text:
    A94A0660, A94A0767.
    ALLEN v. LEFKOFF, DUNCAN, GRIMES & DERMER, P.C. et al.; and vice versa.
    (442 SE2d 466)
   Blackburn, Judge.

May Allen commenced this action against the defendant law firm and two of its partners, seeking damages for malpractice and violation of a trust or confidence. The matter proceeded to trial and resulted in a verdict for the defendants. Subsequently, the trial court denied Allen’s motion for j.n.o.v. and for new trial, and the defendants’ counterclaim for attorney fees and expenses of litigation. This appeal by Allen and cross-appeal by the defendants followed.

Allen’s late husband owned and operated a lithographic and color separating business. After her husband’s death in 1987, Allen retained the defendants to help with the settlement of the estate, and during that process she expressed some desire to sell the business. The defendants introduced her to Leonard Epstein as a potential buyer, and on April 14, 1988, Epstein purchased the business. The defendants represented both Allen and Epstein in the transaction, at the insistence of both parties.

Pursuant to the purchase agreement, Allen placed 85 percent of the company’s stock in escrow with the defendant law firm; Epstein was appointed chief executive officer of the company; and Epstein was obligated to pay Allen $150,000 over a three-year period. Epstein eventually defaulted on the obligation and liquidated the company, and Allen brought this action against the defendants to recover her loss plus punitive damages.

1. Allen asserts ten enumerations of error attacking the trial court’s disallowance of any evidence of, reference to, or jury instruction on the defendant attorneys allegedly having violated certain provisions of the Code of Professional Responsibility. However, “while the Code of Professional Responsibility provides specific sanctions for the professional misconduct of the attorneys whom it regulates, it does not establish civil liability of attorneys for their professional misconduct, nor does it create remedies in consequence thereof.” Davis v. Findley, 262 Ga. 612, 613 (422 SE2d 859) (1992). Accordingly, the trial court properly excluded all reference to the Code of Professional Responsibility.

Allen misplaces her reliance upon Cambron v. Canal Ins. Co., 246 Ga. 147 (269 SE2d 426) (1980), in which the Supreme Court upheld a jury instruction on the Code of Professional Responsibility’s proscription of conflicts of interest. Cambron involved an insurer’s equitable action to set aside default judgments collusively obtained by the plaintiff and the estate of the deceased defendant, both of whom were represented by the same attorney. That case did not address the appropriate use of the Code of Professional Responsibility in legal malpractice actions, which was, however, squarely before the Supreme Court in Davis v. Findley, supra.

2. Allen contends that the trial court erred in excluding any evidence of Epstein’s 1990 sale of the business, proffered to demonstrate the defendants’ continued representation of Epstein after the purchase agreement. The trial court excluded this evidence on the grounds that it was not relevant to the issue of alleged malpractice by the defendants in 1988. A trial court’s determination of the relevancy of evidence will not be disturbed on appeal absent an abuse of discretion, Crosby v. Spencer, 207 Ga. App. 487 (428 SE2d 607) (1993), and we find no abuse of discretion in the instant case.

3. Allen next contends that the trial court erred in failing to instruct the jury on an alternative measure of damages allowed by OCGA § 51-12-6, concerning damages for injury to peace, happiness, or feelings. Following the jury charge, the trial court specifically inquired about any exceptions, and counsel for Allen objected only to the omission of instructions regarding the Code of Professional Responsibility, thereby waiving any objection to the omitted alternative charge on damages. Nolen v. Murray Indus., 165 Ga. App. 785 (302 SE2d 689) (1983); Brown v. Garcia, 154 Ga. App. 837 (270 SE2d 63) (1980).

Allen also asserts that, in failing to recharge on the law on damages, the trial court erred in its recharge on legal malpractice given in response to the jury’s inquiry as to what damages to the plaintiff must occur in order to demonstrate legal malpractice. However, following that recharge, the trial court again asked if there were any exceptions, and Allen objected only on the ground that the charge eliminated the defendants’ alleged violation of a confidence or trust as a theory of recovery in the case. Allen thus waived any objection to the recharge for the ground raised for the first time on appeal.

Decided March 8, 1994

Reconsideration denied March 25, 1994

William R. Hurst, for appellant.

Freeman & Hawkins, H. Lane Young, Christine L. Mast, Thomas F. Wamsley, Jr., for appellees.

4. The purchase agreement contained an indemnification clause in which Allen and Epstein acknowledged the conflict of interest arising from the defendants’ representation of both parties, and agreed to indemnify the defendants and hold them harmless for “any and all claims asserted against the firm or its members by Buyer or Seller or any person claiming under Buyer or Seller as a result of the agreement of the firm to represent both Buyer and Seller in this transaction.” The defendants asserted a counterclaim seeking to recover attorney fees and expenses of litigation pursuant to that indemnification clause.

During the trial, Allen unsuccessfully moved for directed verdict on the counterclaim, on the grounds that it violated public policy. When the parties stipulated that determination of the counterclaim was a legal issue, the trial court reserved ruling on it, and several months after the trial denied the counterclaim. Allen enumerates as error the trial court’s failure to direct a verdict on the counterclaim, and in their cross-appeal the defendants attack the denial of the counterclaim.

In Porubiansky v. Emory Univ., 156 Ga. App. 602, 610 (275 SE2d 163) (1980), this court intimated that attorneys may not contractually limit their liability to clients for their malpractice. The indemnification clause in the instant case, however, did not contravene such a public policy concern, because it did not purport to limit any liability for the defendants’ negligence. See Hartline-Thomas v. Arthur Pew Constr. Co., 151 Ga. App. 598 (260 SE2d 744) (1979). However, the scope of the indemnity did not extend to attorney fees and expenses of litigation, and the trial court thus properly denied the defendants’ counterclaim.

Judgments affirmed.

Birdsong, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A94A0716.
    QUARTERMAN v. WEISS.
    (442 SE2d 813)
   Blackburn, Judge.

This is an appeal from the September 24, 1993 order of the State Court of DeKalb County denying Kenneth Quarterman’s request to proceed in forma pauperis in an appeal of an adverse decision in a dispossessory proceeding, which was affirmed by this court in Quarterman v. Weiss, 211 Ga. App. XXVIII (1994). The trial court further found that Quarterman was in contempt for failing to comply with several requests made by the court concerning his conduct at the hearing and thereafter was incarcerated for four hours. In this appeal, Quarterman asserts nine enumerations for appellate review.

1. In enumerations of error 2, 3, and 4, Quarterman asserts that the trial court erred in denying his request for a court reporter, erred in only allowing him 45 minutes in which to employ a court reporter after he appeared at the hearing without one, and erred in holding a hearing on his motion to proceed in forma pauperis in the absence of a court reporter. We disagree.

While OCGA § 5-6-41 (j) provides that any party in a civil case may, as a matter of right, have a case reported at his expense, “it [i]s not incumbent upon the trial judge to arrange for the official reporter to take down the evidence at [such a] hearing. . . . [Moreover,] [t]he law does not mandate that every civil case be reported. [Cits.]” Savage v. Savage, 234 Ga. 853, 854 (218 SE2d 568) (1975) (interpreting former Code Ann. § 6-805). The record before us shows that Quarter-man was provided at least two weeks notice of the date of the hearing and could have arranged for a court reporter to be present at this hearing within this time period. In addition, the trial judge provided him with additional time at the hearing to obtain a court reporter, and he again failed to do so.

“It has long been the practice in this state for counsel to arrange, in advance of hearings such as these, for a reporter to be present to take down the evidence if it is desired to be done.” Id. at 855. Quarterman also failed to avail himself of a record of the hearing pursuant to OCGA § 5-6-41 (g), for purposes of this appeal. He failed to utilize either of these alternatives and accordingly, enumerations of error 2, 3, and 4 are without merit.

2. Next, in enumerations 5 and 6, Quarterman argues that the trial court erred in ordering him “to look at the clock for 15 seconds and then look directly at him,” and erred in interrupting him when he objected to Weiss’s counsel’s introduction of an order of a probate court. As discussed above, the hearing before the trial court was not transcribed, and we cannot merely accept Quarterman’s version of the events that allegedly occurred at the hearing. However, even assuming arguendo that the trial court did interrupt Quarterman and told him to look at a clock for 15 seconds, he has not shown that he has been prejudiced by the actions of the trial court so as to deprive him of a fair hearing. Najmaister v. State, 196 Ga. App. 345 (2) (396 SE2d 71) (1990).

“It is the duty of the trial court to control the trial of the case and to insure a fair trial to both sides. Sometimes this requires interference by the court with the conduct of counsel or with a witness in ' the trial. The trial judge has broad discretion in handling these matters and we are loath to interfere with that discretion unless it is manifestly abused by clearly demonstrated prejudice or unfairness.” (Citations and punctuation omitted.) Id. at 347. Moreover, Quarter-man has not shown that he has been prejudiced by the trial court’s alleged reference to this case as “old” and “stale” as asserted in his first enumeration. Consequently, he has not shown any error warranting reversal.

