text:
    A99A2292, A99A2293.
    COX v. EDELSON et al.; and vice versa.
    (530 SE2d 250)
   Smith, Judge.

Gerald Cox filed suit against Hank and Sue Ann Edelson, alleging that the Edelsons knowingly made false statements that induced him to invest in their office furniture business to his detriment. The complaint, as amended, raised seven counts, including fraud, misrepresentation in several respects, breach of fiduciary duty, breach of contract, and violation of securities laws. The Edelsons answered, denying liability. Cox sought summary judgment on Count 7, violation of Georgia’s securities law. The Edelsons filed a cross-motion for partial summary judgment as to Count 7. The Edelsons later also moved for partial summary judgment on Cox’s remaining claims.

In separate orders, the trial court denied Cox’s motion for summary judgment and granted the Edelsons’ motion for partial summary judgment as to Counts 6 (breach of contract) and 7 (violation of securities laws). In a third order, the court granted partial summary judgment to the Edelsons as to all Cox’s remaining claims except Counts 1 and 3, dealing with claims of fraud and misrepresentation.

In the main appeal, Cox appeals the grant of summary judgment to the Edelsons on Count 7 of his complaint. In the cross-appeal, the Edelsons challenge the trial court’s denial of summary judgment in their favor as to Counts 1 and 3 of Cox’s complaint. We find that summary judgment in favor of the Edelsons on Count 7 of Cox’s complaint was not warranted. We therefore reverse the judgment below in the main appeal. We find that the trial court properly denied summary judgment to the Edelsons as to Counts 1 and 3 of Cox’s appeal, and we therefore affirm the judgment in the cross-appeal.

1. In the main appeal, Cox contends the trial court erred in granting summary judgment to the Edelsons on his claim that they violated the Georgia Securities Act of 1973, OCGA §§ 10-5-1 through 10-5-24. Cox argues that his investment in the Edelsons’ corporation was a purchase of stock and that it triggered the protections and relief authorized under the Act. The trial court agreed with the Edelsons that Cox’s investment in their business in this case did not meet the definition of a security. The court found that there must be an “infusion or investment of money or comparable tangible assets in a company with profits to come solely from the efforts of others.” (Citation and punctuation omitted.) Nicholson v. Harris, 179 Ga. App. 35, 36 (345 SE2d 63) (1986). This was derived from the “economic reality” test outlined in Securities & Exchange Comm. v. W. J. Howey Co., 328 U. S. 293 (66 SC 1100, 90 LE 1244) (1946) and applied by the Supreme Court of Georgia in Tech Resources v. Estate of Hubbard, 246 Ga. 583 (272 SE2d 314) (1980). The court concluded that “undisputed facts” established that Cox was not a passive investor but became a full-time employee of the Edelsons’ business, managing its newly opened showroom and handling financial and administrative affairs for the company. The court therefore concluded that Cox’s investment was not a security for purposes of the Act.

In Cohen v. William Goldberg & Co., 262 Ga. 606 (423 SE2d 231) (1992), the Supreme Court of Georgia adopted a two-part test for determining whether a particular investment is a security, integrating the holdings of Tech Resources (the “economic reality” test) and another United States Supreme Court case, Landreth Timber Co. v. Landreth, 471 U. S. 681 (105 SC 2297, 85 LE2d 692) (1985) (the “stock characterization” test). Our Supreme Court determined that the initial test must be the “stock characterization” test. Only if it does not meet the requirements of that test must we apply the “economic reality” test. Cohen, supra at 608-609 (1); see Bell v. Sasser, 238 Ga. App. 843, 845 (520 SE2d 287) (1999).

We therefore begin our analysis with the “stock characterization” test. Under that test, if an instrument both is called a “stock” and bears the usual characteristics of a stock, a purchaser justifiably may assume that securities laws apply. Cohen, supra at 607 (1). The starting point is the language of the statute. Id. A security is defined in the Georgia Securities Act as:

any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of indebtedness, investment certificate, certificate of interest or participation in any profit-sharing agreement, . . . transferable share, investment contract, voting-trust certificate, limited partnership interest, or beneficial interest in profits or earnings, or any other instrument commonly known as a security. . . .

OCGA § 10-5-2 (a) (26). Cox’s investment was referred to as a stock purchase. But even when a stock is called that, we must determine whether it bears the usual characteristics of a “stock” before it is subject to the Act.

Those characteristics usually associated with common stock are (i) the right to receive dividends contingent upon an apportionment of profits; (ii) negotiability; (iii) the ability to be pledged or hypothecated; (iv) the conferring of voting rights in proportion to the number of shares owned; and (v) the capacity to appreciate in value.

Cohen, supra at 607-608 (1).

It would appear at first blush that Cox’s investment does not meet the requirements of the “stock characterization” test. Unless exempt, investments qualifying as securities must be registered. OCGA § 10-5-5. In a subscription agreement and investment letter attached to the stock purchase agreement, Cox acknowledged that the shares were not registered and the company was under no obligation to register them or make application for any exemption to the Act. He agreed to restrictions severely limiting his right to sell or otherwise transfer or hypothecate the shares. Cox presented no evidence concerning the right to receive dividends, the distribution of voting rights, or any understanding that the stock could appreciate in value.

But in Cohen, supra, the Supreme Court found that neither restrictions on the negotiability of stock in a closely held corporation nor its unregistered status negated the stock’s character as a security. Id. at 610 (2). This is true because restrictions on negotiability are “usual and customary” for closely held corporations, id. at 610-611 (2) (a), and both the federal and the Georgia securities laws “contemplate that stock may be a ‘security’ and yet be unregistered.” Id. at 611 (2) (b).

Because Cox’s investment meets the definition of a security, we need not apply the “economic reality” test, upon which the trial court based its ruling. Cohen, supra at 608-609 (1), 611 (3), n. 3. The investment meets the definition of a security, and the trial court erred in finding that it did not.

We are not persuaded by the Edelsons’ attempt to characterize the trial court’s grant of summary judgment as “right for any reason.” They argue that summary judgment was proper on Count 7 either because Cox ratified any misrepresentations or waived his claim through lack of diligence in discovering them or because Cox failed properly to tender his stock certificates, as required by OCGA § 10-5-14. A grant of summary judgment must be affirmed if it is right for any reason unless it is apparent that the trial court relied upon an erroneous legal theory. Porquez v. Washington, 268 Ga. 649, 652 (3) (492 SE2d 665) (1997). But that principle has no application here. Ratification of the alleged misrepresentations and lack of diligence are issues that pertain to the fraud claim. They are not applicable to the question of whether the claim of violation of the securities law is a viable one. As to the defense of failure to tender, that was not raised below. The grant of summary judgment to the Edelsons, which was based upon the sole stated ground that the stock was not a security, was therefore error and must be reversed.

2. In the cross-appeal, the Edelsons contend the trial court erred in denying their motion for summary judgment on Cox’s claims for fraud and misrepresentation in Counts 1 and 3 of Cox’s complaint. The trial court found that issues of material fact remained with regard to these two counts. A review of the record indicates the trial court was correct.

Five elements must be shown to recover on a claim of fraud; the plaintiff must show: a false representation; scienter; the intent to induce him to act or refrain from acting; justifiable reliance on his part; and damages. T.O.H. Assoc. v. 2B Enterprises, 224 Ga. App. 730 (482 SE2d 393) (1997). Cox’s allegations in Counts 1 and 3 of the complaint were that to induce him to invest in their office furniture business, the Edelsons made a number of representations to him that they knew to be false and that he relied upon those representations to his damage. On a motion for summary judgment, the movant has the burden of showing that no genuine issue of material fact exists and that the undisputed facts warrant summary judgment in his favor when the evidence is construed most favorably toward the plaintiff. Hall v. Cracker Barrel &c., 223 Ga. App. 88, 89 (1) (476 SE2d 789) (1996). If the evidence was not in conflict on each of these elements and the evidence demanded a verdict in the Edelsons’ favor, they were entitled to summary judgment. But here, the evidence was clearly in conflict on numerous issues.

Cox alleged the Edelsons lied about the assets and liabilities of the corporation, listing on financial statements provided to him that the corporation owned certain vehicles, that the corporation owned a certain $8,500 investment, and that the Edelsons owed a debt to the corporation amounting to $19,800. Cox alleged that he later discovered that the corporation did not own the vehicles. After he began working for the corporation, he became aware that $10,000 of the amount listed as owed by the Edelsons to the corporation was written off, as was the $8,500 “investment,” which Cox alleged actually had been worthless for years. The Edelsons also, he alleged, failed to disclose material facts, such as Hank Edelson’s $50,000 debt to the Internal Revenue Service. He further alleged that Edelson made a payment of $10,000 from the corporation for what Edelson described as a pre-existing loan to the corporation, when that loan had not been listed on the financial statements. He also alleged that Edelson misrepresented his prior business record and hid numerous business failures. Cox was fired from the business just months after he made his investment.

