text:
    A00A0107.
    THERAGENICS CORPORATION v. DEPARTMENT OF NATURAL RESOURCES.
    (536 SE2d 613)
   Pope, Presiding Judge.

Appellant Theragenics Corporation is a Georgia corporation founded in 1981 to develop, manufacture and sell radioactive “seeds” (sold under the brand name of TheraSeed®) that are used in a cancer treating procedure known as brachytherapy. The radioactive ingredient in TheraSeed® is Palladium-103, also referred to as Pd-103. The active ingredient in Pd-103 does not exist in nature, and Theragenics manufactures the raw material used in TheraSeed® using its own proprietary method. Theragenics was the first company in the world to produce and commercially market a Palladium brachytherapy seed and is apparently one of only two companies in the world manufacturing and selling a brachytherapy seed containing Pd-103 as the active ingredient.

Because of the nature of its product, Theragenics faced significant and unique problems in developing and manufacturing TheraSeed®. And because radioactive material is used in manufacturing TheraSeed®, Theragenics’ operations are subject to regulation by the appellee in this case, the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources (DNR). In order to receive and maintain a license to operate in Georgia, Theragenics has been required to furnish the EPD with detailed information concerning all aspects of its operation. This has resulted in a substantial number of documents being filed with the EPD. Theragenics designated approximately one-third of the documents as “proprietary” or “confidential” when they were submitted to the EPD.

In November 1997, the EPD received a request under what is commonly referred to as the Georgia Open Records Act, OCGA § 50-18-70 et seq., to review Theragenics’ files. The request was made by an attorney for International Brachytherapy, S.A. (IBt), a foreign competitor whose principals are former Theragenics’ employees. The EPD subsequently informed Theragenics of this request and its intent to make available those documents which were not marked confidential or proprietary when they were filed with the EPD. Thereafter, representatives of Theragenics reviewed the EPD files and indicated to the EPD staff that many of the unmarked files also contained trade secret information. In early December, Theragenics was allowed to place yellow “stick-on” notes on those documents; Theragenics also requested that the EPD not allow access to those documents, which consisted of approximately 60 percent of the file. Theragenics was subsequently informed that all documents not originally marked or otherwise designated as trade secrets when submitted to the EPD would be provided to IBt. Theragenics filed a motion for a preliminary and permanent injunction, seeking to enjoin the release of those documents it contended contained trade secret information. The trial court denied the motion, and Theragenics filed this appeal.

The Open Records Act provides that all public records of a state agency, “except those which . . . [are] specifically exempted from being open to inspection by the general public, shall be open for a personal inspection by any citizen of this state at a reasonable time and place; and those in charge of such records shall not refuse this privilege to any citizen.” OCGA § 50-18-70 (b). One of the specific exemptions listed in OCGA § 50-18-72 is for “(1) [a]ny trade secrets obtained from a person or business entity which are of a privileged or confidential nature and required by law to be submitted to a government agency. . . .” OCGA § 50-18-72 (b). The term “trade secret” is defined in OCGA § 10-1-761 (4) of the Georgia Trade Secrets Act of 1990 as follows:

information, without regard to form, . . . which is not commonly known by or available to the public and which information: (A) Derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The trial court framed the question in this case as “[w]hether submitting documents not designated as confidential to a public agency that is subject to the Georgia Open Records Act constitutes reasonable efforts to protect the information in those documents?” The trial court answered the question in the negative and held that Theragenics failed to take reasonable efforts to protect its trade secret information because it did not specifically notify the EPD that it was submitting documents containing trade secret information. However, we find the trial court erred in focusing its inquiry on the manner in which Theragenics filed documents with the EPD. Rather, the proper inquiry in this case was whether Theragenics took reasonable efforts to protect the information without regard to its actions in submitting the information to the EPD. If reasonable efforts were made to protect the dissemination of the information except for providing it to the EPD, then trade secret status was not lost simply because Theragenics did not notify the EPD each time that it provided them with information containing trade secrets. Here, the EPD has made no contention that Theragenics did not take reasonable efforts to protect its trade secrets, except for the fact that Theragenics failed to designate them as such when it filed them with the EPD.

We reach this result for several reasons. First, we note that Theragenics was required to provide the EPD with confidential, proprietary and trade secret information as a condition of maintaining operations in this state. Moreover, there were no applicable statutory provisions or DNR rules or regulations which explicitly required Theragenics to notify the EPD that its documents contained trade secret information at the time of filing. Instead, as Theragenics points out, it appears that the DNR rules, which make reference to OCGA § 31-5-5 (b), give the DNR the authority to classify documents as confidential and privileged “where such matters relate to secret processes, formulas, and methods or where such matters were obtained or furnished on a confidential basis.” Id. And although the EPD points to both statutory and case law mandating that exemptions to disclosure under the Open Records Act should be narrowly construed, OCGA § 50-18-72 (g); Hardaway Co. v. Rives, 262 Ga. 631, 634 (2) (a) (422 SE2d 631) (1992), our holding is not the result of a broad reading of the trade secret exemption.

And our holding does not eviscerate the purpose of the Open Records Act, which is “to encourage public access to government information and to foster confidence in government through openness to the public.” McFrugal Rental &c. v. Garr, 262 Ga. 369 (418 SE2d 60) (1992). Indeed, it is hard to envision how disclosure to a foreign corporate competitor of a private entity’s confidential or proprietary information, which it was required to file with a state agency in order to operate a business in this state, would promote the purpose of the Open Records Act.

The EPD argues, however, that it does not have the resources to review the countless documents it receives to determine which contain trade secrets and that to protect itself it must release all documents unless it has been notified that they contain trade secrets. Perhaps the EPD’s strongest argument is that it cannot protect something that it does not know is a trade secret. But these arguments do not persuade us to reach a different result. OCGA § 50-18-70 (f) provides that “[t]he individual in control of such public record or records shall have a reasonable amount of time to determine whether or not the record or records requested are subject to access under this article. . . .” Thus, a state agency faced with an Open Records Act request directed at documents filed by a private person or entity must always make an independent determination concerning whether the documents should be disclosed under the Act. There are numerous exemptions to disclosure outlined in OCGA § 50-18-72, and the state agency must ascertain if any of these apply to requested records. Moreover, even if the state agency is notified that it is receiving trade secret or other information allegedly exempt from disclosure, it is nevertheless incumbent upon the state agency to verify a filing entity’s designation before refusing to disclose the information. Therefore, when the EPD received the Open Records request in this case, it was incumbent upon the EPD to ascertain which documents provided by Theragenics contained trade secret information, no matter what designation Theragenics did or did not place on the documents at the time of filing. The trial court’s order is reversed.

Judgment reversed.

Smith, P. J., and Miller, J., concur.

Decided July 7, 2000

Powell, Goldstein, Frazer & Murphy, Jerry B. Blackstock, John W. Harbin, Tracy M. Culver, for appellant.

Thurbert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Isaac Byrd, Senior Assistant Attorney General, John E. Hennelly, Assistant Attorney General, for appellee.

       In brachytherapy, the radioactive seeds, which are approximately the size of a grain of rice, are placed inside of the cancerous tissue.

       According to the record, the Pd-103 seed has therapeutic advantages over the other type of radioactive isotope used in brachytherapy.

       For example, Theragenics uses a machine known as a cyclotron to create Pd-103. In the cyclotron, the metal rhodium is bombarded with protons to create Pd-103. Theragenics was the first to use this method on a commercial scale, and the “scale-up” and refinement of the method took years and millions of dollars to develop.

       Theragenics has filed a trade secret misappropriation action against IBt.

       OCGA § 50-18-70 (a) provides that a “ ‘public record’ shall mean all documents . . . prepared and maintained or received in the course of the operation of a public office or agency.” (Emphasis supplied.)

       Our Supreme Court has held that a citizen of this state is not disqualified from exercising his rights under this Code section “because he happens to be an employee of a nonresident corporation and may share the information received with his employer.” Atchison v. Hosp. Auth. of St. Mary’s, 245 Ga. 494, 495 (2) (265 SE2d 801) (1980). Based on this decision, our Attorney General has issued an official opinion that public records which are otherwise not exempt from disclosure should be available upon request by nonresidents as well as residents of this state. 1993 Op. Atty. Gen. 27.

       It appears to us that the procedure employed by the EPD of notifying Theragenics of the request and allowing it to review and mark its documents was a good first step in this process.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A00A0273.
    PATMAN v. THE STATE.
    (537 SE2d 118)
   Ruffin, Judge.

Following a bench trial, high school student Travarous Patman was found guilty of possession of marijuana with intent to distribute. In his sole enumeration of error on appeal, Patman contends the trial court erred in failing to suppress the evidence of the marijuana, asserting that the police officer lacked authority to search him. Patman’s claim of error lacks merit, and we affirm.

The record demonstrates that on March 12, 1998, Officer Dale Pope of the Athens-Clarke County Police Department was working a special detail at Clarke Central High School. At 10:00 a.m., Mildred Huff, the school secretary, told Pope that high school student Pat-man, who had arrived late to school, smelled of marijuana.