3. Quarterman further argues that the trial court erred in sentencing him to four hours in jail for contempt. However, Quarterman has served his sentence for contempt, and hence, any questions raised concerning the sentence are moot. Popham v. City of Kennesaw, 262 Ga. 676 (424 SE2d 780) (1993).

4. Quarterman also maintains that the trial court ordered a security officer to restrain him and further encouraged the officer to hurt him. However, Quarterman’s assertion is not supported by the record before us.

5. Lastly, Quarterman maintains that the trial court erred in denying his request to proceed in forma pauperis based upon the trial court’s approval of a prior affidavit of indigency but cites no authority for this proposition. Ordinarily, however, under OCGA §§ 5-6-47 (b) and 9-15-2 (a) (2), a trial court’s findings concerning a party’s indigency is not reviewable in cases where the affidavit of indigency has been traversed by an opposing affidavit. Saylors v. Emory Univ., 187 Ga. App. 460 (1) (370 SE2d 625) (1988). Although the record in this case shows that no traverse was filed by Weiss or Weiss’s counsel, “[w]e can conceive of no logical reason why an appellee’s failure to submit an opposing affidavit as part of its challenge to an appellant’s affidavit of indigency should have any bearing on the reviewability of the trial court’s resolution of the issue. . . . [E]ven assuming the reviewability of the trial court’s findings on the indigency issue, we hold that those findings were supported by evidence, with the result that no abuse of discretion occurred. [Cits.]” Id. at 461.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

Decided March 11, 1994

Reconsideration denied March 25, 1994

Kenneth Quarterman, pro se.

V. C. Baker, for appellee.


author: Birdsong, Presiding Judge.

text:
    A94A0034.
    GRANT v. THE STATE.
    (442 SE2d 898)
   Birdsong, Presiding Judge.

Carlos Tad Grant was tried before a jury and found guilty of selling cocaine. He appeals from the judgment of conviction and life sentence entered by the trial court on the jury’s verdict of guilt. Held:

1. Appellant was jointly indicted with Bruce Buckner for a single count of selling cocaine. According to the jacket of the indictment, Buckner pled guilty to this charge on August 11, 1992. Pursuant to appellant’s written demand for speedy trial, his own trial date was specially set for November 17, 1992. On November 10, 1992, appellant’s counsel obtained an order from the trial court directing the sheriff to produce Buckner at trial. At the time this order was entered, the trial court was aware that Buckner was in custody at the Diagnostic Center in Jackson, Georgia, and this fact is recited in its order. When the case was sounded for trial, the sheriff was unable to produce Buckner. Counsel stated that he had been informed by the sheriff that the Diagnostic Center would not produce an inmate as a witness without ten days notice. Appellant moved for a continuance in order to produce Buckner and the denial of that motion is enumerated as error.

“In all cases wherein a continuance is sought upon the ground of the absence of a witness, the movant must make a showing of the requirements set forth in OCGA § 17-8-25, i.e., the witness is absent, he has been subpoenaed, he does not reside more than 100 miles from the place of trial, his testimony is material, the absence is not with permission of the applicant, his testimony can be procured by the next term of court, the facts expected to be proved, and that application is not made for the purpose of delay. Each of the requirements set forth in OCGA § 17-8-25 must be met before an appellate court may review the exercise of the trial court’s discretion in denying a motion for continuance based upon the absence of a witness.” (Citations and punctuation omitted.) Garrett v. State, 202 Ga. App. 463 (414 SE2d 693). Conversely, it is error requiring a new trial to deny the accused a continuance, upon a complete showing of the requirements of this Code section. Frost v. State, 91 Ga. App. 618 (86 SE2d 646). The State opposed the continuance on the ground that the testimony of Buckner was not material and on the ground that he had not been subpoenaed.

(a) Appellant’s proffer showed that he expected Buckner to testify that he, Buckner, and not appellant, was the one who sold cocaine to the undercover agent. This eyewitness testimony was very material for, if found credible, it would tend to establish directly appellant’s innocence as well as contradict the evidence of the State that appellant was the seller while Buckner was a bystander. We note that Buckner’s testimony would have been admissible. While it is an old and sound rule which excludes as incompetent any hearsay testimony relating statements attributed to an out-of-court declarant to the effect that the declarant, and not the accused, was the perpetrator of a crime (see Lyon v. State, 22 Ga. 399), that long-standing rule does not apply to exclude evidence that the declarant is the perpetrator where “the declarant is present, testifies, and is subject to cross-examination.” Guess v. State, 262 Ga. 487, 489 (2) (422 SE2d 178). The denial of appellant’s motion for continuance in order to obtain Buckner’s presence cannot be sustained on the ground that his testimony would not have been material to appellant’s defense. Compare Daniel v. State, 180 Ga. App. 179, 180 (4) (348 SE2d 720).

(b) It is undisputed that appellant did not subpoena Buckner to appear and testify at trial. It is, however, uncontradicted that Buckner would have appeared voluntarily but for the fact that he was under sentence and incarcerated after having pled guilty to the charge for which appellant also was on trial. As soon as it was discovered that Buckner had been transferred from the county jail to the Diagnostic Center, appellant’s counsel wasted no time in obtaining the order of the superior court directing that Buckner be produced for trial.

In opposing appellant’s motion for new trial grounded on the absence of Buckner, the State urged that appellant’s failure to subpoena Buckner was fatal to his motion for continuance, relying on OCGA § 17-7-192. That Code section provides: “A defendant who fails to use the subpoena power provided for in Code Section 17-7-191, when it is within his power to do so, shall not be entitled to a continuance because a witness material to his defense is not in attendance at the term of the court when his case is called for trial.”

Contrary to the State’s argument, OCGA § 17-7-192 does not require a subpoena to be issued by the clerk of court in addition to an order of the superior court commanding the presence of an inmate witness. Such a requirement would elevate form over substance. This Code section does not mandate an empty formality but prescribes the exercise of due diligence. See Rumsey v. State, 126 Ga. 419 (1) (55 SE 167). Here, appellant’s counsel had obtained the ex parte order of the superior court commanding the custodian of the inmate Buckner to produce him as a defense witness for a criminal trial on the same day that Buckner had been transferred from the county jail into the State system. This was seven days before trial. “Any judge of the superior court may issue his order to any officer having a lawfully imprisoned person in his custody, requiring the production of such person before his court for the purpose of giving evidence in any criminal cause pending therein, without any formal application or writ of habeas corpus for that purpose.” (Emphasis supplied.) OCGA § 24-10-61. The production order of the superior court issued pursuant to OCGA § 24-10-61 was sufficient, in lieu of a subpoena issued by the clerk pursuant to OCGA § 17-7-191, to demonstrate appellant’s due diligence in compliance with the requirements of OCGA § 17-8-25. Accordingly, appellant’s “showing [under OCGA § 17-8-25] was in every respect complete. The fact that [the inmate witness, whose presence had been commanded pursuant to OCGA § 24-10-61,] had not [aiso] been subpoenaed by the clerk of the superior court would make no difference. The accused had the right to have [the presence of the inmate compelled by court order, pursuant to OCGA § 24-10-61], and when the [witness], without fault on the part of the accused, failed to be present when the case was called, the accused [was] entitled to a continuance, in order to obtain [his] presence. [OCGA § 17-7-192] provides that unless the accused, at the time of commitment, avails himself of the right offered by [OCGA § 17-7-191], to have his witnesses summoned by [subpoena issued by] the magistrate [or the clerk of the court to which he is committed], he would not be entitled to a continuance on account of their absence at the trial. If he does comply with the terms of [OCGA § 17-7-191], he is entitled to a continuance if his witnesses fail to appear, even though he does not have subpoenas issued by the clerk of the superior court.” Carter v. State, 11 Ga. App. 141, 142 (74 SE 846). Since the production order of the superior court issued pursuant to OCGA § 24-10-61 is an alternative summons to a subpoena issued by the magistrate as authorized by OCGA § 17-7-191, and the record demonstrates that appellant’s counsel acted with dispatch and all due diligence, we “direct a new trial solely on account of the refusal of the judge to grant a continuance.” Id.

Decided March 25, 1994.

William J. Mason, for appellant.

2. Appellant’s objections to the prosecutor’s use of peremptory challenges are rendered moot by our disposition in Division 1.

Judgment reversed.

Cooper and Blackburn, JJ., concur.

Douglas C. Pullen, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.


author: Andrews, Judge.

text:
    A94A0046.
    KROGER COMPANY, INC. v. BAILEY et al.
    (442 SE2d 480)
   Andrews, Judge.

We granted Kroger Company’s application for interlocutory appeal after the denial of its motion for summary judgment. The pertinent facts are as follows.

On October 22, 1991, plaintiff/appellee James Bailey was struck in the vestibule of a Kroger store by the grocery cart of another shopper, Jan Hickok. The incident occurred while Bailey was reading a bulletin board which hung in the vestibule of the Kroger.

