author: Eldridge, Judge.

text:
    A00A0620.
    ARTZNER et al. v. A & A EXTERMINATORS, INC.
    (531 SE2d 200)
   Eldridge, Judge.

Alan and Susan Artzner purchased a house from Joseph and Dorothy O’Brien on November 30, 1995. Six days after purchasing the house, the Artzners discovered active termite infestation in the house. On December 30, 1996, the Artzners brought suit against A & A Exterminators, Inc. A & A Exterminators filed a motion for summary judgment. The trial court denied A & A Exterminators’ motion for summary judgment on the Artzners’ claims for breach of contract/guaranty and professional negligence and granted the motion for summary judgment on the Artzners’ claims for fraud, fraudulent concealment, negligent misrepresentation, punitive damages, and OCGA § 13-6-11 attorney fees. The Artzners appeal from the entry of this order.

The Artzners’ sole enumeration of error alleges that the trial court erred in granting A & A Exterminators’ motion for summary judgment on their claims for fraud, fraudulent concealment, negligent misrepresentation, punitive damages, and attorney fees.

On appeal of the grant of summary judgment, this Court applies a de novo review of the evidence to determine whether any question of material fact exists. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden 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. All of the other disputes of fact are rendered immaterial.

(Citations and punctuation omitted.) Phelps v. BellSouth Advertising &c. Corp., 235 Ga. App. 147, 148 (508 SE2d 779) (1998); see also Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “[A] grant of summary judgment must be affirmed if it is right for any reason. [Cit.]” Bob v. Hardy, 222 Ga. App. 550, 551 (1) (474 SE2d 658) (1996).

Viewed in the light most favorable to the nonmovant, Lau’s Corp. v. Haskins, supra, the evidence shows the following: On September 24, 1995, the Artzners and the O’Briens entered into a purchase and sale agreement in which the Artzners agreed to purchase the O’Briens’ home located at 4347 Collingham Trace, N.E., Marietta, Cobb County. The sales contract required that the O’Briens have the house inspected prior to closing by a licensed pest control operator and to provide at closing a letter stating that the house was free from visible evidence of active infestations caused by termites or other wood-destroying organisms. On September 27, 1995, Rusty Alexander, on behalf of A & A Exterminators, performed the inspection at the O’Briens’ request. The house was constructed on a slab foundation which limited the scope of the inspection.

On November 6,1995, N. R. Alexander, on behalf of A & A Exterminators, issued an official Georgia Wood Infestation Report based on the September 27, 1995 inspection. The report indicated that there had been a prior treatment of the house in November 1983. The report further indicated that there had been previous termite infestation but that, at the time of the inspection, there was no active infestation of termites. A graph was attached that showed the areas of the house in which A & A Exterminators found evidence of previous termite infestation.

At the time of closing, the O’Briens had a termite guaranty on the house which was issued by T. P. Alexander on behalf of A & A Termite Control, Inc. A & A Exterminators had assumed the obligations of A & A Termite Control under the guaranty. The termite guaranty of the O’Briens was for retreatment only. The guaranty stated on its face that it was renewable every year for 19 years after November 1984. The guaranty did not state whether or not it was transferable to any subsequent owners of the house. The first page of the official Georgia Wood Infestation Report stated that the present termite guaranty was not transferable to any subsequent owners of the house.

The Artzners received a copy of the official Georgia Wood Infestation Report at closing and expressed concern about the previous termite infestation. The closing attorney attempted, unsuccessfully, to contact A & A Exterminators. Mr. Artzner testified that he decided to close because the closing attorney told him that the Georgia Wood Infestation Report provided him with coverage for 90 days from the date of the report and because, according to Mr. Artzner, “the house looked like it was in pretty good shape, and [he saw] 1983 in there.” Mr. Artzner testified that he understood prior to closing that the 90-day guaranty was for treatment only and did not cover repair.

After the closing, Mr. Artzner contacted his “old” pest control company, which was A & A Termite, and requested that it inspect the house and provide him with a termite “contract.” A & A Termite came to the house on December 6, 1995, and found termites in Sheetrock in the corner of one of the bedrooms. Both the Artzners’ expert witness and A & A Exterminators’ expert witness testified that the existence of an active infestation of termites six days after closing was not proof that the infestation was visible on September 27, 1995, the day of A & A Exterminators’ inspection. Both experts, as well as a representative of the Georgia Department of Agriculture, testified that signs of an active termite infestation may not be visible one day but may be visible 24 hours later.

Mr. Artzner testified that, prior to closing, he had noticed that the Sheetrock was damaged. When the A & A Termite inspector chipped paint off the wall, live termites were visible. Mr. Artzner further testified the termite tunnels were visible before the paint was chipped off; the tunnels looked “like a groove in the sheetrock.” A & A Termite would not provide the Artzners with a new termite “contract” unless the entire house was retreated and all the damage repaired. Several other companies also refused to place the house under a termite “contract” until the entire house was retreated and any damage was repaired.

Mr. Artzner contacted a construction company for a repair estimate. The construction company found additional active termite infestation around the front door. Mr. Artzner contacted the Georgia Department of Agriculture, which inspected the house on December 19, 1995. At the time of the Department of Agriculture’s inspection, the baseboards had been removed. Active termite infestation was visible. On February 6-7, 1996, A & A Exterminators retreated the areas of the house where active termite infestation was found. Between February 14, 1996 and September 2, 1996, the Artzners continued to find active termite infestation in various areas of the house. A & A Exterminators continued to treat the house at no additional cost. Initially, A & A Exterminators did partial retreatments in the areas where active infestations were found. However, when the outbreaks continued, A & A Exterminators did a treatment of the entire house, which included pulling back the carpets.

Caralee Hagood, a representative of the Department of Agriculture, testified that A & A Exterminators went beyond its regulatory obligations by continuing to treat the Artzners’ house after the 90-day period expired. Hagood further testified that under Georgia regulations, A & A Exterminators was not required to report partial retreatments on the official Georgia Wood Infestation Report and that the report was accurate with regard to the findings of prior infestations and treatments. Hagood also testified that the report by A & A Exterminators was one of the better written reports that she had seen. Hagood testified that there was no evidence that the pretreatment in 1983 was done improperly; that A & A Exterminators did an appropriate job in treating the house after it was purchased by the Artzners; that A & A Exterminators was not cited by the Georgia Department of Agriculture as a result of the termite infestation at the Artzners; and that, between 1990, when A & A Exterminators first treated the house for active termite infestation, and the date of her deposition, regulatory action taken by the Georgia Department of Agriculture against A & A Exterminators was within the standard for the industry. Both Hagood and Mr. Artzner testified that the last known active termite infestation in the house was September 1996.

1. The Artzners allege the trial court erred in granting A & A Exterminators’ motion for summary judgment on the Artzners’ claim for fraud and fraudulent concealment. We disagree.

The tort of fraud has five elements. These are: (1) false representation by a defendant; (2) scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff. In order to survive a motion for summary judgment, plaintiff must show some evidence as to each element.

(Citations omitted.) Hanlon v. Thornton, 218 Ga. App. 500, 501 (462 SE2d 154) (1995). Setting aside the question of whether the other elements of fraud are shown, we need focus only on the element of justifiable reliance.

With the element of justifiable reliance, “it is not sufficient to show that false representations were knowingly made with an intent to deceive — there must also be proof that due care was exercised to discover the fraud. [Cit.]” Todd v. Martinez Paint & Body, 238 Ga. App. 128-129 (517 SE2d 844) (1999).

In this case, the evidence reflects that the Artzners had a copy of the Georgia Wood Infestation Report indicating previous termite infestation at the time of the closing and a graph, which was attached to the report, that contained a drawing of the house with 16 marks across the front of the house indicating the areas of previous infestation. The front page of the report contained the following language:

Note: If visible evidence of active or previous infestation is reported it should be assumed that some degree of damage is present. . . . Evaluation of damage and any corrective action should be performed by a qualified inspector approved by the purchaser and lending agency.

On the front page, the report further indicated that the report was “not intended to be a structural report” or “a warranty as to absence of wood destroying organisms,” and that the report was “subject to all conditions enumerated on the reverse side and [was] issued without warranty or guarantee or except as provided in rule 620-6-.03 of the rules of the Georgia Structural Pest Control Act or subject to any treatment guarantee specified below.”

The report further stated on the front page that there were no areas of the structure which were obstructed or inaccessible to the inspector. On the reverse side of the page, however, condition 3 stated that:

Inspection, including sounding and/or probing, was performed in only those areas, which were readily accessible. Inaccessible areas not inspected include, but are not limited to areas obstructed by floor coverings, wall coverings, siding, fixed ceilings, insulation, furniture, appliances or other personal items.

Additionally, the report also stated on the front page that it was the opinion of the inspector that the conditions prevailing at the time of inspection and/or the nature of the evidence of infestation did not warrant further inspection of the structure by a qualified building inspector. On the reverse side of the page, however, condition 7 stated that:

This is not a structural report. A wood destroying organism inspector is not ordinarily a construction or building trade expert and is therefore not expected to assess structural soundness. Evaluation and correction of damage which may have resulted from an active or previous infestation should be performed by a qualified inspector in the building trade, who is approved by the purchaser and the lending agency.

