author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A1862.
    BOHANNON v. THE STATE.
    (417 SE2d 679)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of burglary and kidnapping with bodily harm. Thereafter, no timely motion for new trial or notice of appeal was ever filed. Appellant brings this direct appeal from the denial of his extraordinary motion for new trial.

“Extraordinary motions for new trial are not favored. [Cit.] Such motions are contemplated for events that do not ordinarily occur in the transaction of human affairs. [Cit.]” Cade v. State, 107 Ga. App. 30 (1) (129 SE2d 405) (1962). “ ‘And such an extraordinary state of facts must have been unknown to the movant or his counsel at the time when an ordinary motion for a new trial could have been filed, and must have been impossible to ascertain by the exercise of proper diligence for that purpose.’ [Cits.]” Patterson v. State, 228 Ga. 389, 390-391 (2) (185 SE2d 762) (1971). Appellant’s extraordinary motion for new trial was based only on the general grounds and various evidentiary rulings made during the course of the trial. Obviously, these are matters which, in the exercise of proper diligence, appellant or his counsel could and should have discovered and raised in a timely filed ordinary motion for new trial. Gaddis v. State, 245 Ga. 200 (265 SE2d 275) (1980); Goodwin v. State, 240 Ga. 605 (242 SE2d 119) (1978); Bishop v. State, 117 Ga. App. 93 (2) (159 SE2d 477) (1968); Cade v. State, supra. Accordingly, assuming, without deciding, that we have jurisdiction over this direct appeal (but see Davis v. State, 182 Ga. App. 736 (356 SE2d 762) (1987)), the judgment must be affirmed. If appellant is to secure a direct review of those issues that could and should have been raised in a timely motion for new trial, he must secure a proper written order from the trial court granting him the right to file an out-of-time appeal. Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985).

If the dissent’s analysis were correct, neither a civil nor a criminal appellant would ever have to comply with the jurisdictional 30-day limitation established by OCGA § 5-6-38 (a). A civil or criminal appellant could simply file an extraordinary motion for new trial, asserting therein only issues that could and should have been raised in a timely motion for new trial, and then secure a direct appeal by filing a notice of appeal within 30 days of the denial of the extraordinary motion for new trial. Whatever else OCGA § 5-6-35 (a) (7) means, it does not purport to confer direct appellate jurisdiction to consider the merits of issues that could and should have been raised in a timely motion for new trial. The law is otherwise clear that an extraordinary motion for new trial is properly denied and will be affirmed on appeal if the motion raises only issues that could and should have been raised in a timely motion for new trial. Gaddis v. State, supra. The law is also otherwise clear as to the proper method by which a criminal appellant can secure a direct appellate review of issues that could and should have been raised in a timely motion for new trial. That method is to secure leave to file an out-of-time appeal by demonstrating that the lack of diligence was attributable to his counsel and not to himself. Cannon v. State, supra. It is that proper method which appellant in the instant case must follow. To hold, as the dissent suggests, would penalize neither civil nor criminal appellants for their own lack of diligence in pursuing their appellate rights and would effectively repeal the jurisdictional 30-day limitation established by OCGA § 5-6-38 (a).

Judgment affirmed.

Sognier, C. J., Birdsong, P. J., Pope, Andrews and Johnson, JJ., concur. McMurray, P. J., Beasley and Cooper, JJ., dissent.

Beasley, Judge,

dissenting.

I dissent because appellant is entitled to have the merits of his appeal ruled on. The procedure utilized in this case, while rarely used, demands it.

It is true that defendant could have simply sought permission to file an out-of-time appeal from the judgment and, if it was granted, come straight to this court. McAuliffe v. Rutledge, 231 Ga. 745, 746 (204 SE2d 141) (1974); Harper v. State, 154 Ga. App. 550, 551 (269 SE2d 56) (1980). Instead, he chose to first ask the trial court for a new trial.

This procedure invokes not only adjudication on questions of law but also, beyond that, the sound discretion of the trial court. For example, it can consider “principles of justice and equity.” OCGA § 5-5-20. It is expressly empowered to “exercise a sound discretion in granting or refusing new trials” in certain cases. OCGA § 5-5-21. With respect to non-statutory grounds, the trial court “must exercise a sound legal discretion in granting or refusing the same according to the provisions of the common law and practice of the courts.” OCGA § 5-5-25. Its extensive power to grant new trials is enlarged by the authority to grant a new trial even on its own motion. OCGA § 5-5-40 (h).

On the other hand, a direct appeal brings up only questions of law ruled upon by the lower court, as this court is “a court of review.” Ga. Const. 1983, Art. VI, Sec. V, Par. III. Sturdy v. State, 192 Ga. App. 71, 72 (383 SE2d 632) (1989); Jefferson v. State, 157 Ga. App. 324, 326 (2) (277 SE2d 317 (1981). The Court of Appeals does not have the discretion afforded to the court which witnessed the trial. Nor may this court consider matters such as a claim of ineffective assistance of counsel, unless ruled on below. Moore v. State, 176 Ga. App. 882, 883 (2) (339 SE2d 271) (1985).

These factors make a motion for new trial, albeit late, more desirable both to the interests of defendant, who obtains a broader opportunity for new trial, and judicial economy. The latter is frustrated when, for example, the claim of ineffective assistance of counsel is made for the first time on appeal and the case must be remanded for a hearing on the same, see Weems v. State, 196 Ga. App. 429, 431 (395 SE2d 863) (1990) (and Beasley, J., concurring in part and dissenting in part), or defendant must file a habeas corpus petition on that ground because he waived it in the court which held the trial. See Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991); Smith v. State, 192 Ga. App. 246, 247 (384 SE2d 451) (1989) (and Beasley, J., concurring specially).

We do have jurisdiction over this direct appeal. Defendant’s motion for new trial was filed beyond the 30-day period for a timely appeal, OCGA § 5-5-40 (a), so it automatically became an extraordinary motion by virtue of OCGA § 5-5-41 (b).

OCGA § 5-6-35 (a) (7) requires an application for permission to appeal from the denial of an extraordinary motion for new trial “when separate from an original appeal.” This case is not separate from the original appeal; it is incorporated with it. Defendant has not had a direct appeal yet, and his grounds for new trial indicate the grounds he desires to be considered on this, his first appeal. His enumerations of error are almost identical to the grounds asserted in his motion.

Davis v. State, 182 Ga. App. 736 (356 SE2d 762) (1987), the case cited in the majority opinion, was simply an appeal from a dismissal of an extraordinary motion for new trial based on newly discovered evidence. It was “separate from an original appeal” so of course required an application in this court, as required by OCGA § 5-6-35 (a).

Pitts v. State, 254 Ga. 298 (328 SE2d 732) (1985), cited in Davis, involved an appeal separate from the direct and original appeal. Pitts had already had a direct appeal, and the Supreme Court had affirmed his conviction. The case cited was thus his second appeal, and according to the statute, needed permission of the appellate court before he could proceed with it. What is contemplated is that a criminal defendant is entitled to only one appellate crack at a conviction as a matter of right.

The opinion in Martin v. State, 185 Ga. App. 145, 146 (1) (363 SE2d 765) (1987), which regards that case as not separate from the original appeal, does not decide otherwise. The situation in Ibietatorremendia v. State, 174 Ga. App. 786 (332 SE2d 20) (1985), is not described.