Decided February 29, 2000

Reconsideration denied March 21, 2000

Tony Center, for appellant.

Friedman, Dever & Merlin, Douglas M. Robinson, for appellees.

Edelson, on the other hand, asserted he never made any false misrepresentations to Cox. He stated that the only complete documents Cox reviewed before investing in the corporation were the company’s May 1995 internal financial statements and its 1993 and 1994 income tax returns, both of which were prepared by the company’s accountant in the normal course of business. He alleged that he was unfamiliar with these documents and had no background in financial matters, but he invited Cox to examine any documents pertaining to the corporation he wished. Cox did not take advantage of this invitation. Edelson denied telling Cox that the corporation owned the vehicles or that the company owned $8,500 in stock in another company. He maintained that he was not aware that the $8,500 investment was listed on the financial statements and that he never instructed the accountant to write the investment off as worthless. He claimed the accountant “set up” the balance sheet item listing loans to him and his wife as assets and he had “no meaningful understanding” of this. Edelson further claimed that he never represented that his accountant was a Certified Public Accountant, that he informed Cox that the corporation had financial difficulties in the past, and that he did not misrepresent his past business history.

The evidence is in conflict as to whether misrepresentations were made and, if made, whether they were knowing. It is also in conflict with regard to whether Cox was justified in relying upon any information given or whether he failed to use due diligence in exploring other information. The trial court therefore correctly denied the Edelsons’ motion for summary judgment as to Counts 1 and 3 of Cox’s complaint.

Judgment affirmed in Case No. A99A2293. Judgment reversed in Case No. A99A2292.

Pope, P. J., and Miller, J., concur.

       The Edelsons’ accountant was also sued, but she was later dismissed with prejudice.

       Count 3 expressly alleges that the Edelsons made the false representation that their accountant was a Certified Public Accountant.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A00A0314.
    HAMILTON v. THE STATE.
    (532 SE2d 118)
   Johnson, Chief Judge.

Thomas Hamilton was convicted of aggravated assault. In his sole enumeration of error, he claims the trial court erred in submitting the case to the jury because the evidence was insufficient to authorize a conviction. Specifically, he urges that the state failed to prove that he did not act in self-defense, given his testimony that he shot the victim only after the victim and the victim’s companion pointed a gun at him. Because the evidence was sufficient to support the conviction, we affirm.

On appeal, we view the evidence in a light most favorable to support the verdict, and an appellant no longer enjoys the presumption of innocence; moreover, we determine the sufficiency of the evidence and do not weigh the evidence or determine witness credibility. Grant v. State, 239 Ga. App. 608, 609 (1) (521 SE2d 654) (1999). We review a denial of a motion for a directed verdict of acquittal under the standards set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and determine whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Id. As long as there is some competent evidence on each element necessary to prove the state’s case, the jury’s verdict will be upheld. Jackson v. State, 236 Ga. App. 260, 261 (511 SE2d 615) (1999); see Knight v. State, 239 Ga. App. 710, 713 (2) (521 SE2d 851) (1999). Conflicts in the witnesses’ testimony are for a jury to resolve. Jackson v. State, supra.

Construed most favorably to uphold the jury’s verdict, the evidence shows that the victim, Frankie McDaniel, and his friends, John Lewis and Sandus Manuel, were in a nightclub. As McDaniel and his friends were leaving the club, Gary Zipper, whom they knew and did not like, approached them. Zipper showed McDaniel’s group that he had a gun under his shirt and said he was going to “do away with” them. Zipper, who was accompanied by his friend Hamilton, followed the group outside. Once outside, Zipper moved his hand under his shirt and asked McDaniel: “[WJhat’s up?” McDaniel walked over to Lewis’ car and retrieved a gun, which he pointed at Zipper and replied: “[T]his is what’s up.” Zipper and Hamilton went back inside the club, and McDaniel and his friends left. McDaniel and his companions drove around and went to another nightclub to get something to eat. There McDaniel met more of his friends, including Jerome Rhodes. After eating, McDaniel’s group began walking back to their car when a car drove past them. The car turned around and slowly came back toward them with the headlights off. Hamilton leaned out of the window on the passenger side of the car, brandishing a shotgun. He fired the gun at McDaniel, striking him in the leg. No one in McDaniel’s entourage had a gun at the time of the shooting; the gun McDaniel displayed earlier was in Lewis’ parked car. Immediately after Hamilton shot McDaniel, Rhodes ran to Lewis’ car to retrieve the gun, which he fired into the air as Hamilton’s car sped away.

Decided March 21, 2000.

Mark T. Phillips, for appellant.

C. Paul Bowden, District Attorney, for appellee.

Hamilton took the stand on his own behalf. He testified that as McDaniel’s group walked from the second club to their car, Rhodes pointed a gun at the car in which Hamilton was riding. Hamilton stated that he fired the gun at the group in order to protect himself and the others in the car.

Once evidence of self-defense is presented, the burden is on the state to disprove that defense beyond a reasonable doubt. Manning v. State, 231 Ga. App. 584, 585 (3) (499 SE2d 650) (1998). Witness credibility is to be determined by the jury, as is the question of self-defense when there is conflicting evidence on the issue. Russell v. State, 267 Ga. 865, 866 (1) (485 SE2d 717) (1997). Although Hamilton testified that the shooting occurred only after a member of McDaniel’s group pointed a gun at him during the second encounter, the state countered with evidence that the two groups had gone their separate ways and later, at the time of the shooting, McDaniel’s group was unarmed and not threatening anyone in Hamilton’s group. Thus, there was evidence that the earlier confrontation had ended. The jury was authorized to find from the evidence that, at the time of the shooting, Hamilton did not reasonably believe that firing a gun was necessary to prevent death or great bodily injury to himself or others and that he was not acting in self-defense. See generally Weems v. State, 268 Ga. 142, 144 (3) (485 SE2d 767) (1997). The evidence authorized the jury to find Hamilton guilty of aggravated assault beyond a reasonable doubt. See Jackson v. Virginia, supra; Wooten v. State, 270 Ga. 425, 427 (510 SE2d 813) (1999).

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


author: Andrews, Presiding Judge.

text:
    A99A1844.
    ETHRIDGE et al. v. DAVIS et al.
    (530 SE2d 477)
   Andrews, Presiding Judge.

Sanford and Charles Ethridge, owners of a partnership d/b/a Colonnade Apartments, appeal the denial of their motion for summary judgment in this premises liability suit by Ricky Davis and his wife. A certificate of immediate review was granted by the trial court, and this Court granted the application for interlocutory appeal. Because Davis had equal knowledge of the defect in the premises which caused his injury, we reverse.

This Court reviews de novo a trial court’s grant or denial of summary judgment. Jackson v. Post Properties, 236 Ga. App. 701 (513 SE2d 259) (1999).

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. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in favor of Davis, the evidence was that he, his wife and their daughter moved into Colonnade Apartments in 1994. They had lived in Unit 208, a townhouse, for at least a year prior to Davis’ fall on June 17,1996. Sometime shortly after they moved in, they noticed a leak in the ceiling of the kitchen around the light fixture. The bathroom was located above the kitchen, and the leak apparently originated from the bathroom pipes in the walls or ceiling.

The leak was reported to Altman, the resident manager, six or seven months prior to the fall, and notice was also given to the maintenance man. Additionally, after the leak had not been repaired, Sanford Ethridge came to the apartment and was personally shown the leak. Davis deposed that they complained about the problem “off and on for almost a year.”

Davis said the leak was worse when the shower or tub was being used in the bathroom but that “[i]t practically leaked all the time.” The water would puddle in the light fixture in the kitchen ceiling. When so much water accumulated, “the [SJheetrock got weak and wet, started falling out of the ceiling. Then first it started dripping water, and at other times it would pour water.” Davis said he knew the leak was a problem because he complained about it constantly.

Mrs. Davis repeatedly cleaned up the water from the leak, which was hard to see on the floor because it was white linoleum. As she deposed, “I know I mopped and got water up every day some time during the day for ... a year.” Davis also stated that the water would be hard to see on the floor due to the white linoleum.

Although the leak was persistent, its timing would vary based on the rate of accumulation of the water. Mrs. Davis deposed that it leaked “different things different days.” Davis stated that “[y]ou never knew ... it depends on how much water collected before it would — how bad it would pour out or leak or drip out.”

On June 17, 1996, Mrs. Davis cleaned the kitchen floor that morning and had been in the kitchen three times thereafter and had not noticed more leaking. Around 5:00 p.m., Davis went into the kitchen to retrieve asthma medicine for a child for whom Mrs. Davis provided child care.

Davis, who had two prior neck and back surgeries as a result of previous job accidents, acknowledged that he did not look up at the fixture and surrounding Sheetrock as he walked into the kitchen, nor did he look at the floor. As he deposed,

I knew there was a problem every day, but ... it wasn’t something that was constantly on my mind, no. I got up and walked in the kitchen to get her medicine, that’s what was on my mind. . . . Maybe I should have looked up, yes, you know, because I knew there was a problem, but it wasn’t on my mind at the time, because it shouldn’t be something I would constantly think about or have to worry about anyway.