Both Mr. and Mrs. Artzner testified that they had visited the property at least five times prior to closing and that they had an independent house inspection performed by Frank Barron of A to Z Home Inspections. They both testified they had noticed the damaged Sheetrock in the bedroom where, after closing, the active termite infestation was initially found and that they did not inspect the damaged area or question anyone about the damage because they assumed it was caused by Mr. O’Brien’s walker. Mr. Artzner testified that, when he examined the wall several weeks after closing, the termite tunnels in the bedroom Sheetrock were visible without chipping the paint away. Further, Mr. Artzner testified that he noticed cracks in the garage Sheetrock prior to closing, but he did not inspect the Sheetrock because he thought the cracks were caused by poorly applied Sheetrock tape; termites were found in the garage walls after the closing. Mr. and Mrs. Artzner testified that, prior to closing on the house, they were aware that the existing guaranty the O’Briens had on the house was for treatment only and did not cover repairs caused by termite damage; that the O’Briens’ guaranty was not transferable to them; and that they did not ask for the closing to be postponed to allow them to have the house further inspected.

“The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity.” (Citations omitted.) Howard v. McFarland, 237 Ga. App. 483, 484 (515 SE2d 629) (1999). Under the undisputed facts of this case, the Artzners’ lack of due diligence bars their recovery for fraud and fraudulent concealment as a matter of law.

2. The Artzners’ claim against A & A Exterminators for negligent misrepresentation must fail for the same reason, i.e., lack of due diligence.

As the same principles apply to both fraud and negligent misrepresentation (Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681 (300 SE2d 503) [(1983)]; American Legion v. Foote & Davies, Inc., 193 Ga. App. 225, 227 (387 SE2d 380) [(1989)]), justifiable reliance is also an essential element of a claim asserting negligent misrepresentation. Therefore, [the Artzners’] failure to exercise due diligence, as a matter of law, also bars [their] negligent misrepresentation claim. [Cit.]

Real Estate Intl. v. Buggay, 220 Ga. App. 449, 452 (469 SE2d 242) (1996). See also Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 795 (359 SE2d 920) (1987); Howard v. McFarland, supra at 485. Accordingly, A & A Exterminators was entitled to summary judgment on the negligent misrepresentation claim.

3. The Artzners allege the trial court erred in granting summary judgment to A & A Exterminators on their claim for punitive damages.

“While the imposition of punitive damages is ordinarily a jury issue, the controlling criterion] is whether there is any evidence authorizing such an award. [Cit.]” Evans v. Willis, 212 Ga. App. 335, 338 (441 SE2d 770) (1994).

Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that ■ the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

(Emphasis supplied.) OCGA § 51-12-5.1 (b). “Mere negligence, although gross, will not alone authorize the recovery of punitive damages. [Cit.]” (Punctuation omitted.) Petrolane Gas Svcs. v. Eusery, 193 Ga. App. 860, 861 (1) (389 SE2d 355) (1989). “There must be circumstances of aggravation or outrage.” (Citations and punctuation omitted.) Tri-County Investment Group v. Southern States, 231 Ga. App. 632, 638 (500 SE2d 22) (1998).

If a tort is committed through mistake, ignorance, or mere negligence, the damages are limited to the actual injury received, for vindictive or punitive damages are recoverable only when a defendant acts maliciously, wilfully, or with a wanton disregard of the rights of others. It is not essential to a recovery for punitive damages that the person inflicting the damages was guilty of wilful and intentional misconduct. It is sufficient that the act be done under such circumstances as evinces an entire want of care and a conscious indifference to the consequences.

(Citations and punctuation omitted.) Roseberry v. Brooks, 218 Ga. App. 202, 209-210 (461 SE2d 262) (1995).

In this case, there is no indication that at trial, plaintiffs could carry their higher burden of proof by showing clear and convincing evidence that any of the actions of A & A Exterminators were such as to evince an entire want of care and a conscious indifference to the consequences. Accordingly, the trial court properly granted summary judgment to A & A Exterminators on its claim for punitive damages.

4. Additionally, the Artzners allege that the trial court erred in granting summary judgment to A & A Exterminators on the Artzners’ claim for OCGA § 13-6-11 attorney fees. We agree.

OCGA § 13-6-11 attorney fees are recoverable where “the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” OCGA § 13-6-11. Attorney fees are not authorized under OCGA § 13-6-11 if the evidence shows that a genuine dispute exists, except in a case where bad faith is shown. Fuel South v. Metz, 217 Ga. App. 731, 732-733 (458 SE2d 904) (1995). Hence, the issue this Court must decide is whether there is any evidence from which a jury could find that A & A Exterminators acted in bad faith. The term bad faith as used in OCGA § 13-6-11 “clearly encompasses misconduct other than fraud.” Towery v. Massey, 179 Ga. App. 61, 65 (345 SE2d 90) (1986).

It is well settled that the bad faith contemplated by OCGA § 13-6-11 is bad faith connected with the transaction and dealing out of which the cause of action arose, rather than bad faith in defending or resisting the claim after the cause of action has already arisen.

(Citations and punctuation omitted.) Smith v. Stuckey, 233 Ga. App. 103, 107 (503 SE2d 284) (1998).

In motions for summary judgment, a defendant, as the movant, can prevail by showing that no jury issue exists regarding an essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, supra. However, the plaintiff, as the nonmovant,

will survive summary judgment by presenting any evidence which establishes a jury issue regarding that element. Even slight evidence will be sufficient to satisfy the plaintiff’s burden of production of some evidence on a motion for summary judgment; such evidence may include favorable inferences drawn by the court from the evidence presented.

(Citations omitted; emphasis in original.) Garrett v. NationsBank, 228 Ga. App. 114, 115-116 (491 SE2d 158) (1997). In this case, we are persuaded that the Artzners presented some evidence of bad faith to raise a jury issue on such conduct.

Decided March 14, 2000

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Peter L. Lublin, for appellants.

Lokey & Smith, G. Melton Mobley, for appellee.

The house was originally treated for termites during construction in November 1983 by A & A Termite Control. In 1988, A & A Termite Control ceased to do business, and Alexander, who owned a half-interest in the company, formed A & A Exterminators. A & A Exterminators assumed the obligations of A & A Termite Control under the guaranty. While the O’Briens’ termite guaranty did not state whether it was transferable to any subsequent owners of the property, it did state that it was renewable for 19 additional years from the November 10, 1984 inception date, provided the annual renewal premium was timely paid. The official Georgia Wood Infestation Report provided to the O’Briens in 1985 when they purchased the house showed no active or previous infestation of termites and showed that the guaranty held by the previous owner was transferable to any subsequent owner of the property upon payment of a fee on or before the expiration date. Numerous treatments were made by A & A Exterminators for termites between 1990 and 1995; the last treatment for termites prior to the purchase of the house by the Artzners was in March 1995, only six months prior to the September 27, 1995 inspection. Under this set of facts, there is some evidence from which a jury could determine that A & A Exterminators acted in bad faith when it refused to transfer the existing guaranty, which was renewable for an additional eight years, to the Artzners. Therefore, it was error for the trial court to grant summary judgment to A & A Exterminators on the Artzners’ claim for bad faith attorney fees under OCGA § 13-6-11.

Judgment affirmed in part and reversed in part.

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

       The Artzners also brought suit against Ann Drawbaugh, as executrix of the estates of Joseph and Dorothy O’Brien, based on the termite infestation and for other defects they allege existed on the property. The claims against the O’Briens, however, are not part of this appeal.

       A & A Termite is a different company from A & A Termite Control or A & A Exterminators which issued the official Georgia Wood Infestation Report.


source: Caselaw Access Project

license: Public Domain

text:
    A00A0682.
    MALLARD v. THE STATE.
    (531 SE2d 196)
   Eldridge, Judge.

A Taylor County jury found Alvin Mallard guilty of burglary committed with the intent to commit a theft; a second, separate burglary committed with the intent to commit a rape; aggravated assault; and rape. On appeal, Mallard raises two claims of error that, upon review, we find to be without merit. Accordingly, we affirm Mallard’s convictions.

1. Mallard first challenges the sufficiency of the evidence regarding his conviction for burglary with intent to commit a theft.

Here, the victim of the burglary with intent to commit a theft is the daughter of the 80-year-old victim of the other, previously committed burglary with intent to commit a rape (for which offense Mallard was also convicted but does not challenge herein). The evidence shows that during the earlier burglary, aggravated assault, and rape of the mother, Mallard asked the mother where her daughter was. The next day, entry was made into the daughter’s apartment in the same fashion as the entry into the mother’s apartment, i.e., through the window over the kitchen sink. The back screen doors in both the mother’s and the daughter’s apartments were cut in the same place, i.e., near the latch, as if someone had attempted to open the inside latch from outside the screen. Further, although nothing was taken, the daughter had money hidden in a closet, and it appeared to the daughter that items in her home might have been “rearranged.” Pursuant to investigation, officers removed the glass from the broken kitchen window in the daughter’s apartment and had it tested for fingerprints; Mallard’s prints were found on the outside and the inside of the glass. When questioned about the burglary of the daughter’s home, Mallard claimed that on June 18, 1997 — at approximately 9:00 p.m. — he may have been near the daughter’s apartment and may have touched the broken window. However, the glass with Mallard’s prints had been removed by the police at noon on June 18, 1997. The daughter testified that Mallard did not have permission to enter her apartment.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and Mallard no longer enjoys a presumption of innocence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

[MJoreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [supra], ... As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847) (1996). With regard to the offense of burglary,

[w]hether appellant entered the [daughter’s apartment] with intent to commit theft was a matter for the factfinder to decide based on the facts and circumstances proven at trial. The presence of valuables inside the premises can support an inference of intent to steal, particularly when no other motive is apparent.

