author: Birdsong, Presiding Judge.

text:
    A97A1103.
    WALKER v. THE STATE.
    (493 SE2d 193)
   Birdsong, Presiding Judge.

Tallas Damon Walker a/k/a Tallas Demon Walker appeals his convictions for possession of cocaine with intent to distribute and misdemeanor obstruction of an officer.

On November 14, 1994, an investigator for the Douglas County District Attorney’s office saw appellant’s vehicle parked by the roadside. The investigator, Lt. Cosper, turned around to follow appellant, but appellant’s vehicle was gone. Cosper saw another officer, Lt. Streetman, traveling in the same direction as appellant’s car and radioed him to get the tag number. Streetman was in charge of inmate labor details at the sheriff’s office; his pickup truck had no blue light or siren but did have a sheriff’s star on each door and lettering showing it to be a “Sheriff’s Corrections” vehicle. Appellant was driving too fast for Streetman to get the tag number, but Street-man caught up with appellant’s car when it stopped at an intersection behind other cars. Streetman got the tag number, and appellant sped away and disappeared around a curve. When Streetman caught up with the car, it was parked by the side of the road.

Streetman did nothing to cause appellant to stop his vehicle. Appellant exited his vehicle, but Streetman told him to get back in, and he did so. When Cosper arrived, appellant and his companion, Larry McCowan, got out of the car and ran into the woods. Streetman tackled McCowan. Another officer testified that appellant was captured without incident. Meanwhile, Cosper went to the abandoned vehicle and saw on the front seat a set of drug scales, which he seized. He also saw a bag on the passenger side on the floorboard, and in it he could clearly see what he thought to be drugs. The cocaine in the bag tested as weighing 110.8 grams with 84 percent purity. A narcotics officer recorded an interview in which appellant admitted the cocaine was his. At a pre-sentence hearing appellant admitted under oath that he and McCowan bought the cocaine at Perry Homes in Atlanta with the intent to sell it.

Appellant enumerates 11 errors involving the denial of his motion to suppress, the hearsay nature of the state’s evidence as to the purity of the cocaine, the lack of evidence of “physical resistance” to support the conviction for obstruction, an improper jury charge, and the trial court’s denial of his motion to correct the spelling of his name on the indictment from “Demon.” Held:

1. In two enumerations appellant complains of the denial of his motion to suppress, on grounds that the evidence was seized when officers stopped and searched defendant’s automobile without an articulable suspicion of unlawful activity.

Appellant’s entire arguments are based on his contention that the law enforcement officers stopped and searched appellant’s vehicle without an articulable suspicion of unlawful activity. See State v. Holton, 205 Ga. App. 434 (422 SE2d 295). These arguments completely skew the facts of the case.

The evidence shows without material dispute that the officers did not stop appellant’s vehicle and that appellant abandoned the vehicle before officers saw contraband in plain view. Whether the officers had an articulable suspicion authorizing them to stop appellant does not rise to issue, for they did not direct him to stop. It is well established that police do not require an articulable suspicion merely to approach a voluntarily stopped vehicle. See Jordan v. State, 223 Ga. App. 176 (477 SE2d 583); Crosby v. State, 214 Ga. App. 753 (449 SE2d 147); O’Donnell v. State, 200 Ga. App. 829 (409 SE2d 579) . Police may approach a parked vehicle merely to inquire of the occupant’s well-being. Id. at 832.

Moreover, appellant was not “seized” when he first got back in the car at Streetman’s command. California v. Hodari D., 499 U. S. 621, 624 (111 SC 1547, 113 LE2d 690). He was not “seized” until he was finally arrested. We have followed Hodari D. in Smith v. State, 217 Ga. App. 680 (458 SE2d 704); Anderson v. State, 209 Ga. App. 676 (434 SE2d 122); and Hunt v. State, 205 Ga. App. 490 (422 SE2d 24), ruling that when drugs are discarded during flight or before the suspect is “seized,” they are admissible as evidence even if there is an issue about the officer’s probable cause or articulable suspicion.

Further, appellant abandoned his vehicle and the drugs in it. Therefore, no search of the vehicle was unlawful even if drugs had not been in plain view. Burgeson v. State, 267 Ga. 102 (475 SE2d 580); Hunt v. State, supra. The constitutional protection of the Fourth and Fourteenth Amendments does not apply to property which has been abandoned. Williams v. State, 171 Ga. App. 546, 547 (2) (320 SE2d 389). When the person prejudiced by the search has voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question, he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search. Where a defendant is in a state of flight when he discards or abandons property which he now seeks to suppress, his being pursued does not result in the “seizure” of property he abandoned. Smith, supra at 680-681.

Police pursuit does not of itself render abandonment involuntary. Williams, supra at 548. Appellant voluntarily stopped his vehicle, abandoned it and its contents, and fled at the approach of police officers. The evidence in this case was not the fruit of a “seizure,” legal or illegal, and it is therefore not inadmissible. Anderson, supra at 677. We note that appellant’s flight was a circumstance sufficient to give an articulable suspicion of unlawful activity, but even if they had no such articulable suspicion, the officers were under no legal impediment in examining the abandoned car and its contents. Guess v. State, 197 Ga. App. 40, 42 (397 SE2d 453). It was not necessary that the cocaine spied by the officer be in “plain view.” However, it was in plain view, and thus nothing prevented the officers from seizing it. Galloway v. State, 178 Ga. App. 31, 34 (342 SE2d 473).

2. It is not true that the state’s expert witness based her testimony as to the amount and purity of the cocaine on hearsay. The expert, a crime lab employee, performed the gas chromatography/ mass spectrometry test herself and determined the two bags of cocaine tested had a purity of 84 percent and 85 percent, respectively. Her testimony was not rendered hearsay by the fact that a technician performed a routine function of “shooting” the cocaine into the machine to obtain results on a graph according to a preset computer program, which the witness then studied before arriving at her scientific conclusions. That the witness formed her conclusions based on raw data obtained by the technician does not render her conclusion hearsay. See Randall Memorial Mortuary v. O’Quinn, 202 Ga. App. 541 (414 SE2d 744). See also Taylor v. State, 174 Ga. App. 900, 901 (331 SE2d 920), where a crime, lab expert gave his opinion based on three tests, one of which was performed by someone else, quoting Cochran v. State, 151 Ga. App. 478, 481 (260 SE2d 391), we held that where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based in part on the other’s findings. See also Oldham v. State, 205 Ga. App. 268 (422 SE2d 38) where we held generally that it is not necessary to have testify the person who performed the test or the person who ordered the test, because the test results are purely factual data; the numerical result of alcohol concentration level is determined by the machine used to administer the test, not by the person who performs the test.

The trial court did not err in denying appellant’s directed verdict motion on these grounds. We note that appellant did not object to the testimony as hearsay at trial and cannot raise the issue of hearsay (right to confrontation) here. Thornton v. State, 264 Ga. 563 (449 SE2d 98).

3. The trial court did not err in refusing to charge on possession of cocaine as a lesser included offense of possession with intent to distribute, since the evidence shows that either appellant possessed the cocaine in an amount sufficient to constitute possession with intent to distribute, or he did nothing. See Reed v. State, 222 Ga. App. 376 (474 SE2d 264); Parham v. State, 218 Ga. App. 42, 44 (3) (460 SE2d 78).

Decided September 15, 1997.

Law Offices of Johnny B. Mostiler, Daniel L. Britt, Jr., Harry W. Krumenauer, for appellant.

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

4. Appellant was properly convicted of obstruction of an officer for his acts of flight, as a misdemeanor. Flight is sufficient in certain cases to constitute misdemeanor obstruction of an officer. Anderson v. State, 223 Ga. App. 125, 126 (476 SE2d 852). However, the state concedes that the trial court erred in sentencing appellant as for felony obstruction.

5. Assuming that appellant has shown competent evidence that his name is “Damon” and not “Demon,” we would hold that the trial court erred on the side of incaution in refusing to correct appellant’s name on the indictment from “Demon” to “Damon.” Where it would cost nothing to correct a name that is obviously inherently prejudicial, it is better to correct the name. However, as the evidence against appellant is overwhelming, we do not think any error in this regard affected the verdict. Hamilton v. State, 239 Ga. 72 (235 SE2d 515).

The convictions are affirmed on condition that the trial court strike the sentence for felony obstruction and enter a sentence for misdemeanor obstruction.

Judgment affirmed on condition.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A97A1125.
    McNEIL v. SOUTHERN GOLF INVESTMENTS OF GEORGIA, INC. et al.
    (492 SE2d 283)
   Andrews, Chief Judge.

Alex McNeil appeals from the trial court’s order granting summary judgment to Southern Golf Investments of Georgia, Inc. (Southern Golf) on his shareholder’s derivative action pursuant to OCGA § 14-2-831. McNeil sought an accounting of profits made from the sale of real estate belonging to Southern Golf and one-third of the corporate profits resulting from that sale. Because we find that at the time of the sale McNeil no longer owned any shares in the corporation and thus had no standing to bring the action under OCGA § 14-2-831, we affirm the judgment of the trial court.

The underlying facts in this case are as follows. In April 1993, McNeil entered into an agreement with Melvin Graham and Ray Sloss, the two shareholders in Southern Golf, under which McNeil was allowed to purchase a one-third share of the stock in the corporation for $315,000. At the same time, McNeil entered into an employment agreement with the corporation under which he was to manage Goshen Golf Club. McNeil managed the club until November 1993, when he was terminated.

McNeil filed suit, alleging he was fraudulently induced to invest the $315,000 in the corporation. The parties entered into a “Settlement Agreement in Full and Final Release of All Claims” under which McNeil was to receive $322,500 in return for his one-third share of the stock. McNeil was to receive $50,000 by August 15, 1994, $150,000 by September 15, 1994, and $122,500 by October 15, 1994. Upon signing the agreement, McNeil executed a dismissal without prejudice of his complaint and after receiving payment in full, he dismissed his suit with prejudice.

However, on September 29, 1994, after the second installment payment but before payment in full for McNeil’s stock, Southern Golf sold Goshen Golf Club. When McNeil discovered the sale of the golf club, he brought the instant action, requesting an accounting and his one-third share of the profits. The trial court granted summary judgment to Southern Golf, and this appeal followed.

