author: Johnson, Judge. Beasley, Judge, Blackburn, Judge, Andrews, Chief Judge,

text:
    A97A1545.
    STATE FARM FIRE & CASUALTY INSURANCE COMPANY v. TERRY.
    (495 SE2d 66)
   Johnson, Judge.

This case presents yet another permutation of the “vanishing insurance coverage” dilemma in the context of disputes between automobile insurance carriers and their insureds regarding uninsured motorist insurance.

On July 29, 1993, Kenneth Terry was injured in a motor vehicle collision involving an automobile operated by Undra Davis. The automobile driven by Davis was owned by and rented from McFrugal Auto Rental. Terry sued Davis and served his own uninsured motorist carrier, State Farm Fire & Casualty Insurance Company, within the two-year statute of limitation for personal injuries. See OCGA §§ 9-3-33; 33-7-11 (d); Stout v. Cincinnati Ins. Co., 226 Ga. App. 220 (486 SE2d 195) (1997). State Farm filed an answer in its own name. It thereafter became apparent that Davis was insured up to $50,000 by McFrugal and adequately insured against any larger judgment by an excess policy. Thus, Davis was not an “uninsured motorist” so as to implicate the uninsured motorist coverage provisions of Terry’s automobile insurance policy with State Farm. OCGA § 33-7-11 (d). Accordingly, State Farm requested and received Terry’s consent to dismiss without prejudice State Farm as a party to Terry’s lawsuit against Davis. The consent dismissal was drafted by State Farm, signed by counsel for both State Farm and Terry, and included the following language: “In the event that the plaintiff finds it appropriate to renew an uninsured motorist claim, under circumstances including a withdrawal of coverage by a liability insurer, State Farm will be served in the manner authorized by law and have a full right to defend on liability and damages in this case. Stipulations and defaults by, or Judgments against, the individual defendant will not be binding upon or create exposure by State Farm.”

State Farm did not participate further in any other aspect of the litigation between Terry and Davis. McFrugal, acting as insurer, provided Davis with counsel and defended the lawsuit. On August 29, 1995, Terry obtained a judgment for $50,000 against Davis in the underlying action, for which McFrugal was ultimately responsible as Davis’ insurer. Prior to this time, Terry had not renewed his uninsured motorist claim against State Farm and, in fact, Davis was not an “uninsured motorist” up until and through the date of the judgment.

On October 3, 1995, Terry’s counsel received notice from McFrugal that it had ceased operations as of September 30, 1995, and that there were no funds forthcoming to satisfy the judgment. Thus, more than 30 days after Terry had obtained a judgment against Davis, Davis’ insurance coverage vanished and Davis effectively became an uninsured motorist for the first time.

On October 19, 1995, Terry sent a demand letter to State Farm insisting that it satisfy the $50,000 judgment obtained against Davis. The letter specifically stated, “[t]his is now an uninsured motorist case.” (Emphasis in original.) Citing the dismissal, State Farm replied it had never been re-served in a manner authorized by law, had no obligation to pay the judgment, and would not pay the claim until it had been afforded the opportunity to defend on the merits in court. Terry then filed the action against State Farm which is now before us, seeking to recover the full amount of the underlying judgment against Davis, as well as the 25 percent penalty and attorney fees authorized by OCGA § 33-7-11. State Farm answered the lawsuit and moved for summary judgment, contending that, notwithstanding any judgment, the dismissal agreement preserved its right to defend on the merits. Terry subsequently also filed a motion for summary judgment.

The trial court granted Terry’s motion as to recovery of the $50,000 judgment amount, but denied summary judgment as to Terry’s claim for bad faith penalties and attorney fees. The court also denied summary judgment to State Farm. State Farm appeals. For reasons explained below, we reverse the trial court’s ruling granting summary judgment to Terry, affirm the denial of summary judgment to State Farm, and remand the case with direction. We note that, as Terry admits, there have been no reported cases in Georgia and no comparable cases in other states that have dealt with the particular situation before us.

1. In six enumerations of error, State Farm contends the trial court erred in ruling that Terry was not bound by the dismissal agreement in the original action, in granting Terry’s motion for summary judgment and in denying State Farm’s motion for summary judgment. Under OCGA § 9-11-56 (c), summary judgment should be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review de novo a grant of summary judgment, viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

2. Our first task is to ascertain the meaning and effect of the consent order dismissing State Farm as a party in Terry’s original action against Davis. In doing so, we begin by recognizing that this particular consent order constitutes a binding agreement between the parties with regard to their respective rights and obligations. Terry’s arguments that State Farm requested and drafted the dismissal are irrelevant. Both parties signed the dismissal, and the dismissal became a binding contract between the parties. “Competent parties are free to choose, insert, and agree to whatever provisions they desire in a contract. . . unless prohibited by statute or public policy. [Cit.]” Simmons v. Select Ins. Co., 183 Ga. App. 128, 129 (1) (358 SE2d 288) (1987). As discussed more fully below, we find the provisions in the dismissal are prohibited neither by statute nor public policy.

It is well established that contract disputes are particularly well suited for summary adjudication since construction of a contract is ordinarily a matter of law for the court. Burns v. Reves, 217 Ga. App. 316, 318 (1) (457 SE2d 178) (1995). “The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” OCGA § 13-2-3.

We find the dismissal at issue to be clear and unambiguous. The express language of the dismissal provides that in the event Terry elected to renew an uninsured motorist claim against State Farm, he would perfect service upon State Farm “in the manner authorized by law.” Terry further agreed that State Farm would “have a full right to defend [against Terry’s claims] on liability and damages. . . .” Finally, and most importantly, Terry agreed that “[stipulations and defaults by, or Judgments against, [Davis] will not be binding upon or create exposure by State Farm.” (Emphasis supplied.)

The only reasonable construction of this language is that State Farm would be given an opportunity to defend on liability and damages even after a judgment had been rendered against Davis. “It is well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless. [Cit.]” Bd. of Regents &c. of Ga. v. A. B. & E., Inc., 182 Ga. App. 671, 675 (357 SE2d 100) (1987). Thus, Terry is bound by the terms in the contract to afford State Farm a full right to defend on liability and damages, notwithstanding the fact that a judgment against Davis has already been rendered.

3. In an attempt to avoid the contract, Terry argues that the contract cannot be enforced because its language contravenes the provisions of the Uninsured Motorist Act, OCGA § 33-7-11. We disagree.

OCGA § 33-7-11 (d) provides that a personal injury plaintiff must serve his uninsured motorist provider “as though the insurance company were actually named as a party defendant.” Once served, OCGA § 33-7-11 affords the uninsured motorist provider the right to file defensive pleadings and take other necessary actions. In fact, Georgia law provides that the uninsured motorist provider can answer in its own name, become a party to the litigation, and contest issues of liability, damages and coverage. OCGA § 33-7-11 (d); Langford v. Royal Indem. Co., 208 Ga. App. 128, 129 (2) (430 SE2d 98) (1993). While we agree that this opportunity to contest liability and damages may be waived by the uninsured motorist provider (see Continental Ins. Co. v. Echols, 145 Ga. App. 112 (243 SE2d 88) (1978)), this case does not present a waiver issue.

In Echols, the uninsured motorist provider was served, but unilaterally elected not to participate in the case. The uninsured motorist provider then attempted to force the insured to relitigate the issues. We held that in such a case, the uninsured motorist provider waived his opportunity to contest liability and damages after a judgment was entered against the uninsured motorist. The trial court in this action read Echols to require an uninsured motorist carrier to always litigate the first action or be bound by its result. Such a result is not contemplated by the statute, especially in a case such as the one with which we are presented, where, at the time Terry and State Farm signed their dismissal, Davis was not an “uninsured motorist” because McFrugal was still solvent and remained so until after judgment was entered against Davis.

Moreover, unlike the uninsured motorist provider in Echols, State Farm did not merely sit back and elect not to participate. State Farm obtained a dismissal without prejudice, signed by Terry’s counsel, which provided that State Farm would have a full right to defend on liability and damages if it became necessary for Terry to re-serve State Farm in a manner authorized by law. This dismissal specifically stated that a judgment against Davis would not be binding upon or create exposure by State Farm, reserving State Farm’s rights under the Uninsured Motorist Act. Relying on the contract with Terry, State Farm did not participate in any other aspect of the litigation between Terry and Davis. In addition, unlike the uninsured motorist provider in Echols, State Farm was legally unable to pursue its statutory right to take defensive actions in the case against Davis because it had been dismissed from the case.

Contrary to the trial court’s holding, Terry is not being “penalized for the decision of [State Farm] not to pursue a defense of [its] position.” Terry is merely being held accountable for a contract he entered, a contract which benefited him by (1) saving him the time and expense of litigating with State Farm at a time when it was apparent his action did not involve an uninsured motorist and (2) affording him the ability to re-serve State Farm at a later date without fear that the statute of limitation had expired. The fact that Terry may have to undergo a second trial in this case is a consequence brought about by the timing of the change of Davis’ status from insured to uninsured and the agreement with State Farm. State Farm was certainly entitled to rely upon the agreement contained in the voluntary dismissal.

