author: Johnson, Presiding Judge.

text:
    A01A1972.
    In the Interest of N. M. H. et al., children.
    (556 SE2d 454)
   Johnson, Presiding Judge.

The biological mother of N. M. H., B. S. H., and G. L. H. appeals the juvenile court’s termination of her parental rights, contending that the evidence was insufficient to support the termination. For the reasons below, we affirm.

The standard of review for the termination of parental rights is whether, after reviewing the evidence in the light most favorable to the parent, a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should be lost. “This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.”

The record shows that the Richmond County Department of Family & Children Services (DFACS) removed the children from the home and placed them in emergency custody on July 3,1998, following a report to the local sheriff’s department that the children were unsupervised. Upon investigation, a deputy sheriff verified that the oldest two children, ages two and three, were playing outside unsupervised and found the youngest, age one, locked in a bedroom. The deputy reported that the youngest child was covered with feces and had severe diaper rash. The milk in the child’s bottle was reportedly sour and solidified. The house was in disarray, with open food and dirty dishes in the living room and kitchen, beer bottles and clothing lying around, and beds without linen. The mother could not be found at the time. The children were taken into custody, and a deprivation hearing was held on July 17, 1998, after which time, in an unappealed order, they were deemed deprived and placed in foster care. There was no family able or willing to care for the children. In December 1998, a court-appointed special advocate was appointed guardian ad litem for the children.

The mother agreed to a reunification plan that required her to (1) meet her mental health needs by obtaining a psychological evaluation and following through with any recommendations, (2) improve her parenting skills, (3) obtain and maintain employment and housing for herself and her children, and (4) visit or contact her children twice monthly. Following the children’s removal and upon the suggestion by her caseworker that it might expedite the return of her children, the mother married the children’s biological father, Ralph. They separated a short time later, and she moved to South Carolina to live with her mother.

In June 1999, the special advocate reported that the mother had accomplished most of the goals of her reunification plan within the first five months and that she appeared willing to do anything to have her children returned. The special advocate reported that, while the children were thriving in their foster home, there was a true bond between the mother and the children. The special advocate made follow-up recommendations, including the placement of a parent aide in the home and that weekend visits be established before total reunification. Later that month, DFACS moved for a five-month extension of the original removal order for more time to coordinate the reunification of the mother and her children, including a home evaluation of the maternal grandmother’s home in South Carolina and the mother’s completion of parenting classes.

A custody extension hearing was held thereafter, at which time the special advocate expressed concern over the stability of the mother’s housing arrangements. The special advocate reported that prior to the hearing, the grandmother threatened to throw the mother out of her home because of the mother’s drinking and unemployment. The juvenile court terminated the temporary custody, and the children were returned to the mother on June 30, 1999.

Approximately two weeks later, upon receiving information that the mother was drinking while driving with the children in the car, the special advocate filed a child protective service complaint with the Aiken, South Carolina Department of Social Services. Before the case could be transferred to South Carolina social service officials, the mother was thrown out of the house, and she and the children moved back to Augusta to live with the children’s father. The special advocate met with DFACS staff in August 1999 to discuss the case, after reports from the foster parent, who occasionally babysat for the children, that the children sometimes slept in a car. They also discussed the mother’s drinking problem. Another child protective service complaint was filed at that time.

Approximately one week later, the mother was arrested for DUI and endangering children after she was stopped for drinking and driving with the children in the car. While she was in jail, the children were placed with their father. DFACS reported that he initially requested that the children be placed with DFACS on a temporary basis because he was starting a new job and could not keep the children. He reportedly changed his mind, but asked for emergency food vouchers when he and the children were thrown out of his friend’s trailer. Another child protective service complaint was filed at that time. After the mother was released from jail, the entire family was staying with the father’s friend, but a few weeks later, on September 8, 1999, the mother was once again arrested for DUI. Upon the father’s request, the children stayed with the foster parents because he said that he could not feed the children. When the mother was released from jail a couple of days later, she retrieved the children from the foster home.

The special advocate again petitioned DFACS because of concern for the children’s safety and the mother’s alcohol problems. Based on the special advocate report, the children were once again placed in foster care, and another deprivation petition was filed on September 13. A nonreunification plan was recommended and incorporated in the deprivation order on October 28, 1999. The mother was incarcerated at the time of the hearing because of her third DUI arrest and 60-day jail term. The children were again deemed deprived, and custody was maintained with DFACS for 12 additional months, after which DFACS filed its termination petition on January 14, 2000. About one month prior to the termination hearing, which was held on June 9, 2000, the mother received her third DUI. At the time of the hearing, the children were in DFACS’ custody 21 out of the previous 24 months. A termination order was entered on July 19, 2000.

OCGA § 15-11-94 (a) establishes a two-step process in considering the termination of parental rights. The court is required to determine whether there is clear and convincing evidence of parental misconduct or inability. And, if there is clear and convincing evidence of parental misconduct or inability, the court considers whether termination of parental rights is in the best interest of the child.

Parental misconduct or inability must be shown by clear and convincing evidence that (1) the child is deprived, (2) the lack of parental care or control is the cause of the deprivation, (3) such lack of care or control is likely to continue, and (4) the continued deprivation will cause, or is likely to cause, serious physical, mental, emotional, or moral harm to the child.

Here the mother does not contest that the first two factors — that the children are deprived and lack of parental care caused this deprivation — were shown. She concedes that there was evidence to support the first two findings. Moreover, she did not appeal the earlier orders finding the children to be deprived. Instead, she argues that the evidence relied upon by the trial court to show parental misconduct did not show that the third and fourth factors were found. Specifically, she claims that there is insufficient evidence the deprivation will continue and that it will cause serious harm. According to the mother, the trial court based its conclusions on three episodes of drinking and driving; this, she maintains, is insufficient to demonstrate that the deprivation would continue. She argues that the evidence does not establish “chronic, unrehabilitated alcohol abuse that would compel the conclusion that past deprivation will likely continue or cannot be remedied.” We do not agree.

While a parent’s abuse of alcohol does not always compel the termination of parental rights, “[t]he past conduct of the parent is properly considered by the court in determining whether . . . conditions of deprivation are likely to continue.” “Such an inference is appropriate, since the juvenile court is not required to reunite [the children] with appellant in order to obtain current evidence of deprivation or neglect.”

Although the mother contends she is now willing to take steps to be a proper parent, judging the credibility of her good intentions was a task for the juvenile court. The decision as to a child’s future must rest on more than positive promises that are contrary to negative past fact. While the mother testified that she would stop drinking in order to get her children back and that she was going to counseling once a week, she relapsed and received a DUI one month before the termination hearing. She testified that she relapsed because, “I’m real emotional. I’m having a lot of problems and everything.” Her current boyfriend, her mother, and her mother’s fiancé all testified at the hearing on her behalf. These current relationships, however, do not reflect the type of support the mother may need to overcome her abuse of alcohol. Although her current boyfriend, with whom she lives, testified that he drinks only on occasion and does not keep alcohol in the home, he was charged with DUI two months before the deprivation hearing. The maternal grandmother, who testified that although her daughter has a drinking problem, her children should not be taken away, also admitted that she received a DUI sometime in 1999. She claimed, however, that she stopped drinking in January 2000.

Additionally, the evidence shows noncompliance with the reunification plan’s requirement that the mother obtain a safe, stable, and healthy environment for the children. Although the mother testified that she lived with her boyfriend in a three-bedroom house, she had been in the relationship for only about six months. Prior to that, she had a history of frequent moves among the homes of her friends and relatives. Although at the time of the hearing, the mother was working at McDonald’s, the evidence shows that she has been either unemployed or employed for only short periods of time since 1998. The special advocate reported on March 29, 2000, that she saw no stability in the mother’s employment or environment. In our view, there was ample evidence from which the court could find that the conditions and causes of deprivation were likely to continue.

The mother also contends that the trial court improperly found that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children. Here, the special advocate assigned to the case reported that when she met the children in 1998, they were “withdrawn and tantrum prone.” She reported that since they were returned to foster care, “they are much happier and seem to be thriving in a normal manner for children their age” and there is very little evidence of their prior behavior. She reported that there was a true bond between the children and their foster parents and recommended that parental rights be terminated and, further, that the foster parents be given the opportunity to adopt the children. The psychologist treating the oldest child for anxiety and depression indicated that the child has a “high need for routine and consistency” in her life. The doctor recommended that the child be placed in a consistently stable home situation.

Decided November 7, 2001.

Peter D, Johnson, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Glover & Blount, Gary A. Glover, for appellee.

Because of the mother’s alcohol abuse and employment and housing problems, she remains unable to provide a suitable home or demonstrate an ability to adequately care for her children. While the mother testified at the hearing that she would like to be given the opportunity to try again, she also expressed the belief that the foster placement of her children was a good idea and should be extended indefinitely. Despite the fact that the mother appears to have a true bond with her children and has maintained constant and frequent contact with them, “the juvenile court was authorized to consider the children’s need for a stable home situation and the detrimental effects of prolonged foster care.” “Children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.” The evidence sufficed on this factor as well.

