author: Deen, Presiding Judge. Benham, Judge,

text:
    A89A0830, A89A0831.
    LABELLE v. LISTER; and vice versa.
    (385 SE2d 18)
   Deen, Presiding Judge.

Appellant/cross-appellee Melanie Labelle and appellee/cross-ap-pellant Tammy Lister are both employed by Brown & Williamson Tobacco Company in Macon, Georgia, and both had been working the 11:00 p.m.-7:00 a.m. shift when the incident which underlies the instant appeal took place. Both parties completed their shift, left the building where both worked, entered the adjacent company-maintained parking lot, and, after pausing momentarily to discuss an upcoming private social event, entered their vehicles and prepared to leave the parking lot. Ms. Lister’s automobile struck Ms. Labelle’s pick-up truck at approximately 7:08 a.m., according to the security guard on duty, with the result that Ms. Labelle’s arm was broken.

Ms. Labelle filed a complaint against Ms. Lister seeking compensation for her injury. The latter answered, denying any negligence and citing as defenses, inter alia, plaintiff’s negligence; comparative negligence; legal accident; and the immunity of a fellow servant under workers’ compensation law. The complaint was subsequently amended to include a claim for loss of income.

Ms. Lister moved for summary judgment under OCGA § 34-9-11, which deals with the exclusivity of workers’ compensation as the remedy for injuries among fellow employees. The brief supporting the motion noted, inter alia, that Ms. Labelle had filed a claim with the State Board of Workers’ Compensation in connection with the incident. Labelle contended, in response to the motion, that genuine issues of material fact precluded summary adjudication, and the trial court thereafter entered, an order denying the motion on the basis urged by Ms. Labelle.

Shortly before trial, Ms. Labelle filed a motion in limine prohibiting the defendant from introducing any evidence to the effect that Ms. Labelle had said the collision was unavoidable. Ms. Lister filed a motion in limine to exclude evidence tending to establish that after the collision Ms. Lister had stated that she was at fault and that her insurance would cover the damage.

The jury, obviously concerned about the workers’ compensation aspect of the case (the foreman had sent the court a note asking for clarification of certain workers’ compensation considerations, and the jury’s initial verdict had read, “For workers’ compensation”), returned a verdict for defendant Lister. Ms. Labelle appealed, and Ms. Lister filed what she designates as a “protective cross-appeal.” Ms. Labelle enumerates as error, in Case No. A89A0830, certain eviden-tiary rulings and jury instructions. Ms. Lister’s sole enumeration in Case No. A89A0831 is that the trial court erred in denying her motion for directed verdict on the fellow-servant tort immunity defense. She contends that a reversal of this ruling would in effect render moot most, if not all, of appellant/cross-appellee’s enumerations. Held:

1. It is well settled that when an injury arises out of and in the course of employment, the employee’s sole remedy is against the employer, pursuant to OCGA § 34-9-11. It is also well settled that the period of employment generally includes a reasonable time for ingress to and egress from the work station. Knight-Ridder Newspaper Sales v. Desselle, 176 Ga. App. 174 (335 SE2d 458) (1985). In West-Point Pepperell v. McEntire, 150 Ga. App. 728 (258 SE2d 530) (1979), this court affirmed the applicability of workers’ compensation law in the case, holding at 729 that the parking lot was a part of the employer’s premises and that an employee “remains in the course of . . . employment” during a reasonable time for egress. In United States Cas. Co. v. Russell, 98 Ga. App. 181, 184 (105 SE2d 378) (1958), the court found 30 minutes between automobile and work station “not an unreasonable time.” In the instant case it is undisputed that both parties left their work stations at 7:00 a.m. and that the security guard was notified of the collision at 7:08 a.m. — or well within the “reasonable time” contemplated by the cited decisions.

OCGA § 9-11-50 (a) provides that a verdict “shall be directed” when “there is no conflict in the evidence as to any material issue and the evidence . . . shall demand a particular verdict.” Applying the “any evidence” standard, we find that the evidence did not authorize a directed verdict for appellant/cross-appellee Labelle. Thus as a matter of law the Workers’ Compensation Act works in the instant case to preempt any tort claims that otherwise might lie.

2. Having found preemption under the Workers’ Compensation Act, Division 1, supra, we do not address the parties’ remaining enumerations of error.

Judgment affirmed in Case No. A89A0830; Case No. A89A0831 dismissed.

Birdsong, J., concurs. Benham, J., concurs specially.

Benham, Judge,

concurring specially.

While I completely concur with the resolution of these appeals, I believe it is important to recognize that in determining whether the injury arose out of and in the course of employment, there are factors to be considered other than just the time sequence in which the injury occurred. Such factors may include whether the site of the injury was the only means of the employee’s ingress and egress. (DeHowitt v. Hartford Fire Ins. Co., 99 Ga. App. 147 (108 SE2d 280) (1959)); whether there was a causal connection between the employment and the injury (Borden Foods Co. v. Dorsey, 112 Ga. App. 838 (3) (146 SE2d 532) (1965); Employers Ins. Co. v. Bass, 81 Ga. App. 306 (58 SE2d 516) (1950)); or whether a personal deviation has broken the link with employment (Chandler v. General Accident &c. Corp., 101 Ga. App. 597 (114 SE2d 438) (1960)). Thus, “[w]hat constitutes a reasonable interval depends not only on the length of time involved but also on the circumstances occasioning the interval and the nature of the employee’s activity.” 1 A Larson’s Workmen’s Compensation Law, 5-42, § 21.60.

Decided July 12, 1989

Rehearing denied July 25, 1989

Dozier, Akin & Lee, L. Z. Dozier, for appellant.

Jones, Cork & Miller, Wallace Miller III, for appellee.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    A89A1145.
    KAPLAN et al. v. GIBSON et al.
    (385 SE2d 103)
   Deen, Presiding Judge.

On April 6, 1983, Eugene Gibson had an epidural steroid injection in the L 2-3 vertebral interspace of his lumbar spine, for treatment of his chronic low back pain. Six days later, he was admitted to a hospital for severe back pain and fever. The admitting physician noted a warm area around the L 2-3 interspace, but Dr. Jeffrey Woodward, who was the treating neurologist, did not notice that because Gibson’s body was warm all over due to a high fever. Dr. Woodward considered an epidural abscess to be a remote possibility, but primarily suspected that Gibson had meningitis.

According to Dr. Woodward, in order to diagnose meningitis and devise a treatment, he attempted 4 or 5 spinal taps at the L 2-3, L 3-4, and L 4-5 interspaces. All were dry taps, so he asked a Dr. Finch, an anesthesiologist, to attempt a spinal tap. Dr. Finch attempted 4 to J 5 additional taps at the same interspace, but likewise was unsuccessful. Dr. Woodward then called his partner, Dr. Gary Kaplan, who later attempted 4 to 5 unsuccessful taps at the L 2-3, L 3-4, L 4-5, and L 5-S 1 interspaces under flouroscopy. Dr. Kaplan in turn asked the assisting radiologist, Dr. Robert Walker, to try a tap, and Dr. Walker also attempted 1 or 2 unsuccessful taps at the L 1-2 inter-space.

Dr. Woodward and Dr. Kaplan then contacted Dr. Alan Kor-sower, a neurosurgeon, to perform a cervical tap to obtain the spinal fluid and to do a myelogram to localize any abscess that may have been present. (Dr. Korsower testified at trial that Dr. Kaplan had said nothing about the possibility of an epidural abscess, and had requested only the cervical tap.) Dr. Korsower was unable to undertake the procedure that night at the hospital because of equipment problems, but he made arrangements to transfer Gibson to another hospital early the next morning. That night, however, Dr. Korsower observed multiple puncture marks and redness and swelling around the L 2-3 interspace, and considered an epidural abscess in that area to be a possibility.

The following morning, prior to surgery, Dr. Korsower noted that Gibson had weakness of the left quadriceps and left tibia, and L 3 through L 5 radiculopathy. He also observed 25 to 30 needle marks on Gibson’s back. He succeeded in getting spinal fluid by a cervical tap, and the assisting radiologist, Dr. William Lang, also made a couple of taps at the L 5, S 1 interspace and obtained fluid. Later that day, Dr. Korsower operated on Gibson’s back and located and removed an epidural abscess at the L 2-3 level; he was also alarmed when he discovered a 2- to 3-millimeter-wide tear in the dura and that several nerve roots had been lacerated.

Gibson recovered from the meningitis, but because of this nerve root damage he suffered permanent neurological deficits, including (a) lack of sensation in left leg, left foot, buttocks, testicles, and penis, (b) constant pain in left leg, (c) left leg and foot weakness, and (d) impairment of bowel and bladder function. He and his wife commenced this medical malpractice action to recover for that impairment, originally naming as defendants Dr. Woodward, Dr. Kaplan, Neurological Consultants, P. C. (the professional corporation formed by Woodward and Kaplan), Dr. Finch, and Dr. Walker, but eventually voluntarily dismissed the latter two doctors. The jury awarded the Gibsons $200,000. The trial court denied the appellants’ motion for judgment notwithstanding the verdict, and this appeal followed. Held:

1. The appellants contend that the evidence could not support the verdict because there was no evidence of partnership and no proof of causation. Concerning the issue of partnership, although it is undisputed that the appellants were members of a professional corporation, it is equally uncontroverted that the appellants held themselves out to others as partners. Dr. Woodward referred to Dr. Kaplan as his partner when he contacted Gibson’s wife to get consent for the spinal tap, and Gibson’s wife relied upon that representation that the two doctors were treating her husband. Dr. Kaplan referred to Dr. Woodward as his partner when he contacted Dr. Korsower to request the cervical tap. Even at trial both appellants referred to each other as partners. Under these circumstances, the evidence supported a finding of ostensible partnership. OCGA § 14-8-16.