We further disagree with the trial court that the dismissal language “amounts to a forfeiture of the right to be protected from injury when an uninsured motorist is involved.” The language of the dismissal does not prohibit Terry from recovering uninsured motorist benefits. It does not limit uninsured motorist coverage through provisions or exclusions, as do the cases cited by Terry and the trial court. Rather, the dismissal merely preserves State Farm’s statutory right to defend on the merits as to liability and damages.

Based on the foregoing, we find the dismissal language does not violate the Uninsured Motorist Act but, rather, preserves State Farm’s statutory right to defend the action. Contracts should be given a construction that renders them in compliance with a governing statute rather than in contravention thereof. Langford, 208 Ga. App. at 130 (3) (b) (physical precedent only). Even if this case did not initially fall within the ambit of OCGA § 33-7-11, due process mandates that an uninsured motorist carrier, like any other defendant, be allowed notice and an opportunity to be heard before judgment is entered against it. We find the trial court erred in refusing to enforce the dismissal language.

4. Terry also attempts to avoid the language in the dismissal by claiming that the doctrines of res judicata and collateral estoppel will bar him from pursuing his claim against State Farm. This claim lacks merit.

“Generally, res judicata bars relitigation of any matter of a cause of action that was, or could have been, put in issue and adjudicated in a prior proceeding between the same parties, while estoppel by judgment prevents relitigation in a subsequent suit (involving a different cause of action) a matter which was actually adjudicated in a former case. [Cits.] Neither defense, however, is available unless the subsequent suit is between the same parties or their privies. [Cits.]” Blackburn v. Blackburn, 168 Ga. App. 66, 72 (2) (308 SE2d 193) (1983).

Procedurally, it should be remembered that an uninsured motorist claim is a contract action between the insured and his insurance carrier, even though it proceeds and is tried on tort issues. State Farm &c. Ins. v. Bd. of Regents &c. of Ga., 226 Ga. 310, 311 (174 SE2d 920) (1970). Within the context of this case, the parties will be trying a contract case as though it is the underlying tort case. The predicate to the contract action is State Farm’s right, preserved by the dismissal language, to litigate the issue of liability. Thus, this case is no different than if State Farm had elected to defend in its own name, with the exception that Davis is not a party to this new action.

This being the case, contrary to Terry’s contentions, Davis cannot raise the defenses of res judicata or collateral estoppel because Davis is not a party to Terry’s present action against State Farm. While Davis will, in all likelihood, be called as a witness in the present action, Davis is not a named defendant and is, therefore, not entitled to raise these defenses. Moreover, the original judgment against Davis remains enforceable as to Davis and is res judicata as to Davis, regardless of the outcome of the new action.

Likewise, while Terry could assert the defenses against Davis, he cannot use the doctrines offensively against State Farm, who was not a party to the prior case and did not have a full and fair opportunity to litigate the liability issue. We further find that Terry has waived any such defenses against State Farm due to the language of the dismissal agreement. Even Terry does not argue that he could claim the benefit of these principles.

We also find that State Farm could not raise these principles in a subsequent proceeding since State Farm’s counsel affirmatively stated in open court that State Farm agreed not to raise these affirmative defenses. “Statements of counsel during the trial of a case may be regarded as admissions in judicio.” (Citations and punctuation omitted.) John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 567 (1) (a) (333 SE2d 856) (1985); Liberty Nat. Bank &c. Co. v. Diamond, 231 Ga. 321, 323 (III) (201 SE2d 400) (1973). Likewise, the statement made by State Farm’s counsel during the motion for summary judgment hearing may be regarded as an admission in judicio, binding on State Farm.

5. Although State Farm has not challenged the initial service of process in either the first lawsuit or the action now before us, State Farm contends it was entitled to summary judgment because Terry has not re-served it with process in the first action. We disagree. Terry satisfied OCGA § 33-7-11 (d)’s requirement that the uninsured motorist carrier be “served as prescribed by law” when he served State Farm in the first lawsuit. He satisfied both that statute and the dismissal’s requirement that State Farm “be served in the manner authorized by law” by serving the complaint and summons in the present action. The trial court, therefore, was correct in denying summary judgment to State Farm.

6. We feel compelled to note that the procedural difficulties in this case were created by the parties, although the absurdity of the law in this area may well create the same procedural situation in the future. Because of the dismissal language, the parties must try this case again as though it were never tried. Terry must amend his complaint consistent with this opinion, and the parties and the court must ignore the fact that a judgment has already been rendered against Davis. At trial, a jury could find that Davis is not liable, thus entitling State Farm to judgment. On the other hand, a jury could find that Davis is liable, in which case State Farm would be liable to the extent of the judgment up to its policy limits.

7. Given the holding in Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162 (377 SE2d 853) (1989), regarding the statute of limitation issue and the difficulties created by that decision in vanishing coverage situations, such as the ones Justice Weltner anticipated in his Bohannon dissent and the one with which we are presented with in this case, the trial courts need guidance and direction regarding how a plaintiff can preserve his claims under an uninsured motorist contract and how the uninsured motorist carrier can preserve its rights to defend on the merits enjoying the same footing as the tortfeasor, which the court in Bohannon sought to ensure. In Rabun v. Williams, 168 Ga. App. 467, 470 (3) (309 SE2d 624) (1983), this Court incorrectly held that an uninsured motorist carrier properly served was entitled to summary judgment upon a showing that the defendant tortfeasor was not an uninsured motorist at the time of the motion for summary judgment. In view of the problems associated with vanishing coverage situations, it is clear the Rabun holding is incorrect.

Where the possibility exists that coverage will vanish, the proper approach is to grant the uninsured motorist carrier a dismissal without prejudice to either party. This would not only allow the uninsured motorist carrier to be brought back into the case with its full rights to defend on the merits should the case become an uninsured motorist case during its pendency, but it would also preserve the plaintiff’s rights under its contract with the uninsured motorist carrier. Summary judgment is inappropriate because it is premature. Thus, we expressly disapprove and overrule Rabun.

Based on the foregoing, we reverse the grant of summary judgment to Terry, affirm the denial of summary judgment to State Farm, and remand this case with direction to try the case as if it were the original case consistent with this opinion.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Pope, P. J., Smith, Ruffin and Eldridge, JJ., concur. Beasley, J., concurs specially. Andrews, C. J., and Birdsong, P. J., concur in Divisions I, 2, 3 and 4 and dissent in Divisions 5, 6 and 7. Blackburn, J., concurs in part and dissents in part.

Beasley, Judge,

concurring specially.

I concur in the judgment but not in the entirety of the opinion, particularly with the direction given and with the criticism that the law is absurd in this area.

This is a suit on a contract of insurance covering what turned out to be an “uninsured motor vehicle” as defined in OCGA § 33-7-11 (b) (1) (D) (iv). The rights and obligations of the parties to the contract, which rights and obligations are governed in part by OCGA § 33-7-II, were altered by an agreement made and filed in the underlying tort suit brought by the insured against the alleged tortfeasor. By that agreement the insured, who ultimately obtained a $50,000 judgment against the tortfeasor, bought the potential of a second lawsuit wherein the tortfeasor’s liability and the insured’s damages would have to be retried. That is the instant suit. Because the dismissal by its terms relieved the UM carrier of the binding effect on it of any judgment in that tort suit, plaintiff in this contract action must not only show that he has valid UM coverage under his policy in force at the time of the collision and that the tortfeasor’s vehicle is “uninsured” as defined in the statute, but he must also show the elements of the underlying tort rather than simply the existence of an unsatisfied judgment against the tortfeasor.

What happened is this. Terry, the insured, brought a tort claim against Davis for injuries arising out of a motor vehicle collision. As required by OCGA § 33-7-11 (d) in order to preserve an insured’s rights to UM coverage in the event the insured becomes entitled to it, Terry served a copy of the action on his UM carrier, State Farm. At that time, none of the five circumstances listed in OCGA § 33-7-11 (b) (1) (D) existed, and the alleged tortfeasor did not fit the sixth category described in OCGA § 33-7-11 (b) (2) (unknown owner or operator).

OCGA § 33-7-11 (d) did not require the uninsured motor vehicle insurer to take any action after it was notified by service of the tort suit. Instead, because the insurer was potentially liable under its contract, the law gave it “the right to file pleadings and take other action allowable by law [such as discovery] in the name of either the known owner or operator or both or itself.” The right is given bécause the carrier in its contract undertakes “to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle” to the extent of the policy limits. OCGA § 33-7-11 (a) (1). Therefore, the potential liability exists until its insured recovers by satisfaction of a judgment, if one is awarded against the alleged tortfeasor.

