author: Carley, Presiding Judge.

text:
    A92A1572.
    PARK LEASING COMPANY v. TWS, INC. et al.
    (426 SE2d 620)
   Carley, Presiding Judge.

A simplified statement of the relevant facts is as follows: Appellant-plaintiff is in the business of leasing Maytag laundry equipment. The Richard Company is in the business of distributing Maytag laundry equipment. After negotiations with The Richard Company, appellee-defendant entered into a lease of commercial Maytag laundry equipment from appellant. Appellee then opened and began to operate a laundry, but it eventually defaulted on its lease and the equipment was repossessed by appellant. Appellant brought suit for breach of the lease and appellee counterclaimed, alleging alternative claims for fraud and violations of both the Sale of Business Opportunities Act (SBOA) and the Fair Business Practices Act (FBPA). The case was tried before a jury and special verdicts were returned in favor of appellee as to appellant’s main claim and appellee’s counterclaims. Appellant appeals from the judgments entered by the trial court on the jury’s verdicts.

1. Appellant enumerates as error the denial of its motion for a directed verdict as to appellee’s counterclaim for violation of the SBOA.

OCGA § 10-1-410 (10) defines “seller” as “any person who offers to sell to individuals any business opportunity, either directly or through any agent.” (Emphasis supplied.) Appellant first urges that it cannot be a “seller” under this definition because appellee is a corporation and not an “individual.” However, the term “individual” “may, in proper cases, include artificial persons.” Black’s Law Dictionary (5th ed. 1979). Reading OCGA § 10-1-410 (10) in pari materia with the other applicable definitions of the SBOA, it is clear that a “seller” includes one who offers to sell to a real or an artificial person. “ ‘Purchaser’ means any person who is solicited to become obligated, or does become obligated, under any agreement.” (Emphasis supplied.) OCGA § 10-1-410 (9). “ ‘Person’ means . . . any corporation. . . .” (Emphasis supplied.) OCGA § 10-1-410 (8). Accordingly, the fact that appellee is a corporation would not preclude a finding that appellant is a “seller” as defined in OCGA § 10-1-410 (10).

Appellant further urges that, even if appellee is an “individual,” the lease of commercial laundry equipment to appellee would not constitute a “business opportunity.” However, former OCGA § 10-1-410 (2) (A) (iii) (Ga. L. 1988, pp. 1868, 1870), which is applicable.here, provided, in relevant part: “ ‘Business opportunity’ means the sale or lease of, or offer to sell or lease, any products, equipment, supplies, or services for the purpose of enabling the purchaser to start a business and in which the seller or company represents . . . [t]hat, in conjunction with any agreement which requires a total initial payment of an amount exceeding $500.00, the purchaser may or will derive income from the business opportunity which exceeds the initial payment for the business opportunity. ...” There was evidence that, in negotiating the lease of the commercial laundry equipment, The Richard Company had made such a representation to appellee regarding the income to be derived from opening a laundry.

Appellant urges that The Richard Company was not its agent. A review of the record shows, however, that there was sufficient evidence of The Richard Company’s agency to withstand appellant’s motion for directed verdict. Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883, 884 (1) (354 SE2d 210) (1987). As The Richard Company’s principal, appellant would be bound by the representation. OCGA § 10-6-56. That representation would serve to show that appellant’s lease of commercial laundry equipment to appellee was a “business opportunity” within the meaning of former OCGA § 10-1-410 (2) (A) (iii). Hornsby v. Phillips, 190 Ga. App. 335, 338 (2) (378 SE2d 870) (1989).

Insofar as violation of the SBOA is concerned, it was stipulated that neither appellant nor The Richard Company had complied with the registration requirements of SBOA. There was also evidence that the disclosures required by the SBOA had not been made to appellee. Accordingly, “within one year of the date of contract, upon written notice to [appellant], [appellee] may void the contract and shall be entitled to receive from [appellant] all sums paid to [appellant].” OCGA § 10-1-417 (a). There was evidence of written notice to appellant. Appellant did not deny receipt of this notice and it was for the jury to determine whether the notice had, in fact, been received by appellant. Parnell v. Etowah Bank, 144 Ga. App. 794, 796 (1) (242 SE2d 487) (1978). It follows, therefore, that the question of whether, pursuant to OCGA § 10-1-417 (a), appellee was authorized to void the lease and to recover from appellant all sums paid thereunder was properly submitted to the jury.

Insofar as the merits of appellee’s recovery under OCGA § 10-1-399 as a remedy for violation of the SBOA is concerned, appellant’s reliance upon Zeeman v. Black, 156 Ga. App. 82 (273 SE2d 910) (1980) is misplaced. Appellant’s failure to comply with the registration requirements of the SBOA or to make the requisite disclosures mandated by the SBOA would not constitute a misrepresentation made to appellee. Moreover, unlike Zeeman v. Black, supra, wherein the misrepresented quantum of land was a matter of public record, appellee’s lack of diligence in ascertaining the falsity of any misrepresentations made to it by The Richard Company does not appear as a matter of law. “ ‘ “Ordinarily the question whether the complaining party could have ascertained the falsity of the representations by proper diligence is for determination by the jury.” (Cit.)’ [Cit.]” Zeeman v. Black, supra at 87.

The record demonstrates that, pursuant to OCGA § 10-1-399 (b), appellee made a timely “written demand for relief, identifying [itself] and reasonably describing the [violations of the SBOA as the] unfair or deceptive act or practice relied upon and the injury suffered. . . .” (Emphasis supplied.) If appellant had been of the opinion that the relief demanded therein was too great or that the description therein of the injury suffered was unreasonable, it could have made a written tender of settlement which, if rejected, would have served to limit appellee’s recovery at trial if appellant’s tender proved to be “reasonable in relation to the injury actually suffered by [appellee].” (Emphasis supplied.) OCGA § 10-1-399 (b). Appellant made no tender whatsoever. Accordingly, appellee was entitled to recover the actual damages proved at trial and was not limited to a recovery of the amount of any non-existent pre-trial tender by appellant.

Appellant’s contention that it was entitled to a directed verdict because it did not receive the notice contemplated by OCGA § 10-1-399 (b) is without merit. Parnell v. Etowah Bank, supra.

Appellant does not contend that the evidence would not authorize a finding that its violation of the SBOA was intentional and that, pursuant to OCGA § 10-1-399, a trebling of appellee’s actual damages and appellee’s recovery of exemplary damages and attorney’s fees would not, therefore, be authorized. It follows that the trial court correctly denied appellant’s motion for a directed verdict as to appellee’s recovery pursuant to OCGA § 10-1-399 as a remedy for the violation of the SBOA.

2. Appellant’s enumerations of error as to several evidentiary rulings have been considered and found to be without merit.

3. Appellant enumerates as error the denial of its motion for a directed verdict as to appellee’s alternative counterclaims for fraud and violation of the FBPA. In the jury’s special verdicts, however, no damages were awarded under those alternative counterclaims which were not otherwise awarded under the counterclaim for appellant’s violation of the SBOA. Since we have found no reversible error in the denial of appellant’s motion for a directed verdict as to appellee’s counterclaim for violation of the SBOA and no reversible error as to the trial court’s evidentiary rulings, it follows that error, if any, in the denial of appellant’s motion for a directed verdict as to appellee’s alternative counterclaims would be harmless. Compare Georgia Power Co. v. Busbin, 242 Ga. 612, 616 (8) (250 SE2d 442) (1978). Any reversal of the denial of appellant’s motion for a directed verdict as to those alternative counterclaims would not affect the validity of the judgment entered on the jury’s verdict as to appellee’s counterclaim for appellant’s violation of the SBOA.

4. Appellant enumerates as error the denial of its motion for a directed verdict as to its main claim for appellee’s violation of the lease. Appellant’s sole contention is that, by failing to rescind the lease promptly pursuant to OCGA § 13-4-60, appellee waived any defense predicated upon fraud in the inducement.

Pretermitting rescission for fraud pursuant to OCGA § 13-4-60, OCGA § 10-1-417 (a) provides that, in the case of a violation of the SBOA, “within one year of the date of the contract, upon written notice to the seller, the purchaser or participant may void the contract and shall be entitled to receive from the seller all sums paid to the seller.” (Emphasis supplied.) As held in Division 1, the evidence in the instant case authorized a finding that appellant violated the SBOA and that appellee provided timely written notice thereof. It follows, therefore, that the trial court did not err in denying appellant’s motion for a directed verdict on its main claim on the ground that appellee had not also attempted to void the lease pursuant to OCGA § 13-4-60.

Judgment affirmed.

Pope and Johnson, JJ., concur.

Decided December 2, 1992 —

Reconsideration denied December 17, 1992

Thompson, O’Brien, Kemp & Nasuti, William M. Coolidge III, Cashin, Morton & Mullins, Richard W. Gerakitis, John C. Clark, for appellant.

Stanley G. Jackson, for appellees.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A92A1635.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al. v. FUNK et al.
    (426 SE2d 623)
   Beasley, Judge.

Following a jury verdict and judgment in favor of condemnee Dr. Sidney A. Funk, condemnors Fulton County and Metropolitan Atlanta Rapid Transit Authority (MARTA) appeal.

1. The appeal is not rendered moot under OCGA § 5-6-48 (b) (3) by the condemnors’ payment into the registry of the court the difference between the amount originally paid in and the amount of the judgment. See Clayton County Water Auth. v. Harbin, 192 Ga. App. 257 (1) (384 SE2d 453) (1989). Appellee Funk’s motion to dismiss the appeal is denied.

2. The case involves the condemnation of a medical office condominium owned by Dr. Funk and leased by him to Sidney A. Funk, M.D., P.C., the professional corporation through which Dr. Funk practiced. The property, located in the vicinity of three hospitals, was condemned for the extension of a rapid rail line.