Concerning causation, contrary to the appellants’ contention, it was unnecessary for the appellees to show precisely which doctor did what damage to Gibson’s nerve roots. There was expert opinion evidence that spinal taps usually do not damage nerve roots because the nerve roots are normally free-floating and can move out of the way of the tap needle, but that an epidural abscess can bind the nerve roots in place, making it possible to damage them with a tap needle; for that reason, in addition to the reason that it could cause a meningitis, a spinal tap in an area where an abscess is suspected is absolutely contraindicated. There was also evidence that only the appellants and Dr. Finch, who attempted taps at the request of the appellants, did spinal taps at the interspaces where the abscess was located, and thus only those taps could have damaged Gibson’s nerve roots. The gist of the appellees’ action concerned not the technical competence with which the various spinal taps were made, but the decision to tap in an area which the appellants as treating physicians knew or should have known was the site of a possible epidural abscess. The appellees’ evidence supported that theory of recovery and sufficiently showed the cause of the injury in this case.

2. The trial court instructed the jury on the doctrine of ostensible partnership, but failed to include that the liability of such ostensible partners is to persons who rely upon the representation of partnership. The trial court then instructed the jury that it must separately consider whether Dr. Woodward and Dr. Kaplan individually contributed to the injury, unless it found the existence of a partnership, in which case the appellants (including the professional corporation) could be jointly liable. The appellants contend that with these instructions the trial court erroneously charged the jury on partnership and its effect upon the requirement of proof of causation.

The trial court basically informed the jury of general partnership liability, i.e., that all the partners and the partnership could be liable for the partners’ torts (if committed within the scope of the partnership.) See Rogers v. Carmichael, 184 Ga. 496 (192 SE 39) (1937). We do not find this error, and also do not find the trial court’s omission of detrimental reliance upon the representation of partnership from the charge on ostensible partnership to invalidate a finding of partnership in this case.

3. The appellants also contend that the trial court erred in charging the jury on the liability of physicians for the acts of other physicians. The trial court initially instructed the jury that a physician is normally not responsible for the acts of another physician over whom he has no authority or control, but that a physician can be liable for another physician’s acts (1) where the latter physician is subject to the control of the first, or (2) where the first physician directs a second physician to perform an act, and that request itself is negligence (as opposed to the technical competence by which the act was done.) The trial court also instructed the jury that this charge did not apply to the assignment of the patient to Dr. Korsower, or any act taken by Dr. Korsower or Dr. Lang. We find nothing wrong with this jury charge, and, contrary to the appellants’ suggestion that it foreclosed the jury from assigning some of the blame for Gibson’s injury to Dr. Korsower and Dr. Lang, the latter portion of the charge referring to Dr. Korsower and Dr. Lang actually served to foreclose the jury from finding the appellants liable for any negligence it may assign to Dr. Korsower and Dr. Lang.

Decided July 10, 1989

Rehearing denied July 25, 1989.

Love & Willingham, Daryll Love, Robert P. Monyak, for appellants.

Driebe & Rumsey, D. Lake Rumsey, Jr., Cohen, Pollock, Cooper & Comolli, Lawrence A. Cooper, for appellees.

Judgment affirmed.

Benham, J., concurs. Birdsong, J., concurs in Divisions 2 and 3 and in the judgment only of Division 1.


text:
    A89A1368.
    SELFRIDGE v. MORRISON CAFETERIA COMPANY.
    (385 SE2d 137)
   Deen, Presiding Judge.

This court granted Frances Selfridge’s application for a discretionary appeal to review a decision of the superior court reversing an award of the State Board of Workers’ Compensation.

The Administrative Law Judge found that on August 21, 1983, appellant suffered a heart attack during an armed robbery at her place of employment. On May 7, 1987, she suffered a stroke and incurred certain medical expenses for which she filed a claim for workers’ compensation. The ALJ found a causal relationship between the heart condition and the stroke. This award was appealed to the Full Board, which affirmed except for the award of attorney fees, which was stricken. On appeal, the superior court held that it was reversing the award because of inconsistencies in the deposition testimony of Mrs. Selfridge’s treating physician, and that there was insufficient evidence in the record to support the award and facts as found by the Board. Held:

1. A finding of fact by an ALJ and the Full Board, “when supported by any evidence, [is] conclusive and binding. [Cit.] The superior court is not authorized to substitute its judgment for that of the Full Board. [Cit.] The superior court is authorized to reverse an award of the Full Board only when there is plain error of fact or an error purely of law. [Cit.]” Dept. of Public Safety v. Boatright, 188 Ga. App. 612, 614 (373 SE2d 770) (1988). Where the evidence is conflicting, “ ‘ “the resolution of discrepancies and the determination of witnesses’ credibility is ordinarily for the ALJ or the Board as finders of fact. [Cits.]” ’ ” Horizon Indus. v. Carter, 188 Ga. App. 194, 196 (372 SE2d 301) (1988).

Decided July 14, 1989

Rehearing denied July 25, 1989

Charles E. Muskett, for appellant.

Saveli & Williams, Benjamin H. Terry, Jennifer H. Chapin, for appellee.

Mrs. Selfridge’s cardiologist, who is her regular treating physician, testified that her stroke resulted from her preexisting heart condition. He believed the source for the embolus which caused her stroke to be a thrombus attached to the wall of her heart, which was discovered by a previous heart catherization. He testified that the em-bolus which caused the stroke could have come from either her heart or her carotid arteries, but that studies of her carotid arteries showed no significant source for an embolus. He therefore concluded that the embolus most likely arose from the heart.

Applying the “any evidence” rule to this case, we find that it must be reversed.

2. Appellee has filed a motion in this court to remand this case, after a decision on the merits has been reached, for a hearing on appellant’s motion to proceed in forma pauperis contending that the motion was filed and ruled upon on April 3, 1989, and that it had no opportunity to respond in opposition.

OCGA § 5-6-38 provides that appellee “may institute cross-appeal by filing notice thereof within 15 days from service of the notice of appeal by the appellant, and the appellee may present for adjudication on the cross appeal all errors or rulings adversely affecting him.” As appellee has not filed a cross-appeal this matter is not properly before this court.

Judgment reversed.

Birdsong and Benham, JJ., concur.


author: Pope, Judge.

text:
    A89A0237.
    LOKEY & BOWDEN et al. v. PELLETIER.
    (385 SE2d 90)
   Pope, Judge.

This appeal arises out of a business transaction run amok. The record shows C. M. Culpepper owned fifty shares (fifty percent) of the stock of Buckhead House of Travel, Inc., which operated a travel agency. Forty shares (forty percent) were owned by a group of investors referred to in the litigation as the “Hurst group.” On November 11, 1984, .the Hurst group entered into a detailed written agreement whereby the Hurst group conveyed its forty shares to Travel, Inc., for payment totaling $100,000. Pursuant to the written agreement, Travel, Inc., retained the right to rescind the transaction upon written notice within 180 days of the signing of the agreement if it was unsuccessful in negotiating the purchase of Culpepper’s shares. As part of the agreement between the Hurst group and Travel, Inc., the Hurst group granted a share pledge agreement, pledging its interest in the stock to Travel, Inc., as security for repayment of the purchase price in the event Travel, Inc., rescinded the purchase. The Hurst group learned that Culpepper rejected Travel, Inc.’s purchase offer. The Hurst group then purported to sell its stock to plaintiff Ronald O. Pelletier for $100,000 on December 29, 1984. Plaintiff claims to have been unaware that the stock was subject to the previous agreement with Travel, Inc.

After executing the purported purchase agreement for the Hurst group stock, plaintiff entered into negotiations to purchase the stock held by Culpepper. Plaintiff testified that he wished Culpepper to believe that he had not yet consummated the transaction with the Hurst group but to believe that he was still negotiating with that group of shareholders as well as Culpepper. Ultimately, plaintiff was unable to reach an agreement with Culpepper and, instead, in January of 1985 filed a shareholder derivative action against Culpepper, Buckhead House of Travel and members of the Hurst group. Neither Culpepper nor the attorney for the corporation was aware that plaintiff claimed to be a shareholder in the corporation until the shareholder derivative action was filed. During the first three months after the shareholder derivative action was filed the corporation was represented in the litigation by defendant attorney Gary D. Zweifel practicing with the defendant law firm Lokey & Bowden. In mid-March 1985, Buckhead House of Travel initiated bankruptcy proceedings in the United States Bankruptcy Court. The action now before us on appeal was filed by plaintiff Pelletier against the defendant attorneys alleging defendants’ legal malpractice resulted in the corporation’s bankruptcy and therefore caused plaintiff, who claims to be a shareholder of the corporation, financial loss.

Defendants Lokey & Bowden and Zweifel filed a motion to dismiss and motion for judgment on the pleadings which was denied. The order denying defendants’ motions was premised upon the assumption that plaintiff was a shareholder of the corporation and could maintain the action for malpractice against the corporation’s attorneys. Defendants then filed a motion for summary judgment and motion for reconsideration of the trial court’s prior order in which defendants asserted that even if a shareholder could maintain such an action, the undisputed facts showed plaintiff was not a shareholder. These motions were denied because the trial court found an issue of fact was raised as to whether plaintiff was a shareholder of the corporation. Defendants appeal.

1. The threshold issue on appeal is whether an issue of fact remains as to whether plaintiff was a shareholder of the company. The undisputed evidence shows that the forty shares plaintiff claims to have purchased were first purchased by Travel, Inc. Pursuant to the purchase agreement, Travel, Inc., had an option to rescind the purchase within 180 days by giving written notice to the Hurst group. According to the agreement, immediately upon rescission the Hurst group was obligated to Travel, Inc., in accordance with the share pledge agreement until the purchase price of the shares was refunded to Travel, Inc. Travel, Inc., provided written notice of rescission by letter dated March 12, 1985. Certain members of the Hurst group provided testimony by affidavit that they “believe[d], based on [the statement by the owner of Travel, Inc. on December 1, 1984 that he could not reach an agreement with Culpepper to purchase an additional fifty shares of stock] that [they] had the right to arrange for the sale of the 40 shares of . . . stock [originally sold to Travel, Inc.] to Mr. Pelletier . . . .” The affidavits further state that Travel, Inc., rescinded the agreement on December 1,1984. However, the affidavits clearly indicate that this statement is based upon what the owner of Travel, Inc., “told” them on December 1.