Pope followed Patman down a hallway and stopped him. After he stopped Patman, Pope smelled “a strong odor of marijuana.” For safety purposes, Pope frisked Patman to check for weapons, and he felt several packages that he described as “little stamp bags” in Pat-man’s jacket pocket. Because Pope knew that such bags were used to package marijuana and because Patman smelled of marijuana, Pope believed Patman had marijuana in his pocket. Pope then asked Pat-man what was in his pocket, and he responded, “Pope, come on and let me slide.” Pope, who viewed Patman’s statement as a confession, reached into Patman’s pocket and removed eight individually wrapped bags of marijuana.

Prior to trial, Patman moved to suppress the marijuana evidence, arguing that the search that yielded the drugs “was conducted without probable cause, and without a reasonable, articulable suspicion that [Patman] was either armed or dangerous, and without [Pat-man’s] consent.” The trial court denied the motion, and Patman was convicted.

Although students are not stripped of their constitutional rights upon entering school, a student does not enjoy the same degree of privacy while on school property that he would enjoy elsewhere. A student’s interest in privacy must be balanced against “the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds.” Such discipline is necessary to provide students with a safe and secure school environment. Accordingly, the Fourth Amendment permits school officials to search students based upon circumstances which do not rise to the level of probable cause. The legality of a search of a student depends simply on the reasonableness, under all the circumstances, of the search. In Georgia, school officials may search “subject only to the most minimal restraints necessary to insure that students are not whimsically stripped of personal privacy and subjected to petty tyranny.”

If Patman had been searched by a school official, there is no question that the search would be considered reasonable under the circumstances. Patman smelled of marijuana, which gave rise to suspicion that he had recently smoked marijuana. Moreover, when Pope asked Patman what was in his pocket, Patman’s request to “let [him] slide,” was, if not a confession, at the very least incriminating. However, Patman was not searched by a school official, but by a police officer. Unlike a school official, a police officer must have probable cause to search a suspect.

In denying Patman’s motion to suppress, the trial court concluded that Pope was authorized to search Patman under the “plain feel” doctrine. Under this doctrine, if, during a lawful pat-down search, an officer feels an object whose contours or mass makes it immediately identifiable as contraband, that officer can seize the item. Thus, for evidence to be admissible under the plain feel doctrine, the searching officer must express a degree of certainty in identifying the item. This is so because a pat-down search “is conducted solely for the purpose of insuring the safety of the officer and of others nearby, not to procure evidence for use at a subsequent trial.” Here, Pope’s testimony that he “felt as though” Patman had marijuana seems to fall short of establishing that he knew immediately that the item was contraband. Accordingly, we disagree with the trial court’s conclusion that the search was permissible on this basis.

The State, however, asserts that Pope had probable cause to search Patman for a different reason: because he smelled of marijuana. In its brief, the State argues that the recent case of State v. Folk stands for the proposition that the odor of burning marijuana, by itself, establishes probable cause. We disagree. In Folk, this Court held that “a trained police officer’s perception of the odor of burning marijuana . . . constitutes sufficient probable cause to support the warrantless search of a vehicle” But a person has a lesser expectation of privacy in one’s automobile than in other contexts such as one’s home or office. Accordingly, the fact that the smell of burning marijuana establishes probable cause for the search of a car does not mean that such odor, standing alone, will justify a search in other contexts. Moreover, the odor of burning marijuana suggests that marijuana is still present, whereas the smell of marijuana smoke merely suggests that marijuana was present in the past. Thus, we cannot agree with the State’s reasoning.

Nevertheless, we agree that the trial court did not err in denying Patman’s motion to suppress. The odor of marijuana is one factor that may be considered in determining whether, under the totality of the circumstances, an officer had probable cause to institute a search. In this case, the totality of the circumstances gave rise to probable cause. As noted previously, Pope smelled marijuana on Pat-man, which gave rise to reasonable suspicion that he had recently smoked marijuana. Pope then patted Patman and felt what he believed to be packages of marijuana in Patman’s pocket. When he asked Patman what was in the pocket, Patman’s request to “let [him] slide” suggested that he had something incriminating in his pocket. Taken together, the circumstances establish probable cause to search Patman, and the trial court did not err in denying his motion to suppress.

Decided July 7, 2000.

Joel N. Shiver, for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Ellington, J, concur.

       Patman also was charged with possession of marijuana with intent to distribute within 1,000 feet of a school, but the trial court issued an order of nolle prosequi on this count.

        See New Jersey v. T. L. O., 469 U. S. 325, 338-340 (105 SC 733, 83 LE2d 720) (1985).

       Id. at 339.

         See State v. Young, 234 Ga. 488, 496 (2) (216 SE2d 586) (1975).

        T. L. O., supra at 341-342.

       Id.

        Young, supra at 497.

       See Cotton v. State, 237 Ga. App. 18, 19 (513 SE2d 763) (1999) (officer had reasonable suspicion to detain motorist based on odor of marijuana).

        State v. Young, supra at 498 (“action by school officials will pass constitutional muster only if those officials are acting in their proper capacity and the search is free of involvement by law enforcement personnel”).

        Tukes v. State, 236 Ga. App. 77, 79 (2) (a) (511 SE2d 534) (1999).

       (Punctuation omitted.) Brown v. State, 181 Ga. App. 768, 770 (1) (a) (353 SE2d 572) (1987).

       Compare Tukes, supra (officer “knew immediately on touching the bulky object concealed in Tukes’ pants that the object was contraband”).

       238 Ga. App. 206 (521 SE2d 194) (1999).

       (Emphasis supplied.) Id. at 209.

        State v. Scott, 159 Ga. App. 869, 871 (2) (285 SE2d 599) (1981).

       See Clare v. State, 135 Ga. App. 281, 283 (2) (217 SE2d 638) (1975) (odor of marijuana, by itself, does not justify warrantless search of house).

       See Albert v. State, 236 Ga. App. 146, 149 (2) (511 SE2d 244) (1999) (odor of marijuana combined with defendant’s red, glassy eyes, slurred speech, and failed HGN test gave rise to probable cause to arrest defendant); Williams v. State, 187 Ga. App. 409, 412 (2) (370 SE2d 497) (1988) (smell of marijuana along with person’s furtive conduct and inconsistent responses gave rise to probable cause to search); Griffin v. State, 180 Ga. App. 189, 190 (348 SE2d 577) (1986) (odor of marijuana combined with officer watching the defendant roll cigarette from bag of leafy green substance and then toss cigarette upon officer’s approach established probable cause).

       See Cotton, supra.

       See Williams, supra.


text:
    A00A0333.
    BEASLEY v. THE STATE.
    (536 SE2d 825)
   Ruffin, Judge.

The statute of limitation for the offense of burglary is four years from the date of the commission of the crime. Under OCGA § 17-3-2 (2), however, the statute is tolled during any period in which the “person committing the crime is unknown.” In this appeal, we must decide whether the State “knows” who has committed a crime simply because it lifts a fingerprint from the crime scene, even though the fingerprint is not matched to the defendant until several years later. Because the statute requires actual, as opposed to constructive, knowledge, we hold that the State is not charged with knowledge of the offender’s identity under such circumstances.

On February 3, 1994, a house in Cobb County was burglarized. The police lifted a partial fingerprint from a CD player that had been left on the living room floor. At the time, the State maintained an Automated Fingerprint Identification System (AFIS), a computer system allowing fingerprints to be analyzed for possible matches to other prints in the system. There was only one AFIS terminal in the entire state, however, located at the Georgia Bureau of Investigation office in Decatur. Due to the time required for a search and limited availability, this computer was used only for major cases.

In December 1997, Cobb County obtained its own remote terminal, which could access the AFIS. Due to demands placed on the main AFIS computer in Decatur, however, remote terminals such as the one in Cobb County could perform searches only in the evenings. After obtaining its own terminal, Cobb County began analyzing fingerprints in open cases, starting with the most recent cases and working its way backward. The fingerprint in this case was not input into the AFIS until the evening of July 22, 1998. The computer generated a list of ten possible matches, including Beasley. On July 23, Officer Homer Bishop examined this list and determined that the fingerprint lifted from the crime scene matched Beasley’s prints on file.

Beasley was indicted for the burglary on October 1,1998, and an amended indictment was issued on November 19, 1998. The amended indictment alleged that the limitation period “does not include any period between February 3, 1994 and July 22, 1998, said person committing the crime having been unknown until July 23, 1998.” Beasley filed a plea in bar, alleging that prosecution was barred by the statute of limitation. Following a hearing, the trial court denied the plea in bar. Beasley later agreed to a bench trial, stipulating to all of the allegations in the indictment except the allegation that the statute of limitation was tolled. The trial court convicted Beasley, holding that he was unknown until July 23, 1998.

On appeal, Beasley argues that he was not “unknown” within the meaning of the statute. He contends that the State should be charged with knowledge of his identity because it did not exercise reasonable diligence in analyzing the fingerprint. Had it used reasonable diligence, Beasley claims, it would have discovered his identity earlier. In making this argument, Beasley is urging that we interpret OCGA § 17-3-2 (2) as applying a constructive knowledge or “should have known” standard. Beasley cites no cases holding that the statute applies such a constructive knowledge standard, nor are we aware of any. To the contrary, all the cases applying the statute have done so in the context of actual knowledge.

