the criminal action need not be expressly directed by the party to be held liable. Webb v. Prince, 62 Ga. App. 749, 752 (9 SE2d 675) (1940).’ Ginn v. C. & S. Nat. Bank, 145 Ga. App. 175, 178 (243 SE2d 528) (1978).” Melton v. LaCalamito, 158 Ga. App. 820, 822 (2a) (282 SE2d 393).

In the case sub judice, plaintiff’s testimony would authorize a finding that defendants’ agents did somewhat more than objectively report the facts they observed. Nevertheless, any factual issue generated by evidence that Ms. Schernekau indirectly urged Detective English to give plaintiff a subpoena or else take to him to jail is rendered immaterial by Detective English’s uncontradicted testimony that the decision to arrest plaintiff was made solely by him in the exercise of his professional judgment, and independently of any exhortations by defendants’ agents. His subsequent statement that he would not have arrested plaintiff had he not been told of the circumstances by Ms. Schernekau and Ms. Smith does not contradict his earlier statement as to the exercise of his professional judgment. This evidence affirmatively shows the absence of any causal link between those acts attributable to defendants and the decision to arrest plaintiff. “[Detective English’s uncontradicted] statement of fact relieved [defendants] of potential liability for malicious prosecution. [Cit.]” Huff v. Household Intl., 184 Ga. App. 296 (2) (361 SE2d 273). Accord Tench v. Turner, 201 Ga. App. 156, 157 (1) (410 SE2d 357). Consequently, the trial court correctly granted defendants’ motion for summary judgment.

Decided October 27, 1994

Reconsideration denied November 10, 1994

Nick Long & Associates, Darryl S. Marmon, for appellant.

Carter & Ansley, Thomas E. Magill, Keith L. Lindsay, for appellees.

2. Plaintiff’s three remaining enumerations have been considered and are found to have been rendered moot by our disposition in Division 1.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Johnson, Judge. Andrews, Judge,

text:
    A94A2469.
    GILSTRAP v. THE STATE.
    (450 SE2d 436)
   Johnson, Judge.

James Edgar Gilstrap was indicted on one charge of rape and three counts of child molestation involving his thirteen-year-old adopted daughter. He was convicted on the molestation counts. He appeals his convictions.

1. The trial court correctly refused to allow an expert retained by Gilstrap to testify regarding results of tests administered to him and render an opinion as to whether Gilstrap’s responses fit the profile of a pedophile. This court has repeatedly held that such testimony is not admissible in Georgia. Lewis v. State, 212 Ga. App. 310, 311 (2) (441 SE2d 851) (1994); Smith v. State, 206 Ga. App. 557, 559 (2) (426 SE2d 23) (1992). “From the extensive testimony and cross-examination of the various witnesses at trial, the jury, without the help of expert opinion, could have determined the credibility and truthfulness of all the witnesses and could have formed independent opinions as to the victims’ truthfulness and the appellant’s capability of performing the acts he was accused of. These determinations did not involve ‘unique and mysterious areas of human response’ necessitating expert testimony.” Jennette v. State, 197 Ga. App. 580, 582-583 (3) (398 SE2d 734) (1990).

2. Gilstrap’s second and third enumerations of error focus, on trial court rulings regarding an incident during which the victim’s grandfather admitted to squeezing the victim’s breasts. This incident occurred several years before the events giving rise to the indictments in this case. Gilstrap first complains that the trial court erred in failing to grant a continuance because the state had not produced information regarding the incident prior to the call of the case for trial. Gil-strap argues that the incident would be admissible to show that the child had knowledge that sex acts can occur between adults and children.

In certain contexts, evidence of a prior molestation is admissible, and would have been discoverable to Gilstrap pursuant to his pretrial motion filed pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). For example, in Lemacks v. State, 207 Ga. App. 160 (427 SE2d 536) (1993), a physician was permitted to testify about repeated penetration of the vagina and anus to show that someone other than the defendant could have caused the injuries; and in Hall v. State, 196 Ga. App. 523, 524 (2) (396 SE2d 271) (1990), evidence of previous molestation was admissible to explain a child’s exhibition of behaviors consistent with the child abuse accommodation syndrome. However, neither of these exceptions, nor any other legitimate purpose for allowing such evidence, is present in this case. In Wilson v. State, 210 Ga. App. 705 (436 SE2d 732) (1993), this court held that the trial court did not abuse its discretion in ruling that evidence of a previous molestation was not relevant to the present charge for the purpose for which it was offered. Similarly, in this case, where the child was 13 at the time of the molestation and 14 at the time of trial, it is unlikely that, but for the previous incident, she would not have been aware that sex acts could occur between adults and children. Nor is there evidence that there was any confusion in her mind regarding the identity of the perpetrator. In this case, Gilstrap was convicted of three counts of child molestation, touching and fondling his daughter’s vagina, causing her to touch and fondle his penis, as well as touching and fondling her breasts, activities which go beyond the previous incident. Because Gilstrap has failed to identify a theory under which the evidence of the prior act would be admissible, the evidence cannot be considered exculpatory and the trial court did not abuse its discretion in refusing to grant a continuance. OCGA § 17-8-22; Strickland v. State, 212 Ga. App. 170, 172 (3) (441 SE2d 494) (1994).

Gilstrap further asserts that the trial court erred in refusing to allow testimony at trial regarding the prior incident. For the reasons set forth above, the evidence of the prior incident was not admissible and the trial court did not abuse its discretion in disallowing the testimony.

3. Gilstrap asserts that the trial court erred in refusing to declare the rape shield statute (OCGA § 24-2-3, as amended effective July 1, 1989) unconstitutional. Prior to its amendment in 1989, the rape shield statute was held to be constitutional by the Georgia Supreme Court in Harris v. State, 257 Ga. 666 (362 SE2d 211) (1987). Although our research has not revealed a Supreme Court case which has addressed the constitutionality of the statute as amended, any ruling thereon would have to come from the Supreme Court which has exclusive jurisdiction over cases in which the constitutionality of a statute is drawn into question. Pruitt v. State, 203 Ga. App. 125, 127 (3) (416 SE2d 524) (1992); Ga. Const. 1983, Art. VI, Sec. VI, Par. II (1). It is clear, however, that any challenge to rape shield evidence was rendered moot by Gilstrap’s acquittal on the charge of rape.

4. We see no error in the manner in which the trial court complied with Gilstrap’s Brady motion. The only information which Gil-strap identifies in his brief as being potentially exculpatory but not provided to him prior to his cross-examination is a pre-trial statement made by the victim in which she suggested that Gilstrap used a condom during the alleged rape. At trial the victim testified that during the alleged rape Gilstrap put “something” on his penis, but she did not know what it was. As in Division 3 above, this enumeration refers to the rape charge upon which a “not guilty” verdict was returned. Pretermitting whether the failure to provide the statement to Gil-strap was error, the acquittal on the rape charge renders this enumeration moot. Gilstrap has failed to show material prejudice to his case from the failure of the court to turn over the evidence, which is necessary to warrant a reversal by this court. Tribble v. State, 248 Ga. 274 (280 SE2d 352) (1981).