The written agreement between the Hurst group and Travel, Inc., required written notice for rescission of the sale. No evidence was presented to establish that the terms of the written agreement were modified to permit oral rescission of the contract. By deposition, the owner of Travel, Inc., testified that he did not rescind the sale until March 1985 because he did not give up hope of reaching an agreement for the purchase of Culpepper’s additional shares until about March 1, 1985. Thus, the affidavit testimony of the Hurst group that the sale was rescinded in December 1984 is merely a conclusion which is insufficient to contradict the direct testimony of the owner of Travel, Inc., and to create a factual issue for the jury. See Aldridge v. Dixie Fire &c. Co., 223 Ga. 130 (1) (153 SE2d 723) (1967); Belcher v. Logan, 150 Ga. App. 249 (1) (257 SE2d 299) (1979); Chandler v. Gately, 119 Ga. App. 513 (lb) (167 SE2d 697) (1969). “ ‘In considering depositions and affidavits in support of or in opposition to motions for summary judgments the facts contained therein, and not the conclusions stated, determine whether a genuine issue of fact exists.’ Varnadoe v. State Farm Mut. Ins. Co., 112 Ga. App. 366 (145 SE2d 104 [(1965)].” Fannin v. Fannin, 133 Ga. App. 681, 682 (212 SE2d 16) (1975). Given the requirement of written notice of rescission and the period of 180 days from November 1, 1984, in which Travel, Inc., could exercise the right to rescind, the fact that the owner of Travel, Inc., told the Hurst group he had been unable to reach an agreement with Culpepper for the purchase of his stock as of December 1, 1984, does not create an issue of fact as to whether the agreement between Travel, Inc., and the Hurst group was rescinded as of that date.

Decided June 28, 1989

Rehearing denied July 26, 1989

Hicks, Maloof & Campbell, Robert E. Hicks, Robert A. Bartlett, for appellants.

Herbert P. Schlanger, for appellee.

Moreover, the owner of Travel, Inc., testified at deposition that the purchase price paid for the stock had never been repaid by the Hurst group. Therefore, pursuant to the stock pledge agreement, the stock purportedly sold to plaintiff, even after rescission by Travel, Inc., was still pledged to Travel, Inc., as security for the unrefunded purchase price.

2. We need not address the issue of whether plaintiff, if he were a shareholder, had standing to sue the corporation’s attorneys for malpractice because the evidence shows plaintiff was not a shareholder. Consequently, summary judgment in favor of defendants was improperly denied.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A89A0246.
    THE STATE v. GRANDISON.
    (385 SE2d 139)
   Beasley, Judge.

Defendant was indicted on June 9 for trafficking in cocaine (OCGA § 16-13-31) and entered a plea of not guilty at his arraignment on August 17. He appeared without counsel, who had earlier filed a “notice of conflict” setting out that the scheduled arraignment might conflict with other cases pending in other courts. No objection was made to defendant’s arraignment, and no request for its continuance was made, either in advance by counsel or, insofar as the record shows, by defendant at the time set for arraignment. Nor was any request made for an extension of time for the filing of motions, as provided for by USCR 31.1.

Defendant filed a motion to suppress evidence on August 22 and obtained a hearing date of September 22. On September 16 the State moved to dismiss the motion as untimely pursuant to USCR 31. The court heard both motions on September 22. It denied the State’s and granted defendant’s.

The State contends the court erred in considering defendant’s untimely motion. The rule requires motions to be filed at or before arraignment. It provides, however, that the time may be lengthened if a written extension is given by the court before trial. USCR 31.1; Mills v. State, 187 Ga. App. 79, 80 (2) (369 SE2d 283) (1988). The court has discretion in this matter, which will not be disturbed absent abuse. Hall v. State, 181 Ga. App. 92, 93 (1b) (351 SE2d 236) (1986).

Holding the arraignment as scheduled is not enumerated as error. Instead, defendant argues in effect that since counsel was not present, USCR 31.1 should not apply. Or at least, he contends, an exception should be made, extending the time for filing of motions for some undescribed period in circumstances such as his. He does not contend, nor does the record show, that he could not have filed, at arraignment or before, a motion to suppress prepared by counsel.

The rule allows of no exceptions as such but is hedged by authorizing the court to extend the time for filing, prior to trial and in writing. When defendant filed his late motion to suppress, however, he did not seek an extension so as to give cognizability to his motion. Instead, he simply had it set for hearing. The State moved to dismiss it as untimely. Still no written order allowing late filing was sought.

When the untimely motion came on to be heard, the State stood on its ground of procedural deficiency. The discretion exercised by the court was not in compliance with that authorized by USCR 31.1. See also Mills, supra. The court had the option of dismissing the motion to suppress or entertaining a request by defendant to enter a written order allowing its late filing. In the event the defendant sought the latter and the court chose to issue such, it then should have considered resetting the motion to suppress so as to give an opportunity to subpoena witnesses as to the merits.

Judgment reversed.

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

McMurray, Presiding Judge,

dissenting.

It is my view that the trial court properly exercised its discretion in considering defendant’s out-of-time motion to suppress. Further, it cannot be said that the trial court erred in granting defendant’s motion to suppress evidence since the State’s attorney failed to present any evidence in opposition to defendant’s unrefuted allegations of fact showing that his arrest, search and seizure were unlawful.

Defendant was arraigned on August 17, 1988, and entered a plea of not guilty. On August 22, 1988, defendant filed a motion to suppress evidence. The State, on September 16, 1988, moved “to dismiss the Motion to Suppress . . . because it was not timely filed as required by Rule 31.1 of the Uniform Superior Court Rules.” On August 22, 1988, the trial court set a hearing to be conducted on September 22, 1988, for the State to show cause why defendant’s motion should not be granted. The trial court conducted a hearing on the opposing motions and, in an order entered September 22, 1988, the trial court denied the State’s motion to dismiss and granted defendant’s motion to suppress.

(a) The State contends the trial court erred in considering defendant’s untimely motion to suppress.

Although Rule 31.1 of the Uniform Rules for the Superior Courts (253 Ga. 853) requires that “[a]ll motions, demurrers, and special pleas . . . be . . . filed at or before time of arraignment,” it also provides that the time for filing such motions may be lengthened if a written extension of time is given by the trial court before trial. Mills v. State, 187 Ga. App. 79, 80 (2) (369 SE2d 283). The trial court’s discretion in granting such an extension will not be disturbed on appeal absent abuse. See Hall v. State, 181 Ga. App. 92, 93 (1, b) (351 SE2d 236); Roman v. State, 185 Ga. App. 32 (1), 33 (363 SE2d 329); and Thompson v. State, 186 Ga. App. 421, 422 (2) (367 SE2d 586).

In the case sub judice, the trial court’s order, denying the State’s motion to dismiss defendant’s untimely motion, effectively extended the time in which defendant was permitted to file his motion to suppress. Consequently, since the record shows that the State had more than ample time to prepare for defendant’s motion to suppress before hearing, I find no abuse in allowing defendant to proceed with his motion to suppress. See Thomas v. State, 118 Ga. App. 359, 360 (2) (163 SE2d 850). Compare Stansifer v. State, 166 Ga. App. 785, 787 (3), 788 (305 SE2d 481).

(b) Next, I turn to whether the trial court erred in granting defendant’s motion to suppress.

After denying the State’s motion to dismiss, the trial court instructed the State to proceed on defendant’s motion to suppress. The State’s attorney responded, “Your honor, the State has no evidence to present on the motion to suppress. We stand on the motion to dismiss the motion to suppress.” The trial court then ruled that the State “failed to carry its burden” and granted defendant’s motion to suppress.

The burden of proving that a search was lawful is on the State. OCGA § 17-5-30 (b). Consequently, as the State failed to carry its burden of proof and since there was no question that defendant’s motion to suppress stated sufficient unrefuted allegations of fact showing that his arrest, search and seizure were unlawful, it is my view that the trial court did not err in granting defendant’s motion to suppress. See William W. Daniel, Ga. Crim. Trial Prac. (1986 ed.) 415, § 14-54.

Decided July 14, 1989

Rehearing denied July 26, 1989

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellant.

Herbert Shafer, for appellee.

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


author:
Birdsong, Judge. Pope, Judge, Deen, Presiding Judge,
      Beasley, Judge,

text:
    A89A0339.
    BIRTS v. THE STATE.
    (385 SE2d 120)
   Birdsong, Judge.

Patricia Birts, charged on March 24, 1988, with DUI and “following too close,” appeals the trial court’s denial of “absolute discharge and acquittal,” for failure of speedy trial. She filed her demand for speedy trial under OCGA § 17-7-170, on May 20, 1988.

The May term of Gwinnett State Court began, and jurors were empaneled, the week of May 9, and continued weekly through the week of June 20. The May term calendar was published May 13, prior to Birts’ demand for trial. Also on that date, May 13, Birts’ attorney was granted a formal leave of absence from the court for the entire week of June 13 and the first two days of the week of July 18. The July term of court, next succeeding, extended weekly from July 5 until the week of July 25.

Despite Birts’ attorney’s court-granted formal leave of absence for the week of June 13, the State placed Birts’ trial on calendar for June 16, and when she did not appear, the State made a “Motion to Strike Trial Demand.” The trial court granted this motion.

However, the State did place Birts’ case on the trial calendar in the next succeeding term, for the week of July 18. Birts’ counsel had obtained a formal leave of absence for the first two days of that week. The State asserts, however, that the case “was not reached because of appellant’s counsel’s representation of other defendants” [during the remainder of the week].