Bailey and his wife sued both the shopper, Jan Hickok, and Kroger. As to Kroger, the Baileys contended that the placement of the bulletin board constituted a danger to individuals looking at it in that their attention was diverted from shoppers with grocery carts who were exiting the store. The Baileys contended that Kroger knew or should have known of this dangerous condition. With respect to Ms. Hickok, the Baileys claimed that she negligently exited the store. They alleged that both defendants were jointly and severally liable.

The vestibule in the store has two sets of double doors with a foyer area between each set of doors. A person exiting the store is required to turn left after passing through the initial set of doors before reaching the second set of doors leading to the parking lot. The bulletin board is located on the wall several feet to the right after passing through the first exit, but before reaching the exit to the outside.

At his deposition, Bailey testified that there was ample room for people to pass behind him as he read the bulletin board. He stated that people passed behind him “all the time” as he stood at the board reading the ads. He stated that he had shopped at that Kroger store for 12 years, that he had noticed no alteration of the vestibule and that the bulletin board had always been in the same location. He stated that he had read the bulletin board on a previous visit. The Kroger manager at the time, Mark Gray, testified that there had been no incidents of this nature previously.

Here, in three enumerations of error Kroger contends that the trial court erred in denying its motion for partial summary judgment. It contends that there is no evidence that the placement of the bulletin board in the vestibule of the store constituted a hazardous condition, that assuming the bulletin board constituted a defective condition that Bailey was aware of such condition, and that the incident was not foreseeable.

Decided March 25, 1994.

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, Todd M. Yates, for appellant.

The Baileys argue that Kroger was negligent in that there were no “definable paths of ingress and egress” to divert shoppers from the bulletin board area, nor were there warnings of the alleged danger. The Baileys rely on Ms. Hickok’s deposition testimony in which she stated that part of the bulletin board may be covered by the door when it opens.

Even assuming that the placement of the bulletin board constituted a “hazard,” we find that, as a matter of law, Kroger was not liable in this case. “The law is clear that the basis for an owner’s liability for injury occurring to another while on the owner’s property is the owner’s superior knowledge of the danger or defect which was the proximate cause of the injury. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. Thus, the basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.” (Citations, punctuation and emphasis omitted.) Gar-nett v. Mathison, 179 Ga. App. 242, 243 (2) (345 SE2d 919) (1986); see generally Souder v. Atlanta Family Restaurants, 210 Ga. App. 291 (435 SE2d 764) (1993); Piedmont Hosp. v. Hall, 198 Ga. App. 138 (401 SE2d 51) (1990); Papp Clinic v. Cash, 186 Ga. App. 444 (367 SE2d 271) (1988); Tanner v. Ayer, 150 Ga. App. 709 (258 SE2d 545) (1979).

In the instant case, Bailey had been shopping at the Kroger store for 12 years and had previously observed the bulletin board. There was no evidence that any previous incidents of this nature had occurred, or that Kroger was aware of any danger from the bulletin board placement. Under these circumstances, it is clear that Bailey’s knowledge of the alleged “defective condition” and potential danger thereof was equal to Kroger’s. Therefore the trial court erred in denying Kroger’s motion for summary judgment.

The Baileys’ claim that the distraction theory applied to this incident is erroneous. See Kres v. Winn-Dixie Stores, 183 Ga. App. 854 (360 SE2d 415) (1987).

Judgment reversed.

Beasley, P. J., and Johnson, J., concur.

Fain, Major & Wiley, Christopher E. Penna, Lavigno & Schueter, William W. Lavigno III, Richard R. Schueter, for appellees.


text:
    A94A0485.
    HARPER v. KROGER COMPANY.
    (443 SE2d 7)
   Birdsong, Presiding Judge.

Howard Harper appeals the grant of summary judgment to the Kroger Company in his claims arising from his slip and fall in a Kroger Store. He contends the trial court erred by failing to apply the law of distraction and by granting summary judgment because the trial court failed to consider that an employee of Kroger had just previously mopped the aisle on which Harper fell and failed to post any warning signs.

Kroger contends, however, that summary judgment was warranted because Harper testified at his deposition that he slipped in a puddle of water approximately two feet in circumference in the middle of the aisle while he was walking out of the store not looking at the floor. Harper further testified by deposition that the lighting was adequate and that he had no problem seeing prior to the fall. Moreover, he testified that, if he had been looking at the floor he would have been able to see the water, and he was not distracted by anything. Held:

Although there appears no question that Kroger had at least constructive knowledge of the puddle, that does not end the issue. Harper “must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the owner’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Anderson v. Dunwoody North Driving Club, 176 Ga. App. 210, 211 (335 SE2d 451).

Further, even though by affidavit Harper claims that he was distracted from seeing the puddle, the distraction doctrine is not without limits. Ramirez v. Kroger Co., 207 Ga. App. 830 (429 SE2d 311). “One valid line of distinction existing in the so-called ‘distraction’ cases concerns the cause of the distraction. Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence.” Redding v. Sinclair Refining . Co., 105 Ga. App. 375, 378-379 (124 SE2d 688).

In this appeal, Harper testified in deposition that he was not distracted by anything. Although his affidavit submitted in rebuttal to Kroger’s motion for summary judgment subsequently asserted that he was distracted because he was looking for sodas, this conflicts directly, and without explanation, with his deposition testimony that he was on his way to purchase the sodas and that he was not distracted when he fell. Therefore, because of the patent and unexplained inconsistencies between Harper’s deposition testimony and his affidavit, the contradictory testimony rule is applicable. See Gentile v. Miller, Stevenson &c., 257 Ga. 583 (361 SE2d 383); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680). Consequently, Harper’s affidavit provides no basis for reversing the trial court. Kroger Co. v. Barentine, 210 Ga. App. 795, 796 (437 SE2d 629).

Decided March 25, 1994.

John H. Ridley, Jr., for appellant.

Webb, Carlock, Copeland, Semler & Stair, Todd M. Yates, Douglas A. Wilde, Gregory H. Wheeler, for appellee.

Further, the sole distraction Harper asserts, looking for sodas, cannot be accepted under the distraction theory because that was the very activity that brought him to Kroger. Manheim Svcs. Corp. v. Connell, 153 Ga. App. 533, 534 (265 SE2d 862). If we hold that merely being in a store looking for merchandise constitutes a distraction, we not only vitiate the distraction doctrine, but contrary to the law of this state, we also make merchants insurers of their patrons’ safety. See Kitchens v. Restaurant Mgmt. Svcs., 192 Ga. App. 313, 315 (385 SE2d 11).

Accordingly, the trial court did not err by granting summary judgment to Kroger Company.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0628.
    DEANS v. THE STATE.
    (443 SE2d 6)
   Blackburn, Judge.

Following a trial by jury, the appellant, James Tyronne Deans, was found guilty of four counts of armed robbery, ten counts of assault, and ten counts of kidnapping, all of the counts involving a Chick-fil-A Dwarf House restaurant and its employees. In his sole enumeration of error, Deans asserts that the trial court erred in failing to merge Counts 1 and 3.

During the September 17, 1992 robbery, at Deans’ instruction, the manager of the restaurant, Robert Duckwall, opened the door of the office where the restaurant’s cash was maintained, and Deans and his accomplices removed the money. The restaurant’s money was not taken directly from Duckwall or in his immediate presence since he did not enter the office. Duckwall and the other employees subsequently laid down on the floor and placed their jewelry in the middle of the floor as instructed. Thereafter, they were led into the walk-in cooler where they remained until the assailants fled. The State concedes that Counts 1 and 3 should have been merged for sentencing purposes because Deans did not commit separate armed robberies against Duckwall but instead, committed a single armed robbery in which property belonging to Duckwall and the restaurant was taken.

Decided March 25, 1994.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellee.

OCGA § 16-8-41 (a) provides in pertinent part that “[a] person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” Count 1 of the indictment alleged that Deans and an accomplice “took from the immediate presence of Robert Duckwall the following property, to-wit: U. S. Currency the property of Chick-fil-A, by use of a handgun.” Count 3 of the indictment alleges that Deans and an accomplice “took from the person of Robert Duckwall the following property, to-wit: jewelry, the property of Robert Duckwall, by use of a handgun.” “Robbery is a crime against possession, and is not affected by concepts of ownership. Similarly, one may only rob a person, and not a corporate entity, or an object such as a[n] [office]. [Cit.] It follows that since there was only one victim, the [manager], who was by this single transaction despoiled of his possession of both [his property and the property of the restaurant], there was only one robbery. The trial court erred in imposing two [life] sentences for this offense, and is directed hereby to strike the sentence imposed on the [third] count.” Creecy v. State, 235 Ga. 542, 544 (221 SE2d 17) (1975). See also Jackson v. State, 236 Ga. 98 (222 SE2d 380) (1976).

Judgment affirmed in part and reversed in part with direction.

Birdsong, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A93A1781.
    YOUNG v. SCOTT et al.
    (442 SE2d 768)
   Cooper, Judge.

This is a discretionary appeal from a superior court order affirming a decision of the Board of Review of the Georgia Department of Labor hearing officer’s decision denying unemployment compensation benefits to appellant.