Finally, the juvenile court was authorized to conclude that termination of parental rights was in the children’s best interests. “The same factors which show the existence of parental misconduct or inability can also support a finding that termination of parental rights would be in the best interest of the child.”

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       The children’s father died in 1999, shortly after a legitimation hearing.

       OCGA § 15-11-99; In the Interest of A. C., 234 Ga. App. 717, 718 (507 SE2d 549) (1998).

       (Citation omitted.) In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

       The home was the residence of the mother’s boyfriend. They had lived with him for approximately one month before the incident.

       This was also a legitimation order and showed Ralph to be the legitimate father of the three children.

       He and the children thereafter planned to stay at a rescue mission, but the friend let them move back in the trailer.

       The father was killed in December 1999 after being struck by a car outside of a bar where he and the mother had allegedly been drinking.

        In the Interest of C. D. A, 238 Ga. App. 400, 401 (519 SE2d 31) (1999).

       Id.

       OCGA § 15-11-94 (b) (4) (A).

       See In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997) (parent bound by earlier unappealed findings of deprivation).

       OCGA § 15-11-94 (b) (4) (A) (iii).

       OCGA § 15-11-94 (b) (4) (A) (iv).

       (Citation and punctuation omitted.) In the Interest of L. H., 236 Ga. App. 132, 136 (1) (511 SE2d 253) (1999).

       (Citation omitted.) In the Interest of E. C., supra at 16.

        In the Interest of H. L. W, 229 Ga. App. 264, 267 (493 SE2d 637) (1997).

       See In the Interest of C. P., 242 Ga. App. 698, 704 (3) (c) (531 SE2d 117) (2000) (repeated failure to comply with the goals in the case reunification plan may show that the cause of the deprivation is likely to continue).

       See OCGA § 15-11-94 (b) (4) (A) (iv).

       (Citation omitted.) In the Interest of M. L., 227 Ga. App. 114, 117 (2) (488 SE2d 702) (1997) .

       (Citation omitted.) In the Interest of J. O. L., 235 Ga. App. 856, 858 (510 SE2d 613) (1998).

        In the Interest of R. M., 232 Ga. App. 727, 729 (503 SE2d 635) (1998).


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A01A1940.
    In re DEKALB COUNTY SPECIAL GRAND JURY PROCEEDINGS.
    (555 SE2d 791)
   Ellington, Judge.

The “three corporate officers or employees of S.I.D., Inc.” directly appeal the superior court’s order denying their joint motion to quash the DeKalb County special grand jury’s subpoena duces tecum upon S.I.D., Inc. for certain corporate records. The order appealed allows the subpoena, which was properly served upon the corporation’s custodian of records, to stand. The superior court concluded that neither the corporation nor its corporate officers may claim a privilege in or against the production of S.I.D., Inc.’s corporate records. For the following reasons, we must dismiss this appeal.

The denial of a motion to quash a grand jury subpoena is not a final order, and because S.I.D., Inc. and its corporate officers failed to follow the interlocutory appeal procedure, we lack jurisdiction to consider the merits of this appeal. An order denying a motion to quash a grand jury subpoena is not a final order within the meaning of OCGA § 5-6-34 (a). See Cobbledick v. United States, 309 U. S. 323, 327-328 (60 SC 540, 84 LE 783) (1940). An appeal from such an order must be made by application, pursuant to the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b). See Morris v. State, 246 Ga. 510 (272 SE2d 254) (1980). Or, the party subpoenaed may refuse to comply with the court’s order, litigate the issue in a contempt proceeding, and then directly appeal the finding of contempt. See Cobbledick, 309 U. S. at 328; Johnson & Johnson v. Kaufman, 226 Ga. App. 77, 81 (485 SE2d 525) (1997).

Although we allowed a direct appeal of an order denying a motion to quash a grand jury subpoena under the collateral order doctrine in In re Hall County Grand Jury Proceedings, 175 Ga. App. 349, 350 (1) (333 SE2d 389) (1985), the circumstances of that case, unlike the instant appeal, fell within a unique exception to the general rule requiring the finality of appealable orders. The Hall County order fell within what the federal courts termed the “Perlman exception.” Under the Perlman exception, an intervenor may immediately appeal an order denying a motion to quash a subpoena duces tecum which was served upon a third-party custodian of records because that third party presumably lacked a sufficient stake in the proceedings to risk contempt for its noncompliance. Perlman v. United States, 247 U. S. 7 (38 SC 417, 62 LE 950) (1918); United States v. Ryan, 402 U. S. 530, 533 (91 SC 1580, 29 LE2d 85) (1971); In re Grand Jury Subpoena, 190 F3d 375, 382-383 (II) (C) (5th Cir. 1999). Consequently, in Hall County, when the grand jury sought records from an accountant, we allowed the accountant’s clients, as intervenors, to appeal the denial of the motion to quash to protect whatever privilege they might assert in the documents sought. See 175 Ga. App. at 349-350. For the same reason, we allowed an intervenor asserting the attorney-client privilege to immediately appeal an order denying a motion to quash a grand jury subpoena that had been served upon a private investigator whom the intervenor’s attorney had hired in the intervenor’s divorce proceeding. In re Fulton County Grand Jury Proceedings, 244 Ga. App. 380 (535 SE2d 340) (2000). Further, we find that the Perlman exception applies only where the subpoenaed party is truly “disinterested,” that is, does not share the intervenor’s privilege and is not subject to the intervenor’s control. See In the Matter of a Grand Jury Subpoena, 411 Mass. 489, 495 (1) (583 NE2d 241) (1992).

This appeal is not brought by intervenors who claim that a disinterested third-party custodian of records cannot or will not protect their rights in any subsequent proceeding to compel the documents. The corporation, S.I.D., Inc., may protect whatever privilege it claims in the documents sought by refusing to comply with the court’s order, risking contempt, and then directly appealing any resulting contempt order. Further, pretermitting whether the appellants properly intervened below, they, as the only corporate officers of S.I.D., Inc., control the corporation’s actions. We may presume that S.I.D., Inc. will act to protect whatever privilege or interest the appellants claim in the subpoenaed documents. Consequently, the Perlman exception does not apply, the order appealed does not fall within the definition of a collateral order, and we lack jurisdiction to entertain a direct appeal.

Finally, we do not believe it would be appropriate to extend the collateral order doctrine to reach the merits of the superior court’s order in this case. We are extremely loath to interfere in a grand jury’s ongoing criminal investigation. As this Court stated:

Decided October 23, 2001

Reconsideration denied November 8,2001

Brian Steel, Dwight L. Thomas, Shandor S. Badaruddin, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Assistant District Attorney, for appellee.

The inquisitorial power of the grand jury is the most valuable function which it possesses to-day and, far more than any supposed protection which it gives to the accused, justifies its survival as an institution. As an engine of discovery against organized and far-reaching crime, it has no counterpart. Policy emphatically forbids that there should be any curtailment of it except in clearest cases.

(Citation and punctuation omitted.) Howard v. State, 60 Ga. App. 229, 236 (4 SE2d 418) (1939). In this context, delays necessitated by appeals create opportunities for criminals to suborn peijury, to destroy evidence, to intimidate witnesses and grand jurors, and to continue their criminal enterprises. Further, premature disclosure of grand jury secrets may compromise law enforcement efforts and damage the reputations of individuals a grand jury’s final investigation may have exonerated. Consequently, we will not allow direct appeals from denials of motions to quash grand jury subpoenas except in the narrow circumstances set forth above.

Appeal dismissed.

Johnson, P. J., and Ruffin, J., concur.

       Although this appeal is brought by the “three corporate officers or employees of S.I.D., Inc.,” it is not entirely clear in what capacity or on whose behalf they intended to appeal. Both in this appeal and in the proceedings below, appellants blur the distinctions between individuals, corporate officers, and the corporation. It is fundamental that corporations possess a legal existence separate and apart from that of its officers and employees, e.g., Litland v. Smith, 247 Ga. App. 277 (1) (543 SE2d 468) (2000), and that fact can be critical to questions of standing to quash and standing to appeal, see, e.g., In re Grand Jury, 111 F3d 1066, 1071 (II) (A) (3rd Cir. 1997). Because we are dismissing this appeal for jurisdictional reasons that apply to both the corporation and its officers, however, we do not attempt to resolve any ambiguities with respect to the appellants’ capacity or standing to appeal.

       See generally Scroggins v. Edmondson, 250 Ga. 430, 431-432 (1) (c) (297 SE2d 469) (1982) (order cancelling notice of lis pendens is a directly appealable collateral order); Patterson v. State, 248 Ga. 875, 876-877 (287 SE2d 7) (1982) (denial of plea in bar on double jeopardy grounds is a directly appealable collateral order).

       Because, as discussed above, the subpoena at issue may be challenged further in a contempt proceeding, the trial court’s order refusing to quash it does not “constitute a complete, formal, and . . . final” resolution of the issue sought to be appealed. Therefore, it is not a collateral order. Patterson v. State, 248 Ga. at 876.


author: Pope, Presiding Judge.

text:
    A01A0933.
    AUTO-OWNERS INSURANCE COMPANY v. ANDERSON et al.
    (556 SE2d 465)
   Pope, Presiding Judge.