Although Beasley cites cases from other states applying a constructive knowledge standard in determining whether a statute of limitation has expired, these cases generally apply statutes that expressly incorporate such a standard. The Georgia statute, by contrast, does not expressly incorporate such a standard. It states that the statute of limitation does not run while the person who committed the crime is “unknown” — it does not say “and could not have been discovered through the exercise of reasonable diligence.” Since other states desiring to adopt a constructive knowledge standard have done so through express statutory language, the fact that our legislature has not chosen to use such language suggests an intent to apply an actual knowledge standard.

In Baker v. State, the Supreme Court interpreted a similarly worded statute to require actual, as opposed to constructive, knowledge. OCGA § 16-1-7 (b) provides that, if several crimes arising from the same conduct are “known” to the prosecuting officer, they must be prosecuted in a single prosecution. The Supreme Court rejected the proposition that this statute set forth a constructive knowledge standard, noting that

we can find no other case in this state adopting this standard. Most importantly, we conclude that such a standard is not mandated by the statute, and would place too great a burden on prosecutors, who would have to institute strict requirements to insure that all police agencies with whom they work file complete arrest reports on every case.

Recognizing the “difficulties that could result from a constructive knowledge test,” the Court held that the statute applied “only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.” In Hill v. State, we rejected the proposition that “information contained in an arrest report that is in the prosecutor’s file may be imputed to the prosecutor’s knowledge, whether the information was actually noticed by the prosecutor or not.”

Although Baker and Hill involved a different statute, the same considerations are present in this case. As discussed above, the language of OCGA § 17-3-2 (2) does not suggest that the legislature intended a constructive knowledge standard to apply. Moreover, as the Supreme Court recognized in Baker with respect to the double jeopardy statute, there are serious “difficulties that could result from a constructive knowledge test” in determining whether the police are charged with knowledge of the perpetrator’s identity. For example, if a police officer fails to recognize the significance of a particular clue or fails to track down a lead in a timely manner, the defendant could contend that “reasonable” investigative efforts would have led the police to him earlier. In considering whether the police efforts were reasonable, the jury would of course have to consider such factors as the scarcity of police resources and the relative priority of various crimes. Adopting a constructive knowledge rule would thus require the jury not only to determine when the State discovered who committed the crime, but also to second-guess the reasonableness of police investigative techniques, thereby greatly expanding the focus of a criminal trial. Such a result would also greatly increase uncertainty, as different juries could disagree on whether the same police conduct (i.e., allocating investigative resources to more serious crimes first) was reasonable.

Clearly, it is within the legislature’s authority to set forth the period in which a prosecution may be brought, as well as to prescribe the conditions under which that period will be tolled. In providing that the limitation period is tolled by the State’s lack of knowledge, the legislature was free to adopt either an actual or a constructive knowledge standard. In light of its use of the word “unknown” instead of “unknowable” or some variant thereof, as well as the difficulties arising from a constructive knowledge standard, we believe that the legislature intended the word “unknown” to refer to lack of actual knowledge.

Decided July 7, 2000

King, King & Jones, David H. Jones, Bernard S. Brody, for appellant.

Patrick H. Head, District Attorney, Charles M. Norman, Maria B. Golick, Dana J. Norman, Assistant District Attorneys, for appellee.

In one sentence in his brief, Beasley states that “the fingerprint of an individual is his identity,” thus implying that the police had actual knowledge that he had committed the crime when it lifted his fingerprint from the scene. We think this argument merits little discussion. A fingerprint, like a photograph, a DNA sample, or any other clue, may be very significant in leading the police to the perpetrator. However, unless and until the print is matched to an actual person, it cannot be said that the police know who committed the crime. Although the existence of an AFIS computer may allow the police to analyze the fingerprint more efficiently, this ability merely addresses itself to the reasonableness of any delay in ascertaining the perpetrator’s identity.

In this case, it is undisputed that the fingerprint was not analyzed and matched to Beasley until July 1998, and Beasley was indicted within four years of that date. Accordingly, prosecution was not barred by the statute of limitation.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       See OCGA § 17-3-1 (c); Kyles v. State, 254 Ga. 49, 50 (326 SE2d 216) (1985).

       This plea in bar was actually filed before the amended indictment, although the order denying it was filed after.

       Beasley does not state how much earlier the State would have discovered his identity if it had used reasonable diligence but implies that the State should be charged with knowledge from the time it lifted the fingerprint from the crime scene. At the hearing on his plea in bar, however, Beasley’s attorney appeared to concede that some delay was reasonable, stating that
      I understand it was probably a very huge hardship for investigators to run fingerprints. And I understand that they had to prioritize their cases. They had to reserve the fingerprint terminals for murder cases and very serious armed robbery cases, I’m sure, and other violent offenses. . . .Itjustwouldhavebeentooburdensome.lt would have taken a long time. They had a lot of — much more serious cases that came before it. . . . [W]e’re not accusing the police of being lazy or not doing their job. We understand they have priorities.

        See Borders v. Bd. of Trustees &c., 231 Ga. App. 880, 881 (500 SE2d 362) (1998) (“With constructive knowledge, the issue is not what [they] actually knew, but what they should have known.”).

       Although we have long held that the victim and others interested in the prosecution come within the class of persons whose knowledge will satisfy the statute, we have not held that such knowledge includes anything other than actual knowledge. See Duncan v. State, 193 Ga. App. 793 (389 SE2d 365) (1989); Brown v. State, 6 Ga. App. 329 (64 SE 1001) (1909).

        See People v. Seda, 93 NY2d 307, 310 (712 NE2d 682) (N.Y. App. 1999) (statute of limitation tolled during any period in which “ ‘the whereabouts of the defendant were continuously unknown and continuously unaseertainable by the exercise of reasonable diligence’ ”); State v. Escobar-Mendez, 195 Ariz. 194, 197 (986 P2d 227) (Ariz. App. 1999) (statute of limitation begins upon “actual discovery ... or discovery . . . which should have occurred with the exercise of reasonable diligence, whichever first occurs”) (emphasis omitted); State v. Baker, 679 A2d 1002, 1006 (Del. Super. 1996) (allowing prosecution for certain offenses “within 2 years after discovery of the offense has been made or should have been made in the exercise of ordinary diligence”); State v. Mack, 637 S2d 18, 19 (Fla. App. 1994) (prosecution commences upon filing of indictment or information, provided that process is then executed “without unreasonable delay”). State v. White, 939 SW2d 113 (Tenn. Crim. App. 1996), also cited by Beasley, involved a statute, TCA § 40-2-103, providing that the limitation period is' tolled during any period in which the defendant “conceals” the fact of the crime and, thus, is not similar to the statute in this case.

       257 Ga. 567 (361 SE2d 808) (1987).

       Id. at 568.

       (Punctuation omitted; emphasis in original.) Id. at 568-569.

       234 Ga. App. 173, 176 (1) (507 SE2d 3) (1998).

       We recognize that the facts in this case are somewhat stark. The fingerprint was apparently the only material clue, and the police seemingly understood its significance immediately. Under these circumstances, it might appear unreasonable to fail to analyze the print for more than four years. However, the reasonableness of such a delay becomes relevant only if the statute applies a constructive knowledge standard, and it is not the function of this Court to give a strained interpretation to a statute in order to reach what we think is a proper result in a particular case.

       Indeed, this argument contradicts Beasley’s attorney’s own argument at the plea in bar hearing, where he stated that “[t]he offender was not known. However, they had the fingerprint.”


text:
    A00A0407.
    WEST v. BRIGGS & STRATTON CORPORATION.
    (536 SE2d 828)
   Ruffin, Judge.

Michael West was injured on a construction project when he fell into a pit that had been covered by a piece of plywood. At the time, he was working for a painting contractor, Augusta Carolina Painting. The pit had been constructed and maintained by the flooring contractor, M. B. Kahn Construction Company (Kahn). West sued Briggs & Stratton Corporation (Briggs), the owner of the property; Hunzinger Construction Company (Hunzinger), the construction manager; and Kahn, alleging that each defendant had a duty to ensure that the premises were safe and to warn West of any danger. The trial court granted summary judgment to Briggs on West’s claim for damages, holding that Briggs owed no duty to West because it had relinquished control over that portion of the premises where he was injured. For reasons discussed below, we reverse.

In 1994 or 1995, Briggs started construction of an engine manufacturing plant in Statesboro. This plant consisted of two buildings, including a 300,000-square-foot manufacturing building. Briggs did not hire a general contractor for the project but entered directly into contracts with various contractors, including Kahn and Augusta Carolina. Briggs hired Hunzinger as the “construction manager,” with the general responsibility to provide advice regarding the project and to oversee the work of the various contractors. The written contract required Hunzinger to, among other things:

[p]rovide administrative, management and related services as required to coordinate Work of the Contractors ...[;]
[o]btain satisfactory contractual and work performance from each of the Contractors . . . [and] [r]ecommend courses of action to [Briggs] when requirements of a Contract are not being fulfilled ...[;]
[r]eview the safety programs developed by each of the Contractors as required by their Contract Documents and applicable laws and coordinate the safety programs for the Project . . . [; and]
[determine that the Work of each Contractor is being performed in accordance with the requirements of the Contract Documents and guard [Briggs] against defects and deficiencies in the Work. . . . [R]equire special inspection or testing ... of Work not in accordance with the provisions of the Contract Documents . . . [and] [s]ubject to review by the Architect [an agent appointed by Briggs], reject Work which does not conform to the requirements of the Contract Documents.

