author: Birdsong, Judge.

text:
    A90A0168, A90A0169.
    DeKALB COUNTY v. ORWIG; and vice versa.
    (395 SE2d 824)
   Birdsong, Judge.

At the trial of this case, the jury found appellant DeKalb County negligently failed to discover and remove an obstruction placed by a third party (Georgia Power) in its main sewer line after the obstruction caused 3,000 gallons of raw sewage, including excrement, to back up and flood cross-appellant Orwig’s home. The evidence admitted at this trial authorized a finding that despite a county department supervisor’s early opinion that the fault was in the county’s main line; and despite the abnormal quantity of raw sewage present, so deep in places that a county supervisor declined to enter the house fully to investigate for fear of ruining his boots; and despite plaintiff’s expert’s insistence that the fault was not in plaintiff’s own sewage line, the county insisted to plaintiff that the problem was in her own plumbing system.

Three weeks later the plaintiff’s home was again flooded by large amounts of raw sewage. Thereafter, the county inserted a camera into the main sewage line and discovered a metal grounding rod from a nearby power pole had been driven (by Georgia Power) directly into the center of the main sewer line, on plaintiff’s property a few feet downstream from the intersection of the main sewer line and her lateral line. The county then removed this obstruction.

The county defended its failure to discover and remove the rod after the first backup by saying that during its emergency crew’s investigation of the first incident while the sewage was still backing up into plaintiff’s home, the crew and supervisors diligently checked the manhole above plaintiff’s property and the manhole below plaintiff’s property and, with the use of dye, found the water sewage running freely. However, plaintiff’s expert determined and testified that the reason the main sewer line was running freely at that time was that the enormous quantity of obstructed sewage had been sucked up into plaintiff’s line, so that naturally there was no sewage blockage to observe on that occasion; and the jury by its verdict apparently determined that the county crew should have considered this fact or possibility and with ordinary care could have discovered the presence of the obstructing metal rod on the occasion of the first sewage backup.

There was evidence that plaintiff spent in excess of $40,000 for the repair and cleaning of her home and furnishings and had expended all her retirement savings and suffered much distress. Additionally, the trial court disallowed evidence that plaintiff had received $30,000 from Georgia Power on grounds that apportionment is inappropriate since Georgia Power and the county would not be jointly and severally liable for creation of a nuisance (Gilson v. Mitchell, 131 Ga. App. 321, 328-329 (205 SE2d 421)), and that the new collateral source rule allowing evidence of third-party payments was not in force when plaintiff’s cause of action arose, citing Bennett v. Haley, 132 Ga. App. 512 (208 SE2d 302); and see Polito v. Holland, 258 Ga. 54 (5) (365 SE2d 273).

These appeals involve serious, obfuscatory attacks upon the imposition on the county of any liability. According to some decisions of the Supreme Court, unless a county is relieved of sovereign immunity by the maintaining of liability insurance (Ward v. Bulloch County, 258 Ga. 92 (365 SE2d 440)), such county may be liable under Duffield v. DeKalb County, 242 Ga. 432 (249 SE2d 235) et al., for damages for maintenance of a nuisance, only upon the basis of an “inverse condemnation,” defined as consequential damages to property “because of public improvements,” or in connection with a project for public improvement (Fulton County v. Baranan, 240 Ga. 837, 838 (242 SE2d 617)). And, “when the nuisance does not amount to a taking for public purposes the county is not liable.” Miree v. United States, 242 Ga. 126, 134 (2) (249 SE2d 573). See also Williams v. Ga. Power Co., 233 Ga. 517, 519 (212 SE2d 348), involving the alleged maintenance by a county of a nuisance whereby plaintiff’s mother, driving down a boat ramp which appeared to be a county road, drowned in her car: “ ‘(W)hile under the constitution, a county is held liable for taking or damaging private property for public use . . . and under statutes it is made liable to suits for torts on account of personal injuries caused by defects in bridges over its public highways . . . there is no constitutional or statutory provision which can be taken to render a county liable for a tort on account of personal injuries arising from a defect in a highway constructed or repaired by the county . . .’ Purser v. Dodge County, 188 Ga. 250, 252 (3 SE2d 574). ... The [plaintiffs] argue, however, that the county is liable in this case for the maintenance of a nuisance and relies on the cases of Nalley v. Carroll County, 135 Ga. 835 (70 SE 788); DeKalb County v. McFarland, 223 Ga. 196 (154 SE2d 203) and Town of Fort Oglethorpe v. Phillips, 224 Ga. 834 (165 SE2d 141). There is no merit in this contention. The Nalley and McFarland cases involved nuisances which amounted to takings of property by the counties without paying the owners compensation. The Phillips case involved a municipality and not a county.” (Emphasis supplied.) See also Reid v. Gwinnett County, 242 Ga. 88, 89 (249 SE2d 559), which holds under the same principles of inverse condemnation that a county is liable for damage to a landowner’s property “because of public improvements.”

Such decisions conclude, therefore, that damages recoverable in such a case are “a substitution for the damages recoverable in a condemnation action [and] there is no constitutional or statutory authority for the recovery of punitive damages against a county” (Fulton County v. Baranan, supra at 838), or any other damages other than damage to property, as in a condemnation case. See Wilmoth v. Henry County, 251 Ga. 643 (309 SE2d 126).

Upon those cases, the defendant DeKalb County contends inter alia that it cannot be liable at all because its operation and maintenance of the sewer main, as a nuisance or otherwise, did not amount to a taking of plaintiff’s property for public purpose, and hence was not an “inverse condemnation.” Also upon those cases, the trial court (although allowing the suit for nuisance) disallowed damages to plaintiff for pain and suffering and emotional distress, because such injuries are not compensable in condemnation cases. Held:

1. This case is controlled by the facts and latest pronouncements in Fulton County v. Wheaton, 252 Ga. 49, 50 (310 SE2d 910) where it was held that “[t]he failure of a county adequately to maintain a culvert, resulting in property damage from flooding, can constitute a nuisance. DeKalb County v. McFarland, [supra]. . . . Liability of a [government entity] cannot arise solely from its approval of construction projects which increase surface water runoff. Rather, it is the county’s failure, to maintain properly the culvert, resulting in a nuisance, which creates its liability. Cf. City of Columbus v. Myszka, 246 Ga. 571(272 SE2d 302). . .

The court in Fulton County v. Wheaton at 50-51 held further: “ ‘In a continuing abatable nuisance case, the plaintiff is not limited to a recovery of rental value or market value; rather he may recover any special damages whether the injury is of a temporary or a permanent nature.’ City of Columbus v. Myszka, [supra] at 573.” (Emphasis supplied.)

It thus appears that the rule allowing county liability only for “inverse condemnation,” which is a “taking for public purpose,” evolved judicially and perhaps fictitiously as the sole exception to sovereign immunity, under the vestment of condemnation laws, there being no other means of holding the county liable. See Georgia Constitution, Art. I, Sec. II, Par. IX. The early cases extrapolated the theory of eminent domain (Art. I, Sec. IX, Par. V) to include liability for a “nuisance” which in those cases did, as it happened, occur as a result of some public improvement or in connection with some public project. Since they created an exception to constitutional law, the language of those cases was for a time interpreted as allowing liability only for a nuisance created by or amounting to a “taking for public purpose.” But, the Supreme Court in Fulton County v. Wheaton has recognized implicitly that the concept of allowing liability only where there is a “taking for public purpose,” although tailored to the first such cases, is an artificial distinction, insofar as the cases have allowed recovery for and special damages for nuisance which is not an “inverse condemnation,” i.e., is not a taking for public purpose.

The fact such pronouncements involved a municipality rather than a county has been explained in Miree v. United States, supra; compare with Barfield v. Macon County, 109 Ga. 386, 387(34 SE 596). But the earliest analysis, Smith v. Floyd County, 85 Ga. 420 (11 SE 850), concluded that as to the principles of loss of immunity such distinction between county and municipality is not valid.

Moreover, as noted above, the Supreme Court in Fulton County v. Wheaton, supra, has recognized a lack of real distinction between the relative postures of city and county with respect to responsibility for maintaining a nuisance; and specifically stated that a county’s liability does not “arise solely” from damages caused by a public taking, but can arise from “[t]he failure . . . adequately to maintain a culvert, resulting in property damage. ...” (Emphasis supplied.) Id. at 50.

Indeed, the Court of Appeals, anticipating this evolution, held in Ingram v. Baldwin County, 149 Ga. App. 422-423 (254 SE2d 429) that “[l]awsuits involving taking or damaging of property under [condemnation laws] may be maintained against counties. Baranan, [supra]. While the power to construct a sewer and drainage system is a governmental function, a county cannot create and maintain such a system as a nuisance which damages private property without subjecting itself to civil liability. [Cit.]” (Emphasis supplied.)

We conclude from Ingram and upon the resolving factors of Fulton County v. Wheaton, supra, that a county may be liable in a civil action for the maintaining of a nuisance upon the requisite proof of failure to properly maintain public works, without regard to whether such act is incidental to a taking for public purpose or public improvements; that is without the necessity to prove “inverse condemnation.”

2. The question whether the county may be liable only for damages as in a condemnation case is thus settled. According to Fulton County v. Wheaton, and see Smith v. Floyd County, supra, the rule exposing a city to liability for “any special damages” applies likewise to the county: “ ‘In a continuing abatable nuisance case, the plaintiff . . . may recover any special damages whether the injury is of a temporary or a permanent nature.’ ” City of Columbus v. Myszka, 246 Ga. at 573 [272 SE2d 302].” Fulton County v. Wheaton at 51. See OCGA § 51-12-3 (b).

Damages for mental distress may be recovered without proof of physical injury, where there is evidence of a reckless disregard for the rights of others or wanton disregard of consequences which may be equivalent to an intentional tort. Hamilton v. Powell, Goldstein &c., 252 Ga. 149, 150 (311 SE2d 818). Moreover, in Westview Cemetery v. Blanchard, 234 Ga. 540, 543 (216 SE2d 776), the Supreme Court held: “Where there is a physical injury or pecuniary loss, compensatory damages include recovery for accompanying ‘mental pain and suffering’ even though the tortious conduct complained of is merely negligent.’ ” See also Montega Corp. v. Hazelrigs, 229 Ga. 126 (189 SE2d 421). Compare Chapman v. Western Union Tel. Co., 88 Ga. 763 (15 SE 901).