The majority incorrectly states that State Farm “was not a party to the [tort] case and did not have a full and fair opportunity to litigate the liability issue.” State Farm elected to become a party to the suit as another defendant, by filing an answer and cross-claim in its own name. Langford v. Royal Indem. Co., 208 Ga. App. 128, 129 (2) (430 SE2d 98) (1993) (physical precedent as to Division 3). Shortly thereafter, however, while the alleged tortfeasor’s liability was still an issue, State Farm and its insured agreed to a dismissal of State Farm from the tort suit, which dismissal was filed and by which State Farm reserved its right to a full and fair opportunity to litigate the liability issue. The dismissal read in its entirety: “DISMISSAL WITHOUT PREJUDICE AS TO STATE FARM. Plaintiff hereby dismisses, without prejudice, State Farm Mutual Automobile Insurance Company. The parties consent and agree that State Farm will waive any statute of limitations defense in the event that it becomes necessary for State Farm to be re-joined in this litigation. In the event that the plaintiff finds it appropriate to renew an "uninsured motorist claim, under circumstances including a withdrawal of coverage by a liability insurer, State Farm will be served in the manner authorized by law and have a full right to defend on liability and damages in this case. Stipulations and defaults by, or Judgments against, the individual defendant will not be binding upon or create exposure by State Farm. In the event the counsel for the named defendant or insurance carrier (McFrugal) files a Declaratory Judgment Action, counsel for State Farm agrees to participate in the litigation of this case.”

The insured acquired no ripe UM claim during the activity in that case prior to judgment, so the reintroduction of State Farm into the case was not attempted. But the agreement did not extinguish the insured’s potential right to coverage. The dismissal was “without prejudice,” and OCGA § 33-7-11 (a) (1) obligates the insurer for “all sums” within the policy limits which its insured is “legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.”

When it developed after judgment that the insured could not collect his judgment from the tortfeasor’s insurer due to its post-judgment insolvency, he turned to his insurer because the motor vehicle became uninsured within the meaning of OCGA § 33-7-11 (b) (1) (D) (iv). Although State Farm did not dispute this as fact, it did refuse to pay on the ground its insured had agreed, as a condition of dismissing State Farm from the tort suit without prejudice, that any judgment he won against Davis would not “be binding upon or create exposure by” State Farm.

Consequently, the insured’s suit on the policy, which has a six-year statute of limitation under OCGA § 9-3-24, is burdened by the specific agreement to permit State Farm to challenge Davis’ tort liability and the amount of damages. Had that provision been omitted from the dismissal agreement, Terry would have been entitled to recover the amount of the tort judgment from State Farm in that it admits coverage, assuming it does not contest the fact of uninsuredness.

I find no fault with the statute or with its construction by the Supreme Court in Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162 (377 SE2d 853) (1989), and Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976). In order to protect his existing or potential uninsured motor vehicle claim against his UM carrier, all the insured must do is notify the carrier, by copy of the action against the alleged wrongdoing driver and/or owner of the vehicle that judgment is being sought. The reason it must be done at the outset, within the statute of limitation applicable to the tort action, is that the UM carrier is potentially liable from that moment on and is entitled to protect its interests from that point. As succinctly stated in Vaughn, “the uninsured motorist carrier has the same interest in investigating and defending the tort claim as does any defendant in a tort case.” See also Doe v. Moss, 120 Ga. App. 762, 765 (172 SE2d 321) (1969) (the plaintiff’s UM carrier “is a party at interest”).

Were it not to be notified until after judgment, such as when a defendant’s insurer becomes insolvent post-judgment, its opportunity to investigate, participate in discovery and defend against the tort judgment in the first place would be nonexistent. In the absence of the agreement of dismissal in this case, State Farm would have risked its potential liability to pay the judgment becoming actual with the obtaining of a judgment which insurance would not pay. That liability would not depend on whether it took an active part in the tort action, as it had opportunity to do, but on its insured’s compliance with the requirement that he serve the UM carrier within the time he must serve the alleged tortfeasor. Whether the motor vehicle is “uninsured” at that time is immaterial; the law recognizes that it may become uninsured before the injured party recovers his damages.

The economic consequences of requiring service at the outset or, instead, only when “uninsured” becomes an existing fact is a subject for the legislature to consider if it chooses to reconsider OCGA § 33-7-11. It is equipped to hear from all interested stakeholders and to decide what procedure best provides due process to those ultimately liable to pay for the results of motor vehicle collisions, in order to achieve the public policy of coverage for an injured innocent driver or passenger.

Justice Weltner’s suggestion in the dissent in Bohannon, supra at 163-164, that requiring notice only after “there is a substantive doubt as to the existence of adequate insurance coverage . . . would protect all parties concerned” because notice would come “well in advance of any money judgment,” is not even borne out in this very case. The “substantive doubt” did not arise until after the judgment. That suggestion overlooks the post-judgment potential of liability arising under any of the circumstances listed in OCGA § 33-7-11 (b) (1) (D). It ignores the stake which the UM carrier has from the very outset of the suit. It overlooks that even notice during the course of the litigation but after discovery is conducted could require discovery all over again anyway. And it ignores the difficulty of determining when “a substantive doubt as to the existence of adequate insurance coverage” arises; such a nebulous event is ill-suited for pegging timely service on.

The laudable intention of the legislature, which seeks to protect the innocent, injured UM-insured motorist from loss, is to allow the issue of coverage to be tried right in the tort suit, if the UM carrier wishes, and to require the issue of tort liability to be tried only once. The salutary effects of avoiding multiple suits is recognized in Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 170 (268 SE2d 676) (1980) (unanimous whole court). As to the issue of coverage, this avoids the necessity for a separate declaratory judgment action by the UM carrier to resolve that issue before it must decide whether to defend the alleged tortfeasor. U. S. Fidelity &c. Co. v. Bishop, 121 Ga. App. 75, 77 (172 SE2d 855) (1970).

If the UM carrier who faces a potential claim wishes to take its chances after notice (by way of service of the tort complaint) and not defend in the name of the operator or owner or itself or some combination thereof, then it will be bound by the judgment because it could have done so. Its insured in a subsequent contract action need prove only four facts: the tort judgment, timely notice of the tort suit on the UM carrier, uninsuredness of the judgment debtor’s vehicle, and UM coverage; the insured need not re-prove tort liability and damages. See, e.g., Smith v. Phillips, 172 Ga. App. 459, 460, 462 (323 SE2d 669) (1984).

I do agree with the majority that, insofar as it would apply to the statute now in force, Rabun v. Williams, 168 Ga. App. 467, 470 (3) (309 SE2d 624) (1983), was in error in granting total summary judgment. I assume Aetna had made itself a party defendant in that case and raised the defense of no coverage in its answer. The opinion merely states, id. at 467, that the insured served Aetna with a copy of the complaint and that Aetna filed a motion for summary judgment, id. at 468 (1), Aetna was not entitled to it because it did not show it had no potential liability, only that there was other insurance at the time. So it was entitled to only partial summary judgment, on that issue. The court confused the insurer’s role as a defendant in the case. It was not made a defendant by plaintiff on the theory of contract liability, nor could it have been because no cause of action yet existed. It was made a defendant by its own voluntary action, to contest coverage, but it could not prove it would never be liable for any uninsured judgment.

The court in Rabun there considered the potential liability as merely “speculation,” but it did suggest that the “actual occurrence of one of [the statutory] events” could make it liable. Id. at 470 (3). The problem with allowing summary judgment is that had one of those events subsequently occurred and the plaintiff sought to recover the tort judgment from his UM carrier in a contract action, he would be met with the summary judgment in the UM carrier’s favor in the tort suit, based on a finding of no contract liability for the underlying tort. But otherwise the UM insurer would have been bound by the tort judgment in a later suit on the contract because it had been a party to that suit and chose not to contest that aspect of the case. Res judicata, as defined in Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865-866 (1) (463 SE2d 5) (1995), or collateral estoppel, see Blackburn v. Blackburn, 168 Ga. App. 66, 72 (2) (308 SE2d 193) (1983), would apply. The grant of summary judgment to Aetna in Rabun was premature.

Yarbrough v. Dickinson, 183 Ga. App. 489 (359 SE2d 235) (1987) (physical precedent only), affirmed summary judgment to the UM carrier which had entered the suit as a defendant and sought summary judgment because there was then no uninsured motor vehicle as defined in OCGA § 33-7-11 (b). The trial court had granted it “but provided it was not to affect any future claim by Yarbrough for PIP benefits or other coverage under that policy.” Id. In effect it was a limited summary judgment because it did not finally resolve the issue of coverage. In any later suit by its insured on the contract, demanding payment of an unsatisfied judgment which somewhere along the line had become one on an uninsured vehicle, the carrier would not be able to defend on the ground of res judicata or collateral estoppel because the summary judgment did not cover potential contract liability. In contrast, the summary judgment in Rabun was not limited.

For the reasons stated herein, I do not agree with the criticism of Bohannon and Vaughn in Stout v. Cincinnati Ins. Co., 226 Ga. App. 220 (486 SE2d 195) (1997), cited in the majority opinion, or in the case Stout cites, Reid v. U. S. Fidelity &c. Co., 223 Ga. App. 204 (477 SE2d 369) (1996).

Blackburn, Judge,

concurring in part and dissenting in part.

Because I believe the release agreement violated public policy to the extent that it provided that State Farm would not be bound by any judgment against Davis, I would affirm the trial court’s grant of summary judgment to Terry and its denial of summary judgment to State Farm.