Appellant worked as a front desk clerk and bookkeeper in a resort motel in Dahlonega. In her capacity as a bookkeeper, appellant was instructed on several occasions to record certain transactions involving a particular independent contractor differently from other independent contractors. Appellant became concerned about these practices and told the employer that they were not proper bookkeeping procedure. She testified that she contacted the Internal Revenue Service to determine if the practices were legal and that an IRS employee indicated that the practices were improper. Two weeks later, but two months after the employer’s first instruction concerning the independent contractor, appellant quit her job, telling her employer that she quit because she resented the fact that a new employee whom she had been training was making more money than she was making.

Appellant applied for unemployment benefits, reporting that the real reason she quit was because she was uncomfortable being required to perform duties which were illegal or unethical. She maintained that she did not reveal her true reason for leaving because she did not want to be black-listed in such a small town. Her claim for unemployment benefits was denied by a Labor Department claims examiner; however, on appeal, an administrative hearing officer reversed the claims examiner, finding that appellant had good cause to quit her employment. Appellant’s employer then appealed to the Labor Department Board of Review (the “board”) which reversed the hearing officer upon a finding that the decision was contradictory and confusing. The board held that a de novo hearing before another hearing officer would serve the ends of justice. The new hearing officer concluded that appellant did not have “a good work connected cause” for quitting her job and reinstated the disqualification of benefits. Appellant testified at the hearing that she feared that she would ultimately have to bear some responsibility for keeping the books as instructed by her employer. In its rejection of appellant’s claim, the hearing officer acknowledged that the evidence showed that appellant was instructed to perform questionable bookkeeping procedures, but the hearing officer found no evidence that appellant would have been held liable for the procedures. The hearing officer also indicated that it found appellant’s explanation for not telling the employer her true reason for quitting to be illogical. The hearing officer was not convinced that appellant would be black-listed by the employer for giving the correct reason since she had already made the employer aware of her dissatisfaction with the questionable bookkeeping procedures. The hearing officer concluded that despite appellant’s discomfort with having to keep the books as instructed by the employer, she continued to do so for such a length of time as to constitute acceptance of the duties as part of her working conditions. The disqualification of benefits was affirmed by the board, and thereafter, the superior court affirmed the decision of the board.

1. Appellant contends the superior court erred in affirming the board’s remand to a new hearing officer for a de novo hearing. However, the record shows that this alleged defect was not raised in appellant’s petition for judicial review to the superior court and thus was not considered by the superior court. “On appeal only issues properly raised before the trial court will be considered. [Cits.]” Dept. of Transp. v. Hillside Motors, 192 Ga. App. 637, 638 (1) (385 SE2d 746) (1989). Even though the appeal in Hillside, supra, was from a judgment in which the superior court was sitting as a trial court, this rule also applies in appeals from superior court judgments when the superior court sits as an appellate court.

2. Appellant also contends that the superior court erred as a matter of law in affirming the board’s conclusion that she quit without good cause.

“Georgia . . . has a strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own. OCGA § 34-8-2.” Milien v. Caldwell, 253 Ga. 112, 113 (317 SE2d 818) (1984). However, OCGA § 34-8-194 (1) provides that an individual shall be disqualified for benefits if she leaves her job “voluntarily without good cause”; that “good cause” is to be determined according to the circumstances in the case; and that the burden is on the individual to show proof of good work-connected cause for leaving work. Department of Labor Regulations, § 300-2-9-.05 (1) and (2) provide, in pertinent part, that “[a]n employee who voluntarily quits is to be disqualified unless he/she can show that the employer had changed the terms and conditions of work in a manner that the employee, applying the judgment of a reasonable person, would not be expected to continue that employment. . . . Disqualification is not required if an employee quits because the rules of the employer prove to be unreasonable as related to proper job performance.” Appellant argues that the hearing officer failed to apply the “reasonable person” standard in Department of Labor Regulations, § 300-2-9-.05 to the evidence and instead imposed an overly strict burden of proof, requiring her to show that she could have been held liable as a result of the bookkeeping procedures. Appellant also argues that the hearing officer’s conclusion that she accepted her duties was contrary to the evidence and not in keeping with the reasonable person standard. We disagree.

Contrary to appellant’s contention, although the hearing officer did not specifically invoke “the reasonable person standard,” it is apparent that the hearing officer’s analysis was in keeping with both the statute and Labor Department regulations. The hearing officer, as the trier of fact, weighed appellant’s alleged rationale for quitting her job and concluded that appellant did not “show that the employer changed the terms and conditions of work in a manner that [appellant], applying the judgment of a reasonable person, would not be expected to continue that employment” since appellant worked for two months under such conditions, despite her reservations, before finally quitting and she did not demonstrate how she could have personally been liable for keeping the books as instructed. Moreover, the record reveals that appellant quit her job in the middle of her shift upon learning that the new employee was making more money than she was making.

Decided February 23, 1994

Reconsideration denied March 28, 1994

L. Lee Callender, Nadine D. Bailey, Mary I. Dickerson, Phyllis J. Holmen, Lisa J. Krisher, for appellant.

Michael J. Bowers, Attorney General, Jeff L. Milsteen, Senior Assistant Attorney General, Valencia C. Porter, Staff Attorney, for appellees.

“ ‘This court does not sit as a fact-finding body, but rather one for the correction of errors of law. Therefore, in reviewing orders of the superior court in appeals from decisions (regarding unemployment benefits), if there is any evidence to support the decision below, it will be affirmed. (Cits.) It is apparent from the record that there is some evidence to support the decision.’ [Cit.] ‘ “(T)he evidence in this case shows that [appellant] voluntarily quit [her] job for personal reasons and not for good cause connected with [her] work.” ’ [Cit.]” Moore v. Tanner, 172 Ga. App. 792, 793 (1) (324 SE2d 772) (1984).

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A1892.
    ATLANTA GAS LIGHT COMPANY v. GEORGIA PUBLIC SERVICE COMMISSION et al.
    (442 SE2d 860)
   Beasley, Presiding Judge.

Atlanta Gas Light Company (the Company) appeals pursuant to OCGA § 50-13-20 of the Administrative Procedure Act, from an order affirming a final administrative decision of the Georgia Public Service Commission (PSC) under OCGA § 50-13-19. Although this is an appeal from a judicial review of an administrative agency, which in most instances must follow the application procedure, OCGA § 5-6-35 (a) (1) permits direct appeals with respect to decisions of the PSC.

On May 31, 1991, the Company initiated a rate-change proceeding under OCGA § 46-2-25 (a), by filing new schedules with the PSC increasing the Company’s rates and charges for gas service. The annual increase of $35,680,000 in gross revenues would begin July 1, 1991. On June 11, the PSC suspended the operation of the proposed new rate schedules for a period of five months, as authorized under OCGA § 46-2-25 (b), and scheduled hearings. Appearances were entered on behalf of the Company and various intervenors, including Georgia Power Company. It opposed the Company’s rate filing and has remained a party through the administrative and appeal proceedings.

At the conclusion of the administrative hearings, the PSC authorized the Company to increase its rates to produce additional annual revenue of $4,921,000. It also suspended the Company’s annual capacity charge applicable when a gas furnace is used as a backup heat source to a heat pump or other heating source. A second detailed order followed in which the PSC explained its earlier rulings and entered additional findings and conclusions. Petitions for rehearing from both orders were denied. This rendered moot the Company’s appeal to this court from the superior court’s affirmance of the PSC’s decision in a 1990 proceeding which reduced the annual capacity charge. Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 206 Ga. App. 315 (425 SE2d 340) (1992). The reason was that the 1991 suspension of the annual capacity charge altogether meant that even if this court had reversed the superior court, the Company could not have enforced the right insisted on, i.e., an increased annual capacity charge. Id. at 317.

As to the 1991 proceeding, the superior court affirmed the PSC’s orders on review.

The Company originally filed its appeal from the affirmance in the Supreme Court, claiming that construction of the Constitution of Georgia and of the Constitution of the United States were involved, so as to give it jurisdiction under 1983 Ga. Const., Art. VI, Sec. VI, Par. II (1). That Court transferred the case to this court because, according to its order, “this appeal raises issues only of the application of constitutional principles . . . See Woodside v. City of Atlanta, 214 Ga. 75, 76-77 (1) (103 SE2d 108) (1958).”

1. In its second enumeration of error, the Company challenges the “any evidence” standard of review applied by the superior court, asserting that a more judicially expansive “substantial evidence” standard is required instead, for the performance of the task assigned to the courts in OCGA § 50-13-19 (h) (5).