3. Appellant county’s argument that attorney fees cannot be recovered by Orwig because damages are available only as in condemnation cases, is likewise without merit; it was error to exclude such attorney fee damages from recovery as may be otherwise properly proved and allowed, inasmuch as this case is not governed by condemnation law. Fulton County v. Wheaton, supra.

All of this is a matter of proof for the jury under appropriate instructions. The trial court did not err in submitting the case to the jury on the question of the county’s maintenance of an abatable nuisance, but erred in refusing to allow the jury to consider the question of an award of damages for mental pain and suffering or emotional distress and attorney fees. This point of error alone subsumes the entire case; therefore, the general verdict must be reversed and new trial granted.

4. In Ingram v. Baldwin County, supra at 422-423, this court held: “[A] single instance of backup of sewage into a private home would not be sufficient to create a nuisance for which liability would attach. [Cit.] ‘The whole idea of nuisance is that of either a continuous or regularly repetitious act or condition which causes the hurt, inconvenience or injury. ... A single isolated occurrence or act, which if regularly repeated would constitute a nuisance, is not a nuisance until it is regularly repeated.’ [Cit.]”

The trial court erred in failing to charge the jury properly on this fact: that the county, which did not put the metal rod obstruction in its main sewer line, could not be liable for failure to maintain its sewer system under a nuisance theory (or otherwise) unless and until it had notice of the problem, which apparently first announced itself here in the form of the backup of thousands of gallons of raw sewage in Mrs. Orwig’s home on the first occasion.

“[Jjoint participants in the creation of a nuisance are not jointly and severally liable for the full total of plaintiff’s damages, but only for their individual parts.” Gilson v. Mitchell, supra at 328. That statement refers to separate and divisible injuries in the creation and maintenance of a nuisance involving two or more participants. Id. pp. 324-325. DeKalb County did not put the metal rod obstruction in its sewer; Georgia Power did. Thus if the county had no notice of the defect in its sewer until after the first sewage flooding of Mrs. Orwig’s home, the county cannot be liable for having caused that incident. The county can be liable only for not having abated the nuisance; that is, it is liable only for the second sewage backup. Ingram, supra.

The trial court did not adequately instruct the jury on these facts and principles, but only charged that it should award Mrs. Orwig “the amount of damages caused by DeKalb County.” The jury had no guidance as to how, or why, to consider only .the county’s liability for the second backup, as being discreetly different from the damages caused by the first backup. On retrial, the trial court should tailor the jury charge to the evidence in the case, consistent with what is said here.

5. DeKalb County complains that the trial court, granting plaintiff’s motion in limine, would not allow evidence that Georgia Power had paid Mrs. Orwig $30,000 in exchange for a release of liability. Further, the county asserts that the holding in Gilson, supra, is incorrect, and that the release of Georgia Power, as a joint tortfeasor, operated as a release of the county. The Gilson analysis is correct, especially in this case, for the two creators of this continuing nuisance were not joint tortfeasors, but were independent actors, each liable only for such portion of the harm as its contribution to the harm bears to the total damage. The independent acts would seem easy enough to separate. Georgia Power caused the first sewage backup by driving a metal rod into the sewer; the county may be liable (and this jury so found) for the damages arising out of the second backup, which was a nuisance unabated. In these circumstances as a matter of fact, the release of Georgia Power for its liability did not operate to release the county for its own.

Accordingly, there was no reason, and it would have been error, to admit evidence of Georgia Power’s payment for purposes of apportioning what was apparently clearly separate and did not constitute multiple satisfactions for a single injury. Gilson at 351; see Posey v. Med. Center-West, 257 Ga. 55, 65 (354 SE2d 417); Thompson v. Milam, 115 Ga. App. 396, 397 (154 SE2d 721).

Neither was the Georgia Power payment admissible under the general rule of OCGA § 51-12-1 (b), allowing evidence of collateral source income, because these incidents occurred prior to the effective date of that statute. Polito v. Holland, supra.

6. Appellant county contends the trial court erred in disallowing evidence of the county’s having sent notice to Mrs. Orwig, after the first sewage backup, that a county ordinance required her to install a backup valve in her sewer system, and that if she had done so, the second sewage backup would not have occurred. Appellant county concedes that the evidence of these facts was not included in its original pretrial pleadings, and concedes the trial court therefore has some discretion in deciding whether to admit such evidence, but neither the record nor appellant’s explanation as to why the evidence was not admitted clearly shows what happened here, and why the evidence was excluded. In any case, a new trial will render these questions moot or else resolve them to a level fit for appellate review.

Cross-appellant Orwig’s contention that this ordinance is unconstitutional is not properly before us, such matters being for the Supreme Court. Ga. Const., Art. VI, Sec. VI, Par. II.

7. In her cross-appeal, Mrs. Orwig contends it was error for the trial court to instruct the jury to disregard testimony that Mrs. Orwig was compelled to use up her entire retirement savings to repair her house and was unable to restore the house for lack of funds. This evidence, properly presented, is relevant on the issue of mental emotional distress, for which we have held she can recover damages. As to the admissibility and relevance of evidence in general, even doubtful evidence, see Sprouse v. State, 242 Ga. 831 (252 SE2d 173); and OCGA § 24-2-1; and see Williams v. State, 153 Ga. App. 890 (267 SE2d 305).

Ail other complaints are rendered moot by our reversal and order for new trial, or else are abandoned for failure to argue.

Judgment reversed.

Banke, P. J., and Cooper, J., concur.

On Motion for Rehearing.

Cross-appellant Gwen Orwig seeks rehearing on the question of DeKalb County’s liability for creating a nuisance by failing to clean up and restore Mrs. Orwig’s residence after the first sewage backup. We held, per Ingram v. Baldwin County, 149 Ga. App. 422 (254 SE2d 429) that since the county did not create the first sewage backup, it could not be liable for damages as for nuisance on that incident. However, Mrs. Orwig goes further and asserts that the county’s subsequent refusal to remove the noxious filth and problems created by that first backup amounted to the maintenance of a nuisance by the county. We understand fully Mrs. Orwig’s contentions on this point, and if she can show that DeKalb County had a duty to clear her home of the problem caused by the first sewage backup (which, apparently was caused by Georgia Power), then she may collect for its refusal to clean up. But the lingering problem caused by the first incident is not itself a “nuisance maintained by the county” unless the county had a duty to remove it. It is simply the result of the first sewage backup, and the fact that it was sewage that came from DeKalb’s lines does not make it actionable as an abatable nuisance unless DeKalb had an obligation to remove it in the course of its duty to maintain sewer lines. We assume this will be a matter of proof.

Decided June 11, 1990

Rehearings denied June 21, 1990 and July 9, 1990 — Cert, applied for.

Johnson & Montgomery, Nisbet S. Kendrick III, for appellant.

Gail C. Flake, for appellee.

Motion for rehearing denied.


source: Caselaw Access Project

license: Public Domain

text:
    A90A1065.
    STARNES v. THE STATE.
    (395 SE2d 603)
   Birdsong, Judge.

Appellant, Jimmy E. Starnes, appeals his sentence and judgment of conviction of DUI. Appellant enumerates two errors. Held:

1. Appellant asserts the trial court erred in admitting evidence of intoximeter test results after a written demand for a copy of the scientific report thereof had been made but not honored. We find appellant suffered no prejudice. .

The uncontroverted testimony of the arresting officer was that he provided appellant with a copy of the intoximeter test results upon completion of the test, when appellant was under arrest but not in handcuffs, and before appellant was taken from the Snellville Police Department. As appellant already had been provided with a copy of the test results, he was not harmed by the State’s failure to provide the same pursuant to OCGA § 17-7-211. Johnson v. State, 194 Ga. App. 501 (3) (391 SE2d 132).

We also note that appellant allowed testimonial evidence to be admitted, without objection, that it was the policy of the Snellville Police Department to transport anyone “[i]f they exceed twenty-eight percent grams alcohol,” to the Gwinnett County Medical Center prior to taking them to jail, and that appellant was transported to and checked by that facility. The obvious and reasonable inference to be drawn from this testimony is that appellant had been tested at a level at least in excess of twenty-eight percent grams alcohol.

2. Appellant asserts the trial court erred in permitting the intoximeter test results to go out with the jury after the contents of that report had been testified to in the jury’s presence. At trial the grounds for appellant’s timely objection, in addition to the grounds disposed of in Division 1 above, was that the test results, State Exhibit 3, would “add undue emphasis to the testimony of the officer.” This is, in effect, an objection on the specific grounds that the testimony was cumulative. This enumeration of error is without merit. Whiteley v. State, 188 Ga. App. 129, 132 (3) (372 SE2d 296).

Decided June 18, 1990

Rehearing denied July 9, 1990.

Harrison & Harrison, C. Hughel Harrison, Samuel H. Harrison, for appellant.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Assistant Solicitor, for appellee.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Sognier, Judge.

text:
    77533.
    AGAN et al. v. THE STATE.
    (396 SE2d 610)
    Decided July 9, 1990.

      Cook & Palmour, Bobby Lee Cook, Meals, Kirwan, Goger, Winter & Parks, P. Bruce Kirwan, Jake Arbes, for appellant.

      Robert E. Wilson, District Attorney, Barbara B. Conroy, R. Stephen Roberts, Assistant District Attorneys, for appellee.
   Sognier, Judge.

In Agan v. State, 259 Ga. 541 (384 SE2d 863) (1989), the Supreme Court affirmed in part and reversed in part the judgment of this court in Agan v. State, 191 Ga. App. 92 (380 SE2d 757) (1989). Accordingly, our judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this court, and the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceeding consistent with the Supreme Court’s opinion.

Judgment affirmed in part and reversed in part and case remanded.

Carley, C. J., Been, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Beasley and Cooper, JJ., concur:


author: Pope, Judge. Beasley, Judge,

text:
    A90A0227.
    DENNIS v. MALT et al.
    (395 SE2d 894)
   Pope, Judge.