In McDonald v. State, 180 Ga. App. 713 (350 SE2d 581) (1986), the extraordinary motion for new trial “was filed and determined after the filing of his appeal from his trial and conviction. ...”

Doby v. State, 179 Ga. App. 285 (346 SE2d 89) (1986), held that appellant needed our discretionary permission because he already had a direct appeal in which this Court had affirmed his conviction. Appellant Bohannon has not had that.

In Crews v. State, 175 Ga. App. 300 (333 SE2d 176) (1985), the nature of the appeal made it separate from any direct appeal. Appellant was not seeking to appeal from his conviction for fleeing or attempting to elude but rather from the denial of the court to merge or dead docket that charge.

Unless this case is an instance of what is expressly excluded from OCGA § 5-6-35 (a) (7), how would there ever be an instance of the excluded class of cases? One would not have a timely direct appeal (where a notice of appeal is filed within 30 days) along with an extraordinary motion for new trial because the latter is what is filed after the 30 days. OCGA § 5-5-41.

Even in the situation where the motion for new trial is “extraordinary” for the sole reason that it is tardy, as here, there is still the condition that “some good reason must be shown why the motion was not made during [the 30-day] period, which reason shall be judged by the court.” OCGA § 5-5-41 (a). Defendant realized that and filed a motion “to allow filing of his [late] motion for new trial,” explaining why it was late. The motion was twice set for hearing. At the hearing on this motion, the court expressly said it granted permission for the filing of a motion for new trial and briefs. The day after the hearing the motion for new trial was filed and later amended to raise other than the general grounds.

Although there is no signed order allowing this motion for new trial after finding “some good reason” for it to be late, the trial court acted on the permission orally granted by setting a hearing on the (amended) motion and then ruling on it several months after the date for that hearing on whether it ought to grant a new trial. In denying the motion for new trial as amended, the court “considered the record . . . , the briefs and argument of counsel.” Defendant had filed a brief in support of the amended motion on the day set for the hearing.

Thus, this is not an appeal from a denial of the opportunity to file a late motion for new trial. It is an appeal from a denial of the amended motion for new trial on its merits.

When the trial court finds that an extraordinary motion for new trial is entertainable in that the tardiness is satisfactorily explained, the court can then consider the substance of the motion, which it did in this case. Excusing the tardiness renders the motion an ordinary one, so that the ruling on its substance as well as the judgment of conviction is directly appealable under OCGA § 5-6-38 (a). See Vroman v. Peeples, 173 Ga. App. 592 (327 SE2d 563) (1985).

Defendant filed a timely notice of appeal from the denial of the motion for new trial. His timely enumerations of error, supported by briefs, are properly before us for review. He does not complain that the court refused to entertain his late motion for new trial, which he would not do because the court allowed it. He complains that the court erred on the substantive grounds.

Yet the majority “affirms” a non-existent denial of the opportunity to file a late motion for new trial by stating that it is affirming the denial of the extraordinary motion. But it has not considered the grounds of that motion or the court’s rulings on them, and the posture of the case puts those matters before us.

There are nine enumerations of error, relating to sufficiency of the evidence, the introduction of evidence of similar transactions, and certain “character assassination” issues. It is error to affirm the denial of the motion for new trial without addressing those issues.

We should treat this case in the same way as we treated the current case of Henderson v. State, 203 Ga. App. 733 (417 SE2d 413) (1992). In April 1991, Henderson filed an extraordinary motion for new trial, “for good cause shown,” long after the 30 days from the judgment of July 1990. See OCGA § 5-5-41. The court granted permission to file a late motion for new trial. That motion was then filed, and the general grounds as well as other alleged trial errors were raised.

The court subsequently denied the motion for new trial and a direct appeal was taken within 30 days thereafter. It was from both the judgment and the denial of the motion, and thus was exempted from the discretionary appeal procedure. See OCGA § 5-6-35 (a) (7). Some of the grounds urged in support of the motion for new trial were raised again as enumerations of error. We considered the case as a timely direct appeal.

I am authorized to state that Judge Cooper joins in this dissent.

Decided March 13, 1992

Reconsideration denied April 3, 1992

Alden W. Snead, J. M. Raffauf, for appellant.

David McDade, District Attorney, for appellee.


source: Caselaw Access Project

author: Birdsong, Presiding Judge. Sognier, Chief Judge,

license: Public Domain

text:
    A91A1944.
    FLOYD et al. v. FIRST UNION NATIONAL BANK OF GEORGIA.
    (417 SE2d 725)
   Birdsong, Presiding Judge.

Thomas Floyd, Jr. and Cindy Smith, as co-executors of the Estate of Thomas Floyd, Sr., brought suit against First Union National Bank of Georgia for breach of contract by wrongful dishonor and conversion and seeking actual damages, punitive damages, and attorney fees. The complaint was filed December 12, 1988. First Union allowed the complaint to go into default; its answer being filed on January 27, 1989. This court upheld the trial court’s denial of its motion to open default. First Union Nat. Bank of Ga. v. Floyd, 198 Ga. App. 99 (400 SE2d 393). After First Union’s attempt to open default proved unsuccessful, this case proceeded to trial solely on the issue of damages. First Union filed pleadings and participated at the trial on damages. However, the trial court granted First Union’s motion to quash plaintiff’s subpoena for the production at trial of certain financial records of the bank for purposes of proving punitive damages; during trial the court granted First Union’s motion to prohibit plaintiffs from presenting any evidence regarding their claims for punitive damages and attorney fees. Thus, the case was tried before the jury with the sole damage issue being the amount of actual damages plaintiffs suffered because of the conversion and breach of contract. The jury returned a verdict in favor of plaintiffs in the amount of $25,000, and the trial court entered final judgment in that amount. The co-executors appealed. Held:

1. Appellants in effect contend the trial court erred by excluding all evidence supporting their claims for punitive damages and attorney fees. Appellants specifically prayed for both punitive damages and attorney fees, and their complaint demanded judgment on both those claims “in an amount to be determined at trial” rather than in a specific dollar amount. The trial court’s holding is based on the rationale that because appellants failed to attach a dollar figure to the punitive damages and attorney fees they demanded in their complaint, an award of any amount of money for those claims would exceed in amount that prayed for in contravention of OCGA § 9-11-54 (c)(1). For reasons hereinafter discussed, we cannot affirm the trial court’s holding.

OCGA § 9-11-54 (c) (1) pertinently provides that “[a] judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.” Appellants specifically prayed for both punitive damages and attorney fees in an amount to be determined at trial. Thus, the demand for judgment both as to punitive damages and attorney fees was “open-ended.” Accordingly, the case of Harbor Light Marina v. Ellis, 190 Ga. App. 389 (378 SE2d 746) is controlling. The pleading in this case does not conflict with the constraints of OCGA § 9-11-54 (c) (1). Harbor Light Marina, supra; compare West v. Nodvin, 196 Ga. App. 825, 832 (5) (397 SE2d 567) (an award of punitive damages in the amount of $76,000 did not exceed the amount prayed for in the demand for judgment, under the provisions of OCGA § 9-11-54 (c) (1), where the prayer was cast “ ‘in the amount of not less than $25,000.00’ ”) and Henry v. Sneiders, 490 F2d 315 (9th Cir.).