On appeal, McNeil alleges that he still owned the stock at the time of the sale because the final payment of the three payments had not been made. He claims the settlement agreement was not fulfilled until the final payment was made. We disagree. Computer Maintenance Corp. v. Tilley, 172 Ga. App. 220, 225-226 (322 SE2d 533) (1984), correctly relied on by the trial court, held on similar facts that the sale of stock “was consummated upon the corporation’s tender of the first installment of the purchase price” to the stockholder and, therefore, the stockholder had no standing to bring a shareholder’s derivative action. Id. In that case, as in the instant case, there was no language in the agreement stating that the sale of stock was subject to any contingencies beyond completion of all payments. Id. at 226. Compare Easterby v. Southern G-F Co., 181 Ga. 405 (182 SE 508) (1935), in which the Court found the language of the contract itself indicated that no present sale was intended and plaintiffs retained possession of their stock until paid in full. Moreover, the defendants admitted in their answer that plaintiffs were still shareholders in the corporation. Id. at 407-408; Computer Maintenance Corp., supra. As the instant case appears to be directly on point with Computer Maintenance Corp., we find that McNeil no longer owned any shares of stock in Southern Golf and, therefore, had no authority to institute a derivative action under OCGA § 14-2-831. Accordingly, the trial court correctly granted summary judgment to Southern Golf.

Decided September 15, 1997.

Samuel W. Cruse, for appellant.

Dunstan, Dunstan & Cleary, James R. Dunstan, for appellees.

Judgment affirmed.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.


author: Pope, Presiding Judge.

text:
    A97A1404.
    PALMER v. PINKSTON.
    (492 SE2d 285)
   Pope, Presiding Judge.

This appeal arises from a legitimation proceeding in which the father and mother stipulated that the child was the legitimate child of the father, that the father would pay child support, and that the father and mother would have joint legal custody. At a nonevidentiary hearing, the trial court orally specified the father’s visitation schedule and denied the father’s request to change the child’s name. The court then requested that the parties submit an order for his signature. But the father and mother each submitted their own version of the order — and the trial court signed and filed both. The orders were similar in most respects, but differed in at least one particular: although both orders used the words “joint legal custody,” the order submitted by the mother stated that while “the parties shall make reasonable efforts to communicate with each other prior to making decisions affecting the welfare of the minor child, and . . . shall attempt to arrive at a jointly agreeable decision regarding the child’s welfare, ... in the event that the parties are unable to agree between themselves, the [mother] shall have the authority to make any such decisions.” Because the trial court erred in signing both orders rather than choosing one or writing its own, we vacate both orders and remand the case to allow the entry of a new order.

1. Focusing on the order submitted by the mother, the father argues that the language giving the mother final decision-making authority is inconsistent with OCGA § 19-9-6 (2) and effectively grants the mother sole legal custody. Because a new order must be entered, this issue is not ripe for resolution. We note, however, that the lower court can look for guidance to Scott v. Scott, 227 Ga. App. 346 (489 SE2d 117) (1997), in which we approved an order giving a mother final authority to make decisions concerning education, health, and religious training where the father retained equal decision-making responsibility in other areas and an opportunity to voice his views with respect to the three named areas. Id. at 350 (4).

2. The father also contends the trial court erred in ruling that it did not have authority to enter a temporary custody order in a legitimation proceeding. OCGA § 19-9-3 (e) authorizes the entry of a temporary custody order when a petition for a change of custody has been filed. But whether this Code section applies to a custody dispute arising in the context of a legitimation proceeding is a question which has not been directly answered; and we granted this discretionary appeal to do so. Upon review of the whole record, however, it appears this is not an appropriate case in which to decide this question, because the mother did not consent to an adjudication of the physical custody issue in this legitimation proceeding. See Kennedy v. Adams, 218 Ga. App. 120 (1) (460 SE2d 540) (1995) (physical precedent only); Gregg v. Barnes, 203 Ga. App. 549, 550 (1) (417 SE2d 206) (1992) (physical precedent only). In Kennedy and Gregg, we said that custody issues may be adjudicated in a legitimation proceeding — but only with the consent of the parties. In the absence of the mother’s consent, if the father wishes to petition for a change in physical custody, he must do so in a separate proceeding after the judgment of legitimation is entered.

There was much unnecessary confusion in this case. This was caused in part by the parties’ failure to put their stipulations in writing. Putting the stipulations in writing would, of course, have clarified for the record to what the parties agreed. But even more importantly, the process of putting the stipulations in writing might have helped the párties realize that they had not in fact reached agreement and that further work was necessary.

And further confusion was caused by loose references to “custody,” without distinguishing between legal and physical custody. While they are obviously related issues, it is important to remember that they are discrete issues. Parties can stipulate as to one of these issues but not the other, and can consent to have one adjudicated in a legitimation proceeding but not the other.

Decided September 15, 1997.

Monzer J. Mansour, for appellant.

The Dan-Fodio Law Group, Janel O. Bowles, James C. West III, for appellee.

3. Lastly, the father asserts the trial court abused its discretion in denying his request to change the child’s last name to his own. A trial court has broad discretion in deciding whether to grant a request to change the name of a child, and the court’s decision will not be reversed unless it clearly abuses its discretion by ignoring the best interests of the child. See Johnson v. Coggins, 124 Ga. App. 603, 604 (184 SE2d 696) (1971). In this case, the court noted that the child had lived with the mother and used her last name for two years prior to the legitimation. After the legitimation, the child continues to live with the mother, and the record does not reveal any reason why a name change would be in the child’s best interest. Accordingly, the trial court did not abuse its discretion in denying the father’s request.

Judgment vacated and case remanded.

Johnson and Blackburn, JJ, concur.

       OCGA § 19-9-6 (2) defines “joint legal custody” as “both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, and religious training; provided, however, that the court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.”

       The mother’s counsel stated at the hearing that she did not consent to adjudication of the physical custody issue, and in the absence of anything in the record showing she did, we accept this statement. We note, however, that in the order the mother submitted she addresses the physical custody issue. If that issue is not being adjudicated, the order should not address it; there is no need to state the status quo.

       See Gregg v. Barnes, 203 Ga. App. at 551 (1) (prior to legitimation, only mother is entitled to custody, and legitimation process itself does not effect a change in custody).


author: Judge Harold R. Banke.

text:
    A97A1413.
    LIPTON v. WARNER, MAYOUE & BATES, P.C.
    (492 SE2d 281)
   Judge Harold R. Banke.

The law firm of Warner, Mayoue & Bates, P.C. (WM&B) sued Richard J. Lipton for past due legal bills. Enumerating three errors, Lipton appeals.

Richard E. Bates represented Lipton in a divorce action from February until September 21, 1992, when prior to the conclusion of the divorce proceedings, the trial court consented to the withdrawal of Bates and WM&B as counsel of record for Lipton. Lipton paid over $35,000 on his account, and WM&B sued for the outstanding balance. Lipton asserted that WM&B performed unauthorized legal services including work done by three attorneys other than Bates and four paralegals. He counterclaimed for, inter alia, fraud, misrepresentation, breach of fiduciary duty, conversion, slander or libel to title, and punitive damages. Lipton’s counterclaims stemmed from two attorney liens which WM&B filed on real property which was subject to the divorce action.

When Lipton retained Bates to represent him in the divorce action, he did not sign a written fee agreement with Bates or WM&B. Bates testified that Lipton agreed to compensate him and others at varying rates and agreed to reimburse WM&B for all out-of-pocket expenses including court costs. During the course of the representation, it is undisputed that Lipton received regular monthly billing from WM&B. WM&B’s detailed invoices notified Lipton each month that he was being billed for services of other attorneys and paralegals, including the number of hours per staffer and the total dollar amount for each person. The billings demonstrate that WM&B associates and paralegals provided substantial work on a range of issues. According to Lipton, Bates withdrew as counsel after “I ran out of money to pay him.” Lipton deposed, “I think he [Bates] was paid enough money, more than enough money.”

According to the evidence, Lipton accepted legal services, was billed monthly for them, made partial payment, then refused to pay despite repeated requests for payment. The record contains no evidence that Lipton voiced any complaint concerning the accuracy of the billing until several years later when his account still remained unpaid. When asked if there was any specific billing entry that he contended was “inaccurate, inflated, or the services were not performed,” Lipton responded, “Right now I can’t say that there are.” During his deposition, Lipton conceded that he could not dispute anything on any of the bills with any certainty.

The trial court determined that due to the absence of any genuine factual issues remaining to be tried on WM&B’s action as well as on Lipton’s counterclaim, WM&B was entitled to the principal amount of $50,577.84, prejudgment interest, attorney fees, court costs, and post-judgment interest. The court rejected Lipton’s recusal motion. Lipton challenges all of these rulings. Held:

1. The trial court did not err in granting summary judgment to WM&B notwithstanding Lipton’s defenses of accord and satisfaction, fraud, misrepresentation, and payment. It is undisputed that the debt remained unpaid. Attempting to avert summary judgment, Lipton offered his own affidavit. However, Lipton’s testimony that he authorized only Bates to perform certain work is eviscerated by the billing documentation which shows that Lipton knew or should have known the exact nature of the services being performed by Bates as well as by others. A self-serving, conclusory affidavit not supported by fact or circumstances is insufficient to raise a genuine issue of material fact. Brooks v. Boykin, 194 Ga. App. 854, 856 (3) (392 SE2d 46) (1990). Moreover, that affidavit is plainly undercut by Lipton’s deposition testimony, in which he admits he did not pay his bill and that he had no evidence of fraud or overbilling. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986) (self-contradictory testimony construed against equivocator, absent reasonable explanation). After WM&B presented evidence of the unpaid amount for services Lipton received and accepted, the burden shifted to Lipton to point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e). This he failed to do. See Wachovia Bank &c. v. Mothershed, 210 Ga. App. 853, 854 (2) (437 SE2d 852) (1993).

Decided September 15, 1997

Sabiston & Smith, Eric P. Sabiston, for appellant.

Irvin, Stanford & Kessler, Stephen M. Katz, Steven Montalto, for appellee.

2. The trial court did not err in dismissing Lipton’s counterclaims for conversion, interference with the right to enjoyment of property, slander or libel of title to land, fraud, and punitive damages. All of Lipton’s counterclaims hinged on the propriety of two attorney liens which WM&B filed on the real property four days prior to the entry of the final decree in the divorce action.