The first problem with this claim of error is that the question was not raised and ruled on in the superior court. At least, we cannot find it in the record, and appellant has not “set() forth the method by which each enumeration of error was preserved for consideration,” as required by Rule 15 (a) (1). It is true that the superior court in the order appealed from recites that where, as here, the appeal from the agency is on the ground that the agency decision was “clearly erroneous,” OCGA § 50-13-19 (h) (5), the “any evidence” standard applies. However, this was merely a statement in the court’s fully explanatory order referencing the standard it used; it was not a ruling on an issue raised as to what standard subsection (h) (5) required. If appellant sought the use of a different standard by the superior court than had been established and continued in controlling cases, see, e.g., Lasseter v. Ga. Pub. Svc. Comm., 253 Ga. 227, 231 (3) (319 SE2d 824) (1984), it was incumbent on appellant to seize the opportunity below to insist on the application of the different standard. As a court of review, this court does not decide questions which were not raised and ruled on and preserved in the record below. Cole v. State, 211 Ga. App. 236, 237-238 (438 SE2d 694) (1993).

Even if this procedural hurdle were cleared, there is another, and that is the problem of mootness. We are dealing with a 1991 rate proceeding, and it is not contested that since then there has been a 1992 proceeding and PSC decision. Any error of the superior court in affirming the PSC on the issues preserved for our review could not be corrected by a reversal. The rates superseded by the 1992 PSC decision could not now be revised; the Company could not go back and recompute the rates charged in accordance with the 1991 PSC order. So it would be an exercise in futility for the superior court to reconsider the evidence under a “substantial evidence” test, which is the remedy the Company seeks from this court.

That, however, would not necessarily close the door to review of this question of the proper standard of review. As repeated in Atlanta Gas Light Co., supra at 317, “ ‘There is . . .an exception to the mootness doctrine with respect to an issue of a recurring nature, of general public interest and importance, and which will evade appellate review unless the court exercises its discretionary jurisdiction.’ ” See also Chastain v. Baker, 255 Ga. 432 (339 SE2d 241) (1986). Obviously, the correct standard must be known, as it is called into service every time there is a review under that subsection, from any agency covered by the Administrative Procedure Act. This issue, the construction of OCGA § 50-13-19 (h) (5) with respect to the scope of judicial review of evidence underlying an administrative decision, is just such an issue for this appellant. As the Company pointed out at oral argument, it should not have to sacrifice its right to seek a “just and reasonable” rate change under OCGA § 46-2-25, which it believes necessary to avoid a deteriorating financial condition, in order to preserve for ultimate appellate review the issue of the correct standard of review contemplated in the APA. However, the issue is not one which inherently would evade review, because mootness would not occur in the cases of most appellants who are challenging administrative agency decisions. See, e.g., the myriad of workers’ compensation cases.

Even if we consider this question as an exception to the bar of mootness, there is yet another hurdle which the appellant cannot clear, before a review of the merits of the issue could be considered, and it is a formidable one. That is, we are bound by the decisions of the Supreme Court of Georgia. 1983 Ga. Const., Art. VI, Sec. VI, Par. VI.

The Company acknowledges the Supreme Court’s application of an “any evidence” standard to administrative decisions in Hall v. Ault, 240 Ga. 585 (242 SE2d 101) (1978), “leaving only a determination of whether the facts found by the board are supported by ‘any evidence.’ ” Id. at 586.

Not to be deterred, the Company urges that this authority is no longer controlling, due to changes in the 1983 Georgia Constitution which designates our appellate courts as “court[s] of review.” See Art. VI, Sec. VI, Par. II, for the Supreme Court, and Art. VI, Sec. V, Par. Ill, for the Court of Appeals. When Hall v. Ault was decided, the 1976 Constitution was in effect. It provided in Art. VI, Sec. II, Pars. IV and VIII, that the appellate courts shall be courts “for the trial and correction of errors of law.”

This argument of the Company faces two obstacles. First, the Supreme Court has continued to apply the “any evidence” standard to the superior court’s review of administrative decisions, notwithstanding the changes in the Constitution. See Emory Univ. v. Levitas, 260 Ga. 894, 898 (401 SE2d 691) (1991), in which the Court held that the “any evidence” standard applies to the superior court’s review of decisions of a local administrative agency or local governing body. It reiterated that “OCGA § 50-13-19 (h) (5) only permits a superior court to apply an any-evidence standard of review to a state administrative agency’s decision.” See also Ga. State &c. Comm. v. Lyons, 256 Ga. 311, 312 (348 SE2d 642) (1986). We, too, have continued its use despite a challenge. Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 579 (5) (396 SE2d 562) (1990). We recognize that this particular argument has not been addressed in the post-1983 decisions. There is authority for considering the issue as open. As repeated in Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529) (1960): “ ‘ “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” ’ [Cits.]” We have recently applied this principle, which is related to constitutional authority (as to Supreme Court rulings) as well as to the judicial decision-making process (as to prior Court of Appeals rulings) in Union Camp Corp. v. Southern Bulk Indus., 193 Ga. App. 90, 92 (386 SE2d 866) (1989), aff'd 259 Ga. 828 (388 SE2d 524) (1990). There it was held that a similar case in the Supreme Court did not engender a binding precedent because the issue had not been raised in that case.

Secondly, even if there is some broadening of the scope of review provided in the 1983 Constitution for the Supreme Court and the Court of Appeals, that has nothing to do with the scope of review provided in OCGA § 50-13-19 (h) (5) for superior court review under the Administrative Procedure Act. It is the latter which appellant contends is wrongly construed, and that does not depend on the construction of the former. Statutory construction in this instance is not dependent on constitutional construction. As stated in the transfer order of this case by the Supreme Court, no issues of original constitutional construction are raised. Statutory construction is at issue, but as to that, the principles of Hall v. Ault remain extant and are binding on this court. 1983 Ga. Const., Art. VI, Sec. VI, Par. VI. There is no basis for us to surmise, much less conclude as a matter of law, that the legislature meant subsection (h) (5) to take on a different meaning due to the adoption of the constitutional revision. The fact that the legislature has not corrected the courts’ interpretation of subsection (h) (5) in the decade since adoption of the new constitution indicates that it did not intend a broadening of the evidentiary standard of review in that subsection to automatically take place because of the new language in the constitution.

Thus, a change in the standard of review must come from the Supreme Court of Georgia in a proper case, or from the legislature if it determines that the Supreme Court’s construction of its enactment is in error or should be changed.

2. In enumerations of error 1, 3, 4 and 5, the Company asserts that the PSC’s rulings are confiscatory and violate due process of law. The issues raised by the enumerations are moot because of the subsequent rate changes. Even if we were to reverse and remand this 1991 rate case back to the superior court and it reversed the PSC, adjustments in its decision would have no practical effect. There would be no benefit to the complaining party. See Chastain, supra at 433. New rates have been sought and ruled upon by the PSC. Even if these issues were not moot, there is no reversible error, as discussed below.

“Rate-making is a highly technical task, heavily dependent on experts. It lies in the legislative domain. [Cits.] The task was delegated by the legislature to a statutory commission of five elected persons. OCGA § 46-2-1. ‘The Georgia Public Service Commission was created for a special purpose with special competence to deal with special matters including the establishment of rates for public utilities.’ [Cits.] ‘The commission shall have exclusive power to determine what are just and reasonable rates and charges to be made by any . . . corporation subject to its jurisdiction.’ OCGA § 46-2-23.” Ga. Power Co., 196 Ga. App. at 572, 576, supra.

“The [superior] court must accept the factual findings of the PSC if there is any evidence to support them. If arbitrary and capricious action is alleged the court must determine whether a rational basis exists for the decision made. As said, it is a question of law. [Cits.] Likewise, as this court then reviews the actions of the PSC, the evidence is again construed in favor of the decision rendered, as it is when it is reviewed by the superior court. . . ‘At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable shall be upon the utility. . . .’ ” (Indention omitted.) Id. at 580-581. Under OCGA § 46-2-26.4 (b), “The utility shall have the burden of explaining and supporting the reasonableness of all estimates and adjustments contained in its cost of service data.”

On the other hand, “[i]f a rate order issued by the commission does not authorize a regulated utility to earn an amount to sufficiently compensate its investors reasonably, to maintain its credit, to attract capital, and to maintain the requisite level of services, then it is the duty of the judiciary to set aside such a rate order as confiscatory and violative of substantive due process of law.” Ga. Power Co. v. Ga. Pub. Svc. Comm., 231 Ga. 339, 341 (201 SE2d 423) (1973).

The PSC determined that the Company was required to earn additional revenues of $4,921,000 effective December 1, 1991. The Company asserts for the reasons that follow that it cannot earn the amount which the PSC determined is necessary.

(a) The Company submits that the PSC erred in calculating net operating income because it failed to consider evidence of updated economic forecasts. Further, it alleges that the Commission abused its discretion in failing to reschedule or continue the hearings to allow for further analysis of the updated data.

The purpose of the rate proceeding was to set rates that would produce the required revenue in the period when the rates would be in effect. As explained in the PSC’s order, under OCGA § 46-2-26.4 “[t]he [PSC] must set rates based on a completely forecasted test year. . . [T]he information provided by [the Company] must be based on a twelve month period which does not begin until after the [PSC] has made a decision in this case. Thus, no evidence of income, expenses, operations or policies in the test year can be actual data.” According to this Code provision, monthly actual cost of service data is to supplement this information as it becomes available.