Plaintiff Dennis appeals the grant of summary judgment to contractor Excalibur Store Fixtures, Inc., and its vice-president and employee, Malt, in this suit for on-the-job injuries sustained by Dennis while a stockroom employee at Macy’s (formerly Davison’s). Dennis was in the stockroom stacking dish sets when a second story wood deck under him collapsed, causing him to fall to the floor below. He sued Excalibur and Malt alleging that their negligent construction, modification, renovation, refurbishing or supplying of defective materials as to the stockroom floor proximately caused his injuries.

Malt’s affidavit, in support of defendants’ motion for summary judgment, was uncontroverted below and established the following. In June 1984, Excalibur contracted with Davison’s for the manufacture of stockroom shelving and other on-site stockroom construction work at one store site. The terms identified and established the specifications for the shelving and other construction work, including materials, workmanship, dimensions and layout.

The contract provided that Excalibur would manufacture the free-standing stockroom shelving at its New Hampshire plant and install it at the store. The on-site construction was to be performed in two stages. For the first phase, which included installation, Excalibur was authorized to subcontract the work to a local company, T & J Installers, Inc. The second phase was to be performed by Davison’s or another company of its choosing.

Excalibur did not perform any on-site construction, install any shelving, or construct the wood deck or floor. T & J did. No employees of Excalibur were at the store during the on-site construction or participated in it. Excalibur did not direct, control, supervise and/or inspect any on-site construction, including the flooring. To the best of Malt’s knowledge, no Excalibur employee had ever been to the store site.

When T & J was finished, the work was inspected and accepted by the store. Excalibur did not inspect or approve T & J’s work or work performed by any other subcontractor. No Excalibur employee participated in the final inspection or approval of the final construction work. Excalibur did not control or direct the time, manner or method in which T & J or any other subcontractor performed the on-site construction work beyond informing T & J of the starting and completion dates set by Davison’s. T & J was and performed as an independent contractor, free of any control and/or direction by Excalibur in the actual performance of the work. T & J employees were not under Excalibur’s supervision, control, or direction.

Malt did not perform, direct, control, supervise or inspect any on-site construction work including that of the wood deck. He did not direct or control the time, manner or method of any such work including that performed by T & J or any other involved subcontractor beyond informing T & J of the starting and completion dates as set by Davison’s. Malt had never been to the store nor seen or touched the subject wood deck. Malt’s only involvement was in his capacity as an Excalibur employee, and he did not personally or independent of his employment contract agree regarding any work done at the store, including construction of the wood deck.

The entire sum paid by Davison’s to Excalibur for phase one of the on-site construction work was then paid in full by Excalibur to T & J. Malt did not receive any portion of the sum paid by Davison’s to Excalibur for on-site construction work.

1. In his sole enumeration of error, appellant Dennis contends that the trial court erred in concluding that T & J was an independent contractor so that defendants were not responsible for T & J’s conduct.

“In determining whether an employer-employee or independent contractor relationship existed, ‘the test to be applied . < . lies in whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract.’ Zurich Gen. Accident &c. Ins. Co. v. Lee, 36 Ga. App. 248 (1) (136 SE 173) [1926]. OCGA §§ 51-2-4 and 5.

“If one is employed generally to perform certain services it may be inferable that the employer retained the right to control the manner, method and means for performance of the contract. Swift & Co. v. Alston, 48 Ga. App. 649, 651 (173 SE 741) (1933). However, where there is a specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the right of control was not retained and an independent contractor relation existed. Smith v. Poteet, 127 Ga. App. 735, 737 (195 SE2d 213) (1972).” Dietrich v. Trust Co. Bank of Augusta, 179 Ga. App. 330 (346 SE2d 107) (1986) (non-precedential).

The record on appeal contains no evidence of the contract between Excalibur and T & J, so their relationship must be ascertained from the circumstances of the on-site construction and the contract between Davison’s and Excalibur. See Farmer v. Ryder Truck Lines, 245 Ga. 734, 738 (266 SE2d 922) (1980).

The undisputed evidence showed that Excalibur did not assume the right to control the time and manner of T & J’s work. Nor did the contractual provisions give Excalibur any express and specific right of control. The contract was for certain and limited work according to specifications, which raised an inference that the subcontractor did not become an employee of the general contractor but was an independent contractor. Dietrich, supra. This inference stood unrebutted.

2. Although not enumerated as error, appellant in his brief argues that defendants were liable for the subcontractor’s negligence under OCGA § 51-2-5 (3), which imposes liability if the alleged wrongful act violates a duty imposed by express contract upon the employer. An appellant may not expand an enumeration of error by argument in brief. Bowen v. State, 191 Ga. App. 760 (382 SE2d 694) (1989); Ailion v. Wade, 190 Ga. App. 151, 154 (3) (378 SE2d 507) (1989); Central Nat. Ins. Co. of Omaha v. Dixon, 188 Ga. App. 680, 681 (2) (373 SE2d 849) (1988). See also MacDonald v. MacDonald, 156 Ga. App. 565 (275 SE2d 142) (1980), for an explanation of the enumerations of error rule.

We note, however, that appellant has failed to point out a contract provision which would cast such potential liability on defendants. He focuses on the general provision that consent or approval of the subcontracting would not release or relieve the general contractor from the obligations and liabilities it assumed. Appellant has failed to demonstrate an alleged violation of an express contractual obligation which would fall within the statutory exception. See Fields v. B & B Pipeline Co., 147 Ga. App. 875, 876-877 (250 SE2d 582) (1978).

3. Likewise, in argument in brief, appellant asserts that OCGA § 51-2-5 (3) governs because defendants improperly ordered three-quarter inch flooring for the stockroom area in which he was injured rather than the seven-eighths inch flooring contractually required. The document of record cited by appellant in support of this assertion is merely a letter from Excalibur to Davison’s which indicates that the shelving, not the flooring, was to be constructed of seven-eighths inch thick solid edge glued pine.

4. Again, appellant improperly attempts to expand in brief his enumerated error by arguing that Malt’s affidavit was insufficient to sustain the grant of summary judgment for defendants because it was merely conclusory, especially as to the non-existence of an agency or employer-employee relationship between defendants and the subcontractor. This assertion is meritless. A denial of the existence of an agency relationship may constitute an uncontradicted fact which will sustain a motion for summary judgment. Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 792 (2) (a) (359 SE2d 920) (1987). Likewise, the bare denial of the particular agency relationship of employer-employee, “made by a purported party to the relationship, is a statement of fact sufficient to support a motion for summary judgment in an action based on the doctrine of respondeat superior.” Withrow Timber Co. v. Blackburn, 244 Ga. 549, 551 (261 SE2d 361) (1979). In such circumstances the adverse party may not rest on his pleadings but by response must set forth specific facts revealing a genuine issue for trial. Exhibiting the mere possibility of a control situation falls short of the “specific facts” required. Withrow, supra. Accord Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 779 (257 SE2d 186) (1979).

5. Lastly appellant, again in argument only, asserts that the determination of a master-servant relationship is a matter to be resolved by a jury. While such issue is generally a question of fact to be decided by a jury, a case may present a factual situation wherein the issue of the existence or non-existence of the master-servant relationship is properly decided as a matter of law. See Lawson Prods. v. Rousey, 132 Ga. App. 726, 728 (1) (209 SE2d 125) (1974). This is such a case.

Decided July 9, 1990.

L. Paul Cobb, Jr., for appellant.

Fain, Major & Wiley, Gene A. Major, Bruce A. Maxwell, for appellees.

The evidence on summary judgment demanded a finding that T & J functioned as an independent contractor.

Judgment affirmed.

Carley, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier and Cooper, JJ., concur. Beasley, J., concurs in part and dissents in part.

Beasley, Judge,

concurring in part and dissenting in part.

I fully concur in the opinion as far at it goes. But one step yet needs to be taken to complete the journey in this court.

Appellant had no reasonable basis for anticipating reversal of the trial court. The appeal’s weightlessness is illustrated in part by the deficiencies in the enumerations of error, which made discussion of the issues unnecessary in Divisions 2 through 5. It is a frivolous appeal, wasteful of the court’s and the appellees’ resources. Therefore, the trial court should be directed to enter judgment for a $500 penalty against appellant and in favor of appellees upon the return of the remittitur. Court of Appeals Rule 26 (b).


author: McMurray, Presiding Judge.

text:
    A90A0776.
    PHILLIPS v. THE STATE.
    (396 SE2d 57)
   McMurray, Presiding Judge.

Defendant was convicted of rape and aggravated assault. Following the denial of his motion for a new trial, defendant appeals. Held:

1. In his first enumeration of error, defendant contends the trial court erred in failing to conduct an in camera hearing pursuant to OCGA § 24-2-3 (c). Counsel for defendant stated in his place what proof he intended to offer concerning the victim’s past sexual relationship with defendant, the victim’s father and other men. The trial court ruled that defendant would be permitted to introduce evidence concerning the victim’s alleged sexual relationship with defendant. The trial court postponed a ruling, however, concerning the victim’s alleged sexual relationship with her father and with other men. Subsequently, defendant attempted to cross-examine the victim concerning her sexual relationship with her father and the trial court ruled the question to be inappropriate.

We find no prejudicial error. “If defendant desired a more formal hearing and an opportunity to present witnesses (instead of stating in his place what the evidence would show) he should have insisted upon doing so. Instead, defendant went along with the trial court’s in camera format without objection.” Ford v. State, 189 Ga. App. 395 (1) (376 SE2d 418). Likewise, if defendant wanted an immediate ruling upon his offer of proof, he should have insisted upon one. Instead, defendant went along with the postponement of the trial court’s ruling.

Defendant’s reliance upon Hamilton v. State, 185 Ga. App. 536, 538 (2) (365 SE2d 120), is misplaced. In that case, the trial court’s grant of the State’s motion in limine at the beginning of trial obviated defendant’s obligation to request an evidentiary hearing.

2. In his second enumeration of error, defendant asserts that the trial court erred in refusing to permit evidence concerning the victim’s alleged sexual relationship with her father and with other men. This enumeration of error is without merit.