5. In his final enumeration of error, Gilstrap complains that the trial court erred in allowing similar transaction evidence of acts which were not charged in the indictment without complying with the hearing requirements of Uniform Superior Court Rule 31.3. The state filed a written notice of its intent to introduce the evidence more than ten days prior to trial. Prior to jury selection, the prosecutor orally presented a summary of the similar transaction evidence, which consisted of the victim’s account of acts which took place two weeks before the first incident of molestation charged in the indictment. These acts involved Gilstrap rubbing his penis against the victim’s vagina and placing his mouth on her breasts. The court found that the evidence met the criteria for the admissibility of such evidence pursuant to Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) and allowed the evidence. The method of notification of intent to introduce evidence and the prosecutor’s presentation of a summary of the evidence given prior to trial satisfies the requirements as contemplated by the rule and case law. McGowan v. State, 198 Ga. App. 575, 576 (1) (402 SE2d 328) (1991). Accordingly we see no basis for this assertion of error.

Judgment affirmed.

Beasley, P. J., concurs. Andrews, J., concurs specially.

Andrews, Judge,

concurring specially.

Under the case law cited by the majority opinion, the proffered expert testimony regarding the profile of a pedophile was inadmissible in the instant case. However, I see little difference (in quality of evidence) between expert testimony regarding abused child syndrome, which is admissible in this state, and the type of expert testimony excluded in this case. As argued by the appellant, there is the appearance of an unlevel playing field, with the state being allowed to present such “soft science” but the defendant being prohibited from doing likewise.

Evidence of “syndromes” should be greeted with caution, if not suspicion. In this age earmarked by the denial of personal responsibility, it sometimes appears that the defense strategy of choice is to formulate a new syndrome as the situation dictates. Our current legal lexicon includes such phenomena as the battered wife syndrome, the abused child syndrome, and the post-traumatic stress syndrome, and the catalogue is expanding. Recently, an attempt was made to establish an “urban survival syndrome” in a Texas murder trial, in which an expert explained that the defendant shot two unarmed men because the environment in which all three men lived had heightened his fear of the victims, who matched the profile of statistically the most dangerous men in America, i.e., inner city young black males. Time, June 6, 1994, p. 30.

Our Supreme Court has determined that expert testimony concerning the battered woman syndrome and the abused child syndrome is admissible in Georgia, provided the expert does not state a conclusion that the victim was abused. Allison v. State, 256 Ga. 851, 852 (353 SE2d 805) (1987); Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981). However, that Court has not yet seen fit to question this court’s resistance to adding other syndromes, such as the profile of a pedophile, to that list of admissible “soft science” evidence. See Jennette v. State, 197 Ga. App. 580 (398 SE2d 734) (1990) (expert testimony of pedophile’s profile and expert testimony concerning a “lying child syndrome” held inadmissible).

The formulation of a psychological or sociological profile of a pedophile has gained little acceptance in either the scientific community or the courts. See Flanagan v. State, 586 S2d 1085, 1115 (Fla. 1991). In fact, it appears that “ ‘[w]ith the notable exception of courts in California, . . . virtually every appellate court that has ruled on the admissibility of expert testimony regarding the psychological profile of child molesters has rejected it.’ ” State v. Michaels, 625 A2d 489, 510 (N. J. 1993), quoting from Peters & Murphy, Profiling Child Sexual Abusers, Legal Considerations, 19 Crim. Justice and Behavior 38, 39 (1992).

Decided October 31, 1994

Reconsideration denied November 10, 1994

Troy R. Millikan, for appellant.

Lydia J. Sartain, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

Even evidence of syndromes associated with victims has met with divergent judicial treatment. Some courts have excluded such evidence where it was adduced for the sole purpose of proving the victim was abused, while admitting the same type of evidence where it was submitted to rehabilitate a witness whose credibility was attacked. Flanagan v. State, supra at 1113-1114. As noted above, in Georgia an expert is permitted to describe the abused child syndrome but may not conclude that the child was abused. This often results in the admissibility of such evidence depending upon a semantical distinction, in that experts are permitted to describe the syndrome and then state that the victim’s behavior was consistent with that syndrome. See State v. Butler, 256 Ga. 448 (349 SE2d 684) (1986).

It is difficult to explain why we should put stock in psychological evaluation and opinion with regard to syndromes pertaining to victims, yet extend no credence to syndromes or profiles relating to offenders. Perhaps the better solution would be to exclude all syndrome evidence. However, this court having no power to close* the door opened by the Supreme Court, I suppose the best we can do is to continue to screen out other dubious syndromes as they are imagined and promoted by individuals who need to explain away their conduct.


author: Birdsong, Presiding Judge.

text:
    A93A1245.
    PAFFORD v. BIOMET et al.
    (451 SE2d 128)
   Birdsong, Presiding Judge.

In Pafford v. Biomet, 210 Ga. App. 486 (436 SE2d 504), we affirmed the trial court’s grant of summary judgments to defendants Biomet and Pfizer. The Supreme Court, on certiorari, reversed our affirmance of the grant of summary judgment to Biomet and affirmed our affirmance of the grant of summary judgment to Pfizer. Pafford v. Biomet, 264 Ga. 540 (448 SE2d 347). Remittitur having been received in this court on October 27, 1994, the grant of summary judgment to Biomet is hereby reversed and the grant of summary judgment to Pfizer is hereby affirmed. The trial court is directed to enter judgment accordingly.

Decided November 10, 1994.

Sutton & Associates, Berrien L. Sutton, for appellant.

Love & Willingham, John A. Gilleland, Michael J. Hannan III, Sullivan, Hall, Booth & Smith, John E. Hall, Jr., T. Andrew Graham, for appellees.

Judgments affirmed in part and reversed in part.

Pope, C. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A94A1526.
    NALLEY NORTHSIDE CHEVROLET, INC. v. HERRING.
    (450 SE2d 452)
   Johnson, Judge.

Nalley Northside Chevrolet, Inc. appeals on numerous grounds from a jury verdict in favor of Betty Herring. Herring brought an action against Nalley alleging fraud, negligence, breach of contract and RICO violations in connection with repairs undertaken by Nalley on Herring’s car after it was damaged in a collision. The RICO claim was eliminated prior to trial.

1. The first alleged error arises out of the trial court’s denial of Nalley’s motion to change venue from Gwinnett County to Cobb County. On appeal Nalley argues that no basis for venue existed in Gwinnett County because it did no business there and its registered office was in Cobb County. In support of its motion to transfer, Nalley presented an affidavit to the trial court in which it represented that the registered office was located in Cobb County. An evidentiary hearing followed this motion, but a transcript of this hearing is not a part of the record on appeal.

The record does include, however, the trial court’s ruling on the motion to transfer which states it is “undisputed” that the registered office listed with the Secretary of State is in Gwinnett County. Nalley moved for reconsideration of this finding and argued that it never conceded that the registered office was located in Gwinnett County. The trial court’s ruling on this motion specifically responds that the Secretary of State had listed the registered agent’s address in Gwinnett County up until September 3, 1991, when Nalley changed it to Cobb County. Because a transcript would be necessary for a review of the claimed error and it is not before us, this court must assume that the trial court’s decision was supported by the evidence. Barber v. H & H Muller Enterprises, 197 Ga. App. 126, 129 (1) (397 SE2d 563) (1990).

2. Nalley also asserts that the trial court should have granted its motion for summary judgment or, in the alternative, to dismiss because Herring lacked standing to pursue the claims in issue. Nalley maintains that Herring’s insurer became the real party in interest upon issuing a check to Herring for the damage done to her car in a collision with another vehicle.