The Company initially presented evidence of operating income of $92,482,000, based on data from a fall 1990 forecast. Five months after initiating the rate proceeding, on September 30, it filed an updated spring 1991 forecast. After initial opposition to the updated forecast on the part of the Staff and Intervenors, the parties ultimately stipulated to its admission in evidence. The Company suggests that failure to consider the updated forecast significantly affected the projected return on equity because the fall forecast inaccurately predicted a higher level of sales and a lower number of customers eligible for low-income elderly discounts, than did the more accurate, more current, spring forecast.

The PSC’s order relates with respect to the updated forecast: “[T]he September 30, 1991, ‘updated testimony and exhibits’ are evidence of record in this case and were considered by the Commission. As was clear throughout the hearings, the ‘updated testimony and exhibits’ were filed only five working days prior to the date from which the Staff and Intervenors were required to prefile their cases-in-chief. . . Because of this shortness of time, the Staff and Intervenors were unable to properly analyze the Company’s ‘updated testimony and exhibits.’ Even if all parties had reviewed the update, the limited time for such review would have made a thorough analysis impossible. Thus, the ‘updated testimony and exhibits’ were not subject to scrutiny by the Staff and Intervenors, and do not present the most credible evidence upon which the Commission should base its decision in this case.” Nevertheless, the PSC reiterated that it had adopted the stipulation of counsel “and has considered the updated testimony and exhibits. . ...”

The superior court affirmed the Commission’s ruling, concluding that it constituted “a rational method of conducting an efficient and expeditious hearing” under OCGA § 46-2-58 (b).

The Commission specifically states that it did consider the updated forecast as evidence in the case, but because it was filed so late in the proceedings and could not be thoroughly analyzed, it was not the most credible evidence under consideration. The PSC is the judge of facts, credibility and weight to be accorded the evidence. See Lasseter v. Ga. Pub. Svc. Comm., 253 Ga. 227, 230 (2) (319 SE2d 824) (1984). The test is whether there was any evidence to support the PSC’s conclusions. It is not legal error to give evidence little weight or lesser credibility. The Company has not carried its burden of establishing the absence of any evidence.

With respect to the agency’s procedural decision to refuse a postponement for additional staff and intervenor study and response to the updated forecasts, the Company must show abuse of discretion which has prejudicial substantial rights of the Company. OCGA § 50-13-19 (h) (6). This it has not done. For one thing, the statutory scheme for gas utility rate proceedings does not contemplate the post-filing submission of more current forecasts, although it does not prohibit such a practice. OCGA § 46-2-26.4 (b).

(b) The Company asserts that the court erred in affirming the PSC’s decision to disallow employee wage increases at the requested rate.

The PSC allowed a total five percent increase in wages for rate making purposes. The Company asserts that it produced evidence establishing that a six-and-one-half percent increase was necessary to bring salaries closer to the levels paid by comparable companies and to satisfy union collective bargaining agreements. In opposition, expert testimony was offered to the effect that the Company’s proposed wage increases were improperly calculated on an inflated cost of living component and incorrect assessment of the economy. This expert recommended that the PSC recognize a four percent cost of living rate and a one percent increase for performance purposes to be responsive to economic conditions. This was based in part on the Consumer Price Index for the Atlanta area for the four previous years plus the projected CPI published September 1991. The evidence supports the rejection of a combined cost of living and performance-based increase higher than five percent.

(c) The Company asserts that the PSC erred in disallowing $383,000 in regulatory expenses, and in so doing, followed unlawful procedure, disregarded the evidence and abused its discretion.

These expenses were incurred in connection with the Company’s participation before the PSC in proceedings known as the promotional practices docket. As supported by expert opinion testimony, the PSC determined that the Company should receive a cost allowance based on the prospective expenses for the period in which the new rates would be in effect and disallowed retroactive recognition of such costs.

The superior court affirmed this ruling as having been supported by the evidence and in compliance with OCGA § 46-2-26.4.

That Code section, enacted by Ga. L. 1991, p. 1705, § 1, effective April 19, 1991, is applied for the first time in this 1992 rate-making proceeding. Subsection (b), referenced earlier, provides in pertinent part: “In any proceeding to determine the rates to be charged by a gas utility, the gas utility shall file jurisdictionally allocated cost of service data on the basis of a test period, and the commission shall utilize a test period, consisting of actual data for the most recent 12 month period for which data are available, fully adjusted separately to reflect estimated operations during the 12 month period commencing five months from the proposed effective date of the rates. . . .” The PSC adopted the Staff’s recommendation and applied this 12-month future test year provision, disallowing retroactive recognition of the $383,000 in regulatory expenses. This is in compliance with the statutory scheme and is supported by the evidence.

3. The Company challenges a portion of the PSC’s ruling which anticipates future cases and which states: “OCGA § 46-2-26.4 prohibits the filing in future cases ... of testimony by the Company subsequent to the Company’s initial filing.” It submits that because the use of updated projections is consistent with OCGA § 46-2-26.4 in order to achieve the greatest degree of accuracy, “it is likely that in future cases, failure to consider an updated forecast will result in an overstatement of the revenue deficiency.” Thus, the Company submits, the ruling is in excess of the PSC’s statutory authority and constitutes an abuse of discretion.

As decided in Division 2 (a), supra, exclusion of updated forecast data is not an issue in this case. The Company is in essence seeking an advisory opinion construing the scope of and timing for, evidence in a proceeding under OCGA §§ 46-2-26.4 and 46-2-25 (b), for future rate cases. We treat such as did the Supreme Court in Bd. of Trustees &c. v. Kenworthy, 253 Ga. 554, 557 (322 SE2d 720) (1984): “This court has in the past generally refused to issue advisory opinions. [Cits.] . . . We normally limit our rulings to the specific case or controversy decided by the trial court, [cit.], and do not venture an opinion as to the legality of future actions which may or may not occur.” The PSC’s announcement of its intended practice in cases other than this one is an abstract question, not related to the controversy presently before the court. Thus, the legitimacy of the PSC’s interpretation of OCGA § 46-2-26.4 (b) on this issue will not be addressed. See Chastain, supra at 433.

4. The Company contends, that the court erred in suspending the annual capacity charge. Even if the issue were not moot, the Company would not prevail.

The Company imposed an “annual capacity surcharge” on customers who use a gas furnace for auxiliary heating as a backup to an electric heat pump. It submits that the surcharge is required because the Company does not otherwise recover the demand costs associated with this limited use of a gas furnace at peak winter periods. It sought by way of the new schedules to increase its annual capacity surcharge from $4.29 per therm to $8.34.

Instead of authorizing an increase, the PSC suspended the annual capacity charge. This ruling is explained in the PSC’s order: “In the 1990 rate case the [PSC] determined that when a gas furnace is used as backup heat source to a heat pump or other heating source, the furnace imposes the same demand costs from on-peak use as a furnace used as a primary heat source. However, the use of a gas furnace as a backup heat source does not use sufficient levels of consumption to recover the demand costs. The [PSC] determined in 1990 . . . that an Annual Capacity Charge was an appropriate mechanism to recover the demand costs and set the rate at $4.29 in that proceeding.” This was based on a cost of service study prepared by the Company in the 1990 case.

The order continues: “The Adversary Staff reviewed and considered the Company’s cost of service study and incorporated it into its testimony in this case. The new data submitted by the Company caused the Adversary Staff to depart from its recommendation in last year’s rate case.”

The PSC then considered conflicting expert testimony offered at the hearings and concluded: “In view of the importance of this issue, the amount of conflicting testimony and the interest of the Commission to establish a permanent policy with regard to the surcharge, the [PSC] finds that the present capacity charges . . . shall be temporarily suspended for the purpose of holding a generic hearing on capacity charges.” Although it directed that such hearings be conducted within 60 days of the order, such hearings apparently did not materialize. Since then, new rate filings having been made.

Decided March 17, 1994

Reconsideration denied March 28, 1994

Long, Aldridge & Norman, Albert G. Norman, Jr., Gordon D. Giffin, L. Craig Dowdy, for appellant.

Michael J. Bowers, Attorney General, Beverly B. Martin, Senior Assistant Attorney General, David I. Adelman, Roger M. Siegel, Assistant Attorneys General, Troutman Sanders, Douglas L. Miller, Hugh M. Davenport, Nancy G. Gibson, for appellees.

The superior court affirmed this ruling on the ground that the PSC’s “stated purpose to clarify its position in order to establish a permanent policy in light of the conflicting testimony given at the hearing on review has a rational basis, and is supported by evidence under the ‘any evidence’ standard.”

The Company does not challenge the decision to hold a generic hearing but asserts that the suspension altogether of the charge “was arbitrary and capricious and a clear abuse of discretion . . . because of its belief that more data was necessary to determine the propriety of the increase proposed by the Company.” It offers no authority or reason in support of its position, other than that the PSC had permitted the charges in the 1990 rate case as an appropriate mechanism to recover costs. “If arbitrary and capricious action is alleged the court must determine whether a rational basis exists for the decision made.” Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. at 581 (5), supra. “The opinions of competent experts may constitute such a rational basis.” Id. at 580 (5).