Defendant was permitted to cross-examine the victim about her alleged sexual relationship with defendant and defendant was permitted to testify about that alleged relationship. The trial court properly excluded the evidence about which defendant complains because it could not have led defendant to believe reasonably that the victim consented to sexual intercourse with him. OCGA § 24-2-3 (b); Roberts v. State, 158 Ga. App. 309, 310 (2) (279 SE2d 753).

3. Next, defendant contends the trial court erred in refusing to permit defendant to cross-examine the victim concerning a statement he allegedly made to her immediately following the rape. In this regard, defendant insists that the statement was part of the res gestae. (According to defendant, he teased the victim about her alleged sexual relationship with her father and she got mad at him.) This contention is without merit. “[T]he Rape Shield Statute, OCGA § 24-2-3, supersedes all evidentiary exceptions, including the res gestae rule. Johnson v. State, 146 Ga. App. 277, 280 (246 SE2d 363) (1978).” Veal v. State, 191 Ga. App. 445, 447 (4) (382 SE2d 131).

4. Finally, defendant asserts the trial court erred in failing to permit him to testify that after he engaged in sexual intercourse with the victim he teased her about her alleged sexual relationship with her father. In this regard, defendant points out that he testified to this effect once without objection and he complains that he was not permitted to return to this subject later in his testimony because the State waived the rape shield statute by failing to object to this testimony when it was first offered. This enumeration of error is without merit. The evidence was inadmissible in light of OCGA § 24-2-3. Assuming, arguendo, the State waived any objection to this testimony by failing to object to it when it was first offered from the witness stand (we note that the State opposed this evidence during the in camera proceeding), we fail to see how defendant was prejudiced by the trial court’s ruling. After all, the very testimony which defendant attempted to introduce had already been admitted. Hawkins v. State, 141 Ga. App. 31 (2) (232 SE2d 377).

Decided July 9, 1990.

Mark G. Pitts, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A0809.
    BECK v. THE STATE.
    (396 SE2d 59)
   McMurray, Presiding Judge.

Defendant was indicted for violating Georgia’s Controlled Substances Act (selling cocaine).

At trial, Georgia Bureau of Investigation (“GBI”) Agent Washington testified that, while working undercover, he purchased a substance from defendant which appeared to be “crack cocaine,” GBI Forensic Scientist David Abbott testified that the suspected substance tested positive for cocaine. (The trial court did not allow the State to bring the actual cocaine into evidence because of the State’s failure to furnish defendant with a crime laboratory report within 10 days of trial as is required by OCGA § 17-7-211.) Defendant was found guilty and this appeal followed the denial of his motion for new trial. Held:

1. Defendant first contends the trial court erred in denying his motion to exclude Forensic Scientist David Abbott’s testimony regarding the identification of the suspect substance as cocaine. Defendant argues that this testimony was not admissible because of the State’s failure to comply with the 10-day production requirement of OCGA § 17-7-211.

“[OCGA] § 17-7-211 applies to scientific reports in writing and not oral reports of experts relaying the results of tests. Faircloth v. State, 253 Ga. 67 (2) (316 SE2d 457) (1984); Law v. State, 251 Ga. 525 (2) (307 SE2d 904) (1983). Cf. State v. Madigan, 249 Ga. 571 (1) (292 SE2d 406) (1982).” Perry v. State, 255 Ga. 490, 492 (3) (339 SE2d 922) (1986). In the case sub judice, the trial court did not err in admitting the “oral report” of the GBI forensic scientist.

Decided July 9, 1990.

Ralph M. Hinman III, for appellant.

Jack O. Partain III, District Attorney, Todd L. Ray, Assistant District Attorney, for appellee.

2. In his second and third enumerations, defendant challenges the sufficiency of the evidence. The evidence adduced at trial was more than sufficient to authorize the jury’s finding that defendant was guilty of selling cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A0880.
    COLEMAN v. THE STATE.
    (395 SE2d 897)
    Decided July 9, 1990.

      Bennett, Wisenbaker & Bennett, Charlie R. Williams, Jr., for appellant.

      H. hamar Cole, District Attorney, Catherine H. Helms, Assis

      tant District Attorney, for appellee.
   McMurray, Presiding Judge.

Via indictment, defendant was accused of burglary (two counts), entering a motor vehicle with intent to commit a theft and theft by receiving stolen property. Defendant pleaded guilty to one count of burglary and the superior court sentenced him to confinement for a term of 15 years. The charges remaining against defendant were nolle prossed and he appeals. Held:

In his sole enumeration of error, defendant contends the 15-year sentence constitutes cruel and unusual punishment.

“A sentence is not unconstitutionally cruel and unusual if it is within the statutory limit. [Cit.] This court is without authority to review sentences within the statutory range. [Cit.]” Bolden v. State, 148 Ga. App. 315, 316 (5) (251 SE2d 165). Inasmuch as the 15-year sentence was within the statutory limit for burglary (OCGA § 16-7-1 (a) provides that a person convicted of burglary shall be punished by imprisonment for a term of “not less than one nor more than 20 years”), any question regarding the excessiveness of the sentence should have been directed to the sentence review panel, not to this Court. Robinson v. State, 150 Ga. App. 642, 644 (7) (258 SE2d 294).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Beasley, Judge. Deen, Presiding Judge,

text:
    A90A0289.
    INSURANCE COMPANY OF PENNSYLVANIA v. GILES et al.
    (395 SE2d 833)
   Beasley, Judge.

Giles obtained a judgment of $1,495,000 on January 9, 1987, for injuries to herself and for the death of her husband in an automobile collision. Appellant insurer had issued the liability policy covering the automobile operated by Guy, one of the two defendants against whom Giles recovered the judgment, and it defended the suit against her. The judgment was set aside as to the other defendant. Duke Trucking Co. v. Giles, 185 Ga. App. 833 (366 SE2d 216) (1988). Appellant also defended two other suits against Guy for deaths resulting from the collision.

Prior to trial, on December 23, 1985, Ed Lane, the attorney provided by appellant to represent Guy, had written the three plaintiffs’ attorneys suggesting a conference to attempt to settle the three suits for the full amount of the liability coverage under appellant’s policy. This letter did not disclose either the policy limits as to liability or the fact that supplemental payments were available in addition to the limits of liability, but it stated that appellant “would be more than willing to pay the policy limits provided that there was agreement between the various parties as how to ‘carve up’ [the] limits.”

On March 20, 1986, Lane sent another letter to the plaintiffs’ attorneys in which he wrote that Guy had “a policy with a 10/20 limitation” and again expressed appellant’s willingness “to pay these limits upon adjudication or by agreement.” Subsequently Lane and the other two plaintiffs’ attorneys reached an agreement, which was confirmed in writing, providing for the forbearance from collection of a judgment and the execution of the satisfaction of judgment for payment of a pro rata share of the $20,000 in liability coverage. However, the letters evidencing these agreements made no reference to any agreement or participation in any negotiations by Giles or her lawyer.

During the January 1987 trial in Giles’ suit, Lane stated out of the presence of the jury: “. . . I think as between all counsel that there is a full understanding; ... I am assuming that what I am about to say is correct and if it is agreeable that everyone knows my client has a 10/20 policy, but that I have been confronted with multiple litigation, specifically three suits, that I would have long ago paid my policy limits if I knew who to pay what and we have agreed that we will pro rate the twenty amongst the three plaintiffs when all the litigation is over. . . .” Giles’ lawyer responded to this statement by saying, “That’s what I understand.”

The last of the three judgments was entered in favor of Giles on January 9, 1987, and no appeals were taken from it. On February 24, 1988, Lane submitted a written offer to pay Giles $10,000 under the policy limitation with pro rata shares to the other plaintiffs “notwithstanding the amount of the judgment. ... If each of you agree with these computations and are willing to execute a Satisfaction of Judgment in each of these cases, then I request that you indicate your acceptance at the bottom of this letter and return to me. Upon receipt of same, I will prepare the necessary Satisfaction of Judgment, obtain drafts and forward to each of you.” (Indention omitted.) Counsel for the other two plaintiffs accepted the offer, but Giles’ attorney refused, contending that the amount due Giles was the $10,000 under the liability limit plus post judgment interest of $212,009 on the $1,495,000 judgment. On August 9, 1988, appellant tendered $10,000 into the registry of the court. The tender was refused and on August 18 Giles sued for that amount plus the post judgment interest. The trial court entered summary judgment in favor of Giles for the $10,000 limit of liability plus post judgment interest, computed on the entire jury award from the time of entry of judgment and continuing until the time it was paid.

The insurer contends that the court erred (1) in deciding that Giles had not waived her right to claim interest on the judgment as a matter of fact and law; (2) in failing to find that Giles was estopped as a matter of law from asserting her claim for interest; (3) in holding that it failed to tender the policy limits until August 9, 1988, thereby subjecting it to liability for interest by the terms of the policy, when the evidence showed that it complied with the policy provision both before and after judgment was entered; (4) in holding that the policy required any “tender” of policy limits in order to preclude the running of interest on the judgment; (5) in holding that Giles was entitled to $10,000 on the date of judgment; (6) in failing to find that Giles had agreed, through a solemn admission in judicio by her attorney, that it had fully complied with any “tender” or “offer” requirement of its policy, thus precluding the running of interest pursuant thereto; (7) in holding it liable for interest on the entire judgment; (8) in failing to find that Giles was estopped as a matter of law from asserting a claim for interest accruing after February 24, 1988 (the date of the letter offering to pay Giles $10,000 under the policy liability limitation); (9) in finding that the August 9, 1988, tender into court of the policy limits was insufficient to toll the interest from accruing under the policy’s supplemental payment provision; (10) in granting Giles’ motion for summary judgment; and (11) in denying its motion for summary judgment.

1. Appellant has also filed a motion to supplement the record on appeal so that we might consider the question of set-off for sums received pursuant to an agreement between Giles and the former co-defendant Duke Trucking Company. Its failure to raise this issue in the trial court in any manner provides no basis for determination on appeal. Ewald v. Security Pacific Credit Corp., 190 Ga. App. 615 (1) (379 SE2d 569) (1989). Accordingly, the motion is denied.