An attorney lien arises upon the attorney’s employment and is perfected at the time of the ultimate recovery of the judgment by the client. Ramsey v. Sumner, 211 Ga. App. 202, 204 (3) (438 SE2d 676) (1993). Although Bates withdrew from representation prior to the final settlement, it is undisputed that Lipton obtained title of the real property pursuant to the divorce settlement. See Hester v. Chalker, 222 Ga. App. 783, 784 (1) (476 SE2d 79) (1996). The liens for attorney fees asserted against the real property which Lipton recovered pursuant to the divorce judgment were not unlawful. See OCGA § 15-19-14 (c). It therefore follows that Lipton’s counterclaims challenging the correctness of these liens must necessarily fail.

3. Lipton was not entitled to have the trial judge recused. A motion for recusal must be both legally sufficient and timely. Uniform Superior Court Rule 25.1. Harris v. State, 202 Ga. App. 618, 622 (7) (414 SE2d 919) (1992). Lipton’s motion was neither timely nor had the requisite affidavit mandated by USCR 25.2.

Judgment affirmed.

McMurray, R J., and Smith, J., concur.


text:
    A97A1489.
    THOMAS v. DEPARTMENT OF HUMAN RESOURCES.
    (492 SE2d 288)
   Pope, Presiding Judge.

Defendant Darren Thomas, the former administrator of the Caring Hands personal care home, appeals an order holding him in criminal contempt for failing to comply with a prior order mandating a reduction in the number of residents in the home. Although Thomas ran the day-to-day operations of the home under the owners’ direction, the undisputed evidence shows that Thomas did not have the authority to make the decisions and take the actions necessary to reduce the number of residents as ordered. We therefore reverse the trial court’s order holding Thomas in criminal contempt.

This appeal arises from a lengthy dispute between the Georgia Department of Human Resources (“the department”) and Wayne and June Putnam, the owners and officers of Caring Hands, Inc. (“the corporation”). See Caring Hands v. Dept. of Human Resources, 222 Ga. App. 608 (475 SE2d 660) (1996); Caring Hands v. Dept. of Human Resources, 214 Ga. App. 853 (449 SE2d 354) (1994). The department succeeded in obtaining an injunction against the Putnams and the corporation, ordering them to reduce to six the number of residents in the home. When the Putnams and the corporation failed to comply, the court held the Putnams in civil contempt; and when that contempt order was affirmed, the Putnams were incarcerated and the corporation was fined.

Nonetheless, the home continued to operate, with more than six residents. Thomas was the on-site administrator, performing clerical functions and janitorial duties as well as caring for residents. But even while the Putnams were in jail, they continued to make all policy decisions and called Thomas every day with instructions. By the time of the hearing on Thomas’ contempt, Thomas — at the direction of the Putnams — had already reduced to six the number of residents at the home by notifying the residents’ families they needed to be moved. Yet despite the undisputed evidence that Thomas was not a decision maker, the court held him in criminal contempt.

In order to establish criminal contempt, there must be proof beyond a reasonable doubt not only that the alleged contemnor violated a court order, but also that he did so wilfully. See In re Henritze, 181 Ga. App. 560 (353 SE2d 58) (1987). And to show wiliulness, there must be proof beyond a reasonable doubt that the alleged contemnor had the ability to comply with the court order: “ ‘ “It is essential to constitute a contempt that the thing ordered to be done be within the power of the person against whom the order is directed.” [Cits.]’ ” Id. at 562; accord In re Brookins, 153 Ga. App. 82, 87 (264 SE2d 560) (1980). In this case, there was no evidence that Thomas had the power to reduce the number of residents in the home until the Putnams directed him to do so; to the contrary, all the evidence on the subject was that he did not. It follows that the trial court erred in holding Thomas in contempt.

Decided September 15, 1997.

Darren Thomas, pro se.

Thurbert E. Baker, Attorney General, Velma C. Tilley, Mary E Russell, for appellee.

Judgment reversed.

Johnson and Blackburn, JJ, concur.

       Thomas was never an officer or shareholder of the corporation.

       As the department points out, the Putnams’ affidavits attached as exhibits to Thomas’ brief cannot be considered as evidence. See Johnson v. Wade, 184 Ga. App. 675, 676 (1) (362 SE2d 469) (1987). Even without these affidavits, however, the undisputed testimony at the hearing establishes Thomas’ lack of decision-making authority.

       Where the alleged contemnor was not a party to the action in which the allegedly violated order was issued, it must also be shown beyond a reasonable doubt that the alleged contemnor had actual knowledge of the contents of the violated order. See, e.g., In re Smith, 211 Ga. App. 493, 496 (4) (a) (439 SE2d 725) (1993). In this case, Thomas does not dispute his awareness of the violated order.


text:
    A97A1579.
    ECTOR v. UNISON INSURANCE COMPANY.
    (492 SE2d 287)
   Pope, Presiding Judge.

Plaintiff James Ector appeals the trial court’s dismissal of his action for failure to prosecute. Concluding that the court did not abuse its discretion, we affirm.

Plaintiff had an automobile insurance policy with defendant Unison Insurance Company. Defendant refused plaintiff’s claim for damages allegedly resulting from a 1990 car accident, and plaintiff sued. In early January 1997, the trial court notified the parties that their case had been placed on a jury trial calendar for the week of February 18, 1997. On January 29, 1997, however, defendant requested a continuance, and plaintiff did not oppose this request. And on February 3, 1997, the court ordered the parties to file a pretrial order within thirty days — a period which extended approximately two weeks beyond the scheduled trial date. Based on these developments, plaintiff assumed (without calling the court to check) that he did not need to appear at the call of the scheduled trial calendar, even though the court had not issued an order continuing the case. When he failed to appear for the calendar call on February 18, the trial court dismissed the case for want of prosecution. See OCGA § 9-11-41 (b); Uniform Superior Court Rule 14.

1. The calendar notice plaintiff received explicitly stated: ‘You are required to appear at 9:30 a.m. on Tuesday the 18th day of February.” Nonetheless, plaintiff argues that he did not need to appear for the calendar call because his case was number twenty on the calendar, and only the parties and attorneys for the first ten cases are required to appear. See USCR 8.4. Plaintiff misconstrues this rule. It does make appearance an absolute requirement only for the first ten scheduled cases. If the parties and attorneys in the other cases do not want to appear, however, they must contact the calendar clerk to obtain (a) a specific time and date for trial, or (b) permission to await a call from the calendar clerk giving them reasonable notice of when to appear for trial. As plaintiff in this case did not contact the calendar clerk, he was required to appear. Compare Broadwater v. City of Danville, 184 Ga. App. 886, 888 (2) (363 SE2d 316) (1987) (dismissal was abuse of discretion where case was number 11 on calendar and attorney informed court she was available on reasonable notice).

2. Plaintiff asserts that the trial court dismissed his case with prejudice, and that it abused its discretion in doing so. It is true that the court would have abused its discretion if it had dismissed the action with prejudice for failure to prosecute. See, e.g., Bonner v. Green, 263 Ga. 773 (438 SE2d 360) (1994); USCR 14. But the record does not support plaintiff’s assertion that the trial court dismissed the action with prejudice: the order does not state that the dismissal was with prejudice, and OCGA § 9-11-41 (b) provides that all dismissals based on the plaintiff’s failure to prosecute are without prejudice (i.e., they are not adjudications on the merits).

3. Thus, the remaining question for decision is whether the trial court abused its discretion in dismissing plaintiff’s suit, without prejudice, for failure to appear at the calendar call. We conclude it did not. Although the circumstances of this case understandably gave rise to some confusion, it was plaintiff’s responsibility to appear at the call or contact the court to clarify the status of the case in the absence of a continuation order. See Peachtree Winfrey Assoc. v. Gwinnett County Bd. of Tax Assessors, 197 Ga. App. 226 (398 SE2d 253) (1990); Wallace v. Laughlin, 217 Ga. App. 444, 445 (2) (459 SE2d 556) (1995) (reversing a dismissal for failure to prosecute as an abuse of discretion) is distinguishable, as there was evidence in that case that the court had orally continued the action, even though there was no written continuation order.

Relying on Mosley v. Lankford, 244 Ga. 409 (260 SE2d 322) (1979) and Maolud v. Keller, 153 Ga. App. 268 (265 SE2d 86) (1980), plaintiff contends a dismissal should not be based solely on absence, and the order in this case indicates it was. But Mosley and Maolud involved orders dismissing cases with prejudice (entered prior to November 1982, the effective date of an amendment to OCGA § 9-11-41 providing that all dismissals for failure to prosecute would be without prejudice), and therefore do not control here. See Maolud, 153 Ga. App. at 269 (quoting Spyropoulos v. John Linard Estate, 243 Ga. 518, 519 (255 SE2d 40) (1979)): “A dismissal with prejudice for failure to prosecute should not be based solely on absence.” (Emphasis supplied.)

Decided September 15, 1997.

Daryl V. Yokely, for appellant.

Goodman, McGuffey, Aust & Lindsey, William P. Claxton, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A97A1689.
    YEARY et al. v. BELL.
    (492 SE2d 278)
   Birdsong, Presiding Judge.

Bonnie Sue Yeary and John Yeary, appellants/plaintiffs, appeal the order of the superior court granting the motion to dismiss filed by appellee/defendant Fred Bell d/b/a Bell’s Food Store.

Appellant brought suit seeking damages for injuries averred to have been sustained as a result of a fall at appellee’s food store; appellee timely filed an answer to the complaint averring, inter alia, the defense of insufficient service of process. Appellee thereafter filed a motion to dismiss based upon insufficiency of process and the expiration of the statute of limitation. The trial court subsequently granted appellee’s motion to dismiss for insufficient service of process.

Appellants’ sole enumeration is that the trial court erred in granting appellee’s motion to dismiss by finding that the process server was not a disinterested party, and therefore, service of process was invalid. Process was served by an attorney who had been specially appointed to do so by the court, pursuant to the motion to appoint special agent filed by appellants’ counsel. Held:

1. Appellants’ and appellee’s briefs contain certain statements of fact not supported by the appellate record; we cannot consider such matters on appeal. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223).