Even though the landlord is under a statutory duty to keep the premises in repair, OCGA §§ 44-7-13 and 44-7-14, he is not an ensurer of the tenant’s safety.

“Even though the condition of the premises may be hazardous and the landlord negligent, he may not be liable for injury where the (tenant) had equal or superior knowledge of the alleged defect. If a (tenant) knows of a defect, ‘(he) must use all of (his) senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to (him).’ [Cits.]” Hall v. Thompson, 193 Ga. App. 574 (388 SE2d 381) (1989). “Although the issue of the plaintiff’s exercise of due diligence for his own safety is ordinarily reserved for the jury, it may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear and palpable.” [Cit.]

Wells v. C & S Trust Co., 199 Ga. App. 31-32 (403 SE2d 826) (1991).

In Wells, the plaintiff, having notified the landlord of the lack of illumination in a stairwell, nonetheless attempted to use the stairwell in the dark when there was another route available. See Culberson v. Lanier, 216 Ga. App. 686 (455 SE2d 385) (1995) (invitee fell down defective stairwell which did not comply with the local building code; summary judgment for landlord).

Davis argues that Laffoday v. Winn Dixie Atlanta, 235 Ga. App. 832 (510 SE2d 598) (1998) precludes summary judgment to the defendants because it is factually similar to the situation here. In that case, Laffoday was the greeting card representative for the store involved and had been in and out of the store for a year. On the day of her fall, she had been warned by the produce manager that the produce preparation area could be wet; she knew there was water in that area the day of her fall and before her fall; and there was a wet floor sign near the place of her fall. There, summary judgment for defendant was precluded because Laffoday presented evidence that, immediately before her fall, the store manager had paged her to the front of the store, which startled her. This created a factual issue for jury resolution because the invitee explained that there was “ ‘something in the control of the owner/occupier and of such a nature that the owner/occupier knew or should have known of its distractive quality [which] caused [her] not to look to the site of the hazard.’ Robinson [v. Kroger Co.], 268 Ga. [735, 748 (493 SE2d 403) [(1997)].” Id. at 834.

Here, while there had been no repair of the problem leak, nothing done by the landlord prior to Davis’ fall distracted him from the hazard created by the dripping water. Rather, knowing that the leak was persistent but unpredictable and that he would not be able to see water on the floor due to the white linoleum, Davis walked directly into the area where the water fell without looking at either the ceiling or the floor. Here, as in Hall v. Thompson, supra at 575, Davis either chose not to be or forgot to be careful of the known specific danger. Davis argues that Hall involved a rotten plank which was always present and therefore distinguishes the present situation where the water was not always present. That the water’s presence was intermittent, however, would mandate more, rather than less, care from the tenant who was aware that, if present, the water would be difficult to see.

Decided March 2, 2000

Reconsideration denied March 22, 2000

Jones, Cork & Miller, W. Kerry Howell, for appellants.

F. Robert Raley, for appellees.

Therefore, under these plain, palpable and undisputed facts, the defendants were entitled to summary judgment. See Hannah v. Hampton Auto Parts, 234 Ga. App. 392, 394 (506 SE2d 910) (1998) (owner entitled to summary judgment where invitee had repeatedly negotiated steps prior to fall); Beman v. Kmart, 232 Ga. App. 219, 220 (3) (501 SE2d 580) (1998) (invitee’s mistake in placing hand in door jamb entitled owner to summary judgment); Anderson v. Reynolds, 232 Ga. App. 868, 870 (502 SE2d 782) (1998) (invitee was as aware as owner of rock wall upon which she stood which was wet from watering flowers; summary judgment for owner).

Judgment reversed.

Ruffin and Ellington, JJ, concur.

       Mrs. Davis’ claim for loss of consortium is derivative of Mr. Davis’ claim and will not be further separately addressed.

       Although this case predates Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), these principles were reaffirmed in Robinson, supra at 740-741. See Pierce v. Wendy’s Int., 233 Ga. App. 227, 230 (2) (504 SE2d 14) (1998); Beman v. Kmart, 232 Ga. App. 219, 220 (3) (501 SE2d 580) (1998). Also, Colquitt v. Rowland, 265 Ga. 905, 907 (463 SE2d 491) (1995) held that OCGA § 44-7-13 imposes contractual, not tort, liability.


author: ELDRIDGE, Judge.

text:
    A00A0646.
    DEPARTMENT OF TRANSPORTATION v. ARNOLD.
    (530 SE2d 767)
   ELDRIDGE, Judge.

The Georgia Department of Transportation (DOT) acquired by condemnation 0.044 acres (20 feet x 100 feet) of land in fee simple, a permanent slope easement (15 feet x 100 feet), and an additional temporary driveway easement from Dr. Allen K. Arnold. The total parking area of 55 feet by 100 feet for Arnold Chiropractic, from which the total take came, had 35 feet by 100 feet affected, leaving only 20 feet by 100 feet not subject to the rights acquired by DOT. Prior to the taking, Arnold had 17 parking spaces. After trial, the jury returned a general verdict for $115,510, upon which judgment was entered on February 2, 1999, but DOT had tendered only $39,700. DOT contends that the trial court erred in allowing the jury to consider business loss claims as separate damages and in support of consequential damages, in denying admission of expert opinion as to future profitability beyond 1995, and in refusing to charge on mitigation of damages. We do not agree and affirm the judgment of the trial court.

On the date of taking on October 14, 1993, Arnold had an office on the subject property in Mableton; however, in November 1990, he had moved this office to Austell. But the Austell office proved to be a poor business location; therefore, he reopened the Mableton office in 1992. From January 1992 until March 1994, Arnold operated at both Mableton and Austell. After the taking and beginning of construction, Arnold consolidated all his business at one new location in Mableton in 1994.

1. DOT contends that the trial court erred in allowing business loss as a separate item of damages. We do not agree.

DOT contends that separate business loss could not be recovered, since “his evidence was not sufficient to support a separate business loss recovery because it showed that the business had not been totally destroyed and had successfully relocated.”

Peculiar value for land is confined

to property having an existing use [to] which the owner of the property is devoting it at the time it is taken by eminent domain when such land possesses a peculiar value for such use. It must appear, not that the property is peculiar, but that the relationship of the owner thereto is peculiar — its advantages to him more or less exclusive — that is, that it is property having value peculiar to the owner only, and without possible like value to others who might acquire it. . . . The issue of whether land taken or damaged in an eminent domain proceeding is unique or peculiar is a jury question.

(Citations and punctuation omitted.) Macon-Bibb County Water &c. Auth. v. Reynolds, 165 Ga. App. 348, 353 (3) (299 SE2d 594) (1983). See Housing Auth. &c. of Atlanta v. Southern R. Co., 245 Ga. 229, 230 (1) (A) (264 SE2d 174) (1980); Dept. of Transp. v. Sharpe, 213 Ga. App. 549, 550-551 (1) (445 SE2d 343) (1994).

When dealing with eminent domain, property has a broad and liberal meaning under the constitution. See Duffield v. DeKalb County, 242 Ga. 432, 433-435 (2) (249 SE2d 235) (1978); Woodside v. City of Atlanta, 214 Ga. 75, 85 (103 SE2d 108) (1958). Therefore, when land qualifies as peculiar because of the peculiar relationship to the owner and when any business operated on such location has a particular “good will,” an intangible property interest peculiar to the land, identified only with that location in the minds of clients, exists. Business losses reflect the value of such intangible property interest that is taken or destroyed in the condemnation and cannot be relocated, because such value is peculiar to that land and the owner’s relationship to the business conducted on that location. See generally Duffield v. DeKalb County, supra at 433-434; see also Macon-Bibb County Water &c. Auth. v. Reynolds, supra at 352-353. Arnold “had to have irrevocably lost something of value that could not be duplicated elsewhere.” Housing Auth. &c. of Atlanta v. Southern R. Co., supra at 232. Here it was “good will” associated with the business at that location.

This property was also unique, as well as peculiar, being located on the corner of Harding Drive and Bankhead Highway with adequate parking and having been a long-established business location of Arnold and of the Arnold family; it had been closely associated with the Arnold family businesses at such location since the 1930s and where most of Arnold’s patients were accustomed to visit. Arnold, himself, had occupied such location for more than 20 years. Such owned office space had 3,000 square feet, but upon relocation only 1,300 square feet of rental space could be acquired. The business location represented the Arnold family and the good will associated with the Arnold business located there. Thus, the property not only was unique but also peculiar, so that the fair market value standard of evaluation was constitutionally inadequate to value such property interest. See Macon-Bibb County Water &c. Auth. v. Reynolds, supra at 353-355. “In other words unique [and peculiar] property is simply property which must be valued by something other than the fair market value standard.” Housing Auth. &c. of Atlanta v. Southern R. Co., supra at 230 (1) (A). “ ‘Unique’ [or peculiar] property is measured by a variety of non-fair market methods of valuation, including the cost and income methods.” Id.