1. “The following general principles apply to an interpretation of [the uninsured motorist] statute: The purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage To facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers.’ Uninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose.” (Citation omitted.) Smith v. Commercial Union Assurance Co., 246 Ga. 50, 51 (268 SE2d 632) (1980). We have held that “any policy provision which attempts to contravene the clear intent of the Uninsured Motorists’ Act is void and not enforceable.” State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga. App. 696, 698 (188 SE2d 813) (1972).

The uninsured motorist statute evinces a clear public policy that an insured need only obtain a judgment against an uninsured motorist to trigger liability on the part of the uninsured motorist carrier. Indeed, OCGA § 33-7-11 (g) expressly provides that “[nothing] may ... be required of the insured, subject to the other provisions of the policy or contract, except the establishment of legal liability.” “The phrase legal liability’ in the statute means exactly what transpired here, viz., the securing of a judgment against the uninsured motorist.” Continental Ins. Co. v. Echols, 145 Ga. App. 112, 113 (243 SE2d 88) (1978). To the extent that the dismissal agreement provides that the judgment against Davis is not binding upon State Farm, and purports to require Terry to relitigate the issue of Davis’ liability, it directly contradicts the statute’s proscription against requiring anything other than the securing of a judgment against the tortfeasor. Accordingly, the agreement violates clearly expressed public policy and cannot be enforced.

This policy of requiring the tortfeasor’s legal liability to be established in a single action is also reflected in other parts of the statute. Under OCGA § 33-7-11 (d), the plaintiff must serve his uninsured motorist carrier with a copy of the complaint and all pleadings as if it were a defendant in the action, in order to protect any uninsured motorist claim which he then has or may have in the future. The carrier has an absolute right to participate in the proceeding, either in its own name or in the name of the uninsured motorist. Id. Although a carrier may elect not to participate in the proceeding, it does so with the statutory knowledge that adjudications as to the tortfeasor’s liability will be binding upon the carrier in a subsequent action for uninsured motorist benefits. Echols, supra. When these facts are considered in conjunction with the statute’s prohibition against requiring anything “except the establishment of legal liability,” OCGA § 33-7-11, it is clear that the agreement in this case is violative of public policy to the extent that it negates the effect of the judgment against Davis for uninsured motorist insurance purposes.

The approach taken by the majority — allowing Terry to recover from State Farm if he can show at a second trial that Davis was liable for the accident — is not satisfactory. “A judgment obtained against the uninsured motorist is a condition precedent to recovery against an automobile liability carrier under the provisions of uninsured motorist coverage.” (Emphasis supplied.) Echols, supra at 113. If the majority is correct that the dismissal agreement is an enforceable contract, then the judgment obtained against Davis in the underlying tort action is not binding upon and does not create any exposure for State Farm. Thus, such judgment cannot constitute the necessary condition precedent to State Farm’s liability. The majority attempts to solve this problem by mandating a second trial, between Terry and State Farm (but not Davis), at which Terry must convince a jury that the original decision was correct. However, this second trial cannot result in a judgment against the tortfeasor, who would not be a party thereto. Thus, we would be left with a situation in which the original judgment against Davis cannot be used to create any liability for State Farm, and the second adjudication cannot satisfy the condition precedent to State Farm’s liability under the uninsured motorist coverage (i.e., a judgment against the tortfeasor).

For the above reasons, I must respectfully dissent as to the reversal of the grant of summary judgment to Terry. Because Terry was entitled to summary judgment, I concur specially with the majority’s conclusion that the trial court properly denied summary judgment to State Farm.

Andrews, Chief Judge,

dissenting.

I concur fully in the majority’s opinion in Divisions 1 through 4.1 also concur in the reversal of the trial court’s grant of summary judgment to Terry.

However, I dissent in part because I believe the opinion’s analysis requires us to reverse the denial of summary judgment to State Farm. The trial court denied summary judgment to State Farm because it found the language in the dismissal was contrary to the statutory provisions of OCGA § 33-7-11. On appeal, State Farm claimed the trial court erred in finding the dismissal was in conflict with the Uninsured Motorist Act and in finding that Terry was not bound by the agreement in the dismissal. The majority agrees with State Farm on both points. However, in spite of this holding, the opinion then affirms the denial of summary judgment to State Farm.

Decided December 4, 1997

Reconsideration denied December 18, 1997

Harper, Waldon & Craig, Russell D. Waldon, Jonathan M. Adelman, for appellant.

Robert S. Windholz, for appellee.

In Division 5, the opinion holds that Terry did not have to reserve State Farm and then concludes that because of this, State Farm should be denied summary judgment. This is immaterial. I agree Terry properly served State Farm pursuant to OCGA § 33-7-11 (d) in the first lawsuit and also properly served State Farm in the instant case. However, State Farm’s contentions, as discussed above, were that the trial court erred in finding the dismissal contrary to the intent of the Uninsured Motorist Act and in not enforcing State Farm’s right, under the dismissal, to be allowed to defend on the issues of liability and damages. As the opinion agrees with both these contentions, State Farm is entitled to summary judgment.

How Terry chooses to further pursue his rights under the dismissal agreement is not a matter upon which this Court should speculate. Moreover, Rabun v. Williams, 168 Ga. App. 467 (309 SE2d 624) (1983), is simply not before this Court. Accordingly, I do not concur in Divisions 6 and 7 as they are wholly advisory.

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


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A97A2451.
    In the Interest of V. S. et al., children.
    (495 SE2d 142)
   Blackburn, Judge.

Appellant, the biological mother of V. S. and C. S., appeals the juvenile court’s termination of her parental rights, claiming that the evidence was insufficient to support the termination. The appellant also contends that the juvenile court failed to follow certain procedural requirements imposed by OCGA § 15-11-41. For the reasons discussed below, we affirm the decision of the juvenile court.

On appeal, this Court must determine “whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. . . . This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is “present clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-81 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). In determining whether a child is without proper parental care and control, a court may consider, among other things, “[cjonviction of the parent of a feliony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship” and “[e]gregious conduct or evidence of past egregious conduct of the parent toward the child ... of a physically, emotionally, or sexually cruel or abusive nature.” OCGA § 15-11-81 (b) (4) (B) (iii), (iv). In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child. OCGA § 15-11-81 (a).

In February 1995, V. S., age six, and C. S., age five, were found to be deprived and were placed in the custody of the Department of Family & Children Services (“DFACS”) after their mother and her boyfriend were arrested for molesting the children. In a voluntary written statement to the police, appellant admitted taking part in the molestation. In describing the acts of molestation, appellant recounted that her boyfriend “placed his finger inside [appellant’s] vagina [and] rubbed his finger under [C. S.’s] nose.” Then, at appellant’s request, her boyfriend did the same to V. S. Appellant subsequently entered a plea of guilty to three felony counts of child molestation, and she was sentenced to ten years, two years of incarceration followed by eight years of probation. One of the conditions of appellant’s probation is that she may not reside or be alone with any children under 16 years of age. Although DFACS had previously developed a reunification plan for appellant which was reviewed every six months by a citizen panel, it recommended termination of parental rights after appellant pled guilty to molestation.

At the hearing on DFACS’ petition to terminate appellant’s parental rights, testimony was taken from seven witnesses, including appellant. A teacher who had taught V. S. and C. S. for approximately six months beginning in October 1994 testified, among other things, that V. S. was often dirty; that her hair was not brushed or washed; that V. S. and C. S. were inappropriately dressed and often sick; that V. S. had sores on her face; and that V. S. and C. S. had head lice.

The DFACS caseworker assigned to appellant’s case from February to September 1995 testified that appellant received notice of the citizen panel reviews which took place while she was assigned to the case; that appellant was present at the panel review in July 1995 when termination of her parental rights was first recommended; that the children were developmentally delayed when they came into DFACS’ care; that V. S. had serious dental problems caused by poor nutrition; that the children thrived in foster care and their developmental problems improved therein; that appellant’s children had lived most of their lives in appellant’s parents’ trailer which had no air conditioning and was filthy and infested by flies and roaches; that one of the two bedrooms in the trailer was filled with caged animals including snakes, chickens, lizards, and rats; and that the conditions in and around the trailer were not safe for children.

The second DFACS caseworker, who began working on the case in September 1995, testified that a total of four citizen panel reviews had been conducted with regard to appellant’s case while he was assigned to it; that appellant received notice of such citizen panel reviews; that the children had been in foster care throughout his involvement with the case, where they had done well; and that the children would be placed for adoption following termination of appellant’s rights. This caseworker also testified that DFACS had received five previous referrals on the appellant and her family since 1984, most of which regarded the family’s deplorable living conditions.

Appellant testified that she knew that termination of her parental rights had been DFACS’ recommendation since the summer of 1995; that she had been incarcerated since February 2, 1995 but anticipated being released in February 1997; that the molestation for which she was convicted was the only time that she engaged in such behavior; that she molested the children at her boyfriend’s prompting; that prior to her arrest she held three different jobs for no longer than three months since 1988; that her only continuous source of income was AFDC benefits; that her boyfriend whom she had lived with for one year sexually abused her and her children; that she did not try to stop her boyfriend because she was scared of him; that she knew V. S. had mental and physical deficiencies but that she had sought assistance for these problems; that she completed a parenting class in prison; and that she intended to obtain fdll-time employment even though her education and skills were limited, although she had no idea where she might obtain work.