Birts’ case was not placed on any other calendar, and in September she filed her motion for absolute discharge and acquittal under OCGA § 17-7-170. Held:

The State attempts to justify the trial court’s denial of Birts’ motion for discharge, but we need elaborate very little in reversing. It is clear, or ought to be, that while Birts’ counsel was absent for seven days by official leave of the court during the two terms after the demand for trial, there were other weeks during May, and in June and July, when she could have been placed for trial. She was not. That is to say, despite Birts’ counsel’s proper absence by leave of court for the week of June 13 and the first two days of the July 18 week, the State scheduled her case only twice in the two terms: during those same two weeks.

The State excuses this placement of Birts’ case for trial only on the two weeks of counsel’s formal leave of absence, by suggesting her demand was not “proper” (OCGA 17-7-170) because it was made after her attorney had on May 3 requested a formal leave of absence for seven days in June and July. This justification is without merit. It proposes that an attorney can never ask for leave of absence if he has or acquires a case in which he might make a demand for speedy trial.

If there were a rule that an attorney may not ask for court leave while he has a criminal case pending in which he may later make a speedy trial demand, breach of such a hypothetical rule was not a waiver of the demand for trial in this case. It is the burden of the State to show that Birts’ failure to be tried was due to such absence or other affirmative act of defendant. State v. Allen, 165 Ga. App. 86, 87 (299 SE2d 158); Parker v. State, 135 Ga. App. 620, 621 (218 SE2d 324). The State’s failure to try Birts at some point within the two terms, May and July, as OCGA § 17-7-170 absolutely requires be done, was clearly not due to her counsel’s official leave of absence on only seven days of the 2-Vz months during which she could have been scheduled for trial. Her counsel’s leave of absence was not sudden or derelict; it was sought by motion on May 3, which was granted May 13, long before the State chose to place her on the calendar for those very times (June 13 and the week of July 18).

The trial court found that even if counsel was properly absent by leave the first two days of the week of July 18, “[c]ounsel’s representation of [other] defendants in three other cases [in the last three days of] the week of July 18 . . . depleted the balance of the trial week. ...” This finding does not explain or justify the State’s failure to set her for trial during some other week over the two terms, when it had notice or knowledge well in advance that counsel would be absent by leave of court for two days of the week of July 18. That the State then scheduled the case on the remaining three days with three others known to be represented by appellant’s counsel, is not this defendant’s fault.

The State waited until the last available moment to schedule a trial demanded 2-A months before, and piled it and several other cases upon the attorney in three days. Clearly the defense counsel’s inability to reach this case under these circumstances was not an “affirmative waiver” of this defendant’s speedy trial demand. It does not reflect that the defendant affirmatively sought to avoid trial. The procedural evidence is very clear that the State scheduled trial only when appellant’s counsel was absent or otherwise heavily engaged in other trials set by the State. Thus, the denial of her statutory right to absolute discharge and acquittal under § 17-7-170 on grounds it was she who affirmatively sought to avoid any trial (c.f. Bennett v. State, 158 Ga. App. 421 (280 SE2d 429)) is clearly erroneous.

The dissent has lengthily analyzed the Gwinnett State Court’s entire civil and criminal trial schedule, to show that during the two relevant terms of court there were very few weeks of actual trial opportunity available. The dissent’s analysis includes the point that the second term (July term) contained only one week scheduled for criminal trials. Thereupon, the dissent concludes that it was defendant’s fault by waiver that, the State and trial court having thus far failed to schedule her case for trial at a time when her attorney was not on proper leave, the trial court then at the last opportunity during the second term attempted to “accommodate defendant’s demand” by attempting to “provide a trial by sending only the four cases represented by defendant’s counsel to a pro hac vice judge on Wednesday, as soon as counsel’s leave expired [but] defendant’s case was not reached.” (Emphasis supplied.)

We do not see how the failure of this last-minute attempt at “accommodation” should be laid at appellant’s feet, in the total circumstances of this case. The statute does not provide that the State and the trial court shall provide a trial for appellant if one can be squeezed in; it does not provide that a trial does not have to be provided if the court does not have enough criminal trial dates scheduled, or enough judges to try all the criminal cases scheduled plus the one demanded; and it does not provide that the State and court can wait until the last possible opportunity and then try to accommodate the demand. It surely does not provide that, if the trial has not been scheduled for a time when it could have been heard, given due notice of defense counsel’s proper leave, and the trial court attempts to accommodate the defendant but her case is not “reached,” then the defendant’s demand has been waived. The statute provides that upon proper demand, defendant shall be acquitted and discharged, if she “is not tried when the demand is made or at the next succeeding regular term thereafter, provided at both court terms there were juries impaneled and qualified to try her.” This language does not condition itself on there being enough juries impaneled and qualified, or how many juries there were, or whether there were “enough” criminal trial weeks scheduled in the two terms. If we analyzed every case on such a basis, the statute would be gutted and the rights provided by it would become empty, depending only upon the State’s and the court’s convenience and ingenuity.

The demand would have been satisfied if the trial had been set for the earliest available date; while we do not say the State must always act accordingly, it clearly cannot wait until the last available date and deprive the defendant of her statutory right to trial or discharge when the court’s attempts to accommodate her fail.

Judgment reversed.

Carley, C. J., McMurray, P. J., Banke, P. J., Sognier and Benham, JJ., concur. Pope, J., concurs specially. Deen, P. J., and Beasley, J., dissent.

Pope, Judge,

concurring specially.

I agree that pursuant to the facts of this case the request of the defendant’s attorney for leaves of absence during the terms in which defendant requested to be tried did not constitute an affirmative act which would waive defendant’s request for a speedy trial. In this case a jury was present at other times during these two terms which could have tried the defendant. As the majority opinion points out, the fact that the term of court expired before defendant’s case was reached was not due to any affirmative act of the defendant or her attorney.

However, I would caution that an attorney’s request for leave of absence may not be used as a manipulative tool to preclude the trial of the defendant’s case within the time provided by OCGA § 17-7-170. If, for example, after the publication of the court’s criminal trial calendar the defendant’s attorney requested leave of absence during the entire period or periods scheduled for criminal trials, then the court might properly find that the request for speedy trial was waived because the state’s failure to try the defendant within the requisite time was due to the voluntary absence of defendant.

Deen, Presiding Judge,

dissenting.

The trial court found in part that “[t]he Order of June 16, 1988 is affirmative evidence, however, of Defendant’s voluntary absence from Court and a reflection of the Solicitor’s reliance upon such absence as a waiver of Defendant’s rights pursuant to O.C.G.A. § 17-7-170.” (Emphasis supplied.) The court further found “[t]he failure of the instant case to be tried during the May and July terms was the result of: i) Defendant’s filing the demand after the May trial calendar had been published; ii) Defendant’s voluntary absence by virtue of his attorney’s leave of absence for all but three of the ten days remaining in the May and July terms of Court scheduled for Criminal Jury trials; iii) Counsel’s representation of defendants in three other cases the week of July 18, 1988, the processing of which depleted the balance of the trial week, making counsel just as unavailable for the trial of this case as if he were trying a case in another jurisdiction and unavailable due to such conflict.”

In my opinion, the findings of the trial court were not clearly erroneous, and I would affirm the judgment denying “absolute discharge and acquittal” for failure of speedy trial.

Beasley, Judge,

dissenting.

The accusation against defendant was filed in the March term, on March 24.

At the next term, counsel filed an application for leave of absence in this case, pursuant to USCR 16, for what amounted to 8 jury trial days of that term and 4 jury trial days of the July term. There was no speedy trial demand pending. The State did not object to leave being approved, and the court, which determines the time for trial (Clark v. State, 138 Ga. App. 266, 271 (7) (226 SE2d 89) (1976)), granted the leave as it may do in its discretion.

On May 13, pursuant to USCR 32.1, the criminal jury calendar for the remainder of the term was published, setting trials for the week of June 13. Defendant’s case, in which no demand had been filed, was not on it. Juries were impaneled for 6 other weeks in that term also, beginning May 9, but not for criminal cases.

A week after the criminal jury calendar was published, defendant filed a statutory trial demand. However, her case was not called. She was unavailable for trial during the scheduled criminal jury trial week for that term because her counsel had already obtained leave of court for that entire week plus 3 additional days. The other jury-impaneled weeks left remaining in the term (3, 1 being a 4-day week, or a total of 19 days) were scheduled for civil cases; counsel’s leave was for 3 of those days.

The next term, the July term, had 4 jury-impaneled weeks (including 1 4-day week). Defendant’s case was put on the one week scheduled for criminal trials. However, she was unavailable for trial because her counsel had already obtained leave for the first two days of that week and was engaged in other criminal cases for the remainder of the week. The court had attempted to provide a trial that week by sending only the four cases represented by defendant’s counsel to a pro hac vice judge on Wednesday, as soon as counsel’s court leave expired. Defendant’s case was not reached. (Of the 19 jury-impaneled days in the July term, counsel’s court leave or representation in other cases made defendant unavailable for trial on 7 of them.)

The court tried to accommodate defendant’s demand, and the State was ready. Although OCGA § 17-7-170 (b) does not expressly exclude from computation those periods in the term during which juries are impaneled and qualified for civil trial weeks, it does recognize that a court which has both civil and criminal jurisdiction may in managing the calendars schedule a totally civil term. Insofar as misdemeanor cases such as this one are concerned, defendant would have no right to be tried during that term at all. By the same token, the management of cases within a dual term would not mandate by law the removal of cases from civil calendars so as to provide a jury trial for a criminal defendant who wishes a speedy trial but is unavailable for the regularly scheduled criminal trial week and then some.

Decided July 12, 1989

Rehearing denied July 26, 1989

Alan Mullinax, for appellant.

Gerald N. Blaney, Solicitor, David M. Fuller, Assistant Solicitor, for appellee.

The statute provides that defendant may demand a trial at the current term or at the next succeeding term, provided juries are impaneled and qualified. It does not say defendant may demand a trial when ready, during those periods. It does not say defendant may demand a trial when her counsel is available during those periods. It does not say defendant may condition demand to certain dates or to exclude certain dates and particularly the whole criminal jury calendar. To the contrary, the statute implies that if defendant demands prompt trial, he or she must be ready when the case is legitimately called.