There was conflicting expert opinion varying from no required surcharge to a charge of $8.34 and, as the PSC explained in its order, a lack of data necessary to “determine the justness and reasonableness of the annual capacity surcharge proposed by [the Company] in this case.” This provided a rational basis for suspending the surcharge pending receipt of additional information.

The PSC and Intervenor relate in their briefs that the surcharge issue is presently under consideration in connection with the 1993 rate making proceeding. If that is so, the Company will have, or has now had, an opportunity to offer evidence in that proceeding and to appeal from any adverse ruling.

Judgment affirmed.

Cooper and Smith, JJ., concur.

       At oral argument in the instant case in September 1993, we were advised that a PSC decision was imminent in a 1993 rate proceeding.

       The Supreme Court rejected the dissent’s position that the APA expressly imposed the “substantial evidence” test, which would allow broader judicial review when the court considers whether an agency was clearly in error. See also Lasseter, supra. The “any evidence” standard of review for determining whether an agency decision is “clearly erroneous” was first adopted in Ga. Dept. of Human Resources v. Holland, 133 Ga. App. 616 (1) (211 SE2d 635) (1974).

       The Company argued in its brief to the Supreme Court of Georgia, before the case was transferred, that Hall v. Ault should be overruled. Here the argument is that Hall o. Ault is not controlling because of the intervening constitutional change of the breadth of appellate review. We, of course, could not overrule a decision of the Georgia Supreme Court. See, e.g., Adams v. State, 174 Ga. App. 558, 559 (2) (331 SE2d 29) (1985).

       Some of the history of the particular changes noted by appellant as having been made in the 1983 Constitution of Georgia may be found in the transcripts of the meetings of the Committee to Revise Article VI, State of Georgia Select Committee on Constitutional Revision 1977-1981, Vol. III. The following portions shed some light in the adoption of “court of review”: Meeting of August 8, 1980, pages 146 line 7 to 155 line 20, page 162 lines 3 to 15; pages 4-6 of the Commentary of December 22, 1980, describing some of the background and rationale for each paragraph of the final proposed draft of Article VI. For some of the history of the former wording, see Balkcom v. Vickers, 220 Ga. 345, 347 (1) (i) (138 SE2d 868) (1964).

       The “Staff,” as referred to herein, include members of the staff of the PSC selected to present an adversarial case in opposition to the Company’s filing.

       Intervenor Georgia Power Company filed a brief in support of the PSC’s ruling with respect to suspension of the Company’s annual capacity charge.


text:
    A93A1991.
    ABE ENGINEERING, INC. v. GRIFFIN, COCHRAN & MARSHALL.
    (443 SE2d 1)
    Decided January 19, 1994
    Reconsideration denied March 28, 1994
    Dhiru V. Parekh, pro se.

      Sullivan, Hall, Booth & Smith, Michael A. Pannier, for appellee.
   Cooper, Judge.

Plaintiff corporation, appearing pro se through its president, brought this legal malpractice action against defendant attorneys arising from their representation of appellant in a civil matter. Defendant denied the material allegations of the complaint and raised the defense that plaintiff failed to file an expert affidavit as required by OCGA § 9-11-9.1 (a). Defendant subsequently moved to dismiss the complaint for failure to state a claim under OCGA §§ 9-11-9.1 (e) and 9-11-12 (b) (6). The trial court granted the motion and dismissed the complaint with prejudice. Plaintiff appeals.

Plaintiff argues the trial court erred in dismissing the complaint with prejudice. A complaint alleging professional malpractice must include an expert affidavit setting forth at least one negligent act or omission and the factual basis for each such claim. OCGA § 9-11-9.1 (a). “A complaint is subject to dismissal for failure to state a claim when the plaintiff fails to file an expert affidavit as required. OCGA § 9-11-9.1 (e). A dismissal for failure to state a claim is a dismissal on the merits. [Cit.]” Lutz v. Foran, 262 Ga. 819, 824 (4) (427 SE2d 248) (1993). In the instant case, plaintiff’s complaint set forth a cause of action for legal malpractice; however, it failed to file an expert affidavit with the complaint and, as such, its complaint was subject to dismissal for failure to state a claim. Since such a dismissal is a dismissal on the merits, the trial court properly dismissed the complaint with prejudice. See Lutz, supra at 824 (4); see also Howard v. Jonah, 208 Ga. App. 542 (1) (430 SE2d 833) (1993) (upholding dismissal under OCGA 9-11-9.1 with prejudice).

We also reject plaintiff’s contention that he should be excused from complying with the affidavit requirement because of his pro se status. See Kalustian v. McDonald, 194 Ga. App. 435 (390 SE2d 657) (1990); Frazier v. Merritt, 190 Ga. App. 832 (380 SE2d 495) (1989). Accordingly, the trial court did not err in dismissing the complaint with prejudice.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A2192.
    RACE, INC. v. SHELL.
    (442 SE2d 767)
   Cooper, Judge.

This is an appeal from the entry of judgment on an arbitrator’s award.

Appellant Race, Inc. is an operator of automobile rental facilities. Appellee was one of four shareholder/employees under a shareholder agreement with appellant which provided that in the event of termination of employment, appellant would purchase the outstanding shares of the terminated employee at fair market value. Upon appellee’s termination, when the parties were unable to reach an agreement as to the fair market value of appellee’s shares, the matter was submitted to an arbitration panel pursuant to the shareholder agreement. A hearing was held by the arbitration panel on May 9, 1990. The parties received copies of the arbitrators’ decision along with a June 18, 1990 forwarding letter from one of the arbitrators on the panel. The arbitrator advised the parties that the panel withheld the decision because appellant had not paid its portion of the fee to two of the arbitrators. On June 20, 1990, appellant sent written objections to the award to each of the arbitrators, taking exception to the timeliness of the award and the mode of delivery pursuant to OCGA § 9-9-10. Appellee subsequently filed this action for entry of judgment on the arbitrators’ award pursuant to the Georgia Arbitration Code (OCGA § 9-9-1 et seq.) and the Federal Arbitration Act (9 USCA § 1 et seq.). After conducting an evidentiary hearing pursuant to the Georgia Arbitration Code, the trial court confirmed the arbitrators’ award, finding that appellant’s failure to compensate one of the arbitrators was a contributing factor in the delay of the rendition of the award and (notwithstanding appellant’s failure to file an application to vacate the award) that appellant did not demonstrate that its rights were prejudiced by the delay in the entry and dissemination of the award. On appeal, appellant contends the trial court erred in finding that there existed a valid and binding arbitration award because the award was neither personally delivered or delivered by registered or certified mail, nor was it made within 30 days following the hearing before the arbitration panel in accordance with OCGA § 9-9-10. Appellant also contends the court erred in finding that appellant waived its right to object to the untimeliness of the award. However, as we discussed above, the court did not hold that appellant waived its right to object to the untimeliness of the award by failing to file an application to vacate the award within three months after the delivery of the award in accordance with OCGA § 9-9-13 (a). Instead, the court specifically set that issue aside and proceeded to consider the merits of appellant’s claims as if they had been properly raised.

Decided February 22, 1994

Reconsideration denied March 28, 1994

Trauner, Cohen & Thomas, Russell S. Thomas, for appellant.

Rolf M. Baghdady, for appellee.

According to the Georgia Arbitration Code, specifically OCGA § 9-9-12, “[t]he court shall confirm an award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified by the court as provided in this part.” OCGA § 9-9-13 (b) (3) provides as follows: “The award shall be vacated on the application of a party who either participated in the arbitration or was served with a demand for arbitration if the court finds that the rights of that party were prejudiced by ... [a] n overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made.” (Emphasis supplied.) On appeal, appellant continues to assert the failure of the arbitrators to comply with statutory requirements as a basis for vacating the award but makes no showing of prejudice. Thus, there is no basis for a reversal of the trial court.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.

       We decline to apply the Federal Arbitration Act, as urged by appellee, because there is insufficient evidence of appellant’s business activities in the record to determine whether the agreement “involved ‘commerce’ as that term is used in the Federal Arbitration Act.” ADC Constr. Co. v. McDaniel Grading, 177 Ga. App. 223, 225 (1) (338 SE2d 733) (1985).


text:
    A93A2220.
    SCHULMAN v. MIS RESOURCES INTERNATIONAL.
    (443 SE2d 2)
   Cooper, Judge.

Plaintiff filed a lawsuit against defendant alleging breach of contract resulting from defendant’s failure to pay overtime compensation. Both parties filed motions for summary judgment, and the trial court denied plaintiff’s motion and granted defendant’s motion. Plaintiff appeals the grant of summary judgment to defendant.

Defendant is a company in the business of hiring, as consultants, persons skilled in technical areas such as computer and software programming. Defendant maintains a client list of companies in need of various computer expertise and assigns consultants to companies in need of such personnel. Plaintiff was hired by defendant as a computer consultant in October 1990, at a yearly salary of $44,000. In February 1991, plaintiff was terminated for inadequate job performanee and subsequently filed a lawsuit against defendant alleging breach of contract for failure to pay him for overtime.