1. “Initially, it is noted that appellant has been convicted of felony offenses involving her two minor [children] as victims. The very nature of these offenses would, as a matter of law, negatively impact upon the parent-child relationship both now and in the future. Further, although imprisonment alone does not always compel a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist. The nature of and circumstances surrounding appellant’s convictions per se [establish] the requisite aggravating circumstances in this case.” (Citation and punctuation omitted.) In the Interest of S. H., 204 Ga. App. 135, 139 (2) (418 SE2d 454) (1992).

Even without considering appellant’s incarceration, there exists a totally independent basis for termination of her parental rights under the four criteria of OCGA § 15-11-81 (b) (4) (A). As appellant did not appeal the original order of the juvenile court finding that her children were deprived, she cannot now complain about that finding. In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997). Therefore, only the three remaining criteria must be considered.

The juvenile court had sufficient evidence to determine that appellant’s inability to adequately care for her children was the cause of their deprivation. It was undisputed that the children were often dirty and had lice, that V. S. was developmental^ delayed, that the children’s living conditions were unsuitable, and that they suffered physical problems from malnutrition. Appellant’s pattern of conduct in raising her children provides a clear and convincing basis for the finding that the children’s deprivation was caused by her inability to care for them.

The evidence also supports the finding by the juvenile court that the deprivation is likely to continue. “Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue. . . . The court was entitled to infer from the evidence that, despite the best efforts of DFACS and many other social workers and charities, the same pattern of deprivation would continue each time the children were reunited with their mother.” (Punctuation omitted.) In the Interest of R. N., supra at 204 (c).

The record also supports the finding that the children are likely to be seriously harmed by the continued deprivation. Both children suffered physical, emotional, and developmental setbacks while under their mother’s care. When combined with the evidence regarding the deplorable conditions of the trailer where they had lived for most of their lives, the evidence provides clear and convincing proof that reuniting these children with appellant will likely result in serious harm to them.

Finally, the juvenile court properly determined that termination of appellant’s parental rights was in the best interests of V. S. and C. S. The same factors which prove a parent’s inability to properly raise her children may also serve to show that termination of parental rights would be in the children’s best interests. In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988). The appellant’s claim that she has now changed her ways does not compel a different outcome. “[T]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Punctuation omitted.) In the Interest of D. I. W., 215 Ga. App. 644, 646 (451 SE2d 804) (1994).

2. In her second enumeration of error, appellant contends that the juvenile court failed to impose the procedures contained in OCGA § 15-11-41, as amended in 1996, on the proceedings to terminate her parental rights under OCGA § 15-11-81. OCGA § 15-11-41, which is applicable to orders of disposition removing a child from the home of his parents and placing him in the State’s care, provides, in relevant part: “At the time of each review of every case of a child in foster care in the custody of [DFACS], a representative of [DFACS] shall notify the court whether the division intends to proceed with the termination of parental rights at that time. If the division indicates that it does not intend to petition for the termination of parental rights at that time, the court may appoint a guardian ad litem and charge such guardian with the duty of determining whether termination proceedings should be commenced. In the event the review is conducted by citizen review panels, the panel shall transmit its report, including its findings and recommendations and those of the department, along with the department’s proposed revised plan for reunification or other permanency plan, if necessary, to the court and the parents within five days after the review. Any party may request a hearing on the proposed revised plan in writing within five days after receiving a copy of such plan.” OCGA § 15-11-41 (j).

Prior to the amendment of OCGA §§ 15-11-41 and 15-11-81 in 1996, we held that “OCGA § 15-11-81 regarding termination is a complicated statute that references many other statutes. If the legislature had intended it to be read in conjunction with OCGA § 15-11-41 (b), this intent would have been expressly stated.” In the Interest of A. M. B., 219 Ga. App. 133, 136 (464 SE2d 253) (1995). Although OCGA § 15-11-41, as amended, now makes reference to OCGA § 15-11-81, it does not do so in such a way to impose procedures applicable to orders of disposition and recommendations regarding reunification, including OCGA § 15-11-41 (j), on OCGA § 15-11-81 termination proceedings. Furthermore, OCGA § 15-11-81 was amended at the same time as OCGA § 15-11-41, and no mention of OCGA § 15-11-41 is made in the new version of OCGA § 15-11-81. Accordingly, the two proceedings remain separate and distinct, and the juvenile court did not err by treating them as such.

Decided December 18, 1997.

Jerry W. Moncus, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Michael R. McCarthy, Cynthia N. Johnson, for appellee.

Even pretermitting the issue of whether the provisions of OCGA § 15-11-41 are applicable to OCGA § 15-11-81, appellant’s claims must fail. It is undisputed that she knew since the summer of 1995 that DFACS’ recommendation in her case was to forego the reunification plan originally set up for her and to seek termination of her parental rights. Apparently, appellant argues that the failure to receive repeated notification of what she already knew and the denial of an OCGA § 15-11-41 (j) reunification hearing raising the same issues as the OCGA § 15-11-81 termination hearing require a reversal of the termination proceedings. Appellant, however, has provided no evidence showing that she was harmed by such omissions even if she had a right to them. Although appellant indicates that she would have cooperated with reunification plans if given the chance, she has not shown that she could have provided evidence at an earlier reunification hearing not heard at the termination hearing which would have resulted in a different outcome. “It is an old and sound rule that error to be reversible must be harmful.” (Punctuation omitted.) Hunt v. State, 204 Ga. App. 799, 802 (5) (420 SE2d 656) (1992).

Accordingly, appellant’s claim is meritless.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       The rights of the biological father of V. S. and the biological father of C. S. were also terminated on grounds of abandonment. The fathers are not parties to this appeal.

       This is not changed by the fact that DFACS, pursuant to OCGA § 15-11-41 (j), is now required to tell the juvenile court at each review for a deprived child in custody whether it intends to seek termination of parental rights. This provision appears to be for the benefit of the deprived child, not the parent, as the court is given the right to appoint a guardian ad litem to consider termination if DFACS decides not to pursue it. In other words, the court has the right to a second opinion when DFACS does not seek termination.


text:
    A97A2571.
    DARBY v. THE STATE.
    (495 SE2d 146)
   Blackburn, Judge.

Pursuant to a voluntary plea agreement regarding his conviction for theft by taking, Jerry Lee Darby was required to pay child support directly to his ex-wife, Gilda Lavendar Darby, as a special condition of his probation. Darby appeals the trial court’s refusal to strike this special condition, contending that the condition is illegal and void. For the reasons discussed below, we affirm the trial court’s denial of Darby’s motion.

In determining probation conditions, “[t]he trial judge is expressly authorized by OCGA § 17-10-1 (a) to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. OCGA § 42-8-35 sets forth 12 conditions which may be imposed on probation. This list, however, is not .exclusive. A trial court certainly has broad discretion to determine the terms and conditions of probation. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.” (Citations and punctuation omitted.) Tuttle v. State, 215 Ga. App. 396, 397 (2) (450 SE2d 863) (1994).

On November 19, 1992, Darby was indicted for the offense of theft by taking of monies belonging to Lockheed Georgia Employee’s Federal Credit Union. On March 9, 1993, after paying restitution to Lockheed, Darby entered a plea of guilty to the crime pursuant to a negotiated plea agreement with the State. The trial court accepted the terms of this plea agreement, and Darby was sentenced to ten years of probation, with the special condition that he “pay [his ex-wife] Gilda Lavendar Darby the sum of two hundred ($200.00) by money order each and every Friday by 6 pm without fail for child support.” The trial court also ordered that “for the payment of monies and for the protection of the public, [Darby] is to remain under the [court’s] order of 10 years probation for the FULL term. The instant probation is not to be terminated or relaxed in any fashion.”

1. In his first enumeration of error, Darby contends that the special condition of his probation requiring child support payments was illegal and void because it was unreasonable and fails to serve a legitimate purpose. We disagree.

OCGA § 42-8-35 enumerates 12 different conditions of probation which generally may be imposed on probationers in every case. By enumerating these conditions, the legislature has provided the courts with probation conditions which bear a reasonable relation to any crime and further serve to promote the rehabilitation of prisoners and the protection of society, the two main goals of probation. Ballenger v. State, 210 Ga. App. 627, 629 (2) (436 SE2d 793) (1993). OCGA § 42-8-35 (10) explicitly states that the court may require that the probationer shall “[s]upport his legal dependents to the best of his ability.” Because such a requirement ensures both that a probationer respects and fulfills his parental duties and that his children receive adequate support, it serves to foster the probationer’s rehabilitation as an upstanding citizen and protects society’s interest in the proper development of children. The condition that Darby pay $200 a week to his ex-wife is simply a specifically tailored exercise of the trial court’s power to mandate that he support his legal dependents generally; therefore, Darby’s contention that such condition was unreasonable and failed to serve a legitimate purpose is directly contrary to OCGA § 42-8-35 on its face and must be rejected.

2. In his second enumeration of error, Darby contends that the special condition of his probation requiring child support payments was illegal and void because he was not charged with child abandonment. In light of our holding in Division 1 of this opinion, we reject Darby’s claim that payment of child support may be made a condition of probation only in cases of child abandonment.