Nalley correctly observes that an insurer is generally subrogated to the insured’s right to collect damages from the party causing the damage or injury. Nalley does not assert, however, that Herring’s insurer made any payments to her in compensation for damages resulting from Nalley’s actions. Thus, Herring’s insurer may have assumed certain subrogation rights in claims she may have had against the driver of the other vehicle, but they would not have included the claims against Nalley for its alleged misconduct. Nalley’s motion was properly denied.

3. Nalley complains about the admission of certain evidence. First, it maintains that repair invoices generated by Nalley and its predecessor in interest were improperly admitted through an independent insurance appraiser named Robert West. These documents, none of which referred to Herring, attempted to establish a pattern of charging for parts which were not used in repairs, thereby defrauding insurance companies and/or consumers. The trial court rejected Nalley’s relevance and hearsay objections. OCGA § 24-3-14, the Georgia Business Records Act, governs the admissibility of business records. Subsection (b) requires that a foundation be laid through the testimony of a witness “who is familiar with the method of keeping the records and who can testify thereto and to facts which show that the entry was made in the regular course of a business at the time of the event or within a reasonable time thereafter.” Hertz Corp. v. McCray, 198 Ga. App. 484, 485 (2) (402 SE2d 298) (1991). The Georgia Business Records Act does not require that the person laying the foundation be the custodian of the records, but the witness must be familiar with the method of recordkeeping. Id. at 486. West offered no testimony establishing his familiarity with Nalley’s method of keeping records, when the records were made or to facts showing that the entries were made in the regular course of business. He also testified that he had no personal knowledge about any of the transactions or parties reflected on the records about which he was testifying. Thus, a proper foundation was not laid, and the records should not have been admitted.

Nalley also argues the testimony of West and a prior Nalley employee named Lenny Brown concerning past fraudulent parts conversion was improperly admitted by the trial court because the testimony was irrelevant with respect to this case. The admission of evidence is a matter which rests largely within the sound discretion of the trial court, and the exercise of this discretion will not be disturbed on appellate review unless manifestly abused. Haynes v. State, 180 Ga. App. 202, 203 (3) (349 SE2d 208) (1986). Three specific allegations of fraud are made in this case: 1) that Nalley misrepresented the length of time it would take to repair the car; 2) that certain repairs had been made to the car which had not been made; and 3) that the car had been completely repaired, when it had not. None of these allegations pertains to parts conversion or defrauding customers and/ or insurance companies with respect to charges for parts and labor. Therefore not only were the documents and testimony regarding them improperly admitted into evidence as business records, the testimony was not relevant to Herring’s claims and the trial court erred in admitting it. The admission of the documents and the testimony concerning them constitutes harmful error and the judgment must be reversed.

4. Four of the remaining errors asserted involve jury instructions. Nalley complains that the trial court erred in refusing to charge the jury on the plaintiff’s burden to prove damages with reasonable certainty; in refusing to charge the jury on the elements of misrepresentation sufficient to justify fraud, reasonable reliance by the plaintiff, and promises as to future acts; in instructing the jury that innocent misrepresentations could constitute fraud absent a confidential or special relationship, and that constructive fraud could serve as the basis for that claim; and in instructing the jury on civil conspiracy. Nalley’s failure to object to the first two charges listed above constitutes a waiver of any objection on appeal as to those charges. Peterson v. State, 212 Ga. App. 31, 33 (2) (441 SE2d 267) (1994); Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156, 157 (2) (378 SE2d 510) (1989).

Nalley argues that an instruction on constructive fraud was improper in a suit seeking money damages because such a claim affords only equitable relief. We agree. Constructive fraud is an equitable doctrine and will not support an action for damages. Irvin v. Lowe’s of Gainesville, 165 Ga. App. 828, 830 (4) (302 SE2d 734) (1983). This action, brought by Herring in state court, sought legal remedies only, and the trial court’s instructions defining constructive as well as actual fraud were therefore improper. In that the jury returned a verdict against Nalley on the fraud claim, the erroneous instruction cannot be treated as harmless, and the judgment must be reversed on this ground.

In connection with this enumeration of error, Nalley argues that the trial judge erroneously instructed the jury about the circumstances under which nondisclosure may amount to fraud pursuant to OCGA § 23-2-53. In that the enumeration of error does not encompass this argument, it is not subject to review by this court.

Finally, Nalley argues that the jury should not have been instructed on civil conspiracy because no evidence of conspiracy was presented by Herring. Herring responds that she presented evidence of conspiracy through the testimony and actions of Nalley employee Lenny Brown. As Nalley correctly observed in its argument to the trial court, the proper instruction concerning Brown’s actions on behalf of the corporation was a charge on the law governing a principal and its agent. An instruction on conspiracy was not supported by the evidence because a corporation cannot conspire with itself, and here no allegation was made that Brown acted outside the scope of his employment. See Garrido v. Burger King Corp., 558 S2d 79, 81 (2) (Fla. App. 1990); John C. Holland Enterprises v. J. P. Mascaro & Sons, 653 FSupp. 1242, 1247 (4) (E.D. Va. 1987); Salaymeh v. Interqual, Inc., 508 NE2d 1155, 1158 (1-4) (111. App. 1987).

The trial court’s inappropriate instruction to the jury about the elements of conspiracy cannot be held to be harmless merely because the verdict form did not refer to a claim for conspiracy, and no damages were awarded specifically in connection with it. Even though Nalley cannot show any direct harm as a result of the instruction, we cannot say that the suggestion of conspiracy in the charge did not affect the jury’s punitive damage award. We conclude that the instruction was harmful and also warrants reversal.

5. Finally we review Nalley’s allegations of error with regard to the judgment entered on the jury’s verdict in order to avoid similar error on the retrial of the case. Nalley maintains the trial court should not have entered judgment in favor of Herring on both her contract and tort claims because she was awarded cumulative and inconsistent remedies. The jury returned a verdict in Herring’s favor awarding damages as follows: $5,400 on the breach of contract claim; $950 on the negligence claim; and $150 on the fraud claim. The jury also awarded substantial attorney fees and punitive damages. Although Nalley did not object to the form of the judgment below, it may nevertheless raise this issue for the first time on appeal since the award was arguably improper as a matter of law. Long v. Marion, 182 Ga. App. 361, 365 (5) (355 SE2d 711) (1987).

“It is axiomatic that a single act or course of conduct may constitute not only a breach of contract but an independent tort as well, if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of the contract to avoid harming him. Such duties may arise from, statute, or flow from relations created by contract, express or implied.” (Citations and punctuation omitted.) Waldrip v. Voyles, 201 Ga. App. 592, 593 (1) (411 SE2d 765) (1991). In this case, Herring contracted with Nalley to repair her car. The breach of the contract was the negligent performance of the duties arising by the contract. This straightforward transaction does not create any independent duty. Therefore, entry of judgment on the jury’s award of damages for breach of contract and the award for negligence constitutes an impermissible double recovery and was error. See Sheppard v. Yara Engineering Corp., 248 Ga. 147, 148 (281 SE2d 586) (1981).

Decided November 10, 1994

Richelo, Morrissey & Gould, Brian J. Morrissey, Brock & Clay, Richard W. Calhoun, for appellant.

Glenville Haldi, for appellee.