2. Appellants in essence assert that the trial court erred as the evidence of record fails to support that the process server, an attorney, was acting as counsel for appellants at the time of service, and thus was not a disinterested party. Appellee contends that the appellate record contains some evidence to support the trial court’s ruling.

As a general rule, “[pjrocess shall be served by the sheriff of the county where the action is brought or where the defendant is found, or by his deputy, or by the marshal or sheriff of the court, or by his deputy, or by any citizen of the United States specially appointed by the court for that purpose or by someone who is not a party and is not younger than 18 years of age and has been appointed as a permanent process server by the court in which the action is brought.” OCGA § 9-11-4 (c). However, in Abrams v. Abrams, 239 Ga. 866 (239 SE2d 33), the Supreme Court, in concluding that it was not the legislative intent that a party could be appointed as an agent to serve process in his or her own case, pertinently cited the following principle of law: “ ‘The law has wisely entrusted the decision of disputes between citizens to persons wholly disinterested and free from bias and the acrimony of feeling so frequently, if not uniformly, engendered by litigation; and the same is equally true of the persons selected to execute the process necessary to the adjustment of such disputes.’ ” Id. at 868. Therefore, whether any citizen of our United States can validly serve a Georgia process requires not only that the person be specially appointed for such purpose but also that he be wholly disinterested in the outcome of the litigation and free from bias and acrimony within the meaning of Abrams, supra. In applying the principle announced in Abrams, supra, our Court has recognized “that the law has entrusted the decision of disputes to persons ‘wholly disinterested’ in the litigation, and this is equally true of the person selected to execute the process necessary to the adjustment of such dispute.” Dotson v. Luxtron, Inc., 155 Ga. App. 504, 505 (271 SE2d 644). Thus, in Dotson this Court concluded that the appellant/plaintiff’s attorney “is not a person ‘wholly disinterested’ in the litigation,” and “is not a proper person to serve process in [such] action.” Id. Clearly “[b]oth [the Abrams and Dotson] holdings were based on the public policy of entrusting the execution of legal process only to persons “ ‘wholly disinterested’ in litigation.” Don Pepe, Inc. v. Jmapco, Inc., 157 Ga. App. 216 (1) (276 SE2d 886); compare Church v. Bell, 213 Ga. App. 44 (443 SE2d 677) (deputy sheriff served process on sheriff contrary to public policy). Accordingly, the issue before us is not whether the attorney specially appointed, at the request of appellants’ counsel, to serve process was retained and acting as attorney for appellants at the time of service but whether the attorney was a “wholly disinterested” party within the meaning of Abrams, Dotson, and Don Pepe, Inc., supra.

On appeal an appellate court must construe the evidence most strongly to support the verdict and judgment (Dept. of Transp. v. Hillside Motors, 192 Ga. App. 637, 639 (2) (385 SE2d 746)), and every presumption and inference must be viewed in favor thereof to the extent that such can be reasonably drawn. See generally Worn v. Sea-Cold Svcs., 135 Ga. App. 256 (3) (217 SE2d 425) and progeny. Moreover, “[a] preliminary hearing of defenses of lack of jurisdiction over the person!, improper service,] and improper venue whether made in a pleading or by motion may be heard and determined by the court before trial on the application of any party. [Cits.] At such hearing factual issues shall be determined by the trial court.” Durdin v. Taylor, 159 Ga. App. 675 (285 SE2d 51). On the issue of improper service, as timely raised in appellants’ answer, “the court was the trier of fact. In the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported by some evidence.” Id. at 676; compare Daughtry v. Chaney-Bush Irrigation, 166 Ga. App. 708 (305 SE2d 439).

In granting appellee’s motion to dismiss, the trial court made the following pertinent findings: “Because the [initial] service ... on July 16, 1996, was in fact insufficient, on October 21, 1996, one week after the running of the statute of limitations, on plaintiff’s motion, the court appointed [attorney McKinley] as special agent for service of process. The complaint was delivered by Ms. McKinley to the [appellee Bell] the same day. The court specifically incorporates into its findings of fact the facts contained in the affidavit prepared by plaintiffis’] counsel dated October 29,1996. The mere passage of time beyond the statute of limitations does not render service insufficient. The court further finds that [McKinley], an attorney at law, was hired to assist counsel for the [appellants/]plaintiff[s] on at least one occasion in this case. That assistance included faxing a consent order to defense counsel for his perusal. While this activity may have been a purely secretarial function, the fact that it was done from the offices of the plaintiffs] by an attorney could reasonably lead persons to believe that Ms. McKinley in fact represented the plaintiffs. In fact, Ms. McKinley is an attorney who has been associated with plaintiffis’] counsel on a case-by-case basis, including this very case. That fact prohibits her from serving process despite the court’s order appointing her to serve process because she is not disinterested in the outcome of the case, her affidavit notwithstanding. The court finds that delay in the appointment of a special process server was not unreasonable. However, the court finds that, because of the relationship of the appointed process server to the plaintiffs in this case the attempted service of the defendant on October 21, 1996, was invalid. Therefore, the court grants the defendant’s motion to dismiss.” (Emphasis supplied.)

The trial court as trier of fact of this motion to dismiss for invalid service of process could make those findings of fact necessary in support of his determination and in doing so could weigh the evidence relevant to such factual issues under consideration and judge witness credibility pertaining to such issues. See Durdin and Daughtry, supra. Conversely, “[determining witness credibility and weighing the evidence are not appellate court functions.” Horney v. Lawrence, 189 Ga. App. 376, 378 (3) (375 SE2d 629). Rather this Court resolves issues of legal error and evidence sufficiency. See Parr v. Pinson, 182 Ga. App. 707 (356 SE2d 740). Thus, this Court will not disturb the inherent findings of the trial court regarding the weight and credibility of the affidavit of McKinley.

Decided September 15, 1997.

Jeffrey R. Sliz, for appellants.

Swift, Currie, McGhee & Hiers, Bradley S. Wolff, for appellee.

At the onset we find that there does exist some evidence in the record forwarded on appeal to support the trial court’s finding that attorney McKinley was not a totally disinterested party.

Additionally, appellants made an admission in judicio in their appellate brief (see generally Arnold v. McKibbins, 210 Ga. App. 262, 263 (1) (435 SE2d 685); State v. Griffin, 204 Ga. App. 459 (419 SE2d 528)) of the fact that “[a] hearing on the Motion to Dismiss was held on December 2, 1996 and evidence and argument presented by plaintiffs’ and defendant’s counsel.” (Emphasis supplied.) Although, according to this admission, evidence was introduced at the hearing on the motion to dismiss, no transcript of this hearing has been forwarded to this Court for appellate consideration. “When a portion of the record is not before this court which is necessary for our determination of one or more of the appellate issues raised, an affirmance as to those issues must result.” Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 51 (3) (397 SE2d 466); Johnson v. Bruno’s, Inc., 219 Ga. App. 164, 165 (4) (464 SE2d 259).

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


text:
    A97A1874.
    STEWART v. FOODMAX OF GEORGIA, INC.
    (492 SE2d 276)
   Judge Harold R. Banke.

After she slipped and fell in a local grocery store, Dorothea Stewart sued the proprietor, Foodmax of Georgia, Inc. (“Foodmax”). In her sole enumeration of error, she appeals the trial court’s order granting summary judgment to Foodmax.

To prevail on summary judgment, defendants who will not bear the burden of proof at trial may point out by reference to the record that there is no evidence, viewed in the light most favorable to the non-movant, sufficient to create a jury issue on at least one essential element of plaintiff’s case. Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 827-828 (2) (482 SE2d 720) (1997). Viewed in that light, the record shows that Stewart entered Foodmax, walked through the store to select her purchases, and then headed for the check-out counter. Walking up the aisle toward the store’s front, she noticed that the first check-out counter was closed. As she neared the aisle’s end and turned toward the second check-out counter, she slipped on a banana peel and fell, injuring her back. Stewart testified that she noticed the four-inch piece of dark peel against the light floor after her fall. Held:

To recover, Stewart had to prove that: (1) Foodmax had actual or constructive knowledge of the banana peel, and (2) she lacked knowledge of, or Foodmax prevented her from discovering, the peel. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 809 (406 SE2d 234) (1991). Foodmax’s liability was contingent on proof of its superior knowledge of the allegedly dangerous condition. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305) (1992). Proof that Stewart knew of the banana peel, or in the exercise of ordinary care could have avoided it, would foreclose her recovery. Id.

In the absence of any evidence that Foodmax had actual knowledge, this case turns on whether it had constructive knowledge of the allegedly hazardous condition. Constructive knowledge can be established with evidence that (1) Foodmax failed to exercise reasonable care in inspecting its premises, or (2) an employee was in the immediate vicinity of the hazardous condition and could easily have noticed and corrected it. Smith, 199 Ga. App. at 809. To prove Food-max lacked reasonable care in inspecting its premises, Stewart had to establish the length of time the hazardous condition existed. Food Giant v. Cooke, 186 Ga. App. 253, 254 (1) (366 SE2d 781) (1988).

Here, Foodmax presented evidence that its employees routinely inspected its floors at regular intervals and were instructed to maintain a constant lookout for spills and other substances and rectify them. The store’s co-manager attested that five minutes before Stewart fell, he had inspected the area at issue and found it clean and dry. Compare id. at 255 (absent proof reasonable inspection procedures were followed on the day at issue, defendant cannot negate inference of constructive knowledge). Stewart testified that she had no idea how long the banana peel had been there. See Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641) (1987) (summary judgment proper where nothing rebutted defendant’s direct evidence that five minutes before the fall, aisle was inspected and nothing was found). The record shows that several cashiers were working in the vicinity where she fell, but Stewart admitted they were occupied with their customers and there is no evidence that they could easily have seen the banana peel within the unspecified time it remained invthe aisle. See Edwards v. Wal-Mart Stores, 215 Ga. App. 336, 337 (449 SE2d 613) (1994); Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (161 SE2d 366) (1968). Stewart also admitted that had she looked down, she surely would have seen it. See Baker v. Winn Dixie Stores, 219 Ga. App. 513, 514 (465 SE2d 710) (1995). Absent any evidence that Foodmax had constructive knowledge of the banana peel, summary judgment was appropriate.

Decided September 15, 1997.