(Citations omitted.) Harris v. State, 222 Ga. App. 56, 58 (473 SE2d 229) (1996). See also Knight v. State, 237 Ga. App. 669, 670 (516 SE2d 532) (1999); Vinson v. State, 190 Ga. App. 676 (1) (379 SE2d 792) (1989); Carroll v. State, 185 Ga. App. 857, 859 (2) (366 SE2d 232) (1988).

In this case, Mallard’s prints were on the outside and the inside of the victim’s kitchen window pane. This evidence supports the inference that Mallard “ ‘broke the plane of the structure’ ” and demonstrates an “entry.” Mullinnix v. State, 177 Ga. App. 168, 169 (338 SE2d 752) (1985); Hayes v. State, 193 Ga. App. 33, 35 (4) (387 SE2d 139) (1989). Further, Mallard’s point of entry in the earlier, completed, uncontested burglary of the mother’s home was consistent with the point of entry into the daughter’s home; the evidence showed that the residence contained items of value, including money hidden in a closet; the daughter’s home appeared “rearranged”; and when confronted about the burglary of the daughter’s home, Mallard fabricated a story about his touching a broken window pane that had, in fact, been removed some nine hours earlier. Accordingly, the evidence was sufficient for a rational trier of fact to have found Mallard guilty beyond a reasonable doubt of burglary with intent to commit a theft. Jackson v. Virginia, supra; Mullinnix v. State, supra; Turner v. State, 151 Ga. App. 169, 170 (259 SE2d 171) (1979).

2. Mallard also contends that his trial counsel was constitutionally deficient for failing to request and receive expert assistance with the State’s DNA evidence, failing to move to independently test the DNA evidence, and failing to object to the admissibility of the DNA evidence.

The proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). First, appellant must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. As to the second prong, the question is whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

(Citations and punctuation omitted.) Gomillion v. State, 236 Ga. App. 14, 16 (3) (512 SE2d 640) (1999).

In this case, the 80-year-old victim of the earlier burglary, aggravated assault, and rape could not see. Both prior to and during trial, she did not identify Mallard as the perpetrator of the offenses against her. The State’s primary evidence of identity consisted of (1) Mallard’s admission that he was near the victim’s apartment at the time the victim was raped, and (2) the clothes Mallard admitted he was wearing during the same time period that the victim was raped. The clothes had bloodstains on them, and DNA testing at the Georgia Bureau of Investigation Crime Laboratory (“GBI Crime Lab”) showed the blood on Mallard’s clothes matched the victim’s blood.

At the motion for new trial hearing, Mallard’s trial attorney testified that he immediately recognized the importance of the DNA evidence and, thus, pursuant to motions filed, he obtained funds for expert assistance in preparing to challenge the DNA evidence at trial. In that regard, defense counsel employed Cellmark Diagnostics to review the State’s DNA evidence, and he relied upon their expertise to determine if further testing and analysis would prove helpful to the defense:

[Defense counsel:] On October 28th, I talked with a Ms. Cotton with Cellmark. ... The thing I thought might be really helpful is something they called band shifting, where a lot of times a match is not a match, but it’s close enough that they will nonetheless call it a match. I thought that would be very helpful to me. She warned me adamantly to stay away from that. She told me that Ms. Retzer [(GBI Crime Lab expert)] would kill me on that. She told me; the two things she told me to bring out was I believe, that the GBI files indicate that at one time they actually had the known sample and the evidence sample. Apparently, they were testing them at the same time, and it is not a good scientific procedure to do that. And the other time, I think she said there was a control or something in the testing that had failed. She said, you know, try to bring that out with her, but don’t go too far because if you check the records closely enough, they [(the GBI Crime Lab)] actually did the test again. And so it was probably accurate. And they told me that was about the best they could do to help me.
[Question:] And after your conversation with them in October, you made the decision not to have them independently test the DNA evidence?
[Defense counsel:] Right, because they told me they didn’t think their results would be any different.

Defense counsel also had discussions with the State’s experts at the GBI Crime Lab, as well as additional discussions with his experts at Cellmark Diagnostics. The upshot of those discussions was that,

they said the Crime Lab in Georgia did a good job, the GBI’s Crime Lab. And they did follow; I mean they did use the right procedures and so forth, regulations and procedures. ... I didn’t feel there was any help they [(Cellmark)] could give me by testifying and I also asked if they had independently tested this, if they thought there would be any difference. And they said they didn’t think there would be any difference.

Defense counsel determined that additional testing by Cellmark might, in fact, bolster the State’s case by supplying a second, independent source for the same damaging evidence.

Based on this evidence, we find that Mallard has failed to demonstrate either prong of the Strickland standard. Defense counsel did, in fact, hire experts to analyze the State’s DNA evidence. Further, we do not find error in defense counsel’s strategic decisions based on advice from his experts, and Mallard has not shown such decisions were error. Mallard has also failed to show that independent testing of the State’s evidence would have produced different results or that the State’s DNA evidence was inadmissible. See Whitner v. State, 202 Ga. App. 608, 609 (415 SE2d 52) (1992). Accordingly, Mallard’s ineffective assistance of counsel claim fails.

Decided March 14, 2000.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The expert testified that the DNA from the blood on Mallard’s clothes matched the DNA from a blood sample taken from the victim; the matching DNA patterns found in the tested blood samples could occur in no more than one in ten billion people, making the odds ten billion to one that it was the victim’s blood on Mallard’s clothes.

       Mallard misstates the law when claiming that “[i]t is a requirement that the laboratory show that its data bases are in Hardy-Weinberg equilibrium in order to base its assumption on the statistical likelihood of a statistical match.” In fact, “new developments have dispelled concern that substructuring actually exists and rendered the assumption of Hardy-Weinberg equilibrium a scientifically verifiable conclusion.” Greenway v. State, 207 Ga. App. 511, 514-515 (428 SE2d 415) (1993). Thus, the Hardy-Weinberg equilibrium may be assumed. Id. Mallard also misstates the law in claiming that “only actual observed genotype frequencies [as opposed to expected frequency calculations] are admissible in Georgia.” No case stands for such proposition. Expected frequencies are often used in DNA statistical analysis and are the purpose for the Hardy-Weinberg formula. See Redding v. State, 219 Ga. App. 182, 185 (464 SE2d 824) (1995). In fact, the State’s expert testified that she followed the procedures and protocols established by the GBI Crime Lab and that such procedures and protocols are generally accepted in the scientific community as being reliable and valid and are widely used in the field of DNA analysis. See Johnson v. State, 265 Ga. 668 (461 SE2d 209) (1995).


author: McMurray, Presiding Judge.

text:
    A00A0755.
    In the Interest of O. B., a child.
    (530 SE2d 735)
   McMurray, Presiding Judge.

O. B., a 13-year-old child, filed this appeal after his adjudication of delinquency for committing acts which, if committed by an adult, would constitute the offense of arson in the first degree. O. B. and two other youths were seen throwing a Molotov cocktail into an Atlanta Police Department precinct. Over $14,000 worth of equipment was destroyed.

O. B.’s sole enumeration of error challenges the admission into evidence of a child witness’s statement that incriminated O. B. The statement, given by 12-year-old L. S., recalled his chance encounter with O. B. after the incident: “I stopped by the neighborhood store . . . and I seened [O. B.] I asked him did he know who burned the precinct. If he did they could give him some money. And he said I can’t get no money cause I did it.” The statement was shown to L. S. during the State’s direct examination, and he verified his signature. Over O. B.’s objection, the court read the statement into evidence and asked L. S. whether any of the facts it contained needed to be changed. L. S. responded in the negative and was thoroughly cross-examined by defense counsel.

Contrary to O. B.’s assertions, L. S.’s statement was admissible as a prior consistent statement. Such a statement is admissible when

(1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination. . . . [A] witness’s veracity is placed in issue . . . only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross examination.

Decided March 3, 2000 —

Reconsideration denied March 15, 2000.

Smith, White, Sharma & Halpern, Jonathan Goldberg, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

L. S.’s statement met the foregoing three-part test. L. S. was present and available for cross-examination. Moreover, defense counsel placed L. S.’s veracity in issue when he suggested that L. S. made the statement in order to recover the reward. Accordingly, the trial court did not err in admitting the statement.

Judgment affirmed.

Johnson, C. J, and Phipps, J., concur.

        Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896).

        Sterling v. State, 267 Ga. 209, 213 (9) (477 SE2d 807) (witness’s veracity need not be placed in issue prior to admission of statement); accord Render v. State, 267 Ga. 848, 850 (3) (483 SE2d 570).


author: Blackburn, Presiding Judge.

text:
    A98A1972.
    BRANTLEY et al. v. DEPARTMENT OF HUMAN RESOURCES.
    (531 SE2d 212)
    Decided March 15, 2000.

      Westmoreland, Patterson & Moseley, Thomas H. Hinson II, for appellants.
   Blackburn, Presiding Judge.

In Brantley v. Dept. of Human Resources, 235 Ga. App. 863 (509 SE2d 645) (1998), we affirmed the trial court’s grant of the Department’s motion to dismiss. In Brantley v. Dept. of Human Resources, 271 Ga. 679 (523 SE2d 571) (1999), the Supreme Court reversed our decision. Accordingly, the decision of this Court is vacated, the decision of the Supreme Court is made the decision of this Court, and grant of the motion to dismiss is reversed.