That has been recognized over and over again by the appellate courts. “A waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on his part showing affirmatively that he consented to passing the case until a subsequent term.” Walker v. State, 89 Ga. 482 (15 SE 553) (1892). “[T]he defendant may waive his right to . . . automatic discharge by some action on his part or on the part of his counsel, such as his own request for a continuance of the case. [Cit.]” Parker v. State, 135 Ga. App. 620, 621 (4) (218 SE2d 324) (1975). Defendant is entitled to discharge “provided ‘that the failure to try be not due to the voluntary act of the (defendant); as, for instance, voluntary absence from court, or obtaining a postponement to another term, and the like. In all such cases the (defendant) will be held to have waived his demand.’ ” State v. Allen, 165 Ga. App. 86, 87 (299 SE2d 158) (1983).

In this case, the trial court was not in error as a matter of law in finding under the circumstances here that defendant was unavailable. The court and the State were ready, willing, and able, but she was not, albeit for good reason. In any event, the delay should not as a matter of law be laid at the doorstep of the court or the State so as to bring about a total discharge.


text:
    A89A0360.
    SUN INSURANCE SERVICES, INC. v. 260 PEACHTREE STREET, INC.
    (385 SE2d 127)
   Pope, Judge.

At issue in this appeal is whether a long-term commercial tenant in an office building seeking to renovate its space should bear the cost of asbestos removal necessitated by the renovation or whether such cost should be borne by the landlord.

Appellant, Sun Insurance Services, Inc. (Sun Insurance) is the successor in interest to Coastal States Life Insurance Company on a lease for office space in an office building located at 260 Peachtree Street in Atlanta owned by appellee, 260 Peachtree Street, Inc. (260 Peachtree). The lease commenced in 1970 for a term of 25 years with an option to renew for another 10 years. Sun Insurance leases 12-floors, or approximately half of the building. The issue of asbestos removal arose when Sun Insurance sought written consent from 260 Peachtree to make renovations to the leasehold as required by Article XIII of the lease which reads in pertinent part: “Lessee shall make no repairs, additions or improvements to Premises without first obtaining Lessor’s written consent, and such repairs, additions or improvements shall be equal in quality to the original condition of the Premises.”

260 Peachtree, as lessor, gave its consent but conditioned it upon Sun Insurance paying the cost of asbestos removal that would become necessary by virtue of the renovation. Sun Insurance refused to pay and brought this declaratory action. The trial court granted 260 Peachtree’s motion for summary judgment and denied Sun Insurance’s. Held:

1. Sun Insurance’s motion to enlarge the record is denied.

2. Resolution of this appeal requires a balancing of the interests of Sun Insurance in maximizing the use of its office leasehold with the interests of 260 Peachtree in maximizing its capital asset, the value of the office building. We must first determine whether 260 Peachtree has the absolute right to refuse consent for renovations. 260 Peach-tree argues that it does and points to the case of Nguyen v. Manley, 185 Ga. App. 187 (363 SE2d 613) (1987), as support. In Nguyen, the lease provided that “ ‘(t)enant-shall not . . . make any structural alterations, additions or improvements to the demised premises without prior written consent of landlord.’ ” Id. at 187. The court construed this language to be unambiguous and declined to impose a requirement of reasonableness on consent where the lease did not so provide. We find Nguyen to be inapposite in this case. In the lease before us, the consent provision reads “Lessee shall make no repairs, additions or improvements to Premises without first obtaining Lessor’s written consent, and such repairs, additions or improvements shall be equal in quality to the original condition of the Premises.” (Emphasis supplied.) The coupling of the second clause to the first impliedly creates a standard of reasonableness to be applied to the issue of consent. The intent of the parties was to protect the value of the landlord’s asset, the building. If the landlord reserved the absolute right to refuse consent, the clause pertaining to equal quality would be mere surplusage.

We find the situation in the present case analogous to that in Mendel v. Pinkard, 108 Ga. App. 128 (1) (132 SE2d 217) (1963). There, the court construed a long-term lease that allowed the lessee to make any repairs or improvements it wished, but required prior notice to the landlord and the posting of a bond. The lease also required that any changes be of equal value to the original premises. If the covenants of the lease were breached by the lessee, the lease would become null and void. In Mendel, the court found that the lessee had made many extensive improvements without providing notice or bond, but declined to enforce the forfeiture clause because it found that the intent of the parties was to insure that the landlord’s property was of equal or greater value at the end of the lease term, and the evidence showed this to be the case. Thus, we find that the lease in the present case does carry an implied requirement that the landlord not refuse consent to changes that are of equal or greater quality than the original condition of the premises.

“The commonly accepted requirement in a leasehold contemplates that the lessor (owner) will make capital improvements or repairs as opposed to repairs or modification essentially beneficial to the lessee. [Cit.] The logic of this is apparent as capital improvements or repairs normally work to the advantage of the owner and not to the lessee who normally enjoys only a usufruct.” Jacobi v. Timmers Chevrolet, 164 Ga. App. 198, 199 (296 SE2d 777) (1982). “[W]here improvements of a structural nature outside the contemplation of the parties [become] necessary, in the face of covenants by both parties as to just what repairs they would make ... it would be more equitable and just to require of the landlord the making of substantial improvements which necessarily [enhance] the value of the property.” Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723, 730 (49 SE2d 779) (1948).

The lease in this case requires 260 Peachtree to keep the building in “good order, safe condition and repair.” The asbestos that must be removed is fireproofing material sprayed directly onto structural beams and decking. As stated by Sun Insurance in its brief, the question is “not whether the Building is ‘safe’ if no renovation occurs; rather, the issue is whether the Building is in a ‘safe condition’ for purposes of allowing [Sun Insurance] to make improvements as contemplated in the lease.”

Decided July 13, 1989

Rehearing denied July 26, 1989

Arnall, Golden & Gregory, William H. Kitchens, Robert L. Roth-man, Ellis G. Arnall, for appellant.

O’Callaghan, Saunders & Stumm, Rex M. Lamb III, Barbara J. Lukes, for appellee.

The changes sought by Sun Insurance are necessary to increase the efficiency of its business. Such changes were contemplated by the parties in the lease. While removal of the asbestos will be a cost to 260 Peachtree, the record shows that it will certainly enhance the value of its building. By construing the terms of the lease and following the authorities cited, we find that 260 Peachtree refused consent to the renovations unreasonably and that it should bear the cost of asbestos removal made necessary by the renovations Sun Insurance seeks. Accordingly, we find that the trial court erred in granting 260 Peachtree’s motion for summary judgment and in refusing to grant Sun Insurance’s motion for summary judgment.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0414.
    A89A0640.
    CASSIE v. THE STATE. PARAGUE v. THE STATE.
    (385 SE2d 129)
   Pope, Judge.

Richard Parague, Cargill Charles Cassie and Walter Randall were tried jointly for the offense of trafficking in cocaine, possession of cocaine with intent to distribute, and use of a communication facility in committing a felony. (OCGA § 16-13-32.3.) Parague and Randall were also charged with possession of a firearm during the commission of a felony. Parague and Randall were convicted on all counts; Cassie was convicted only on the trafficking count. Parague and Cassie now appeal.

Acting on an informant’s tip, the Douglas County Sheriff’s Department arranged a drug buy on March 31, 1987. The informer called a beeper number and received a telephone call back from “Wally,” later identified as defendant Randall. They made arrangements to meet at a local restaurant parking lot. The informer then drove to the designated spot under the surveillance of police and wearing a hidden listening device. While waiting, the informer made other calls to “Wally’s” beeper number and received callbacks. The informer was told to watch for a red van with three men in it. When the maroon van arrived, defendant got out and got into the informer’s car where the sale was completed. Officers then moved in and arrested Randall. As Deputy Sheriff Adams approached the informant’s car, he noticed that Parague had seen him and that Parague began turning in his seat to reach for something. Fearing a weapon, Adams warned Sheriff Lee by radio. Lee testified that he also saw Parague turn and reach down to the rear of his seat. Lee opened the passenger door and identified himself. Lee testified that Parague said “Is this a drug bust? Did that man have cocaine?” Each of the men was wearing a beeper although Cassie’s was inoperable. In the van, just behind and to the left of the passenger seat where Parague sat and at the feet of the seat occupied by Cassie, authorities found a cup turned upside down containing 19.2 grams of cocaine. The cocaine sold to the informer in his car amounted to 27.6 grams. Randall carried a handgun concealed in his pants. The weapon belonged to Parague. The van was leased to Parague.

Case No. A89A0640 Parague

1. Defendant Parague argues that the evidence is insufficient to support his convictions. He argues that he had no knowledge of the cocaine, that there is no evidence linking him to the cocaine sold to the informer and that the cocaine in the van was equally accessible to at least four people. Parague and Cassie testified that they had taken Par ague’s van to Randall for him to work on it. Randall wanted to go see another man and Parague let him drive his van. They picked this man up and the four went browsing at a mall. Parague and Cassie shopped separately from Randall and the man for a couple of hours. When the four met again, and after Randall received a message on his beeper, he announced he had to meet someone else. They dropped the other man off and after stopping to eat at Arby’s, they drove to the restaurant parking lot. The other man referred to did not testify at trial.

We find the evidence sufficient. Although driven by Randall, the van belonged to Parague. The revolver carried by Randall belonged to Parague. He was observed reaching behind his seat where the 19.2 grams of cocaine were later found. Immediately upon detention, without the sheriff saying anything about drugs, he said “Is this a drug bust? Did that man have cocaine?” The informer was told to look for a red van with three men. This evidence was sufficient to enable the jury to conclude that Parague had actual possession of the cocaine carried by Randall to the car, as well as the cocaine remaining in the van. See Chews v. State, 187 Ga. App. 600 (1) (371 SE2d 124) (1988) (see also special concurrence by Pope, J.); Green v. State, 187 Ga. App. 373 (2) (370 SE2d 348) (1988).