The loss of [property’s] use for [particular] purposes is an element for consideration in awarding just compensation to the owner of the realty. The destruction of an established business is and must be a separate item of recovery. . . . The loss of an established business is an altogether different matter; such loss not merely reflects the value of the real estate, for frequently the value of the business greatly exceeds that of the premises where it is conducted.

(Citation omitted.) Bowers v. Fulton County, 221 Ga. 731, 739 (2) (146 SE2d 884) (1966). Here the property taken represented a public relations asset of Arnold as a family business presence in the community and as a form of intangible property, good will, which could not be relocated successfully and which could not attach to the business of another in the same location.

The term property is a very comprehensive one, and is used not only to signify things real and personal owned, but to designate the right of ownership and that which is subject to be owned and enjoyed. The term property comprehends not only the thing possessed, but also, in strict legal parlance, means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy and dispose of it, and the corresponding right to exclude others from the use.

(Citations and punctuation omitted.) Id. at 737. See also Woodside v. City of Atlanta, supra at 83.

Evidence of business losses attributable to the taking is admissible in a condemnation action where such losses are sought as a separate element of damages as to unique or peculiar property as well as when such evidence shows a diminution of value of the land not taken. Buck’s Svc. Station v. Dept. of Transp., 259 Ga. 825, 827 (2) (387 SE2d 877) (1990); see also Dept. of Transp. v. Scott, 268 Ga. 579, 580 (492 SE2d 216) (1997); Timmers Chevrolet v. Dept. of Transp., 261 Ga. 270, 271 (1) (404 SE2d 121) (1991). It is within the sound discretion of the trial court to admit or deny admission of such evidence when causation of such loss is in question. Macon-Bibb County Water &c. Auth. v. Reynolds, supra at 352-353. Here, there existed some evidence as to causation which was sufficient for the jury to determine what business losses had been caused by the taking. Timmers Chevrolet v. Dept. of Transp., supra at 271; see Dept. of Transp. v. Baxley, 194 Ga. App. 29, 30 (2) (389 SE2d 519) (1989); Dept. of Transp. v. Consolidated Equities Corp., 181 Ga. App. 672, 673-674 (1) (353 SE2d 603) (1987).

For post-taking business losses to be recoverable separately, there must be either “a total taking of the business,” Dept. of Transp. v. Acree Oil Co., 266 Ga. 336 (467 SE2d 319) (1996), or permanent business loss as opposed to temporary business loss due to construction inconvenience, Housing Auth. &c. of Atlanta v. Southern R. Co., supra at 230; Dept. of Transp. v. Fitzpatrick, 184 Ga. App. 249-250 (2) (361 SE2d 241) (1987). In this case, Arnold showed that he could not operate the business in the original Mableton location any longer, because DOT took substantially all of his parking, and he sustained a permanent loss in business related to moving from the original location. Therefore, the business was totally destroyed as a chiropractic office at the taking location. See Dept. of Transp. v. George, 202 Ga. App. 270, 271-272 (3) (414 SE2d 307) (1991). Arnold also showed that there was a loss in patient visits at the new location in Mableton, because patients did not come to the new location. Further, the overhead cost in earnings from the remaining patient visits had substantially increased, further reducing profits after the taking.

“Whether property is unique [or peculiar] is a jury question, and only slight evidence of uniqueness [or peculiarity] is required to warrant the submission of the issue to the jury.” (Citations omitted.) DeKalb County v. Glaze, 189 Ga. App. 1, 4 (2) (b) (375 SE2d 66) (1988).

2. DOT alleges that the trial court erred in failing to charge on Arnold’s duty to mitigate damages. We do not agree.

The evidence showed that Arnold moved prior to the construction and temporary construction easement. At that time, no mitigation of damages was possible by repaving and repainting the parking lot, because construction was not complete. DOT’s mitigation plan for Arnold’s damages involved both what was left after the taking but also repaving and restriping the slope easement area for parking. DOT contended that Arnold could use the slope easement area for parking, giving him 15 parking spaces. However, Arnold contended that use of the slope easement for parking put him at the continuing mercy of DOT in the future for continued use so that he had to move his business. Thus, the DOT’s evidence of possible mitigation of damages depended upon use of the slope easement but did not show that the slope would never change.

The trial court did not err in refusing to charge on mitigation of damages when the evidence did not support it, because DOT’s mitigation plan required the complete use of both the slope easement area and not just use of the remainder of the original parking area still under Arnold’s exclusive control. See Continental Corp. v. Dept. of Transp., 185 Ga. App. 792, 794-795 (2) (366 SE2d 160) (1988) (striping the untaken parking area); Dept. of Transp. v. Ladson Investments, 158 Ga. App. 687, 690 (3) (282 SE2d 171) (1981) (where the condemnee failed to stripe the remaining parking area under DOT’s plan). This is not a case where the striping of the unencumbered property would allow substantially the number of parking spaces previously used. DOT contended that Arnold could use the area of the slope easement for parking after it had been sloped but put up no evidence that the slope could not be changed in the future, destroying any paving and preventing parking. There was no evidence from which the jury could have determined that reasonable mitigatory options existed in fact and not mere theory. See Dept. of Transp. v. Eastern Oil Co., 149 Ga. App. 504, 505 (4) (254 SE2d 730) (1979). Further, the jury heard both the DOT’s experts’ testimony in this regard and argument; apparently, the jury chose to believe that the slope easement effectively deprived Arnold of control over such subject land.

3. DOT contended that the trial court erred in excluding evidence of increasing profitability of the business more than two years after the taking. We do not agree.

DOT sought to have expert testimony given in rebuttal to demonstrate the increased profitability of the business from 1993 through 1998 for five future years. However, the trial court limited such testimony to only two future years, 1994 and 1995, and prior years, including 1992. Future profitability after the completion of the project to show an absence of permanent damages was reasonable; however, such period is not indefinite and must have a rational relationship to the condemnation. See Dept. of Transp. v. Fitzpatrick, supra at 250 (2). Where expert opinion is involved, the trial court has broad latitude in admitting, limiting, or denying such testimony. Xpress Cargo Systems v. McMath, 225 Ga. App. 32, 33 (2) (b) (481 SE2d 885) (1997); Emory v. Dobson, 206 Ga. App. 482, 483-484 (426 SE2d 50) (1992).

4. DOT contends that the trial court erred in allowing the jury to consider business losses to support the claim for consequential damages. We do not agree.

[E]vidence of any business losses which result in a diminution of the value of a condemnee’s business is admissible. However, evidence of temporary loss of business is admissible not for the purpose of recovering for the temporary loss of business but for the limited purpose of demonstrating fair market value of the land not taken immediately after the taking. We reach this conclusion because business property facing loss of business may suffer a diminution in fair market value. This is true whether the losses occur because of the condemnation of a temporary construction easement or whether they occur because of a permanent taking.

(Emphasis in original.) Buck’s Svc. Station v. Dept. of Transp., supra at 827. See also Dept. of Transp. v. Wallace Enterprises, 234 Ga. App. 1, 2-3 (1) (505 SE2d 549) (1998); Dept. of Transp. v. 2.953 Acres, 219 Ga. App. 45, 49-50 (4) (463 SE2d 912) (1995). “It is up to the trier of fact to determine whether the business losses suffered as a result of a temporary easement were a mere inconvenience or whether they resulted in a diminution of the value of the condemnee’s interest in the land not taken.” Buck’s Svc. Station v. Dept. of Transp., supra at 827. Accord Timmers Chevrolet v. Dept. of Transp., supra at 271 (1); Dept. of Transp. v. Wallace Enterprises, supra at 3.

The admission of evidence of factors which may reasonably influence a prospective purchaser’s decision is a matter within the discretion of the trial court. Macon-Bibb County Water &c. Auth. v. Reynolds, supra at 350-351. The trial court did not abuse its discretion.

Judgment affirmed.

Blackburn, P. J, and Barnes, J., concur.

Decided March 9, 2000

Reconsideration denied March 22, 2000

Thurbert E. Baker, Attorney General, R. O. Lerer, Senior Assistant Attorney General, Law Offices of James S. Howell, Donna W. Howell, Mark Weinstein, Weiner, Yancey, Dempsey & Diggs, Robert W. Diggs, for appellant.

Gore, Lee & Curry, Luke F. Gore, for appellee.


author: Ruffin, Judge.

text:
    A99A2515.
    ROBBINS v. THE STATE.
    (532 SE2d 127)
   Ruffin, Judge.