Judgment reversed.

McMurray, P. J., and Eldridge, J., concur.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Marla-Deen Brooks, Brenda A. Raspberry, Assistant Attorneys General, for appellee.


author: Pope, Presiding Judge.

text:
    A99A2344.
    DAY v. THE STATE.
    (531 SE2d 357)
   Pope, Presiding Judge.

Charles Day was charged with armed robbery, aggravated assault, and possession of a firearm during the commission of a felony. He was tried and convicted of aggravated assault and possession of a firearm during the commission of a felony. The jury was unable to reach a verdict on the armed robbery count, and the court declared a mistrial. Day appeals, contending that the court erred in denying his motion to arrest judgment on the conviction for possession of a firearm during the commission of a felony because that verdict was inconsistent with the mistrial on the armed robbery charge and that the court erred in instructing the jury regarding possession of a firearm during the commission of a felony. For the following reasons, we reject these arguments and affirm.

Viewing the evidence in the light most favorable to the verdict, on January 1, 1998, Alonzo Price and his wife were seated in their car in the driveway of their residence. Day approached the car, knocked on the car window, and asked for money. Price told Day that he had no money, and Price then got out of the car. At this point, Day pulled a gun out of his pants and fired it at the ground. Price got his wallet and dropped his money on the ground. When Price tried to retrieve the money, Day told him to get back. Day then got the money, returned to his car, and left the scene. Price’s wife, Deborah Price, stayed in the car during the crime. Both she and Price testified to this version of events, and both identified Day at trial as the robber.

Day left the Prices’ home in a burgundy, full-sized car. He was arrested shortly after the robbery about a mile away from the Prices’ home. Day matched the description of the robber, and the police found Day’s car, which matched the description of the robber’s vehicle, at Day’s part-time residence. The Prices also identified the car as the one used in the crime.

1. In his first enumeration of error, Day claims that the court erred in failing to arrest judgment on the conviction of possession of a firearm during the commission of a felony because this verdict was mutually exclusive with a hung jury on armed robbery. In support of this argument, Day cites Strong v. State, 223 Ga. App. 434 (477 SE2d 866) (1996), which was overruled by this court in Kimble v. State, 236 Ga. App. 391 (1) (512 SE2d 306) (1999). He argues that the offenses in this case were committed on January 1, 1998, and that applying Kimble to this case would result in an ex post facto law.

We disagree. We first note that Day failed to raise any aspect of this argument in the trial court. He did not raise the issue immediately after the verdict was returned, nor did he file a motion to arrest judgment or a motion for new trial. But even assuming that we must address any of Day’s argument, we reject it. First, applying Kimble here does not result in the application of an ex post facto law. This principle had no bearing on this court in Kimble, and it has no application here.

Further, for the reasons stated in Kimble, we reject Day’s argument that the court erred in failing to arrest judgment on the conviction for possession of a firearm during the commission of a felony. In overruling Strong v. State, 223 Ga. App. 434, the Kimble court stated that it was not necessary to vacate a conviction because of an acquittal on the predicate offense. The court stated: “there is no reason to vacate the defendant’s conviction merely because the verdicts cannot rationally be reconciled.” (Punctuation omitted.) Kimble, 236 Ga. App. at 395. The Kimble court then concluded that in light of the abolition of the inconsistent verdict rule in criminal cases, the question becomes not whether an acquittal on one charge necessitates acquittal on another charge, but whether the evidence viewed in favor of the conviction was sufficient to support the guilty verdict. Id. at 395; see also Ridley v. State, 240 Ga. App. 307, 309 (4) (523 SE2d 383) (1999).

In this case, the evidence was sufficient to convict Day of possession of a firearm during the commission of a felony. Accordingly, we conclude that a rational trier of fact could find from the evidence adduced at trial proof of Day’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Secondly, citing Perguson v. State, 221 Ga. App. 212 (470 SE2d 909) (1996), Day argues that the trial court erred by instructing the jury that possession of a firearm could be committed either with the commission of an armed robbery or with an attempt to commit an armed robbery, because the indictment alleged only that he had committed the crime by committing the armed robbery. Although Day did not object to this charge at trial, he contends that the error was substantially harmful and warrants reversal. We disagree.

Decided March 15, 2000.

Thomas E. Stewart, for appellant.

Tommy K. Floyd, District Attorney, Sandra A. Graves, Assistant District Attorney, for appellee.

Jury instructions must be read and considered as a whole in determining whether a charge contained error. Hambrick v. State, 256 Ga. 688, 690 (3) (353 SE2d 177) [(1987)]. Absent a remedial instruction, reversible error can occur if a jury charge recites the entire statutory definition of a crime, thereby informing the jury that a crime may be committed in more than one manner, when the indictment avers that the crime was committed only in one specific way. Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556) [(1995)] (court failed to give a remedial instruction limiting jury’s consideration to the manner in which the offense was averred to have been committed in the indictment); but compare Green v. State, 221 Ga. App. 694 (2) (472 SE2d 457) [(1996)].

Hendrix v. State, 230 Ga. App. 604, 606 (2) (497 SE2d 236) (1997). In this instance, the trial court did not err in charging the entire language of OCGA § 16-11-106 (b) (1), pertaining to possession of a firearm during the commission of a felony because the jury was also given two instructions which clearly outlined the crime as charged in the indictment.

The first definition of the crime which the court gave the jury clearly tracked the language of the indictment. After giving the charge which included the language regarding attempt, the court again correctly explained to the jurors that if they found beyond a reasonable doubt that Day committed the offense of “Possession of a Firearm During the Commission of a Felony as described in Count Four,” they would be authorized to find him guilty. Furthermore, the indictment went out with the jury to assist their deliberations. Compare Levin v. State, 222 Ga. App. 123, 126 (6) (473 SE2d 582) (1996). Despite the single reading of the complete statute, in other recitations the court properly limited the jury’s deliberation to possession of a firearm during the commission of a felony as described in the indictment, and Day is not entitled to a new trial. See Mattison v. State, 215 Ga. App. 635 (1) (451 SE2d 807) (1994).

Judgment affirmed.

Smith and Miller, JJ, concur.

       The inconsistent verdict rule, which has been abolished, applies to inconsistencies between verdicts of acquittal and verdicts of conviction. See generally Kimble v. State, 236 Ga. App. at 395. For the law regarding mutually exclusive multiple convictions, see Dumas v. State, 266 Ga. 797, 799 (2) (471 SE2d 508) (1996).


author: Ellington, Judge.

text:
    A99A2395.
    NEWBERRY v. COTTON STATES MUTUAL INSURANCE COMPANY.
    (531 SE2d 362)
   Ellington, Judge.

Cotton States Mutual Insurance Company was granted summary judgment on this declaratory judgment action against its insured, Labron Newberry. Newberry appeals on two grounds, that counsel for Cotton States should have been disqualified because an attorney-client relationship existed with Newberry and that summary judgment was improper because issues of fact remain as to whether Newberry’s notice to Cotton States was timely.

In December 1996, Newberry and his wife attended a social function in Mississippi sponsored by her employer. During the party, Newberry became involved in a physical altercation with another guest which led to the underlying lawsuit. In November 1997, the guest filed an intentional tort claim naming Newberry as a defendant and served him with a copy of the complaint. It was not until after receipt of service that Newberry contacted a lawyer, who told him to notify his homeowner’s insurance carrier, Cotton States, about the incident and the claim. Newberry’s policy required him to provide Cotton States notice of an occurrence “as soon as practicable.” On December 15,1997,17 days after he received service of the complaint, Newberry first notified Cotton States. Cotton States then hired counsel in Mississippi to represent Newberry in the underlying lawsuit. Cotton States also hired attorneys in Georgia to take sworn statements from Newberry and his wife in connection with its investigation concerning coverage for the claim. Prior to giving his sworn statement, Newberry signed a document entitled Bilateral Reservation of Rights and Nonwaiver Agreement acknowledging that Cotton States was conducting an investigation to determine whether coverage was afforded to him and authorizing Cotton States to undertake such an investigation without waiving its right to disclaim coverage. In its declaratory judgment action, Cotton States relied on information given in these statements and moved for summary judgment. The trial court granted the motion, and Newberry appeals.

1. Newberry argues that the trial court erred by not using the proper standard of law in determining whether an attorney-client relationship existed between Newberry and Cotton States’ counsel in denying Newberry’s motion to disqualify counsel. This argument is based on the assertion that Newberry believed that counsel for Cotton States represented him at the sworn statement. In its order granting summary judgment to Cotton States, the trial court stated,

Having reviewed the record, including the statements given by Mr. and Mrs. Newberry to counsel as well as the Reservation of Rights letter signed by Mr. Newberry, the Court can see no reason to believe that Mr. Newberry had a justifiable reason to conclude that Cotton States’ counsel was in fact representing him.