Auto-Owners Insurance Company filed an indemnity claim against Robert B. Anderson, Jr. and Anderson Insurance Agency, Inc. Anderson moved to dismiss the complaint on the ground that Auto-Owners’s claim was barred by the applicable statute of limitation, and the trial court granted the motion. Auto-Owners appeals asserting that the trial court misapplied the statutes of limitation for breach of contract claims to its indemnity claim. We agree and reverse.

Although the parties and the trial court referred to Anderson’s motion as a motion to dismiss, both parties presented affidavits in connection with the motion and both relied upon evidence outside the pleadings in making their arguments. The trial judge, too, relied upon this evidence in ruling upon the motion to dismiss as his order states that he considered all matters of record. Therefore, we must treat Anderson’s motion as a motion for summary judgment. Cox Enterprises v. Nix, 273 Ga. 152, 154 (538 SE2d 449) (2000). Compare Odum v. Montgomery, 249 Ga. App. 211, 212 (547 SE2d 770) (2001). And in reviewing the motion, we will conduct a de novo review of the record, construing the evidence and all inferences therefrom in favor of Auto-Owners. See Merritt v. State Farm &c. Ins. Co., 247 Ga. App. 442, 446 (1) (544 SE2d 180) (2000).

Viewed in that light, the evidence shows that in 1984, Auto-Owners granted Anderson Insurance Agency authority to act as its agent “to solicit and secure applications and to bind coverage” on its behalf in “the territory of Valdosta, Georgia and vicinity.” On April 26, 1993, Anderson issued an insurance binder to Allison Metal Fabrication, which on its face purported to grant temporary general liability and other coverages. This binder stated that it expired on May 26,1993. No other binder or policy appears in the record. Nevertheless, on October 12, 1993, Anderson issued a certificate of insurance representing that Allison Metal was covered under an Auto-Owners’s insurance policy that was due to expire on April 26, 1994. In his deposition, Robert Anderson admitted that at the time this certificate was issued, there was no insurance policy, only the April 1993 binder.

Subsequently, when an injured party sued Allison Metal, it apparently submitted a claim to Auto-Owners in reliance upon the certificate of insurance issued by Anderson. Auto-Owners asserts that it was required under agency principles to provide a defense to the claim, even though there was no existing policy. Auto-Owners settled the claim for $450,000. It then sued Anderson for indemnification of that payment, asserting that Anderson’s issuance of the certificate was fraudulent because Anderson knew at that time that there was no valid Auto-Owners policy covering Allison Metal.

Anderson moved to dismiss on statute of limitation grounds asserting that Auto-Owners’s claim was really one for breach of contract because the complaint includes a number of allegations that Anderson’s actions were in violation of the parties’ agency agreement. The trial court apparently agreed with Anderson as it found that Auto-Owners’s claims were barred under the four-year or six-year statutes of limitation applicable to breach of contract claims. OCGA §§ 9-3-24; 9-3-25. The trial court also found sua sponte that Auto-Owners could not pursue an indemnification claim because it voluntarily settled the underlying lawsuit on behalf of Allison Metal.

1. As an initial matter, we find that Auto-Owners’s complaint sets forth a claim of indemnity rather than a claim for breach of contract. An action for indemnity allows one who has been required to pay damages caused by the tort of a third party to recover against that party: “Indemnification contemplates imputed liability arising from the torts of another. A person who is compelled to pay damages because of liability imputed to him as the result of a tort committed by another may maintain an action for indemnity against the person whose wrong has thus been imputed to him.” (Citations and punctuation omitted.) Crawford v. Johnson, 227 Ga. App. 548, 549 (1) (489 SE2d 552) (1997).

Here, Auto-Owners alleges that it was required to provide insurance coverage to Allison Metal because Anderson fraudulently misrepresented that the company was covered by an Auto-Owners policy. In other words, it contends that Anderson defrauded Allison Metal (and others) when it represented that the company was covered by an Auto-Owners policy. And as principal, Auto-Owners could be liable to Allison Metal for the fraud of its agent, Anderson, under well-settled agency principles. See, e.g., OCGA §§ 10-6-56; 10-6-60. Thus, Auto-Owners asserts that as a result of that fraud it was required to defend Allison Metal in the personal injury suit filed against it and ultimately to pay $450,000 in settlement. We read these allegations as setting forth a claim of indemnification for funds paid due to Anderson’s fraud upon Allison Metal (and other parties who relied upon the certificate of insurance), and not as a direct claim for breach of contract.

The statute of limitation for a claim of indemnity is 20 years from the settlement or final judgment. Satilla Community Svc. Bd. v. Satilla Health Svcs., 251 Ga. App. 881, 888 (3) (555 SE2d 188) (2001); Rolleston v. Cherry, 226 Ga. App. 750, 755 (2) (b) (487 SE2d 354) (1997). And the statute begins to run from the payment of the settlement or judgment. Indeed, “[w]here no funds have yet been expended, a party’s right to seek indemnification has not yet actualized.” (Citation omitted.) Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 775 (2) (503 SE2d 649) (1998). Here, the settlement was paid on October 31, 1997, and suit was filed on October 27, 1999, well within the limitation period. Therefore, we reverse the trial court’s order to the extent that it holds that Auto-Owners’s claim is time-barred.

2. We also hold that the trial court was incorrect in ruling sua sponte that Auto-Owners’s claim for indemnity failed because the company voluntarily settled the underlying action. In the first instance, we note that under OCGA § 51-12-32, the right of indemnity “shall not be lost or prejudiced by compromise and settlement.” Further, the trial court erred in relying upon GAF Corp. v. Tolar Constr. Co., 246 Ga. 411 (271 SE2d 811) (1980), and Southern Nitrogen Co. v. Stevens Shipping Co., 114 Ga. App. 581 (151 SE2d 916) (1966), in making its ruling. Those cases do not hold that settlement bars a claim for indemnity, but rather hold that no such claim exists where the party seeking indemnity was not legally obligated to make payment.

In GAF Corp., our Supreme Court held that a defendant who knowingly failed to raise a valid statute of limitation defense against a claim could not seek indemnity from a third party for the judgment on that claim. The court found that the defendant had intentionally waived its limitation defense in order to keep the third party in the lawsuit and thus limit its own exposure. 246 Ga. at 411. Under these circumstances, the court found that the payment of the judgment was entirely voluntary: “Clearly, in the absence of allegations showing a legal necessity for payment by the [defendant] to the injured party, we must assume that such payment was made voluntarily and not under the compulsion of law; and such being true, the [defendant] had no standing to seek indemnity from the third-party. . . .” (Punctuation omitted.) Id., quoting Southern Nitrogen, 114 Ga. App. at 586 (1).

Similarly, this Court found in Southern Nitrogen that a party failed to state a claim for indemnity where the complaint failed to allege that the plaintiff was under a legal liability to pay the damages for which it sought indemnity. The complaint merely alleged that the party had negotiated a settlement “ 'in order to satisfy [the] continuing demands made [upon] it’ ” by the injured party. 114 Ga. App. at 585 (l). Therefore, the decision in Southern Nitrogen turned on the absence of an allegation of legal liability, not on the fact that the claim was settled.

Decided November 8, 2001.

John T. Croley, Jr., for appellant.

Elliott & Blackburn, Walter G. Elliott, for appellees.

And to the extent that Southern Nitrogen has been interpreted as holding that the “liability of an indemnitee cannot be established prior to the entry of a judgment or other similar legal proceedings against the indemnitee,” this Court has held that that interpretation was superseded by the passage of OCGA § 51-12-32. (Citations omitted.) Randall v. Norton, 192 Ga. App. 734, 736-737 (3) (386 SE2d 518) (1989).

In this case, Auto-Owners has alleged the basis for its legal liability — that Anderson misrepresented that Allison Metal was covered by an Auto-Owners policy and that Auto-Owners was bound by that misrepresentation under the law of agency. And there is no issue here of a clear statute of limitation defense as there was in GAF Corp. Therefore, the issue of whether Auto-Owners can prove it had a legal liability to provide insurance coverage to Allison Metal remains an open question that has yet to be addressed by the parties.

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.

       Both defendant-appellees will be referred to collectively as “Anderson/

       Generally, a trial court must give notice that it intends to consider matters outside the record and that it will treat the motion as a motion for summary judgment. OCGA § 9-11-12 (b). The opposing party is then given 30 days to submit evidence in opposition to the summary judgment motion. OCGA § 9-11-56 (c); Cox Enterprises v. Nix, 273 Ga. at 153. But where both parties submit evidence in connection with the motion and the party opposing the motion raises no objection to the trial court’s consideration of such evidence, this notice requirement is waived. Id. at 154.

       There is no requirement that Auto-Owners be sued for the fraud of its agent before seeking indemnity. Under OCGA § 51-12-32 (c), the right of indemnity exists “[w]ithout the necessity of being charged by an action or judgment.”