The jury’s award of damages for fraud, however, may stand. “Even in an action for breach of contract, . . . punitive damages can be awarded, for fraud, if found, is tortious conduct.” (Citations and punctuation omitted.) Maddox v. Brown, 200 Ga. App. 492, 494 (5) (408 SE2d 719) (1991).

Judgment reversed.

Beasley, P. J., and Andrews, J., concur.


author: Blackburn, Judge.

text:
    A94A1849.
    THOMASON v. THE STATE.
    (450 SE2d 283)
   Blackburn, Judge.

Following a trial by jury, the appellant, David Ray Thomason, was found guilty of one count of voluntary manslaughter. On appeal, Thomason enumerates five errors. Held:

1. Thomason contends that the trial court erred by denying his motion to suppress based upon the insufficiency of the affidavit to support the issuance of the search warrant.

“On review of a ruling on a motion to suppress, we construe the evidence most favorably to the trial court’s ruling, as the trial court has ruled on disputed evidence and the credibility of the witnesses, and we must accept that ruling unless it is clearly erroneous. [Cits.] We are not authorized to substitute our findings of fact for those of the trial judge.” State v. Brown, 212 Ga. App. 800, 801 (442 SE2d 818) (1994).

An affidavit submitted in support of a search warrant “ ‘must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.’ [Cit.]” State v. McKendree, 188 Ga. App. 290, 291 (372 SE2d 673) (1988). The informant, named on the face of the warrant, related to the affiant that he had personally observed Thomason fire a .22 caliber magnum derringer into a pine tree in a specific location on a property belonging to Thomason’s brother. He stated that he had personally seen the resulting bullet holes and that Thomason’s brother told him he purchased a .22 caliber magnum derringer for Thomason.

Corroboration available to the affiant included information that the victim, Ashley Clemmons, had been killed by a bullet fired from a .22 caliber magnum derringer. Pawn shop records confirmed that Thomason’s brother had purchased such a weapon. Two witnesses to whom Thomason admitted killing Clemmons stated they had seen Thomason in possession of a .22 caliber “over and under” handgun on the night of the shooting. Moreover, the affiant stated that the informant’s demeanor was truthful in relating the foregoing information and that the informant had been known to law enforcement throughout his life as an honest, law-abiding citizen.

Construing the evidence in favor of the trial court’s ruling, we conclude that the ruling was supported by some evidence and was not clearly erroneous. Brown, supra.

2. Thomason next enumerates as error the trial court’s failure to allow him to make an offer of proof regarding the district attorney’s claim that Thomason lacked standing to make the motion to suppress. The district attorney’s challenge to Thomason’s standing to argue the motion to suppress was not entertained by the court and Thomason’s motion was heard and ruled upon by the court. Therefore, Thomason’s argument is moot.

3. Thomason also enumerates error in that the trial court, over objection, permitted a witness to testify who was not on the list of witnesses provided to Thomason in response to a demand pursuant to OCGA § 17-7-110. In making his objection, Thomason’s counsel did not request a continuance or otherwise seek an opportunity to conduct an interview prior to the witness being called to testify. See Tyus v. State, 196 Ga. App. 857, 858 (397 SE2d 194) (1990). The purpose of OCGA § 17-7-110, however, may be satisfied if the defendant is given a satisfactory opportunity to interview such a witness before the witness’ testimony is taken. Carroll v. State, 208 Ga. App. 316, 318 (4) (430 SE2d 649) (1993). The trial court provided Thomason such an opportunity. We therefore find this enumeration to be without merit.

4. Thomason contends that the trial court erred by publishing to the jury an affidavit in the nature of a witness’ prior consistent statement which had been admitted in evidence. Where error is raised for the first time before this court, nothing is presented for review, for this court is a court for the correction of error and no issue was ever raised during the trial calling for a ruling. Leonard v. State, 146 Ga. App. 439, 440 (1) (246 SE2d 450) (1978). In this regard, while Thomason had objected to the admissibility of the affidavit at the time it was offered into evidence, he made no separate objection to its going out with the jury. While the requirement for such an objection to be made where there has been an objection to the admissibility of the evidence seems totally unnecessary, we are constrained to follow this long-established rule. Gribble v. State, 248 Ga. 567, 572 (7) (284 SE2d 277) (1981). Accordingly, this assignment of error is without merit.

Decided November 10, 1994.

Douglas L. Henry, for appellant.

Michael H. Crawford, District Attorney, for appellee.

5. In his last enumeration of error Thomason challenges the evidence as insufficient to support his conviction of voluntary manslaughter beyond a reasonable doubt.

At trial, four witnesses testified that Thomason admitted killing Ashley Clemmons by firing indiscriminately into a fight between youths. Officer McClure testified that during the investigation of the case, Thomason’s former girl friend, Lisa Brown, told him that Thomason had admitted to her that he had killed Clemmons, although she disavowed having done so at trial. Forensic evidence admitted at trial established a match between the bullet taken from the victim’s body and at least one bullet seized in a search of the premises where Thomason worked. Other evidence of record established that Thomason had fired a .22 caliber magnum derringer into the tree from which the bullets were recovered and that he had been in possession of the derringer on the night Ashley Clemmons was killed.

We have reviewed all evidence of record and conclude that the jury verdict was authorized under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A94A1151.
    WILLIS et al. v. LISLE.
    (450 SE2d 826)
   McMurray, Presiding Judge.

In this tort action, plaintiff Lisle obtained a jury verdict and judgment against individual defendants Willis and McMillan, and against defendant Precision Sheet Metal Products of Georgia, Inc. The judgment included an award of punitive damages in the amount of $175,000 against the individual defendants. The defendants filed their motion for new trial, and upon consideration thereof, the trial court determined that the award of punitive damages was so clearly excessive as to be inconsistent with the preponderance of the evidence. The trial court entered its order noting these conclusions, its decision to reopen the judgment pursuant to OCGA § 9-11-50 (b), and its determination that $90,000 would be an appropriate punitive damages award. Purporting to act pursuant to OCGA § 51-12-12, the trial court conditionally granted the defendants’ motion for new trial unless plaintiff “provides written acceptance of the revised punitive damage award to the Court within 10 days of the date of this Order. . . . Upon acceptance of the reduced punitive damage award being filed with the Court, Defendants’ Motion for New Trial will stand denied as of the date of filing, without further order of the Court.” Plaintiff’s acceptance of the reduced punitive damages award was filed within the time allowed by the trial court’s order and the individual defendants filed their notice of appeal. Held:

The trial court erred in failing to afford the individual defendants any opportunity to reject the reduced amount of punitive damages determined by the trial court. In Spence v. Hilliard, 260 Ga. 107 (1), 108 (389 SE2d 753) our Supreme Court construed OCGA § 51-12-12 as follows: “Under the plain language of the statute a judge has three alternatives when a jury makes an award of damages that is clearly inadequate or excessive. The judge may (1) grant a motion for new trial; (2) grant a motion for new trial as to damages only; or (3) conditionally grant a motion for new trial. The third option gives the trial judge the opportunity to give the litigants the benefit of his or her trial experience and to spare the parties the expense and trouble of a new trial. Under this provision of the statute, the trial judge calculates an appropriate damage award. The parties then have an opportunity to accept the trial court’s award and end the case, or reject it and proceed with a new trial.

“All three statutory options involve granting a motion for new trial. All three give the litigants a second opportunity to present their claims to a jury. The statute does not authorize a trial judge to do what the judge did in this case — that is, reduce a damage award and deny a motion for new trial.”