The issues at trial were (1) the amount of just and adequate compensation to be paid for the property, and (2) the amount of compensation, if any, to be paid for relocation expenses. At issue on appeal are three jury instructions.

Several witnesses testified as to the fair market value of the property. The experts for MARTA gave a range of $219,445 and $227,500; the condemnees and their experts placed the value of the property between $243,000 and $440,000.

Dr. Funk moved his practice to a space that was almost twice that of the condemned space. Although his professional corporation’s rent at the condemned property was $17.50 per square foot per year, the rent at the new location was $21.50 per square foot per year. In addition to $70,850 of improvements paid for by the landlord, Funk testified to relocation and renovation costs which exceeded $100,000: $64,000 to build out the new space; $7,036 for equipment and installation of a new telephone system; $235 for wiring; $6,783.72 for new furniture; $1,501.55 for stationery; $310 for stereo wiring; $15,000 for Funk’s personal time associated with the move; $2,000 for artwork; $872.05 for moving expenses; and $3,213 in decorator’s fees. On MARTA’s objection, the condemnees withdrew evidence of the cost of new furniture, resulting in condemnees asking the jury for $94,441 in relocation costs. The lump sum of $310,000 was awarded for the property and relocation expenses, without allocation.

(a) MARTA and Fulton County point to error in charging the jury that it could award condemnees relocation expenses without instructing the jury that it must first find that the property was unique under one of the three uniqueness tests authorized by Georgia law.

Appellants objected to the trial court’s failure to charge that condemnees could not recover relocation expenses unless they proved that the property involved was unique. They also objected to the court’s modification of their request to charge that if the jury found the property to be unique, it could then award reasonable relocation expenses.

The court instructed the jury that fair market value normally was the measure for determining the value of the acquired property and that it might not consider any unique or peculiar value of the property to the owner as a yardstick for measuring the property value unless the evidence showed that the unique or peculiar value to the owner was not the same as the fair market value. The court then instructed the jury on three alternate theories for determining whether property is unique and that it could award “compensation for those relocation expenses that were reasonably necessary for the condemnee to relocate to another site.” The court continued: “You may not award compensation nor any relocation expenses that you find to be unreasonable or unnecessary to place the owner back into substantially the same monetary condition that he was in prior to the taking. In other words, defendant seeks to recover here certain expenses for relocation. You will have to look at the circumstances here and see how much it will cost him to relocate and be in substántially the same position he was in prior to the taking of his property. Obviously, if you give him more than that, you would take it from the condemnees; and if you give him less than that, he would suffer a loss of his property with respect to that. It’s a jury question then as to what is a compensation for relocation, and that’s a jury question. You may consider that along with the fair market value of the property in trying to determine just and adequate compensation in this case.”

Thus, although the trial court did charge the jury on the question of uniqueness in regard to the value of the property, it did not do so in regard to the condemnees’ relocation expenses. Was an instruction on finding uniqueness prior to determining relocation expenses necessary?

Appellants maintain that although the issue has not been squarely addressed by the appellate courts, Bowers v. Fulton County, 221 Ga. 731 (146 SE2d 884) (1966), implicitly requires that the recovery of relocation expenses, like business damages, be predicated on proof that the property is in some way unique. In Bowers, it was determined that relocation expenses might be awarded in connection with the condemnation of real estate upon which an established business operated. The land which contained an office building was condemned. At trial, the court refused to instruct the jury that lost profits, business losses, and reasonable relocation expenses could each be recovered separately from the amount awarded to the condemnee for the value of the real estate. The Supreme Court held that charges on these issues should have been given. Id. at 738.

Bowers does not mandate that evidence of uniqueness of the property be shown before relocation expenses are allowable. Neither does Bowers require that business losses or lost profits be proved by showing that the property is unique, although such requirements were added in subsequent cases.

We note that proof of uniqueness is not required for administrative, as opposed to judicial, recovery of relocation expenses under OCGA § 32-8-1 et seq.

Confusion over the uniqueness issue may arise from cases in which the condemnee sought recovery for both relocation and business losses; the present condemnees seek only compensation for relocation expenses. In Heilman v. Dept. of Transp., 162 Ga. App. 547 (290 SE2d 189) (1982), a dentist’s office was condemned for the expansion of a road. While the dentist, who leased the office, was permitted to testify that the move of his business resulted in a loss of patients and profits, he was not allowed to present evidence of the value of the leasehold to himself or of the cost of duplicating at his new office the specialized dental office equipment built into the condemned space. Heilman focused not on relocation expenses, but on how the property should be valued, i.e., whether the jury should have been allowed to determine the uniqueness of the property. It was within this context that Heilman quoted, inter alia, Department of Transp. v. Dixie Highway Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10) (1980), which held that “ ‘business losses are recoverable as a separate item only if the property is unique.’ ” Heilman found it error to exclude the evidence on uniqueness and to exclude the dentist’s testimony of the value of the leasehold to himself. Heilman, supra at 548.

Although the Court in Heilman concluded that business losses were recoverable only if the property in question was unique, such “business losses” apparently did not include costs associated with relocating a business. This distinction was clearly made in Bowers, which distinguished business losses such as profits, and loss of customers from relocation expenses. Bowers, supra at 734-738.

In Department of Transp. v. Lewyn, 168 Ga. App. 283 (308 SE2d 684) (1983), a lessee of commercial property decided to move her store after a condemnation eliminated most of the front parking spaces and reduced the store visibility to passing traffic. Relocation expenses were sought for having to modify the new working space and for having to buy a larger business sign. The Court held that these “renovation” costs were proper relocation costs, and that they were recoverable as a part of the lessee’s just and adequate compensation. The Court also noted that the condemnee was “required to have somewhat unique floor arrangements to accommodate” workspace requirements, although it did not expressly state that a condemnee’s unique business needs would determine whether it would receive relocation expenses.

The policy reason for allowing relocation expenses for established businesses is that “a business is an incorporeal property right for which compensation must be paid, and when the business location is taken, all damages to the business, including relocation expenses, may be recovered in addition to the value of the property itself.” Pursley, Ga. Eminent Domain, § 9-2 at 217 (1982), citing Bowers, supra; State Hwy. Department v. Clark, 123 Ga. App. 627 (181 SE2d 881) (1971). Whether or not the business property is unique has no bearing on the recoverability of relocation expenses.

Here, condemnees claimed nearly $95,000 in relocation expenses. Some of the appraisals as to the fair market value of the property itself exceeded the amount awarded, so it is unclear how much of the jury award, if any, was for this item. In any event, the trial court was not required to instruct the jury that it had to find the condemned property to be unique in order to award relocation expenses.

(b) Fulton County and MARTA contend that the court erred in instructing the jury to award relocation expenses in an amount such that the condemnee doctor would “be in substantially the same position he was in prior to the taking of his property.” See Division 1, supra, for a more complete recitation of the charge.

Appellants argue that by such language, the trial court essentially directed a verdict in favor of condemnees on every expenditure made by them in relocating the business, as it authorized the jury to indemnify condemnees for all relocation expenses in order to return them to substantially the same position they were in prior to the taking. They urge that such a charge is especially inappropriate where, as here, the condemnees relocated into a larger space.

Appellants rely on Housing Auth. &c. of Decatur v. Schroeder, 222 Ga. 417 (151 SE2d 226) (1966). That condemnee was seeking compensation not just for the fair market value of the land, but also for the value of the rentals which were lost because of the pending condemnation. She claimed that the condemnation did not occur on the actual date of condemnation, but had essentially occurred some time earlier when the condemnee began losing rentals as a result of the pending condemnation.

This just and adequate compensation meant putting the landowner as nearly as possible back in the same monetary position as before seizure. Based on this, it concluded that the condemnor could not depress the value of land by signs causing the public to believe the land had already been taken, or by public announcements indicating imminent seizure, so as to deprive the owner of the property’s normal use, and then contend that the depressed value was the true value on the formal date of taking. It was determined that the loss of income due to imminent condemnation could be considered in arriving at just and adequate compensation.

The Supreme Court reversed, holding that it was error to instruct a jury that “they could find the fair market value of the property as of a date other than that of the actual taking.” Id. at 420. It did not directly address or oppose the expressed principle that just and adequate compensation meant putting a condemnee back in substantially the same monetary position that he was in prior to the taking.

The United States Supreme Court has stated that a condemnee “is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but is not entitled to more.” Olson v. United States, 292 U. S. 246, 255 (54 SC 704, 78 LEd 1236) (1934).

The instruction challenged here merely explains the goal of “just and adequate compensation.” The condemnors’ concern is that if the words of the trial court were followed precisely, the jury might have awarded the condemnees all relocation costs, so as to put them in the same monetary condition as before the taking. However, examining such language in the context of the entire charge, as it should be examined, see Continental Research Corp. v. Reeves, 204 Ga. App. 120, 129 (5) (419 SE2d 48) (1992), it authorizes the jury to award only those relocation costs which would have been incurred by moving to similar, rather than larger, space. Given the amount of the judgment, it appears that this is the context in which the jury considered the relocation expenses, in that they were not all awarded. The judgment was less than some of the fair market value appraisals alone, exclusive of any relocation costs.

Although the trial court arguably could have chosen its words more artfully, the complained-of language, when taken together with the rest of the charge, did not mislead the jury.

(c) Appellants contend that the court erred in instructing the jury that the property was unique if the owner had to make any modifications to the facility for his business, i.e., that the court indirectly directed a verdict on the issue of uniqueness.

At the request of condemnors, the three recognized tests for determining whether property is unique, pursuant to Department of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541 (309 SE2d 816) (1983), were given. The court also charged, “property may be peculiar or unique, may have peculiar or unique value when the property must be duplicated for a business to survive and there is no substantially comparable property within the area. In other words, if a business owner owns a piece of property, and in order for him to continue to operate he has to duplicate that simply because there are no others exactly like his, has to modify whatever facility or build some other facility, he has peculiar needs he has in order for his business to survive as it did before.”