Moreover, in Ticor Constr. Co. v. Brown, 255 Ga 547 (340 SE2d 923), the Supreme Court upheld a default judgment for $12,000 compensatory damages even though the plaintiff sought only an unspecified amount of compensatory damages in its demand for judgment. While the issue in the case at bar was not specifically addressed in Ticor and while no transcript of the proceedings exists, the Supreme Court stated: “Where no transcript exists, we normally assume that the evidence amended the pleadings to conform to the judgment.” Id. at 548 (2). Thus, it is apparent that the Supreme Court was not oblivious to the nuances regarding the demand for damages in default judgment cases, yet affirmed the judgment without any express reservation that a fundamental unfairness may have occurred.

The pertinent pleadings in the cases relied upon by the dissent are distinguishable from the pleadings in the case and from the pleadings in both Harbor Light Marina, supra, and West v. Nodvin, supra. In particular, in Dempsey v. Ellington, 125 Ga. App. 707, 708 (188 SE2d 908), the pleading in addition to requesting the court to compel the buyer’s performance merely contained a general prayer ‘“[f]or such other and further relief as to the court appears necessary to do complete justice between the parties.’ ” The Dempsey case subsequently was placed on the default calendar and the jury ultimately returned a verdict for $5,000 in damages. The pleading on its face contains no express claim for monetary relief, and thus it is conceivable that a defendant, particularly one acting pro se, could be lulled into accepting default under the false assumption that no such award would be forthcoming. It was recognized in Betts v. First Ga. Bank, 177 Ga. App. 359 (339 SE2d 616), citing Orkin Exterminating Co. v Townsend, 136 Ga. App. 50, 53 (2) (220 SE2d 14), that the basis for the rule in CPA § 54 (c) (1) is that it would be fundamentally unfair to allow complainant, by its pleadings, to lull or mislead defendant into believing that only a certain type and dimension of relief was being sought and then, should the defendant attempt to limit the scope and size of the potential judgment against him by not appearing, allow the court to give a different type of relief or a larger damage award. As stated succinctly by Hardy Gregory, Jr., Ga. Civil Practice, § 7-1 (C) (1), the rule in CPA § 54 (c) (1) is a “rule of fairness. . . . [The defendant] should not be subjected to some greater judgment than that sought in the complaint, where he had no notice it would be sought nor any opportunity to defend against the greater amount.” (Emphasis supplied.) And, as the author further notes, “[t]he principle of no excess judgment in default situations is a shield, and not a sword.” Id. at 538. In the case at bar, the pleadings clearly placed defendant bank upon due notice that plaintiffs were, seeking an “open-ended” monetary award both for punitive damages and attorney fees. (Incidentally, pursuant to statute, a defendant may file a timely motion for more definite statement to clarify vague or ambiguous pleadings. OCGA § 9-11-12 (e). Once placed on due notice of an open-ended demand, it would appear that any further efforts to obtain a more definite and certain statement of the pleadings immediately could be requested by the defendant by way of an OCGA § 9-11-12 (e) motion.) Under these circumstances, no fair risk exists that defendant was lulled or misled to the point where it could not make an intelligent decision whether to let the case go into default. Moreover, in this case, First Union was given due notice of the jury trial on damages; it filed certain pleadings, entered an appearance, argued motions, presented evidence to the court, exercised its right of cross-examination, and argued to the jury.

Additionally, the cases pertinent to the issue under consideration do not support the essence of the dissent that because appellants did not specify the precise monetary amount of punitive damages in the demand in their complaint, any amount awarded appellants would exceed per force the amount for which prayed. To require such surgical precision of pleading serves no useful purpose, conflicts with general pleading practice (see generally OCGA § 9-11-8 (a) (2)), and tends to penalize plaintiffs unnecessarily rather than protecting per se defaulting defendants.

Appellee cites a purported decision of this court rendered in Phillips v. Pride, Case No. A90A1800, and later withdrawn, although an admission is made in its brief that having been withdrawn “this specific Georgia authority no longer exists.” Suffice it to say, this withdrawn decision is lacking in value as precedent and is not binding on lower courts within the meaning of Ga. Const, of 1983, Art. VI, Sec. V, Par. III. It is in effect an unreported case. “No unreported opinion shall be cited as a physical or binding precedent of the Court.” Court of Appeals Rule 37 (b).

As above discussed, the real purpose of CPA § 54 (c) (1) is to give due notice to defendants so they will not be lulled or misled in their decision to enter into default, and to maintain a default procedure which is efficient, effective and fundamentally fair to all parties. This purpose has been achieved in this case.

2. Appellants assert the trial court erred in granting defendant’s motions in limine and thereby prevented appellants/plaintiffs from presenting any evidence whatsoever to the jury in support of their claims for punitive damages. In view of our holding in Division 1 above, we find that the trial court did err as enumerated. Competent evidence is admissible when relevant to the issue of punitive damages. Cf. OCGA §§ 24-1-1 (1); 51-12-5.1 (d) (2); Privitera v. Addison, 190 Ga. App. 102, 105 (1) (378 SE2d 312) (punitive damages are appropriate for conversion as a tort).

3. Appellants assert the trial court erred in quashing their subpoena which sought production of defendant’s net worth information which was to be used in the assessment of punitive damages. We agree.

First Union’s argument at trial that punitive damages could not be collected in view of OCGA § 9-11-54 (c) (1) is without merit. See Division 1 above.

First Union’s argument that the subpoena should be quashed because evidence of net worth is not admissible in the assessment of punitive damages also is without merit. Under OCGA § 51-12-5.1 evidence of the financial circumstances of the defendant may be admissible. Hospital Auth. of Gwinnett County v. Jones, 259 Ga 759, 764, n. 13 (386 SE2d 120), vacated by the United States Supreme Court, judgment affirmed and reinstated on remand, 261 Ga. 613 (409 SE2d 501); Holman v. Burgess, 199 Ga. App. 61, 63 (404 SE2d 144). “Since evidence of the defendant’s financial circumstances ‘may’ be admissible under the 1987 statute after a jury has determined that punitive damages are to be awarded, it necessarily follows that evidence of the defendant’s financial condition ‘may’ be discoverable by the plaintiff in cases where punitive damages are sought. See generally OCGA § 9-11-26 (b) (1).” Id. at 63. Moreover, the subpoena duces tecum was not unduly intrusive or burdensome, being addressed to: “That designated officer of the First Union . . . having knowledge of the net worth of said . . . bank ... at end of the last accounting period and having records within his custody and control which show said net worth at the end of the last accounting period of said . . . bank. . . .”