3. In his third enumeration of error, Darby contends that the special condition of probation was illegal and void because he was required to make payments directly to his ex-wife rather than to an entity authorized by law to receive such payments pursuant to OCGA § 17-10-1. However, Darby failed to raise this issue in his motion to strike or at the corresponding hearing. “Therefore, there is no ruling by the trial court with regard to this issue. Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.” (Punctuation omitted.) Colley v. State, 225 Ga. App. 198, 201 (3) (483 SE2d 355) (1997).

4. In his fourth enumeration of error, Darby contends that the terms of his probation were illegal and void because he was placed on reporting probation for a period exceeding two years in contravention of OCGA § 17-10-1 (a) (2). However, as Darby knowingly and voluntarily entered into the negotiated plea agreement and accepted this condition of his probation in open court, he has waived the right to challenge this issue on appeal. Allen v. State, 258 Ga. 424, 425 (3) (369 SE2d 909) (1988). Moreover, even if Darby had not waived this issue, OCGA § 17-10-1 (a) (2) provides that “in those cases involving the collection of fines, restitution, or other funds, the period of supervision shall remain in effect for so long as any such obligation is outstanding, or until termination of the sentence, whichever first occurs.” Accordingly, Darby’s contention that the continuation of his probation supervision was improper must be rejected.

Decided December 18, 1997

Wallace C. Clayton, Amelia G. Pray, for appellant.

Thomas J. Charron, District Attorney, Maria B. Golick, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Smith, Judge.

text:
    A97A1185.
    POST PROPERTIES, INC. v. DOE.
    (495 SE2d 573)
   Smith, Judge.

Jane Doe was raped inside her apartment and filed this action against Post Properties, the owner and operator of the apartment complex where she lived. She claimed Post was negligent because the criminal conduct of her assailant was foreseeable and could have been prevented if Post had kept the premises safe. Post filed a motion for summary judgment, which was denied by the trial court on the basis of this Court’s holding in Walker v. Sturbridge Partners, Ltd., 221 Ga. App. 36 (470 SE2d 738) (1996), aff’d, 267 Ga. 785 (482 SE2d 339) (1997). We granted Post’s application for interlocutory review. Because we conclude that the record is devoid of competent evidence that the attack was proximately caused by any act or omission of Post, we reverse the denial of Post’s motion.

The following facts concerning the attack are not disputed. Doe was a long-term resident of Post Brook apartments at the time of the attack. She had moved into a third-floor apartment in 1984 but moved to a ground floor apartment in December 1990. In addition to the front door, which could be locked with a deadbolt lock, the apartment had a sliding back door. The sliding door was equipped with a manufacturer’s lock and a device called a “charlie bar,” which Post installed on the door.

Sometime during the day prior to her attack, Doe opened her back door for ventilation because she had fumigated the apartment. She left the door open for an unspecified period of time before closing it prior to falling asleep around 8:00 p.m. Doe did not use the charlie bar after closing the door, and she was unsure whether the manufacturer’s lock on the door engaged when she closed the door. She acknowledged during her deposition that the sliding door “was unlocked in the sense that I don’t think the lock that I shut clicked. I didn’t double-check it.” She “knew to double-check it always because sometimes it didn’t catch, and [she] heard the click and that’s not enough. You have to double-check those locks.” When asked whether she told anyone that the door was not locked, Doe replied that “if I said it was just unlocked, what I was saying was that I didn’t lock it properly.” Doe could not remember whether her windows were locked that night.

After Doe fell asleep, she was awakened at knifepoint by a man, who demanded her purse or money. He then raped her and left the apartment. The assailant apparently was never apprehended. It is undisputed that no signs were found of forced entry into the apartment, and the record does not show how the assailant gained entrance onto the property.

On motion for summary judgment, Post pointed to several facts in support of its contention that Doe should not recover, including the following: Doe’s acknowledgment, by signing a security agreement, that she would inspect her door locks and report repair needs and her awareness that Post did not guarantee her personal safety; the fact that she never reported to Post any problems with her locks; her failure to double check the sliding door and to use the charlie bar on the night of the attack; the lack of signs of forced entry; and the fact that the assailant was unknown and appeared to have gained entry through Doe’s unlocked back door. Post argued it was entitled to summary judgment on several grounds, most notably that the criminal attack was not foreseeable as a matter of law, since no other crimes against people had occurred in the complex. In response to Post’s motion, arguing that material issues of fact existed, Doe relied in large part on opinion testimony of a witness who had worked in various capacities in law enforcement. In his affidavit, the witness proposed several means by which the assailant could have gained access to the property and to Doe’s apartment and alleged that Post was negligent in the following areas with regard to safety: (1) lighting; (2) landscape; (3) locking devices; (4) fencing; (5) entry gate system; (6) security officers; (7) key control; and (8) failure to warn.

After the trial court denied Post’s motion and after we granted Post’s petition for interlocutory review, the Supreme Court issued its affirmance in Sturbridge Partners, supra. That case is significant in many respects, including its approach to the issue of foreseeability of criminal attacks in premises liability cases. The Supreme Court decision in Sturbridge Partners specifically overruled Savannah College of Art &c. v. Roe, 261 Ga. 764 (409 SE2d 848) (1991), insofar as Roe stood for the proposition that crimes against property “cannot establish the foreseeability of a brutal sex crime as a matter of law.” Sturbridge Partners, 267 Ga. at 786.

The Supreme Court found the issue in Sturbridge Partners to be “not the foreseeability of the rape itself; but whether Sturbridge had actual knowledge of the prior burglaries and, because of that knowledge, should have reasonably anticipated the risk of personal harm to a tenant which might occur in the burglary of an occupied apartment. [Cits.]” 267 Ga. at 787. Going on to find that the complex did have actual knowledge of two burglaries prior to the rape, the court concluded that “it was reasonable to anticipate that an unauthorized entry might occur while an apartment was occupied and personal harm to a tenant could result.” (Footnote omitted.) Id. Based on this conclusion, the court stated that “evidence of the prior burglaries was sufficient to give rise to a triable issue as to whether or not Sturbridge had the duty to exercise ordinary care to safeguard its tenants.” Id. But as noted by the Supreme Court, it did not reach the issue of whether Sturbridge failed to exercise ordinary care, because neither the trial court nor this Court had considered the issue. Id. at n. 2.

We find no denial by Post of knowledge of prior break-ins into its apartments. In fact, it appears that Post did have knowledge of other break-ins. We are bound by the Supreme Court’s pronouncement in Sturbridge Partners that a “triable issue” may have arisen with regard to whether Post had a “duty to exercise ordinary care to safeguard its tenants.” Id. at 787. But even in light of Sturbridge Partners, summary judgment in Post’s favor was authorized.

A majority of the Supreme Court in Sturbridge Partners addressed the issue of when an attack against a person is foreseeable and “laid to rest the artificial notion that a crime against a person could never be foreseen by previous crimes against property.” Doe v. Prudential-Bache/A.G. Spanos Realty Partners, L.P, 268 Ga. 604, 605 (492 SE2d 865) (1997). Importantly, however, Sturbridge Partners did not eliminate well-established principles concerning landlords’ responsibilities toward tenants. Although the dissent in Sturbridge Partners strongly protested that the result of that case made “landowners virtual insurers of those who come on their property,” Sturbridge Partners, supra at 787, it is clear from a reading of the majority opinion that the majority recognized “that a landlord does not insure tenants’ safety against third-party criminal attacks.” Id. at 785. Sturbridge Partners does not state that every case in which evidence exists indicating foreseeability of a criminal attack must proceed to a jury; such a statement might well make landowners insurers.

Nor does Sturbridge Partners purport to modify the rules concerning parties’ burdens on motion for summary judgment, as succinctly set out in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991): “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Id.

In Lau’s Corp., plaintiffs sought damages following a criminal attack in the parking lot adjacent to defendant’s property. The Supreme Court reiterated the rule that a landowner is not an insurer of its invitees’ safety, id. at 492, and recognized the four essential elements of a negligence claim: a duty to protect others against unreasonable risks; a breach of that duty; “a reasonable close causal connection between the conduct and the resulting injury”; and damage. Id. The court found that plaintiffs failed to present evidence showing a breach of duty in response to the evidence submitted by the defendant, id. at 494 (2), and reiterated the rule that “summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Id. at 495 (4). The evidence did not create a triable issue as to an essential element of plaintiffs’ case, and the court held that defendant was entitled to summary judgment. Id.

Here, too, the evidence is insufficient to show at least one essential element of Doe’s case: causation. It is true that Doe’s witness proposed several reasons why he believed Post to have been negligent, as well as possible means by which Doe’s assailant could have gained access to the apartment complex and her apartment. He stated, for example, that safety and security conditions on the property such as landscaping, lighting, fencing, the entry gate system, and vehicle access allowed criminals easy access to the common area of the complex. The witness made further allegations concerning master key control, substandard locking devices, and failure to warn of previous criminal activity, conditions that could have permitted easier access to individual apartments.