Condemnors maintain that the second sentence of the instruction is an inaccurate statement of the law, in that it impermissibly expands the test of uniqueness to allow recovery where there is no property “exactly like” rather than “no substantially comparable property.” They claim harm because there were a number of substantially comparable places in the area for relocation of Dr. Funk’s practice and because Funk made modifications to raw office space.

It is questionable that condemnees sought unique value rather than fair market value. While there was mention of the issue of uniqueness in argument, there was not a formal request for such a charge by the condemnees nor was such a charge required in order to recover the relocation expenses. Under such view, the instructions on uniqueness were surplusage and no harm could have occurred by reason of even an incorrect charge on the issue. Charging the jury on the question of uniqueness was favorable to condemnors MARTA and Fulton County because it added an unnecessary factor for condemnees’ just and adequate compensation and relocation expenses. Even an erroneous jury charge is not a cause for reversal when such charge is favorable to the complaining party. See Kaminsky v. Blackshear, 108 Ga. App. 492, 494 (2) (133 SE2d 441) (1963).

Judgment affirmed.

Birdsong, P. J., concurs. Andrews, J., concurs in the judgment only.

Decided December 2, 1992 —

Reconsideration denied December 17, 1992

Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., Jo L. Meeks, Elizabeth E. Long, Susan B. Forsling, for appellants.

Peek & Whaley, James G. Peek, J. Corbett Peek, Jr., for appellees.

       Pursley, Georgia Eminent Domain, § 9-2 at 217 (1982), states that property must be unique before a business owner can recover for relocation expenses, but no citation of authority is given.

       Relocation expenses for residential property are not recoverable as a separate element because such are merely “personal expenses.” City of Gainesville v. Chambers, 118 Ga. App. 25 (162 SE2d 460) (1968).


author: McMurray, Presiding Judge.

text:
    A92A1998.
    LANGSTON v. THE STATE.
    (426 SE2d 609)
   McMurray, Presiding Judge.

On June 5, 1991, defendant was convicted of driving under the influence and speeding, and on July 3, 1991, she filed a notice of appeal. Shortly thereafter, on July 11, 1991, defendant’s attorney sent a letter to the court reporter asking her to “prepare a transcript and file it with the Court.” In making his request, defendant’s attorney stated, “If you are unable to file the transcript by August 3, 1991, please let me know so I may secure an extension of time.” Within five days, defendant’s attorney sent a letter to defendant requesting payment for the trial transcript. Therein, defendant’s attorney wrote: “I have spoken with the Court Reporter and she is requiring a deposit of $650.00 in order to prepare the transcript. Please send this amount as soon as possible . . .” No other action was taken in the case until November 18, 1991. At that time, defendant’s attorney sent $650 to the court reporter and urged her to “file the transcript as soon as possible.” The court reporter prepared the transcript and filed the original on December 5, 1991. At no point did defendant seek an extension of time for filing the transcript.

The State moved to dismiss the appeal on the grounds that defendant failed to have the transcript filed within 30 days of the filing of the notice of appeal. Following a hearing, the trial court dismissed defendant’s appeal. Defendant filed a motion for reconsideration. Following another hearing, the trial court denied defendant’s motion. Thereupon, defendant timely appealed from the dismissal of her appeal and the denial of her motion for reconsideration. Held:

1. “A person convicted of a crime in a trial court in this state is not entitled to have his conviction reviewed as a matter of right by an appellate court. He must pursue applicable statutory requirements. A convicted party can, by his own conduct or by his conduct in concert with that of his attorney, forfeit his appeal. If a convicted party by his own conduct, or by his conduct in concert with that of his attorney, purposefully delays the appeal of his conviction to his own advantage, he forfeits appeal and review of his conviction on the merits by an appellate court.” State v. Denson, 236 Ga. 239, 240 (223 SE2d 640).
In its order dismissing the appeal, the trial court stated: “[T]he defendant and his attorney abandoned and forfeited the Appeal. This was evidenced by: 1) The failure of the defendant to timely cause the transcript to be prepared and filed ... 2) The failure to request the transcript sooner than August 3,1991, more than thirty days after the filing of the Notice of Appeal; 3) The failure to request an extension for the filing of the transcript. . . The delay of the defendant in filing the transcript was not reasonable, and the delay was not excused by the Court.”

Citing McClure v. State, 205 Ga. App. 22 (421 SE2d 121), defendant asserts the trial court erred in dismissing the appeal because it made no determination as to whether she purposefully caused the delay. We disagree. The trial court’s conclusion that defendant “abandoned and forfeited” her appeal was a sufficient determination that the delay was caused purposefully by defendant. See McClure v. State, 205 Ga. App. 22, 26, supra (Andrews, J., concurring specially).

Relying upon Dept. of Human Resources v. Patillo, 194 Ga. App. 279 (390 SE2d 431), defendant also asserts the trial court failed to ascertain whether the delay in filing the transcript was unreasonable and inexcusable. This assertion is wholly without merit. In its order dismissing the appeal, the trial court expressly and specifically found that the delay was not reasonable and was not excusable.

2. Defendant contends the trial court erred in failing to consider her “Motion in Opposition to Motion to Dismiss.” This contention is without merit. Although the trial court initially refused to consider the “motion” (because it was not on file in the clerk’s office) at the time of the hearing on the motion to dismiss, it did consider the “motion” at the hearing on the motion for reconsideration. After considering the “motion” at the second hearing, the trial court adhered to its original ruling. We fail to see how defendant was harmed by the trial court’s refusal to consider the “motion” at the first hearing.

3. Defendant argues that the trial court should have attributed the delay in filing the transcript to the court reporter because she refused to prepare the transcript until she was paid a $650 deposit. In this regard, defendant asserts that she was indigent and her counsel was proceeding pro bono. We cannot accept this argument. If defendant was indigent, she should have sought leave to proceed in forma pauperis. See OCGA §§ 17-12-2 (5); 17-12-10. See also Uniform Superior Court Rule 41.3. This she failed to do.

4. In its order, the trial court stated that defendant failed to “request the transcript” within 30 days after the filing of the notice of appeal. Defendant asserts that that finding was erroneous, pointing to her attorney’s July 11, 1991, letter asking the court reporter to prepare the transcript. We fail to see defendant’s point. As we see it, the transcript was not really ordered until November 18, 1991, when defendant’s attorney sent the deposit to the court reporter and asked her to file the transcript as soon as possible. In any event, whether or not defendant asked for the transcript within 30 days of the filing of the notice of appeal, it is clear that the transcript was not filed within that time period.

Decided December 1, 1992 —

Reconsideration denied December 17, 1992.

Wallace C. Clayton, for appellant.

Patrick H. Head, Solicitor, Clifford L. Granger, Jr., Susan M. Miller, Aurieanne Sneed, Assistant Solicitors, for appellee.

It was incumbent upon defendant to file the transcript within 30 days of the filing of the notice of appeal or to seek an extension of time from the trial court. OCGA § 5-6-42. “Failure of the appellant to request an extension for the filing of the transcript is not in itself a ground for dismissal of the appeal absent a judicial determination that the resulting delay was both unreasonable and inexcusable. [Cit.] In this case the dismissal was supported by a finding that the delay was unreasonable and inexcusable. Given the four-month delay in filing the transcript and appellant’s apparent lack of diligence in discovering that the transcript would be delayed, we find no abuse of the trial court’s discretion in finding the delay to be unreasonable and inexcusable. [Cit.]” Glen Restaurants v. Building 5 Assoc., Ltd., 189 Ga. App. 327, 328 (375 SE2d 492).

5. The remaining enumeration of error is not supported by argument or citation of authority and is deemed to have been abandoned. Court of Appeals Rule 15 (c) (2); Adams v. State, 187 Ga. App. 340, 345 (3) (370 SE2d 197).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author:
Beasley, Judge.
      Pope, Judge,
      Andrews, Judge,

text:
    A91A1259.
    LANDIS v. ROCKDALE COUNTY et al.
    (427 SE2d 286)
   Beasley, Judge.

The question is whether a law enforcement officer owes a tort duty to a member of the general public injured by a drunk driver, when the officer allows the noticeably intoxicated driver to continue operating the motor vehicle.

Plaintiff Landis, individually and as administratrix of the estate of her late husband, appeals the grant of summary judgment and entry of final judgment pursuant to OCGA § 9-11-54 (b) in favor of defendants Rockdale County, Davis, individually and as former Sheriff of Rockdale County, and Deputy Sheriff Drummond. Also named as defendants were driver Taggart, her parents, and the storeowner who allegedly sold Taggart alcoholic beverages.

The claims against Davis and the county are for the negligent hiring and retention of Drummond and for the imputed negligence of Drummond, i.e., his “careless” acts in performing his official duties as officer and employee, attributable to them under the doctrine of respondeat superior. The claim against Drummond is for breach of his duty. It was contended that governmental immunity has been waived by the county’s purchase of a one million dollar liability insurance policy, up to the limit of that policy. Plaintiff does not seek more from these defendants.

Landis alleges that at approximately 11:20 p.m. on November 11, 1988 defendant Taggart, then a minor, was under the influence of alcohol and carelessly drove her vehicle off the roadway to the right, returned to the roadway, and crossed the centerline into the path of Gregory Campbell Landis’ vehicle, causing a violent collision which resulted in Mr. Landis’ death. She also alleges that less than two hours earlier, on-duty officer Drummond observed Taggart in a noticeably intoxicated condition, driving a motor vehicle.

The plaintiff’s evidence showed the following. On the evening of the incident, Taggart, age 17, consumed a half-pint of grain alcohol and a can of beer. She then drove with three friends to a high school football game, where she was visibly intoxicated. She was stumbling and fell to the ground and remained there several minutes, crying. Her friends tried to stop her from driving but were unsuccessful. One friend would not go in the car with Taggart driving. After about 20 minutes, Taggart went to a fast food restaurant where she ate a very small amount and appeared to be drowsy and slumped over. After a little while, she and one girl friend left the restaurant and proceeded toward a party at an acquaintance’s house, with two other friends following in another car. Shortly after leaving the restaurant, they stopped at the scene of an unrelated automobile collision.