The contract further provided that Hunzinger

shall not be responsible for construction means, methods, techniques, sequences and procedures employed by Contractors in the performance of their Contracts, and shall not be responsible for the failure of any Contractor to carry out Work in accordance with the Contract Documents not discoverable in performing this Contract.

Briggs hired Kahn as the flooring contractor for the project. Kahn’s responsibilities included pouring concrete for floors, as well as building large pits used for storing machinery and products. The written contract between Briggs and Kahn provided that Kahn

shall supervise and direct the Work, using [its] best skill and attention. [Kahn] shall be solely responsible for all construction means, methods, techniques, sequences and procedures, and shall coordinate all portions of the Work under the Contract, subject to the overall coordination of [Hunzinger] .

With respect to safety, the contract provided that Kahn

shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. . . . [Kahn] shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to . . . all employees on the Work and all other persons who may be affected thereby. . . . [Kahn] shall erect and maintain, as required by existing conditions and the progress of the Work, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent utilities.

The contract stated that “[t]he Architect and [Hunzinger] will be [Briggs’] representatives during construction” and that “all instructions to [Kahn] will be forwarded through [Hunzinger].” Although the contract stated that “[t]he Architect and [Hunzinger] shall at all times have access to the Work wherever it is in preparation and progress,” it provided that

[n] either the Architect nor [Hunzinger] will be responsible for or have control or charge of construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and neither will be responsible for [Kahn’s] failure to carry out the Work in accordance with the Contract Documents. Neither the Architect nor [Hunzinger] will be responsible for or have control or charge over the acts or omissions of [Kahn], [its] Subcontractors, or any of their agents or employees, or any other persons performing any of the Work.

Briggs hired Augusta Carolina as the painting contractor for the project. Apart from a description of the work to be performed, the contract with Augusta Carolina was substantially similar to the one with Kahn.

West began working for Augusta Carolina on July 28, 1995. On his first day at work, he arrived at 5:00 p.m. and spent a féw hours painting iron beams running across the top of the building in the main manufacturing building. At about 9:30 p.m., West’s supervisor told him to clean up the area in preparation for painting another beam. West testified that the area had to be cleaned so that they could operate lifters used in painting the high beams. West went to move a heavy wooden pallet that was sitting on top of a piece of plywood on the floor. When he lifted the pallet, he fell through the plywood into a pit and was injured. West testified that the plywood was in fact two pieces that were “butted up together where you couldn’t see that it was split.” When he lifted the pallet, he fell between the two pieces. Although he caught himself before he fell all the way into the pit, the heavy pallet hit him on the head. West testified that he did not realize there was a hole under the plywood. There were no barricades or warning tape around the area, and he believed the plywood was simply lying on the concrete floor.

The pit West fell into had been built by Kahn. Tommy DuBose, Kahn’s designated representative, testified that Kahn’s standard procedure after building a pit was to place two-by-four boards across the pit and then place plywood over the boards. Kahn would then place four posts around the pit and put yellow warning tape around them. DuBose testified that the plywood was meant to support the weight of a person walking over the pit, although it would not support machinery such as a forklift.

DuBose testified that he would try to inspect the various pits between 9:00 and 10:00 a.m. and again between 3:00 and 5:00 p.m., when Kahn employees left the premises. He said that other workers would often take down the barricades and warning tape at night while Kahn was not on the premises and that “when we come back most of the time barricades would be down or . . . such stuff as that.” Sometimes he would come back from lunch and find that a barricade had been taken down. He testified that he would generally have this problem only in “congested” areas where other contractors were working. He also testified that “[a]s far as uncovering anything, when [Briggs] started putting their machinery in [the pits,] they uncovered the hole and put their own machinery in.”

DuBose testified that the pit West fell into was located in the back of the. building near the loading docks. He said that Kahn had finished its work on that portion of the premises and had moved on to another area. DuBose testified that Kahn’s responsibility for an area ended when it had completed its work there, placed barricades, and moved on to another area, although he would continue to inspect the entire plant twice a day. He said that painters, plumbers, and electricians were still working in the area where West fell.

In its summary judgment motion, Briggs argued that it owed no duty to West because it had relinquished possession of the premises to an independent contractor. The trial court granted the motion on this basis.

It is well settled that

[a]n owner or occupier of land is liable in damages to invitees who come upon his land for injuries occasioned by his failure to exercise ordinary care in keeping the premises safe. . . . Under this principle is found the duty of an owner of premises to an individual contractor and his employees who lawfully come upon the premises in the performance of a contract between the owner and the contractor because the independent contractor and his employees are invitees. Thus, an owner having work done on his premises by an independent contractor, who has actual or constructive knowledge of potential dangers on the premises, owes a duty to the contractor to give warning of, or use ordinary care to furnish protection against, such dangers to the contractor and his employees who are without actual or constructive notice of the dangers, and which could not be discovered by them in the exercise of ordinary care.

As in all premises liability cases, the true basis of the owner’s liability is its “superior knowledge of the existence of the defect or hazard that may subject an invitee to an unreasonable risk of harm.”

However, a landowner is not liable if “full possession and complete control of the land were delivered and surrendered to an independent contractor.” If the owner surrenders a portion of the premises to an independent contractor, the owner “is relieved of his duties with regard to the portion of the premises which he no longer controls.” In this regard, “[p]ossession may be defined as having personal charge of or exercising the rights of management or control over the property in question. Custody and control are the commonly accepted and generally understood incidents of possession.”

Taking all of these principles together, we have held that

[although property owners owe a duty to their own invitees, they owe no such duty to employees of or others invited upon the premises by an independent contractor hired to do work on the premises if two conditions exist: 1) the owner has relinquished possession of the premises, in whole or in part[,] and 2) the owner does not have the right and does not actually control or direct the work done.

Briggs contends that it surrendered possession of that portion of the premises in which the accident occurred to Kahn, that Kahn assumed the responsibility of ensuring that the premises were safe, and that Briggs retained no right to control the manner in which Kahn performed its work. Accordingly, Briggs contends that it owed no duty to West. Briggs relies primarily upon McClure v. Equitable Real Estate Investment Mgmt. and Englehart v. OKI America. In each of those cases, an owner hired a general contractor to perform a project, and the general contractor was required by contract to take all necessary safety precautions. In each case, an employee of a subcontractor was injured while working on the project. We held that the owner in each case owed no duty to the employee because it had relinquished possession of the premises to the general contractor, which assumed the duty of keeping the premises safe.

Neither McClure nor Englehart, however, explicitly analyzed what it means to relinquish possession of premises to an independent contractor. Rather, the primary issues in those cases were whether the general contractor assumed the duty of making the premises safe and whether the owner retained any rights of control over the contractor’s work. The issue here is somewhat different. In this case, the contractor Briggs claims was responsible for ensuring the safety of the premises — Kahn — was not a general contractor with overall responsibility for the entire project. Rather, it was one of many contractors working on the same project and in the same area. Briggs expressly reserved the right to use its own employees or other contractors on the project and undertook to coordinate the work of such persons with the work being performed by Kahn. Moreover, unlike the situation in McClure or Englehart, the person who was injured was not an employee of one of Kahn’s own subcontractors. Rather, he was an employee of Augusta Carolina, a separate contractor hired directly by Briggs. Thus, West was not on the premises at the invitation of Kahn, but at the invitation of Briggs.

As McClure makes clear, whether the owner retains control over the work of an independent contractor is a separate question from whether it relinquished possession of the premises to such contractor. Only if both conditions are satisfied is the owner relieved of any duty toward invitees. Thus, even if Kahn agreed to maintain a safe workplace and Briggs did not retain the right to oversee the details of Kahn’s work, Briggs would not be relieved of any duty toward its own contractors unless it relinquished possession of the premises to Kahn.

As discussed above, possession means “having personal charge of or exercising the rights of management or control over the property in question,” and “[c]ustody and control are the commonly accepted and generally understood incidents of possession.” In Little v. Liberty Sav. Bank, the owner of a building hired an independent contractor to replace the carpeting in the hallway. We noted, however, that the hallway was kept open for use by the owner’s tenants or invitees. Thus, we held that

it cannot be said that [the independent contractor] had possession and control of the premises to the exclusion of [the owner] such that [the owner] had no duty of care as an owner for the safety of invitees on the premises. Under the circumstances, whether [the owner or the contractor] or both were in control of the premises . . . should be decided by the jury.

As Little demonstrates, possession implies the ability to control access to the premises and to exclude others therefrom. In this case, it does not appear that Kahn had the ability to exclude other contractors hired by Briggs, such as Augusta Carolina, from the premises in general or from that portion of the premises in which West was injured in particular. Although Kahn contractually agreed to maintain a safe work environment, Briggs reserved the right to hire other contractors to work on the entire premises and exercised that right by allowing Augusta Carolina to work in the area where the accident occurred.

Moreover, the contract provided that Hunzinger, as construction manager and Briggs’ representative, would “schedule and coordinate the Work of all contractors on the Project including their use of the site.” According to DuBose, Kahn was not on the premises after 5:00 p.m., and other contractors worked on the premises while Kahn was not present. These were not subcontractors working pursuant to a contract with Kahn, but were independent contractors working directly at the invitation of Briggs. Furthermore, DuBose testified that Kahn’s responsibility for an area ended after it had moved on to another area. Under all of these circumstances, we cannot say as a matter of law that Briggs delivered exclusive possession of the premises to Kahn.