Reynolds & McArthur, Oliver W. Horne III, Derek J. White, for appellant.

Martin, Snow, Grant & Napier, Jay C. Traynham, Lisa M. Edwards, for appellee.

Judgment affirmed.

Beasley and Smith, JJ, concur.

       Stewart testified: that a cashier on her way to open another register walked up to her after the fall. She also testified that other cashiers worked nearby, but were busy checking out customers. To the extent that this testimony contradicts Stewart’s affidavit, which states that the “employees were in a position to clearly see the floor and surrounding area where the banana peeling was lying,” we will disregard the affidavit. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).


text:
    A97A2089.
    GREENWALD et al. v. COLUMBUS BANK & TRUST COMPANY.
    (492 SE2d 248)
   Judge Harold R. Banke.

The trial court granted summary judgment to Columbus Bank & Trust (“Bank”) in its action against Richard D. Greenwald and Richard J. Denzik, two of five guarantors of two promissory notes owed by Dougherty, McKinnon & Greenwald, P.C. (“DM&G”). Greenwald and Denzik appeal.

DM&G, a professional accounting firm, executed a promissory note (“demand note”) for $300,000 on February 26, 1990. DM&G executed another note for $100,025 (“second note”) on November 29, 1990, for a term of 365 days. Both notes were personally guaranteed by Neil A. Dougherty, Len V. McKinnon, Dennis W. Luby, Greenwald, and Denzik.

The guaranty provided in pertinent part, “Payment Guaranteed. For value received, the undersigned hereby unconditionally guarantees payment of the Note on the reverse side. . . . Undersigned agrees . . . that the Holder of said Note from time to time may extend or renew same for any period . . . may surrender, compromise, substitute or exchange all or any part of the collateral described therein, and may grant any releases, compromises or indulgences with respect to said Note, or any extension or renewal thereof or any security therefor or to any party liable thereunder or hereunder. . . .” The guaranty stated that upon default, the Bank could “exercise in such manner and sequence as [Bank] may elect any and all other rights and remedies provided herein or otherwise available . . . under applicable law.” The guaranty also afforded the Bank an option of proceeding against any or all of the endorsers, who were “jointly and severally obligated hereunder.” Both notes were secured by, among other collateral, accounts receivable, and equipment held by the principal debtor, DM&G.

DM&G shareholder/employees Greenwald, Denzik, and non-shareholder/employee Charles Davis left DM&G on April 19, 1991 and formed a competing accounting firm, Greenwald, Denzik & Davis, P.C. A bitter legal battle concerning their departure ensued. See Dougherty, McKinnon, & Luby, P.C. v. Greenwald, Denzik, & Davis, P.C., 213 Ga. App. 891, 892 (447 SE2d 94) (1994); Dougherty, McKinnon, & Luby, P.C. v. Greenwald, 225 Ga. App. 762 (484 SE2d 722) (1997). After they severed their relationship with DM&G, Greenwald and Denzik asked the Bank to remove them as guarantors on the corporate indebtedness of DM&G. By letter of June 29, 1991, with supporting balance sheets, Greenwald and Denzik informed the Bank that DM&G’s current collateral securing the indebtedness was “more than adequate to satisfy all outstanding debt owed to the Bank.” However, the Bank never consented to their release.

After Greenwald and Denzik left DM&G, the Bank entered into a Loan Agreement on September 29, 1992 with “Dougherty, McKinnon, and Greenwald, P.C. d/b/a Dougherty, McKinnon & Luby” and with the three accountants remaining with the firm, Dougherty, McKinnon, and Luby, individually. It is undisputed that Greenwald and Denzik were not parties to that agreement. As a result of this instrument, the $300,000 demand note was continued, the $100,025 second note was renewed by another note executed that day, and the Bank extended another new $285,000 line of credit. The second note was last.renewed in the amount of $100,050 on November 15, 1995.

Internal Bank documents indicate after this new loan agreement the Bank knew that DM&L’s credit worthiness was steadily declining. Despite its awareness of DM&L’s financial difficulties, the Bank did not call the loans or pursue the pledged collateral. On May 15, 1996, the Bank brought the underlying action, claiming that the demand note and the second note remained unpaid and had gone into default. The Bank sued the professional corporation DM&G, and the five individual guarantors seeking the principal amounts of the two notes, interest, and statutory attorney fees under OCGA § 13-1-11. The trial court determined that the Bank was entitled to summary judgment as a matter of law and found that the professional corporation (now d/b/a Dougherty, McKinnon, Luby, P.C.) and the five original guarantors including Greenwald and Denzik, were jointly and severally liable to the Bank for $400,796.98 plus interest. In the instant appeal, Greenwald and Denzik challenge that judgment. After obtaining the judgment against Greenwald and Denzik, the Bank moved to foreclose against the collateral of DM&L, exercising its right to its perfected security interest in all accounts receivable, work in process, inventory, equipment, furniture and proceeds of DM&G d/b/a DM&L. Held:

We reject Greenwald and Denzik’s assertion that summary judgment was erroneously granted and that jury issues remain. It is undisputed that Greenwald and Denzik guaranteed the two notes at issue and that the notes are in default. Neither the execution of the promissory notes nor the guaranty for each note is controverted. After the Bank established its prima facie right to recover on the two notes, the burden then shifted to Greenwald and Denzik to establish any claimed defense in rebuttal. First Nat. Bank of Dalton v. Damil, Inc., 171 Ga. App. 237, 238 (319 SE2d 54) (1984). This they failed to do.

Greenwald and Denzik contend that the trial court failed to consider their defenses. First, they assert that the Bank breached its duty of good faith and fair dealing under OCGA § 11-1-203. They claim that the old accounting firm was “propped up” and kept alive for nearly six years through the Bank’s leniency and the additional cash loans made by the Bank. Essentially, they argue that the Bank favored the other guarantors and DM&L to their detriment by failing to foreclose sooner on the secured collateral.

Guarantors can consent in advance to changes that are subsequently made. See Dunlap v. C & S DeKalb Bank, 134 Ga. App. 893, 896 (4) (216 SE2d 651) (1975). Here, Greenwald and Denzik assented in advance to the Bank’s extension and renewal of the two notes. Moreover, a contracting party cannot breach an implied covenant of good faith where it has done what the provisions of the contract expressly permit it to do. Whisenant v. Fulton Fed. Sav. &c., 200 Ga. App. 31, 33 (1) (406 SE2d 793) (1991). Under the terms of the guaranty, the Bank was expressly permitted to compromise all or any part of the collateral. Griswold v. Whetsell, 157 Ga. App. 800, 803 (3) (278 SE2d 753) (1981) (surety cannot complain of impairment of collateral where she assented in advance to same); see Sadler v. Trust Co. Bank, 178 Ga. App. 871, 873 (2) (344 SE2d 694) (1986). According to the contract terms, the Bank had no obligation to liquidate the collateral before seeking recovery from the guarantors but was expressly authorized to pursue an election of remedies under the contract or under applicable law. See Cosby v. A.M. Smyre Mfg. Co., 158 Ga. App. 587, 591 (5) (281 SE2d 332) (1981).

Decided August 26, 1997

Reconsideration denied September 16, 1997.

Jones, Cork & Miller, Hubert C. Lovein, Jr., for appellants.

Page, Scrantom, Sprouse, Tucker & Ford, W. G. Scrantom, Jr., Michael D. Smith, for appellee.

By law, when a debtor is in default under a surety agreement, a secured party, “may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure.” OCGA § 11-9-501 (1). The Bank, as a secured creditor, had the option of either proceeding to suit or foreclosing on the collateral. Sadler, 178 Ga. App. at 873 (2). Where, as here, the liability of the guarantors depends on the failure of the original debtor to pay the debt when due, it is not necessary that such debtor be sued to judgment before the institution of a suit against the guarantors. Ford Motor Credit Co. v. Sullivan, 170 Ga. App. 718, 721 (3) (318 SE2d 188) (1984).

Notwithstanding the claim to the contrary, the obligation to exercise good faith under the Georgia Uniform Commercial Code does not support an independent cause of action. Lake Tightsqueeze, Inc. v. Chrysler First Fin. Svcs. Corp., 210 Ga. App. 178, 180-181 (4) (435 SE2d 486) (1993). Nor does the equitable principle of exoneration apply to the underlying action, inasmuch as it relates to Greenwald and Denzik’s right of recovery against DM&L, not the Bank. See OCGA § 10-7-41 (surety’s rights to proceed against its principal).

Finally, Greenwald and Denzik’s argument that the Bank negligently handled the loans at issue lacks merit. A mere failure by the Bank to sue as soon as the law allows or to neglect to prosecute with vigor its legal remedies, unless for consideration, would not operate to release the guarantors. OCGA § 10-7-22.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A97A1126.
    BOWERS v. WINTER.
    (492 SE2d 296)
   McMurray, Presiding Judge.

John Bowers filed a personal injury action against Calvin Winter, alleging Winter negligently drove a car into a vehicle that was occupied by Bowers. Bowers served Winter with process according to Georgia’s Nonresident Motorist Act, OCGA § 40-12-2, by serving the Georgia Secretary of State and posting the summons and complaint, via certified mail return receipt requested, to Winter’s home in Tallahassee, Florida. After three unsuccessful delivery attempts at Winter’s home, the United States Postal Service returned the mail to Bowers’ attorney with the following notation: “RETURN TO SENDER!!! UNCLAIMED!!!”