Deputy Sheriff Drummond was directing traffic at the accident scene. Taggart’s friends stated that she got out of her car and flirted with Drummond, holding onto him for support, laughing, and rubbing his arm. One friend testified Drummond asked what she had been drinking, she said “nothing,” and Drummond asked if her father ran a local country club. She said “yes” and the deputy said “okay.” Another of Taggart’s friends said Taggart told her she (Taggart) was not arrested because her father let Drummond play golf for free at the club. Taggart herself had no recollection of the events or conversation at that scene.

The facts of the encounter with Drummond are in dispute. His testimony is that he conversed with Taggart through the open car window, detected no alcohol on her breath, and did not believe her to be intoxicated. He said he did not notice any erratic driving as she drove off. It is undisputed that Drummond neither gave Taggart a field sobriety test nor attempted to prevent her from driving her car.

Taggart and her friends proceeded to the party. No one there, herself included, could testify whether or not she had more alcohol. Her friends tried without success to keep her keys from her. She left the party alone, got lost, called her place of employment to find her way, and was involved in the fatal collision at 11:20 p.m. Her blood alcohol level at 12:49 a.m., November 12, was 0.21 percent.

Rockdale County, Sheriff Davis, and Drummond moved for summary judgment on primarily two theories: 1) Drummond’s duty, if any, to arrest Taggart’s driving (by arresting her and/or requiring her friend to drive instead) was owed to the public at large and did not extend to an individual member of that general public so that his breach of that duty, if any, does not under Georgia law give rise to a cause of action for injuries suffered by that third party; 2) Drummond’s negligence, if any, was not the proximate cause of the collision, due to the intervening negligence and criminal acts of Taggart, i.e., driving while intoxicated and possible alcohol consumption after the encounter with Drummond. They also maintained that the claims of negligent hiring and retention should be dismissed as dependent on the primary claims.

The trial court did not explain the basis for its grant of summary judgment.

Appellant Landis contends that summary judgment was unauthorized because (1) the county waived sovereign or official immunity by its purchase of the insurance; (2) Drummond, as a sworn law enforcement officer, had a duty to third party highway users to prevent an obviously intoxicated motor vehicle driver from continuing to drive; (3) whether or not the officer’s breach of duty proximately caused the fatality is a jury issue.

1. Sovereign immunity. Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution, as amended in 1991, is not to be applied retroactively. Donaldson v. Dept. of Transp., 262 Ga. 49 (414 SE2d 638) (1992). Therefore, the county’s insurance acts as a waiver of sovereign immunity to the extent of the policy. Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990). Thus, there is no issue of a distinction between ministerial and discretionary acts and mere negligence is actionable. Id.; Early County v. Fincher, 184 Ga. App. 47 (360 SE2d 602) (1987); cf. Vertner v. Gerber, 198 Ga. App. 645 (402 SE2d 315) (1991).

2. Officer’s duty. This being summary judgment, as to the facts we assume the evidence and reasonable inferences in favor of appellant, the non-moving party. OCGA § 9-11-56; Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442) (1962); see also Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

To state a cause of negligence, the first essential element is a legal duty, that is, a duty “ ‘to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm. . . .’” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). Appellant contends that the duty emanates from OCGA §§ 51-1-1 and 51-1-6, but they merely define a tort and authorize damages when a legal duty is breached. Neither creates a legal duty substantively. She also refers to the “general duty one owes to all the world not to subject them to unreasonable harm.” See Restatement, Torts 2d, § 282. It is true, as she points out, that drunk driving is a criminal violation of the law, OCGA § 40-6-391. A law enforcement officer is authorized to arrest for such without a warrant “if the offense is committed in his presence or within his immediate knowledge,” OCGA § 17-4-20 (a), but this empowerment does not generally impose a duty to do so within the contemplation of tort law. However, it has been stated in dictum “ ‘that where a crime is committed in the presence of an officer, it is not only his right then and there to arrest without a warrant, but it is his duty to do so. Earl v. State, 124 Ga. 28 (52 S.E. 78).’ ” Yancey v. Fidelity & Cas. Co. of N. Y., 96 Ga. App. 476, 478 (1) (100 SE2d 653) (1957). The 1983 Constitution of Georgia provides the foundation for such a duty in its second paragraph: “Protection to person and property is the paramount duty of government and shall be impartial and complete.” Art. I, Sec. I, Par. II.

There is expert testimony in this case that, given the circumstances as evidenced by plaintiff, the standard of care required Officer Drummond to prevent Taggart from driving. In fact, Sheriff Davis testified that “If the officer has probable cause to believe that the person who is driving is impaired, he does have an obligation to get him off the road.” Officer Drummond himself testified that it is an officer’s duty and responsibility to remove a driver he determines is under the influence of alcohol from the roadway “and get them to a safe place.” This, he said, was the sheriff’s department policy and what he followed; arrest is regarded as discretionary, policy-wise.

The general duty referred to above, as articulated in the Restatement, Sec. 282, was the beginning basis for the legal duty in Bradley Center, supra. That case is like this one in that it involves a defendant being sued for the act of a third person which results in harm to plaintiff.

In such third party cases, “there is no duty to control the conduct of third persons to prevent them from causing physical harm to others,” citing Shockley v. Zayre, 118 Ga. App. 672 (165 SE2d 179) (1968), and Restatement, Torts 2d, § 315. That section provides two exceptions, which are where “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.”

Bradley Center involved a type (a) exception, created by the special relationship existing between defendant and the third person. The particular instance of this exception is articulated in Restatement, Torts 2d, § 319: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” This exception, recognized by the Georgia Supreme Court as “a given standard of conduct” applying in Bradley Center, supra at 203, and which was implied in the nursing home context in Assoc. Health Systems v. Jones, 185 Ga. App. 798 (1) (366 SE2d 147) (1988), does not apply here, because the officer exercised no degree of control over Taggart.

This court has recently focused on the general duty/special relationship dichotomy in considering police liability to third persons, in Jordan v. City of Rome, 203 Ga. App. 662 (417 SE2d 730) (1992); cert. granted, 203 Ga. App. 909. The facts of that case show a direct contact between the injured party and the police and their knowledge of impending danger to that person from the third person, as well as evidence of the subsequently injured party’s reliance on stated police assurances of intervention. See Section 315 (b). Such a relationship does not exist here.

Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985), is also cited by appellant as a case in which defendant was liable to plaintiff for a third party’s act. The duty found there was imposed in two specific Code sections, OCGA §§ 3-3-22 and 3-3-23 (a). It was these two requirements which supplied the duty contemplated in OCGA § 51-1-6, which the Court held extended to third parties as well as to those noticeably intoxicated. The alcohol provider statutes do not apply here.

However, the same rationale does apply: the duty of alcohol providers extends to third parties because of the “risks involved and the General Assembly’s efforts to control drunk driving for the protection not only of those drivers but others on the highways. . . .” Id. at 197. The law enforcement officer who has authority and opportunity to prevent a noticeably intoxicated driver from continuing to drive is faced with the same risks and efforts, which are undeniably more keenly known to him or her because of experience and training.

There is an identifiable standard of care in this case, based on the statutory prohibition against alcohol-influenced driving coupled with the power and duty of the police to prevent the driving of people whom they find to be in that condition. The duty ran to the general public, one member of which was subsequently injured and died.

3. The issue of proximate cause presents a jury question in this case, because whether Officer Drummond’s failure to act constituted a proximate cause of Landis’ subsequent death, is not plainly and indisputably precluded as a matter of law. That is the test. Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25) (1976); Hercules, Inc. v. Lewis, 168 Ga. App. 688 (309 SE2d 865) (1983). Nor can we say as a matter of law that it is too remote, OCGA §§ 51-12-8; 51-12-9, or that Taggart’s criminal act of driving while intoxicated so as to cause a collision was unforeseeable. As quoted in Bradley Center, “The general rule that the intervening criminal act of a third person will insulate a defendant from liability for an original act of negligence does not apply when it is alleged that the defendant had reason to anticipate the criminal act.” Atlantic C. L. R. Co. v. Godard, 211 Ga. 373, 377 (86 SE2d 311) (1955).

Thus the court erred in granting summary judgment to the three defendants on the claim of affirming Drummond’s negligence.

4. Appellant has failed to develop on appeal the claims of negligent hiring and negligent retention. She fails to enumerate this aspect of the grant of summary judgment as error and to show how it constitutes legal error. Moreover, the evidence shows the absence of either one, and summary judgment was proper.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Birdsong, P. J., Cooper and Johnson, JJ., concur. Carley, P. J., concurs in Divisions 1, 2, 3 and in the judgment. Sognier, C. J., Pope and Andrews, JJ., dissent.

Pope, Judge,

dissenting.

While I concur fully with Judge Andrews’ dissent, I write separately to point out the fallacy of the majority’s strained creation of a new tort duty in this case. In a desperate search to find a legal basis for this new duty, the majority gleans this duty from the rationale underlying the alcohol provider statutes, statutes the majority concedes do not even apply to this case. The result — this is a classic case of bad facts making bad law. While I sympathize with the plaintiff’s tragic loss of her husband, we should not allow the circumstances of this case to cause us to deviate from traditional tort principles and analysis when deciding whether Drummond owed a duty to plaintiff’s decedent to remove Taggart from the highway.