       The fact that the complaint alleges that Anderson’s actions violated the parties’ agreement does not alter the nature of the relief sought. Rather, those allegations go to the unlawful nature of the actions and support the allegation of fraud.

       In fact, the third party, itself a defendant in the lawsuit, had successfully raised the limitation defense on the same claim. Tolar Constr. Co. v. GAF Corp., 154 Ga. App. 127 (267 SE2d 635) (1980).

       As Auto-Owners correctly notes, this case construed pleadings filed before the enactment of Georgia’s Civil Practice Act. OCGA § 9-11-1 et seq.


text:
    A01A1316.
    SWARTZ INVESTMENTS, LLC v. VION PHARMACEUTICALS, INC.
    (556 SE2d 460)
   Pope, Presiding Judge.

In June 1997, Swartz Investments, LLC entered into a letter of agreement in which it agreed to assist Vion Pharmaceuticals, Inc. with a private placement to raise financing for Vion. By the end of August 1997, Swartz and Vion were able to raise $4,850,000 in financing from a number of investors. In connection with that financing, the parties signed a Placement Agent Agreement, containing a “Non-Circumvention & Confidentiality of Proprietary Agent Information” clause.

The “Non-Circumvention” clause can be read in two parts. The first part prohibits Vion for a five-year period from directly or indirectly contacting or negotiating with six named investors regarding an investment in Vion or any other company without Swartz’s prior written permission. This portion also prevents Vion from entering into “any agreement or transaction” with the named investors or disclosing their names for the same time period without Swartz’s permission. The second part requires that Vion pay Swartz a five percent commission should Vion accept an investment from one of the named investors through another agent within one year of the date of the “Last Closing” as defined in the subscription agreement.

Swartz contends that in June 1998, Vion directly contacted several of the investors identified in the noncircumvention clause as part of another private placement, which resulted in approximately $5,000,000 in additional financing. After learning of this, Swartz requested a five percent commission under the clause. Vion acquiesced and paid Swartz $250,000. Swartz asserts that nearly a year later, Vion again contacted Swartz investors, without Swartz’s knowledge, and solicited additional financing. The company raised approximately $4,000,000 in total financing in this private placement. This time, Vion refused Swartz’s request for a five percent commission.

Swartz subsequently sued Vion to recover its commission and alleged claims for breach of contract and quantum meruit. Vion filed a counterclaim seeking declaratory judgment stating that the noncircumvention clause was an unenforceable restrictive covenant and requesting the return of the $250,000 fee it paid to Swartz in 1998. Vion moved for summary judgment on Swartz’s claims and its counterclaim. After hearing oral argument, the trial court granted Vion summary judgment as to Swartz’s claims, finding that the noncircumvention clause was an unenforceable restrictive covenant. Swartz appeals.

1. Swartz argues that the trial court erred in its ruling because it contends that the noncircumvention clause is not a restrictive covenant and that the court should have applied a standard contract analysis to enforce the clause. This issue appears to be a question of first impression in Georgia.

Georgia law interprets restrictive covenants to be in partial restraint of trade and demands that they must meet several criteria in order to be enforceable: “[A] restrictive covenant... is considered to be in partial restraint of trade and will be upheld if the restraint imposed is [reasonable], is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public.” W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992), quoting Rakestraw v. Lanier, 104 Ga. 188, 194 (30 SE 735) (1898).

Georgia courts have considered a number of different contractual provisions to be restrictive covenants, including covenants not to disclose and utilize confidential business information, noncompetition clauses, and nonsolicitation clauses. A characteristic shared by each of these provisions is a prohibition, or at the very least a limitation, placed by one party on the other party’s future business activities.

The noncircumvention provision in this case seeks to limit Vion’s ability to conduct business directly or indirectly with the six named investors for a five-year period. Under the clause, Vion must obtain Swartz’s written permission before it can contact or negotiate with the investors regarding any further investment in Vion or any other company and before it enters into any agreement or transaction of any nature with those investors. These limitations upon Vion’s future actions are in partial restraint of trade, and the clause must be considered as a restrictive covenant.

Swartz argues, however, that we should view the clause as more akin to those found in employment placement or real estate listing contracts that provide that the employment agency or the real estate agent will be paid if the client consummates a transaction with someone found by the agent. See, e.g., Avanti Group (USA.) v. Robert Half of Atlanta, Inc., 198 Ga. App. 366 (401 SE2d 576) (1991) (employment placement agency agreement); Kenney v. Clark, 120 Ga. App. 16 (169 SE2d 357) (1969) (exclusive real estate listing contract). But those provisions generally protect the agency’s or the realtor’s right to be compensated for services performed in the contemplated transaction (e.g., finding the client an employer with a suitable job opening or finding a buyer for a seller’s property).

In this case, however, Swartz was compensated for the services performed in the contemplated transaction; it earned a five percent fee for finding investors for the $5 million private placement that was the subject of the Placement Agent Agreement. The noncircumvention clause does not address that compensation. Rather, it seeks to limit Vion’s right to engage in future transactions with those investors, even if completely unrelated to an investment in Vion, for five years. Accordingly, we will analyze the noncircumvention clause as a restrictive covenant.

2. Next, we must determine the appropriate level of scrutiny to apply in reviewing the clause. Georgia courts apply three different levels of scrutiny to restrictive covenants depending generally upon whether the contract at issue is an employment contract, a contract for the sale of a business, or a professional partnership agreement:

Traditionally Georgia courts divide restrictive covenants into covenants ancillary to an employment contract, which receive strict scrutiny and are not blue-penciled, and covenants ancillary to a sale of business, which receive much less scrutiny and may be blue-penciled. There is also a middle level of scrutiny applicable to covenants found in professional partnership agreements.

(Footnotes omitted.) Northside Hosp. v. McCord, 245 Ga. App. 245, 247 (1) (537 SE2d 697) (2000).

Of course, not every contract falls directly into one of these three categories. Nor do we believe that the type of contract should automatically determine the applicable level of scrutiny. Rather, we must look to the purposes behind the varying levels of scrutiny to determine which level is most appropriate for the contract before us. One starting point is the relative bargaining power of the parties:

The rationale behind the distinction in analyzing covenants not to compete is that a contract of employment inherently involves parties of unequal bargaining power to the extent that the result is often a contract of adhesion. On the other hand, a contract for the sale of a business interest is far more likely to be one entered into by parties on equal footing.

(Citations omitted.) Herndon v. Waller, 241 Ga. App. 494, 495 (525 SE2d 159) (1999). The unequal bargaining power in the employment context is one reason covenants in employment agreements are given increased scrutiny. Id.

Another factor this Court has considered is whether there is independent consideration for the restrictive covenant itself. As noted above, for a restrictive covenant to be enforceable, it must be founded on valuable consideration. See W. R. Grace & Co. v. Mouyal, 262 Ga. at 465 (1). In comparing the consideration between a partnership agreement and an employment agreement, for example, this Court has noted that an employee generally receives no consideration separate from his employment for a restrictive covenant:

[W]hen an employee agrees to subject himself to possible future restrictions, he does so in exchange for the opportunity to have the job. He really gets nothing other than the opportunity to work in exchange for giving up this aspect of his freedom. On the other hand, [in a partnership agreement] a partner has not only restricted himself, but he has also exacted from each of the other contracting parties a like restriction. . . .

(Punctuation omitted.) Roberts v. Tifton Med. Center, 206 Ga. App. 612, 615 (426 SE2d 188) (1992). The lack of consideration for an employee’s restrictive covenant is an additional justification for subjecting employment agreements to heightened scrutiny.

In this case, there is no issue of unequal bargaining power. The parties are both corporations who employed attorneys to assist them in negotiating the Placement Agent Agreement. But there is no evidence here of valuable consideration to support the five-year noncircumvention clause itself. Although the trial court assumed without explanation that Vion received a lower commission rate, the evidence in the record is to the contrary.

The initial letter of agreement executed by the parties contemplated that Swartz would introduce Vion to institutional investors who were qualified to participate in the company’s private placement. Swartz also agreed to provide “assistance and consult with Vion in negotiating the terms of the securities,” to prepare the necessary legal documents, and to furnish escrow services. In exchange for those services, Swartz was to receive five percent of the aggregate purchase price of the securities and an expense allowance of $75,000. Swartz also received Vion’s agreement to abide by a noncircumvention provision guaranteeing that Swartz would receive a five percent fee if Vion accepted an investment from any investors introduced by Swartz, without Swartz’s written permission, for a private placement within a one-year period.

The Placement Agent Agreement addresses in detail and expands the obligations of the parties. Vion, in particular, undertakes a number of obligations not listed in the letter agreement, including the five-year noncircumvention clause. Swartz’s obligations in the Placement Agent Agreement relate to the same duties listed in the letter agreement, although they are described in more detail. And each party agrees to indemnify the other. Despite the additional obligations undertaken by Vion, Swartz’s compensation remains the same. The agreement states that Swartz is to receive a five percent fee and a $75,000 expense allowance, as the “full amount payable to the Agent for its services, fees, and expenses in connection with” the private placement. Therefore, there is no evidence of any reduced commission, or any other consideration, to compensate Vion for its obligations under the five-year noncircumvention agreement.