The basic question in regard to the formation of the attorney-client relationship is whether it has been sufficiently established by the appellant that advice or assistance of the attorney is both sought and received in a matter pertinent to his profession. Guillebeau v. Jenkins, 182 Ga. App. 225, 229 (1) (355 SE2d 453) (1987). “An attorney-client relationship cannot be created unilaterally in the mind of the client: a reasonable belief is required.” Id. at 231. In this case the evidence authorized the trial court in determining that there was no legal representation of Newberry by counsel for Cotton States. See generally Huddleston v. State, 259 Ga. 45 (1) (376 SE2d 683) (1989). “The ultimate determination of whether an attorney should be disqualified from representing a client in a judicial proceeding rests in the sound discretion of the trial judge.” (Citations and punctuation omitted.) Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 574 (1) (377 SE2d 15) (1988). Newberry has not demonstrated an abuse of discretion in the trial court’s refusal to disqualify counsel for Cotton States.

2. Newberry contends that the trial court erred in granting Cotton States’ motion for summary judgment because an issue of fact exists as to whether Newberry’s notice of a claim was given “as soon as practicable,” as required by the insurance policy. It is undisputed that Newberry notified Cotton States about the claim 17 days after receipt of service of the underlying lawsuit, but 11 months after the actual occurrence of the incident that gives rise to the suit.

In their sworn statements, the Newberrys stated that they believed the plaintiff in the underlying suit was the type of person who is looking to sue someone and that they suspected she might file a claim on the incident. However, there is evidence that the Newberrys had actual knowledge that the plaintiff in the underlying lawsuit had filed a workers’ compensation claim based on this incident and that she filed suit only after that claim was denied. Newberry stated that he believed that if a claim was filed, it would be handled through workers’ compensation. Newberry was not required to foresee every possible claim, no matter how remote, that could have arisen from the incident. Guaranty Nat. Ins. Co. v. Brock, 222 Ga. App. 294, 295 (1) (474 SE2d 46) (1996). He was required only to act reasonably under the circumstances. As a general rule, limitations in insurance policies requiring the insured to report an incident “as soon as practicable” are subject to a factual determination.' Id., citing Norfolk &c. Ins. Co. v. Cumbaa, 128 Ga. App. 196, 198 (196 SE2d 167) (1973).

Decided March 15, 2000.

Shaw, Maddox, Graham, Monk & Boling, Daniel M. Roper, for appellant.

Chambers, Mabry, McClelland & Brooks, DeeAnn B. Waller, for appellee.

To further support his contention that his actions were reasonable, Newberry stated that he had no idea that his homeowner’s insurance policy might afford coverage for an intentional tort that occurred at an office Christmas party hundreds of miles from his house. “[T]he fact that an insured did not know the policy might afford coverage under a given factual situation may provide justification for the failure to give notice.” Standard Guaranty Ins. Co. v. Carswell, 192 Ga. App. 103, 104 (384 SE2d 213) (1989). “Where there is a conflict in the evidence on the issue of [the] insured’s lack of knowledge of coverage, a jury must determine the question.” Id. Accordingly, the trial court erred in granting summary judgment on this issue.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Ruffin, J., concur.


text:
    A99A2466.
    GOODEN et al. v. CITY OF ATLANTA.
    (531 SE2d 364)
   Pope, Presiding Judge.

Barbara Gooden, individually and on behalf of her deceased minor son, filed a complaint against the City of Atlanta alleging that the manner in which the City operated the Oakland City swimming pool constituted a nuisance and caused the death of her young son. Specifically, Gooden alleged that the City allowed children to enter the pool area unsupervised, failed to repair damaged fences to keep young children out of the pool, and did not provide proper security or supervision of the pool. The City filed a motion for summary judgment which the superior court granted, and Gooden appeals. We conclude that the grant of summary judgment was proper, and we affirm.

In her sole enumeration of error, Gooden argues that there was sufficient evidence for a jury to conclude that the manner in which the pool was operated created an actionable nuisance for which the City was liable. Specifically, Gooden claims that the gate to the pool was open or that the fence was damaged and that no security personnel were in the pool area at the time of the accident. The City argues that because Gooden failed to present evidence that the pool was an actionable nuisance, summary judgment was proper.

There is no dispute in this case that the pool was owned, maintained, managed and operated by the City of Atlanta. The evidence showed that on the date of the accident, June 15, 1996, the pool apparently had not yet opened to the public for the summer; the pool was being filled with water at the time of the accident. There was evidence that the drowning victim had been playing with another child in the pool area immediately before the accident. The evidence was not clear concerning the manner in which the children had entered the pool area.

In responding to the motion for summary judgment, Gooden attempted to show that the pool constituted a nuisance by citing twenty-four incidents which had occurred at or near the pool during the two previous swimming seasons. These incidents began in July 1993; the last one occurred on August 9, 1995. The previous incidents involved a variety of crimes or problems, including: disorderly conduct, drug use, gun use, fighting, rape and theft. The evidence also showed several incidents of vandalism which had occurred at the pool in which the fence had been damaged and trash had been thrown into the pool. The only incident involving an injury which occurred in the pool was an incident on July 16, 1995, in which a swimmer stepped on glass in the pool. Gooden presented no evidence of any incident which had occurred at the pool in the ten months before the incident. Furthermore, there was no evidence of any other physical injuries which had been caused by the pool itself.

In evaluating the propriety of summary judgment in this case, we first turn to the applicable statutes. OCGA § 36-33-1 (a) states in pertinent part that the public policy of this state is that “there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability for damages.” Subsection (a) then discusses the effect of the purchase of liability insurance on a municipality’s liability. Subsection (b) of the statute states: “[m]unicipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers.” Subsection (b) continues: “[f]or neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable.”

In other words, municipalities are not liable for negligence in the performance of governmental, as opposed to their ministerial functions.

It has been held uniformly in this state that the operation of public recreational swimming facilities, primarily for public benefit rather than for revenue producing, is a governmental function, so that the city is shielded from negligence claims by the doctrine of governmental immunity. Scott v. City of Millen, 153 Ga. App. 231 (2) (265 SE2d 30) (1980).

(Citations omitted.) Robinson v. City of Decatur, 253 Ga. 779 (1) (325 SE2d 752) (1985), overruled on other grounds, Martin v. Dept. of Pub. Safety, 257 Ga. 300, 303 (357 SE2d 569) (1987).

Despite this immunity for negligent acts, a municipality may be liable for damages it causes from creating or maintaining a nuisance:

While a municipality enjoys sovereign immunity from liability for negligent acts done in the exercise of a governmental function, it may be liable for damages it causes to a third party from the creation or maintenance of a nuisance. [Cit.] The difficulty arises in determining what conduct or act on the part of a municipality will result in the creation or maintenance of a nuisance, as opposed to an action in negligence. In City of Bowman v. Gunnells, 243 Ga. 809, 811 (2) (256 SE2d 782) (1979), this Court established guidelines for determining whether a municipality will be liable for creating or maintaining a nuisance: the defect or degree of misfeasance must exceed mere negligence (as distinguished from a single act); the act complained of must be of some duration and the maintenance of the act or defect must be continuous or regularly repetitious; and there must be a failure of municipal action within a reasonable time after knowledge of the defect or dangerous condition.

Hibbs v. City of Riverdale, 267 Ga. 337-338 (478 SE2d 121) (1996). See also Grier v. City of Atlanta, 200 Ga. App. 575 (408 SE2d 794) (1991); City of Atlanta v. Chambers, 205 Ga. App. 834, 837 (5) (424 SE2d 19) (1992).

The superior court properly granted the motion for summary judgment here because Gooden failed to present evidence sufficient to create a jury issue as to nuisance. Compare City of Eatonton v. Few, 189 Ga. App. 687 (1) (377 SE2d 504) (1988) (jury issue created on nuisance when evidence presented that pool was dirty and impeded lifeguards’ visibility of bottom and City received repeated notice of this condition). First, there was no evidence that the specific misfeasance which caused the tragedy here had occurred before. In other words, there was no evidence that the City had previously left the fence open and then allowed a child into an unattended pool. Similarly, there was no evidence that the “act complained of” was of any duration or that the City failed to act within a reasonable time after knowledge of the defect or dangerous condition. Instead, the evidence Gooden produced showed, at most, a single act of negligence. See generally Rainey v. City of East Point, 173 Ga. App. 893, 894 (328 SE2d 567) (1985). Accordingly, we find no error.

Decided March 15, 2000.

Thomas M. West, for appellants.

Susan P. Langford, Yeun S. Jo, Kendric E. Smith, for appellee.

Judgment affirmed.

Smith and Miller, JJ, concur.

       In this case, the City did not have applicable insurance and the provisions regarding insurance do not apply.

       In Martin v. Dept. of Pub. Safety, 257 Ga. at 303, Robinson was overruled to the extent that it was inconsistent with Art. I, Sec. II, Par. IX, of the 1983 Ga. Constitution. Despite the various changes to the law of sovereign immunity since the Martin decision, Robinson’s pronouncement that the operation of a pool in these circumstances is a governmental function remains good law.


author: Andrews, Presiding Judge.

text:
    A00A0637.
    TAYLOR v. THOMPKINS.
    (531 SE2d 360)
   Andrews, Presiding Judge.

Thomas Taylor appeals from the trial court’s grant of summary judgment to W. L. Thompkins on Taylor’s claim for damages after his car hit a cow. Because Taylor has not raised any issue of fact to be tried by a jury, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (503 SE2d 581) (1998).

OCGA § 4-3-3 provides in pertinent part that no owner shall permit livestock to run at large on or to stray upon the public roads of this state. Thus, Thompkins is liable for Taylor’s damages only if Taylor can show that Thompkins owned the cow.