But these allegations are only guesses as to how the unknown .assailant might have accessed the property and how he might have entered Doe’s apartment. Although Doe’s witness provided several means by which an assailant could have gotten onto the property and hidden, even giving Doe the benefit of all reasonable inferences, the record is silent as to how the assailant entered the complex on the night of Doe’s attack. We can only surmise that he was unlawfully on the complex premises. Doe’s own witness acknowledged he did not know the direction from which the assailant entered the property or his means of entering the property. While the assailant could have walked or driven past the barrier arm, rolled under the fence, or walked through an opening in the fence, as acknowledged by Doe’s witness, he could also have been another resident, guest, or other person authorized to be on the property. As for the witness’s concerns about employing a courtesy officer, again, we can only speculate that the assailant was unlawfully on the property and that a different type of security patrol might have prevented Doe’s assault. In short, without any evidence concerning how the assailant entered the complex, nothing supports Doe’s expert’s allegation that heightened security by any of the means concerning entry onto the property would have prevented the attack. Compare Walker v. St. Paul Apts., 227 Ga. App. 298 (489 SE2d 317) (1997) (assailant entered front door of apartment complex in high crime area when security guard, who had no key to front door and could not lock front door at night, left post).

Further, the only evidence in the record concerning the assailant’s entry into Doe’s apartment is that entry was unforced. He could have entered through the front door, perhaps with a master key. But Doe’s own witness admitted that he had no knowledge that the master key was missing or misused in July 1992, or that prior unforced break-ins resulted from misuse of the master key. Alternatively, the assailant could have entered through a window or through the back sliding door, which Doe acknowledged may not have been locked on the night of the attack. We also note that Doe never reported any problems with the locks to Post management, and her witness acknowledged that no evidence suggested that the door was improperly adjusted. And although Doe’s witness testified in his affidavit that a “pin lock” was needed on the door, whether such a lock would have prevented entry into Doe’s apartment is speculative, since Doe has not shown how the assailant entered her apartment. Additionally, it is important to remember that Doe did not utilize the extra locking device, the charlie bar, provided to her by Post. Indeed, Doe’s witness acknowledged during his deposition that safety devices do not increase security when tenants do not use them. As for the allegation that Post failed to warn of other break-ins and criminal activity, Doe has not established that her assault was proximately caused by this failure.

It is significant that Doe had knowledge of criminal activity that occurred at the complex when she chose to move into the ground floor apartment. She knew there had been a prior break-in at the apartment next door. And although she stated she moved into the ground floor based on the assurances of an agent of Post that the apartments were safe, Doe does not dispute that she signed a security acknowledgment in which she agreed that safety was her responsibility. The lease signed by her also contained an integration clause reciting that it and any attached addenda constituted “the entire agreement between the parties and no oral statements shall be binding.”

In summary, Doe’s claim is defeated by her failure to produce evidence concerning how her assailant entered the property, whether he was lawfully there, and how he entered her apartment. The evidence presented by her does not sufficiently link any of the array of her witness’s allegations to the activity that occurred on the night of Doe’s attack. To conclude that those allegations show a sufficient link of causation between Post’s acts or omissions and Doe’s attack would require a jury to engage in pure speculation and guesswork. This is neither required nor allowed in this state. “Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment! [Cits.]” Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996). A plaintiff “must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough.” Niles v. Bd. of Regents &c. of Ga., 222 Ga. App. 59, 61 (2) (473 SE2d 173) (1996). See also Rampell v. Williams, 217 Ga. App. 292, 294 (457 SE2d 224) (1995); Hickey v. Vulcan Materials Co., 214 Ga. App. 649 (448 SE2d 714) (1994); Anneewakee, Inc. v. Hall, 196 Ga. App. 365, 367 (1) (396 SE2d 9) (1990). Doe simply failed to present competent evidence that her attack was proximately caused by any act or omission of Post. Because proximate cause is an essential element in a negligence claim, Lau’s Corp., supra, and because Doe failed in her burden of presenting competent evidence of a triable issue of fact, the trial court erred in denying Post’s motion for summary judgment.

We recognize that we reversed the grant of summary judgment to the defendant apartment owner on plaintiff’s OCGA § 51-3-1 claim in Doe v. Briargate Apts., 227 Ga. App. 408 (489 SE2d 170) (1997). There, too, plaintiff was sexually assaulted in her own apartment. We found previous attacks in the complex, including one on Doe herself, to be substantially similar. See id. at 409-410. Also in Briargate Apts., as here, allegations concerning defendant’s security were raised, and we concluded that those allegations raised triable issues for the jury. Id. at 410. But that case is not binding precedent. The judgment was a “general concurrence by less than a majority of the Judges.” Court of Appeals Rule 33 (a).

More importantly, in Briargate Apts., the method by which the intruder gained entry was shown in detail, and more than mere speculation or conjecture provided a basis for showing a factual issue as to causation. Unlike the record in this case, the evidence in Briargate Apts, showed how the assailant entered plaintiff’s apartment — through a second-story window by means of a ladder after prying part of the window pane away. Id. at 408. And plaintiff established a direct causal link between the lack of security and the means of entry. We stated that a jury could conclude that “the length and extent of any patrols conducted for the tenants’ safety were inadequate in light of defendant’s knowledge of the previous attack on plaintiff and the very fact that the patrols of the premises on the date in question did not discover any intruder on a ladder trying to enter plaintiff’s apartment, or even the ladder itself after the intruder allegedly had made his entry.” Id. at 410.

This case also is distinguished from Shoney’s, Inc. v. Hudson, 218 Ga. App. 171 (460 SE2d 809) (1995). In that case we upheld the denial of summary judgment to Shoney’s, concluding that substantially similar attacks had occurred on the premises, raising a triable issue of fact concerning the foreseeability of a criminal attack against an invitee. Id. at 174. We also relied in part on the affidavit testimony of plaintiff’s expert, who testified concerning Shoney’s failure to provide uniformed security patrols for its customers in the parking lot at night. Id. But this testimony was narrowly limited to specific security issues, as opposed to a laundry list of reasons why Shoney’s may have been negligent, and the testimony was directly relevant to the manner in which plaintiff in that case was attacked. In contrast, the evidence in this case is silent or at best speculative, both as to how Doe’s assailant entered the property and Doe’s apartment. Conjecture that one of a wide range of security measures might have prevented the assault cannot serve to prevent summary judgment in favor of Post.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur in the judgment only.

Decided December 3, 1997

Reconsideration denied December 19, 1997

Berlon & Timmel, Michael R. Berlon, for appellant.

Jewett & Clark, C. Lawrence Jewett, Jr., Robin F. Clark, for appellee.

On Motion for Reconsideration.

Doe has raised several contentions on motion for reconsideration, one of which we find necessary to address. She argues that the issue of whether she submitted sufficient evidence of causation was not preserved for our review because the issue was not raised below or ruled on by the trial court. This issue is indeed a difficult one with which we grappled before issuing our opinion and one that is deserving of discussion.

Our decision to reach the issue of causation was based on the principle that this Court reviews the denial of a defendant’s motion for summary judgment de novo, construing all reasonable inferences in a light most favorable to the nonmoving party. See, e.g., Hillcrest Foods v. Kiritsy, 227 Ga. App. 554 (489 SE2d 547) (1997). It is true that the issue of causation was not explicitly raised as an argument below. But the issue was implicitly raised by the evidence before the trial court on Post’s motion. That evidence implicitly — and inescapably — leads to the reasonable inference that Doe did not and could not show the essential element of proximate cause below. Even construing the evidence in Doe’s favor, the evidence therefore showed below and shows here the absence of an essential element of Doe’s claim. She failed below to supply any evidence showing the existence of a genuine factual issue with respect to causation, and summary judgment in Post’s favor was therefore warranted under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       A “charlie bar” was described by one witness as an aluminum piece of tubing installed between the jamb and the interior sliding panel of the door. The witness stated that a pin is used to secure the bar to “keep it from riding up in case somebody shakes it.”

       We note that Niles and Anneewakee are cases addressing the propriety of granting a motion for directed verdict, rather than a motion for summary judgment. But the principle relied on in those cases — that a finding of causation cannot be based on speculation — is equally applicable here. See generally Hickey, supra.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A97A1279.
    WEST v. EQUIFAX CREDIT INFORMATION SERVICES, INC.
    (495 SE2d 300)
   Beasley, Judge.

George West appeals the order of the state court which dismissed his complaint against Equifax Credit Information Services, Inc. because West did not respond to Equifax’s interrogatories and request for production of documents and failed to attend his own deposition. West contends the court abused its discretion in dismissing the complaint when an order compelling discovery or a less severe sanction would have been appropriate and in dismissing the complaint despite Equifax’s own discovery abuse.

First, we note the trial court did not mention Monster Motors, Inc., Equifax’s co-defendant, in its order dismissing West’s claims against Equifax, although the order directs that West’s complaint be dismissed. Because “there is no authority for a co-defendant to become the beneficiary of a dismissal under [OCGA § 9-11-37 (d)] merely because of a failure of the plaintiff to comply with the other co-defendant’s discovery actions,” Johnson v. Martin, 137 Ga. App. 312, 314 (223 SE2d 465) (1976), the case against Monster Motors, Inc. is still pending. See also Washington v. South Ga. Med. Center, 226 Ga. App. 554, 555-556 (487 SE2d 125) (1997) (rule applies to deposition discovery as well as written discovery); Singleton v. Eastern Carriers, 192 Ga. App. 227 (384 SE2d 202) (1989).