Nor can we say that Briggs delivered exclusive possession of the premises to Hunzinger. As discussed above Hunzinger was not the general contractor for the projéct, but was simply the construction manager. Hunzinger’s duties consisted primarily of providing advice to Briggs and acting as Briggs’ representative in coordinating the work of the various independent contractors, which received their authority directly from Briggs. Hunzinger’s contract specifically stated that it was not responsible for the “construction means, methods, techniques, sequences and procedures employed by Contractors in the performance of their Contracts.” Although Hunzinger had a duty to “review the safety programs developed by each of the Contractors as required by their Contract Documents and applicable laws and coordinate the safety programs for the Project,” it was not responsible in the first instance for developing or implementing such safety programs. Indeed, Kahn’s and Augusta Carolina’s contracts with Briggs both stated that Hunzinger would not be “responsible for or have control or charge of. . . safety precautions and programs in connection with the Work.” If a contractor failed to fulfill its contract or take satisfactory corrective action, Hunzinger was required to “[r]ecommend courses of action to [Briggs].” Hunzinger’s ability to reject any work of a contractor was “[s]ubject to review by the Architect,” a representative appointed by Briggs.

Under all of these circumstances, we cannot say as a matter of law that Briggs surrendered possession and control of the premises to either Kahn or Hunzinger. Accordingly, the trial court erred in granting summary judgment to Briggs on this basis. The only other basis arguably asserted by Briggs in its summary judgment motion was that West failed to exercise reasonable care for his own safety. In this regard, Briggs cites Torrington Co. v. Hill for the proposition that “[a]n individual contractor is expected to determine for himself whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance of the contract.” In this case, however, the evidence simply shows that West stepped on a piece of plywood on the floor. There were no barricades or other indications that the plywood was covering a pit. We cannot say that the mere fact that a piece of plywood is lying on the floor on a construction site, with a wooden pallet on top of it, necessarily places a worker on notice that there is a pit underneath. Indeed, since barricades were a required safety device, their absence would suggest that there was not in fact a pit. Moreover, even if West should have known that there was a pit, DuBose testified that the plywood was intended to support the weight of a man walking across it. In Robinson v. Kroger Co., the Supreme Court held that

Decided July 7, 2000.

Montlick & Associates, Alan Y. Saltzman, Killian & Boyd, Robert P. Killian, for appellant.

the “routine” issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication. . . . [T]he issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.

Whether West exercised ordinary care in stepping on the plywood is, at a minimum, a question for the jury, and Briggs was not entitled to summary judgment on this basis.

Judgment reversed.

Andrews, R J., and Ellington, J., concur.

Troutman Sanders, Mark S. VanderBroek, David C. Vigilante, Thomas E. Reilly, for appellee.

       The term “Work” referred to the work required to be performed by Kahn under the contract, while the term “Project” referred to the entire construction project.

       (Citations omitted.) Amear v. Hall, 164 Ga. App. 163, 166 (2) (296 SE2d 611) (1982).

       Id. at 167.

        Towles v. Cox, 181 Ga. App. 194, 195 (1) (351 SE2d 718) (1986).

       Id. at 195-196.

       (Punctuation omitted.) Id. at 196.

        McClure v. Equitable Real Estate Investment Mgmt., 195 Ga. App. 54, 55 (392 SE2d 272) (1990).

       Id.

       209 Ga. App. 151 (433 SE2d 331) (1993).

        Towles, supra at 196.

       191 Ga. App. 732 (382 SE2d 734) (1989).

       (Punctuation omitted.) Id. at 733.

       219 Ga. App. 453 (465 SE2d 447) (1995).

       Id. at 455 (1).

       268 Ga. 735 (493 SE2d 403) (1997).

       Id. at 748.

       We note that Briggs did not assert that it was entitled to summary judgment because it lacked knowledge of the danger or because West’s knowledge of the danger was superior. Accordingly, West was not required to present evidence on these issues in order to survive summary judgment, and we do not consider these issues on appeal. See Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995).


author: Blackburn, Presiding Judge.

text:
    A00A0631.
    BARRACO v. THE STATE.
    (537 SE2d 114)
   Blackburn, Presiding Judge.

Following a jury trial in which the evidence was submitted by stipulated fact, Michael Barraco appeals his conviction of misdemeanor possession of marijuana. Barraco contends the trial court erred in denying his motion to suppress evidence of marijuana found during a search of his person, following a traffic stop. Barraco, who was initially stopped because of a defective headlight, contends the inquiry which followed his accidental display of rolling papers during his search for his driver’s license exceeded the scope of the initial search. He also contends that the officer failed to give him required warnings under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), prior to searching him after he had told the officer that he used the rolling papers to smoke marijuana. We affirm.

An appellate court reviewing a trial court’s order on a motion to suppress evidence must accept the trial court’s decisions with regard to questions of fact and credibility unless they are clearly erroneous. The reviewing court must also construe the evidence most favorable to the upholding of the trial court’s findings and judgment and must not disturb the findings of the trial judge unless no evidence exists to support them.

(Citation omitted.) Parker v. State, 233 Ga. App. 616, 617 (504 SE2d 774) (1998).

The facts as presented at the hearing on the motion to suppress are not in dispute. The parties stipulated the facts at trial. On February 13, 1999, Officer Green observed a car with a malfunctioning right headlight on U. S. Highway 27 in Decatur County. Officer Green stopped the car which was driven by Barraco. After advising Barraco of the reason for the stop, Officer Green asked Barraco for his driver’s license and proof of insurance. Barraco pulled out his wallet, and a package of rolling papers fell out. At that point, Barraco appeared to become nervous and his hand trembled. Officer Green asked Barraco about the rolling papers, and Barraco replied he had them because he smoked marijuana. Officer Green then asked Barraco if he had any marijuana on him or in the car, and Barraco said he did not.

Officer Green asked Barraco if he could search him and the car. Barraco denied permission to search. Based on the rolling papers, the trembling of Barraco’s hand immediately upon the disclosure of the papers, his general nervousness, and his statement that he smoked marijuana and used the papers to do so, Officer Green told Barraco he was going to search him and the car. Officer Green asked Barraco to get out of the car. Then, as part of the general search, Officer Green asked Barraco to empty his pockets. After he did so, Officer Green observed a bulge still in Barraco’s pocket and asked him to remove the item from his pocket, which Barraco did. The item was a plastic sandwich bag containing marijuana.

1. Barraco argues that, while the initial stop for the burned-out headlight was valid, Officer Green’s inquiry about the rolling papers unreasonably exceeded the permissible scope of the stop. The law generally provides that

[a]n investigatory traffic stop [should be] limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop. Smith v. State, 216 Ga. App. 453, 454-455 (454 SE2d 635) [(1995)].

(Citations and punctuation omitted.) State v. Blair, 239 Ga. App. 340, 341 (521 SE2d 380) (1999).

Here, Barraco opened his wallet to locate his license, the rolling papers fell out, and Officer Green immediately asked about their use. Barraco admitted that he used the papers to smoke marijuana. It was this response, coupled with the totality of the circumstances, above described, which provided an articulable suspicion that a crime was being committed and justified further inquiry.

In contrast, we have held that an officer’s inquiry is unreasonable where the totality of the circumstances does not rise to such a level. For example, where the officer asks innumerable questions unrelated to the stop and which, almost inevitably, draw answers the officer finds “suspicious.” Migliore v. State of Ga., 240 Ga. App. 783 (525 SE2d 166) (1999) (after stopping car for weaving, officer received conflicting answers about the nature of the relationship of the passenger and driver and their itinerary); Blair, supra (after stopping car for lack of a tag, officer received conflicting explanations about purpose of journey and ownership of car).

Under the unique circumstances here, we cannot say that the trial court erred in holding that Officer Green’s further investigation did not exceed the permissible scope of the stop.

2. We now determine whether the totality of the circumstances and facts combined to establish probable cause to justify a search of Barraco and the vehicle. We note, however, that the trial court used the wrong legal standard to authorize the search.

The sole evidentiary basis for the search is provided by the arresting officer’s testimony that

when I asked him for his driver’s license and insurance, he pulled his wallet out and he was going through his wallet. And he pulled out a package of J & B rolling papers. And at the time he pulled the rolling papers out while he was looking for his license his hand started trembling. I asked him about the rolling papers and he stated he had them because he smoked marijuana. I asked him if he had any marijuana on him or in the vehicle. He stated he did not. He stated that he drove for Bennett Sea Food and he had gotten off and he was on his way home. He stated he didn’t smoke at work. I had 911 check his license. They came back valid. I asked him for consent to search him and the vehicle and he denied me consent. Based on him saying that he smoked marijuana, the rolling papers, and his hand starting to tremble, I went ahead and decided to conduct the search.

Thereafter, the State rested, and the prosecutor argued to the trial court that

[n]umber one, we all know an officer is entitled to search as part of any traffic stop without a warrant. Number two, even were that not so, this Officer has outlined the articulable suspicion necessary to effectuate the search in the nervousness in the presence of the J & B rolling papers indicative of marijuana use, as well as the trembling hands.