2. There was no merger between the offense of trafficking and the offense of possession with intent to distribute. Tabb v. State, 250 Ga. 317 (1) (297 SE2d 227) (1982); Bowens v. State, 171 Ga. App. 364 (1) (320 SE2d 189) (1984); Howard v. State, 144 Ga. App. 208 (1) (240 SE2d 908) (1977). The jury was authorized to find that Parague was in actual possession of more than 28 grams of cocaine, parted with 27.6 grams to be sold, and retained possession of 19.2 grams.

3. The trial court did not err in charging on conspiracy. Thomas v. State, 255 Ga. 38 (2) (334 SE2d 675) (1985); Anderson v. State, 153 Ga. App. 401 (3) (265 SE2d 299) (1980). Nor did the trial court err in refusing to charge on the theory of “equal access.” Castillo v. State, 166 Ga. App. 817 (2) (305 SE2d 629) (1983).

4. The evidence was sufficient to sustain Parague’s convictions for violation of OCGA § 16-11-106 (b) (4) & (5) and OCGA § 16-13-32.3 (a) as a party to the acts of co-defendant Randall. Wilcox v. State, 177 Ga. App. 596 (340 SE2d 243) (1986).

5. Parague amended his enumerations of error to assert that the trial court improperly charged on actual and constructive possession in violation of Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988). This amendment was filed after the time for filing enumerations of error had passed. Such an out-of-time amendment to the enumerations of error will not be considered. Driver v. State, 188 Ga. App. 301 (1) (372 SE2d 841) (1988). However, because Parague’s assertion, if correct, would be a substantial error in the charge that would be harmful as a matter of law, we will consider it. OCGA § 5-5-24 (c). While the trial court did charge the jury on the definition of actual and constructive possession, it only charged actual possession in connection with the trafficking count. We find no error. Ginjauma v. State, 190 Ga. App. 25 (378 SE2d 161) (1989); Partridge v. State, 187 Ga. App. 325 (5) (370 SE2d 173) (1988).

6. Parague contends that the trial court erred in allowing evidence of scientific reports to which he objected because the prosecution allegedly failed to comply with OCGA § 17-7-211. The record shows that Parague made no written request pursuant to OCGA § 17-7-211 and his Brady motion failed to make reference to the Code section or to specifically invoke the ten-day time frame of the Code section. In this circumstance, the trial court’s ruling admitting the evidence was not error. Massey v. State, 251 Ga. 515 (2) (307 SE2d 489) (1983).

7. Parague argues that the trial court erred when it said to th« jury: “The State has rested in this case. Now the Defendants are going to have to put up their evidence and then we are going to havi argument and charge.” Parague did not object to this statement ai trial and therefore has waived any right to raise it on appeal. State v Griffin, 240 Ga. 470 (241 SE2d 230) (1978).

Decided July 13, 1989

Rehearings denied July 26, 1989

Mark J. Radish, James J. McGinnis, for appellant (case no. A89A0414).

Robert G. Fierer, Barbara E. Keon, for appellant (case no. A89A0640).

Frank C. Winn, District Attorney, for appellee.

Case No. A89A0414 — Cassie

8. Cassie argues the general grounds. We find the evidence sufficient. The 19.2 grains of cocaine were found in a position inches from Cassie’s feet when he was seated in the van. He was wearing a beeper, although inoperable, and he was in the van with Randall and Parague all afternoon. The evidence was sufficient for the jury to conclude that Cassie exercised direct physical control over all of the cocaine or that he aided or abetted the others in doing so.

9. Cassie’s remaining enumerations of error are without merit for the reasons set out in Divisions 5-7 above.

Judgments affirmed.

Banke, P. J., and Sognier, J., concur.


author: Carley, Chief Judge.

text:
    A89A0620.
    UNITED SERVICES AUTOMOBILE ASSOCIATION v. LAIL et al.
    (385 SE2d 424)
   Carley, Chief Judge.

Appellant-plaintiff United Services Automobile Association (USAA) issued an automobile policy on a vehicle owned by David Boss. While he was driving Boss’ vehicle, appellee-defendant Tracy Williams was involved in a collision. As the result of this collision, appellee-defendants Michael, Terry and Sandra Lail were injured. When the Lails brought suit against Williams, he requested that USAA undertake to defend him, contending that, for purposes of liability coverage, he was an insured under Boss’ policy.

USAA responded to this request by filing the instant declaratory judgment action, seeking a declaration that it provided no liability coverage to Williams and was not required to defend him against the Lails’ suit. The Lails answered and also filed a counterclaim, seeking damages for abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). After discovery, the Lails moved for summary judgment. As to USAA’s main declaratory judgment action, the trial court granted summary judgment in favor of the Lails. As to the issue of USAA’s liability on the Yost counterclaim, the trial court also granted summary judgment in favor of the Lails, leaving only the issue of damages for jury resolution. USAA brings this appeal from the trial court’s grant of summary judgment in favor of the Lails.

1. With regard to its main declaratory judgment action, USAA urges that a genuine issue of material fact remains as to Williams’ status as an insured under the terms of the policy that it issued on Boss’ vehicle. USAA relies upon the following exclusion contained in the policy: “We do not provide [liability [c]overage for any person . . . [u]sing a vehicle without a reasonable belief that that person is entitled to do so.”

It is undisputed that Williams had Boss’ express permission to use the vehicle. Boss had authorized Williams to drive the vehicle to Loganville from a jobsite in Atlanta. At the time of the collision, Williams was doing just that. Construing the evidence most favorably for USAA, however, Boss had also given Williams specific instructions as to how and when he was to drive the vehicle from Atlanta to Loganville. In Boss’ affidavit, he averred that he had “instructed Williams to drive directly to Loganville after the work was finished using [a specified] route used on previous days.” Since Williams had not driven directly to Loganville after leaving the worksite and the collision had not occurred on the route designated by Boss, USAA urges that Williams’ deviation from his instructions would render the exclusion applicable and the trial court’s grant of summary judgment erroneous. Accordingly, the issue presented for resolution is whether, notwithstanding Williams’ express permission to drive Boss’ vehicle, his deviation from instructions as to time and route would serve to exclude him from coverage as a driver who was “[u]sing [the] vehicle without a reasonable belief that [he was] entitled to do so.”

“[C]ompulsory motor vehicle liability insurance in this state established the public policy that ‘innocent persons who are injured should have an adequate recourse for the recovery of their damages. [Cit.]” Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 338 (1) (329 SE2d 136) (1985). “[Financial responsibility laws are designed tc protect the general public and . . . automobile liability policies are tc be construed in conjunction with these laws. [Cit.]” Young v. Allstate Ins. Co., 248 Ga. 350, 351 (282 SE2d 115) (1981). The relevant language of the policy here at issue does not appear in a traditional “omnibus” clause which expressly extends coverage only to those drivers who have obtained and have acted within the scope of the permissior given by the vehicle’s owner. See Georgia Farm &c. Ins. Co. v. Fin &c. Ins. Co. of Conn., 180 Ga. App. 777, 779 (350 SE2d 325) (1986) Compare Select Ins. v. Register, 192 Ga. App. 145 (384 SE2d 238 (1989). Instead, the language appears in an “easy reading” policy ii the form of an exclusion from coverage of only those drivers who hav< no reasonable belief that they were entitled to use the owner’s vehicle “Any exclusion sought to be invoked by the insurer . . . will be liberally construed in favor of the insured and strictly construed against the insurer unless [it] is clear and unequivocal. [Cits.]” Travelers Indem. Co. v. Whalley Constr. Co., 160 Ga. App. 438, 441 (287 SE2d 226) (1981). Accordingly, “cases which have construed the meaning of omnibus clauses ... are distinguishable in that omnibus clauses contained in standard automobile insurance policies explicitly refer to the owner’s permission or the scope of permission granted. The clause contained in [USAA’s] policy is relatively new [and post-dates] the standard omnibus clause, containing the traditional ‘scope of the permission’ language. . . . Given . . . past policy language it is apparent [USAA] knew how to limit coverage to the scope of permission granted. That it employed different and less explicit language in the instant policy is evidence that it meant to convey a different meaning. . . . There is no dispute [Williams] was entitled to use the vehicle, in the sense that he got permission to take it, he didn’t steal the vehicle. Under the language of this policy it is apparent that there was permission to use the vehicle [and that Williams therefore had a reasonable belief in his entitlement to use it].” Larsen v. United Pacific Ins. Co., 723 P2d 8, 10 (Wash. App. 1986). The exclusion did not purport to condition coverage upon the driver’s compliance with any limitation placed upon the scope of his permission to use the owner’s vehicle. Instead, it excludes coverage only if the driver had no reasonable belief in his entitlement to use the owner’s vehicle. A driver’s reasonable belief in his entitlement to use the owner’s vehicle is an entirely different consideration from whether the driver acted within the scope of the permission given to him by the owner. Larsen v. United Pacific Ins. Co., supra. “Since the language of exclusion was not . . . clear and precise, an exclusion did not occur. [Cits.]” Travelers Indem. Co. v. Whalley Constr. Co., supra at 441.

Johnson v. Blue Ridge Ins. Co., 189 Ga. App. 616 (376 SE2d 703) (1988) does not compel a different result. Johnson is a physical precedent only. Moreover, insofar as it holds that the twelve-year-old driver, who had no permission to use the owner’s car, was excluded from coverage under the “easy reading” exclusion and that such an exclusion is not violative of public policy, Johnson is not inconsistent with our present holding. Here, Williams did have permission to use Boss’ vehicle and, construing the “easy reading” exclusion in light of public policy, coverage is afforded to Williams notwithstanding his deviation from instructions. Likewise, Nationwide Mut. Ins. Co. v. Southern Trust Ins. Co., 174 Ga. App. 513 (330 SE2d 443) (1985) is not contrary to our holding in the instant case. The evidence in Nationwide Mut. Ins. Co. showed that the driver had received no permission whatsoever to use the owner’s vehicle, and the issue of whether the driver nevertheless had a reasonable belief in his entitlement to use the car was properly submitted to the trior of fact. Here, it is undisputed that Williams did have permission to use Boss’ vehicle and his deviation from instructions raises no genuine issue of material fact as to applicability of the “easy reading” exclusion. It follows that the trial court did not err in granting summary judgment in favor of the Lails as to USAA’s main declaratory judgment action.