While plaintiff maintains that the statutory language gives a trial judge discretion to condition the grant of a new trial on the rejection by any party the court chooses to designate, we do not agree. Bearing in mind that the amount of damages deemed appropriate by the trial judge stands as a substitute for a jury verdict which the trial court has determined to be inadequate or excessive, and that based upon the above construction of the statute, the Supreme Court of Georgia, in the second division of Spence v. Hilliard, supra, rejected a contention that the statute deprived litigants of the right to jury trial, it appears that the statutory scheme envisions that any party may reject the damage award of the trial court which is substituted for the jury verdict. If the trial court were permitted to designate less than all of the parties to accept or reject the trial court’s damage award, those not designated would be deprived of their right to a jury trial.

We have reviewed each of the remaining enumerations of error and found them to be without merit. The trial court’s order on the motion for new trial is vacated and the case remanded for reconsideration in the light of this opinion. Spence v. Hilliard, 260 Ga. 107, 108 (2), supra.

Decided October 19, 1994

Reconsideration denied November 14, 1994

Andersen, Davidson & Tate, Thomas T. Tate, William M. Ray II, for appellants.

Finch, McCranie, Brown & Thrash, Charles E. McCranie, Webb, Tanner & Powell, Anthony O. L. Powell, Steven A. Pickens, for appellee.

Judgment vacated and case remanded.

Pope, C. J., and Smith, J., concur.


author: Ruffin, Judge.

text:
    A94A1156.
    TURRY et al. v. HONG KONG DELIGHT, INC.
    (449 SE2d 873)
   Ruffin, Judge.

Plaintiff, Bruce Turry, appeals the grant of summary judgment to defendant, Hong Kong Delight, Inc. (“Hong Kong Delight”). Turry contends he was injured when the sofa he was sitting on in Hong Kong Delight’s restaurant collapsed. The incident occurred when Turry was waiting in Hong Kong Delight’s reception area to be seated for dinner. After Turry sat down, the portion of the sofa directly below him collapsed and Turry fell through the sofa to the floor.

It is uncontroverted that the Hong Kong Delight owns and operates the restaurant. It is also undisputed that Hong Kong Delight placed the sofa in the reception area for customers waiting for a table. There is no evidence that the sofa collapsed as a result of misuse by Turry.

1. Turry contends the trial court erred in ruling the doctrine of res ipsa loquitur does not apply to this case. The doctrine “is a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another. ...” (Citations and punctuation omitted.) Gresham v. Stouffer Corp., 144 Ga. App. 553, 554 (241 SE2d 451) (1978). Under the doctrine, the plaintiff must show “the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage, and the accident was of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.” (Citations and punctuation omitted.) Id.

Decided October 12, 1994

Reconsideration denied November 14, 1994

Slater, King & Gross, Cary S. King, for appellants.

Bentley, Karesh & Seacrest, Gary L. Seacrest, Robin Depetrillo, for appellee.

In Gresham, the plaintiff was seated in the defendant’s restaurant. He was injured when the chair on which he was sitting collapsed. The defendant owned and operated the restaurant and the chair was furnished by the restaurant for plaintiff’s use as a customer. The plaintiff presented no evidence at trial of any specific instances of negligence on the part of the defendant in keeping the premises safe for its customers. Under these limited facts, the court ruled a jury would be authorized to conclude that the chair was in the full control of the defendant and that it was responsible for its maintenance.

Since Hong Kong Delight owned and operated the restaurant and provided the sofa for customers waiting for a table and the evidence presented shows Turry sat on the sofa and it collapsed, “a jury would be authorized to infer negligence from the evidence that the [sofa] collapsed during ordinary use by the plaintiff. [Cits.]” Id. Therefore, we find that the trial court erred in granting summary judgment to Hong Kong Delight.

2. Since we have determined that the trial court erred in failing to apply res ipsa loquitur, we need not consider whether Hong Kong Delight had knowledge of the defect or a duty to inspect, as further enumerated by Turry.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1193, A94A1194.
    KEMIRA, INC. v. WILLIAMS INVESTIGATIVE & SECURITY SERVICES, INC. et al.; and vice versa.
    (450 SE2d 427)
   McMurray, Presiding Judge.

Plaintiff Williams Investigative & Security Services, Inc. (“Williams Investigative”) and its president, plaintiff Tim Williams, brought this contract action against defendant Kemira, Inc. According to the amended complaint, Williams Investigative and defendant “entered into a ‘subcontract for project security services.’ . . . Pursuant to the contract, [Williams Investigative provided] personnel and other related services and undertakings for security on the plant and property of [defendant] in Chatham County, Georgia. Over the course of the contract. . . varying levels of personnel, supporting equipment and services were provided by [Williams Investigative] with [defendant] retaining the right to specify its demands and requirements from time to time.” On October 18, 1989, defendant’s Corporate Safety Manager, “Joseph E. Clonts, . . . gave written notice to [Williams Investigative] of a reduction ...” in defendant’s need for future security services. Tim Williams “communicated with Clonts regarding the status of the contract and future services to ascertain whether it would be terminated [and further . . .] ascertain what contractual and other commitments [Williams Investigative] must continue in order to be able to provide services required of it under the contract [such as . ..] office space, vehicles, insurances, and employee staff levels.” In a letter dated March 19, 1990, Clonts purportedly “represented that [Williams Investigative’s] engagement would continue.” Alleging that defendant “has never given notice of termination as required under Section 15 of the contract^] ” Williams Investigative demanded contractual damages as well as OCGA § 13-6-11 attorney fees. Williams Investigative further sought to recover expenses it incurred and profits it anticipated as a result of its detrimental reliance on defendant’s assertions of continued security work, alleging that defendant “should be estopped from relying upon provisions in the contract limiting its liability.” As a separate claim, Tim Williams sought to recover $142,329 he allegedly loaned Williams Investigative between January 3, 1990, and August 28, 1990, on the ground that “[b]ut for the representations and assurances by Kemira, through Mr. Clonts, Mr. Williams and [Williams Investigative] would not have procured and expended these funds.”

Defendant denied the material allegations, arguing that “the contract provided for the work to be performed during a specific construction project and the conclusion of the construction project effectively terminated the contract.” The case was tried before a jury. Answering special interrogatories, the jury found in favor of Williams Investigative “based upon the written agreement,” awarding $28,345 in contractual damages. The jury found for defendant on a claim of fraud but found in favor of plaintiffs on a claim of promissory estoppel, awarding them $5,000. The jury disallowed punitive damages but awarded $10,000 in attorney fees. In Case No. A94A1193, defendant appeals from the judgment entered on the jury’s verdict and, in Case No. A94A1194, plaintiffs cross-appeal. Held:

Case No. A94A1193

1. In its first enumeration, defendant contends the trial court erred in denying its motion for directed verdict as to any claim for damages for breach of the written contract “on the grounds that the evidence [of damages] was conclusory and the amount sought was not proved to a reasonable certainty and because the proper foundation had not been laid.” A directed verdict is authorized 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).