A Greene County jury found Jackie Robbins guilty of three counts of child molestation. On appeal, Robbins challenges the sufficiency of the evidence. Additionally, he contends the trial court erred in admitting certain hearsay evidence and in permitting the State to make improper arguments during its closing statement. As Robbins’ contentions lack merit and the evidence was sufficient, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. The defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.”

The record demonstrates that Jackie Robbins, the youngest of ten children, lived at home with his mother, Lovely Rea Robbins, until he graduated from high school in 1994. While Robbins lived at home, two of his nieces, M. R. and S. R., would stay at their grandmother’s house while their mother was at work.

M. R., who was born in January 1984, testified that when she was six years old, Robbins began molesting her at her grandmother’s house and that he continued molesting her until 1992, when she turned eight. According to M. R., Robbins

would tell me to go in his room. And he would like tell me to pull down my clothes. And so I did. Because he would offer me candy or a piece of chewing gum or whatever. And so he would try to put his penis in my vagina. He would lay me down and he even tried to touch my vagina. He’d try to make me, you know, suck his penis.

S. R. testified that, when she would stay with her grandmother, Robbins would call her into a room, take off her clothes, and attempt to have intercourse with her.

After Robbins graduated from high school, he married and left his mother’s home. When Robbins’ marriage ended, however, he moved back into his mother’s house. S. R. testified that, in the spring of 1997 — after Robbins had returned to his mother’s house — he touched her breast. Following this incident, M. R. and S. R. told their mother about the abuse. The mother took the two girls to a counselor, Beda Cain, who interviewed them on April 25, 1997. Cain reported the alleged abuse to the authorities, and Robbins was charged with four counts of molestation.

Robbins, who testified at trial, denied having molested his nieces. Numerous family members also testified on Robbins’ behalf, including the victims’ father. These witnesses testified that the trailer where the abuse allegedly occurred was always full of people.

1. On appeal, Robbins asserts that the trial court erred in failing to direct a verdict of acquittal on all counts of child molestation. He contends that the abuse “was not physically possible” because “there were too many people around” for him to have molested the girls without having been discovered. The jurors were aware of this contention and the evidence supporting it but chose to believe the victims’ testimony that their uncle had molested them. It is not the function of this Court to reweigh the evidence or to determine the credibility of witnesses. Because the evidence was sufficient for a rational trier of fact to find Robbins guilty beyond a reasonable doubt, the trial court did not err in failing to grant a directed verdict.

2. Robbins next asserts that the trial court erred in admitting Cain’s testimony regarding the victims’ out-of-court statements. OCGA § 24-3-16 provides that:

[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

In Gregg v. State, this Court listed factors that a trial court should consider in determining whether the circumstances surrounding a child’s statement provide sufficient indicia of reliability. These factors include: (1) the conditions under which the statement was made; (2) the statement’s spontaneity; (3) the child’s age; (4) the child’s demeanor; (5) the child’s physical and emotional condition; (6) the presence or absence of any threats or promises of benefit; (7) any presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or others either before or during the giving of the statement; and (10) the consistency between repeated out-of-court statements. Robbins contends that the victims’ statements were not sufficiently reliable to warrant their introduction. We disagree.

Without providing any factual basis, Robbins contends that the victims were interviewed in an “intimidating” atmosphere and that they were put in a position where they had no choice but to make allegations of abuse. Contrary to Robbins’ contention, the evidence shows that the victims were interviewed separately and in a neutral location. Moreover, the ages of the victims — thirteen and ten at the time of the interview — suggest that they were old enough to appreciate the gravity of the charges that they were making.

Robbins argues that the victims’ demeanor illustrates the unreliability of their statements. Cain described M. R. as quiet and withdrawn and said that she felt M. R.’s statement was spontaneous and not the result of coaching. With respect to S. R., Cain felt that she appeared uncomfortable, a bit hostile, and that she became tearful at times during the interview. Cain testified that S. R. was cooperative and did not appear to have been coached. Neither M. R. nor S. R. appeared to have been physically abused. We fail to see how the victims’ demeanor renders their statements unreliable. The fact that the victims appeared to treat a serious subject in a serious manner does not mitigate in favor of excluding their statements.

Robbins also points to the length of time between the alleged abuse and the statements and to inconsistencies in the victims’ statements in support of his argument that the statements are unreliable. Although these factors might support a trial court’s decision to exclude the statements, they do not require exclusion. The factors to determine reliability are not to be applied mechanically but should be applied in the manner best calculated to determine whether the victims’ statements are trustworthy. Looking to the totality of the circumstances, the trial court was authorized to find that the victims’ “statements bore sufficient indicia of reliability to authorize their admission in evidence.” Accordingly, the trial court did not abuse its discretion in admitting them.

3. In his third enumeration of error, Robbins contends that the trial court erred in admitting the hearsay testimony of the victims’ mother. Robbins provides no argument in support of this enumeration but merely refers to his argument in his second enumeration of error. As Robbins’ third enumeration of error is unsupported by argument, it is deemed abandoned.

4. Robbins contends that the trial court erred in allowing the prosecutor to argue facts not in evidence during his closing argument. When the prosecutor mentioned “the pattern with child sexual abuse,” Robbins’ attorney immediately objected, and the prosecutor did not say anything further on this issue. Because the prosecutor did not expound upon his theory on the pattern of child sexual abuse, we fail to see how his statement could be considered improper. Even if improper, however, we find it entirely unlikely that this one statement changed the result of the trial. Accordingly, any error was harmless.

To the extent that Robbins challenges any other objectionable statements made during closing argument, a review of the record discloses that Robbins did not object to any other allegedly improper comments either during or after closing argument. Accordingly, he has waived the error, if any.

5. In his final enumeration of error, Robbins asserts that the trial court erred in allowing the prosecutor to misstate the State’s burden of proof during closing argument. During Robbins’ closing argument, his attorney argued that the jurors not only had to believe the State’s version of events, but they had “to be certain about it.” The State objected to this characterization of the State’s burden of proof, and the trial court sustained the objection. During the State’s closing argument, the prosecutor explained the State’s burden of proof as follows:

The burden of proof, reasonable of [sic] doubt is just what it says. It’s the doubt of a fair-minded, impartial juror honestly seeking the truth. It’s not our burden to prove beyond a reasonable doubt or to a mathematical certainty. Ladies and gentlemen, I couldn’t let [Robbins’ attorney] change that to say that it had to be a certainty.

Robbins did not object to this obvious misstatement of the State’s burden of proof. Robbins contends that the State’s obvious misstatement of its burden of proof in closing argument is so prejudicial that it warrants reversal. We disagree.

Initially, we note that Robbins failed to object to the argument and, thus, has waived the issue on appeal. But even if Robbins had preserved the issue for appeal, he presents no basis for reversal because the jurors were properly instructed on the State’s burden of proof. Following closing arguments, the trial court charged the jury as follows:

Ladies and gentlemen, the State is not required to prove the guilt of the accused beyond all doubt or to a mathematical certainty. A reasonable doubt means just what it says. It is the doubt of a fair-minded, impartial juror, honestly seeking the truth. It is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt, but is a doubt for which a reason can be given, arising from a consideration of the evidence, a lack of evidence, a conflict in the evidence or a combination of any of those things.

It is evident that, in rebutting Robbins’ characterization of the State’s burden of proof, the prosecutor simply misspoke. “The prosecutor’s remark, though unfortunate, was no more than a slip of the tongue.” In view of the fact that the trial court properly instructed the jury with regard to the State’s burden of proof, we find it unlikely that the jury was either misled or confused by the prosecutor’s mistake. Accordingly, the judgment of conviction is affirmed.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

Decided March 22, 2000.

Daniels & Rothman, Jeffery A. Rothman, for appellant.

Fredric D. Bright, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, for appellee.

        Wilhelm v. State, 237 Ga. App. 682 (516 SE2d 545) (1999); Cantrell v. State, 230 Ga. App. 693, 694-695 (1) (498 SE2d 90) (1998).

        Wilhelm, supra.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Wilhelm, supra.

       Id.

       The actual date Robbins left home is unclear, but he testified unequivocally that he lived at home until 1994.

       Robbins, who testified at trial, was unable to recall the year that he married.

       The trial court directed a verdict of acquittal on one count of molestation.

        Havron v. State, 234 Ga. App. 413, 414 (1) (506 SE2d 421) (1998).

       Id.; Coalson v. State, 237 Ga. App. 570 (515 SE2d 882) (1999).

       201 Ga. App. 238 (411 SE2d 65) (1991).

       Id. at 240 (3) (b).

       Id.; Thompson v. State, 233 Ga. App. 364, 365-366 (2) (504 SE2d 234) (1998).

        Jones v. State, 226 Ga. App. 420, 423 (2) (487 SE2d 56) (1997).

        Jenkins v. State, 235 Ga. App. 53, 56 (1) (d) (508 SE2d 710) (1998).

        Duncan v. State, 205 Ga. App. 181, 183 (4) (421 SE2d 336) (1992).