Moreover, in their meticulously drafted complaint, appellants averred inter alia certain facts and mixed questions of fact and law, as follows, “defendant’s wrongful failure to allow [appellant] Smith ac cess to the safety deposit box in the name of Thomas M. Floyd constituted a wrongful conversion of the contents of the safety deposit box. . . As a result of defendant’s wilful misconduct in converting the contents of the safety deposit box, plaintiff is entitled to recover punitive damages from defendant.” (Emphasis supplied.) Because of its default, First Union admitted all material allegations of the complaint, except as to the amount of damages suffered by appellants (Whitby v. Maloy, 150 Ga. App. 575 (1) (258 SE2d 181); accord Jim Walter Homes v. Roberts, 196 Ga. App. 618, 620 (2) (396 SE2d 787); Market Ins. Corp. v. IHM, 192 Ga. App. 441, 443 (4) (385 SE2d 307), overruled in part on other grounds, Fowler v. Vineyard, 261 Ga. 454 (405 SE2d 678)); the only issue remaining in regard to punitive damages is the amount to be awarded. In this regard, wilful misconduct is a ground for the award of punitive damages. OCGA § 51-12-5.1 (b). Also, “punitive damages are appropriate for conversion as a tort.” Privitera, supra at 105; compare Colonial Pipeline Co. v. Brown, 258 Ga. 115 (365 SE2d 827). The complaint contained other material averment of facts likewise admitted by the default and relevant to this issue, such as but not limited to Smith’s presentment of and the bank’s election not to honor Thomas Marvin Floyd’s unrevoked general power of attorney to Smith authorizing her to recover, collect and receive all sums of money or accounts belonging to Floyd, which we elect not to herein recount. Thus, we find the well-pled averments, and the reasonable and unforced inferences to be drawn therefrom, in this case are distinguishable from Summerour v. Medlin, 48 Ga. App. 403 (172 SE 836) (a pre-Civil Practice Act case), and the other cases cited by appellee in support of its contention that the material facts admitted in this case by virtue of its default fail to support an award of punitive damages.

Likewise, the averments in the complaint sufficiently supported the claim for attorney fees. Compare Harbor Light Marina, supra at 390 (award of attorney fees in a default judgment is not improper). By virtue of a default the defendant, as a matter of law, put plaintiffs to unnecessary trouble and expense authorizing an award of attorney fees. Hartford Ins. Co. v. Mobley, 164 Ga. App. 363 (297 SE2d 312), citing Brannon Enterprises v. Deaton, 159 Ga. App. 685 (285 SE2d 58).

Additionally, by its motion in limine and by moving and receiving grant of its oral motion to preclude appellants from presenting evidence in the jury trial directed to punitive damages, appellee by its conduct and trial procedure aided in the non-presentment of evidence, other than the material averments admitted by the default judgment itself, supporting an award of punitive damages. It is well-established that a party cannot complain of a judgment, order, or ruling that his own procedure or conduct has aided in causing. Stephen son v. Wildwood Farms, 194 Ga. App. 728, 729 (2) (391 SE2d 706); accord West v. Nodvin, supra at 829 (3e). Thus, appellee cannot argue on appeal that evidence is lacking which appellee in large measure caused not to be admitted.

Appellee’s other arguments in support of the trial court’s ruling are equally without merit. For reasons above discussed, we find the trial court erred in granting defendants’ motion in limine and motion to quash. However, “ ‘ “[t]he whole judgment will not be set aside because of error as to a part thereof, where it can be determined from the record how much is erroneous.” ’ ” Scott v. Thompson, 193 Ga. App. 487, 488 (2) (388 SE2d 371), aff’d Thompson v. Scott, 260 Ga. 164 (393 SE2d 447). Accordingly, this case will be remanded for granting of a new trial solely on the issue of attorney fees and punitive damages; the judgment awarding appellants/plaintiffs’ actual damages is affirmed, there being no reversible error shown as to this award and the issue of actual damages being separable and distinct in the record from any issue of attorney fees and punitive damages. It is noted that the conversion claim is averred to have occurred in June 1988. OCGA § 51-12-5.1 is therefore applicable. Accordingly, care will be taken to follow the pertinent provisions of this Code section. See generally Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 656-657 (3) (402 SE2d 753).

Judgment affirmed in part and reversed in part with direction.

McMurray, P. J., Carley, P. J., Pope, Beasley, Cooper, Andrews and Johnson, JJ., concur. Sognier, C. J., dissents.

Sognier, Chief Judge,

dissenting.

I respectfully dissent. Although appellants in this case specifically prayed for both punitive damages and attorney fees, their complaint demanded judgment on both those claims only “in an amount to be determined at trial” rather than in a specific dollar amount. OCGA § 9-11-54 (c) (1) provides that “[a] judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.” (Emphasis supplied.) “[T]his court has recognized that the reason for [OCGA § 9-11-54 (c) (1)] is that it would be fundamentally unfair to have the complaint lead defendant to believe that only a certain type and dimension of relief was being sought and then, should he attempt to limit the scope and size of the potential judgment against him by not appearing or otherwise defaulting, allow the court to give a different type of relief or a larger damage award.” (Citation and punctuation omitted.) Betts v. First Ga. Bank, 177 Ga. App. 359, 360 (339 SE2d 616) (1985). A plaintiff’s relief in a judgment by default “ ‘is strictly limited in nature and degree to that specifically demanded in the complaint, even though the allegations or the proofs, or both, would justify[] other, additional, or greater relief, as under a prayer for general relief.’ [Cits.]” Dempsey v. Ellington, 125 Ga. App. 707, 708 (188 SE2d 908) (1972). Because appellants failed to specify the amount of relief they sought but instead demanded a general, unspecified amount for the punitive damages and attorney fees in their complaint, an award of any amount of money for those claims would “exceed in amount that prayed for” under OCGA § 9-11-54 (c) (1). Accordingly, I would affirm the trial court’s grant of First Union’s motion to prohibit appellants from presenting any evidence regarding these claims.

Decided March 20, 1992

Reconsideration denied April 3, 1992

James W. Wallis, Jr., Kenneth A. Smith, for appellants.

Troutman, Sanders, Lockerman & Ashmore, Herbert D. Shell-house, Wallace K. Askew, for appellee.


author: Pope, Judge.

text:
    A91A2064.
    ADAMS v. THE STATE.
    (418 SE2d 68)
   Pope, Judge.

In 1983, defendant/appellant Larry C. Adams was convicted of the offenses of voluntary manslaughter, aggravated assault upon a peace officer, robbery by force, and possession of a firearm by a convicted felon. This is the second appearance of this case before this court. In its first appearance, Adams v. State, 199 Ga. App. 541 (405 SE2d 537) (1991), we vacated the judgment of the trial court and remanded the case for the trial court to reconsider defendant’s motions for new trial and to remold his sentence. On remand, the trial court conducted a hearing on these motions and again denied the motions. Defendant appeals from that ruling.

1. Defendant first argues that the trial court erred in denying his motion for new trial because the evidence does not support the verdict of voluntary manslaughter. The jury was authorized to find that on August 1, 1982, Richmond County Deputy Sheriff John L. Francisco, Jr. responded to a call that there was a fight at a motel. When the deputy arrived at the motel, he observed the defendant strike a female. When the deputy informed defendant he was being placed under arrest, defendant violently resisted arrest. Captain John L. Francisco, Sr., the deputy’s father, responded to the deputy’s call for assistance. While they tried to place defendant under arrest, defendant seized the deputy’s revolver and shot Captain Francisco and then shot Deputy Francisco. Captain Francisco was hospitalized and underwent surgery for his injuries. On August 11, 1982, while recuperating from his injuries, he suffered a stroke and died five days later. Deputy Francisco recovered from his injuries.