2. In addition to the limit of liability undertaken by the insurer, which was $10,000 per person and $20,000 per occurrence, the insurer promised to make several types of “supplementary payments.” One was “Interest accruing after a judgment is entered in any suit we defend. Our duty to pay interest ends when we offer to pay that part of the judgment which does not exceed our limit of liability for this coverage.”

The obvious purpose of this benefit to the insured is to assure that he or she will quickly receive the primary amount the insurer is obligated to pay under the policy after judgment. It does this by making it expensive for the insurer to delay.

There was no delay occasioned by the insurer in this case. There were multiple plaintiffs, and it appeared early on that if judgments were returned against the insured, the entire amount would exceed the limits. The insurer offered to pay its entire limits even before judgment, in whatever division within the limits the plaintiffs agreed among themselves to accept.

Rather than attempt a prejudgment division, and rather than exhaust the limits by the first or second case to go to judgment, the plaintiffs agreed to await the finality of all the cases so that the limited insurance proceeds could be split among them, prorated according to the judgments. This of necessity constituted a waiver of the postjudgment interest obligation, because the plaintiffs assumed control over when the amount of the payment to each could be ascertained. That is, the insurer would not become obligated to pay postjudgment interest on the first judgment while the latter two cases were pending because it was not yet obligated to pay at all. One cannot be obligated to pay (or “offer”) forthwith an amount not yet determined.

From the outset the insurer expressed to all the plaintiffs its willingness to pay out the policy limits and urged them to agree as to apportionment among them. It maintained this position throughout the proceedings, and the delay in payment was expressly understood by appellee to be occasioned by her and the other plaintiffs’ desire to ascertain the amount of their respective judgments before they determined the portion of the insurance proceeds each would receive.

As soon as the judgments were final and the other defendant’s appeal was concluded so that the proration could be computed, the insurer made the computation and sent it to plaintiffs’ respective counsel for approval and acceptance.

Thus the insurer did all it reasonably could to pay out its limits in the manner and at the time chosen by the plaintiffs, including appellee. The delay-preventing benefit provided for in the policy’s supplementary payments section is inapplicable. We agree with the reasoning and the result reached by the court in the strikingly similar case of Farmers Alliance Mut. Ins. Co. v. Bethel, 812 F2d 412 (8th Cir. 1987). At issue was the application of an identical provision.

Judgment reversed.

Carley, C. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Deen, P. J., McMurray, P. J., and Banke, P. J., dissent.

Deen, Presiding Judge,

dissenting.

I must respectfully dissent. I find no grounds for reversal for any of the reasons assigned by appellant. Although there are no Georgia cases addressing the issues raised, it is clear under the facts here and the law as established in other jurisdictions that the policy issued by appellant obligated it to pay $10,000 per person under the limits of liability provision and likewise imposed additional duty to pay interest accruing after judgment was entered on the entire amount in any suit it defended.

Insurance policy provisions for post judgment interest have, almost without exception throughout the country, held that the insurer is obligated to pay interest on the entire amount of the judgment, in spite of variations in the language. Other courts when confronted with language almost identical to that here have repeatedly held that the words “all interest accruing after the entry of judgment” requires payment of interest on the entire judgment irrespective of the policy limits. See, e.g., Di Benedetto v. Estate of Di Benedetto, 526 A2d 1161 (N.J. Super. L. 1986); Starke v. Allstate Ins. Co., 771 P2d 3 (Colo. App. 1988); Hartford Accident &c. Co. v. Aetna Ins. Co., 527 NE2d 950 (Ill. App. 1 Dist. 1988); Mut. Of Enumclaw v. Harvey, 772 P2d 216 (Idaho 1989); Casey v. Calhoun, 531 NE2d 1348 (Ohio App. 1987); Petry v. Richard, 532 S2d 286 (La. App. 3rd Cir. 1988).

The reasoning behind this policy is two-fold: “In the first place, the insurer’s language compels such a conclusion. The phrase referring to interest uses the term ‘judgment’ without qualification while in the same clause the phrase limiting the duration of the liability for interest refers to ‘such part of the judgment as does not exceed the limit of the company’s liability thereon.’ Obviously the insurer knew how to qualify the term ‘judgment’ to achieve the result that it urges. It did not do so. In addition, the realities of the relationship between the insurer and the insured argue against the insurer’s interpretation. Under the terms of the policy the insurer has complete control of any litigation from which it might incur liability. The insured cannot settle with the plaintiff without releasing the insurer from its obligation. Any delay that may cause the accumulation of interest is thus the responsibility of the insurer. And until it has discharged its obligations under the policy it should bear the entire expense of this delay.” Di Benedetto, supra at 1163.

I further concur with the trial judge’s ruling that Giles did not agree or otherwise waive her entitlement to post judgment interest, give a satisfaction of judgment, forbear from enforcement of the judgment, or accept any amount less than provided for by the policy. The letters to the three plaintiffs’ attorneys did not discuss supplemental payments in addition to the limits of liability, nor did they contain any offer, conditional or otherwise, to pay any sum to Giles. There was no evidence of any agreement or participation in any negotiations on her part. This is also true of Lane’s recitation in court, which made no mention of any of the matters to which appellant now claims Giles agreed by promise or estoppel.

Likewise, appellant’s obligations under the policy were not satisfied by its tender of the $10,000 policy liability limit following the return of the verdict, as that tender did not include its duty to pay the post judgment interest. “A valid tender must be in the amount due and a tender is invalid when it is for less than what is due. 15 S. Williston, Contracts, [§ 1814 (W. Jaeger 3d ed. 1972)]. Partial payment of the contractual obligation does not toll the further accrual of interest on the balance of the judgment. [Cit.]” Starke v. Allstate Ins. Co., supra at 4. Accord Petry v. Richard, supra. This is also true in regard to appellant’s deposit of only the liability limit in court. See Di Benedetto, supra. Thus appellant has never unconditionally offered, tendered or deposited in court the full amount due Giles under its insurance contract.

Therefore, not having satisfied any policy condition which would permit the limitation of its interest obligation, appellant should be required to pay the statutory interest that has accrued on the entire $1,495,000 judgment from the date of its entry. It follows that summary judgment was properly denied to appellant and granted to Giles.

I am authorized to state that Presiding Judge McMurray and Presiding Judge Banke join in this dissent.

Decided June 12, 1990

Rehearing denied July 10, 1990 — Cert, applied for.

Goldner, Sommers & Scrudder, Philip M. Casto, Glenn S. Bass, Alfred A. Quillian, Jr., Linda E. Jacobsen, for appellant.

Barnes, Browning, Tanksley & Casurella, Charles B. Tanksley, Carr & Kessler, James C. Carr, Jr., for appellees.

       Appellant points out that had this arrangement not been made, appellee would have received only $1,000 rather than $10,000 because the limit of the policy would have been exceeded before her judgment was entered.


text:
    A90A0326.
    LOUIS v. THE STATE.
    (396 SE2d 25)
   McMurray, Presiding Judge.

Defendant was convicted of possession of cocaine with intent to distribute and filed a direct appeal. Held:

1. On March 13, 1987, two Atlanta police officers assisted in the execution of a search warrant at an apartment. Cocaine, guns and photographs of possible suspects were seized during the search. Emerging from the apartment, the police sought the help of a tipster. The tipster looked at the photographs and informed the officers that the occupants of the apartment just left about five minutes before the police arrived. He added that the suspects were headed for a particular service station about one-and-a-half miles away. The two officers drove to the service station in an unmarked van. They observed an automobile which was stopped beside a telephone booth. The automobile engine was still running although the doors were open. One person sat in the passenger seat with his feet touching the ground. He was engaged in conversation with another person, Rodney Willis, who stood outside the automobile. Defendant was standing by the telephone booth, talking on the telephone.

The officers emerged from their van and approached the automobile. They were dressed in their police raid gear and carried a picture taken from the apartment. Spotting the officers, Willis dropped a marijuana cigarette to the ground and tried to cover it with his foot. Willis was arrested for possession of marijuana. Searching Willis, the officers found a pouch containing more marijuana. The officers frisked the individual who was speaking with Willis. They found nothing on his person.

At that point, defendant, who was still talking on the telephone, made eye contact with one of the officers. As the officer walked toward him, defendant grabbed his crotch and turned his back to the officer. Knowing that weapons are often concealed in the crotch area, the officer asked defendant to “step over” and “spread-eagle” and defendant complied. Then, the officer frisked defendant. Discovering an “unusual hard object” in defendant’s crotch, the officer asked defendant to open his pants. Defendant did so and the officer observed a plastic bag tied in knots containing what appeared to be contraband. Accordingly, the officer seized the bag and placed defendant under arrest.

Only after arresting defendant did the officer compare the photograph taken from the apartment to defendant, Rodney Willis, and the third individual. The officer then realized that the trio did not appear to be the people he was looking for initially.

In his first enumeration of error, defendant contends the trial court erred in failing to grant his motion to suppress. More specifically, defendant asserts that he was detained without reasonable suspicion even before he was frisked. We disagree.

“ ‘(A) reasonable search for weapons for the protection of the police officer, (is permitted) where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ Terry v. Ohio, [392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968)].” Smith v. State, 139 Ga. App. 129, 131 (2) (227 SE2d 911). Accord Mashburn v. State, 186 Ga. App. 488, 489 (367 SE2d 881).

In the case sub judice, the officers just completed a search of an apartment in which drugs and weapons were found. They went to a gas station believing the occupants of the apartment were there. When they arrived at the gas station, the officers saw three men (one of whom was defendant) standing near an automobile which was stopped with the engine running. As the officers approached them one of the men threw down a marijuana cigarette. In short order, defendant was seen reaching for his crotch (where weapons are often hidden) and turning his back to the officers. We have no hesitation in concluding that, under these circumstances, the officer who frisked defendant was warranted in the belief that defendant could have have been armed and dangerous. See Edwards v. State, 165 Ga. App. 527 (301 SE2d 693). It follows that the trial court did not err in denying defendant’s motion to suppress.