        Jenkins v. State, 235 Ga. App. 547, 548 (1) (510 SE2d 87) (1998).

        Miller v. State, 267 Ga. 92 (2) (475 SE2d 610) (1996).

        Mullins v. State, 270 Ga. 450 (2) (511 SE2d 165) (1999).

        Polk v. State, 225 Ga. App. 257, 258 (1) (b) (483 SE2d 687) (1997).

       Id.


author: Phipps, Judge.

text:
    A00A0590.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. VANHUSS et al.
    (532 SE2d 135)
   Phipps, Judge.

Georgia Farm Bureau Mutual Insurance Company brought this action against Vanhuss d/b/a Vanhuss Poultry Farm, James Willing-ham, Robert Martin, and Paul Gillespie, seeking a declaration that a “farmowner’s” insurance policy issued by it to Vanhuss imposes no duty on it to defend or provide coverage for lawsuits against Vanhuss by Willingham and the other defendants. Georgia Farm now appeals a declaratory judgment that the policy at issue does require it to defend the underlying suits.

An insurer’s duty to defend turns on the language of the insurance contract and the allegations of the • complaint asserted against the insured. [Cit.] We look to the allegations of the complaint to determine whether a claim covered by the policy is asserted. [Cit.] If the facts as alleged in the complaint even arguably bring the occurrence within the policy’s coverage, the insurer has a duty to defend the action. [Cits.] However, . . . where the complaint filed against the insured does not assert any claims upon which there would be insurance coverage, the insurer is justified in refusing to defend the insured’s lawsuit. [Cit.]

Nonetheless, “[a]n insurer may have an obligation to defend even when the complaint against the insured does not allege facts which would give rise to coverage if the insured notifies the insurer of facts which would bring the claim within the policy coverage. [Cit.]”

The subject policy provides coverage for bodily injury or property damage caused by an “occurrence,” which is defined as “an accident . . . which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” There is a corresponding exclusion for bodily injury or property damage caused intentionally by the insured.

Decided March 22, 2000

Groover & Childs, Craig M. Childs, for appellant.

Haygood, Lynch, Harris & Melton, C. Robert Melton, Martin & Martin, Harold E. Martin, for appellees.

The complaints in the underlying suits are for injunctive relief and damages. The complaints allege that in the operation of his poultry farm Vanhuss committed trespass by diverting the natural flow of water and sediment onto the plaintiffs’ properties, notwithstanding repeated requests to desist. The plaintiffs also claim that Vanhuss operated the poultry farm on land immediately adjacent to a residential neighborhood in such manner as to constitute a nuisance, despite numerous requests that he not locate the business in such close proximity to the residences and that he abate the resulting nuisance.

The complaints thus allege that Vanhuss intentionally caused property damage. Therefore, the complaints assert claims not within the coverage of the policy. Because Vanhuss has not alleged any additional facts which would give rise to coverage, the trial court erred in entering the judgment appealed.

There is no merit in Vanhuss’s argument that Georgia Farm is estopped to dispute its defense obligations by reason of letters from Georgia Farm to him in which it initially agreed to defend the underlying suits. The doctrine of estoppel is predicated upon a detrimental change in position in reliance upon the conduct of the party to be estopped. Vanhuss does not claim that he relied to his detriment on the insurer’s initial decision to defend the suits, and no such reliance appears. Therefore, “[Georgia Farm’s] initial representation that [Vanhuss] was covered [ ] does not estop it from later denying coverage.”

Judgment reversed.

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

        City of Atlanta v. St. Paul Fire &c. Ins. Co., 231 Ga. App. 206, 207 (498 SE2d 782) (1998).

       Id. at 208 (1).

        Morgan v. Maddox, 216 Ga. 816, hn. 1 (d), 819 (120 SE2d 183) (1961).

        St. Paul Fire &c. Ins. Co. v. Purdy, 129 Ga. App. 356, 357 (4) (199 SE2d 567) (1973) (physical precedent only).


text:
    A99A1933.
    BRANNON v. THE STATE.
    (530 SE2d 761)
   Ruffin, Judge.

Following a bench trial in the Superior Court of Douglas County, John Brannon was convicted of violating Georgia Racketeer Influenced & Corrupt Organizations (RICO) law and of possession of marijuana with intent to distribute. On appeal, Brannon argues that the evidence was insufficient to support his convictions, that venue was improper in Douglas County, and that the trial court should have suppressed evidence seized in a search of his car and person. We reject these arguments and affirm.

1. On appeal, Brannon no longer enjoys a presumption of innocence. We review the evidence presented at trial in the light most favorable to the verdict, without weighing it or assessing the credibility of witnesses, to determine whether the evidence was legally sufficient under the standard of Jackson v. Virginia.

We set forth in detail many of the facts relevant to this case in Davitte v. State, which affirmed the conviction of Brannon’s co-defendant, Mark Davitte. Here, we summarize those facts and include others relevant only to Brannon’s appeal.

Kenneth Stamps agreed to become an informant after Carroll County police discovered marijuana in his home. Kenneth told police that he obtained the marijuana from his cousin, Joseph Stamps, whose sole supplier was a man in south Georgia known as the “big man.” Kenneth described a pattern of activity in which the “big man” — later identified as Brannon — would drive on the weekends to Davitte’s Cobb County home and distribute marijuana to Stamps and other mid-level dealers. After picking up several pounds of marijuana, Stamps would return to his Douglas County residence and distribute it to lower-level dealers, including Kenneth. Kenneth told police that Stamps would call these dealers ahead of time to let them know whether Brannon would be making a delivery during the coming weekend. According to Kenneth, Brannon “fronted” the marijuana to Stamps — meaning Stamps did not pay for it until after he had sold it — and Stamps in turn “fronted” it to Kenneth and other dealers.

Kenneth told police that he met Brannon at Stamps’ house when Brannon went there to resupply Stamps directly with marijuana and he saw Brannon one other time at Davitte’s house when he accompanied Stamps to pick up marijuana. Kenneth racially described Bran-non to police as a heavy-set male, approximately 45 years old, about 5' 10" tall, with brown hair and a beard, who drove a Ford minivan. Kenneth positively identified Brannon in court as the man he had seen. Kenneth also told police that Stamps and Brannon were close friends who often conversed by telephone. Kenneth remained in contact with police for several weeks and informed them of Brannon’s ongoing plans for drug deliveries. Specifically, Kenneth stated that Brannon would be driving to Cobb County to distribute marijuana on April 6, 13, 21, and 27, 1997.

Based on the information from Kenneth, police subpoenaed Stamps’ telephone records and saw multiple calls to a number in south Georgia which they traced to Brannon. Police also tracked the drug activity described by Kenneth over several weekends. On Sunday, April 6, Kenneth received “fronted” marijuana from Stamps and turned it over to police, who later gave him marked currency to pay for it. On Sunday, April 13, in an effort to discover where Davitte lived, police followed Stamps to Cobb County but lost him at a red light that turned out to be only one block from Davitte’s home. Police also set up surveillance at Stamps’ residence that day and saw 13 different vehicles arrive at various times after Stamps returned home. The occupants of the vehicles would enter Stamps’ residence briefly and then leave with bags of marijuana, and police overheard two of them discussing “rolling a joint.” Kenneth also visited Stamps on April 13 to pick up more “fronted” marijuana, which he turned over to police in exchange for more marked currency.

On Monday, April 21, police again followed Stamps to Cobb County. Stamps stopped at Davitte’s house, went inside for about 30 minutes, emerged with a guitar case, and drove away. Later that day, Kenneth once again received marijuana from Stamps, turned it over to police, and received marked currency to pay for it.

On Sunday, April 27, several police officers set up surveillance at Davitte’s house, while others again followed Stamps there from Douglas County. Stamps and his wife entered Davitte’s house around noon, and Brannon arrived about five minutes later in a Ford minivan. Stamps, Brannon, and Davitte talked briefly in the yard, then went into the house. The Stampses then left the house, with Mrs. Stamps carrying a beach bag, and Brannon left shortly thereafter carrying a grocery bag.

Police stopped Brannon soon after he left and searched his vehicle and person. They discovered approximately one pound of marijuana and $4,650 in cash, including $340 in marked bills that police had given to Kenneth to pay Stamps. Police also searched Davitte’s residence and found marijuana and drug paraphernalia. Finally, they searched the Stampses’ residence after the Stampses arrived home and found approximately three pounds of marijuana in a beach bag.

A Douglas County grand jury indicted Brannon, Davitte, Stamps, and Mrs. Stamps, charging all four with violating Georgia’s RICO and controlled substances laws. Seven RICO predicate crimes were alleged against Brannon, three of which were drug violations: (1) distribution of marijuana to the Stampses on April 27; (2) possession of marijuana on April 27 separate from that distributed to the Stampses; and (3) aiding and abetting the Stampses’ distribution of marijuana in Douglas County by distributing marijuana to them on April 27. The other four alleged predicate crimes were use of a telephone to facilitate a violation of the drug laws on April 11, 13, 21, and 26. In addition to the RICO count, Brannon was charged with three counts of possession of marijuana with intent to distribute (on April 13, 21, and 27) and one count of conspiracy to distribute marijuana on April 27. Brannon and Davitte were tried together and convicted of the RICO violation and of possession with intent to distribute marijuana on April 21. They were acquitted on the other charges.