Defendant, contends there was insufficient evidence to connect Francisco’s stroke and resulting death to his gunshot injury. We do not agree. While there was conflicting evidence on this question, the State presented the testimony of two doctors who testified that the gunshot and resulting surgery were contributing causes of the stroke which ultimately caused Francisco’s death. “In Wilson v. State, 190 Ga. 824, 829 (10 SE2d 861) (1940), we set out the following test for determining causation in homicide cases: ‘Where one inflicts an unlawful injury, such injury is to be accounted as the efficient, proximate cause of death, whenever it shall be made to appear, either that (1) the injury itself constituted the sole proximate cause of the death; or that (2) the injury directly and materially contributed to the happening of a subsequent accruing immediate cause of the death; or that (3) the injury materially accelerated the death, although proximately occasioned by a pre-existing cause.’ Under this test, there existed ample evidence to authorize the jury to convict [defendant of voluntary manslaughter].” James v. State, 250 Ga. 655, 656 (300 SE2d 492) (1983).

2. Defendant next argues that he is entitled to a new trial because at trial he was denied effective assistance of counsel. “ ‘To prove he has received ineffective assistance of counsel, “(t)he defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense.” [Cits.]’ ” Spivey v. State, 193 Ga. App. 127, 130 (3) (386 SE2d 868) (1989).

In support of this claim, defendant cites his trial counsel’s failure to object to the State’s alleged use of its peremptory strikes in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). This case, however, was tried more than two years before the Batson decision was issued. The controlling law on this issue at the time defendant was tried was Swain v. Alabama, 380 U. S. 202 (85 SC 824, 13 LE2d 759) (1965) overruled by Batson v. Kentucky, supra. In order to show a Swain violation, a defendant had to show that a particular group had been systematically and purposefully excluded from jury service over a period of time. Because one black juror had been seated in this case before the prosecution exhausted his strikes, no Swain violation could have been proven in this case.

As the Eleventh Circuit Court of Appeals recognized in Poole v. United States, 832 F2d 561, 565 (11th Cir. 1987), cert. denied, 488 U. S. 817 (109 SC 54, 102 LE2d 33) (1988), “[t]he problem with faulting the [defense counsel] for failing to raise a Batson objection at trial is that Batson had not been decided yet. The Supreme Court has held that ‘Batson v. Kentucky is an explicit and substantial break with prior precedent,’ Allen v. Hardy, [478] U. S. [255], 106 S. Ct. 2878, [2881] 92 LE2d 199 (1986). . . . Thus [defendant] cannot raise this claim in his collateral attack, and, in any event, the [defense counsel’s] performance was in no way ineffective by failing to raise a Bat-son objection.” As we held in Green v. State, 191 Ga. App. 807, 808 (383 SE2d 134) (1989), “[t]he Sixth Amendment affords [defendant] the right to representation by trial counsel who is reasonable effective, not representation by trial counsel who is prescient.” Defendant’s argument in this regard must fail.

Defendant also argues that trial counsel’s failure to pursue his original motion for new trial constitutes ineffective assistance of counsel. Unless the delay of a motion for new trial prejudices defendant’s presentation of appeal, he has suffered no due process violation. Brown v. State, 257 Ga. 277 (2) (e) (357 SE2d 590) (1987); Proffitt v. State, 181 Ga. App. 564 (3) (353 SE2d 61) (1987). Defendant’s motion for new trial was finally heard, and after remand from this court, defendant was given a second opportunity to present his arguments on motion for new trial; defendant’s present appeal is from denial of that motion. Defendant’s argument that this delay gives rise to an ineffective assistance of counsel claim must fail.

3. Defendant also argues that the trial court erred by failing to intercede and sua sponte raise the Batson issue. For the same reasons defendant’s ineffective assistance of counsel claim must fail due to his counsel’s failure to raise a Batson objection, this contention is also without merit. Defendant fails to cite any cases imposing a duty on the part of the trial court to raise such an issue at trial, and we are aware of no such duty. Whether to make such a challenge to the jury selection process is a trial strategy decision that should properly be made within the parameters of the attorney-client relationship. Furthermore, the trial court allowed defense counsel to perfect the record concerning how the State had chosen to use its peremptory strikes.

4. Defendant also seemingly argues that the Batson opinion must be applied retroactively in this case and defendant is entitled to a new trial because the jury selection process in his first trial violated Batson. Although the United States Supreme Court held in Allen v. Hardy, supra at 259-260 that Batson should not be applied retroactively in collateral challenges to a defendant’s appeal, in Griffith v. Kentucky, 479 U. S. 314 (107 SC 708, 93 LE2d 649) (1987) the Supreme Court held that Batson should be applied retroactively to direct appeals.

A Batson challenge, however, has never been raised in this case. Trial counsel for defendant perfected the record on how the State used its peremptory challenges during jury selection but insisted that he was not making a motion or objection to challenge the jury selection in this case. Defendant also failed to raise a Batson challenge in his motion for new trial, even though that motion was amended in 1991, well after the Supreme Court’s decisions in Batson and Griffith were issued. This court is a court for the correction of errors and we are limited to those grounds urged to the trial court; therefore, we cannot consider defendant’s contention raised for the first time on appeal. Bailey v. State, 198 Ga. App. 632 (1) (402 SE2d 363) (1991).

Decided March 10, 1992

Reconsideration denied April 3, 1992

O. L. Collins, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A91A2099.
    FIRST UNION NATIONAL BANK OF GEORGIA v. BIG JOHN'S AUTO SALES, INC. et al.
    (417 SE2d 416)
   Carley, Presiding Judge.

Appellant-plaintiff brought suit, seeking to recover against appellee-defendant Big John’s Auto Sales, Inc. for breach of contract and against appellee-defendant John F. Tansey III on his guaranty agreement. Appellees answered and each counterclaimed, alleging that appellant had violated both the Federal Truth In Lending Act (TILA) and the Georgia Motor Vehicle Sales Finance Act (MVSFA). The case was tried before a jury. In the main action, a verdict in favor of appellant against both appellees was returned. On the counterclaims, a verdict for $500 was returned in favor of only the corporate appellee, but a verdict for attorney’s fees was returned in favor of both appellees. Appellant appeals from the judgment that was entered by the trial court on the jury’s verdicts. In its sole enumeration, appellant urges that the jury’s verdict awarding attorney’s fees to appellees was not authorized and that the trial court erred, therefore, in entering judgment on that verdict.

1. It was clearly erroneous to enter judgment on the jury’s verdict awarding attorney’s fees to the individual appellee. There was no jury verdict returned in his favor on his counterclaim against appellant. Mayfield v. Ideal Enterprises, 157 Ga. App. 266, 268 (2) (277 SE2d 62) (1981).

2. The corporate appellee urges that the jury’s award of attorney’s fees was authorized pursuant to OCGA § 10-1-38 (c). That statute provides, in relevant part, that, “[i]n the case of a willful violation of [the MVSFA], the buyer in such transaction may recover from the person committing the violation (or may set off or counterclaim in any action by such person) . . . any attorney’s fees and court costs charged and paid with respect to such transaction. . . .”

On the verdict form, the jury was asked to indicate its finding as to whether there had been any “willful and intentional violation” on the part of appellant. By striking out this language on the verdict form, the jury obviously found that there had not been such a violation. Accordingly, the verdict shows, on its face, that there was no predicate for any recovery of attorney’s fees pursuant to OCGA § 10-1-38 (c).