Winter answered the complaint and filed a motion to dismiss due to lack of notice and insufficient service of process. Bowers dismissed his complaint before this motion was heard and renewed his action within six months pursuant to OCGA § 9-2-61 (a). Winter responded by filing another motion to dismiss based on insufficient notice and service of process. The trial court granted this motion, finding that Bowers’ renewal action is void because Winter was not properly served with process in Bowers’ original action. This appeal followed. Held:

In Liberty Mut. Ins. Co. v. Coburn, 129 Ga. App. 520 (200 SE2d 146), this Court held that service upon a nonresident defendant was sufficient under Georgia’s Nonresident Motorist Act where the nonresident defendant’s mother received her son’s mail but then refused to accept certified mail notifying the nonresident defendant of the subject lawsuit. Id. at 522 (2). The circumstances in the case sub judice are no different. Although Winter deposed that he never received Bowers’ summons and complaint, he deposed that an insurance agent informed him about Bowers’ lawsuit almost three months before a motion to dismiss (based on lack of notice and service of process) was filed on his behalf. Winter also admitted during his deposition that his nomadic lifestyle places him away from his home about 75 percent of the time; that he allows his neighbors or his adult children to collect his mail while he is away and that his children are inconsistent, lackadaisical and sometimes derelict in performing these duties. These circumstances, as well as Winter’s deposition testimony indicating that he makes little or no effort to investigate the receipt, content, or collection of his mail, places this case within the rule set out in Coburn. “A defendant may not refuse to accept service of the notice sent by the Secretary of State and thus exculpate himself; proof that there was proper service on the Secretary of State, proper notice sent by him by registered mail to the defendant at his address, and refusal by the latter, amounts to proper service so as to give the court jurisdiction. ‘The process must be served, as provided by the act, on the Secretary of State, and where so served and notice is duly given to the defendant, either by the Secretary of State or the plaintiff as required by the act, irrespective of whether the defendant actually received such notice, and where the statute is otherwise complied with, due and legal service has been perfected.’ Mull v. Taylor, 68 Ga. App. 663 (1) (23 SE2d 595). And where the notice is received by the defendant’s employee or agent, and the latter fails to inform the defendant, the notice is nevertheless sufficient. As stated in Dunn v. Royal Bros. Co., 111 Ga. App. 322, 325 (141 SE2d 546): ‘The plaintiff here, having strictly complied with the statute in all respects, should not be made to suffer the consequences of such neglect on the part of the defendant’s employee.’ ” Liberty Mut. Ins. Co. v. Coburn, 129 Ga. App. 520, 523, supra.

Decided September 16, 1997.

Richard W. Summers, for appellant.

Sims, Fleming & Spurlin, John C. Spurlin, for appellee.

In the case sub judice, it is undisputed that Bowers strictly complied with OCGA § 40-12-2’s service requirements. He should therefore not be made to suffer the consequences of defendant’s nomadic lifestyle and defendant’s admitted neglect in collecting his mail. The trial court erred in granting Winter’s motion to dismiss based on lack of notice and service of process.

Judgment reversed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Judge.

text:
    A97A1193.
    MACON-BIBB COUNTY HOSPITAL AUTHORITY v. REECE et al.
    (492 SE2d 292)
   Blackburn, Judge.

The Macon-Bibb County Hospital Authority (the hospital) sued Jones County Sheriff Robert Reece, Jones County, and the Jones County Board of Commissioners (collectively the county) seeking reimbursement for medical treatment. After the hospital provided care to three detainees of the sheriff’s department, the county refused to pay for such treatment, and this suit ensued. Both parties moved for summary judgment. The trial court granted the county’s motion and denied the hospital’s motion, and the hospital appeals these rulings. For the reasons set forth below, we reverse the grant of summary judgment to the county and affirm the denial of summary judgment to the hospital.

At issue is OCGA § 42-5-2 (a), which provides that “it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him . . . any needed medical and hospital attention.” Accordingly, in determining whether the county is liable for the medical care given to the detainees, two major issues must be determined: whether these detainees were in the physical custody of the county sheriff’s department, and whether the detainees qualified as “inmates” as that term is used in OCGA § 42-5-2 (a).

“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.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). A de novo review of the evidence is conducted when reviewing summary judgment determinations. See Gaskins v. Hand, 219 Ga. App. 823, 824 (466 SE2d 688) (1996).

1. The trial court found that the medical expenses at issue were not incurred while the detainees were in the custody of the county. The hospital enumerates this finding as error, and argues that the sheriff’s department did have physical custody of the detainees. Under OCGA § 42-5-2 (a), for the county to be liable for the detainees’ medical treatment, the county sheriff’s department must have been in “physical custody of [the] inmate[s].”

The facts show that in the early morning hours of May 25, 1995, sheriff’s deputy Guy Mosteller received a radio dispatch to be on the lookout for three males who had just left the scene of a possible burglary. Another officer spotted a car matching the description given, and notified Mosteller that the car was approaching Mosteller’s area. As the car approached, Mosteller’s radar indicated that it was traveling 75 mph in a 55-mph zone. He activated his lights and siren and pursued the vehicle, but the driver refused to stop for two miles. Eventually, the vehicle stopped.

Mosteller ordered the driver, Robbie Freeman, out of the car, and Freeman told Mosteller he had been shot. The two passengers, Antonio Hughes and Handy Taylor, also informed Mosteller upon exiting the car that they had been shot. All three men were patted down for weapons, and a gun was recovered from Taylor. Another gun was located when the car was searched. Mosteller then handcuffed the three men and sat them down in the median of the road, arranged for an ambulance, placed the three handcuffed men in the ambulance when it arrived, arranged to impound the car, followed the ambulance to the hospital so that he could stay with the subjects, and did not remove the handcuffs until arrival at the hospital. Mos-teller stayed at the hospital approximately seven hours while the men were treated before concluding his investigation into the matter.

Taylor was released from the hospital on May 27, 1995, and was arrested on May 30, 1995. Freeman and Hughes both remained hospitalized until June 7, 1995, and were arrested on June 13, 1995.

Based upon the record before us, there are facts from which a jury could find that the three detainees were in custody when they received medical treatment from the hospital. When Mosteller handcuffed the men and sat them down in the median of ..the road, he placed them under arrest. “Arrest is defined as the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act indicating an intention to take such person into custody, and which subjects such person to the actual control and will of the person making the arrest.” (Punctuation omitted.) Cherokee County v. North Cobb Surgical Assoc., 221 Ga. App. 496, 498 (2) (b) (471 SE2d 561) (1996). Although the county maintains that the men were not under arrest because Mosteller never informed them that they were under arrest, arrest can occur even when a suspect is not told that he is under arrest. See Tolbert v. Hicks, 158 Ga. App. 642, 643 (281 SE2d 368) (1981).

Mosteller then escorted Freeman, Hughes, and Taylor to the hospital, and did not remove their handcuffs until after arriving at the hospital. See Cherokee County, supra at 497-498 (a) (when officers subdue a subject, render first aid, and transport him to the hospital, physical custody is shown). Once there, Deputy Mosteller remained at the hospital seven hours after the men were admitted. He filled out admission paperwork on them, and indicated on one form that the men were “prisoners” of the sheriff’s department, although he denied to a nurse that they were prisoners and wrote “send bill to patient[s]” on the form. While at the hospital, he gave his permission for the mother of two of the men to speak to them. He also had the men’s clothing inventoried and left property receipts for it, and obtained gunshot residue tests from two of the men.

In light of these facts, a jury could conclude that the men were in custody when they arrived at the hospital, and that they remained in custody for some period of time after that. The county would be liable for all medical expenses incurred until custody ended, and it is clear that a jury issue remains as to that fact. Cf. Whatley v. State, 196 Ga. App. 73, 78 (395 SE2d 582) (1990) (whether defendant was in custody for Miranda purposes a mixed question of law and fact). Accordingly, summary judgment was improperly granted to the county on this issue.

However, a jury could also find from this evidence that the men were not in custody when medical care was rendered, and in that case, the county would have no liability for the medical expenses incurred. Although the facts clearly indicate that the men were under arrest when they entered the hospital in handcuffs with Deputy Mosteller, a jury could find that custody ended at some point after Mosteller removed the handcuffs and turned the men over to medical personnel. While Mosteller’s seven-hour presence at the hospital and his actions with respect to the men during that time may be consistent with custody, they do not demand a finding of custody for the duration of the men’s hospital stay. The fact that all three men were allowed to leave the hospital voluntarily and were re-arrested several days after their respective releases from the hospital suggests that they were not in custody during their entire hospital stay. Therefore, the trial court properly denied summary judgment for the hospital on this issue.

2. We must also evaluate whether the detainees qualified as “inmates” under OCGA § 42-5-2 (a). Pursuant to that Code section, “the governmental unit, subdivision, or agency having the physical custody of an inmate [must furnish] him [with] any needed medical and hospital attention.” The trial court found that the detainees were not inmates of the sheriff’s department when their medical expenses arose, and the hospital enumerates this finding as error.

In Cherokee County, supra, we examined the definition of “inmate” as it relates to a governmental unit’s liability to pay for medical expenses. We noted that “inmate” is not defined at OCGA § 42-5-2, but is defined elsewhere in the Code as “ ‘a person who is detained in a detention facility by reason of being charged with or convicted of a felony, a misdemeanor, or a municipal offense.’ OCGA §§ 42-4-30 (2); 42-4-70 (2).” Cherokee County, supra at 498 (c). However, we also held that the absence of such detention in a detention facility, as occurred here, does not preclude a finding that an individual in the sheriff’s custody is an inmate for purposes of the provision of medical treatment. Id. at 499-500.

In Cherokee County the suspect, McFarland, was shot by a deputy after he charged the deputy with a knife while in the process of being arrested. We held that “but for the seriousness of his injuries, [McFarland] would have been placed in the county’s detention facility. . . . [H]ad he not required immediate medical attention, [he] should have been taken to the jail for booking and [then] been taken before a judicial officer. Thus, as our law contemplates that McFarland would have been retained in the custody of the sheriff for some time after he was taken into custody, we find that McFarland falls within the category of an inmate for these purposes even though he was not actually detained in the detention facility.” (Emphasis supplied.) Id. at 499-500.

The same reasoning applies in this case. Although Deputy Mos-teller was not responsible for the men’s injuries, the fact that he stopped them as suspects in a burglary upon notice from another police officer, searched them and then placed them in custody is some evidence that, but for their injuries, they would have been detained in the county detention facility at that time. As genuine issues of material fact remain regarding the detainees’ status as inmates, summary judgment for the county on this issue was improper.

According to the sheriff’s affidavit, a long-term undercover operation was being conducted. The men’s involvement with the individual who was the subject of the undercover operation was not clear at the time they were shot. In order to avoid tipping off the individual to the existence of the undercover operation, the sheriff preferred to wait to charge Freeman, Hughes, and Taylor with any offense until later on in the investigation. While this testimony may seem inconsistent with the facts surrounding the defendant’s arrest, it creates a genuine issue of material fact as to whether the men would have been placed in the county detention facility but for their injuries. The trial court therefore properly denied summary judgment to the hospital regarding the men’s status as inmates. Compare Cherokee County, supra at 497, 499 (c) (suspect an “inmate” as a matter of law for purposes of OCGA § 42-5-2 (a) where it was clear that had he not been shot while being arrested, the arrest would have been completed and he would have been detained in the county detention facility).