Brannon asserts that the evidence was insufficient to support his RICO conviction. To prove a RICO violation, the State must show that the defendant committed two or more predicate criminal acts of the type included in the RICO statute as part of an enterprise engaging in a pattern of racketeering activity. Brannon argues that the State failed to prove that he committed the requisite predicate criminal acts and failed to show the existence of an enterprise. We reject both arguments.

(a) As noted, Brannon was charged with three drug-related predicate acts and four telephone-related predicate acts. As for the drug counts, Brannon argues that the State wrongly charged him with three predicate acts based on the events of April 27 — distribution of marijuana, possession of marijuana, and aiding and abetting the distribution of marijuana — when, in reality, those acts were all part of the same transaction and can give rise to only one predicate crime. But Brannon does not challenge the sufficiency of the evidence to •support at least one predicate crime based on the events of April 27. Thus, we will assume that the State proved one predicate drug crime.

To prove a RICO predicate act based on the telephone calls, the State had to prove that Brannon “knowingly or intentionally [used a] communication facility in committing or in causing or facilitating the commission” of a violation of the controlled substances laws. Bran-non argues that the State failed to show who made the telephone calls, the purpose of the calls, or the content of the calls. Accordingly, Brannon contends that there was no proof he used the telephone to facilitate a violation of the drug laws. We disagree.

The telephone records were admitted by stipulation at trial, and Brannon does not contest their accuracy on appeal. Those records show that telephone calls were placed from Brannon’s residence in south Georgia to Stamps’ residence in Douglasville on the afternoon of April 11, the morning of April 12, the morning of April 21, and the evening of April 26. Each call lasted approximately three minutes, and there were no other calls between the two residences during this period. The evidence at trial showed that Brannon drove to Cobb County and met Stamps at Davitte’s house for the purpose of distributing marijuana on April 13, 21, and 27. Thus, each of these trips was preceded by a brief telephone call from Brannon’s residence to Stamps’ residence. Kenneth told police that Brannon and Stamps were friends who frequently talked on the telephone. Although there was no direct evidence as to the identity of the callers or the content of the conversations, under these circumstances, a trier of fact could infer that Brannon called Stamps on four occasions to make or confirm arrangements for his upcoming weekend drug delivery. Indeed the evidence permitted no other reasonable hypothesis. It strains belief to assume, as Brannon suggests, that someone else was using Brannon’s telephone to call the Stamps residence or that Brannon was calling about something other than the ensuing drug transactions.

The authority cited by Brannon does not require a different result. In Britt v. State, we reversed the defendant’s conviction for using a telephone in the commission of a drug sale because the State presented no evidence that the defendant máde a telephone call at all. The State merely assumed that the defendant must have made arrangements by telephone because he did not deliver the drugs or contact the seller personally. Here, by contrast, it is undisputed that telephone calls actually were made between the respective residences; inference is required only to establish exactly who was calling and what was said. And while it is true that in Kelleher v. State, the State presented a transcript of a monitored telephone conversation, we find no authority requiring such proof as a prerequisite for a conviction for using a telephone to facilitate a drug violation.

In sum, the State presented sufficient evidence that Brannon committed the telephone-related predicate crimes and at least one of the drug-related predicate crimes. Thus, the State proved the requisite number of predicate acts to sustain Brannon’s RICO conviction.

(b) Next, Brannon contends that the State failed to present sufficient evidence of an enterprise. He asserts that the Stampses were not convicted of RICO violations and, as they are the only parties with whom he allegedly acted in concert, there can be no enterprise. The relevant question, however, is not whether the Stampses — who were tried separately from Brannon — were convicted of RICO, but whether the evidence was sufficient to support Brannon’s RICO conviction. After the bench trial of Brannon and Davitte, the trial court specifically found that:

Brannon, Davitte and both of the Stamps [sic] engaged together in an enterprise by associating together in fact. They had a common purpose: the importation of marijuana for distribution to others and for their mutual profit. Bran-non brought the marijuana to Cobb County. Davitte provided a location for him to deliver it to the Stamps [sic] and others. The Stamps [sic] transported the contraband to Douglas County where they promptly distributed it.

The evidence in the record amply supports this finding that a criminal enterprise existed.

2. Brannon argues that venue was improper in Douglas County because none of the predicate crimes with which he was charged were committed in Douglas County. This is incorrect.

In a RICO prosecution, venue is proper “in any county in which an incident of racketeering occurred.” Four of the predicate acts charged against Brannon were telephone calls to Stamps’ residence in Douglas County, thus establishing venue in Douglas County. Moreover, one of the drug-related predicate acts was that Brannon aided and abetted the Stampses’ distribution of marijuana in Douglas County. As we held in Davitte, when a defendant aids and abets the distribution of drugs in a particular county, venue is proper in that county, even though the defendant may not personally have distributed drugs there. Because the State presented sufficient evidence that Brannon committed one or more predicate acts in Douglas County, the State properly prosecuted him there.

3. Finally, Brannon argues that the trial court erred in denying his motion to suppress the fruits of the April 27 search of his vehicle and person. It is undisputed that the search was warrantless, that police did not see Brannon commit any traffic violations before stopping him, that the contraband found in his vehicle was not in plain view, and that he did not consent to the search. According to the State, the search was based largely on the information from Kenneth concerning Brannon’s role in the drug scheme. Brannon argues, however, that Kenneth was not a reliable informant and that the information he provided could not establish probable cause. Again, we disagree.

We have held that “[w]here the details of a tip are corroborated by the personal observation of the investigating officers, a reliable informant’s tip is sufficient to establish probable cause for a warrant-less search.” Here, the evidence showed that, by April 27 (the date of the search), Kenneth had proven to be a reliable informant. Although Kenneth had not previously served as an informant, nearly all of the information he gave police over a three-week period concerning the scheme in question turned out to be accurate. He predicted that Stamps would drive to a house in Cobb County on three different days (April 6, 13, and 21) to pick up marijuana, return to his Douglas County residence, and distribute marijuana to mid-level dealers. On two of those dates, police confirmed that Stamps drove to Cobb County, and on one of those dates, they watched a procession of buyers arrive at Stamps’ residence and leave with bags of marijuana in hand. On all three dates, Kenneth himself received “fronted” marijuana from Stamps and turned it over to police.

In addition to his accurate descriptions of the enterprise, police were able to verify many of the details provided by Kenneth. For example, Kenneth gave information about Stamps’ criminal record, which police checked and found to be correct. He gave accurate descriptions of Brannon’s physical appearance and vehicle, and he correctly stated that Stamps and Brannon spoke on the telephone. Although Kenneth directed police to a house in Cobb County that turned out not to be Davitte’s residence, the house was similar in appearance to Davitte’s and only one mile away.

Decided March 9, 2000

Reconsideration denied March 23, 2000

Daniel B. Kane, for appellant.

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

Not only had Kenneth given reliable information over the weeks leading up to the search in question, but he also accurately predicted the events of that day. Kenneth told police that Brannon would drive to Davitte’s house on April 27 to deliver more marijuana. Police staked out Davitte’s house and saw Brannon arrive there shortly after the Stampses. They also saw Brannon talk with Davitte and Stamps outside the house, then leave with a paper bag under his arm. Kenneth’s previous reliability, coupled with the independent verification by police of his predictions of Brannon’s behavior on the day of the search, provided probable cause for the search.

Contrary to Brannon’s assertion, it does not matter that the officer who ordered the stop of Brannon’s vehicle and executed the search had very little personal contact with Kenneth. The evidence showed that Kenneth spoke mainly with an officer from Carroll County, who in turn communicated with police from other counties working in a joint effort to investigate the marijuana distribution scheme. “[P]robable cause may rest upon the collective knowledge of the police when there has been communication [between] them, rather than solely on the information possessed by the arresting officer.”

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Taylor v. State, 235 Ga. App. 323, 324 (1) (509 SE2d 388) (1998).

       238 Ga. App. 720 (520 SE2d 239) (1999).

       For the sake of clarity, we will refer to Kenneth Stamps as “Kenneth” and to Joseph Stamps as “Stamps.”

       With the exception of the April 13 possession charge, the acquittals were based not on insufficient evidence, but on principles of merger.

       See OCGA §§ 16-14-3 (8); 16-14-4 (b); Brown v. State, 191 Ga. App. 76, 77 (1) (381 SE2d 101) (1989).

       Davitte made the same argument on appeal, and, .as here, we found it unnecessary to resolve the issue. Davitte, supra at 723 (1) (a).