Moreover, OCGA § 10-1-38 (c) would not authorize a recovery of attorney’s fees incurred by the corporate appellee in connection with the filing and maintenance of its counterclaim against appellant. That statute clearly authorizes a recovery of only those attorney’s fees previously charged by and paid to the seller. Thus, OCGA § 10-1-38 (c) permits a recoupment of attorney’s fees previously paid to a seller who has willfully violated the MVSFA, but it does not permit a recovery of any attorney’s fees incurred in litigating the seller’s willful violation of that statute.

3. The corporate appellee also urges that the award of attorney’s fees was authorized pursuant to the TILA. That statute provides, in relevant part, for the recovery of “a reasonable attorney’s fee as determined by the court.” 15 USC § 1640 (a) (3).

It is clear that the trial court did not undertake to award reasonable attorney’s fees pursuant to 15 USC § 1640 (a) (3). The judgment reflects, on its face, that the award of attorney’s fees was being entered by the trial court “pursuant to [the] jury verdict. . . .” (Emphasis supplied.) Accordingly, that award cannot be upheld as the trial court’s own award of attorney’s fees as would otherwise be authorized under the TILA. Compare Fleetwood Motor Homes of Pa. v. McGehee, 182 Ga. App. 151, 153 (2) (355 SE2d 73) (1987).

4. It is urged that the award of attorney’s fees was authorized under OCGA § 13-6-11 because appellant willfully breached its contract with the corporate appellee. OCGA § 13-6-11 provides, in relevant part, that the expenses of litigation may be recovered only “where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith in making the contract, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. ...”

The only willful breach of contract otherwise alleged in either the initial counterclaim or the subsequent pre-trial order is appellant’s violation of the MVSFA and the TILA. Appellant’s alleged willful violation of those statutes would not constitute a breach of any provision of its contract authorizing the corporate appellee to recover contractual damages. Such violations would constitute only a breach of appellant’s statutory obligations authorizing the corporate appellee to recover a civil penalty. See Vickery v. Mobile Home Indus., 171 Ga. App. 566, 567 (2) (320 SE2d 633) (1984); First Citizens Bank & Trust Co. of S. C. v. Owings, 151 Ga. App. 389, 390 (1) (259 SE2d 747) (1979) . Attorney’s fees pursuant to OCGA § 13-6-11 “are not recoverable against a defendant in a suit based upon a ‘statutory liability.’ [Cit.]” Bankers Ins. Co. v. Oliver, 106 Ga. App. 305, 308 (3) (126 SE2d 887) (1962). Accordingly, if attorney’s fees are to be recovered for violations of the MVSFA or the TILA, it is as a civil penalty pursuant to the specific authority of those statutes. To authorize a recovery of attorney’s fees as a separate element of damages pursuant to OCGA § 13-6-11, the corporate appellee must have had a viable independent counterclaim for appellant’s breach of the contractual obligations that were owed to the corporate appellee. See generally Beall v. F. H. H. Constr., 193 Ga. App. 544, 546 (4) (388 SE2d 342) (1989).

Since the record demonstrates, on its face, that the corporate appellee did not specifically plead a viable independent counterclaim for appellant’s breach of contract such as would otherwise authorize a recovery of attorney’s fees pursuant to OCGA § 13-6-11, the instant award of attorney’s fees cannot be upheld as authorized under that provision. See Spoon v. Herndon, 167 Ga. App. 794, 795 (2) (307 SE2d 693) (1983). Compare Ring v. Williams, 192 Ga. App. 329, 331 (3) (384 SE2d 914) (1989).

Moreover, even assuming that the allegations that appellant had willfully breached the contract by violating the MVSFA and the TILA were otherwise sufficient to allege a viable independent counterclaim authorizing a recovery of attorney’s fees as a separate element of damages pursuant to OCGA § 13-6-11, the award in the instant case would nevertheless be unauthorized. As noted, the jury found no “willful and intentional violation” on the part of appellant. Since the only predicate upon which the corporate appellee had sought attorney’s fees was found not to exist, the jury’s award of attorney’s fees pursuant to OCGA § 13-6-11 would be void. See Four Oaks Homes v. Smith, 153 Ga. App. 326, 327 (1) (265 SE2d 76) (1980).

5. Under OCGA § 13-6-11, there can be no recovery by the corporate appellee of attorney’s fees incurred in its defense of appellant’s main action. Hickman v. Frazier, 128 Ga. App. 552 (1) (197 SE2d 441) (1973).

6. The corporate appellee urges that appellant has waived any objection to the award of attorney’s fees by failing to object to the form of the verdict in the trial court. However, the objections to the award of attorney’s fees do not relate to the form of the verdict. See generally Rucker v. Camden Tel. &c. Co., 181 Ga. App. 504, 506 (353 SE2d 50) (1987). Appellant’s contention is that the actual award itself is improper as a matter of law. See Long v. Marion, 182 Ga. App. 361, 365 (5) (355 SE2d 711) (1987), aff’d 257 Ga. 431 (360 SE2d 255) (1987). Compare Ring v. Williams, supra at 331 (3). “The recover-ability of damages is . . . dependent upon the applicable, law and evidence. . . .” (Emphasis supplied.) Ring v. Williams, supra at 331 (3). Under the applicable law, the award of attorney’s fees in the instant case can not be upheld as authorized pursuant to the MVSFA, the TILA, or OCGA § 13-6-11.

Decided March 19, 1992

Reconsideration denied April 3, 1992

Glover & Davis, J. Littleton Glover, Jr., Michael E. Sumner, for appellant.

Albert B. Wallace, Stephen B. Wallace II, for appellees.

7. The judgment entered on the jury’s verdict awarding attorney’s fees to appellees is reversed. The judgment entered on the jury’s verdict for $500 on the corporate appellee’s counterclaim is unaffected by this opinion and is affirmed.

Judgment affirmed in part and reversed in part.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper, Andrews and Johnson, JJ., concur. Beasley, J., concurs in part and dissents in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur fully in Divisions 1, 2, 4, 5 and 6 but would not conclusively reverse with respect to Division 3 and as reiterated in Division 7.

Because the trial court misapprehended its authority on the issue of attorney fees under 15 USC § 1640 (a) (3) and did not fulfill its judicial duty in this regard, we should reverse and remand the case for this to be done rather than deprive appellee of the trial court’s consideration of this significant post-verdict issue. In Fleetwood Motor Homes of Pa. v. McGehee, 182 Ga. App. 151, 152 (2) (355 SE2d 73) (1987), the case cited in the majority opinion, the trial court had exercised it discretion.


author: Carley, Presiding Judge.

text:
    A91A2105.
    A91A2106.
    A91A2223.
    A91A2235.
    A91A2239.
    A91A2248.
    A91A2249.
    VIAU v. FRED DEAN, INC. et al. DEAN et al. v. VIAU. DEAN et al. v. WARREN. DEAN et al. v. VIAU. DEAN et al. v. PES. PES v. DEAN et al. DEAN et al. v. PES.
    (418 SE2d 604)
   Carley, Presiding Judge.