Decided September 16, 1997.

Sell & Melton, John A. Draughon, for appellant.

Groover & Childs, Duke R. Groover, Frank H. Childs, Jr., for appellees.

3. The trial court based its grant of summary judgment to the county in part on the premise that because the detainees’ medical conditions did not arise while they were in the physical custody of the county, the county could not be responsible for their medical treatment. We cannot agree. OCGA § 42-5-2 provides that the inmate must be furnished with “any needed medical and hospital attention.” (Emphasis supplied.) The county can have no serious argument that these three individuals, all of whom had gunshot wounds, were not in need of medical attention.

If, as the county suggests, it had no responsibility for medical conditions which did not arise while an inmate was in custody, the sheriff’s department would never have to furnish medical treatment to anyone who entered its custody with a pre-existing condition, disease, or impairment. This is neither the plain meaning nor the intent of OCGA § 42-5-2, and would likely result in a constitutional violation of the right to be free from abuse during arrest, while under arrest, or in prison. See Ga. Const. 1983, Art. I, Sec. I, Par. XVII; see also Judge Beasley’s special concurrence in Cherokee County, supra. The trial court therefore erred in granting summary judgment to the county on this basis.

Judgment affirmed in part and reversed in part.

Johnson, J, and Senior Appellate Judge Harold R. Ranke concur.


author: Ruffin, Judge.

text:
    A97A1471.
    PUCCINI v. THOMAS & HOWARD COMPANY.
    (492 SE2d 297)
   Ruffin, Judge.

In 1992, Sunstar, Inc. (“Sunstar”) applied for credit with Thomas & Howard Company (“T & H”) to purchase goods on account from T & H, and Robert Puccini personally guaranteed payment on the account (“credit and guaranty agreement”). When Sunstar defaulted on payments, T & H sued Puccini as the personal guarantor under the credit and guaranty agreement. Puccini now appeals from the trial court’s grant of summary judgment to T & H. For reasons which follow, we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In the instant case, Puccini has stipulated that he executed the credit and guaranty agreement which contains a handwritten notation that Sunstar’s account would be handled on a C.O.D. basis. Puccini and T & H further stipulated that in accordance with the credit and guaranty agreement, “the account was handled on a C.O.D. basis until [T & H] elected to modify the agreement and not ship ‘C.O.D.-CHECK WITH/ DELIVER’ starting in August of 1995.” Puccini contends that he “intended to only guaranty a COD account[,]” and that the trial court erred in failing to consider the handwritten payment terms. We disagree.

“No construction of a contract is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation, and in such instances the language used must be afforded its literal meaning and plain ordinary words must be given their usual significance.” (Citations and punctuation omitted; emphasis in original.) Remler v. Coastal Bank, 179 Ga. App. 25, 27 (345 SE2d 79) (1986). In this case, the plain language of the credit and guaranty agreement authorized T & H to change the payment terms without affecting Puccini’s liability under the guaranty provisions of the agreement. Specifically, the guaranty language provided for a continuing guaranty and that Puccini authorized T & H to “change the manner or terms of payment” at any time without notice to Puccini, and that such change in payment terms “shall not in any way release [Puccini] from or reduce [his] liability on this guaranty.” Accordingly, although the parties originally agreed to C.O.D. payment terms, they also agreed that T & H could change those terms without affecting Puccini’s liability as guarantor. Thus, Puccini is liable as a matter of law for the amounts Sunstar owes to T & H, and the trial court did not err in granting T & H summary judgment. See id.; Johnson Drilling Co. v. Bank of the South, 186 Ga. App. 162, 163 (367 SE2d 559) (1988).

Decided September 16, 1997.

Merrill, Stone & Parks, Charles B. Merrill, Jr., for appellant.

Tammy L. Bowen, for appellee.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A1646.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. SWETMON.
    (492 SE2d 678)
   Ruffin, Judge.

Dwight H. Swetmon sued a John Doe driver for injuries and damages sustained in an automobile collision and served a copy of the complaint on State Farm Mutual Automobile Insurance Company (“State Farm”), his uninsured motorist carrier. State Farm answered and subsequently moved for summary judgment on the ground that Swetmon failed to meet the requirements of OCGA § 33-7-11 (b) (2). After the trial court denied its motion, State Farm applied for an interlocutory appeal to this Court. We granted State Farm’s application, and for reasons which follow, we affirm.

On summary judgment, the moving party must demonstrate that no genuine issue of material fact exists and that the undisputed facts, viewed in the light most favorable to the nonmoving party, require judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In its sole enumeration of error, State Farm argues that it met this burden by showing that Swetmon could not satisfy OCGA § 33-7-11 (b) (2). Pursuant to that section, “in order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” OCGA § 33-7-11 (b) (2).

Swetmon does not allege any physical contact between his vehicle and John Doe. To meet the evidentiary requirements of OCGA § 33-7-11 (b) (2), therefore, Swetmon must present evidence from an eyewitness corroborating his description of how the collision occurred. Id. That eyewitness need not corroborate every detail of his description; “ ‘[a]ll that is required is an eyewitness’ corroboration of the insured’s contention “that the accident was caused by an unknown vehicle.” [Cit.]’ ” Meredith v. Nationwide Mut. Fire Ins. Co., 215 Ga. App. 286, 287 (450 SE2d 322) (1994).

According to Swetmon, a truck driven by an unidentified individual crossed into his lane of travel, forcing him “to drive his vehicle up and onto the curb and down the sidewalk and to strike a fixed utility pole.” Swetmon further claims that the truck failed to stop after forcing him from the road. The record contains a Motor Vehicle Accident Report listing Price Steele as the only witness to the incident. With its summary judgment motion, State Farm submitted an affidavit executed by Steele, who averred that he did not see Swetmon’s vehicle until it hit the utility pole and did not witness the truck force Swetmon off of the road. Based upon this affidavit, State Farm argues that Swetmon has no eyewitness corroboration for his version of the incident.

In response to summary judgment, Swetmon presented the affidavit of William Pepples, the City of Atlanta Police Officer who investigated the collision. Pepples’ affidavit provides as follows: “As part of the investigation of the accident I spoke with a witness who identified himself as Steele Price [sic]. Mr. Price [sic] stated to me that he observed [Swetmon’s vehicle] traveling west bound on Chattahoochee Avenue in the curb lane. He further stated he saw a Mayflower moving truck next to [Swetmon’s vehicle] in the median lane and that the moving truck went into [Swetmon’s] lane and [Swetmon’s vehicle] ran up on the curb and down the [sidewalk] and struck a utility pole.” Pepples recorded Steele’s statements to him in the “remarks” section of the Motor Vehicle Accident Report, which he attached to his affidavit.

The trial court denied State Farm’s motion, implicitly finding that the competing affidavits submitted by Steele and Pepples create a genuine issue of material fact. We agree.

On appeal, State Farm argues that Officer Pepples’ affidavit and the police report contain unsupported hearsay that cannot rebut Price Steele’s affidavit. “It is well-established that all hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment. [Cit.]” Butler v. Bolton Road Partners, 222 Ga. App. 791, 794 (2) (476 SE2d 265) (1996). Officer Pepples’ affidavit, however, represents a prior inconsistent statement from Price Steele. As we have previously held, the non-moving party can “ ‘withstand a motion for summary judgment by submitting sworn testimony averring personal knowledge of the existence of a prior inconsistent statement made by the witness upon whose sworn testimony the movant relies.’ [Cit.]” Lowe v. Hadley, 193 Ga. App. 525 (388 SE2d 394) (1989).

Decided September 16, 1997.

Sharon W. Ware & Associates, Kay D. Thompson, for appellant.

McKinney & Salo, Sonja L. Salo, for appellee.

In response to Steele’s denials on summary judgment, Swetmon submitted Pepples’ testimony regarding his personal knowledge of Steele’s prior inconsistent statement. Rather than inadmissible hearsay, Pepples’ affidavit constitutes substantive evidence creating a jury question as to whether Steele witnessed the collision and how it occurred. Id.

This case is distinguishable from Yates v. Doe, 190 Ga. App. 367 (378 SE2d 739) (1989), upon which State Farm relies. In Yates, the uninsured motorist claimant submitted an affidavit from the investigating officer, who averred that an unidentified witness at the collision scene appeared to agree to the facts as stated by the claimant. The officer did not speak with the witness, and the claimant could not testify as to what the stranger had seen. We found no probative evidence that the unidentified stranger was an eyewitness to the collision, requiring summary judgment for the uninsured motorist carrier. Yates, supra at 368-369.

In contrast, Swetmon presented evidence that Steele fully witnessed the collision and described the incident to Pepples in a manner corroborating Swetmon’s version of how it occurred, as required by OCGA § 33-7-11 (b) (2). Accordingly, the trial court properly denied State Farm’s motion for summary judgment.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.

       At various points in the record, Price Steele is incorrectly referred to as “Steele Price.’


text:
    A97A1106.
    SOUTHERN TRUST INSURANCE COMPANY v. CRAVEY et al.
    (492 SE2d 251)
   Andrews, Chief Judge.

Larry Eugene Cravey and Cravey & Sons, Inc., the insureds under an automobile liability policy issued by Southern Trust Insurance Company in 1984, sued Southern Trust claiming they are entitled to purchase additional optional personal injury protection coverage which was marked as rejected on two applications for insurance signed by an agent for the insureds. Southern Trust appeals from the trial court’s grant of summary judgment in favor of the insureds.

On summary judgment sought by Southern Trust and the insureds, the sole issue was whether or not the statements on the Southern Trust application forms indicating that the optional coverages had been explained to the applicants were in boldface type as required by former OCGA § 33-34-5 (b), which was in effect at the time the applications were signed. The trial court granted summary judgment in favor of the insureds concluding that the explanatory statements in the applications did not meet the boldface type requirement of former OCGA § 33-34-5 (b).