(a) Defendant objected to plaintiffs’ Exhibit 13-A, a document allegedly showing plaintiffs’ actual monthly income and expenses, on the ground that “unless the supporting documents are in evidence, we object to it as being a conclusion.” The following then transpired: “THE COURT: I think he can testify to those on there, but I don’t believe it’s admissible in evidence to the jury. [PLAINTIFFS’ COUNSEL]: Okay, we would like to tender it and then it’s objected and ruled out; is that correct? THE COURT: Yes.” Tim Williams then testified without objection that Williams Investigative had an average monthly profit of $28,435, based on his knowledge of actual revenues and expenses for the preceding seven-month period. Nevertheless, at the close of the evidence, the trial court ultimately admitted plaintiffs’ Exhibit 13-A.

“ ‘All evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted. A failure to make such objection will be treated as a waiver, and prevent the court, on a motion for a new trial, from inquiring as to the competency of the evidence.’ Andrews v. State, 118 Ga. 1 (43 SE 852).” Hall v. Browning, 71 Ga. App. 835 (3) (32 SE2d 424). In the case sub judice, “[n]o timely and specific objection was posed at trial to [Tim Williams’] testimony concerning [average monthly profits]. Thus, any foundation objection thereto was waived. Patton v. Bank of LaFayette, 124 Ga. 965 (7) (53 SE 664); McGee v. State, 205 Ga. App. 722, 726 (9) (423 SE2d 666).” Truck Parts &c. v. Rutledge, 211 Ga. App. 166 (1) (438 SE2d 404).

(b) Nevertheless, defendant contends the trial court should have granted its motion for directed verdict because Tim Williams’ testimony as “proof of damages without supporting data is unclear.”

Section 15 (C) of the written subcontract provided: “Upon termination, Subcontractor shall be entitled to be paid the value, including a reasonable allowance for [Subcontractor’s] profit, calculated on the basis of the compensation provisions [of the subcontract], of all Work properly done by Subcontractor together with reasonable costs occasioned by such termination and not previously paid for. . . .” In support of Williams Investigative’s claim for 30 days’ lost profits, Tim Williams testified as to his familiarity with Williams Investigative’s monthly billings and expenses, identifying specifically that percentage of overhead attributable to work at defendant’s plant in Savannah, Georgia. He calculated “the average profit during this time . . . was $28,435 a month. That’s gross profit.” This figure was “derived from looking at the revenues versus the expenses associated with the Kemira contract.”

OCGA § 13-6-2 provides: “Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” In the case sub judice, the contract expressly contemplated a “reasonable allowance for [Subcontractor’s] profit, calculated on the basis of the compensation provisions. ...” Pursuant to Appendix A of the subcontract, Kemira would pay a fixed hourly rate, an additional fee of ten percent for “Supervision and Administration,” a fixed weekly allowance for vehicle rental, as well as “exact cost” reimbursement for materials, equipment, and expenses. Since this contract contemplated both fixed and variable costs, it was not necessary to prove to an “exact computation” the “reasonable allowance for [Subcontractor’s] profit” element of contractual damages. Compare Bennett v. Associated Food Stores, 118 Ga. App. 711, 714 (2) (165 SE2d 581).

Furthermore, “a distinction is to be drawn between illegal testimony and secondary evidence or other evidence which is legal in itself because it is of probative value but is inadmissible until the proper foundation for its reception has been laid. Hearsay testimony has no probative force whatsoever ([cit.]), and its only effect is to prejudice the party against whom it is offered. Evidence of a secondary nature, the only objection to which is that it was received without the preliminary foundation for its introduction being first laid, stands upon an altogether different footing; and if admitted without objection, it is to be treated as altogether competent, and the court may properly instruct the jury as to its relevancy and legal weight and effect. [Cit.]” Patton v. Bank of LaFayette, 124 Ga. 965, 973 (7), 974, supra. In the case sub judice, “a prima facie case [was] made by . . . plaintiff where oral evidence concerning [one month’s anticipated profit was] introduced without objection [even if the] documents setting forth the [arithmetical basis for that calculation] are not received in evidence. Thomas &c. Lumber Co. v. Atlantic Mill &c. Co., 24 Ga. App. 749 (2) [(102 SE 135)]. See also Rothstein v. Miruis & Fox, Inc., 155 Ga. App. 79, 80 (2) (270 SE2d 301).” Professional Ins. Svc. v. Sizemore Elec. Co., 188 Ga. App. 463 (1) (373 SE2d 276). “In the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported by some evidence, even where the verdict may be against the preponderance of the evidence. Thompson v. Hill, 143 Ga. App. 272, 276 (238 SE2d 271).” Mizell v. Spires, 146 Ga. App. 330, 331 (1) (246 SE2d 385). Consequently, the trial court did not err in refusing to direct the verdict against Williams Investigative’s claim for contractual damages.

2. Next, defendant contends the trial court erred in failing to direct the verdict as to the claim of a promissory estoppel “because the purported promise was to perform an act in the future.”

In support of the claim of promissory estoppel, plaintiff submitted the March 19, 1990, letter of Mr. Clonts which purportedly confirmed his previous oral representations that Williams Investigative would be hired for a new building project defendant (or a related corporation) was about to commence. This letter was prepared by Mr. Clonts at the behest of plaintiff Tim Williams, who “requested a letter to obtain [a] bank loan. ...” The letter is addressed: “TO WHOM IT MAY CONCERN . . .” and refers to the anticipated “construction of a water treatment chemicals plant [; . . . that defendant expects] that, with their level of expertise, we will again call on [Williams Investigative] to assist us. . . . It is expected that a contract will be negotiated based on their excellent past performance . . .[; that the] proposed contract is expected to last approximately twelve (12) to fourteen (14) months . . .[; and that the hourly rate] is a negotiable figure that will be addressed closer to actual contract negotiations and its consummation.”

“A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.” Restatement, Second, Contracts, § 2 (1). However, “[w]ords of promise which by their terms make performance entirely optional with the ‘promisor’ whatever may happen, or whatever course of conduct in other respects he may pursue, do not constitute a promise. Although such words are often referred to as forming an illusory promise, they do not fall within the present definition of promise. They may not even manifest any intention on the part of the promisor. Even if a present intention is manifested, the reservation of an option to change that intention means that there can be no promisee who is justified in [the] expectation of performance.” Restatement, Second, Contracts, § 2, Comment (e).

In the case sub judice, there is considerable doubt whether Mr. Clonts’ letter is anything more than a nonbinding statement of intent to negotiate an agreement in the future. However, Ms. Barbara Royal, a sergeant and shift manager for Williams Investigative during the Kemira project, related a specific promise of future employment made by Mr. Clonts to Mr. Williams in her presence. Mr. Clonts “was very emphatic about saying that there was a second contract coming, that we would handle the security for this project, but miscellaneous paper work and a permit was holding him up as far as giving us a date.”

“[P]ursuant to OCGA § 13-3-44 (a): ‘A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.’ This statute is a codification of the principle of ‘promissory estoppel,’ which principle relates to the sufficiency of the consideration to enforce a promise. See Pepsi Cola Bottling Co. v. First Nat. Bank, 248 Ga. 114, 116 (2) (281 SE2d 579) (1981). The principle of promissory estoppel merely provides that, in certain circumstances, the reliance by the promisee or third party upon the promise of another is sufficient consideration, in and of itself, to render the executory promise enforceable against the promisor. See generally Irvin v. Lowe’s of Gainesville, 165 Ga. App. 828, 830 (302 SE2d 734).” Loy’s Office Supplies v. Steelcase, 174 Ga. App. 701, 702 (331 SE2d 75). “If a promise within the terms of [OCGA § 13-3-44 (a)] is in terms conditional or performable at [some] future time the promisor is bound thereby, but performance becomes due only upon the occurrence of the condition or upon the arrival of a specified time.” Restatement, Second, Contracts, § 91. Consequently, the fact that defendant’s purported promise was both performable in the future and conditioned on a future event would not preclude the application of promissory estoppel. Insilco Corp. v. First Nat. Bank of Dalton, 248 Ga. 322 (283 SE2d 262). The trial court did not err in failing to direct a verdict as to plaintiffs’ claim based on promissory estoppel on the ground that Clonts’ promise of employment was performable in the future.