2. After this case was docketed in this Court, defendant obtained new appellate counsel. In defendant’s second enumeration of error, the issue of effectiveness of trial counsel is raised for the first time. Since, this issue has only been raised by new appellate counsel on appeal, there has been no opportunity for an evidentiary hearing in the trial court. The claim of ineffectiveness concerns matters which do not appear on the face of the record. Thus, in the absence of an evidentiary hearing, we have no way of knowing what transpired with regard to this issue. “[TJhis case must be remanded for an evidentiary hearing on the issue of the asserted ineffectiveness of [trial counsel]. ‘If the trial court finds [defendant] was denied effective assistance of counsel, he will be entitled to a new trial. If the court finds adversely to [defendant], [defendant’s] right to appeal that order within thirty days is preserved. (Cit.)’ Brooks v. State, 187 Ga. App. 92, 94 (2) (369 SE2d 349) (1988).” Parrish v. State, 194 Ga. App. 760, 762 (4) (391 SE2d 797).

Decided June 27, 1990

Rehearing denied July 10, 1990 — Cert, applied for.

Timothy T. Herring, Michael E. Bergin, for appellant.

Anthony L. Louis, pro se.

Lewis R. Slaton, District Attorney, Katherine .E. Beaver, Joseph J. Drolet, Rebecca A. Keel, Assistant District Attorneys, for appellee.

Judgment affirmed and case remanded with direction.

Carley, C. J., and Sognier, J., concur.


author: Cooper, Judge.

text:
    A90A0436.
    MASSEY v. THOMASTON FORD MERCURY.
    (395 SE2d 663)
   Cooper, Judge.

Appellant purchased a truck from appellee. The sales contract recited that the truck was equipped with a radio, air conditioning and power steering, however, these features were never installed. Six months later the truck was destroyed by fire, and nearly a year after purchase, appellant sent appellee a demand for relief pursuant to OCGA § 10-1-399 (b) of the Fair Business Practices Act which complained that the truck lacked the features listed above and alleged that the fire was caused by an electrical defect, which appellee failed to correct. The demand advised that appellant could correct the “misrepresentations” by refunding the purchase price and by paying an additional $6,000 which represented appellant’s loss of use of the vehicle, missed work days and fire damage to another’s driveway. When appellee did not tender payment, appellant brought an action for breach of contract and a violation of the Fair Business Practices Act. Appellant did not allege an electrical defect in the complaint. Both parties filed motions for judgment on the pleadings, and the trial court denied appellant’s motion and granted appellee’s motion. The trial court did not exclude affidavits submitted by both parties in its consideration of the motions, therefore, the motions shall be treated as motions for summary judgment. OCGA § 9-11-12 (c).

1. Appellant enumerates as error the trial court’s grant of summary judgment to appellee arguing that genuine issues of fact remain as to whether or not appellee violated the Fair Business Practices Act by presenting a retail installment contract which misrepresented the vehicle purchased. Appellant also contends that appellee did not assert a legally sufficient defense. “ ‘A claimant who alleges the FBPA was violated as the result of a misrepresentation must demonstrate that he was injured as the result of the reliance upon the alleged misrepresentation. Therefore, under (OCGA § 10-1-399) when the alleged violation of the FBPA is a misrepresentation, the claimant is not entitled to recover if he had an equal and ample opportunity to ascertain the truth but failed to exercise proper diligence to do so.’ [Cits.]” Delta Chevrolet v. Wells, 187 Ga. App. 694 (2) (371 SE2d 250) (1988). It is undisputed that appellant understood that he was buying a vehicle without a radio, air conditioning and power steering; that the truck was thoroughly inspected at the time of purchase; that it was in appellant’s exclusive possession from the date of purchase until the fire; and that it was driven for approximately 8,000 miles during which time appellant never indicated a desire to reject the vehicle, nor did he request a radio, power steering or air conditioning of appellee. The evidence indicating that any damage appellant may have suffered “must be charged to [his] lack of diligence and not to [his] reliance upon any misrepresentation, [he has] not suffered any damage ‘as a result of’ a violation of the FBPA.” Zeeman v. Black, 156 Ga. App. 82, 89 (273 SE2d 910) (1980).

“ ‘ “Ordinarily the question whether the complaining party could have ascertained the falsity of the representations by proper diligence is for determination by the jury.” [Cit.]’ However, in the instant case [appellant’s] failure to exercise proper diligence appears as a matter of law.” Zeeman, supra at 87. Accordingly, the trial court did not err in granting summary judgment to appellee and in denying appellant’s motion.

Appellee contended appellant’s claims were also barred by OCGA § 11-2-606 which provides that goods are deemed accepted when, after a reasonable time for inspection, the buyer does not notify the seller of an intention to reject and OCGA § 11-2-607 which provides that failure to notify a seller within a reasonable time after a buyer discovers a breach bars his recovery. In Romedy v. Willett Lincoln-Mercury, 136 Ga. App. 67 (1) (220 SE2d 74) (1975), an action for breach of contract, we held the trial court did not err in directing a verdict in favor of a seller where the buyer failed to inspect a vehicle for four to five days and failed to notify seller of the alleged breach for three weeks. In the instant case, the undisputed evidence reveals that appellant waited a year before notifying appellee of the absence of certain features, which in the normal operation of the vehicle could not be ignored. Accordingly, appellant’s claim for breach of contract is barred. Romedy, supra.

Decided July 10, 1990.

Pamela M. Richards, for appellant.

Richard T. Bridges, for appellee.

2. Appellant contends the trial court erred in considering appellee’s affidavit containing inadmissible parol evidence. Appellee argues that the terms radio, air conditioning and power steering were mistakenly included in the contract and attempted to explain via the affidavit how they were entered during the preparation of the contract. Appellant maintains that the statement is inadmissible to contradict or vary the terms of a valid written contract. We have concluded above that appellant’s recovery is barred because he did not demonstrate detrimental reliance or timely notification. “ ‘(O)nce a party in the position of a defendant who is a movant for summary judgment pierces the pleadings of one in the position of a plaintiff and shows to the court that one essential element under any theory of recovery is lacking and incapable of proof, the defendant is entitled to summary judgment as a matter of law irrespective of any issues of fact with regard to other essential elements.’ [Cit.]” Adler’s Package Shop v. Parker, 190 Ga. App. 68, 72 (378 SE2d 323) (1989). The order entered by the trial court does not indicate what the court considered in rendering its decision, however, if the affidavit was considered, based on the foregoing, that consideration was of no significance.

3. Appellant argues that appellee denied the existence of the contract in its response to appellant’s request for admissions and production of documents while referring to it in the affidavit accompanying the motion for judgment on the pleadings. He contends that the court erred in failing to construe these contradictory statements against appellee. A review of the record reveals, however, that appellee has not contradicted itself but merely disputed appellant’s various characterizations of the contract.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0437.
    C. K. C., INC. v. FREE et al.
    (395 SE2d 666)
   Cooper, Judge.

This court granted appellant’s application for an interlocutory appeal to hear this appeal from the denial of appellant’s motion for summary judgment by the trial court.

In 1986, appellant purchased certain real estate from appellees and in return executed two separate promissory notes in favor of appellees. One note in the amount of $75,195 represented a portion of the down payment under the contract, and the second note in the amount of $500,797.50 represented the balance of the purchase price. Both notes recited that they were secured by the deed to secure debt of the same date from appellant to appellees (the “Security Deed”) which covered the entire property purchased, and the deed to secure debt also recited that it secured the two notes. In 1987, appellant executed a renewal note in the amount of $75,195 which extended and replaced the original $75,195 note. The renewal note stated that it was secured by a deed recorded at Book 4107, Page 78, Gwinnett County Records, apparently the same deed referenced in the earlier notes. Upon appellant’s default under both notes, appellees (1) notified appellant of the acceleration of the $75,195 note and of appellees’ intentions to initiate foreclosure proceedings under the Security Deed; (2) filed a complaint seeking to recover the amounts due under the $75,195 note; (3) advertised the foreclosure, yet referenced only the larger note in the foreclosure advertisement; (4) sold the property at foreclosure to themselves for $504,000; (5) conveyed the property to themselves via a Deed Under Power of Sale which referenced the debt secured as evidenced by both notes; and (6) applied for a confirmation of the sale in which appellees referenced the indebtedness secured by the Security Deed as evidenced by both notes, and in which appellees stated that the sale did not bring in the amount of the debt. After the trial court denied the confirmation, appellees appealed to this court in a companion case which we remanded to the trial court for specification of findings of fact and conclusions of law. The confirmation was again denied, and this court has no record of any subsequent appeal. The time for such appeal having expired, the denial of confirmation by the trial court is final.

The instant appeal results from the denial of appellant’s motion for summary judgment in the suit filed by appellees on the $75,195 note. Appellant’s sole enumeration of error is that the court erred in denying its motion.

1. “On summary judgment, the movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. When, as in the instant case, the movant is the defendant, he has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint.” (Citations and punctuation omitted.) Waits v. Makowski, 191 Ga. App. 794 (1) (383 SE2d 175) (1989). We first agree with appellant that there is no genuine issue as to any material fact. The terms of the real estate transaction, the documents at issue and the underlying facts of this case go undisputed by the parties. Appellees’ only argument on appeal is that the confirmation decision is not final, therefore creating an issue of fact as to whether or not the confirmation will be denied. This argument goes to the ripeness of the appeal, not to a factual question. Further, as we have stated, no appeal having been filed from the second denial of confirmation by the trial court, the denial is final and the legal merits of this appeal can be reached.