Decided September 2, 1997

Reconsideration denied September 17, 1997

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

Former OCGA § 33-34-5 (b) provided: “Each initial application for a new policy of motor vehicle liability insurance sold in this state after November 1, 1982, shall contain a statement in boldface type signed by the applicant indicating that the optional coverages listed in subsection (a) of this Code section have been explained to the applicant.” The test established in Southern Guaranty Ins. Co. v. Goddard, 259 Ga. 257 (379 SE2d 778) (1989), to gauge compliance with the boldface type requirement is that the typeface of the explanatory statement must be in “print which exhibits a face sufficiently heavy in appearance to cause it to be more conspicuous than the print which surrounds it.” Id. at 258.

Our examination of the applications at issue, which appear to be identical, reveals that the explanatory statements contained in both applications are in a boldface type sufficient to comply with the statute and the Goddard test requiring that the print exhibit a face heavy enough in appearance to cause it to be more conspicuous than the print which surrounds it. We find the type of the statements in the Southern Trust applications to be as conspicuous as the type approved by the Supreme Court in the insurance applications considered in Southern Fire & Cas. Co. v. Freeman, 268 Ga. 60 (485 SE2d 738) (1997) (see the application considered in Freeman at 222 Ga. App. 308, 312 (474 SE2d 195) (1996), rev’d, 268 Ga. 60).

Since the explanatory statements in the applications satisfied the boldface type requirements of former OCGA § 33-34-5 (b), the insureds were not entitled to additional coverage, and the trial court erred by granting summary judgment in favor of the insureds.

Judgment reversed.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.

Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, Jiles M. Barfield, for appellees.


text:
    A97A0941.
    DAVES v. DAVIDSON.
    (492 SE2d 304)
   McMurray, Presiding Judge.

Joseph Gibson Daves filed a personal injury action against Terri Ann Davidson, alleging Davidson negligently drove her car into the rear of Daves’ pickup truck. The evidence adduced at a jury trial reveals that Davidson’s car collided into the rear of Daves’ truck on a rainy afternoon in May 1992. Davidson testified that her rain-soaked shoe caused her foot to slip off the brake pedal, propelling her car into Daves’ truck at about five mph. Davidson specifically described the collision during the following cross-examination: “We were all stopped at the light at Hargrove and Cobb Parkway in a long line of cars, and as you know or as sometimes it does occur, all of the cars were one right behind the other with very little space in between each other and I couldn’t see the light. So, I was watching the car in front of me which was Mr. Daves’ truck. The light must have turned green because we started to proceed again forward and then at that time, I saw that he had begun to stop and had stopped and I was doing the same thing and at that time when I went to apply my brake and I was in first gear because we were all had just started up and the light had turned — the light must have turned from green to red at that time when he began to stop. I went to apply my brake and my foot slipped off the brake. It did not hit the accelerator.”

The jury returned a verdict for Davidson, rejecting Daves’ negligence claim or finding that Daves’ neck injuries arose from a subsequent unrelated automobile collision. This appeal followed. Held:

1. The trial court did not err in denying Daves’ motion for directed verdict. Whether or not the following or approaching from the rear vehicle in a rear-end collision case has exercised ordinary care to avoid the collision is usually a jury question. Cagle v. Ameagle Contractors, 209 Ga. App. 712 (434 SE2d 546). “ ‘Just how close to a vehicle in the lead a following vehicle, ought, in the exercise of ordinary care, be driven, just what precautions a driver of such a vehicle must in the exercise of ordinary care take to avoid colliding with a leading vehicle which slows, stops, or swerves in front of him, . . . may not be laid down in any hard and fast or general rule. In each case except when reasonable minds may not differ, what due care required, and whether it was exercised, is for the jury.’ ” Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 450 (224 SE2d 25). Davidson’s testimony that her car struck Daves’ truck because her rain-soaked foot slipped off the brake pedal raises a jury question as to whether Davidson exercised ordinary care in operating her car at the time of the collision. See Stubbs v. Tri-State Culvert Corp., 177 Ga. App. 113 (1) (338 SE2d 449); Collins v. McGlamory, 152 Ga. App. 114 (262 SE2d 262).

The rear-end collision cases Daves cites in support of his motion for directed verdict, Nail v. Green, 147 Ga. App. 660 (249 SE2d 666); Walls v. Parker, 146 Ga. App. 882 (1) (247 SE2d 556); and Johnson v. Curenton, 127 Ga. App. 687, 688-689 (195 SE2d 279), are not controlling in the case sub judice because the defendant drivers in these cases either admitted they were driving carelessly (not keeping a proper lookout) or gave no good reason for the rear-end collision. Davidson’s excuse in the case sub judice was that her foot slipped off the brake pedal because of rainy weather conditions. This explanation, along with proof that Davidson was fully attentive to her driving responsibilities at the time of the collision and that she did everything possible to avoid the collision, authorized the jury’s finding that Davidson was not negligently operating her car at the time of the collision.

2. Daves contends the trial court erred in failing to give his request to charge based on OCGA § 24-4-22, which requested as follows: “Where a party has evidence by which the party may repel a claim or charge against him/her, and omits to produce it, or having more certain and satisfactory evidence, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded; but this presumption may be rebutted.” Pointing out that causation was a key issue at trial, Daves argues that this charge should have been given because Davidson failed to call a physician who was as qualified as his expert (a neurosurgeon) to testify regarding which automobile collision actually caused Daves’ neck injuries — the May 1992 collision between Daves and Davidson, or a subsequent collision between Daves and another party. This assertion is without merit. Not only is the above request to charge not adjusted to Daves’ assertion regarding an omitted expert witness, Shilliday v. Dunaway, 220 Ga. App. 406, 410 (7) (469 SE2d 485), his theory does not fit the requirement that such a missing witness (an expert more qualified than the general physician Davidson called) have knowledge pertaining to the issue in question — i.e., a physician acquainted with Daves’ alleged injuries. See Meacham v. Barber, 183 Ga. App. 533, 538 (5) (359 SE2d 424).

3. Daves contends the trial court erred in refusing to give his request to charge that “[a]n admission is a statement by a party which tends to aid the cause of the opposing party.” Daves argues that this charge should have been given because Davidson admitted that she collided into his truck while it was stopped and that the sole cause of the collision was her foot slipping off her car’s brake pedal. These statements were not admissions of legal liability. They were statements of undisputed fact which the jury properly considered. Under such circumstances, the trial court did not abuse its judgment in refusing to give Daves’ request to charge on admissions. See Phoenix Ins. Co. v. Gray, 113 Ga. 424, 426 (2) (38 SE 992).

Decided September 17, 1997.

Raymond C. Mayer, for appellant.

Downey & Cleveland, Russell B. Davis, for appellee.

4. Since Daves testified that he was not injured in the subsequent automobile collision, the trial court did not err in allowing Davidson to cross-examine him about a personal injury action filed on Daves’ behalf to recover for injuries Daves allegedly sustained in the subsequent collision. Ga. American Ins. Co. v. Varnum, 179 Ga. App. 195, 196 (2) (345 SE2d 863).

5. The trial court did not err in refusing to allow admission of á jar of fluid which Daves claims is tissue that his surgeon removed from Daves’ backbone. Although Daves testified that his surgeon gave him this jar as a post-surgical souvenir, Daves did not offer proof authenticating that the contents of this jar actually came from his backbone. Compare Gadson v. State, 263 Ga. 626, 627 (2) (437 SE2d 313).

6. In a single enumeration of error, defendant challenges the propriety of three of the trial court’s jury instructions. “We elect in our discretion to review none of the multiple assertions of error.” White v. State, 221 Ga. App. 860 (1), 861 (473 SE2d 539).

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A97A1195, A97A1196.
    SAINT FRANCIS HOSPITAL, INC. et al. v. PATTON; and vice versa.
    (492 SE2d 303)
   Birdsong, Presiding Judge.

This litigation arises from the termination of the hospital privileges of Robert M. Patton, M.D., at Saint Francis Hospital, Inc. In his lawsuit, Dr. Patton sought injunctive relief and monetary damages from the Hospital, and alleged 22 violations by the Hospital of its medical staff by-laws. Dr. Patton moved for summary judgment on two of his claims: (1) the Hospital violated its by-laws by conducting a hearing before an ad hoc committee rather than before the Medical Staff Executive Committee, and (2) the Hospital violated its by-laws by adopting a resolution revoking his medical staff privileges.

Decided September 17, 1997.

Allen & Peters, Paul E. Weathington, Gary R. McCain, Jonathan M. Petty, Love & Willingham, Robert P. Monyak, for appellants.

Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, John K. Larkins, Jr., James D. Durham, for appellee.

In Case No. A97A1195, Saint Francis Hospital and Dr. Fred M. Burdette appeal the grant of summary judgment to Dr. Robert M. Patton on Dr. Patton’s claim that the Hospital violated its by-laws when the Medical Staff Executive Committee adopted the resolution revoking his privileges. In Case No. A97A1196, Dr. Patton appeals the denial of his motion for summary judgment on his claim that the Hospital violated its by-laws by revoking his medical privileges. Held:

1. Our first consideration is whether we have jurisdiction to consider these appeals. Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (306 SE2d 22). We conclude that we do not. In Robinson v. Franwylie, Inc., 145 Ga. App. 507, 509 (1) (244 SE2d 73), we recognized that OCGA § 9-11-56 (d) “ ‘does not authorize the initiation of motions the sole object of which is to adjudicate issues of fact which are not dispositive of any claim or part thereof.’ ” In this case Dr. Patton’s motion sought only a determination that the defendants had breached the Hospital’s by-laws and not a ruling that he was entitled to recover on his claim. Dr. Patton’s brief acknowledges this fact. Accordingly, the grant of this motion was not a grant of summary judgment subject to direct appeal under OCGA § 9-11-56 (h) (Planet Ins. Co. v. Ferrell, 228 Ga. App. 264 (491 SE2d 471)). And, this appeal must be dismissed. Richardson v. Gen. Motors Corp., 221 Ga. App. 583 (472 SE2d 143); Church v. Bell, 213 Ga. App. 44 (443 SE2d 677).

2. Because we have no jurisdiction to consider the main appeal, Dr. Patton’s cross-appeal must be dismissed as well. Moreover, we note that this motion also was not a proper motion for summary judgment.

Appeals dismissed.

Ruffin and Eldridge, JJ, concur.