Contrary to the majority’s contention otherwise, the rationale underlying our Supreme Court’s decision in Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985) and OCGA §§ 3-3-22 and 3-3-23 do not provide a basis for the expanded common law duty created by the majority in this case. The rationale underlying Sutter and those statutes is that one who provides alcoholic beverages to a person who is noticeably intoxicated and who will soon be driving and/or to one who is younger than the legal drinking age by their own actions increases the risk to others using the highways that they will be harmed by the intoxicated persons. A police officer, on the other hand, by merely coming into contact with someone who is intoxicated, has done nothing to expose the travelling public to any greater danger.

The proper starting point when deciding if the police officer in this case owes a duty to plaintiff’s decedent is the general rule, as stated in the Restatement (Second) of Torts, § 315 and as approved by our Supreme Court in Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982), that there is no duty to prevent a third person from harming another, absent a special relation between the actor and wrongdoer or between the actor and the victim. Construing the facts in the light most favorable to plaintiff, in this case there is no evidence of the type of “special relation” that will support a finding of duty. The plaintiff’s decedent had no contact with Drummond or any other Rockdale County police officer on the night of the collision and neither the plaintiff’s decedent or the police acted in a manner that would create a special relationship between the plaintiff’s decedent and the police. Furthermore, there is no evidence of a special relation between Taggart and Drummond. Through a purely chance encounter, which occurred when Taggart stopped at an accident scene at which Drummond was directing traffic, Drummond engaged in casual conversation with Taggart, had an opportunity to observe her and allegedly either knew or should have known that she was intoxicated. Taggart was not stopped by Drummond nor was she ever detained or in any way placed under his control on the night of the fatal collision. Thus, there is simply no showing of a special relation between Drummond and Taggart or Drummond and plaintiff’s decedent.

In cases such as this before finding the required special relation needed to create a duty, at a minimum, we should require a showing of some control being exercised by the police officer over the wrongdoer or a showing that a police officer knew of imminent harm to an identifiable victim by a known wrongdoer. See Shore v. Town of Stonington, 444 A2d 1379 (Conn. 1982); accord Jordan v. City of Rome, 203 Ga. App. 662 (417 SE2d 730) (1992), cert. granted, 203 Ga. App. 909. Duty, in such cases, should not hinge on a mere chance encounter between a police officer and a person who subsequently causes injury to another.

Under similar circumstances a New York appellate court refused to hold that there was a duty of care owed to plaintiff’s decedent when the drunk driver who killed plaintiffs decedent had a conversation with a police officer earlier in the day and the officer believed the driver was intoxicated but did not prohibit him from driving. Crosby v. Bethlehem, 457 NYS2d 618 (1982). Indeed the substantial majority of jurisdictions that have considered this issue have refused to allow actions based on police negligence, expressing the fear that holding law enforcement officers liable for failure to make an arrest would cripple an essential governmental function by forcing police officers to choose between potential liability for making a false arrest on one hand and for failure to make an arrest on the other hand. See generally, Annotation, Failure to Restrain Drunk Driver as Ground of Liability of State or Local Government Unit or Officer, 48 ALR4th 320 (1986).

As a majority of this court noted in Ferguson v. City of Doraville, 186 Ga. App. 430, 432 (367 SE2d 551) (1988), overruled in part on other grounds, Vogtle v. Coleman, 259 Ga. 115 (376 SE2d 861) (1989) (quoting Pierson v. Ray, 386 U. S. 547, 555 (87 SC 1213, 18 LE2d 288) (1967), overruled on other grounds Harlow v. Fitzgerald, 457 U. S. 800 (102 SC 2727, 73 LE2d 396) (1982)). “ ‘[A] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.’ ” A police officer’s lot is now that unhappy in Georgia. When considering this undesirable result of the majority opinion coupled with the inescapable fact that there is no valid basis for the majority’s expansion of a police officer’s duty in this case to plaintiff, I must conclude that the order of the trial court granting summary judgment in favor of the defendants was correct and should be affirmed.

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

Andrews, Judge,

dissenting.

I respectfully dissent. I agree with the majority’s initial application of traditional tort analysis with respect to whether the police officer had a duty to third parties to control Taggart’s conduct, but I cannot agree with the majority’s departure from this analysis to create what appears to be an expanded common law duty applicable to police officers.

The general duty of the police to protect the public is not a sufficient basis to support a tort action against the government or the officer for an alleged failure of an officer to prevent a potential tortfeasor from harming a third person. See Jordan v. City of Rome, 203 Ga. App. 662, 670-673 (417 SE2d 730) (1992) (Andrews, J., dissenting), cert. granted, 203 Ga. App.. 909. Rather, in the absence of sovereign immunity, a traditional tort analysis applies to the threshold duty issue. As the majority recognizes, the general rule in such third party cases as stated in Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693) (1982), is that “there is no duty to control the conduct of third persons to prevent them from causing physical harm to others.” Bradley Center dealt with specific exceptions to the general rule under Restatement, Torts 2d, §§ 315 and 319. Section 315 sets forth two exceptions to the no duty rule where “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.” Section 319 is a more specific statement of the type (a) exception of section 315, and provides that: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” As in Bradley Center, this case deals with a type (a) exception.

I agree with the majority that the specific § 319 exception to the no duty rule applied in Bradley Center does not apply here because the police officer exercised no control over Taggart. I also agree with the conclusion that, although a police officer has authority to arrest a person without a warrant where an offense is committed in his presence or within his immediate knowledge (OCGA § 17-4-20), this authority alone does not create a duty to arrest for purposes of a tort action. The lack of such an affirmative duty to arrest sufficient to support a tort action is implicit in the holding of Ferguson v. City of Doraville, 186 Ga. App. 430, 431-432 (367 SE2d 551) (1988), overruled in part on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119, n. 8 (376 SE2d 861) (1989). In that case a police officer found the plaintiff alone and intoxicated in his parked automobile. The officer instructed the plaintiff he could remain in the car to sleep, but not to move the vehicle. After the officer left, the plaintiff exited the car, and while attempting to cross the street in his intoxicated condition, was struck and severely injured by a passing motorist. He sued claiming the officer breached a mandatory duty to arrest him as a drunk driver. The court addressed this issue finding it was unclear whether the officer had probable cause to arrest under the circumstances, but nevertheless concluding that, “[i]t being apparent without dispute from the uncontroverted evidence of record in this case that [the officer] did nothing to restrict [the plaintiff’s] liberty, expose him to greater danger, or otherwise adversely affect his position, we must agree with the trial court that the officer acquired no legal duty to protect him either from the consequences of his own behavior or from the negligence of others.” See also McGuirt v. Lawrence, 193 Ga. App. 611, 612 (389 SE2d 2) (1989) (physical precedent).

Accordingly, I find no breach of any affirmative tort duty to arrest Taggart, nor do I find a duty under exception (a) of Restatement, Torts 2d, § 315. In my view, the police officer’s encounter with Taggart does not give rise to the type of “special relation” contemplated in exception (a) of § 315. The exception under § 315 (a) has been applied in Bradley Center and other cases where there is evidence of some type of established, continuous relationship with the third party in which control is exercised. See Keppler v. Brunson, 205 Ga. App. 32 (421 SE2d 306) (1992); Ermutlu v. McCorkle, 203 Ga. App. 335, 336-337 (416 SE2d 792) (1992); Associated Health Systems v. Jones, 185 Ga. App. 798, 801-802 (366 SE2d 147) (1988). The passing encounter of a police officer with a third person in which the officer may or may not determine that probable cause exists to exercise his authority to make an arrest, is not such a “special relation” for purposes of creating a tort duty to prevent a third person from harming others. Moreover, to impose a “special relation” under these circumstances puts police officers in the precarious position of choosing between potential claims for false arrest, or potential tort liability to injured third parties for failure to arrest. In effect, the majority’s holding will discourage the reasonable exercise of discretion by police officers, and encourage arrests in marginal cases supported by only slight evidence of criminal conduct.

After starting down the path of traditional tort analysis, the majority has diverged from it to judicially expand the common law, and create a new tort duty applicable to police officers. Although conceding that the alcohol provider statutes (OCGA §§ 3-3-22; 3-3-23 (a)) do not apply to the present case, the majority concludes they provide the following rationale for imposing a tort duty on the officer to protect third parties by arresting Taggart: The duty imposed under these statutes, which prohibit providing alcohol to those noticeably intoxicated and underaged, is based on the Legislature’s desire to protect both drunk drivers and others on the highway. Sutter v. Hutchings, 254 Ga. 194, 197 (327 SE2d 716) (1985). Thus, the duty runs not only to those noticeably intoxicated and underaged persons to whom alcohol is provided, but also to third parties injured by these drinkers. Id. By analogy, the majority concludes that a similar duty running to injured third parties should be created and applied to police officers who fail to arrest suspected drunk drivers. I decline to join in this expansion of a police officer’s duty and potential tort liability. See Manuel v. Koonce, 206 Ga. App. 582 (425 SE2d 921) (1992) (declining to judicially expand the common law by analogy from OCGA § 51-1-40).

Decided December 4, 1992 —

Reconsideration denied December 18, 1992

Thomas W. Malone, Peterson, Dillard, Young, Self & Asselin, James M. LaChance, for appellant.

Chambers, Mabry, McClelland & Brooks, Eugene P. Chambers, Jr., John E. Hawkins, V. Jane Reed, Beth L. Singletary, Jenkins & Eells, Frank E. Jenkins III, Maddox, Starnes & Nix, John A. Nix, Lavigno, Dawkins & Serio, Harrill L. Dawkins, for appellees.

Abdul S. Valiani, pro se.

Because the defendants violated no duty for which they could be held liable in tort, the order of the trial court granting summary judgment in their favor should be affirmed.

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

       This appeal was transferred to the Supreme Court on October 1, 1991, because of the constitutional question of the applicability of amended Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution. The Supreme Court returned the case to this Court after concluding that the constitutional question of the applicability of the amendment was waived. It noted nevertheless that the amendment would not be applied retroactively, citing Donaldson.