The evidence in the record shows that this case arose when Taylor struck a cow that was in the road, injuring himself and killing the cow. Taylor sued Thompkins because Thompkins had cows in pastures on both sides of the road at the spot where the accident occurred. Taylor claimed that the cows in the pastures looked like the cow he hit and also that the day after the accident, someone took pictures of cow tracks walking through a cotton field toward the roadway and coming from the direction of the pasture where Thompkins kept his cows.

Thompkins testified at his deposition that he went out to look at the cow after the accident and the cow had no brand. He stated that all of his cows were branded and this was not his cow. He also testified that this cow was closer to a purebred Angus than any of his cows, that none of his cows was missing and there were no holes in the fence around his pasture.

Taylor also sued Charles Hart, claiming he owned the cow that was in the roadway. Hart’s son Darrell testified at his deposition that they had cows pastured near the spot of the accident but all their cows were branded. After he heard about the accident, he sent one of his workers and his nephew to look at the cow, and the worker reported that the cow did not have a brand on it. Hart testified that he and Thompkins were the only cattle owners in that area who branded their cattle. When asked whether anyone else kept cattle similar to the one in the roadway within a half-mile radius of where the accident occurred, Hart named several other cattle owners in the immediate vicinity. He stated that there were several other herds with black cows that were within “roaming distance.”

The son of Taylor’s attorney, who took the pictures of the cow tracks, testified at his deposition that he found the tracks the day after the accident but he had no way of knowing how long the tracks had been there. He also testified that he walked the fence around the pasture and saw no breaks in the fence.

“In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.”

Supchak, supra at 683.

Here, Taylor claims there is an inference that Thompkins owned the cow because the accident occurred near his pasture, he had cows similar to the cow in the roadway and there were cow tracks in the field between Thompkins’s pasture and the road. This inference becomes weaker, however, when considered in light of other testimony that there were several other pastures within a half-mile of the accident with cows similar to the one in the roadway and a cow from any one of these could have wandered to the field beside Thompkins’s pasture.

Decided March 15, 2000

Whitehurst, Cohen & Blackburn, Ronald B. Warren, for appellant.

Alexander & Vann, William C. Sanders, for appellee.

In any event, whatever inference is created, it disappears against the uncontradicted and unimpeached evidence that the cow in the roadway had no brand, that all of Thompkins’s cows were branded, that none of Thompkins’s cows was missing and that there was no gap in the fence around Thompkins’s pasture. Supchak, supra. Therefore, because there is no conflict in the evidence which requires submission to a jury, the trial court did not err in granting Thompkins’s motion for summary judgment.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


author: Johnson, Chief Judge.

text:
    A00A0610, A00A0611.
    HOGAN MANAGEMENT SERVICES, P.C. v. MARTINO; and vice versa.
    (530 SE2d 508)
   Johnson, Chief Judge.

In October 1994, Hogan Management Services, P.C., located in Forsyth County, agreed to pay Dr. Joseph Martino for his physician services. The parties’ written agreement contains a paragraph entitled “Covenant Not to Compete,” which includes both a noncompetition clause and a nonsolicitation clause. The noncompetition clause provides:

In the event of termination of this Agreement, Provider [Martino] agrees that Provider will not, within a period of eighteen (18) months, engage in the practice of medicine or surgery within a radius of ten (10) miles of any practice site(s) at which Provider has practiced under this Agreement.

The covenant’s nonsolicitation clause provides:

Provider further agrees not to solicit any patients of the Corporation [Hogan] to become the patients of Provider nor to attempt to influence any employees of Corporation to terminate their employment in order to work with Provider following termination.

Hogan terminated the agreement in April 1995. And in August of that year, Martino opened his own medical practice in Forsyth County.

The day after Martino opened his office, Hogan filed a lawsuit seeking to enjoin Martino based on his alleged violation of the covenant not to compete. On August 4, 1995, the trial court issued a temporary restraining order against Martino. Martino answered the complaint and filed a counterclaim for damages arising from the allegedly wrongful temporary injunction.

The court held an evidentiary hearing on Hogan’s claim for injunctive relief, and on October 16 it denied the claim on the ground that the covenant not to compete is unenforceable. The court found the noncompetition clause in the covenant to be unenforceable because the term “practice site(s)” is not defined by the contract and is so ambiguous that Martino had no notice of what would be a violation of the territorial limitation. The court also ruled that the nonsolicitation clause in the covenant is unenforceable because it contains no time or territorial limitations, and it is overly broad in that it prohibits the solicitation of any patients regardless of whether Martino actually had contact with them while working for Hogan. Hogan moved the court to reconsider its ruling, but the court denied the motion.

In April 1996, Hogan appealed the trial court’s decision to the Supreme Court of Georgia, which transferred the appeal to this court. In March 1997, we dismissed the appeal and remanded the case to the trial court because Martino’s counterclaim for damages had not yet been decided, so there was no final appealable judgment as to all issues in the case.

On remand, the trial court dismissed Martino’s counterclaim. The court found that because it had not ordered Hogan to post a security bond as a condition of the temporary restraining order, then under OCGA § 9-11-65 (c) Martino could not recover damages from Hogan even if the temporary injunction was wrongful.

Hogan filed the instant appeal, challenging the trial court’s finding that the restrictive covenant is unenforceable. And Martino filed a cross-appeal contesting the trial court’s dismissal of his counterclaim.

Case No. A00A0610

1. The duration of a covenant not to compete is not tolled during litigation. And when the duration of that covenant has expired, an action seeking injunctive relief pursuant to the covenant is moot.

In this case, the covenant’s noncompetition clause had a duration of 18 months from the date the contract was terminated. Hogan terminated the contract on April 26,1995. The term of the covenant’s noncompetition clause therefore expired 18 months later on October 26, 1996. Because the duration of the covenant expired more than three years ago, Hogan’s action seeking injunctive relief is now moot, as is this appeal.

Moreover, even if the appeal were not moot, there is no question that the trial court correctly found that the nonsolicitation clause in the covenant is overly broad because it has no time limitation, no territorial limitation, and it prohibits Martino from soliciting any patient, not only those with whom he actually had contact while working for Hogan. The trial court properly ruled that, in the context of the parties’ employment contract, it had no authority to alter or “blue pencil” this unenforceable nonsolicitation clause, which thus rendered the entire covenant not to compete unenforceable.

Because Hogan’s appeal is moot and the trial court did not err in finding the entire covenant to be unenforceable, the court’s judgment against Hogan on its complaint seeking injunctive relief pursuant to the covenant is affirmed.

Case No. A00A0611

2. OCGA § 9-11-65 (c) authorizes a trial court, in its discretion, to require an applicant for a restraining order to post a security bond to pay for any damages that might be suffered by the restrained party if the restraint turns out to be wrongful. That Code section provides:

As a prerequisite to the issuance of a restraining order or an interlocutory injunction, the court may require the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been enjoined or restrained wrongfully.

By authorizing a court to require the posting of a security bond, this Code section recognizes that a party who is wrongfully restrained has the right to recover actual damages resulting from that wrongful restraint.

In the instant case, when Hogan sought and obtained a temporary restraining order against Martino, the trial court did not require Hogan to post a security bond. Martino later counterclaimed for damages arising from the allegedly wrongful restraint. But the court eventually dismissed that counterclaim, finding that because it had not required Hogan to post a security bond, Martino is now foreclosed from seeking any damages for the temporary restraint.

The trial court’s finding was incorrect. An applicant for a restraining order does so at its own peril because if it succeeds in obtaining a restraint that is later determined to have been wrongful, then the wrongfully restrained party may recover actual damages caused by that restraint from the applicant. A trial court’s decision under OCGA § 9-11-65 (c) to require the giving of a security bond is not a prerequisite to a wrongfully restrained party’s right to recover damages. Rather, the posting of a security bond is simply a method by which the court may protect a wrongfully restrained party’s rights by ensuring that there is a sum of money to pay any damages. Thus, a court’s decision not to require the applicant to give a security bond simply means that a wrongfully restrained party will not have the protection of a secured source of money for its damages, but that decision does not automatically eliminate the applicant’s peril that it might later be liable for damages caused by a wrongful restraint. The wrongfully restrained party will still have its right to recover damages; it just will not have a secured source of money from which to make its recovery.

Consequently, the trial court in this case erred in concluding that because it did not order Hogan to post a security bond that Martino has no right to recover any actual damages caused by the wrongful temporary restraint. Martino still has the right to recover any actual damages; he simply does not have a security bond from which to make his recovery. The trial court’s dismissal of Martino’s counterclaim is thus reversed.

Decided March 3, 2000 —

Reconsideration denied March 16, 2000

Banks, Stubbs & Neville, Rafe Banks III, Baylor B. Banks, for appellant.

Morris, Manning & Martin, Jefferson D. Kirby III, David L. Moss, for appellee.

And because the trial court hás already correctly determined that the covenant not to compete upon which the temporary restraint was based is unenforceable, there is no question that the restraint was wrongful. The trial court therefore also erred in not granting summary judgment to Martino on the issue of Hogan’s liability for the wrongful restraint. Thus, the only question remaining to be decided on the return of this case to the trial court is the amount of actual damages, if any, suffered by Martino.

Judgment affirmed in Case No. A00A0610. Judgment reversed and case remanded with direction in Case No. A00A0611.