3. In its third enumeration, defendant contends the trial court erred in failing to direct the verdict against plaintiffs’ claim for OCGA § 13-6-11 attorney fees, arguing that it had “reasonable grounds to contest liability and was not stubbornly litigious. . . .”

According to Ms. Barbara Royal, Mr. Clonts informed her before March 17,1990, that “he had taken a lot of harassment, ridicule, from his peers at Remira for having Mr. Williams handle the security for Remira, and that he wouldn’t take that kind of criticism anymore. .. . And I said, ‘But, you know, what about the project?’ and he says — and I said, ‘What about Mr. Williams’ business. [PLAINTIFFS’ COUNSEL]: Did he say anything about whether he would get another job, or comment on that? [MS. ROYAL]: Well, from the conversation, it was quite evident that he had no intention of giving Mr. Williams another contract or project.”

Decided October 18, 1994

Reconsideration denied November 14, 1994

Clark & Clark, Fred S. Clark, for appellant.

Karsman, Brooks & Callaway, Stanley E. Harris, Jr., for appellees.

“The expenses of litigation generally shall not be allowed as a part of the damages; but where . . . the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” OCGA § 13-6-11. “[T]he elements of bad faith which will authorize expenses of litigation in an ex contractu action are those acts relative to the conduct of entering into a contract or to the transaction and dealings out of which the cause of action arose ([cits.]), but do not have reference to the motive with which the defendant defends an action after a cause of action has occurred. [Cit.]” Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 111 (2), 113 (115 SE2d 852). In the case sub judice, Ms. Royal’s testimony is proof that Mr. Clonts had no intention of retaining Williams Investigative for future security services only days before he wrote a “TO WHOM IT MAY CONCERN” letter proclaiming defendant’s expectation “that, with their level of expertise, we will again call on [plaintiffs] to assist us with the Remira Kemi project.” This is some evidence that defendant acted in bad faith in the transaction and dealings out of which the cause of action arose and authorized the jury’s award of OCGA § 13-6-11 attorney fees, despite any bona fide dispute as to liability or damages. Ballenger Corp. v. Dresco Mech. Contractors, 156 Ga. App. 425, 433 (3) (274 SE2d 786). The trial court did not err in denying defendant’s motion for directed verdict as to this claim.

Case No. A94A1194

4. The affirmance of the judgment in the main appeal, Case No. A94A1193, renders moot all issues raised in this cross-appeal. Accordingly, the appeal in Case No. A94A1194, plaintiffs’ cross-appeal, “is hereby dismissed pursuant to OCGA § 5-6-48 (b) (3).” Kubler v. Goerg, 197 Ga. App. 667, 671 (5) (339 SE2d 229).

Judgment affirmed in Case No. A94A1193. Cross-appeal dismissed in Case No. A94A1194.

Pope, C. J., and Smith, J., concur.

       In Insilco, the Georgia Supreme Court reversed the Court of Appeals which had held “since [plaintiff’s] acquiescence related to a future time we find no estoppel. Fields v. Continental Ins. Co., 170 Ga. 28 (2) (b) (152 SE 60) (1929).” Insilco Corp. v. First Nat. Bank of Dalton, 156 Ga. App. 382, 383 (1) (274 SE2d 767). As the holding of Fields v. Continental Ins. Co., 170 Ga. 28 (2) (b), supra, regarding estoppel by representation, does not control whether the principle of promissory estoppel as enacted at OCGA § 13-3-44 (a) applies, the continuing viability of Reuben v. First Nat. Bank of Atlanta, 146 Ga. App. 864, 866-867 (247 SE2d 504) on this issue must be questioned. Accordingly, defendant’s reliance thereon is not well-founded.


text:
    A94A1326.
    ATLANTA WOMAN’S CLUB, INC. v. WASHBURNE et al.
    (450 SE2d 239)
   McMurray, Presiding Judge.

The Atlanta Woman’s Club, Inc. (“the Woman’s Club”) brought an action against Harry E. Washburne, insurance agencies through which Washburne worked (“the agencies”) and Interstate Fire & Casualty Company (“Interstate”) to recover damages allegedly sustained after rental property owned by the Woman’s Club (“the premises”) and covered by an Interstate policy of insurance was damaged by fire. The Woman’s Club claims that Washburne was negligent in fulfilling his promise to procure a contract of insurance for the premises, alleging that he promised to replace an existing insurance policy with a policy providing the same amount of coverage; that Washburne acquired a replacement policy through Interstate; but that the Interstate policy was not comparable because it did not include an endorsement negating a có-insurance clause reducing the amount of coverage if the premises is insured for less than 80 percent of its value. The Woman’s Club pressed a claim against Interstate to recover under the replacement policy, alleging the 80 percent co-insurance clause was not triggered because a separate policy of insurance acquired by the Woman’s Club’s tenant (providing 2.4 million dollars in coverage for improvements on the premises) resulted in at least 80 percent coverage of the adjusted value of the premises.

The trial court granted summary judgment in favor of Washburne and the agencies, but this court reversed in Atlanta Wom[a]n’s Club v. Washburne, 207 Ga. App. 3, 5 (427 SE2d 18), holding that genuine issues of material fact remained for jury resolution. In the meantime, the claim asserted by the Woman’s Club against Interstate proceeded in the trial court and was eventually resolved when Interstate (apparently) agreed to pay the Woman’s Club $710,869.45 on its property loss claims and $51,834.85 for lost business profits. The settlement was reduced to judgment via a “CONSENT ORDER” and memorialized in a “STIPULATION AND SETTLEMENT AGREEMENT,” providing (in pertinent part) that Interstate “defended this action on the sole basis that the Woman’s Club property was grossly under insured and that the 80% co-insurance clause was applicable to [the Woman’s Club’s] claim, thereby reducing the total value of its claim to less than 50%.” The Woman’s Club later amended its complaint pursuant to OCGA § 9-11-15 (d) and pressed a claim against Washburne and the agencies for attorney fees and expenses of litigation, alleging that prosecution of its claim against Interstate cost the Woman’s Club over $178,051 and inferring that this expense was the result of the failure of Washburne and the agencies to provide an adequate replacement policy in violation of their fiduciary responsibility to the Woman’s Club.