After hearing argument, the trial court determined that “I think there is an articulable suspicion assuming — And of course, I’m not having to rule on the truthfulness of that. But assuming that to be true, I think it meets the test.”

(a) The presence of “articulable suspicion” does not authorize the search of a person or vehicle under the Fourth Amendment. Probable cause is the constitutional standard. Accordingly, the trial court erred as a matter of law in denying Barraco’s motion to suppress on a standard other than probable cause.

(b) However, a trial court’s ruling on a motion to suppress will be upheld if it is right for any reason. Benton v. State, 240 Ga. App. 243, 244-245 (1) (522 SE2d 726) (1999). Here, while not precisely on point with the issue for which the United States Supreme Court granted certiorari, the factual pattern establishing probable cause is remarkably similar to that found in Wyoming v. Houghton, 526 U. S. 295 (119 SC 1297, 143 LE2d 408) (1999). In Houghton, an officer stopped a driver for speeding and driving with a faulty brake light. While questioning the driver, the officer noticed a syringe in his shirt pocket. “The officer then asked [the driver] why he had a syringe; with refreshing candor, [the driver] replied that he used it to take drugs.” Id. at 298. The existence of probable cause went uncontested, and citing Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543) (1925), the Supreme Court recognized such as the starting point for its analysis. Houghton, supra at 300.

In the case before us, Officer Green stopped Barraco for a defective headlight. At the initial stage of the investigation, Officer Green properly sought information about Barraco’s driver’s license and automobile insurance. While retrieving his license, Barraco unintentionally disclosed the rolling papers and advised that he used them to smoke marijuana as opposed to some legal purpose. It was at this time that he became nervous and his hand trembled. All these facts were stipulated at trial. Nervous behavior standing alone does not establish reasonable suspicion and does not rise to the level of probable cause. Parker, supra. Even when other factors are present, nervous behavior of a person who has been stopped by an armed law enforcement officer is not an unusual response and is not necessarily strong evidence to support either reasonable suspicion or probable cause. Likewise, the rolling papers standing alone would not support the search. L. B. B. v. State of Ga., 129 Ga. App. 163 (198 SE2d 895) (1973). Here we must look to the totality of the circumstances. All these facts arose as Officer Green was attempting to investigate the initial cause for the stop. The disclosure of the rolling papers was gratuitous and not the result of any inquiry by Officer Green. The inquiry into the use of the rolling papers which are often used in connection with illegal activity was not unreasonable and resulted from the conduct of Barraco.

Construing the evidence most favorably to the trial court’s judgment, “the facts and circumstances before Officer [Green] were such as would lead a reasonably prudent person to believe that contraband . . . was present.” Brown v. State, 269 Ga. 830, 833 (504 SE2d 433) (1998). We cannot say that the trial court erred in determining that probable cause existed for the search and in denying Barraco’s motion to suppress the evidence.

Decided July 7, 2000

Gilbert J. Murrah, for appellant.

Ben Kirbo, Solicitor, for appellee.

Barraco erroneously contends that, following his disclosure that he used the rolling papers to smoke marijuana, Officer Green failed to give him Miranda warnings before inquiring further about his possession of marijuana. At that time, Officer Green was conducting an investigation to determine whether or not Barraco was. presently in possession of marijuana, which he had denied, and had made no conclusion as to that fact. Such condition does not trigger the requirement for Miranda warnings. We affirm.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       This is an incorrect statement of the law. A traffic stop in and of itself does not supply probable cause so as to “entitle” an officer to search without a warrant.

       Probable cause exists when the facts and circumstances before the officer are such as would lead a reasonably discreet and prudent person to believe that a crime has been committed and that the person or property to be searched possesses or contains material which offends the law. Probable cause requires merely a probability — less than a certainty, but more than a mere suspicion or possibility of such condition. Brown v. State, 269 Ga. 830, 831 (2) (504 SE2d 443) (1998).


text:
    A00A0773.
    SHEALY et al. v. UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY.
    (537 SE2d 105)
   Ruffin, Judge.

On January 15, 1999, J. Kenneth Shealy and Shealy Family Partnership (collectively “plaintiffs”) sued the Unified Government of Athens-Clarke County (“Athens-Clarke County”) in superior court, alleging that toxic and/or hazardous substances had escaped from a landfill operated by Athens-Clarke County and contaminated certain property owned by the plaintiffs. The complaint sought damages for nuisance, trespass, and inverse condemnation arising out of such contamination. In addition, the complaint sought injunctive relief to prevent Athens-Clarke County from instituting condemnation proceedings with respect to the property. The trial court subsequently held that the plaintiffs’ claims became moot when the property was later condemned. On appeal, the plaintiffs contend that the trial court erred in holding that their claims for damages were rendered moot by the condemnation. For reasons discussed below, we reverse.

At the time the plaintiffs filed their complaint, Athens-Clarke County had already initiated two separate condemnation proceedings in superior court, although the plaintiffs had not yet been served and were apparently unaware of such actions. Athens-Clarke County sought to condemn the property and acquire fee simple ownership in order to facilitate environmental remediation efforts. A hearing in these two condemnation cases was held before a special master on February 8, 1999, and the special master entered awards in the two cases on February 10, 1999. The plaintiffs filed nonvalue exceptions to these awards, asserting that the condemnation was improper, and the cases were transferred to the superior court to consider these exceptions.

On February 19, 1999, Athens-Clarke County filed an answer to the plaintiffs’ complaint in this case, asserting, among other things, that their claim for injunctive relief was moot because condemnation proceedings had already been instituted and the special master had entered awards in such proceedings. On April 2, 1999, the superior court held a hearing to consider the plaintiffs’ exceptions to the condemnation awards, as well as their claim for injunctive relief and Athens-Clarke County’s motion to dismiss that claim. With respect to the condemnation proceedings, the plaintiffs asserted that the proposed condemnation was not reasonably necessary for any valid public purpose, that it resulted in the taking of more land than was reasonably necessary, and that.it resulted in the taking of a greater interest in the land than was reasonably necessary. With respect to their request for an injunction, the plaintiffs’ attorney conceded that the court obviously could not enjoin the special master hearing that had already occurred. On June 4, 1999, the superior court entered a written order approving the condemnation of the subject property. Without further comment, the court also stated that “[t]he claims asserted by Plaintiffs in Civil Action No. SU-99-0086-S are hereby rendered MOOT by this Court’s decision.”

Although Athens-Clarke County’s motion to dismiss addressed only the plaintiffs’ claim for injunctive relief, the language of the court’s order appears to address all claims asserted by the plaintiffs. As the Supreme Court has noted, “if the thing sought to be enjoined in fact takes place, the grant or denial of the injunction becomes moot.” Thus, the plaintiffs do not contest the trial court’s holding that their claim for injunctive relief was rendered moot by the condemnation proceedings. However, neither the trial court nor Athens-Clarke County cites any authority for the proposition that a trial court may dismiss a claim for damages on the grounds of “mootness,” nor do they state what it means to say that such a claim is “moot.” Although the doctrines of res judicata and collateral estoppel may preclude relitigation of matters already litigated, those are affirmative defenses that must be pleaded and proved. Because Athens-Clarke County did not raise such defenses, and the trial court did not purport to rely on them, we do not construe the court’s order as being based on either of these defenses. Rather, it appears that the trial court simply concluded that the issues presented in the plaintiffs’ complaint must necessarily have been the same as those presented in the condemnation actions and that the resolution of the condemnation proceedings must therefore have left nothing to decide in the plaintiffs’ lawsuit.

The plaintiffs argue that their claims for nuisance, trespass, and inverse condemnation were not in fact rendered moot by the condemnation awards because the types of damages sought were not recoverable in the condemnation proceedings. We agree.

In a condemnation proceeding, the condemnee is entitled to recover two types of damages: (1) the market value of the property actually taken, and (2) any consequential damage to the remainder of the owner’s property caused by the taking. The value of the property is to be determined as of the date of taking. In a formal condemnation case, where the condemnor files condemnation proceedings prior to the taking, the “date of taking” has been held to be the date on which compensation is tendered or paid to the landowner. A jury cannot consider the value of the property at a time prior to the actual time of taking. In determining the market value of the property as of the date of taking, the “general environmental condition of the condemned property,” including the need for remediation, is a relevant factor. Losses occurring prior to the date of taking are not compensable in a condemnation proceeding. In particular, losses resulting from a previous taking, even by the same condemnor, are not recoverable in a condemnation proceeding, since “fs]uch damages are not a consequence of the instant taking.” Such damages must be recovered in “an independent suit for damages, and may not be raised in the current condemnation proceedings.”

In the two condemnation cases filed by Athens-Clarke County, the “taking” at issue was the taking of fee simple title to the property. It does not appear that compensation was tendered before the special master hearing. Thus, the “date of taking” could not have been before that time, and “the only question for decision [was] the value of property ... at the time of taking .” If the value of the property had already been reduced by the contamination from the landfill, then the value of the property for condemnation purposes would have been the reduced market value, not the market value before the contamination occurred. Any diminution in value would represent a loss occurring as a result of a previous taking, which is not compensable in the condemnation proceeding.