       Appellant does not contend that she can recover for decedent’s death due to any breach of duty owed by the officer to the drunk driver. Injury to the allegedly drunk driver was the basis for that party’s own suit against the police and city, on the theory that the officer had breached a mandatory duty to arrest, in Ferguson v. City of Doraville, 186 Ga. App. 430 (367 SE2d 551) (1988), overruled in part on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119 (3) (376 SE2d 861) (1989). However, the evidence did not establish that the plaintiff was driving, and he was never under police custody. Nor has appellant alleged wilful and wanton conduct, but only negligence. See Truelove v. Wilson, 159 Ga. App. 906, 908 (4) (285 SE2d 556) (1981). See also OCGA § 35-1-7, regarding liability of officer performing duties at emergency scenes.


author:
Carley, Presiding Judge.
      Pope, Judge,

text:
    A92A0760.
    LOTT v. THE STATE.
    (426 SE2d 667)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of two counts of aggravated child molestation and five counts of child molestation. The victim was, in each instance, appellant’s stepdaughter. He appeals from the judgment of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant moved to strike the victim’s testimony on the ground that she did not understand the nature of the oath. The trial court’s refusal to do so is enumerated as error.

Existing OCGA § 24-9-5 (b) provides that any child is competent to testify in a criminal case involving child molestation. However, this statute does “not apply to crimes or offenses which took place prior to [its] effective date of [April 19, 1989].” Ga. L. 1989, pp. 1639, 1640. The former law had provided that, in any type of case, a child who did not understand the nature of an oath was an incompetent witness. Appellant contends that the former law applies in the instant case because most of the alleged offenses occurred prior to April 19, 1989.

The victim was 15 years of age at the time of trial and she testified that she knew it was bad to tell a lie, that she would be punished if she did so and that she also understood the importance of telling the truth in court. “It is not necessary that a child demonstrate [her] knowledge of the penalties for perjury in order for the trial court to rule [her] competent to testify.” Hill v. State, 251 Ga. 430, 431 (306 SE2d 653) (1983). Thus, even if the former law were to apply in the instant case because the majority of the crimes occurred prior to the effective date of existing OCGA § 24-9-5 (b), the trial court did not abuse its discretion in refusing to strike the victim’s testimony. See Cook v. State, 199 Ga. App. 523, 524 (3) (405 SE2d 341) (1991); Johnson v. State, 195 Ga. App. 385, 386 (2) (393 SE2d 712) (1990).

2. On direct examination of the investigating officer, the State asked the following question: “During the course of the forty or so child abuse cases you’ve investigated, could you tell us whether or not this is the first time that the child’s mother ... sided with the defendant?” Appellant objected to the relevancy of this question. The objection was overruled, and the officer responded: “No. Unfortunately [in] most of my cases the mother almost always sides with her husband.” The admission of this testimony is enumerated as error.

The fact that, in the officer’s previous experience, most of the victims’ mothers had sided with their husbands is certainly not relevant to explain either the conduct or the testimony of the victim’s mother in the instant case. Insofar as the victim’s mother and appellant’s wife is concerned, the testimony did not relate to the state of her “feelings towards the parties and [her] relationship to them. . . .” (Emphasis supplied.) OCGA § 24-9-68. Compare Quinn v. State, 132 Ga. App. 395, 396 (2) (208 SE2d 263) (1974) (wherein the witness “had a civil action pending against the defendant arising out of the same incident”). Any inference that this case is like most of the officer’s previous cases is completely irrelevant to any issue being tried, unless the objective of the State was to have the jury infer that most of the defendants in the officer’s other 40 cases were guilty and that, therefore, the defendant’s wife in each of those other cases gave false testimony. The only benefit to the State’s case of such inferences would be to foster the further inference that appellant’s wife in this case would give untruthful testimony. Such totally irrelevant testimony and the impermissible illogical inferences sought to be drawn therefrom would be inherently prejudicial and absolutely inadmissible. The officer’s testimony certainly does not come within any of the authorized methods for impeachment of a witness. See Cross v. State, 136 Ga. App. 400, 404-405 (5, 6) (221 SE2d 615) (1975); OCGA §§ 24-9-82 through 24-9-84. “This testimony had nothing to do with the case against the defendant. . . . [The question was] totally irrelevant to the case.” Winget v. State, 138 Ga. App. 433, 434 (3) (226 SE2d 608) (1976).

Cases authorizing expert testimony on an issue which is beyond the ken of average jurors are not authority for the admission of the officer’s testimony in the instant case. These cases, including Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987), Hammock v. State, 201 Ga. App. 614, 618 (6) (411 SE2d 743) (1991) and others, deal with a professional’s testimony concerning the Child Abuse Accommodation Syndrome. The officer in the instant case is not a psychologist or a psychiatrist and her statement of fact that, in her previous experience, most of the victims’ mothers had sided with the defendants is not an expert opinion on an issue beyond the ken of average jurors.

3. Over objection, the State was allowed to question the victim’s mother about her own sexual abuse as a child and to show that she had been afraid to tell anyone about it because she did not think she would be believed. This testimony is enumerated as error, the contention being that the State’s questioning involved an irrelevant and prejudicial matter.

The testimony was irrelevant. However, the mother further testified that, because she had been afraid to report her own abuse, she watched the victim very carefully, as she did not want the same thing to happen to her daughter and “would kill anybody that laid a hand on her.” Thus, even though the testimony was not relevant to the alleged molestation of the victim, it was certainly not prejudicial to appellant and, in fact, bolstered his defense that no one had seen any such incidents occur or suspected that he was involved. Unless it is shown that it was prejudicial, the admission of irrelevant evidence is not a ground for reversal. Hill v. State, 177 Ga. App. 850, 851 (1) (341 SE2d 322) (1986); White v. State, 174 Ga. App. 699, 700 (1) (331 SE2d 72) (1985).

4. Appellant also enumerates the general grounds, pointing to examples in the trial transcript wherein the victim’s testimony was inconsistent or contradicted, and also to the undisputed testimony of witnesses that appellant had good character. “The question of witness credibility, however, is for the jury. [Cit.] On appeal, this court . . . does not weigh the evidence or determine witness credibility. [Cit.] We find the evidence was sufficient to authorize a rational trier of fact to find proof of the charged crimes beyond a reasonable doubt under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). [Cit.]” Daniel v. State, 200 Ga. App. 79, 80 (1) (406 SE2d 806) (1991).

Judgment reversed.

Sognier, C. J., Birdsong, P. J., Beasley, Cooper and Johnson, JJ., concur. McMurray, P. J., Pope and An drews, JJ., dissent.

Decided December 4, 1992 —

Reconsideration denied December 18, 1992

Steinberg & Vrono, Charles J. Vrono, for appellant.

Peter J. Skandalakis, District Attorney, Lisa R. Roberts, Assis tant District Attorney, for appellee.

Pope, Judge,

dissenting in part.

While I concur with Divisions 1, 3 and 4 of the opinion, I write separately because I do not agree the trial court committed reversible error by allowing the investigator from the sheriffs office to testify that it was common in the 40 or so child abuse cases she had investigated for the mother to side with the father. As the question which elicited the objected to testimony indicates, defense counsel had earlier stated the victim’s mother/defendant’s wife did not believe her husband committed the acts of child molestation of which he was accused. She later testified she did not believe the defendant molested her daughter, even though she admitted she never discussed the alleged acts of molestation with her daughter. Obviously, in cases such as this in which one parent is accused of molesting a child or stepchild, the testimony of the other parent, especially a biological parent, weighs heavily with the jury. The credibility of the victim’s mother/defendant’s wife was a crucial issue in this case, and the complained of testimony explains both the conduct and testimony of the key witness for the defendant. “As a general rule and particularly when the evidence is conflicting, a party may show any fact or circumstance that might affect the credit of an opposing witness. [Cit.]” Arnold v. State, 163 Ga. App. 10, 13 (293 SE2d 501) (1982). “ ‘Evidence is relevant if it relates to the questions being tried by the jury, either directly or indirectly, tends to illustrate or explain the issue, or aids the jury in arriving at the truth.’ (Citations and punctuation omitted.) [Cit.]” Yelverton v. State, 199 Ga. App. 41, 42 (1) (403 SE2d 816) (1991). The testimony at issue was relevant and properly admitted by the trial court. Furthermore, as this court has consistently recognized, what is common in child abuse cases is beyond the ken of average jurors and therefore a proper subject of testimony of those having expertise in that area. See generally Hammock v. State, 201 Ga. App. 614 (6) (411 SE2d 743) (1991); Cooper v. State, 200 Ga. App. 560 (2) (408 SE2d 797) (1991).

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


author: Beasley, Judge. Andrews, Judge,

text:
    A92A0793, A92A0794.
    POSS et al. v. DEPARTMENT OF HUMAN RESOURCES; and vice versa.
    (426 SE2d 635)
   Beasley, Judge.

Dexter C. Poss, Sr., individually and as representative of the estate of his deceased son, Dexter C. Poss, Jr., and Mary Jo Poss, individually, instituted this action against the Georgia Department of Human Resources, seeking to recover for their son’s wrongful death. Under authority of OCGA § 9-2-1, plaintiffs commenced this action as a renewal of an action prosecuted by them in federal court. Poss v. Ga. Regional Hosp. of Augusta, 676 FSupp. 258 (S.D. Ga. 1987), aff’d without opinion sub nom. Poss v. Azar, 874 F2d 820 (11th Cir. 1989).

On October 15, 1984, the son was admitted to Georgia Regional Hospital of Augusta after he tried to commit suicide by taking an overdose of sleeping pills. Dr. Kenneth Azar, his primary physician, released him to return to his residence the following morning. Later that day, the son obtained a pistol and killed himself.

Plaintiffs sued Georgia Regional Hospital and Dr. Azar in federal district court, asserting a 42 USC § 1983 claim and a pendent state-tort claim for medical negligence. The Department of Human Resources, of which Georgia Regional is a branch, was later substituted for the hospital as a party defendant.