Fred Dean is the majority shareholder and president of Fred Dean, Inc. (FDI). While driving a vehicle belonging to FDI, Dean was involved in a collision with two other vehicles. The collision occurred at 2:00 a.m. and tests indicated that Dean’s blood-alcohol level was 0.168. Seeking to recover for injuries sustained in the collision, Brenda Warren, Kathleen Viau and Montica Pes brought suit against Dean and FDI. Dean and FDI answered and, after discovery, they filed motions for partial summary judgment addressing the viability of certain theories of recovery and the recoverability of punitive damages. The trial court’s rulings on these motions resulted in the filing of the instant seven separate appeals, which are hereby consolidated for appellate disposition in this single opinion.

Case Nos. A91A2105 and A91A2248

1. FDI’s liability was premised, in part, upon OCGA § 51-1-40 (b). That statute provides that one who “knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such . . . person when the sale, furnishing, or serving is the proximate cause of such injury or damage.” OCGA § 51-1-40 (b). The trial court granted summary judgment in favor of FDI as to its liability under this statute and, in these cases, Viau and Pes appeal from that ruling.

It is urged that a genuine issue of material fact remains as to FDI’s liability under OCGA § 51-1-40 (b) because, some six or seven hours before the collision, Dean had consumed alcohol on the business premises of FDI. The evidence does show that, between 6:30 p.m. and 8:00 p.m., Dean shared food and alcohol with three other FDI employees while on FDI’s business premises. However, this occurred after business hours and it was not in connection with any planned employment-related social event for which FDI purchased the food and alcohol. The food and alcohol were provided entirely by the other FDI employees. Under this evidence, it is clear that FDI neither sold nor served alcohol to Dean.

The evidence might authorize a finding that FDI, through Dean’s acquiescence and participation, furnished the premises upon which Dean consumed alcohol. However, OCGA § 51-1-40 (b) does not impose liability upon one who merely furnishes the premises upon which alcohol is consumed. It imposes liability only upon one who furnishes the alcohol itself. “ ‘Furnish’ is to ‘provide for use; to supply.’ A ‘furnisher’ is ‘one who furnishes or provides supplies of any kind.’ [Cit.] A ‘furnisher’ is ‘one who supplies or fits out.’ [Cit.] To furnish or supply necessarily carries with it the idea of ownership, property in, or dominion over the thing furnished by the one who furnishes.” Southern Express Co. v. State, 107 Ga. 670, 673-674 (33 SE 637) (1899). The uncontroverted evidence of record demonstrates that FDI did not furnish any alcohol to Dean. Compare Whelchel v. Laing Properties, 190 Ga. App. 182, 183 (1) (378 SE2d 478) (1989); Southern Express Co. v. State, 1 Ga. App. 700 (3) (58 SE 67) (1907). The alcohol was furnished to Dean by the FDI employees who shared their alcohol with him. It follows that the trial court correctly granted summary judgment in favor of FDI as to any liability pursuant to OCGA § 51-1-40 (b).

Case Nos. A91A2106, A91A2223, A91A2235, A91A2239 and A91A2249

2. FDI’s liability was also premised, in part, upon respondeat superior. FDI appeals from the denial of its motion for summary judgment as to this theory of its liability.

“ ‘ “Where a vehicle is involved in a collision, and it is shown that the automobile is owned by a person, and that the operator of the vehicle is in the employment of that person, a presumption arises that the employee was in the scope of his employment at the time of the collision, and the burden is then on the defendant employer to show otherwise.” . ..’ [Cit.] ‘ “(T)he presumption that the servant is serving his master within the scope of his employment may, unless supported and corroborated by other evidence, be overcome by uncontradicted evidence.” (Cit.)’ [Cit.]” Curtis, Inc. v. Kelley, 167 Ga. App. 118, 119 (305 SE2d 828) (1983). See also Divecchio v. Mead Corp., 184 Ga. App. 447, 448 (2) (361 SE2d 850) (1987).

The uncontroverted evidence shows that Dean left FDI’s business premises no later than 11:00 p.m. and returned at 2:00 a.m. only to lock up. After doing so, he left for home, intending to stop and get something to eat on the way. Shortly after leaving FDI’s business premises, however, the collision occurred. On this evidence, the presumption that Dean was in the scope of his employment at the time of the collision has been overcome. “ ‘ “ ‘As a general rule, a servant in going to ánd from his work[, even in a company car,] acts only for his own purposes and not for those of his employer, and consequently the employer is not to be held liable for an injury occasioned while the servant is en route to or from his work. (Cits.)’ ” ’ [Cit.]” Healthdyne, Inc. v. Odom, 173 Ga. App. 184 (1) (325 SE2d 847) (1984). At the time of the collision, Dean had completed any tasks within “the scope of his employment and [was] not in the prosecution of [FDI’s] business but on a purely personal venture. The additional [fact] that he kept the vehicle 24 hours a day . . . [is] at most [an] inconclusive [inference] which did not contradict the direct evidence. . . .” Melton v. Gilleland & Sons, Inc., 176 Ga. App. 390, 391 (2) (336 SE2d 315) (1985).

It follows that the trial court erred in denying FDI’s motion for summary judgment as to its vicarious liability for Dean’s alleged negligence. Coffee Chrysler-Plymouth-Dodge v. Nasworthy, 198 Ga. App. 757, 758 (403 SE2d 453) (1991); Fred A. York, Inc. v. Moss, 176 Ga. App. 350 (335 SE2d 618) (1985); Curtis, Inc. v. Kelley, supra.

3. FDI appeals the denial of its motion for summary judgment as to its liability under a negligent entrustment theory.

“ ‘Under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness. (Cits.)’ [Cit.]” (Emphasis in original.) Worthen v. Whitehead, 196 Ga. App. 678 (396 SE2d 595) (1990). Thus, liability under this theory, is premised upon both the exercise of the power to entrust an instrumentality and actual knowledge of the incompetency of the one to whom the instrumentality is entrusted. Mere exercise of the power to entrust an instrumentality without the actual knowledge of incompetency or mere possession of the requisite actual knowledge without the requisite power to entrust will not support a finding of liability under this theory.

There is evidence that Dean’s wife, who held a corporate position in FDI, had actual knowledge of Dean’s alleged incompetency to be entrusted with a vehicle. However, the vehicle that Dean was operating at the time of the collision did not belong to his wife. It was owned by FDI. Under the undisputed evidence of record, the only officer or agent of FDI who had both the actual knowledge of Dean’s alleged incompetency and the power to entrust or withhold use of the FDI vehicle was Dean himself. A corporation can act only through its officers and agents. Dean’s actual knowledge of his own alleged incompetency cannot be imputed to FDI. His “private interest in driving an automobile outweighed his duty as a representative of the corporation to ensure that an incompetent driver did not operate the corporation’s automobile.” Keenan v. Hill, 190 Ga. App. 108, 111 (5) (378 SE2d 344) (1989). Assuming, without deciding, that the actual knowledge of Dean’s wife could be imputed to FDI, she nevertheless had no “right to permit and prohibit [his] use of [FDI’s] truck. . . .” Jones v. Cloud, 119 Ga. App. 697, 702 (1b) (168 SE2d 598) (1969). “A corporation is bound by knowledge of an officer or agent when the knowledge pertains to matters within the scope of the officer’s or agent’s duties.” Keenan v. Hill, supra at 111 (5). Control over FDI’s vehicle was not a matter which was within the scope of Dean’s wife’s duties to FDI.