Plaintiff argues that his employment contract obligated defendant to pay him $44,000 for 2,000 work hours; that overtime was to be paid at the same hourly rate; and that at the time of his termination he was due to be paid for 284 hours of overtime totaling $6,480.88. Defendant contends that plaintiff was an exempt employee, hired at an annual compensation rate of $44,000 and was not entitled to overtime compensation. In support of its motion for summary judgment, defendant submitted the affidavit of its chief executive officer, Wayne Edwards. Edwards stated that plaintiff was hired at a yearly compensation of $44,000 and as such was only eligible for additional compensation through the quarterly incentive bonus program outlined in the personnel manual. The quarterly incentive bonus program entitled plaintiff to be paid for billable hours worked over the target billable hours in a quarter, and non-billable hours did not count towards the incentive bonus. Edwards further stated that the quarterly incentive program was explained to plaintiff at the beginning of his employment and that it was customary to periodically re-explain the program to all consultants.

The trial court found that plaintiff’s employment with defendant was subject to the following documents: 1) confirmation letter of employment, 2) formal offer of employment, 3) professional services agreement, 4) computer consultant time sheets, and 5) personnel policies and procedures. The confirmation letter refers to the formal letter of employment as confirming all the details verbally discussed. The formal offer of employment provides, in relevant part, as follows: “Your annual compensation [of $44,000] is based on 50 weeks of work, 40 hour work weeks, thus allowing two weeks during the year to be used for vacation, holidays and personal time off. Additional time worked, i.e., overtime, will be paid at this same rate.” (Emphasis supplied.) In the professional services agreement, there is a paragraph relating to “Compensation” which states that “the Offer Summary on page # 4 . . . will provide the basis for compensation.” The Offer Summary outlines plaintiff’s compensation in the following manner:

“COMPENSATION PER 52 WEEK YEAR: $44,000.00 USA

* Calculated on 2000 hours (50 weeks @ 40 hours per week).

* Includes two weeks vacation, and 9 paid statutory holidays.

* Additional hours worked paid at same rate.

* 5.4 % of compensation paid after 1928 hours are worked.

* Additional provisions in offer letter.

* Start date: No later than two weeks from client acceptance.” (Emphasis supplied.)

“ ‘To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.’ [Cit.]” Tokheim Corp. v. First American Bank of Ga., 206 Ga. App. 105, 108 (3) (424 SE2d 54) (1992). Construing the evidence of record, including the employment offer and professional services agreement together with the affidavit of Edwards and the personnel manual, we find that a conflict exists. “The party opposing a motion for summary judgment is to be given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. Applying the foregoing rule to the evidence in this case, we find the grant of summary judgment [to defendant] erroneous.” (Citations and punctuation omitted.) Meadows v. Phillips, 188 Ga. App. 377, 378 (373 SE2d 27) (1988).

Decided March 3, 1994

Reconsideration denied March 28, 1994

Mark P. Ellis, Guy J. Camuso, Jr., for appellant.

Lamb & Associates, W. L. Henderson, for appellee.

Judgment reversed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A2235.
    AMWEST SURETY INSURANCE COMPANY v. INTERSTATE CONSTRUCTION COMPANY, INC.
    (442 SE2d 772)
   Cooper, Judge.

Defendant, Amwest Surety Insurance Company (“Amwest”), appeals from an order disqualifying its attorneys from further representation. The order was certified for immediate review, and we granted defendant’s interlocutory appeal.

Interstate Construction Company, Inc. (“Interstate”), the general contractor on two construction projects, entered into three subcontracts with Holmes Electric Company (“Holmes”) for the performance of electrical work on the projects. Amwest, a surety company, issued three performance bonds to Interstate to insure the installation of electrical work which Holmes was to perform. Holmes failed to perform its obligations under the subcontracts, and Interstate assumed responsibility for completion of the project. Interstate notified Amwest that Holmes had defaulted under the subcontracts and requested Amwest to make payment under the performance bonds. Amwest retained the law firm of Thompson & Slagle, P. C. to investigate the claims of Interstate, and attorneys Jeff Slagle, Gady Zeewy and another attorney no longer with the firm undertook to investigate the claims. Amwest subsequently declined to make payment under the bonds, and Interstate filed an action against Amwest, seeking performance under the bonds as well as a statutory penalty for bad faith pursuant to OCGA § 10-7-30. Amwest retained the same attorneys to represent it in the lawsuit, and after the completion of discovery, including the depositions of attorneys Slagle and Zeewy, Interstate filed a motion to disqualify Slagle, Zeewy and the law firm of Thompson & Slagle, P. C. as counsel for Amwest. Interstate argued that since Slagle and Zeewy conducted the investigation into Interstate’s claims, they were potential witnesses in the case, particularly as their testimony might relate to Interstate’s claim of bad faith. Following a nonevidentiary hearing, the trial court granted Interstate’s motion.

In each of its four enumerations of error, Amwest argues that the trial court erred in granting Interstate’s motion to disqualify counsel. Alternatively, Amwest argues that even if Slagle and Zeewy were properly disqualified, the law firm should not have been disqualified. The issue in this case calls into consideration the State Bar of Georgia Code of Professional Responsibility, specifically, Canon 5 which states that a lawyer should exercise independent judgment on behalf of a client. Ethical Consideration 5-9 provides: “If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and. thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.”

EC 5-10 continues, in relevant part, as follows: “Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.”

These ethical considerations are supported by Directory Rule 5-102 which provides: “When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel.”

“The right to counsel is an important interest which requires that the curtailment of the client’s right to counsel of choice be approached with great caution. The rules of disqualification of an attorney will not be mechanically applied; rather, we should look to the facts peculiar to each case in balancing the need to ensure ethical conduct on the part of the lawyers appearing before the court and other social interests, which include the litigant’s right to freely chosen counsel.” (Citations and punctuation omitted.) Rivers v. Goodson, 184 Ga. App. 70, 71 (1) (360 SE2d 740) (1987).

Interstate maintains that during the trial of the case, it intends to put forth evidence that Amwest acted in bad faith in refusing payment under the performance bonds. Interstate does not anticipate calling Slagle and Zeewy as witnesses but contends that Amwest may call them to refute Interstate’s allegations of bad faith. During the depositions of Slagle and Zeewy, Amwest was represented by DeWitte Thompson of Thompson & Slagle, P. C. Thompson instructed Slagle and Zeewy not to answer questions related to the facts upon which Amwest denied Interstate’s claim on the ground that it would violate the attorney-client privilege. Amwest has also refused to indicate whether it will call Slagle and Zeewy as witnesses during the trial to refute Interstate’s bad faith claim and has refused to indicate whether it would continue to assert the attorney-client privilege as relates to the facts upon which Interstate’s claim was denied.

OCGA § 24-9-25 provides: “No attorney shall be competent or compellable to testify for or against his client to any matter or thing, the knowledge of which he may have acquired from his client by virtue of his employment as attorney. . . . However, an attorney shall be both competent and compellable to testify for or against his client as to any matter or thing, the knowledge of which he may have acquired in any other manner.” To the extent that Amwest seeks to invoke the attorney-client privilege because of facts obtained by Slagle and Zeewy in their capacity as Amwest’s attorneys, such testimony would be inadmissible under OCGA § 24-9-25. Accordingly, if Slagle and Zeewy are incompetent as witnesses, there is no conflict in their continued representation of Amwest, and the trial court should not have disqualified them as counsel for Amwest. On the other hand, if Slagle and Zeewy acquired knowledge regarding Amwest’s denial of Interstate’s claim in a capacity other than as Amwest’s attorneys, Slagle and Zeewy would be competent as witnesses and the determination of whether Slagle and Zeewy should be disqualified would be within the sound discretion of the trial judge. See Clos v. Pugia, 204 Ga. App. 843 (1) (420 SE2d 774) (1992). Since the trial court did not conduct an evidentiary hearing on the motion to disqualify, there is no evidence regarding the capacity in which Slagle and Zeewy acquired their information. It is also unclear from the trial court’s order, which does not contain findings of fact or conclusions of law, whether the trial court considered the applicability of OCGA § 24-9-25 to the decision to disqualify the attorneys. Because we find that statute to be directly relevant to the issue of disqualification, the trial court’s order disqualifying Amwest’s counsel is reversed and the case remanded for a determination of whether Slagle and Zeewy could even be competent witnesses in the case. After the entry of any subsequent order regarding disqualification, the losing party is free to seek interlocutory appeal. Southern Shipping Co. v. Oceans Intl. Corp., 174 Ga. App. 91, 94 (1) (329 SE2d 263) (1985).

Decided February 25, 1994

Reconsideration denied March 28, 1994.

Thompson & Slagle, Jeff B. Slagle, Gady C. Zeewy, for appellant.

Smith, Gambrell & Russell, Henry M. Quillian III, Leland G. Cook, for appellee.

Judgment reversed and remanded with direction.

Beasley, P. J., and Smith, J., concur.