This Court generally has applied the highest level of scrutiny where the parties have equal bargaining power, but where there is no consideration for the covenant at issue. See Northside Hosp., 245 Ga. App. at 248-249 (3); Herndon, 241 Ga. App. at 495; Johnstone v. Tom’s Amusement Co., 228 Ga. App. 296, 300 (3) (491 SE2d 394) (1997) (physical precedent only). See also Eden Hannon & Co. v. Sumitomo Trust & Banking Co., 914 F2d 556 (4th Cir. 1990) (finding noncircumvention clause protecting proprietary information analogous to employment contract). Accordingly, under the particular circumstances surrounding the noncircumvention clause in this case, we will apply the strict level of scrutiny generally applicable to employment contracts. In making this determination, however, we express no opinion as to the level of scrutiny applicable to noncircumvention clauses under different factual circumstances.

3. In reviewing the noncircumvention clause under the strictest level of scrutiny, we must consider the clause in light of the surrounding circumstances: “Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court, which considers the nature and extent of the trade or business, the situation of the parties, and all other circumstances.” (Footnote omitted.) Allied Informatics v. Yeruva, 251 Ga. App. 404, 406 (2) (554 SE2d 550) (2001). Additionally, the Georgia courts have created a three-prong test of duration, territorial coverage, and scope of activity “as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.” (Footnote omitted.) Id.

Decided November 8, 2001

Burr & Forman, Bruce H. Beerman, Ross J. Adams, Carlton M. Johnson, Jr., for appellant.

Stites & Harbison, J. D. Humphries III, David S. Mohl, Paul J. Pontrelli, for appellee.

Here, the restrictive covenant seeks to prohibit further contact with six investors with whom Swartz had a standing relationship. Swartz contends that this list of investors represents hard-won professional and financial relationships and is in effect Swartz’s property. In cases such as this, involving restrictions placed on contact with particular clients with whom the other party dealt, we generally need not consider territorial limitations. Lee v. Environmental Pest &c., 271 Ga. 371, 373-374 (2) (516 SE2d 76) (1999); W. R. Grace & Co., 262 Ga. at 467-468 (2). Rather, the reasonableness of clauses such as the one here “turns on factors of time and the nature of the business interest sought to be protected.” (Punctuation omitted.) Lee, 271 Ga. at 374.

While Swartz has a legitimate interest in protecting its relationship with its pool of investors, the noncircumvention clause must be reasonable in light of that interest in order to be enforceable. The five-year portion of the clause prohibits Vion from entering into any agreement or transaction with the investors, whether investment related or not, without Swartz’s permission. “Ordinarily, proscription of such a broad scope of competing activity renders a [restrictive covenant] void.” (Citation and footnote omitted.) Northside Hosp., 245 Ga. App. at 248 (2). See also Roberts, 206 Ga. App. at 614. Accordingly, we hold that the noncircumvention clause goes beyond what is reasonably necessary to protect Swartz’s interest in its investors and is therefore unenforceable. See Allied Informatics, 251 Ga. App. at 406 (2); Advance Technology Consultants v. RoadTrac, 250 Ga. App. 317, 322 (4) (551 SE2d 735) (2001).

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

       The entire “Non-Circumvention” clause reads as follows:
      7.1 Non-Circumvention. The persons or entities set forth on Exhibit B shall be considered, for purposes of this Agreement, the property of Agent. The Company on behalf of itself, its parent or its subsidiaries (collectively hereinafter referred to as “Company”) agree not to circumvent, directly or indirectly, Agent’s relationship with these investors, their parents or any of the investors’ subsidiaries (collectively hereinafter referred to as “Investors”) and Company will not directly or indirectly contact or negotiate with any of these Investors regarding an investment in the Company, or any other company, and will not enter into any agreement or transaction with Investors, or disclose the names of Investors, for a period of five (5) years from the date hereof without the prior written approval of Agent; provided, however, that notwithstanding the above, nothing contained in this Agreement shall prevent Company from, directly or indirectly, selling securities to the Investors through a public offering or from, directly or indirectly, contracting or negotiating with the Investors in satisfaction of Company’s obligations under the Subscription Agreements entered into in connection herewith. In the event that the Company accepts an investment from an Investor or Investors (other than in a public offering) in a placement being arranged through an agent other than the Agent, during the period beginning on the date hereof and terminating on the first anniversary of the date of the Last Closing as described in the Subscription Agreement, the Company agrees to pay to the Agent a fee equal to five percent (5%) of all amounts invested by such Investor(s).

       The trial court denied Vion’s motion on its counterclaim. Although Vion originally appealed that ruling, it later withdrew its appeal.

       See, e.g., Lee v. Environmental Pest &c., 271 Ga. 371 (516 SE2d 76) (1999).

       See, e.g., Firearms Training Systems v. Sharp, 213 Ga. App. 566 (445 SE2d 538) (1994).

       See, e.g., Advance Technology Consultants v. RoadTrac, 250 Ga. App. 317 (551 SE2d 735) (2001).


author: Phipps, Judge.

text:
    A01A1331.
    HOT SHOT EXPRESS, INC. v. ASSICURAZIONI GENERALI, S.P.A. et al.
    (556 SE2d 475)
   Phipps, Judge.

Hot Shot Express, Inc. (Hot Shot) appeals the grant of summary judgment to Assicurazioni Generali, S.P.A. (Generali) and Aon Risk Service, Inc. of Georgia (Aon) in its action for reimbursement of money paid to settle a claim arising from a collision involving one of its leased tractor-trailers. Because we find that Generali, as the “non-trucking” insurance provider, was not responsible for the resulting loss, we affirm.

Hot Shot, an interstate trucking company based in Pennsylvania, leases trucks to deliver its freight. Richard Darr owned a tractor and trailer, which he leased to Hot Shot. During the lease period, Darr drove his tractor and trailer exclusively for delivering Hot Shot freight. The lease required that Hot Shot maintain “trucker’s insurance,” i.e., public liability, property damage, and cargo insurance on the leased truck to cover any claims that might be made while the truck was operating on Hot Shot’s business. This insurance policy was issued by Protective Insurance Company (Protective). The policy named Hot Shot as the insured, and Hot Shot maintained a $1 million self-insured retention, i.e., deductible, for personal injury liability. The lease also required Darr to carry insurance for “non-trucking” liability to cover claims arising when the tractor-trailer was not being used on Hot Shot’s business. Although Hot Shot purchased this coverage, Darr was the named insured on the policy, and the monthly premiums were deducted from his Hot Shot earnings. This “non-trucking” insurance coverage was provided by Generali through Aon, as insurance broker for the policy.

The Generali policy provides: “We will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injur/ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’ ” The policy includes the following exclusion: “1. This insurance does not apply to: a. A covered ‘auto’ while used to carry property in any business, b. A covered ‘auto’ while in the business of anyone to whom the ‘auto’ is rented. 2. Who is an insured does not include anyone engaged in the business of transporting property by ‘auto’ for hire who is liable for your conduct.”

On March 16, 1992, Darr, who lives in Ohio, picked up Hot Shot freight in Jackson, Mississippi, and drove it to Hialeah, Florida. After unloading the freight, Darr was en route to a Hot Shot terminal in Ocala, Florida, when he collided with a minivan. Both vehicles were total losses, and injuries resulted. Darr reported the collision to Hot Shot. Although there were two sources of liability coverage on the truck — the “trucking” coverage provided by Protective and the “non-trucking” coverage provided by Generali — Hot Shot reported the collision only to Protective. Neither Generali nor Aon was initially contacted.

In August 1992, the occupants of the minivan made claims against Hot Shot for personal injuries and property damage. Two years later, in August 1994, Hot Shot notified Aon of the accident. Aon opined that the claim was not covered by the Generali policy. Although by December 1996, Hot Shot had settled the claims of the minivan occupants, the record does not reflect any additional contact between Hot Shot and Generali or Aon until Hot Shot brought the present action in December 1997 seeking indemnification from Generali.

The parties filed cross-motions for summary judgment. The trial court found, as a matter of law, that Hot Shot had neither a direct cause of action nor a valid subrogation claim against Generali and Aon. Thus, the court granted Generali and Aon’s motion for summary judgment and denied Hot Shot’s cross-motion.

On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in the light most favorable to the nonmoving party, demonstrates any genuine issue of material fact. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. We will affirm a grant of summary judgment if it is right for any reason.

Federal motor carrier regulations require a motor carrier utilizing leased or rented equipment to “have exclusive possession, control, and use of the equipment for the duration of the lease. The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.” Under this regulatory scheme, the motor carrier is fully responsible to the public for the operation of its leased vehicles, regardless of whether the vehicles are used in the scope of the carrier’s business.