Since it is undisputed that Dean was not entrusted with the vehicle by an officer or agent of FDI whose actual knowledge of his incompetency was imputable to FDI, it follows that the trial court erred in denying FDI’s motion for summary judgment as to its liability under a negligent entrustment theory. Acting on personal, but not imputable, actual knowledge of his own alleged incompetency, Dean entrusted FDI’s vehicle to himself. Under these circumstances, he can be found personally liable for any injuries that his negligent operation of FDI’s vehicle may have caused. He was, however, “an ‘opposite party’ [from FDI] insofar as the operation of [FDI’s] automobile was concerned” and FDI cannot be found liable for negligently entrusting the vehicle to him. Keenan v. Hill, supra at 111 (5).

4. Dean and FDI both sought summary judgment as to the recoverability of punitive damages. The denial of these motions is enumerated as error.

For the reasons discussed in Divisions 1, 2 and 3, FDI has no liability for the injuries resulting from the collision. Accordingly, there can be no recovery of punitive damages as against FDI. Beverly v. Observer Publishing Co., 88 Ga. App. 490 (4) (77 SE2d 80) (1953).

With regard to Dean, “ ‘(e)vidence that [his] driving under the influence of alcohol caused the plaintifffs’] injuries is evidence of wilful misconduct, wantonness, and that entire want of care which raises the presumption of conscious indifference to the consequences.’ ” Currie v. Haney, 183 Ga. App. 506, 507 (359 SE2d 350) (1987). Accordingly, punitive damages are recoverable as against Dean pursuant to OCGA § 51-12-5.1 (b). “[D]riving under the influence of alcohol so as to cause personal injuries to another is an aggravating circumstance in the act which would authorize the jury to give punitive damages to deter the wrongdoer from repeating the act.” Moore v. Thompson, 255 Ga. 236, 237 (336 SE2d 749) (1985).

Dean asserts, however, that the maximum extent of his liability for punitive damages to each plaintiff is $250,000. OCGA § 51-12-5.1 (g) does provide for a general limitation of $250,000 on the recovery of punitive damages. However, “if it is found that the defendant acted, or failed to act, with the specific intent to cause harm, there shall be no limitation regarding the amount which may be awarded as punitive damages.” OCGA § 51-12-5.1 (f). Accordingly, the issue to be resolved is whether a genuine issue of material fact remains as to Dean’s specific intent to commit harm.

Decided March 17, 1992

Reconsiderations denied April 3, 1992

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., Charles F. Overby, Peter J. Daughtery, for Viau.

Buchanan & Land, Clay D. Land, Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, for FDI etc.

Douglas L. Breault, for Warren.

Agnew & Schlam, G. Michael Agnew, Paul E. Schlam, for Pes.

Dean intended to drink, he intended to drive after he had done so and, while driving, he intended to exceed the speed limit. This would certainly be evidence of his general conscious indifference to the consequences of driving while intoxicated and would certainly authorize a finding that he was liable for punitive damages. However, it would not be evidence of his specific intent that driving in his intoxicated condition cause harm. “ ‘ “ ‘Intent’ is defined in Restatement, Torts 2d, § 8A (1965) ‘to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.’ ‘On the other hand, the mere knowledge and appreciation of a risk, short of a substantial certainty, is not the equivalent of intent.’ (Cit.)” (Cit.)’ [Cit.]” Eubanks v. Nationwide &c. Ins. Co., 195 Ga. App. 359, 364 (4) (393 SE2d 452) (1990).

Dean admitted his intent to drink and drive but denied that, in doing so, he had any specific intent to cause harm. There is no evidence which would authorize a finding that, contrary to Dean’s denial, he had a specific intent that his driving while intoxicated would cause harm. The uncontradicted evidence shows that all injuries resulting from Dean’s intoxication were caused by his conscious indifference to the consequences of driving while intoxicated, not by his specific intent to inflict those injuries. It follows, therefore, that the trial court erred in failing to grant summary judgment in favor of Dean as to his liability to each plaintiff for any punitive damages in excess of $250,000.

Judgments affirmed in Case Nos. A91A2105 and A91A2248. Judgments reversed in Case Nos. A91A2106, A91A2223, A91A2235, A91A2239 and A91A2249.

Johnson, J., concurs. Beasley, J., concurs in Divisions 1, 2, 4 and in the judgment.


author: Birdsong, Presiding Judge.

text:
    A91A1637.
    SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA v. VIAU et al.
    (418 SE2d 608)
   Birdsong, Presiding Judge.

Southern Guaranty appeals from the grant of summary judgment in favor of Kathleen Wallace Viau, Brenda Warren, Montica Pes, Michelle Childs, Fred Dean, Inc. (“FDI”), and Fred Dean, defendants in a declaratory judgment action. Southern Guaranty sought guidance on its obligations under a multi-peril insurance policy and endorsements issued to FDI which also insured Fred Dean. The other appellants were injured in a collision with a vehicle driven by Fred Dean and owned by FDI.

Viau, Pes, and Warren filed suit against Fred Dean and FDI. According to the allegations in their complaints, Fred Dean was under the influence of alcohol at the time of the collision because of alcoholic beverages served to him by employees of FDI during a barbecue at FDI.

Fred Dean and FDI are also insured under a $500,000 single limit automobile insurance policy issued by Southern Guaranty. Southern Guaranty accepted coverage on this policy and interpleaded the policy limits into the court. At the same time, however, Southern Guaranty asked the trial court to construe its obligations under the multiperil policy.

Southern Guaranty claims uncertainty about its obligations under the policy because it claimed two provisions in the policy excluded coverage for these losses.

Southern Guaranty contends that an automobile exclusion relieves it of responsibility under the policy because the damages in this case arose from the operation of a motor vehicle. Appellees, however, contend that notwithstanding any other exclusion, a Host Liquor Law Liability Coverage Endorsement provides coverage under the policy. Both sides moved for summary judgment, and the trial court granted appellees’ motion and denied Southern Guaranty’s. Southern Guaranty now contends the trial court erred in doing so and also erred by denying its motion to stay the proceedings pending the outcome of the declaratory judgment action. Held:

Because the trial court refused to stay the proceedings, there has been a resolution of appellees’ claims against FDI which could give rise to coverage under the multi-peril policy. In seven related appeals on the merits of the liability claims and involving the parties in this appeal, except for Southern Guaranty (see 203 Ga. App. 801 (418 SE2d 604) (1992)), this court affirmed the trial court’s grant of summary judgment to FDI, or otherwise resolved in favor of FDI, all claims against FDI under the theories for imposing liability advanced by Viau, Warren, Pes, and Childs. Accordingly, Southern Guaranty has no potential obligations under the multi-peril policy on these claims.

Decided March 19, 1992

Reconsideration denied April 2, 1992

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Mark A. Barber, for appellant.

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., Charles F. Overby, Peter J. Daughtery, for appellees.

For errors to require reversal they must be harmful, and even if the trial court erred, Southern Guaranty can suffer no prejudice because FDI has now prevailed on the merits. As this court does not provide advisory opinions or attempt to correct errors without regard to prejudice, the issues Southern Guaranty asserts in this appeal are now moot. Merrill v. Eiberger, 198 Ga. App. 806 (403 SE2d 91). Therefore, the appeal must be dismissed. OCGA § 5-6-48 (b).

Appeal dismissed.

Pope and Cooper, JJ., concur.