The plaintiffs’ claim for inverse condemnation is separate from Athens-Clarke County’s action to condemn fee simple title. An inverse condemnation claim arises when the governmental entity “creates a condition on private property, such as a nuisance, that amounts to ... a taking without compensation.” The measure of damages in an inverse condemnation action is “[t]he actual depreciation in market value of the premises resulting from the taking and the effect upon the property.” Such damages are intended to be “a substitute for the damages recoverable in a condemnation proceeding.” In essence, therefore, an inverse condemnation proceeding is an action by the landowner to recover compensation for an injury to the property that has already occurred.

In their inverse condemnation claim, the plaintiffs alleged that their property had been damaged by the contamination from Athens-Clarke County’s landfill and that such damage amounted to a taking of their property for public purposes without just and adequate compensation. Accepting the allegations of the complaint as true, any such damage would have occurred before the date of the taking in the two condemnation actions filed by Athens-Clarke County. Thus, the measure of damages recoverable in the inverse condemnation proceeding would be the reduction in market value of the property caused by the contamination. As discussed above, such damages would not be recoverable in the formal condemnation proceedings initiated by Athens-Clarke County.

The fact that title to the property passed to Athens-Clarke County upon the condemnation does not deprive the plaintiffs of the ability to proceed with their inverse condemnation claim. The general rule, as stated in CJS, is that

[d] amages for the taking of land or for the injury to land not taken belong to the one who owns the land at the time of the taking or injury, and they do not pass to a subsequent grantee of the land, except by a provision to that effect in the deed or by separate assignment. . . .

“[W]here property is taken or injured under the exercise of the power of eminent domain, the owner thereof at the time of the taking or injury is the proper person to initiate proceedings or sue therefor.” CJS cites a Georgia case, Green v. South Bound R. Co., for the proposition that “the right of action is in the grantor alone, notwithstanding the entry was without his consent and without condemnation.”

The general rule is also stated by another authority as follows:

If a parcel of land is sold after a portion of it has been taken (or after it has been injuriously affected by the construction of some authorized public work), the right to compensation, constitutional or statutory, does not run with the land but remains a personal claim in the hands of the vendor, unless it has been assigned by special assignment or by a provision in the deed.

In Brooks Investment Co. v. City of Bloomington, the Minnesota Supreme Court discussed the “simple and logical” rationale behind the rule:

When the government interferes with a person’s right to possession and enjoyment of his property to such an extent so as to create a “taking” in the constitutional sense, a right to compensation vests in the person owning the property at the time of such interference. This right has the status of property, is personal to the owner, and does not run with the land if he should subsequently transfer it without an assignment of such right. The theory is that where the government interferes with a person’s property to such a substantial extent, the owner has lost a part of his interest in the real property. Substituted for the property loss is the right to compensation. When the original owner conveys what remains of the realty, he does not transfer the right to compensation for the portion he has lost without a separate assignment of such right. If the rule were otherwise, the original owner of damaged property would suffer a loss and the purchaser of that property would receive a windfall. Presumably, the purchaser will pay the seller only for the real property interest that the seller possesses at the time of the sale and can transfer.

The same analysis should apply whether the subsequent transfer of property is achieved through a voluntary sale or through a formal condemnation instituted after the property has been damaged. The compensation available in such condémnation proceeding is the market value of the property as of the date of the taking, not the market value before the previous taking. As we have previously noted,

[t] hough the law generally favors the prevention of a multiplicity of actions, it appears that condemnation law in Georgia rather strictly limits the relevant evidence in condemnation cases and therefore separate suits for different kinds of damages are not uncommon.

Because the damages recoverable in the two actions were different, the trial court erred in concluding that the inverse condemnation claim was rendered “moot” by the subsequent condemnation of the fee simple title.

Although the plaintiffs also asserted claims for nuisance and trespass, these are in effect duplicative of the inverse condemnation claim. All three claims are based on the exact occurrence — i.e., “[t]he escape of toxic and/or hazardous substances from the site of the Landfill and the consequent contamination, of Plaintiffs’ water and soil.” OCGA § 36-1-4 states that “[a] county is not liable to suit for any cause of action unless made so by statute.” The Supreme Court has held, however, that “the constitutional prohibition against the taking of property without just compensation falls within this exception.” Thus, “[a] county may be liable for damages . . . if it creates a condition on private property, such as a nuisance, that amounts to inverse condemnation or a taking without compensation.” The damages available are limited to those recoverable in a condemnation proceeding. Regardless of how the various claims are denominated, therefore, the plaintiffs may recover if and only if the contamination amounted to the taking of property without just compensation, and the measure of damages, is the same as for the inverse condemnation claim. Accordingly, although the claims may be duplicative, none of them is subject to dismissal on the grounds of mootness.

Decided July 7, 2000.

Vaughn, Wright & Sterns, Frederick L. Wright II, Hudson, Montgomery & Kalivoda, James E. Hudson, for appellants.

Ellen W. Hight, Ernest De Pdscale, Jr., for appellee.

Judgment reversed.

Andrews, P. J, and Ellington, J., concur.

        Adams v. Smith, 240 Ga. 436, 437 (241 SE2d 1) (1978).

       See OCGA § 9-11-8 (b); McDade v. McDade, 263 Ga. 456 (1) (435 SE2d 24) (1993); Glen Oak, Inc. v. Henderson, 258 Ga. 455, 459 (2) (a) (369 SE2d 736) (1988).

       The plaintiffs do not argue generally that it is inappropriate to dismiss a claim for damages on mootness grounds.

        Flo-Rob, Inc. v. Colonial Pipeline Co., 170 Ga. App. 650, 651 (317 SE2d 885) (1984).

        Hulsey v. Dept. of Transp., 230 Ga. App. 763, 765 (2) (498 SE2d 122) (1998).

       See id.

        Will-Ed Enterprises v. MARTA, 139 Ga. App. 829 (229 SE2d 763) (1976).

        Stafford v. Bryan County Bd. of Ed., 219 Ga. App. 750, 752 (3) (466 SE2d 637) (1995), rev’d on other grounds, 267 Ga. 274 (476 SE2d 727) (1996).

        Hulsey, supra; Acree Oil Co. v. Dept. of Transp., 216 Ga. App. 586, 588 (455 SE2d 590) (1994), rev’d on other grounds, Dept. of Transp. v. Acree Oil Co., 266 Ga. 336 (467 SE2d 319) (1996).

        Flo-Rob, supra at 651.

       Id.

       (Punctuation omitted; emphasis in original.) Acree Oil Co., supra at 588.

        Butler v. Gwinnett County, 223 Ga. App. 703, 705 (2) (479 SE2d 11) (1996).

       (Punctuation omitted.) Dept. of Transp. v. Edwards, 267 Ga. 733, 737 (1) (b) (482 SE2d 260) (1997).

       Id.

       (Footnotes omitted.) 29A CJS, Eminent Domain, § 194, p. 469.

       Id. at § 383, p. 757.

       112 Ga. 849 (38 SE 81) (1901). In Green, the Supreme Court held that, where a railroad enters into actual possession of land without the owner’s consent, a subsequent purchaser takes the land “subject to the burden of the railroad, and has no right of action against the company for the value of the land so appropriated.” Id. at 850.

       29A CJS, Eminent Domain, § 194, p. 470.

       2 Nichols, Eminent Domain (3rd ed. rev.), § 5.21, quoted in Brooks Investment Co. v. City of Bloomington, 305 Minn. 305, 314 (232 NW2d 911) (1975).

       Id. at 315-316.

       (Punctuation, omitted.) Flo-Rob, supra at 652 (holding that claim for inverse condemnation could not be asserted as counterclaim in direct condemnation action).

       See also Swan v. Johnson, 219 Ga. App. 450, 452 (3) (465 SE2d 684) (1995) (holding that Athens-Clarke County was entitled to sovereign immunity).

        Duffield v. DeKalb County, 242 Ga. 432, 435 (2) (249 SE2d 235) (1978).

       Butler, supra. See also DeKalb County v. Orwig, 261 Ga. 137, 138 (1) (402 SE2d 513) (1991).

       Id.

       Although they may be duplicative of the inverse condemnation claim, the nuisance and trespass claims are not subject to dismissal on the basis of sovereign immunity, as Athens-Clarke County asserts, since it may be liable if the alleged wrongful conduct rose to the level of a taking of property.


author: Ruefin, Judge.

text:
    A00A0823.
    OGLETHORPE POWER CORPORATION v. HARTWELL ENERGY LIMITED PARTNERSHIP.
    (537 SE2d 372)
   Ruefin, Judge.

Hartwell Energy Limited Partnership (the Partnership) sued Oglethorpe Power Corporation, seeking a declaratory judgment that a certain stock transfer did not trigger Oglethorpe’s right of first refusal under an agreement between the parties. The trial court granted summary judgment to the Partnership, and Oglethorpe appeals. For reasons discussed below, we affirm.