Hot Shot argues that Darr was not engaged in trucking business at the time of the collision because he had already unloaded his delivery in Hialeah, and therefore the exclusions in the Generali policy did not apply. Thus, Hot Shot contends, Generali’s “non-trucking” insurance policy covered the claims resulting from the collision, despite Hot Shot’s failure to notify Generali of the collision and subsequent tort claim. In the alternative, Hot Shot argues that Aon should reimburse it because Aon, whom Hot Shot eventually notified, breached its fiduciary duty to pass along the notice to Generali. Generali and Aon advance a number of reasons why they are not liable, including Hot Shot’s failure to give timely and appropriate notice, Hot Shot’s lack of standing to sue under the Generali policy, and the absence of a valid subrogation claim.

Pretermitting these issues, we conclude that Generali’s policy did not apply to the collision in question. The Generali policy expressly excluded coverage when the truck was being used “in the business of anyone to whom the [truck] is rented.” Thus, if Darr was “in the business of” Hot Shot at the time of the collision, the policy did not apply. Because we have held that under the federal regulatory scheme Darr is Hot Shot’s statutory employee, we are guided by the analysis used to determine whether an employer is vicariously liable for the torts of its employee. (Being mindful, however, that driving in the scope of one’s employment with the lessee does not equate to driving in furtherance of the lessee’s business within the terms of a business exclusion.) Under a respondeat superior analysis, liability attaches if the employee was acting “within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.”

At his deposition, Darr testified that he planned to go home to Ohio after the Hialeah delivery. He said he called the Hot Shot agent before he arrived in Ocala to determine if there was a delivery he could make while traveling home. Although he was not positive, he believed he was not assigned a load at that point. Darr said that, in spite of this, it was his intention to go to the freight terminal in Ocala and wait for a load. He testified that whenever he made deliveries in Florida, it was customary for him to go to the Ocala terminal to wait on a load and that he had driven home only once with an empty trailer.

In Wright v. Transus, Inc., we found that a tractor may be in use for the carrier’s business even though the driver has made a delivery and is awaiting his next dispatch, if the driver was in the city where the freight terminal is located “solely to await the next dispatch.” Under such circumstances, the driver is “£ “at that time engaged in serving his master.” ’ [Cit.]”

In AXA Global Risks, this Court found that the driver was not engaged in the carrier’s business, but rather on a personal mission, when an accident occurred while the driver was off duty during a long weekend, even though he was assigned a load for pickup the following Tuesday. Accordingly, since the activity which resulted in the collision was not part of the driver’s “regular work pattern” or “operational routine,” we held that primary insurance coverage fell under the nontrucking provider.

Here, even though Darr had unloaded in Hialeah and was not yet under dispatch, he was en route to Ocala for the purpose of picking up another load. The undisputed facts show that Darr was within his “work pattern” and “operational routine.” It cannot be said that the trip from Hialeah to the freight terminal in Ocala was not related to Hot Shot’s business. We find as a matter of law that the accident occurred while Darr was “in the business” of Hot Shot and that, Generali, as the “non-trucking” provider, was not responsible for the loss. Because we have so found, we need not discuss Hot Shot’s remaining enumerations. We affirm the decision of the trial court.

Judgment affirmed.

Blackburn, C. J., and Smith, P. J., concur. Barnes, J., not participating.

Decided November 8, 2001

Gray, Hedrick & Edenfield, William E. Gray II, Linda M. Fitzgerald, for appellant.

Dennis, Corry & Porter, Ronald R. Coleman, Jr., Sutherland, Asbill & Brennan, Thomas W. Curvin, Elizabeth V. Tanis, Hill & Kertscher, Jennifer S. Friedman, for appellees.

       Protective is not a party in the action because the claim amount was within the $1 million self-insured retention.

       This coverage is known as “bobtail” and “deadhead” coverage. “Bobtailing” refers to operating the truck without the trailer attached, and “deadheading” means driving with an empty trailer.

       “Auto” refers to the truck Hot Shot leased from Darr.

        Leal v. Hobbs, 245 Ga. App. 443 (538 SE2d 89) (2000).

       See id.

        Costrini v. Hansen Architects, 247 Ga. App. 136, 138 (1) (543 SE2d 760) (2000).

       49 CFR § 376.12 (c).

        Nationwide Mut. Ins. Co. v. Holbrooks, 187 Ga. App. 706, 713 (3) (371 SE2d 252) (1988).

       Although Hot Shot correctly contends that it is statutorily responsible to the public for the operation of the leased truck driven by Darr, it was not required to settle the personal injury claims that arose from the collision. “[There is] no basis to conclude that the interstate motor carrier regulations require that [Hot Shot’s] insurance policy provide primary coverage where other coverage is available.” (Emphasis in original.) AXA Global Risks v. Empire Fire &c. Ins. Co., 251 Ga. App. 543, 545-546 (554 SE2d 755) (2001).

       The policy also excluded coverage when the truck was being used to carry freight. However, as it is uncontested that the trailer was empty at the time of the accident, that exclusion does not apply.

        Holbrooks, supra at 713 (3).

        AXA Global Risks, supra at 547, n. 2.

       Id.

       (Punctuation omitted.) Wittig v. Spa Lady, 182 Ga. App. 689, 690 (356 SE2d 665) (1987).

       209 Ga. App. 771, 772-773 (1) (434 SE2d 786) (1993).

       Id. at 773.

       Id.

       Supra.

       Id. at 547.

       Id.

       See id.


author: POPE, Presiding Judge.

text:
    A01A0654.
    THE STATE v. MEADOWS.
    (556 SE2d 479)
   POPE, Presiding Judge.

Christopher Jay Meadows was charged by accusation with two counts of simple battery. He filed a demurrer, which the state court granted. Here the State appeals, and for the following reasons, we reverse.

The first count of the accusation against Meadows charged that he “on or about the 18th day of July, 1999, did unlawfully intentionally cause physical harm to Cynthia E. Compton, in violation of OCGA Section 16-5-23 (a) (2), contrary to the laws of the State. . . .” Count 2 charged that Meadows “did unlawfully intentionally make contact of an insulting and provoking nature with Cynthia E. Compton, in violation of OCGA Section 16-5-23 (a) (1), contrary to the laws of the State. . . .”

Meadows filed a demurrer, arguing that the use of the word “unlawfully” was improper. Both in the court below and on appeal, he contends that the word is not required by OCGA §§ 17-7-70.1 and 17-7-71 to constitute the offense of simple battery and that its use made the offense appear more severe. Additionally, Meadows contends that the word “unlawfully” creates a presumption of guilt when read to a jury.

The State argues that the trial court abused its discretion in dismissing the accusation because there was no legal defect which would have subjected it to dismissal. The State further contends that the word “unlawfully” was necessary to the accusation in that this specificity negated affirmative defenses to battery such as justification and provocation. Moreover, the State argues that judges routinely instruct juries that the accusation is not evidence and that this fact renders meritless Meadows’ contention that the word creates an “aura of guilt.”

We agree with the State that the trial court erred in dismissing the accusation because the use of the word “unlawfully” was not fatal. In fact, this court has specifically stated that “an allegation that appellant acted ‘unlawfully’ is sufficient to encompass both the intent to commit the proscribed act and the knowledge necessary to form that intent.” Joiner v. State, 204 Ga. App. 592, 593 (3) (420 SE2d 73) (1992). See also State v. Bolman, 222 Ga. App. 534, 535 (474 SE2d 721) (1996); Gamble v. State, 235 Ga. App. 777, 779 (3) (510 SE2d 69) (1998). In Frost v. State, 200 Ga. App. 267 (2) (407 SE2d 765) (1991), this court upheld the trial court’s denial of the demurrer, concluding that the use of the word “unlawfully” instead of the word “knowingly” was sufficient to charge the defendant with committing arson with the requisite intent.

Similarly, in this case the use of the word “unlawfully” was proper in charging Meadows with two counts of simple battery. OCGA § 16-5-23 (a) states: “A person commits the offense of simple battery when he . . . either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.”

Although we are unaware of a case in which this court specifically addressed the issue of the use of the word “unlawfully” in charging simple battery, this court has implicitly upheld the use of this word in the context of simple battery charges in several cases. See, e.g., Jackson v. State, 205 Ga. App. 452 (2) (422 SE2d 304) (1992); Jinks v. State, 155 Ga. App. 925 (1) (274 SE2d 46) (1980).

In the instant case, there was no impropriety in the use of the word “unlawfully.” The word helped define the manner in which the State claimed the simple batteries were committed, i.e., the word negated the affirmative defenses to the act. We reject Meadows’ argument that because the accusation charged that he committed the battery “intentionally,” the use of the word “unlawfully” was redundant and prejudicial.

Contrary to Meadows’ arguments, our decision is consistent with the provisions of OCGA §§ 17-7-70.1 and 17-7-71. Moreover, in setting forth the form with which an accusation shall substantially comply, OCGA § 17-7-71 (d) states that after the offense is set forth the accusation shall conclude with the phrase: “contrary to the laws of this state, the good order, peace, and dignity thereof.” See Littles v. State, 236 Ga. 651-652 (1) (b) (224 SE2d 918) (1976) (failure to use words prescribed by statute was not fatal to indictment when substitutionary words used). Given this statutory provision, it would be nonsensical to conclude that Meadows could have been harmed by the use of the word “unlawfully” earlier in the accusation.