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

       After this lawsuit was filed, Hogan Management Services changed its name to Orthopaedic & Sports Clinic, P.C. Nevertheless, the parties still refer to the corporation as Hogan in their briefs. We therefore shall also refer to the corporation as Hogan in this opinion.

        Electronic Data Systems Corp. v. Heinemann, 268 Ga. 755, 757 (4) (493 SE2d 132) (1997).

        Southern Intermodal Logistics v. Taylor Maid Transp., 255 Ga. 390 (338 SE2d 678) (1986).

        W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465-468 (2) (422 SE2d 529) (1992); compare Chaichimansour v. Pets Are People Too, 226 Ga. App. 69, 70-72 (1) (485 SE2d 248) (1997).

        Ward v. Process Control Corp., 247 Ga. 583, 584 (2) (277 SE2d 671) (1981); Johnstone v. Tom’s Amusement Co., 228 Ga. App. 296, 297 (1) (491 SE2d 394) (1997) (physical precedent).

       See Southern Intermodal Logistics, supra; Windsor-Douglas Assoc. v. Patterson, 179 Ga. App. 674, 675 (2) (347 SE2d 362) (1986).

       OCGA § 9-11-65 (c).

        Moody v. Harris, 170 Ga. App. 254, 256 (2) (316 SE2d 781) (1984).

       Id.


author: Phipps, Judge.

text:
    A99A1799.
    WHELAN v. MOONE et al.
    (531 SE2d 727)
   Phipps, Judge.

Following a vehicular collision, Deborah Moone was diagnosed with a fractured radius and ligamentous injuries to the distal radioulnar joint in her left forearm. Dr. E. J. Whelan, an orthopedist, provided treatment. Moone brought this medical malpractice action against Whelan, claiming that he negligently caused severe and permanent injuries to her left arm, wrist, and hand. Moone’s husband also sued for loss of consortium. The jury found in favor of Whelan against Moone’s husband but awarded Moone $350,000. Whelan appeals judgment on the verdict and denial of his motion for new trial. He enumerates several claims of error which are itemized below. We find no error and affirm.

Moone’s expert witnesses charged Whelan with negligence in numerous respects. They testified that in treating Moone, Whelan misinterpreted multiple radiographic films of her left forearm by failing to recognize the progressive collapse of her fractured radius and dislocation of her distal radioulnar joint. They also testified that Whelan was negligent in applying a short-arm splint and then a short-arm cast to the fractured radius, prematurely removing the cast prior to complete healing of the fracture, and failing to timely recommend and schedule necessary surgical procedures. According to Moone’s experts, timely application of a long-arm cast would have immobilized the fracture and probably would have resulted in an essentially full recovery.

In his defense, Whelan asserted that in treating Moone he met the applicable standard of care. He claimed that complications in her recovery were caused by her own negligence in not following his advice. He presented experts who testified that the actions taken by him during the course of his treatment of Moone were “completely appropriate” and “certainly reasonable,” and that Moone’s recovery would have been satisfactory if she had followed Whelan’s final recommendation to undergo corrective osteotomy surgery.

1. Whelan charges the trial court with abusing its discretion by admitting testimony concerning Moone’s financial inability to pay for surgery and her lack of health insurance coverage.

Although as a general rule evidence relating to the wealth of the parties and the existence of insurance coverage is inadmissible, an exception exists where issues concerning those matters have been made relevant by the parties. Where, as here, the defendant asserts that the plaintiff’s damages could have been avoided if she had followed his recommendation to have surgery, evidence that she could not afford surgery becomes admissible.

2. Whelan contends that the court abused its discretion by refusing to submit a special verdict form to the jury and by refusing to give a jury instruction that would have required the jury to assign percentages to the fault or negligence chargeable to Moone and Whelan. Whelan maintains that the special verdict form and jury instruction were needed to assist the jury in determining whether Moone’s negligence outweighed his, thus precluding or reducing her recovery.

The court charged the jury that if it found that Whelan was negligent and that Moone was also guilty of negligence which contributed to her injuries, she could not recover if her negligence was “equal to or greater than” that of Whelan.

This “equal to or greater than” bar is one aspect of Georgia’s comparative negligence rule. This rule is codified in OCGA § 51-11-7, which provides:

If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.

The first sentence of the above statute sets forth Georgia’s contributory negligence rule. The second sentence embodies the comparative negligence rule. The “equal to or greater than” bar is a judicially engrafted component of the comparative negligence rule.

In this case, the trial court charged the jury on both the contributory negligence and comparative negligence rules. In application of the “equal to or greater than” bar, the court also charged the jury that if it found that Moone’s negligence was less than Whelan’s, then Moone would not be precluded from recovery of damages, but the jury would be required to reduce the amount of damages otherwise awarded to her in proportion to her negligence compared with that of Whelan. The court’s jury charge on comparative negligence was substantially the same as our Superior Court Council’s Suggested Pattern Jury Instruction on Comparative Negligence.

Moone argues that neither the comparative negligence rule nor its “equal to or greater than” bar is applicable in this case, because in legal contemplation Whelan’s defense was that Moone had failed to mitigate her damages. The mitigation of damages rule is codified in OCGA § 51-12-11, which generally provides that “[w]hen a person is injured by the negligence of another, he must mitigate his damages as far as is practicable by the use of ordinary care and diligence.” The court also charged the jury on this principle.

We find no merit in either Moone’s argument or Whelan’s enumeration of error. Because part of Whelan’s defense was that the injuries for which Moone seeks recovery are attributable to her negligence in failing to submit to the treatment he recommended, the charge on the contributory negligence rule was appropriate. As there was evidence that these injuries were also the product of Whelan’s negligence, the charge on comparative negligence and its “equal to or greater than” bar was also warranted. The court’s instruction that the jury reduce Moone’s recovery in proportion to her negligence provided adequate guidance concerning the comparative negligence rule. Therefore, the court did not err by refusing to give an instruction requiring the jury to assign percentages of fault. And even though the jury did express some confusion concerning the form of the verdict, we hold in Division 3, infra, that the court provided adequate clarification. Consequently, the court’s refusal to submit the special verdict form to the jury did not constitute an abuse of its discretion.

3. Whelan contends that the court abused its discretion in its response to the jury’s confusion concerning the form of the verdict.

The verdict form utilized by the court required the jurors to return two sets of findings. The first set related to Moone’s personal injury claims against Whelan. The second set related to the loss of consortium claim by Moone’s husband. The verdict form first required the jurors to state whether they were finding in favor of Moone against Whelan and the amount of damages awarded “or” whether they were finding in favor of Whelan against Moone. The jury was then required to answer the same questions in regard to Moone’s husband’s claim.

During its deliberations, the jury asked the court whether it could render a verdict that both Moone and Whelan were negligent. At the urging of defense counsel, the court responded by instructing the jury that it could find both parties negligent and then inquired whether the jury needed a recharge on what the law required if such a finding were made. The jury did not request any additional instructions and later announced that it had reached a unanimous verdict. But the verdict had not been recorded on the verdict form. Instead, the verdict was returned on a handwritten piece of paper. On the paper, the jury found that Moone and Whelan were both negligent, awarded her $350,000, and awarded no damages to her husband. The court instructed the jury to resume deliberations and record its verdict on the verdict form. After the jury did so, the court observed that the jury had altered the verdict form by removing the word “or” as contained in the set of findings related to Moone’s claims against Whelan and replacing it with the word “and.” The court also observed that the verdict form had not been completed.

During the colloquy which ensued, the jury foreman expressed his personal belief that Moone and Whelan were equally negligent. The court thereupon recharged the jury that Moone could not recover if her negligence was equal to or greater than that of Whelan’s. The jury then returned a unanimous verdict finding in favor of Moone and against Whelan in the amount of $350,000. Upon being polled, each juror affirmed that this was and continued to be that juror’s verdict.

Whelan requested the instruction given by the court when the jury submitted its initial question. He raised no objections to the instruction given by the court in response to the comment by the foreman, nor did he request any additional instruction. Although the complaint raised in this enumeration has thus been waived, we note that the actions taken by the court were adequate to clarify any expressed confusion on the subject of comparative negligence.

4. Whelan contends that the court erred in denying his motion for new trial on the ground that he was denied a fair and impartial jury.

During voir dire, defense counsel asked the jury panel whether anyone had ever been threatened with a lawsuit by a physician, hospital, or collection agency regarding a medical bill. In clarifying the question, counsel later stated that he was trying to find out if any of the jurors had “a bone to pick” with the medical profession. One ground of Whelan’s motion for new trial was that one of the jurors failed to disclose that she had previously instituted bankruptcy proceedings due to medical debts.

Gainesville Radiology Group v. Hummel holds that a new trial will not be granted based on a prospective juror’s failure to respond truthfully to a question posed on voir dire unless the movant can demonstrate that the question was material and that a correct response would have provided a valid basis for a challenge for cause. Challenges for cause are of two varieties: challenges for principal cause and challenges to the favor.

A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favor, as that a Juror is of kin to either party within the (prohibited) degree; . . . that he has an interest in the cause; . . . that he is the party’s master, servant, counsellor, steward or attorney, . . . — all these are principal causes of challenge, which, if true, cannot be overruled. . . . [Cit.]
“Challenges for favor are based on admissions of the juror or facts and circumstances raising a suspicion that the juror is actually biased for or against one of the parties. (Cits.)” [Cit.] “Where a prospective juror is not impartial and free from prejudice or bias, that juror is subject to being excused for cause. [Cit.] The decision as to whether or not to discharge the prospective juror is within the discretion of the (trial) court. [Cit.]” [Cit.]