       OCGA § 16-13-32.3 (a).

       See generally Hunt v. State, 196 Ga. App. 694, 695-696 (3) (396 SE2d 802) (1990) (discussing elements of OCGA § 16-13-32.3).

       See OCGA § 24-4-6.

       202 Ga. App. 689, 691 (2) (415 SE2d 492) (1992).

       185 Ga. App. 774, 778-779 (2) (b) (365 SE2d 889) (1988) (physical precedent only). We note that Kelleher is not binding authority and that the conviction in that case was reversed for a reason not relevant to this appeal.

       We find no evidence in the record of how the RICO claims against the Stampses were disposed. For the purpose of this appeal, we will assume that the Stampses were not convicted of RICO violations.

       See Smith v. State, 250 Ga. 264 (297 SE2d 273) (1982); Worthy v. State, 180 Ga. App. 506, 507 (1) (349 SE2d 529) (1986).

       OCGA § 16-14-11; see also Chancey v. State, 256 Ga. 415, 432-433 (6) (349 SE2d 717) (1986).

        Davitte, supra at 725 (2) (a).

       (Punctuation omitted.) Singleton v. State, 236 Ga. App. 438, 439 (1) (511 SE2d 541) (1999).

       See, e.g., Dupree v. State, 232 Ga. App. 573-574 (1) (502 SE2d 511) (1998) (accurate predictions of future behavior by confidential informant provided probable cause for warrantless search).

       (Punctuation omitted.) Id. (summarizing holding of Goodman v. State, 255 Ga. 226, 229 (13) (336 SE2d 757) (1985)).


text:
    A99A2373.
    GFA BUSINESS SOLUTIONS, INC. et al. v. GREENWAY INSURANCE AGENCY, INC. et al.
    (531 SE2d 134)
   Ruffin, Judge.

This case involves whether an insurance agency may be held liable for breach of contract and fraud if its manager agrees to procure insurance for a client but fails to obtain the policy and pockets a portion of the premiums. The trial court found that the insurance agency could not be held liable and granted summary judgment in its favor. As we find that the agency may be held liable for breach of contract, but not for fraud, we affirm in part and reverse in part.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the movant must show that there is no genuine issue of material fact and that the facts, viewed in the light most favorable to the nonmovant, warrant judgment as a matter of law. A defendant may accomplish this by demonstrating that the record contains insufficient evidence to create a jury issue on at least one essential element of the plaintiff’s case.

Viewed in the light most favorable to the nonmovant, the evidence shows that, in January 1995, Jimmy Selph started GFA Business Solutions, Inc., an employee leasing company. In late 1994, Selph contacted Glynn Greenway, the president and sole shareholder of Greenway Insurance Agency, Inc., about obtaining workers’ compensation insurance. Greenway, who did not actively manage Green-way Agency, directed Selph to Peter O’Malley, who did manage it and who would actually procure the policy.

Selph and O’Malley met to discuss premiums, and Selph agreed to obtain GFA’s insurance coverage through Greenway Agency. To this end, he gave O’Malley a check for approximately $7,000 as a down payment on the expected premium for the first year. Selph understood that, since his was a new company, it would be insured through the assigned risk pool.

Throughout 1995, GFA paid the agency additional premiums of approximately $50,000. Whenever GFA required a certificate to document its insurance coverage, Selph would contact O’Malley and would receive a certificate of insurance.

GFA continued to obtain its insurance coverage through Green-way Agency until 1997. Selph estimates that GFA paid more than $229,000 in premiums from 1995 through March 1997. In March 1997, however, Selph was contacted by an insurance investigator who informed him that the insurance certificates that Greenway Agency had provided were fraudulent and that GFA had no insurance coverage. Selph subsequently learned that O’Malley never obtained insurance but paid for any insurance claims out of Green-way Agency accounts. Greenway discovered that O’Malley had either used GFA premiums to pay actual claims or for his personal needs. Greenway also learned that O’Malley had substantial gambling debts and that he needed large sums of money. Because of O’Malley’s acts, Greenway estimates that the agency lost up to $1.2 million.

After Selph learned that GFA had no workers’ compensation insurance, he immediately obtained coverage from another agency. With respect to pending claims, however, GFA had to pay $7,200 from its own funds to obtain legal representation.

GFA sued both Greenway Agency and O’Malley for breach of contract, negligence, and fraud. Greenway Agency moved for summary judgment, arguing that it could not be held liable for O’Malley’s acts or omissions, and the trial court granted the motion. With respect to the contract claim, the trial court found that Greenway Agency could not be held liable for breach of contract because there was no insurance contract between it and GFA. As to the fraud claim, the trial court ruled that O’Malley’s acts were unauthorized and beyond the scope of his employment and that Greenway Agency could not be held liable as a matter of law.

1. GFA contends that the trial court erred in granting Greenway Agency’s motion for summary judgment on the contract claim. The trial court essentially found that no contract existed between GFA and Greenway Agency. But the reasoning employed by the trial court is flawed.

An insurance company clearly may be held liable for the fraud, misconduct, or negligence of an agent in an action for a breach of an insurance contract. Here, however, the contract is not an insurance contract. The contract, if any, is a contract to procure insurance between an insurance agency and its client. But we see no reason for applying a different rule for a contract to procure insurance. Whether it is an insurance company or an insurance agency, the principal “which made it possible in the first instance for the agent to perpetrate the fraud should suffer rather than the other innocent party.” Accordingly, contrary to the trial court’s ruling, GFA may sue Green-way Agency for breach of contract as long as there is evidence that the parties entered into such a contract and the contract was breached.

Here, O’Malley had actual authority to bind Greenway Agency to a contract to procure insurance. In his deposition testimony, Green-way admitted that O’Malley, as the manager of the company, was responsible for “oversee [ing] the entire operations of the agency.” In addition, the evidence shows that the parties entered into an oral agreement under which Greenway Agency would obtain workers’ compensation insurance for GFA. It is undisputed that, although GFA paid premiums to O’Malley, no such insurance was ever obtained. Finally, the record shows that GFA sustained damages as a result of O’Malley’s failure. Under these circumstances, GFA does have a cause of action against Greenway Agency for breach of contract, and the trial court erred in granting summary judgment in favor of Greenway Agency.

2. GFA contends that the trial court erred in granting summary judgment to Greenway Agency on its fraud claim. We disagree.

As a general rule, employers are liable only for the negligent or tortious acts of an employee that are committed within the scope of that employer’s business. If the employee steps aside from the employer’s business and commits an act entirely disconnected from his employment, the employee, but not the employer, is liable for any resulting injury to a third party. “[W]here the tortious conduct of the employee is personal to himself because it springs from purely personal motives, the employee is deemed to have departed from the scope of his employment and the master is not liable.”

Here, the record shows that O’Malley’s acts in accepting GFA’s premiums without obtaining insurance “were personal acts for his own benefit, involved no participation by [Greenway Agency], and were of no benefit to [Greenway Agency].” Moreover, there is no evidence that Greenway authorized or ratified O’Malley’s acts. As such, there is no basis for holding Greenway Agency liable. Accordingly, the trial court did not err in granting summary judgment to Green-way Agency on this issue.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Ellington, J, concur.

Decided March 10, 2000

Reconsiderations denied March 23, 2000

Gambrell & Stolz, Irwin W. Stolz, Jr., Robert G. Brazier, Seaton D. Purdom, Andersen, Davidson & Tate, Christopher R. Stovall, for appellants.

Harman, Owen, Saunders & Sweeney, Michael W. McElroy, Michael T. Thornton, Pamela Richards-Greenway, for appellees.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Id.

       GFA is the successor to FGA Business Solutions, another employee leasing company that is a party to this appeal. For clarity, we refer to the two companies collectively as GFA.

        Modern Woodmen of America v. Crumpton, 226 Ga. App. 567, 569 (487 SE2d 47) (1997).

        Atlanta Women's Club v. Washburne, 207 Ga. App. 3, 4 (427 SE2d 18) (1992).

       (Punctuation omitted.) Modern Woodmen, supra at 569-570.

       See Budget Rent-A-Car &c. v. Webb, 220 Ga. App. 278, 279 (1) (469 SE2d 712) (1996) (“ ‘[t]he elements of a right to recover for a breach of contract are the breach and the resultant damages to the party who has the right to complain about the contract being broken’ ”).

       OCGA § 51-2-2; Reynolds v. L & L Mgmt., 228 Ga. App. 611, 612-613 (1) (492 SE2d 347) (1997).

        Davis Gas Co. v. Powell, 140 Ga. App. 841, 843 (1) (232 SE2d 258) (1976).

        Modern Woodmen, supra at 569.

        Hobbs v. Principal Financial Group, 230 Ga. App. 410, 412 (497 SE2d 243) (1998).

        Sexton Bros. Tire Co. v. Southern Burglar Alarm Co. &c., 153 Ga. App. 413, 414-415 (265 SE2d 335) (1980).