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.

Decided November 9, 2001.

Gerald N Blaney, Jr., Solicitor-General, Gary S. Vey, Assistant Solicitor-General, for appellant.

Peevy & Lancaster, Gregory W. Lancaster, for appellee.

       See OCGA § 17-7-54 for similar provisions with respect to indictments.


text:
    A01A0951.
    NULITE INDUSTRIES COMPANY, LLC v. HORNE.
    (556 SE2d 255)
   Phipps, Judge.

Anne Horne sued Nulite Industries Company, LLC, claiming that the company’s negligent installation of vinyl siding and windows on her mobile home caused extensive water damage that rendered her home uninhabitable. Alleging breach of contract, negligent installation, breach of warranty, and bad faith in the transaction, she sought damages, attorney fees, and litigation expenses. The trial court denied Nulite’s motion for summary judgment on the issues of breach of contract, breach of warranty, and attorney fees. At trial, Horne successfully moved for a directed verdict on the breach of contract, negligent installation, and breach of warranty claims. The jury awarded her $26,000 in general damages and $9,303 in attorney fees. Nulite appeals, contending that it did not breach its contract because the siding and windows were installed properly. It contends that it cannot be liable for any alleged negligent installation because the installer was an independent contractor. It further contends that the breach of warranty claim was time-barred and the existence of bona fide controversies precluded the award of attorney fees. We disagree with Nulite’s contentions and affirm.

The record shows that in January 1996, Horne and her husband contracted with Nulite for it to install vinyl siding and replace 11 aluminum windows with vinyl ones on their mobile home for $7,150. The contract included Nulite’s “non-limited one year” warranty for all workmanship. The work was completed in February 1996. During the next 21 months, the Homes lived there without noticing any problems from the installation. In November 1997, the Hornes separated and Horne moved out of the home. In October 1998, after they divorced, she moved back into the home and discovered problems caused by water leaking into her home around the windows, including water stains on the walls, rotten wood, mildewed carpet, and holes in the floor. She immediately notified Nulite. In March 1999, because she believed that Nulite had not adequately responded, she sued the company. Her husband is not a party to this action.

1. Nulite contends the trial court erred in granting Horne’s motion for a directed verdict on the issue of breach of contract. A directed verdict can be upheld only where all the evidence demands that verdict, which requires a de novo review.

The foundation for Horne’s breach of contract claim is that Nulite failed to install the siding and windows with quality workmanship. Implied in every contract by building contractors is the obligation to perform in a fit and workmanlike manner. This contract duty is breached “when the builder fails to exercise a reasonable degree of care, skill, and ability under similar conditions and like surrounding circumstances as is ordinarily employed by others in the same profession.”

The uncontradicted evidence showed that Nulite breached the contract by failing to perform in a fit and workmanlike manner. At trial, Nulite’s own subcontractors testified that weep holes on thé windows were covered in error and that aluminum coil stock improperly installed around the windows failed to create a watertight seal. These conditions caused water to drain into the home, starting with the first rain. In addition, Horne’s expert on installing vinyl siding and windows opined that none of the windows was installed properly and that the improper installation caused immediate water seepage resulting in “deplorable” rot of the areas around the windows, down the walls, and on the floors. The record also reveals that Nulite’s attorney conceded at trial that the installer had negligently performed the work. And although Nulite points out that Horne signed a certificate of completion stating the work had been performed to her “complete satisfaction,” the certificate did not extinguish Nulite’s contractual duties. The trial court correctly directed a verdict for Horne on the breach of contract claim.

2. Nulite contends the trial court erred in denying its motion for a directed verdict on the negligent installation claim. It argues that it cannot be held liable for any negligence of the installer because the installer was an independent contractor. Even assuming that the installer was an independent contractor, this argument fails. Generally, employers are not responsible for torts committed by independent contractors. But an exception to that rule is where the wrongful act violates a duty imposed by an express contract upon the employer. Nulite does not dispute that by written agreement with Horne, it undertook to install the siding and windows. Therefore, it may not escape liability by arguing that it employed an independent contractor to perform its obligations.

3. Nulite contends the trial court erred in denying its motions for summary judgment and for directed verdict on the issue of whether the expiration of the one-year warranty barred Home’s breach of warranty claim. The contract provided: “Contractor warrants that all repairs or improvements or other work as above specified shall be done and completed in a substantial and workmanlike manner. . . . This contract includes our non-limited one year guarantee for all workmanship plus regular manufacturer’s materials guarantee.”

Nulite essentially argues that because it expressly warranted that the installation would be free of defects in workmanship for a one-year period, its liability was limited to one year and Horne’s breach of warranty claim filed after that was time-barred. It claims its warranty reduced the six-year statute of limitation period to one year. That argument was rejected in Clouts v. Scholle. Here, it is undisputed that the defects occurred during the warranty period. And the expiration of one year did not bar Horne’s breach of warranty claim. Horne’s claim remained subject to the six-year statute of limitation under OCGA § 9-3-24 and was filed timely. And although Nulite complains that Horne did not notify it of the leakage until two and a half years after installation, the warranty provision placed no notice requirement upon Horne. Finally, contrary to Nulite’s assertion, Caroline Realty Investment v. Kuniansky does not require a ruling in its favor. In that case, while the claim was filed within the six-year statute of limitation period, the one-year limitation of the guarantee barred the breach of warranty claim where there was no evidence that the defect occurred during the warranty period.

The trial court did not err in directing a verdict for Horne on the breach of warranty claim. It follows that the trial court’s denial of Nulite’s motion for summary judgment on this issue is moot.

4. Nulite contends that the trial court erred in denying its motions for summary judgment and directed verdict on the issue of attorney fees because there were bona fide controversies between the parties.

The issue of attorney fees was submitted to the jury and a judgment rendered on the jury’s verdict. Thus, the denial of a summary judgment motion as to attorney fees is moot.

Horne’s claim for attorney fees was based on an allegation that Nulite acted in bad faith. The existence of a bona fide controversy will not defeat a claim for attorney fees when bad faith is an issue. Bad faith authorizing an award of attorney fees “must relate to the conduct of entering the contract or to the transaction and dealings out of which the cause of action arose, which includes not only the negotiations and formulation of the contract but also performance of the contractual provisions.”

One Nulite subcontractor, who had worked for the company for over 20 years, testified that the installation on Home’s home was so defective that it would have been “impossible” for the installer not to have known that the work was performed incorrectly. He stated that Nulite, however, did not inspect completed work, and that after Nulite hired installers, it simply took a wait and see attitude on whether the work was performed satisfactorily. Nulite’s general manager testified that the company provided no training to its subcontractors on how to seal windows properly. He further testified that the improper installation on Home’s home would have caused immediate leakage and that the condition was covered by Nulite’s “non-limited one year” warranty. When Horne notified Nulite about the problem, she was told that the general manager would contact her within a few days, which he did not do. Afterward, when she was able to reach him by telephone, he asked for a copy of her contract, which she provided. Again, she did not hear back from him, although she called him repeatedly during the next few weeks and left messages. No Nulite representative came to inspect Horne’s home for several months. Because there was evidence of bad faith in the transaction, the trial court properly denied Nulite’s motion for directed verdict on the claim for attorney fees.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided November 9, 2001.

Thomas R. Taggart, for appellant.

Spiva, Lewis, Owens & Mulherin, George L. Lewis, for appellee.

        City of Macon v. Macrive Constr., 241 Ga. App. 396 (525 SE2d 418) (1999).

        Hall v. Harris, 239 Ga. App. 812, 817 (4) (521 SE2d 638) (1999).

       Id.

        John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 567 (1) (333 SE2d 856) (1985) (statements of counsel during the trial of a case may be regarded as admissions in judicio).

       Accord Pinnacle Constr. Co. v. Osborne, 218 Ga. App. 366, 367 (2) (460 SE2d 880) (1995).

       OCGA § 51-2-4.

       OCGA § 51-2-5 (3); Crispens Enterprise v. Halstead, 209 Ga. App. 133, 134 (2) (433 SE2d 353) (1993).

       172 Ga. App. 721, 722 (1) (324 SE2d 496) (1984); see also Benning Constr. Co. v. Lakeshore Plaza Enterprises, 240 Ga. 426, 429 (241 SE2d 184) (1977).

        Benning Constr. Co., supra; Clonts, supra.

       Compare Stimson v. George Laycock, Inc., 247 Ga. App. 1, 4-5 (542 SE2d 121) (2000).

       127 Ga. App. 478, 481 (2) (194 SE2d 291) (1972).

       See id.

        Dunlap v. Dunlap, 234 Ga. 304, 306 (3) (215 SE2d 674) (1975); Weir v. Kirby Constr. Co., 213 Ga. App. 832, 836 (4) (446 SE2d 186) (1994).

        Talmadge v. Talmadge, 241 Ga. 609 (1) (247 SE2d 61) (1978).