Decided July 13, 1989

Rehearing denied July 26, 1989

Dennis, Corry, Porter & Thornton, William E. Gray II, for appellant.

Don M. Jones, Michael R. Jones, Sr., for appellees.

Tracy Williams, pro se.

2. Prior to this case, there was no appellate decision specifically addressing the issue of whether a driver who had permission to use another’s car would be excluded from coverage under the terms of the “easy reading” exclusion if he deviated from the scope of the permission granted to him. There was, however, language in Johnson v. Blue Ridge Ins. Co., supra, and in Nationwide Mut. Ins. Co. v. Southern Trust Ins. Co., supra, lending support to the argument that the “easy reading” exclusion would be applicable under such circumstances. A declaratory judgment action is a proper means by which an insurer can obtain a judicial determination of the issue of the existence of coverage. It follows that the trial court erred in granting summary judgment in favor of the Lails as to their Yost counterclaim.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Beasley, J., concur.


author: Benham, Judge.

text:
    A89A0657.
    CANADIAN INDEMNITY COMPANY v. PEACHTREE DOORS, INC. et al.
    (385 SE2d 92)
   Benham, Judge.

Randall Hickman was rendered a quadriplegic as the result of ar incident that occurred in 1983 while he was helping an employee oi appellee Peachtree Doors unload a truckload of doors. The trailei portion of the truck was owned by Peachtree Doors, while the tractoi part of the rig was leased to Peachtree Doors by Rollins Leasing Cor poration. Hickman settled his personal injury claim in 1985 foi $2,079,203. The present appeal is from the declaratory judgment ac tion involving Peachtree Doors and its three relevant insurers.

Appellee Travelers Indemnity Company (Travelers) issued a bus iness automobile policy providing appellee Indal Limited and it; wholly-owned subsidiary, Peachtree Doors, with $1,000,000 coverage for bodily injury liability arising out of the ownership, maintenance, or use of a covered vehicle. Appellant The Canadian Indemnity Company (Canadian) issued a $2,000,000 comprehensive general liability policy with a non-owned automobile insurance attachment, and ap-pellee Northumberland General Insurance Company (Northumber-land) issued a commercial umbrella liability policy with a limit of $5,000,000 in excess of the amount recoverable under underlying insurance policies. Travelers contributed its policy limit of $1,000,000 to the Hickman settlement. Because Canadian and Northumberland disputed the applicability and priority of their respective coverages, In-dal Limited/Peachtree Doors entered into an agreement with the two insurers, by which Canadian agreed to lend to Indal one-half of the outstanding settlement balance and Indal agreed to pay to Hickman the remaining portion of the. outstanding balance. The parties agreed to seek judicial resolution of the coverage issue, and Canadian agreed to forgive Indal’s debt and reimburse Indal for the money it paid to the Hickman settlement should the court find that Canadian’s policy afforded coverage.

After reviewing the record and hearing the argument of counsel, the trial court found that Canadian’s policy provided coverage under two provisions; that it was indebted to Indal; that Indal’s debt to Canadian was erased; and that Northumberland’s umbrella policy was in excess of Canadian’s general comprehensive liability coverage. Canadian now appeals from the order granting appellees’ motions for summary judgment, which order contained the trial court’s conclusion that the Canadian policy was applicable and that it had priority over the Northumberland policy.

1. The Canadian policy provided coverage for “loss or damage arising from the use or operation of any automobile not owned in whole or in part by . . . [Indal/Peachtree Doors],” and it defined a motor vehicle with an attached trailer as an automobile. Relying on Fitzgerald v. Aetna Ins. Co., 176 Mont. 186 (577 P2d 370, 372) (1978), the trial court found that the coverage clause was ambiguous and resolved that ambiguity in favor of coverage. We decline to find an ambiguity requiring judicial construction. In contrast with the trial court and the Supreme Court of Montana, we read the clause in the “Non-Owned Automobile Attachment” as affording coverage in instances where the insured has no ownership interest in the vehicle involved. Since the insured in the case at bar, Indal/Peachtree Doors, owned part of the “automobile” by owning the trailer, there was no coverage afforded the insured under the non-owned automobile attachment.

2. The trial court, however, found an alternative source of coverage for Hickman’s injuries under the general provisions of Canadian’s comprehensive general liability policy. Canadian agreed to pay on behalf of Indal/Peachtree Doors “all sums which the Insured shall become obligated to pay by reason of the liability imposed by law upon the Insured or assumed by the Insured under contract ... for damages because of bodily injury . . . sustained by any person. . . .” The policy excluded from its coverage “claims arising out of the ownership, maintenance, use or operation by or on behalf of the Insured if any type of trailer or semi-trailer which is insured under a motor vehicle policy . . . ,” but excepted from the exclusion “the machinery or apparatus including its equipment mounted on or attached to a motor vehicle while such machinery or equipment is in use at the site of operations. ...” The trial court based its finding of coverage on the uncontroverted facts that the sliding glass doors which Hickman was helping to unload at the time of his injury were loaded against steel tracks attached to the interior of the trailer and were secured by buckled polyester or nylon straps that were attached to the tracks. Hickman was injured when untethered doors fell upon him because a strap securing the doors had not been buckled. The trial court concluded that the “steel tracks, nylon straps, buckles and metal end clips . . . constitute [d] . . . ‘apparatus mounted on or attached to a motor vehicle’ ...” and that “the Hickman claim . . . [was] a claim ‘arising out of the ownership, maintenance, use or operation’ ” of the apparatus. In the absence of conflicting evidence, no genuine issue of material fact remained, and the trial court did not err in granting I summary judgment in favor of appellees. See Alghita v. Universal Investment &c. Co., 167 Ga. App. 562, 567 (307 SE2d 99) (1983).

3. The trial court found that the Northumberland policy also covered the Hickman claim and ruled that the Northumberland policy was excess to the Canadian policy. Appellant takes issue with the latter conclusion.

The Canadian policy acknowledged “the existence of any Policies arranged to apply in excess of the Insurance [Canadian] provided” and agreed that “the insurance provided by such excess policies shall be considered as excess and non-contributing insurance insofar as the insurance provided under this [Canadian] policy is concerned and shall be held to attach and cover after the insurance under the [Canadian] policy has been exhausted.” The Northumberland commercial umbrella liability policy provided coverage in excess of the coverage of policies listed therein, which included Canadian’s comprehensive general liability and non-owned automobile liability coverages. It was undisputed that Canadian was aware that Indal/Peachtree Doors was trying to arrange for umbrella coverage in excess of Canadian’s coverage. According to the terms of both the Canadian and Northumber-land policies, Northumberland’s coverage was in excess of Canadian’s The trial court did not err in so ruling.

4. Having determined that Canadian’s policy afforded coverage the trial court then enforced the settlement agreement entered into by Canadian, Northumberland, and Indal, and awarded Indal $539,601.50 plus interest from Canadian. Appellant seeks reversal of this award, as well as the reversal of the denial of its motion for summary judgment, on the ground that its policy provided no coverage for the underlying claim. Inasmuch as that basic theory has been decided adversely to appellant (see Divisions l-'3 of this opinion), its final enumerations of error are without merit.

Decided June 29, 1989

Rehearings denied July 26, 1989

Dennis & Corry, Robert E. Corry, Jr., Michael T. Thornton, for appellant.

Vincent, Chorey, Taylor & Feil, John L. Taylor, Jr., Lamar, Archer & Cofrin, Robert C. Lamar, Freeman & Hawkins, Warner S. Fox, Kilpatrick & Cody, Everette L. Doffermyre, Jr., Troutman, Sanders, Lockerman & Ashmore, Jeffrey R. Nickerson, for appellees.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Beasley, Judge.

text:
    A89A0665.
    WESTIN HOTELS, INC. v. NATKIN SERVICE COMPANY.
    (385 SE2d 141)
   Beasley, Judge.

Plaintiff Westin Hotels, Inc., appeals from a directed verdict judgment favoring defendant Natkin Service Company in a suit for negligence in servicing the air conditioning system in Westin’s Peach-tree Plaza Hotel.

Natkin was under contract to service, repair and monitor the Plaza’s cold generator machines. Natkin’s employee, Lunsford, was sent in response to the call of Westin’s chief engineer to service one of its three chiller units, which was not producing enough cold water to adequately chill the hotel. A few hours after the repairman Lunsford left, pipes of the unit he had been working on burst, resulting in over a quarter of a million dollars in damage to the machine and water damage to the hotel-property. Westin contended that Lunsford failed to exercise a reasonable degree of care, skill and ability in servicing, repairing and monitoring the cold generator machines so that Natkin was liable for the damages proximately caused by Lunsford’s negligence under the doctrine of respondeat superior. Westin also sought punitive damages on the ground that Lunsford demonstrated a reckless disregard for the safety of Westin’s property by leaving the hotel when he knew the cold generator machine was malfunctioning.

Trial commenced after extensive discovery. Natkin moved for a directed verdict at the close of Westin’s evidence, on two bases: 1) there was only circumstantial evidence that Lunsford rendered ineffective a freeze stat (similar to a thermostat), which is a safety device to automatically shut down the water chiller pump if the unit’s water temperature approached freezing, and that such circumstantial evidence could not successfully counter Lunsford’s direct disavowal; 2) if Lunsford had not “jumpered out” the freeze stat, he had no duty to warn the hotel even if he knew the unit had or may have frozen up. The court granted the directed verdict on the first ground.

1. “ ‘A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a) [Cits.]’ [Cit.]” Wheeler v. McDonald, 175 Ga. App. 785, 786 (2) (334 SE2d 367) (1985). “It is permissible only in situations where, ‘if there were a determination the other way, it would have to be set aside by the court.’ [Cit.] Furthermore, evidence in cases of directed verdict must be construed most favorably toward the party opposing the motion. [Cits.]” Nationwide Mut. Ins. Co. v. Ware, 140 Ga. App. 660, 664 (1) (c) (231 SE2d 556) (1976).