The essential facts in this case are undisputed. In June 1992, Oglethorpe and the Partnership entered into a long-term agreement (the Agreement), under which Oglethorpe agreed to purchase electric power generated from the Partnership’s production facility in Hart County. At the time the, Agreement was executed, the Partnership had one general partner and one limited partner, both of which were ultimately controlled by Transco Energy Company through a chain of subsidiary companies. The Agreement stated that “[t]he continued control of [the Partnership] by Transco Energy is a material factor in Oglethorpe Power’s willingness to assume certain risks attendant to this Agreement,” and prohibited Transco Energy or its affiliates from selling their interests in the Partnership without Oglethorpe’s consent. The Agreement also gave Oglethorpe a right of first refusal in the event that the Partnership or one of its “Affiliates” desired to sell a “Transfer Interest,” as such terms were defined in the Agreement.

In two subsequent transactions, with Oglethorpe’s consent, Transco Energy sold fifty percent of its interest in the Partnership to Destec Energy, Inc. and the remaining fifty percent of its interest to another entity. Following these transactions, Destec indirectly controlled fifty percent of the partnership interests through two wholly owned subsidiaries: Hartwell Independent Power Partners, Inc., which owned a one percent general partnership interest in the Partnership, and Hart County, IPP, Inc., which owned a forty-nine percent limited partnership interest. The remaining fifty percent of the partnership interests was controlled by a British company, National Power, LLC,' one of whose subsidiaries owned a one percent general partnership interest and another of whose subsidiaries owned a forty-nine percent limited partnership interest.

Destec was a publicly traded company, 80 percent of whose shares were owned by The Dow Chemical Company. Destec in turn had dozens of subsidiaries through which it controlled power plants throughout the United States, including the two subsidiaries that together owned fifty percent of the Partnership.

In June 1997, Dow entered into an agreement to sell its 80 percent interest in Destec to NGC Corporation. Pursuant to this agreement, a special purpose subsidiary, NGC Acquisition Corporation II, was created, which then merged with Destec. The surviving entity was also called Destec Energy, Inc. and was wholly owned by NGC Corporation. Thus, following the merger, NGC Corporation indirectly controlled 50 percent of the partnership interests in the Partnership. Oglethorpe contends that the sale of Dow’s 80 percent interest in Destec to NGC Corporation triggered Oglethorpe’s right of first refusal under the Agreement.

Interpreting the right of first refusal agreement requires sorting through several cross-referenced contract provisions and definitions. The right of first refusal is set forth in Section 13.3 of the Agreement, which gives Oglethorpe a right of first refusal to purchase any “Transfer Interest” under certain conditions that follow. Section 13.3.1 states that

[i]f [the Partnership] or any of its Affiliates ever desires to dispose of its or their right, title, or interest in a Transfer Interest, or receives an offer to purchase a Transfer Interest, which offer the transferring party is prepared to accept, [the Partnership] shall give notice thereof to Oglethorpe.

For a period of 180 days after receipt of the notice, Oglethorpe “shall have the right to exercise its right of first refusal on the same terms and conditions as provided in [the Partnership]’s notice.”

The term “Transfer Interest” is defined as either an “Asset Transfer Interest” or an “Equity Transfer Interest.” The definition of “Asset Transfer Interest” is not relevant in this case. An “Equity Transfer Interest” is defined as

any sale, transfer or other disposition by any General Partner of its general partnership interest or any part thereof that would result in its holdings after such sale being less than fifty percent (50%) of the total general partnership interests in [the Partnership] or by any Shareholder of any voting stock in the General Partner that would result in such Shareholder holding less than fifty percent (50%) of the outstanding voting stock in such General Partner; provided, however, that upon any sale, transfer or other disposition of stock in a General Partner that results in Affiliates of Transco Energy holding no more than fifty percent (50%) of the outstanding voting shares of the General Partner, any subsequent sale, transfer or other disposition of a general partnership interest in [the Partnership] shall also be an Equity Transfer Interest. Likewise, upon any sale, transfer or other disposition of a general partnership interest in [the Partnership] that results in Affiliates of Transco Energy holding no more than fifty percent (50%) of the outstanding voting shares of the General Partner, any subsequent sale, transfer or other disposition of voting shares of a General Partner shall also be an Equity Transfer Interest.

In order to trigger the right of first refusal, therefore, the proposed sale, transfer, or other disposition must satisfy at least two conditions: (1) it must be a disposition by the Partnership or one of its Affiliates, and (2) it must be a disposition of the Partnership’s or Affiliate’s right, title, or interest in a Transfer Interest. The term “Affiliate” is defined as

any other entity directly or indirectly controlling or controlled by or under direct or indirect common control with such specified entity. For purposes of this definition, “control” when used with respect to any specified entity means the power to direct the management and policies of such entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “control” have meanings correlative to the foregoing.

Because the disposition allegedly triggering the right of first refusal was the sale by Dow of its stock in Destec, we must first determine whether Dow was an “Affiliate” of the Partnership. If it was not an Affiliate, then it is immaterial whether the transfer constituted an Equity Transfer Interest. To qualify as an Affiliate, Dow must directly or indirectly have had “the power to direct the management and policies of” the Partnership. At the time of the transfer, Dow indirectly controlled at most 50 percent of the partnership interests through its majority ownership of Destec. Thus, Dow did not, even indirectly, have a majority ownership position in the Partnership. Indeed, as Oglethorpe admits, the initial sale by Transco Energy of a 50 percent interest to Destec was specifically intended to leave neither company in control of the Partnership for accounting purposes, thus allowing both companies to avoid including the Partnership’s liabilities on their balance sheets.

The partnership agreement vests the “management and control of Partnership affairs and business” in a four-member management committee, two members of which are appointed by each general partner. The consent of all four members is required “for any act or decision of the Management Committee.” Except as specifically authorized by the management committee or the partnership agreement, “no General Partner shall transact any business of the Partnership or have any power to sign for or bind the Partnership.” Thus, it is apparent that Dow did not, by virtue of its indirect control of 50 percent of the limited and general partnership interests, have the “power to direct the management and policies” of the Partnership. Oglethorpe does not point to any evidence showing that Dow had such power and does not even assert in its appellate brief that Dow had such power. Indeed, Jeffrey Stair, one of Oglethorpe’s designated representatives pursuant to OCGA § 9-11-30 (b) (6), testified that “none of those four entities there[, i.e., the Partnership’s two general partners and two limited partners,] would have the ability to control; therefore, they wouldn’t be affiliates.”

Although it does not claim that Dow had the power to direct the management and policies of the Partnership, Oglethorpe argues that it should nevertheless be considered an Affiliate because otherwise, “the Partnership would have no Affiliates after the 50% swap[, i.e., Destec’s purchase of a 50 percent interest from Transco Energy,] was made.” This argument misses the point. The intent of the parties is to be determined at the time the contract was made, and the Agreement was entered into well before Transco Energy, with Oglethorpe’s consent, sold a 50 percent interest to Destec. At the time the Agreement was entered into, there were clearly entities that fit the very specific definition of “Affiliate” set forth in the Agreement, so it cannot be said that the term was without meaning at that time. The fact that, as a result of subsequent transactions, the Partnership was left with no such Affiliates says nothing about the parties’ intent at the time the contract was made.

Unless a contract is ambiguous, and the ambiguity cannot be resolved by application of the rules of construction, contract construction is a matter for the court. “Ambiguity in a contract may be defined as duplicity, indistinctness, an uncertainty of meaning or expression.” “If the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties.” The parties in this case were very specific in their definition of “Affiliate” and in their limitation of the right of first refusal to sales by the Partnership itself or by one of its Affiliates. Because Dow did not have the “power to direct the management and policies of” the Partnership, it was not an Affiliate and its sale of stock in its subsidiary did not trigger the right of first refusal. Accordingly, the trial court properly granted summary judgment to the Partnership and denied summary judgment to Oglethorpe.

Judgment affirmed.

Andrews, P. J, and Ellington, J, concur.

Decided July 7, 2000.

Autry & Horton, Kenneth T. Horton, Jr., for appellant.

Alston & Bird, William H. Hughes, Jr., for appellee.

       The Partnership also asserted claims for injunctive relief and attorney fees, but the trial court did not address those claims in its order.

       This ownership structure is illustrated in an attached chart, which Oglethorpe prepared and the Partnership acknowledged was correct.

       In addition to acquiring Dow’s interest in Destec, NGC Corporation apparently purchased the remaining 20 percent of Destec’s stock from the various other shareholders.

       The post-merger ownership structure is illustrated in an attached chart, which was also prepared by Oglethorpe and acknowledged by the Partnership.

       The Agreement’s use of cross-referencing creates some confusion. Although Section 13.3, the first refusal provision, states that the “Transfer Interest” is the item being sold or disposed of, the term “Transfer Interest” is defined elsewhere as the sale itself. Thus, read literally, the right of first refusal is triggered by the sale of an interest in the sale of an interest in the Partnership.

        See AFLAC, Inc. v. Williams, 264 Ga. 351, 354, n. 5 (444 SE2d 314) (1994); Dooley v. Dun & Bradstreet Software Svcs., 225 Ga. App. 63, 65 (1) (483 SE2d 308) (1997).

       See Sagon Motorhomes v. Southtrust Bank of Ga., N.A., 225 Ga. App. 348, 349 (484 SE2d 21) (1997).

        Travelers Indem. Co. v. A. M. Pullen & Co., 161 Ga. App. 784, 789 (6) (289 SE2d 792) (1982).

        Bd. of Regents &c. of Ga. v. A. B. & E., Inc., 182 Ga. App. 671, 673 (357 SE2d 100) (1987).