Upon motion for summary judgment, the trial court found that the Woman’s Club’s claim for attorney fees and expenses of litigation was not recoverable under OCGA § 13-6-11 or any other. statutory authority and concluded that “the cases cited by [the Woman’s Club] are distinguishable and do not afford it relief from the traditional rule prohibiting attorney’s fees as an item of damages unless they are statutorily or contractually authorized.” This appeal followed. Held:

At the outset, it should be noted that the Woman’s Club does not assert a claim for attorney fees and expenses of litigation pursuant to OCGA § 13-6-11 or any other statute specifically authorizing such awards. Further, the Woman’s Club does not seek recovery based on theories of actual or implied indemnity. Compare Alterman Foods v. G. C. C. Beverages, 168 Ga. App. 921, 924 (310 SE2d 755). The claim asserted by the Woman’s Club for attorney fees and expenses of litigation is based solely in tort, arguing that the expenses it incurred in pressing its claim against Interstate were a natural and foreseeable consequence of the wrongdoing of Washburne and the agencies. The Woman’s Club reasons that recovery of these costs is an element of damages authorized by OCGA § 51-12-7, which provides as follows: “In all cases, necessary expenses consequent upon an injury are a legitimate item in the estimate of damages.”

Generally, attorney fees and expenses of litigation are allowed only where authorized by statute or contract. See Glynn County Fed. Employees Credit Union v. Peagler, 256 Ga. 342, 344 (3) (348 SE2d 628). However, “[a]ttorney fees and expenses of litigation in an underlying action are recoverable as real damages incurred as the result of defendants’ malfeasance or misfeasance (see Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga. App. 411, 412 (306 SE2d 340)).” (Emphasis supplied.) Marcoux v. Fields, 195 Ga. App. 573, 574 (394 SE2d 361). See Rogers v. Hurt, Richardson, Garner, Todd & Cadenhead, 203 Ga. App. 412, 415 (2) (417 SE2d 29); Alston v. Stubbs, 170 Ga. App. 417, 419 (3) (317 SE2d 272); Alterman Foods v. G. C. C. Beverages, 168 Ga. App. 921, 924, supra. The effect of this exception is to put a plaintiff in the same position he would have occupied had the plaintiff not been forced to litigate with a third party. The exception permits a plaintiff to recover all losses flowing from a defendant’s alleged misfeasance or malfeasance, except in cases where expenses accrued in the cause of action where recovery is sought. See Nepera Chemical v. Sea-Land Svc., 794 F2d 688, 696-697 (D.C. Cir. 1986), and Restatement, Second, Torts, § 914 (2).

In the case sub judice, Washburne and the agencies argue that the Woman’s Club’s claim against Interstate is not an “underlying” action against a third party because the parties are joined in the same suit, reasoning that the general rule prohibiting an award of attorney fees and expenses of litigation in such cases applies. This argument is without merit. The Woman’s Club’s claim against Interstate is an action to recover under a contract of insurance and is therefore independent of the tort, breach of agency contract and respondeat superior claims against Washburne and the agencies. Just as Interstate is not jointly and severally liable for the alleged wrongful acts of Washburne and the agencies, Washburne and the agencies are not liable under the insurance contract issued by Interstate. The actions are separate and could have been sustained separately, but the independent claims were instead permissively joined pursuant to OCGA § 9-11-20 (a). Under these circumstances, we cannot say the Woman’s Club’s claim against Interstate is not an “underlying” action and therefore outside the exception to the general rule prohibiting attorney fees and expenses of litigation absent specific statutory or contractual authority. However, this holding does not mean the trial court erred in granting partial summary judgment in favor of Washburne and the insurance agencies. The Woman’s Club must show that genuine issues of material fact remain as to a causal link between the alleged breach of duty and the claimed loss. See Lovett v. Estate of Ruth K. Lovett, 593 A2d 382, 389-393 (1991). This means the Woman’s Club must, at the very least, allege circumstances indicating that Washburne’s wrongdoing was a natural and proximate cause of the attorney fees and expenses of litigation the Woman’s Club (purportedly) incurred in pressing its claim against Interstate. With this in mind, we favorably construe the allegation of the Woman’s Club’s amended complaint and strain to consider Interstate’s stipulation that it “defended this action on the sole basis that the Woman’s Club property was grossly under insured and that the 80% co-insurance clause was applicable to the [Woman’s Club’s] claim, thereby reducing the total value of its claim to less than 50%.” Nonetheless, we find the Woman’s Club’s claim for attorney fees and expenses of litigation lacking.

“ ‘ “It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent^] . . . act (or omission) of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury. (Cits.) While the question of proximate cause is usually submitted to the jury as a question of fact, it may be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion, that the defendant’s (alleged omissions) were not the proximate cause of the injury. (Cits.)” (Cit.)’ Powell v. Harsco Corp., 209 Ga. App. 348, 350-351 (2) (433 SE2d 608) (1993).” McQuaig v. McLaughlin, 211 Ga. App. 723, 724 (1), 726 (b) (440 SE2d 499). “ ““ “A prior and remote cause can not be made the basis of an action if such remote cause did nothing more than furnish the condition, or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, efficient cause of the injury. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause.” (Cit.)’ ” (Cit.)’ Wanless v. Winner’s Corp., 177 Ga. App. 783, 785 (3) (341 SE2d 250) (1986).” Beamon v. Ga. Power Co., 199 Ga. App. 309, 312 (404 SE2d 463).

In the case sub judice, Washburne’s wrongful act may have given rise to Interstate’s involvement with the Woman’s Club, but it was not the reason Interstate denied the claims asserted by the Woman’s Club under the replacement policy of insurance. This decision was Interstate’s alone and was (apparently) based on terms of a standard contract of insurance and upon facts which existed at the time the premises was destroyed by fire. Moreover, the circumstances reflected from the records now before this court indicate that the only natural (foreseeable) harm flowing from Washburne’s alleged wrongdoing (if any there be) would be the difference in coverage between the Interstate policy of insurance and the policy of insurance it replaced. Under these circumstances, we cannot say the trial court erred in granting partial summary judgment in favor of Washburne and the agencies. Genuine issues of material fact simply do not exist as to legal causation between the alleged wrongdoing of Washburne and the agencies and the expenses and attorney fees the Woman’s Club (purportedly) expended in pressing its claims against Interstate.

Decided October 18, 1994

Reconsideration denied November 14, 1994

Saveli & Williams, Edward L. Saveli, for appellant.

Lokey & Bowden, Charles M. Lokey, Malcolm Smith, Ralph W. Ellis, for appellees.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

       Alternatively, the Woman’s Club contends attorney fees and expenses of litigation are justified in tort because Washburne fraudulently induced the Woman’s Club to accept a deficient policy of insurance by failing to advise his principal (the Woman’s Club) that a comparabie replacement policy could not be found. This logic is inapposite. Neither the Restatement, Second, Torts, § 914 (2), nor any of the cases cited in this opinion (or by the parties) require a showing of fraud where the natural and proximate consequence of a wrongful act has been to involve a plaintiff in costly litigation with another. In such cases, the plaintiff may recover from the defendant the reasonable and necessary expenses incurred in such litigation, but only where legal cause (as opposed to cause in fact) exists between these damages and defendant’s alleged breach of duty. Kamyr, Inc. v. Boise Cascade Corp., 519 P2d 1031, 1034 (1974).

       The Woman’s Club characterizes this stipulation as a solemn admission in judicio binding against Washburne and the agencies. This is an erroneous conclusion because (among other reasons) the Woman’s Club was not a party to Interstate’s stipulation. See Walker v. Jack Eckerd Corp., 209 Ga. App. 517 (1) (434 SE2d 63). However, for purposes of this opinion, we assume (without deciding) that Interstate’s unverified stipulation constitutes proof of the statements asserted therein.