2. At the outset, it must be determined whether appellees are seeking a deficiency judgment against appellant which is barred due to the failure to obtain a confirmation of the sale. A creditor may not seek a deficiency judgment with respect to any real estate sold on foreclosure unless a confirmation of the sale is obtained. OCGA § 44-14-161. “A deficiency judgment is the ‘imposition of personal liability on mortgagor for unpaid balance of mortgage debt after foreclosure has failed to yield full amount of due debt.’ [Cit.]” Redman Indus. v. Tower Properties, 517 FSupp. 144, 151 (5) (N.D. Ga. 1981). The Georgia courts have determined whether a deficiency judgment is being sought in a variety of circumstances. For example, “when a secured creditor seeks to satisfy its claim from property of a debtor other than the security itself, the creditor is in substance seeking a deficiency judgment.” Id. After an initial foreclosure under a deed with a “dragnet clause,” a subsequent foreclosure under a separate deed securing separate property is not a deficiency judgment, but is a separate contractual remedy of the creditor not subject to the confirmation requirement. Salter v. Bank of Commerce, 189 Ga. 328, 332 (6 SE2d 290) (1939). No deficiency judgment is involved when a creditor seeks to enforce a judgment obtained prior to instituting foreclosure. Taylor v. Thompson, 158 Ga. App. 671, 673 (282 SE2d 157) (1981). Further, recovery on a separate, subsequent and different note for a different debt and for which separate property was conveyed is not recovery of a deficiency judgment on a previous note that contained a dragnet clause. Vaughn & Co. v. Saul, 143 Ga. App. 74 (1) (237 SE2d 622) (1977). An unsecured note that is part of the same transaction involving a secured note may be sued upon despite a failure to obtain confirmation of the foreclosure for the secured note. Murray v. Hasty, 132 Ga. App. 125 (1) (207 SE2d 602) (1974). See also Bryant v. Branch, 142 Ga. App. 189 (1) (235 SE2d 688) (1977); Kennedy v. Trust Co. Bank &c., 160 Ga. App. 733, 736 (288 SE2d 87) (1981).

In the instant case, both notes are clearly secured by the same deed and the same property. “[T]he two debts represented purchase money loans and the security for both was the property purchased.” Kennedy, supra at 736. The notice of acceleration of the $75,195 note indicated that the property securing the note would be foreclosed, and the application for confirmation was clear in that the total debt comprised of the two notes had not been realized by the foreclosure. “The two debts, secured by the same property, held by the same creditor . . . are owed by the same debtor and are inextricably intertwined. They are not independent of each other, and a foreclosure of one affects the other. If the whole of the property is exhausted in foreclosing the first there is still a secured debt for which the holder desired to obtain a deficiency judgment.” Murray, supra at 127. Notwithstanding the fact that the foreclosure advertisement only referenced the larger note, we deem the instant action to be a deficiency judgment which is barred due to the failure to obtain a confirmation. Summary judgment should have been granted to appellant.

Decided July 10, 1990.

Gary C. Harris, for appellant.

Wendell K. Willard, for appellees.

Judgment reversed.

Banke, P. J., and Birdsong, J., concur.

       There are inconsistencies in the record as to the exact page on which the Security Deed was recorded. As this has not been raised by the parties as affecting any issue in this case, we will assume that each reference refers to the Security Deed.


author: Banke, Presiding Judge.

text:
    A90A0272.
    MORTGAGE SAVINGS COMPANY et al. v. KKFB INVESTMENT COMPANY.
    (396 SE2d 16)
   Banke, Presiding Judge.

The appellee sued the appellants to recover damages for their alleged breach of a lease agreement. A jury returned a verdict in the appellee’s favor in the amount of $36,000, and this appeal followed.

Appellants JTH, Inc., Harold J. Isaacson, Inc., Melvin Tisher, Inc., and Tammy Investment Associates conducted a mortgage brokerage business under the trade name, Mortgage Savings Company. That company leased certain commercial space from the appellee for a two-year term ending on November 30, 1988, at a rental of $2,300 a month. The rental payments for August and September of 1987 were approximately two weeks late, and no subsequent rental payments were made. In October of 1987, the appellants advised the appellee that they “were undecided about the space”; and on November 1, 1987, the appellee sent a “notice of default and acceleration of rent” to the appellants, demanding the remainder of the installments due under the lease, plus late fees. It filed the present action on January 15, 1988. At that time, approximately 10 months remained on the lease term; however, the term had expired completely by the time the case was tried. Held:

1. The appellants contend that they were entitled to a directed verdict with respect to the appellee’s claim for the unpaid rental installments which had not yet become past-due at the time the suit was filed, on the ground that the acceleration clause constituted an unenforceable penalty provision. However, it is apparent both from the pre-trial order and from the colloquy surrounding the motion for directed verdict that one theory upon which the appellee was seeking to recover these installments at trial was that they had, by that time, become past-due. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” OCGA § 9-11-15 (b). “ ‘Implied consent usually is found where one party raises an issue material to the other party’s case, or where evidence is introduced without objection. . . .’” McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 514 (250 SE2d 424). (1978), citing 3 Moore’s Fed. Practice § 15.13 [2]. Thus, the appellants’ motion for directed verdict was properly denied under the circumstances, regardless of whether the acceleration clause was enforceable. Compare Nickerson v. Candler Bldg., 156 Ga. App. 396 (274 SE2d 582) (5) (1980) (holding that a default judgment for unpaid rent was properly limited to payments which were past-due at time suit was filed).

Decided June 25, 1990

Rehearing denied July 11, 1990.

Craft & Spell, L. Penn Spell, Jr., for appellants.

Berthold & Gordon, Richard A. Gordon, Awtrey & Parker, Dana L. Jackel, Gambrell, Clarke & Russell, Max B. Hardy, Jr., for appellee.

2. The appellants’ remaining enumerations of error are rendered moot by the foregoing.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0399.
    WOFFORD v. THE STATE.
    (395 SE2d 630)
   Birdsong, Judge.

Appellant was convicted by a jury of reckless conduct (OCGA § 16-5-60 (b)). In his appeal, he contends that the trial court erred in failing to give a charge on circumstantial evidence and in restricting his counsel’s closing argument. He also argues that the evidence was insufficient to support his conviction. Held:

1. Viewed in the light most favorable to the jury’s verdict, the evidence adduced at trial reflects the following: Appellant and the victim had lived across the street from each other for approximately seven years, and had been engaged in a land line dispute for over a year. One evening, as the victim returned from her routine walk, appellant, who had been sitting in his truck in his driveway, pulled rapidly out of his driveway, accelerated toward the victim and slammed on his brakes stopping so close to the victim that she had to jump out of the way for fear that appellant would not stop. Appellant then said to the victim: “I will get you yet, you old bitch.” The victim was noticeably shaken and frightened; and a neighbor who witnessed the incident called the police. Several days later, appellant boasted to another neighbor that he “did it because he was hot,” and suggested to the neighbor that if he had wanted to kill the victim he could have. The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crime charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); compare Horowitz v. State, 243 Ga. 441 (254 SE2d 828).

2. Appellant contends that the trial court erred in not charging OCGA § 24-4-6, which provides: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” “ ‘An instruction on [OCGA § 24-4-6] is required only when the case is totally dependent upon circumstantial evidence.’ [Cits.]” Arnett v. State, 245 Ga. 470 (4) (265 SE2d 771); Beard v. State, 193 Ga. App. 877 (2) (389 SE2d 384). In the instant case there was direct evidence that appellant drove his truck directly at the victim and stopped just short of striking her. Appellant, however, contends that since an essential element of reckless conduct is “consciously disregarding a substantial and unjustifiable risk,” and the dhly evidence of this element was circumstantial, the trial court was required to give the charge. We disagree. In Lee v. State, 177 Ga. App. 8 (338 SE2d 445), this court recognized the line of cases supporting appellant’s argument, including McGruder v. State, 213 Ga. 259 (98 SE2d 564), but found that Arnett v. State, supra, was binding precedent. We are satisfied that the pertinent principle of law contained in Arnett, supra, and Beard, supra, is controlling in view of the facts in this case, and find no basis for abandoning the legal precedent found therein. See generally State Farm &c. Ins. Co. v. Astro Leasing, 194 Ga. App. 515, 518 (390 SE2d 885). Accordingly, we find no error with the trial court’s failure to charge OCGA § 24-4-6.

3. During closing arguments, the trial court sustained the State’s objection to defense counsel’s comment about the State’s failure to call the investigating officer as a witness. “As a general rule, ‘the defendant is not permitted to comment on the State’s failure to produce certain witnesses.’ [Cit.] ” Braggs v. State, 189 Ga. App. 275 (3) (375 SE2d 464). We find no error with the application of the general rule in this case.

Decided June 26, 1990

Rehearing denied July 11, 1990.

Millard C. Farmer, Jr., Joseph M. Nursey, for appellant.

Ralph T. Bowden, Jr., Solicitor, Ann M. Elmore, Assistant Solicitor, for appellee.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A0535.
    HENDRICKS v. DAVIS.
    (395 SE2d 632)
   Deen, Presiding Judge.

In 1980, the appellant, Roselyn Hendricks, wanted to sell almost 36 acres of land that had previously been sold and reacquired as a result of foreclosure. The appellee, Laurie Davis, who had served as Hendricks’ attorney in various matters, including the foreclosure proceeding through which Hendricks reacquired the property, expressed interest in purchasing the property. Consequently, Hendricks sold the land to Field Properties, Inc., a company owned by Dudley Field, a real estate developer client of Davis. Field Properties paid $24,560 down, and executed a promissory note for the $61,000 balance, payable in three installments at 12 percent interest; in the note, Field Properties also agreed to pay Hendricks 25 percent of the net profits resulting from the development of the property. Davis (who also was to receive 25 percent of the profits) and Dudley Field personally guaranteed the note.

In late May 1982, after Field Properties had failed to make the first installment payment even with a six-month extension of time, Hendricks requested Davis to attempt to collect under the note; in early June 1982, Davis suggested that Hendricks obtain other counsel. Hendricks did hire another attorney to accelerate payment under the note, and on July 22, 1982, Hendricks accepted payment of $72,579.95 principal and interest, which was paid by Field and Davis as guarantors. The payment was conditioned upon its satisfying the obligation of the guarantors, although Hendricks retained the right to pursue any other obligations that may be outstanding under the note.

Subsequently, Field Properties conveyed the property to its sister corporation, D & B Associates, Inc., which entered a joint venture with Harwell-Owens, Inc., a land developer with more experience and financial means to develop the property. By the end of 1983, ninety percent of the residential lots had been sold, and in May 1984 Hendricks commenced this action against Field Properties, Dudley Field, D & B Associates, Inc., Harwell-Owens, Inc., and Davis, to recover 25 percent of the profits from the subdivision development. She alleged that Davis was liable under the note and also because of professional malpractice. Hendricks eventually dismissed Harwell-Owens, Inc., and on June 20, 1988, in exchange for $19,000, she settled her claim against all the defendants except Davis. In the settlement agreement, she expressly stated her intent to pursue her claim against Davis.