The hospital moved for summary judgment, arguing that the doctrine of sovereign immunity barred the claims against it. The district court denied this motion on the following grounds: Art. I, Sec. II, Par. IX (a) of the 1983 Georgia Constitution waived sovereign immunity “as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protection for such claims has been provided but only to the extent of any liability insurance provided”; Dr. Azar’s official immunity had been waived because of the existence of a liability insurance policy covering any negligent act arising out of the performance of or failure to perform his official duties; and, as Georgia Regional is vicariously liable for the acts of its employees, the waiver of Dr. Azar’s official immunity acted as a waiver of Georgia Regional’s sovereign immunity. 676 FSupp. at 260-261.

On the other hand, Dr. Azar’s motion for summary judgment was granted on the ground that his actions in discharging the decedent are immunized from liability by OCGA § 37-3-4, which provides: “Any physician, psychologist, peace officer, attorney, or health official, or any hospital official, agent, or other person employed by a private hospital or at a facility operated by the state, by a political subdivision of the state, or by a hospital authority created pursuant to Article 4 of Chapter 7 of Title 31, who acts in good faith in compliance with the admission and discharge provisions of this chapter shall be immune from, civil or criminal liability for his actions in connection with the admission of a patient to a facility or the discharge of a patient from a facility.”

The federal court later dismissed the action against the department as barred by the Eleventh Amendment’s proscription against citizens of a state suing their state in federal court. The court also dismissed the action against Dr. Azar, ruling that he had qualified immunity from plaintiff’s Section 1983 claim (for essentially the same reasons that he has state statutory immunity). Pendent jurisdiction over the state tort claim was thus removed.

In this action in state court, plaintiffs found tort liability of the department on two grounds: First, Dr. Azar was negligent in releasing the son “without having conducted such medical examination, testing, or observation as, in the exercise of appropriate medical care should have been performed”; second, the hospital “failed to train and supervise its staff, failed to establish and follow rules, regulations and guidelines and procedures reasonably designed to protect seriously ill patients such as plaintiffs’ decedent from injury and death, and failed to provide adequate facilities to carry out such care. . .

The department filed a motion to dismiss, or in the alternative for summary judgment, on grounds of res judicata, collateral estoppel, and sovereign immunity. In its supporting brief, the department argued that the determination in the federal action that Dr. Azar is immune from liability precludes the present action against the department. The department also argued that under Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987), as well as Mayor &c. of Flemington v. Boatwright, 259 Ga. 175 (377 SE2d 843) (1989), a waiver of sovereign immunity depends upon the presence of a governmental employee for whom liability insurance protection has been provided; in this case the only defendant is the department itself. The department also filed a counterclaim under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), and OCGA § 9-15-14 for frivolous litigation in view of the disposition of the federal suit.

The trial court granted the department’s motion for summary judgment but refused to entertain the counterclaim. In Case No. A92A0793, plaintiffs appeal. In Case No. A92A0794, the department cross-appeals.

1. The federal court’s decision that Dr. Azar’s conduct is immunized by state statute bars a derivative claim against Dr. Azar’s employer based on its vicarious liability for his conduct under the doctrine of respondeat superior.

Commencing with Southern R. Co. v. Harbin, 135 Ga. 122 (68 SE 1103) (1910), it has been the rule that “where the liability of the master to an injured third person is purely derivative and dependent entirely upon the doctrine of respondeat superior, a judgment on the merits in favor of the servant and against the third person is res judicata in favor of the master in a suit by such third person, though the master was not a party to the action against his servant. [Cits.]” Gilmer v. Porterfield, 233 Ga. 671, 673 (1) (212 SE2d 842) (1975). Lack of mutuality as a bar to the plea of res judicata was rejected.

Plaintiffs argue that: the federal court’s grant of Dr. Azar’s motion for summary judgment was not “on the merits” since it was based on his statutory immunity, which protects him but not his employer, and, although there was an adjudication in the federal action that he was not “liable” to the plaintiffs, there was no adjudication as to whether or not he was “negligent,” the issue here.

To the contrary, the case law is that an employer cannot be held “liable” for the employee’s negligence where there has been an adjudication that the employee is not “liable.” See Spencer v. McCarley Moving &c. Co., 174 Ga. App. 525, 530 (2) (330 SE2d 753) (1985); Redd v. Peters, 100 Ga. App. 316, 321 (3) (111 SE2d 132) (1959). “In a case where the employer’s liability depends solely upon the doctrine of respondeat superior, recovery cannot be had against an employer for damages resulting from the alleged wrongful or negligent act of his employee, after the employee has been discharged from personal liability.” 53 AmJur2d, Master & Servant, § 406, p. 413 (1970).

Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 517 (1, 3) (385 SE2d 436) (1989) does not aid plaintiffs. It holds that although, under the doctrine of charitable immunity, a charitable hospital generally is not liable for the negligence of its employees, this does not insulate physicians employed by the hospital from liability to a patient for breach of duty. The rationale is that “[t]o extend the doctrine of charitable immunity to physicians who are employed by charitable hospitals would only serve to insulate the resources of those physicians from the claims of patients who were injured as a result of alleged medical malpractice.” Id. at 519.

It would be anomalous and in frustration of the purpose of OCGA § 37-3-4 to apply the same rationale and hold that while this Code section immunizes the physician from liability for acts in good faith compliance with statutory discharge provisions, the physician’s employer may be held derivatively liable based on a finding that such acts were negligent. The converse of the Cutts holding does not apply here.

OCGA § 37-3-4 does not expressly state that the hospital or facility shall be immune from liability, and we have neither found nor been cited to any case seeking to hold an employer derivatively liable for the conduct of an employee who has statutory immunity from liability.

2. However, unlike cases such as Harbin and Gilmer, the liability charged by the complaint against the department is not purely derivative of Dr. Azar’s conduct. Plaintiffs charge the department with negligence in failing to: (1) train and supervise its staff; and (2) establish and follow rules, regulations, guidelines, and procedures. As previously stated, the federal court denied the hospital’s motion for summary judgment and granted Azar’s.

3. In Price, relied upon by the department, employees of the Department of Transportation (DOT) were sued, as was the DOT under the doctrine of respondeat superior. The plaintiff alleged that employees of the DOT were negligent in their design and maintenance of a state highway. Plaintiff sought to add these employees as party defendants by amendment to her complaint after their identities had been ascertained through discovery. The Supreme Court held that the claim against the DOT employees was in reality a claim against the DOT as to which sovereign immunity had been waived because of a liability insurance policy naming the employees as insureds and covering the claim. Compare Rogers v. Rockdale County, 187 Ga. App. 658, 660 (2) (371 SE2d 189) (1988). The Court held that “[t]he fact the DOT is not named as an insured does not mean that insurance protection for the claim is not provided.” (Emphasis in original.) Price, supra at 537.

However, the trial court in Price had not ruled on plaintiff’s motion to add the DOT employees as party defendants. In an addendum to the opinion on motion for reconsideration, the Court held, “When the case returns to the trial court the judge shall rule on the motion to add the employees as defendants. If they, or any of them, are made defendants there is a waiver of sovereign immunity as to the DOT as stated in the opinion. Since a waiver depends upon the presence of a claim in the action for which liability insurance protection has been provided, if no employee is made a party defendant there will be no waiver as to DOT. In that event summary judgment for DOT is affirmed.” Id. at 537-538. See also Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301-303 (2) (357 SE2d 569) (1987); compare Boatwright, supra, where the sole claim was one against the city, and it was barred by sovereign immunity.

Nonetheless, the court was not authorized to grant summary judgment on the ground that plaintiffs failed to join an indispensable party, without giving them an opportunity to join the unnamed party after an adjudication that such party is indispensable. See Frady v. Irvin, 245 Ga. 307, 312 (5) (264 SE2d 866) (1980).

Moreover, there are factual distinctions between this case and Price. The claim in Price was based upon negligent action, consisting of the design and maintenance of the highway. The claim in this case is based, at least in part, upon negligent inaction, consisting of a failure to train and supervise staff, as well as to establish rules, regulations, guidelines, and procedures. The department’s failure to do such things is provable without reference to the action of an identified department employee.

4. The department states that the burden of establishing that there has been a waiver of sovereign immunity rests with the plaintiffs, see Kelleher v. State, 187 Ga. App. 64 (1) (369 SE2d 341) (1988); Balasco v. County of San Diego, 140 Ga. App. 482, 487 (2) (231 SE2d 485) (1976), and the department argues that the plaintiffs have not and cannot demonstrate a waiver in that, under such cases as Price, a waiver is premised upon the presence of an employee for whom liability insurance protection has been provided. As held in Division 3, Price and like cases are distinguishable.

Any waiver of sovereign immunity is based upon Article I, Section II, Paragraph IX of the Georgia Constitution, prior to its 1991 amendment. It provided that “the defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against this state or any of its departments and agencies for which liability insurance protection for such claims has been provided. . . .” In this action, plaintiffs have sought to recover damages based upon a claim against the Department of Human Resources. There is a waiver if liability insurance for such a claim has been provided. The department has made no showing that such coverage does not in fact exist; nor did it move for summary judgment on the ground that such coverage has not in fact been provided.

5. In Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (3) (414 SE2d 638) (1992), the Supreme Court held that the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution, extending sovereign immunity to all state departments and agencies regardless of any insurance, applies prospectively only and does not bar pending actions, such as the present one which was instituted in 1988. The Court in Donaldson disapproved Goolsby v. Regents of the Univ. System of Ga., 141 Ga. App. 605 (234 SE2d 165) (1977) to the extent that it held otherwise, and it stated that dictum in Sikes v. Candler County, 247 Ga. 115 (274 SE2d 464) (1981) would not be followed. Donaldson, 262 Ga. at 53. Consequently, the department’s reliance upon Goolsby and Sikes in unavailing.