The record in this case does not show that the juror in question was subject to challenge for principal cause. In denying Whelan’s motion for new trial, the court necessarily found that the juror was not subject to challenge for favor. We find no abuse of discretion.

5. Whelan contends that in light of expert testimony concerning his lack of negligence, the trial court erred in denying his motion for new trial on the general grounds.

Decided March 16, 2000.

Oliver, Maner & Gray, I. Gregory Hodges, Terri M. Yates, for appellant.

David S. Bills, Lloyd D. Murray, for appellees.

“Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence.” Here, there is ample evidence supporting the jury’s finding of negligence by Whelan.

6. Whelan finally contends that the trial court erred in denying his motion for new trial because the damages awarded to Moone were excessive.

Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear exhorbitant, flagrantly outrageous and extravagant. It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush. It must carry its death warrant upon its face.*

In this case, there is no evidence that the verdict was the product of juror prejudice or bias. There is, however, evidence from which the jury could find that Moone sustained severe deformities with loss of function and resulting disability, that these deformities significantly diminished her capacity to labor and her enjoyment of life, and that her physical and emotional pain and suffering were substantial. The court did not abuse its discretion in denying the motion for new trial on the ground that the verdict was excessive.

Judgment affirmed.

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

       See Kolb v. Holmes, 207 Ga. App. 184, 186 (2) (427 SE2d 562) (1993) (wealth); U-Haul Co. &c. v. Ford, 171 Ga. App. 744 (1) (320 SE2d 868) (1984) (insurance).

        McGee v. Jones, 232 Ga. App. 1, 3 (2) (499 SE2d 398) (1998).

       See Suggested Pattern Jury Instructions, Vol. I: Civil Cases (3rd ed.), p. 236.

       See Radford v. State, 202 Ga. App. 532, 534 (1) (415 SE2d 34) (1992) (unnecessary to give exact language of requests to charge when same principles are fairly given to the jury in the court’s charge).

       See generally OCGA § 9-11-49 (a); Southern Water Technologies v. Kile, 224 Ga. App. 717, 719 (1) (481 SE2d 826) (1997): compare OCGA § 9-11-49 (b).

       263 Ga. 91, 94 (428 SE2d 786) (1993).

        Sapp v. State, 222 Ga. App. 415, 417 (3) (474 SE2d 233) (1996).

        Smith v. Folger, 237 Ga. App. 888, 889-890 (2) (517 SE2d 360) (1999).

        Sapp v. State, supra at 418.

       (Citations and punctuation omitted.) MARTA v. Green Intl., 235 Ga. App. 419, 420 (1) (509 SE2d 674) (1998).

       (Citations and punctuation omitted.) Smith v. Crump, 223 Ga. App. 52, 57-58 (2) (476 SE2d 817) (1996).

       See generally Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 165 (2) (473 SE2d 256) (1996).


author: Barnes, Judge.

text:
    A99A1831.
    GEORGIA RECEIVABLES, INC. v. KIRK.
    (531 SE2d 393)
   Barnes, Judge.

Georgia Receivables, Inc. appeals from the grant of summary judgment to Edward Kirk in Georgia Receivables’ suit against him to collect payment under a health spa contract. The complaint alleged that Kirk was indebted to Georgia Receivables in the amount of $2,092.91, attorney fees of $278.46, interest of $441.74, and court costs of $55. Kirk filed a timely answer.

Georgia Receivables later amended the complaint to claim principal of $1,382.04, interest of $891.41, attorney fees of $302.34, and court costs of $55. Thereafter, Georgia Receivables moved for summary judgment. The motion was supported by the affidavit of the president of Georgia Receivables and a copy of the health spa contract on which Georgia Receivables sued. Kirk’s unsworn response to the motion asserted that he did not breach the contract and that he attempted to cancel the contract, but the original owner of the contract refused to do so.

Thereafter, the trial court denied Georgia Receivables’ motion for summary judgment and dismissed the case with prejudice because “the contract was void ab initio.” The trial court found that the contract on which Georgia Receivables relied was void and unenforceable because it did not comply with OCGA § 10-1-393.2 of the Georgia Fair Business Practices Act, which applies to health spa contracts. The trial court also questioned whether the contract was validly assigned to Georgia Receivables because no written assignment was in the record.

The trial court’s order also recited that at argument on the motion, the court gave Georgia Receivables the opportunity to address whether the court could enforce this contract which appeared to be unenforceable under OCGA § 10-1-393.2. Georgia Receivables responded, however, that regardless of whether the contract was enforceable, Kirk had waived the issue.

Georgia Receivables’ sole enumeration of error contends the trial court abused its discretion and erred by denying its motion for summary judgment and sua sponte dismissing the action with prejudice because a contrary judgment was demanded. On appeal, Georgia Receivables argues that it was improper for the trial court to go beyond the scope of the pleadings to find the contract void and unenforceable because Kirk did not raise the issue.

1. Georgia Receivables’ motion to withdraw the appeal is denied.

2. This case is controlled adversely to Georgia Receivables by Ga. Receivables v. Te, 240 Ga. App. 292 (523 SE2d 352) (1999) and Ga. Receivables v. Welch, 242 Ga. App. 146 (529 SE2d 164) (2000). In Te, this court held that similar sua sponte grants of summary judgment to two defendants based upon violations of OCGA § 10-1-393.2 were authorized even though the defendants had failed to raise the issue, because any contract that does not comply with OCGA § 10-1-393.2 is void and unenforceable under OCGA § 10-1-393.2 (n). Ga. Receivables v. Te, supra, 240 Ga. App. at 293. OCGA § 10-1-393.2 (n) also provides that “no purchaser of any note associated with or contained in any health spa contract shall make any attempt to collect on the note ... if there has been any violation by the health spa of subsections (b) through (m)... of this Code section.” A contract that is null and void is illegal and against the public policy of Georgia and will not be enforced even if the defendant fails to raise this issue as an affirmative defense. Id.; see OCGA § 13-8-2 (a): “A contract which is against the policy of the law cannot be enforced.” Therefore the trial court did not err by dismissing the complaint with prejudice.

3. Because virtually the same argument made in this case was rejected in Ga. Receivables v. Te, and in Ga. Receivables v. Welch, we have carefully considered whether sanctions for pursuing a frivolous appeal should be imposed against Georgia Receivables and its counsel. If not for Georgia Receivables’ belated motion to withdraw this appeal, we would have assessed substantial penalties for pursuing this frivolous appeal. Since Georgia Receivables has now taken the appropriate action, we will not do so.

Nevertheless, we take this opportunity to remind counsel of their obligations to supplement the pleadings before this Court upon receipt of notice of legal authority directly adverse to their position or to withdraw their appeal.

Ethical Canon 7-20 of the State Bar Rules provides:

In order to function properly, our adjudicative process requires an informed, impartial tribunal capable of administering justice promptly and efficiently according to procedures that command public confidence and respect. Not only must there be competent, adverse presentation of evidence and issues, but a tribunal must be aided by rules appropriate to an effective and dignified process. The procedures under which tribunals operate in our adversary system have been prescribed largely by legislative enactments, court rules and decisions, and administrative rules. Through the years certain concepts of proper professional conduct have become rules of law applicable to the adversary adjudicative process. Many of these concepts are the basis for standards of professional conduct set forth in the Disciplinary Rules.

In turn, Disciplinary Rule 7-106 (B) (1) mandates that: “[i]n presenting a matter to a tribunal, a lawyer shall disclose . . . legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel.”

Decided March 16, 2000.

Frederick J. Hanna & Associates,■ Elizabeth C. Whealler, Jerry C. Tootle, Jr., for appellant.

Edward Kirk, pro se.

With regard to the matter at hand, the same issues which were dispositive herein were raised by the same attorneys in the same manner in at least three appeals previously decided by this Court. Ga. Receivables v. Te, supra, and its companion case Ga. Receivables v. Lewis, Ga. Receivables v. Welch, supra. Both the Te and Lewis cases were decided on October 6, 1999. All three of these cases were decided in a manner directly adverse to Georgia Receivables’ position, and the attorneys for Georgia Receivables neither filed a motion for reconsideration in any of these cases nor applied to our Supreme Court for a grant of certiorari, leaving no question that these decisions dispose of and control the issues involved.

Therefore, Georgia Receivables and their attorneys were on notice that their arguments were without merit on October 6, 1999, and despite the fact that they had at least three other cases pending before this Court which concerned identical issues directly controlled by Te and Lewis, Georgia Receivables took no action whatsoever to disclose this contrary legal authority to this Court. As such, a penalty pursuant to Court of Appeals Rule 15 (b) against Georgia Receivables and its attorneys was clearly authorized because of their failure to update this Court, their maintenance of arguments they knew to be meritless, and their actions contrary to EC 7-20 and DR 7-106 (B) (1). See King v. Gilman Paper Co., 184 Ga. App. 228 (361 SE2d 390) (1987); Klem v. Southeast Ceramics, 151 Ga. App. 817 (262 SE2d 643) (1979). Further, they also breached their duty to put this Court on notice of the pendency of the several cases involving the same issue, the same appellant, and the same attorney at the time they filed the latér appeals. Georgia Receivables has now met its professional obligations and moved to correct its deficiencies, however, and, therefore, we no longer deem a penalty warranted.'

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.