During the trial, Hendricks and Davis both moved for directed verdict, but the trial court deferred ruling on the motions until the jury reached a verdict. After the jury returned a verdict for Davis, the trial court granted Davis’ motions for directed verdict, and denied that of Hendricks. This appeal followed. Held:

1. Davis moved for directed verdict on Hendricks’ claim on the note, on the basis that she was discharged as a result of Hendricks’ release of the principal debtor and his co-surety. Generally, discharge of the principal debtor also discharges the surety. OCGA § 10-7-2; Samples v. Kamp-N-Go Systems, 139 Ga. App. 324 (228 SE2d 360) (1976). If a creditor reserves all rights against a surety in discharging a principal debtor, and that discharge of the principal is done with the knowledge and consent of the surety, discharge of the surety does not necessarily follow. See Schwitzerlet-Seigler Co. v. C & S Bank, 155 Ga. 740 (118 SE 365) (1923). However, the evidence was uncontroverted that Davis was unaware of the settlement between Hendricks and the other defendants until after the fact, and that she had never consented to it. Moreover, notwithstanding Hendricks’ reservation of rights against Davis in the settlement agreement, her release of Davis’ co-surety without Davis’ consent also discharged Davis. OCGA §§ 10-7-20; 10-7-21; see Overcash v. First Nat. Bank, 115 Ga. App. 499 (155 SE2d 32) (1967).

Accordingly, the trial court properly directed verdict for Davis on the note.

2. The basis of Hendricks’ malpractice claim against Davis was that she had acted under a conflict of interest because of her representation of both Hendricks and Field Properties, and because of her personal involvement. Although Hendricks may have presented evidence of Davis’ violation of the Georgia Code of Professional Responsibility, such a violation alone cannot support Hendricks’ action seeking money damages. Roberts v. Langdale, 185 Ga. App. 122 (363 SE2d 591) (1987). In order for her to recover on the legal malpractice claim, Hendricks had to prove that Davis’ alleged ethical violations proximately caused the deprivation of her right to receive 25 percent of the net profits from the subdivision development. Whitehead v. Cuffie, 185 Ga. App. 351 (364 SE2d 87) (1987).

In the instant case, there was no evidence that Davis’ alleged malpractice prevented Hendricks from recovering under the note from Field Properties. Indeed, since Hendricks settled her claim against Field Properties, it became impossible to establish her inability to recover the net profits under the note. “Although nominal damages can be awarded where there has been an injury but the injury is small, . . . where there is no evidence of injury accompanying the tort, an essential element of the tort is lacking, thereby entitling the defendant to judgment in his favor.” Whitehead v. Cuffie, supra at 353.

Decided June 27, 1990

Rehearing denied July 11, 1990 — Cert, applied for.

Roberts O. Bennett, for appellant.

Freeman & Hawkins, T. Ryan Mock, Jr., for appellee.

Jay C. Stephenson, amicus curiae.

3. Since her action was commenced in 1984, Hendricks was assessed costs by the superior court clerk in the manner allowed prior to the 1986 revision of OCGA § 15-6-77. Hendricks moved to re-tax the costs using the post-1986 revision schedule. We find no error in the trial court’s denial of that motion.

4. In view of this court’s holding above in Divisions 1 and 2, we need not address Hendricks’ enumerations of error concerning jury instructions.

Judgment affirmed.

Pope and Beasley, JJ., concur. Beasley, J., also concurs specially.

Beasley, Judge,

concurring specially.

I fully concur and note only that the allegations were that Disciplinary Standards 30, 33, 35, 36, and 69 of State Bar Rule 4-102 were violated. There was expert opinion testimony on both sides of these issues.


author: Carley, Chief Judge.

text:
    A90A0599.
    BORDEN v. JOHNSON et al.
    (395 SE2d 628)
   Carley, Chief Judge.

After appellant-plaintiff was discharged as appellee-defendants’ at-will employee, she brought this tort action based upon allegations that her employment had been terminated because of her pregnancy. Appellees answered, denying the material allegations of appellant’s complaint, and they subsequently moved for summary judgment. The trial court granted summary judgment in favor of appellees and appellant appeals.

1. Appellant urges that a genuine issue of material fact remains as to her tort claim for the “wrongful” termination of her employment. However, “[a]n employee, employed at will and not by contract, cannot bring an action against his employer for wrongful discharge from employment or wrongful interference with the employment contract when and where he is an at will employee with no definite and certain contract of employment. . . . The employer, with or without cause and regardless of its motives may discharge the employee without liability. [Cits.]” Troy v. Interfinancial, 171 Ga. App. 763, 766 (1) (320 SE2d 872) (1984).

Appellant nevertheless contends that a termination of her at-will employment because of her pregnancy would violate “public policy” and that she is, therefore, authorized to recover in tort for “wrongful” discharge. It has been recognized that an employer’s immunity from liability for discharge of an at-will employee “may not apply to discharge for a reason that is impermissible on grounds of public policy, such as a discharge based upon race.” A. L. Williams & Assoc. v. Faircloth, 259 Ga. 767, 769 (3c), fn. 4 (386 SE2d 151) (1989). There is, however, a major difference between a general recognition, on the one hand, that there may exist “public policy” exceptions to a long-recognized proposition of state law and a specific recognition, on the other hand, that the determination of the existence of a “public policy” and how to enforce it is a judicial function. The courts of this state have consistently held that they will not usurp the legislative function and, under the rubric that they are the propounders of “public policy,” undertake to create exceptions to the legal proposition that there can be no recovery in tort for the alleged “wrongful” termination of the employment of an at-will employee. That the courts of other jurisdictions may have done so is of no consequence because “in Georgia . . . this rule is statutory. . . . [Cit.]” Goodroe v. Ga. Power Co., 148 Ga. App. 193, 194 (1) (251 SE2d 51) (1978). Accordingly, “Georgia courts have refused to acknowledge any exceptions not encompassed by OCGA § 34-7-1, [cit.], and, in the absence of any express statutory provision for such a civil remedy . . ., we decline ... to create judicially such a remedy. ‘Courts may interpret laws, but may not change them. [Cit.]’ [Cit.] ‘These inadequacies in our existing law, however, if they be such, cannot be supplied by the courts, and may only be corrected by the General Assembly.’ [Cit.]” Evans v. Bibb Co., 178 Ga. App. 139-140 (1) (342 SE2d 484) (1986).

In this state, there clearly do exist certain viable “public policy” exceptions to the proposition that the employment of an at-will employee can be terminated for any reason whatsoever or for no reason at all. However, each of these “public policy” exceptions was created by the legislature, not by the courts, and none of those “public policy” exceptions purports to authorize appellant’s instant tort claim for “wrongful” termination of her employment. See OCGA § 18-4-7 (which prohibits the discharge of any employee because his earnings have been subjected to garnishment for any one indebtedness); OCGA § 34-1-2 (which criminalizes the discharge of employees on the basis of age); OCGA § 34-1-3 (which authorizes an employee who was discharged for attending a judicial proceeding in response to a court order or process to recover damages and attorney’s fees); OCGA § 34-6A-1 et seq. (which authorizes an employee who was allegedly discharged as the result of a handicap to initiate a civil action). At-will employees, who are not otherwise within these specific state-recognized “public policy” exceptions, are not necessarily without any remedy when their employment is terminated. There are rights created under federal statutes which may be enforced by certain aggrieved at-will employees without regard to the principles of state law. Although those at-will employees may have no state remedy, they do have a viable remedy for the “wrongful” termination of their employment. The determination of whether these federal statutes are reflective of this state’s “public policy” and if so, whether they are sufficiently comprehensive as to obviate the necessity for creation of an additional state remedy are matters to be addressed by legislators who are the elected representatives of the public.

Thus, an at-will employee whose employment is “wrongfully” terminated in violation of the “public policy” that is established by specific state or federal statutes may pursue his applicable statutory remedy without being barred by the proposition that an employer otherwise incurs no liability for discharging an at-will employee. See A. L. Williams & Assoc. v. Faircloth, supra at 769, fn. 4. However, unless our General Assembly has created a specific exception to OCGA § 37-7-1, an at-will employee has no viable state remedy in the form of a tort action for “wrongful” discharge against his or her former employer. See Evans v. Bibb Co., supra at 139 (1). The General Assembly has not enacted such a “public policy” exception which is to be applied when an at-will employee’s employment is allegedly terminated because of gender in general or pregnancy in specific. Compare OCGA § 34-5-1 et seq. (which neither concerns employment discharge nor creates a tort remedy, but which declares discriminatory wage practices on the basis of sex to be against “public policy” and authorizes an employee’s recovery of unpaid wages for such practices). If appellant has any remedy, it is under federal law and not under the theory that she has a viable state tort claim. It follows that the trial court correctly granted summary judgment in favor of appellee as to appellant’s “wrongful” discharge claim.

2. Since, under applicable provisions of state tort law, at-will employment can be terminated for any or no reason, that appellees discharged appellant for whatever reason, without more, gives rise to no claim for the intentional infliction of emotional distress. See Lane v. K-Mart Corp., 190 Ga. App. 113, 114 (3) (378 SE2d 136) (1989). The trial court correctly granted summary judgment in favor of appellees as to this claim.

Decided June 25, 1990

Rehearing denied July 11, 1990 — Cert, applied for.

Warshauer & Lewyn, Michael J. Warshauer, for appellant.

Joe C. Ashworth, for appellees.

3. We do not reach the issue of whether pregnancy is a “handicap” so as to authorize appellant to recover pursuant to OCGA § 34-6A-1 et seq. Appellant did not purport to state a claim under those statutory provisions, but asserted only tort claims for the “wrongful” termination of her at-will employment and the intentional infliction of emotional distress. The issue of whether discharge on the basis of pregnancy violates the “public policy” evidenced by OCGA § 34-6A-1 et seq. can only be addressed in the context of an action wherein enforcement of those statutory provisions is sought.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.