6. Issues have been raised concerning the fact that plaintiffs in their trial and appellate briefs have not made express reference to the allegations of their complaint concerning the direct negligence of the department. However, in both briefs plaintiffs argue that the action at bar involves the state law claims which plaintiffs asserted in their federal action and that these claims are not diminished or affected by the assertions of the department in this action. An application of this argument to the allegations of the complaint requires a reversal in part of the trial court’s grant of the department’s motion for summary judgment.

In order , for the defendant as movant to be entitled to summary judgment, he must effectively pierce any state of facts contained in plaintiff’s complaint or that may be proven in connection therewith, so as to preclude as a matter of law plaintiff’s right to prevail. Ringer v. Lockhart, 240 Ga. 82, 83 (239 SE2d 349) (1977). On motion for summary judgment, all pleadings and evidence must be construed most strongly against movant. Crider v. Kelley, 232 Ga. 616, 619 (208 SE2d 444) (1974).

Unlike the defendant in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the department did not move for summary judgment based upon an absence of evidence in support of plaintiffs’ direct-negligence claim, nor did it pierce these allegations in the complaint. See Stone Mountain Mem. Assn. v. Bell, 236 Ga. 355, 358 (2) (223 SE2d 716) (1976).

In responding to the summary judgment motion, which addressed only the derivative liability claim, we find no concession by plaintiffs that they have abandoned their direct negligence claim.

The plaintiffs have carried their burden of showing error on the record. “In order for the appellate court to determine whether the grant of summary judgment was erroneous, the appellant must include in the record those items which will enable the appellate court to ascertain whether a genuine issue of material facts remains or, if the record establishes there is no such issue of fact, whether the moving party is entitled to judgment as a matter of law. [Cits.]” Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981).

7. It necessarily follows that the trial court did not err by denying the department’s counterclaim for attorney fees and litigation expenses for frivolous litigation.

Judgment in Case No. A92A0793 affirmed in part and reversed in part. Judgment in Case No. A92A0794 affirmed.

Sognier, C. J., McMurray, P. J., Carley, P. J., Cooper and Johnson, JJ., concur. Birdsong, P. J., Pope and Andrews, JJ., concur in part and dissent in part.

Andrews, Judge,

concurring in part and dissenting in part.

Although I agree with Division 1 of the opinion, I respectfully dissent from Divisions 2 through 6 because the issue on which the opinion is based was never argued by the parties. The majority concludes that because the complaint’s allegations against the hospital were not based solely upon allegations of respondeat superior, summary judgment as to those claims which were independent of Dr. Azar was improper, since the sovereign immunity bar did not apply. Regardless of whether I agree in theory with this statement of law, the present facts do not warrant this conclusion.

Plaintiffs’ complaint asserts two basic theories of recovery against DHR; there are allegations of direct liability and theories based on derivative liability. From a review of the record, it is clear that the complaint is the only time that the claims of direct liability against DHR are raised. The fact that the complaint alleges liability which is independent of Dr. Azar is never referred to by the parties. Both in the court below and in this court, the parties have limited their arguments solely to the issue of derivative liability and the parties conceded that the issues in this case involve only claims of derivative liability.

It is a fundamental rule of appellate practice that this court does not consider arguments which were not argued before the trial court. See generally Comer v. Nat. Bank of Georgia, 184 Ga. App. 867 (3) (363 SE2d 153) (1987). The majority opinion fails to follow this rule and, in doing so, appears to apply a “wrong for any reason” rule, in contravention of the right for any reason rule. See, e.g., Dunwoody-Woodlands Condo. Assn. v. Hedquist, 199 Ga. App. 91 (2) (403 SE2d 893) (1991). “It is not the function of an appellate court to cull the record on behalf of a party in search of instances of error. [Cits.]” Mauldin v. Weinstock, 201 Ga. App. 514, 517 (3) (411 SE2d 370) (1991).

Although I am aware that Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987), emphasized that the claim asserted was critical to resolving the issue of immunity (discussed in Division 3 of the majority opinion), I do not think that Price contemplated the deviation from basic rules of appellate practice which the majority demonstrates. Accordingly, I would affirm the trial court’s ruling and grant summary judgment to DHR.

Moreover, even assuming arguendo that the DHR’s motion for summary judgment did implicitly raise issues of direct liability, it was incumbent upon the plaintiffs to affirmatively respond to this issue. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Under this analysis, plaintiffs’ absolute failure to present evidence, or even to articulate an argument regarding the allegations of direct liability would also mandate an affirmance of the trial court’s order.

Despite my belief that summary judgment was correct as to Case No. A92A0793, I concur in the majority’s affirmance of summary judgment with respect to the cross-appeal, Case No. A92A0794. “ ‘The issues were hardly clearcut and posed a serious question both for the trial court and this court. [Appellants’] claim cannot be considered as lacking substantial justification or as being interposed for delay or harassment.’ [Cit.]” Deutz-Allis Credit Corp. v. Phillips, 193 Ga. App. 79, 80 (1) (387 SE2d 34) (1989); see also Colquitt v. Network Rental, 195 Ga. App. 244 (2a) (393 SE2d 28) (1990). Accordingly, I would affirm the trial court’s grant of summary judgment as tp the cross-appeal.

Decided December 3, 1992 —

Reconsideration denied December 18, 1992

Robert H. Benfield, Jr., for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellee.

I am authorized to state that Presiding Judge Birdsong and Judge Pope join in this opinion.

       Further, there is no indication that the motion for summary judgment was ever construed by the parties, or by the court, as one for partial summary judgment.


text:
    A92A0820.
    GLOBAL FIBERS, INC. v. FOSTER.
    (427 SE2d 3)
   Carley, Presiding Judge.

A simplified statement of the relevant facts is as follows: Appellant-plaintiff is a Florida corporation. Appellee-defendant is a Georgia resident who was both an officer and employee of appellant. Certain funds which belonged to appellant were collected by appellee. Rather than transfer those funds to appellant, appellee caused them to be deposited into his own account at the Georgia State Bank of Rome (bank). When this was discovered, appellant filed a complaint, naming both the bank and appellee as defendants. According to appellant’s complaint, appellee had converted the funds which were on deposit in appellee’s account at the bank.

By consent order, the bank paid the funds into court and a hearing was scheduled “to determine the respective entitlement of the parties to the [f]und[s]. . . .” Thereafter, appellee filed a “counterclaim,” alleging that he was owed unpaid compensation for his services to appellant. After conducting a hearing, the trial court found in favor of appellee on his counterclaim and further ordered that $69,193.68 of the funds be paid to appellee and the remainder be paid to appellant. It is from this order that appellant brings the instant appeal.

1. The trial court ruled that it had personal jurisdiction over appellant as to appellee’s counterclaim for unpaid compensation. Appellant enumerates this ruling as error.

There is no contention that the trial court had personal jurisdiction over appellant as to appellee’s counterclaim pursuant to the Georgia Long Arm Statute. Appellant is a Florida corporation having no contacts with Georgia other than that Georgia is the site of the funds held by the bank. However, “[e]ven prior to enactment of the [Civil Practice Act], it was held that: ‘One who goes into the court of a county other than that of his residence, to assert a claim or set up an equity, must be content to allow that court to determine any counterclaim growing out of the original suit which the defendant sees fit to set up by a cross-action. (Cits.)’ [Cit.] ‘. . . [T]his principle “rests on the idea that the plaintiff, by voluntarily instituting his suit, gives the superior court of the county where it is so instituted jurisdiction of his person sufficient to answer all the ends of justice respecting the suit originally instituted, — such proceedings in equity being ancillary to or defensive of the pending suit.” ’ [Cit.] In practice, the defendant generally has been allowed to assert only such affirmative relief against a nonresident plaintiff as is necessary for the defense of the main complaint. [Cits.]” Ledford v. Bowers, 248 Ga. 804, 806 (2c) (286 SE2d 293) (1982).

“As a general rule, the courts of this State have no extraterritorial jurisdiction, and cannot make citizens of other States amenable to their process, or conclude them by a judgment in personam; but where a non-resident voluntarily institutes a suit in this State, he submits himself, for all purposes of that suit, to the jurisdiction of the courts of the county in which the suit is pending ([cits.]). . . .” Harrison v. Lovett, 198 Ga. 466, 469-470 (1) (31 SE2d 799) (1944). Appellant brought suit in Georgia, alleging that appellee had converted its funds. Appellee counterclaimed, alleging that a portion of those funds were owed to him as unpaid compensation for services rendered to appellant. Under these circumstances, the trial court correctly determined that appellant had submitted to personal jurisdiction with regard to appellee’s counterclaim, by filing suit against appellee in Georgia. See Bragg v. Gavin, 234 Ga. 70 (214 SE2d 532) (1975).

2. Appellant urges that the trial court erred in allowing appellee’s contract claim for unpaid compensation against appellant’s tort claim for conversion.

“ ‘ “Generally a cause of action ex delicto cannot be set off against an action ex contractu, and vice versa. (Cits.) The only exception to this rule is where equitable principles such as insolvency or nonresidence of the plaintiff are involved. (Cits.)” ’ ” Thomas v. Shapiro, 189 Ga. App. 268, 269 (2) (375 SE2d 282) (1988). See also Hecht v. Snook & Austin Furniture Co., 114 Ga. 921, 924 (41 SE 74) (1902). It appears that appellant is not only a nonresident, but is also insolvent. Accordingly, there was no error. See Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 87 (1) (114 SE2d 529) (1960).

3. Appellant’s remaining enumerations of error have been considered and found to be without merit.

Decided November 3, 1992

Reconsideration denied December 18, 1992

Shaw, Maddox, Graham, Monk & Boling, Virginia R. Harman, for appellant.

Robert K. Finnell, for appellee.

Judgment affirmed.

Pope and Johnson, JJ., concur.