The evidence favoring Westin showed that the Plaza’s chief engineer, Cash, called Natkin to send someone to fix the number one chiller because it was not producing one hundred percent cooling. Natkin’s employee, Lunsford, a skilled and knowledgeable repairman, was sent out and began to “retrim” the unit, that is, to put back into balance the lithium bromide and the water. It was necessary to run the chill water pump while trimming. It cut off three times. Twice Lunsford had the hotel air conditioning operator reactivate it. On the third occasion, Lunsford knew that the solution pump was still working. Under such circumstance, Lunsford was aware that the water temperature would keep coming down until the freeze stat would cut the pump off. Lunsford also knew that when the chill water pump stopped, there could be a freezing of liquid in the pipes. If the freeze stat had shut the unit down, the trim work would have to begin again after a period of waiting.

After it had cut off the third time, Lunsford decided to leave as he had been there about six hours and was concerned that he would get a parking ticket. He shut down the number one chiller and said he would be back in the morning. It was possible that freezing had already taken place in the pipes going through the evaporator unit. Lunsford did not valve off the unit or suggest it be done. The water damage was caused when the ice which formed in the evaporator unit melted and thousands of gallons of water came out of the tower, went into the unit, and burst out of the sight glass onto several floors of the hotel. Valving off would have prevented the water from getting into the machine and escaping from it.

Westin’s consultant engineer investigated the incident and interviewed Lunsford. He testified, as an expert, that the general duty and obligation of a serviceman like Lunsford in an emergency situation was to prevent persons and the machine from being injured and then to secure the machine so it did not continue to do damage. He also testified that it was a known practice in the industry that the freeze stat could be temporarily jumpered out to keep the cycle in order to perform the trim work without waiting for another twenty or thirty minutes to stabilize after the freeze stat stopped it. Lunsford admitted he knew how to do this. The engineer further testified that in his opinion the “jumpering out” of the freeze stat in conjunction with the stoppage of the chilled water system caused the freezing of the unit, and that the failure to secure the machine by valving off the water and steam permitted the machine, when it thawed out, to damage itself and the building.

Westin introduced into evidence the machine’s electrical control panel and freeze stat, which its expert had examined. He testified that such evidence aided in reaching his conclusions about the machine failure because he found a splicing in certain wires of the control panel which bypassed the freeze stat and a jumper cable. He also found that the permanent connection in the other two units had not been similarly changed.

The hotel’s chief engineer testified that he did not know of any Westin employee who had or might have jumpered out the freeze stat nor of any reason why any employee would need to, as the only purpose of it would be to do retrimming. No one had done any retrim-ming of the unit for at least several months, as it had been the winter season and warm weather was approaching. The incident occurred on March 27. He said the operator of the machine would normally be the one to valve the unit off.

“In considering whether a verdict should be directed, ‘(t)he plaintiff is not required, even when relying only on circumstantial evidence, to establish his contentions to the exclusion of every other reasonable hypothesis. [Cits.]’ [Cit.] When the evidence is subject to more than one construction at the time the motion for directed verdict is made, it does not demand a verdict for either party. [Cit.] ‘ “(A) court cannot direct a verdict where there is any reasonable inference supported by evidence which would authorize a verdict to the contrary.” ’ [Cit.]” Saxon v. Sylvania Mobile Homes, 165 Ga. App. 47, 48 (299 SE2d 52) (1983).

Westin produced evidence of timing and circumstance which raised the inference that any jumpering of the freeze stat was done by Lunsford, taking into account that there had not been a similar problem previously. Lunsford had the opportunity, capability, and motive to temporarily jumper it. He expected to return the next day to finish the job and thus also to have the opportunity to again connect it. No one else had recently retrimmed the machine. There was no reason for the machine operator to jumper the freeze stat. This was enough to support Westin’s claim of negligence so as to warrant consideration by the trier of fact and preclude a directed verdict.

Decided July 14, 1989

Rehearing denied July 26, 1989.

Sutherland, Asbill & Brennan, William D. Barwick, William R. Wildman, for appellant.

R. Chris Irwin & Associates, R. Chris Irwin, for appellee.

2. Appellant also contends that the trial court erred in excluding from evidence an invoice from Natkin to Westin. Due to the context in which it was presented and the unlikelihood of its being offered again at retrial under the same circumstances, the question is moot and we decline to rule on it. See Gerald v. State, 189 Ga. App. 155, 156 (2) (375 SE2d 134) (1988).

Judgment reversed.

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


text:
    A89A1567, A89A1568.
    SMITH v. TRAVIS PRUITT & ASSOCIATES; and vice versa.
    (385 SE2d 132)
   Deen, Presiding Judge.

Appellee/cross-appellant Travis Pruitt & Associates, P.C. (Pruitt), was engaged by appellant/cross-appellee Roswell Properties, Inc. (Roswell), of which appellant/cross-appellee Smith is president, to do professional engineering and land-surveying work on a residential subdivision planned by Roswell. When Pruitt had completed at least 75 percent (more, according to Pruitt) of the work called for in the contract, it billed Roswell for work done to date but received only a token sum (less than 2 percent of the total) from Roswell. After sending several duplicate invoices, Pruitt ceased work on the project. Defendants then executed a promissory note in an amount somewhat less than the total of the unpaid invoices, together with an agreement regarding future work and payments. Pruitt recommenced work but was not paid either on the promissory note or for work performed subsequent to execution of the note. Pruitt again ceased work and brought an action on the note. Defendants answered, alleging fraud in the procurement of the note and failure of consideration, and counterclaimed for fraud, breach of contract, and engineering malpractice. After denial of a motion for summary judgment on the complaint, Pruitt moved for summary judgment on the corporate defendant’s counterclaims and on Smith’s original and amended individual counterclaim. Summary judgment was awarded against Smith individually but denied as to Roswell. Smith appealed the award of summary judgment against him as an individual, and Pruitt cross-appealed the denial of summary judgment against Roswell. Held:

1. The record reveals that, while working on the flood-plain study, Pruitt discovered substantial errors in an earlier study which Roswell had provided for Pruitt’s use as a basis for the preliminary plat and construction plans. The discrepancy between the two floodplain studies necessitated a reworking of the construction plans which Pruitt had earlier submitted to DeKalb County authorities. Several other changes were subsequently incorporated into the construction plans and submitted for county approval. On January 29, 1986, final construction plans having been submitted to the county, Pruitt invoiced defendant for work done from May 29, 1985 (the date on which work was begun), through January 1986. In the next six weeks Pruitt submitted three additional invoices, the four totaling $28,243.25. No payment being forthcoming, Pruitt ceased work March 17, 1986. Some three to four weeks later, Smith proposed to Pruitt that he (Smith) execute in his individual capacity a note for $25,924.50 (an amount representing two of the four invoices), one half of principal and interest to be paid ten days after the county’s acceptance of the final plat, and the other half ten days later. Pruitt insisted on a ninety-day unconditional promissory note for the full amount, plus a written agreement governing future work and payment arrangements. According to the record, these documents were executed on or about May 1, 1986. A subsequent invoice for further work was paid later, and the promissory note went into default July 28, 1986.

Pruitt filed suit on the promissory note in September 1986, at which time approximately 98 percent of the balance invoiced was still unpaid. Defendants hired another engineer to draw up a final plat, since when the note went into default Pruitt had retrieved the plat it had filed with the county. In its counterclaim Roswell alleged negligent performance (including delays attributable to Pruitt, together with inadequate drawings, etc.), breach of contract, and fraudulent inducement of the defendants to sign the note by promising to complete the final engineering work (final plat, staking, etc.) while having a present intent not to fulfill the promise. In his individual counterclaim Smith made essentially the same allegations as those made by Roswell. Smith subsequently amended the counterclaim to seek as damages the alleged excess charges on the original contract price, plus other expenses allegedly caused by Pruitt’s actions.

Decided July 13, 1989

Rehearings denied July 26, 1989

Mark A. Smith III, pro se.

Webb & Daniel, Harold T. Daniel, Jr., William C. Gentry, for appellee.

Scrutiny of the record indicates that, as to the claims of fraudulent inducement and failure of consideration, the unconditional language of the promissory note negates any such allegations; the principal sum of the note represented an obligation that had already accrued. Pruitt’s agreement to continue working and forbearance to sue on the overdue account would be sufficient consideration to Smith and his company. OCGA § 13-3-42 (a), (c) (2). It appears from the record that Pruitt agreed to continue with the work contracted for, presumably to completion, the only condition being that his invoices for further work be paid in a timely manner, as they were rendered. This is a different matter altogether from the promissory note, which was a simple promise to pay an existing obligation; any “conditions” imposed by Pruitt referred to future work only, and were embodied in an agreement contemporaneous with but distinct from the promissory note. Cf. Munna v. Lewis, 181 Ga. App. 860 (354 SE2d 181) (1987). Moreover, Smith’s and Roswell’s contentions regarding alleged extra charges over and above the original contract price provide no defense, since all such defenses to the indebtedness were extinguished by the execution of the promissory note for a principal sum which was the total of the separate invoices. Munna v. Lewis, supra at 862. We find no failure of consideration and no indicia of fraud as regards Pruitt’s relationship with either Smith or Roswell.

2. The contract underlying the action below was, of course, between Roswell and Pruitt; Smith was not a party but signed the contract only in his capacity as president of Roswell. Smith therefore actually has no standing as an individual to bring claims of negligent performance or breach of contract; and any claim of this sort should have been dismissed in the trial court. Because Pruitt received summary judgment on all of Smith’s counterclaims, however, the point is moot.

3. As to the counterclaims of negligence and breach of contract raised by Roswell, the record appears to indicate that there remain certain issues of material fact which properly should be tried. We therefore affirm the judgments of the trial court in both cases.

Judgments affirmed.

Birdsong and Benham, JJ., concur.