Now as to Equifax. On July 12, 1994, West filed a complaint seeking damages resulting from a credit report Equifax published. Equifax answered and moved to remove the case to federal court. West thereafter achieved remand to state court, and formal discovery began on the date of the remand, either March 16 or 17, 1995. On August 4, Equifax served West with interrogatories and a request for production of documents. According to the trial court, the responses were due on September 5. West failed to respond. In the meantime, on August 15, Equifax noticed West’s deposition for September 12. Without filing a motion for a protective order, West refused to appear on the scheduled date.

On October 18, Equifax moved pursuant to OCGA § 9-11-37 (d) to dismiss the complaint as a sanction for West’s refusal to respond to written discovery or appear at his deposition, or in the alternative to compel discovery. The court held a hearing on December 19 and, by order filed January 29, 1996, dismissed West’s complaint. The court found that the record showed West’s failure to respond to the discovery was intentional and conscious and noted that at the oral hearing, West’s counsel “admitted that he wrongfully refused to provide [West] for his deposition and that he intentionally withheld discovery responses from Defendant Equifax.” West moved to set aside the judgment under the inherent power of the court to modify or set aside a judgment, but the motion was denied and the clerk was directed to enter judgment in favor of Equifax and against West.

1. “Trial judges have broad discretion in controlling discovery, including imposition of sanctions [cit.], and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion. [Cit.]” Fidelity Enterprises v. Heyman & Sizemore, 206 Ga. App. 602, 603 (426 SE2d 177) (1992); Addington v. Anneewakee, Inc., 204 Ga. App. 521, 522 (420 SE2d 60) (1992). Provided that proper discovery procedure is followed, the Civil Practice Act authorizes a trial court to dismiss a plaintiffs action as a sanction for a complete failure to attend his own deposition, to respond to interrogatories, or to respond to requests for production. OCGA § 9-11-37 (d) (1); Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 438 (2) (254 SE2d 825) (1979); Barron v. Spanier, 198 Ga. App. 801, 802 (403 SE2d 88) (1991).

“The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful.” (Citations and punctuation omitted.) Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344, 345 (373 SE2d 50) (1988). “The trial judge is the trier of fact and [the] finding of wilfulness from the evidence presented will not be reversed where there is any evidence to support it.” Wetherington v. Koepenick & Horne, Inc., 153 Ga. App. 302, 304 (2) (265 SE2d 107) (1980).

The record fully supports the finding that West’s failure to attend his deposition and answer the discovery was the result of a conscious or intentional failure to act, as distinguished from accidental or involuntary non-compliance. West’s counsel admitted intentionally refusing to respond to discovery in an attempt to force Equifax to provide other discovery, and he continued to refuse discovery after Equifax complied with all pending discovery requests. At the hearing, counsel for West stated “[t]hen my client is noticed to a deposition, and I probably wrongfully said, I’m not going forward with the deposition of my client until you actually put the people who we really want to depose up for a deposition. It was a tit for tat thing, but I didn’t know what else to do and I probably made a mistake.” With regard to the written discovery, counsel stated, “they said, Are you going to do discovery?’ I said, well, you got to come up with your discovery before I agree to do mine.” This provided a sufficient basis for the findings.

West answered the discovery only after Equifax moved for sanctions. Late responses do not nullify the motion. Rucker v. Blakey, 157 Ga. App. 615, 616 (278 SE2d 158) (1981); Addington v. Anneewakee, Inc., supra, 204 Ga. App. at 522. See also Bells Ferry Landing, Ltd., supra, 188 Ga. App. at 345.

2. West next argues that the sanction of dismissal should not be allowed where the opposing party has also failed to respond to discovery. The Civil Practice Act provides abuse remedies to every party to an action, OCGA § 9-11-37; West should have pursued them rather than seek self-help. Although the Civil Practice Act requires each party to respond to discovery, it does not authorize the type of self-help West attempted. Counsel for West may have felt provoked, but this reaction does not excuse a failure to comply with the rules of discovery.

He argues that by seeking a dismissal for failure to comply with discovery Equifax sought equity, and that Equifax’s motion should have been denied because it had “unclean hands.” OCGA § 23-1-10. True, neither West nor Equifax was diligent, but that is not grounds to reverse the court’s order. There was ample evidence to support the court’s order, and it was not legally erroneous.

Further, “[t]he rule that he who would have equity must do equity refers to equitable rights respecting the subject-matter of the action. [Cit.] It does not embrace outside matters.” Atlanta Assn. of Fire Ins. Agents v. McDonald, 181 Ga. 105, hn. 2 (181 SE 822) (1935). Cf. Morton v. Gardner, 242 Ga. 852, 854 (252 SE2d 413) (1979); Adams v. Crowell, 157 Ga. App. 576 (278 SE2d 151) (1981). The unclean hands doctrine does not authorize reversal of the trial court’s grant of a motion for sanctions arising out of a discovery dispute. Although a trial court may take into account both parties’ actions during discovery when determining what sanctions are appropriate, the nature of the moving party’s actions in responding to discovery requests does not preclude sanctions in its favor. These are circumstances for the trial court’s consideration.

Despite the governance of the law in this case, Equifax’s behavior does not go unnoticed or approved.

On May 10, 1995, West wrote and requested deposition dates for “all Equifax employees who have actual knowledge of the George West case. . . .” On May 17, Equifax’ counsel responded in a letter that “[w]e will endeavor to provide an Equifax employee who is most knowledgeable on the subject areas listed in your letter. . . . As we discussed, the deposition will probably need to be scheduled during the last week in May. After this deposition, we can discuss which, if any, other Equifax employees would need to be offered in discoverable areas.” On May 23, counsel for Equifax sent another letter saying “I will be in touch with you shortly regarding the scheduling of the Equifax deposition you have requested.”

Finally, on July 25, counsel for Equifax wrote “I have identified several individuals at Equifax who can answer questions responsive to the question categories you listed for us. One witness, in particular, may be suitable for all categories and may be able to answer all the questions you may have. Thus, I would suggest that you begin with that witness and then determine after the deposition has concluded whether you need anyone else for any other areas of inquiry. I think this is the best way to proceed and we will be more than happy to cooperate with you on this basis.” Potential dates for this one witness were given, but the first date was only two days later and even it was over two months after West’s initial request. Equifax agreed to produce only one witness despite admitting that there were “several” who had knowledge, and it agreed to cooperate only in accordance with its own ground rules.

On July 25, West confirmed August 4 and sent a Rule 30 (b) (6) deposition notice listing the subjects on which examination was requested. Equifax produced only one witness on August 4 and counsel admitted he could not confirm that the witness would be able to respond to all the requested categories of information; other depositions might be necessary. The follow-up depositions were scheduled for August 31, but Equifax unilaterally canceled them. According to the record, it did not seek a protective order.

Although West may be responsible for some of the subsequent delay, the remaining depositions were not taken until October 4, outside the six-month discovery period. West was forced to file a motion to compel in order to get these two depositions. Thus, Equifax successfully stalled depositions of two out of three witnesses for almost five months until after discovery had closed. The technique used was a calculated appearance of cooperation without actual timeliness. Disingenuous is the later argument that during the six-month discovery period, “Plaintiff noticed only one deposition; the Rule 30 (b) (6) deposition of Defendant Equifax.” Equifax even suggested to the trial court that prior to receiving the deposition notice it had magnanimously offered to make Equifax’s representatives available for their deposition.

Such tactics, wrongly considered zealous advocacy, are unprofessional at best and are subject to court action upon proper notice. Ethical Consideration 7-38 provides “[a] lawyer should be courteous to opposing counsel and should accede to reasonable requests regarding court proceedings, settings, continuances, waiver of procedural formalities, and similar matters which do not prejudice the rights of his client. He should follow local customs of courtesy or practice, unless he gives timely notice to opposing counsel of his intention not to do so. A lawyer should be punctual in fulfilling all professional commitments.”

Judgment affirmed.

Birdsong, P. J., concurs. Andrews, C. J., Smith and Ruffin, JJ, concur in the judgment only. McMurray, P. J., and Eldridge, J, dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the affirmance of the trial court’s imposition of the .ultimate sanction of dismissal for plaintiff’s failure to answer interrogatories and failure to appear at a properly noticed deposition. I do not approve of self-help in the form of complete nonresponsiveness to discovery, since the Civil Practice Act contains provisions for protective orders. In light of the mutual failure of both plaintiff West and co-defendant Equifax Credit Information Services, Inc. to cooperate on discovery matters, it is my view that, the trial court abused its discretion in not meting out sanctions more evenhandedly. The proper disposition of the case sub judice is to vacate the dismissal and remand with directions to consider some lesser sanction.

Decided December 2, 1997

Reconsideration denied December 19, 1997

George M. Johnson, for appellant.

Powell, Goldstein, Frazer & Murphy, James W. Hawkins, for appellee.

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