        Home Ins. Co. v. Wynn, 229 Ga. App. 220, 223 (3) (493 SE2d 622) (1997).

       (Citation and punctuation omitted.) Beall v. F. H. H. Constr., 193 Ga. App. 544, 547 (5) (388 SE2d 342) (1989).

       See Ryland Group v. Daley, 245 Ga. App. 496, 500 (3) (537 SE2d 732) (2000); Home Ins. Co., supra.


text:
    A01A1620.
    BOWEN v. THE STATE.
    (556 SE2d 252)
   Phipps, Judge.

Michael Lamar Bowen appeals his convictions for aggravated assault and criminal attempt to commit kidnapping, contending that the trial court improperly limited his cross-examination of a State’s witness about her financial interest in his trial. We agree and reverse.

V. B. testified that as she was jogging on the morning of October 3,1999, Bowen drove his car beside her. She testified that he leaned toward her, pointed a gun at her, and demanded that she get into the car. She ducked, turned, and ran away, noting the car’s license tag.

Bowen testified and admitted driving his car alongside V. B., leaning toward her, and “requesting” her to get into his car. She ducked and ran away. Bowen denied, however, threatening her or having a gun during the incident.

A witness testified that when the driver said something to the jogger, a look of panic appeared on her face and she fled. The witness, however, was unable to hear the driver’s words and was unable to see whether the driver held a gun.

The day after the incident, a check on the car’s license tag led a police detective to Bowen’s residence. A search of Bowen’s bedroom closet revealed a Daisy BB pistol, which V. B. testified was similar to the one pointed at her during the incident.

Bowen contends the trial court improperly limited his cross-examination of V. B. about her financial interest in his trial based on a claim she had filed for financial assistance. At trial, his attorney proffered evidence that V. B. was seeking money from the Georgia Crime Victims Emergency Fund (Fund) based on the incident underlying this case. He argued, “If the witness knows that upon conviction of a crime that she can claim the money, it is certainly relevant to show why she is testifying in the manner in which she’s testifying.” The trial court ruled the evidence was inadmissible as irrelevant.

“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” “A party is entitled to a ‘thorough and sifting cross-examination’ of the witnesses against him. Evidence tending to show motive is always relevant and admissible. Further, a witness’s financial interest in the outcome of a trial is always a proper subject for cross-examination.” And we have consistently held that in criminal cases, it is reversible error to refuse to permit cross-examination regarding the financial interest of an adverse witness arising from a pending civil suit based on the incident underlying the criminal action, where the evidence is conflicting and the adverse witness’s testimony is material.

No civil suit has been filed based on the underlying incident of this case, but Bowen proffered evidence of a claim by V. B. seeking financial assistance from the Fund. There is no requirement that the source of compensation to the witness be the criminal defendant. We focus on the witness’s financial interest, not the means through which the witness might receive compensation. The General Assembly authorized the Georgia Crime Victims Compensation Board to provide awards from the Fund to certain crime victims. The validity of each claim is checked by a board investigator, whose “investigation shall include, but not be limited to, an examination of law enforcement, court, and official records and reports concerning the crime. . . ” No award may be made unless the board or its director finds, among other things, that a crime was committed against a person and the victim or claimant has pursued restitution against the person who committed the crime, unless the board or director determines that such action would not be feasible.

We reject the State’s argument that because there is no requirement that the person responsible for the crime be prosecuted for a victim to receive compensation from the Fund, V. B. did not have a financial interest in Bowen’s prosecution. It is true that each claim must be investigated and determined regardless of whether an alleged criminal has been apprehended, prosecuted, convicted, or acquitted, but the State’s argument overlooks the fact that Bowen’s conviction would have bolstered V. B.’s claim by providing court records showing that a crime was committed against her. Further, participating in a criminal prosecution where the trial court had the power to order restitution was a means by which V. B. could fulfill the requirement of pursuing restitution. We find that V. B.’s claim for compensation was based on the same facts underlying Bowen’s prosecution and that she had a financial interest in his trial.

Decided November 9, 2001.

Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Jay M. Jackson, Assistant District Attorney, for appellee.

In this case, the evidence is conflicting, and V. B.’s testimony is material. The indictment charged Bowen with making an assault against V. B. with a pistol. He was also accused of performing an act constituting a substantial step toward the commission of kidnapping by ordering V. B. into his automobile while pointing a pistol at her, with the intent to abduct and hold her against her will. Thus, the use of a gun supplied essential elements of the crimes charged because without it, the incident was more akin to, as Bowen repeatedly testified, his effort simply to meet a woman. Bowen’s conviction hinged on the credibility of V. B. because only she testified that Bowen used a gun. Bowen was entitled to cross-examine her about any financial interest in his trial to show possible improper motivation for her testimony so that the jury could make an informed judgment as to the weight to give it. We reject the State’s argument that evidence corroborating V. B.’s testimony rendered the error harmless and conclude that because her testimony was material and the evidence was conflicting, we cannot hold the trial court’s error harmless.

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

       See OCGA § 17-15-1 et seq.

        Davis v. Alaska, 415 U. S. 308, 316 (2) (94 SC 1105, 39 LE2d 347) (1974).

       (Citations omitted; emphasis in original.) Cunningham, v. State, 240 Ga. App. 92, 93 (1) (522 SE2d 684) (1999); see also Davis, supra.

       See Cunningham, supra at 94 (1) (b) (extending proposition to include threatened civil suit where ante litem notice had been served on the State); Boggs v. State, 195 Ga. App. 605, 606 (394 SE2d 401) (1990); Lloyd v. State, 40 Ga. App. 230, 231 (149 SE 174) (1929); Billings v. State, 8 Ga. App. 672, 673 (2) (70 SE 36) (1911); compare Demetrios v. State, 246 Ga. App. 506, 509 (3) (541 SE2d 83) (2000) (court did not err by restricting cross-examination regarding a nonexistent civil suit where there was no factual basis or proffer).

        Cunningham, supra.

       See id.

       OCGA §§ 17-15-1; 17-15-3; 17-15-4 (a) (5); 17-15-10 (d). We pretermit whether the claim in this case would have been successful.

       OCGA § 17-15-6 (a).

       OCGA §§ 17-15-2 (3); 17-15-8 (a).

       OCGA § 17-15-6 (b).

       See Davis, supra at 317.

       See Cunningham, supra at 95-96 (1) (c); Boggs, supra; compare Chancellor v. State, 165 Ga. App. 365, 372 (23) (301 SE2d 294) (1983) (refusal to allow cross-examination about a pending damage suit based upon the same facts involved in the criminal case was not harmful error where court found “little conflict in the evidence” in prosecution for murder case where defendant admitted that he shot the victim but claimed justifiable homicide).


author: Mikell, Judge.

text:
    A01A2130.
    DIXON v. THE STATE.
    (556 SE2d 480)
   Mikell, Judge.

A jury convicted Willie Dixon of two violations of the Georgia Controlled Substances Act: sale of cocaine, OCGA § 16-13-30, and distribution of cocaine within 1,000 feet of a public housing project, OCGA § 16-13-32.5. The trial court denied his motion for new trial. Dixon appeals, contending that there was insufficient evidence to support his conviction, that the court erred in refusing to give a requested jury charge and in admitting an alleged statement by Dixon not disclosed prior to trial, and that the indictment was defective. We disagree and affirm the conviction.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

So viewed, the evidence shows that on June 22, 2000, Officers Tony Pyle and Jay Marquez of the Calhoun Police Department conducted an undercover investigation. The officers engaged a confidential informant, Matthew Lane, to make an undercover drug purchase. They met Lane at the department’s drug task force office, where Pyle conducted a routine pre-transaction search of Lane’s person, equipped him with a recording device and transmitter, and discussed the investigation with him.

From the drug task force office, Marquez drove Lane to the intersection of Oothacalooga Street and Powell Street. Pyle traveled separately to the same location in a van. Lane informed Marquez that he recognized a potential drug dealer on the porch of a house on Powell Street. The man was later identified by Lane as Dixon. Marquez gave Lane $20 with which to purchase drugs. Lane approached the man while Marquez remained in the car parked in front of the house. The officer observed Lane and the man talking for several minutes.

Lane returned to the vehicle and informed Marquez that he had arranged to make a purchase in approximately five minutes. They drove around the immediate area to wait for the transaction to take place. During that time, Lane told Marquez that the man with whom he spoke was Dixon. They soon encountered Dixon, who told Lane to exit the car and instructed Marquez to drive down the street. Marquez testified that he drove forward at a very slow speed while he watched the transaction in the rearview mirror. He observed Dixon place something in Lane’s hand. When Lane returned to the vehicle, he gave Marquez a “white rock substance” that appeared to be crack cocaine. Marquez and Lane then returned to the drug task force office.

Pyle, who witnessed the transaction from the van, also returned to the office. He took possession of the suspected cocaine from Marquez and subsequently transported it to the crime lab. Cindy Simpson, a forensic chemist employed by the Georgia Bureau of Investigation, testified that the substance tested positive for the presence of cocaine.

Dixon was arrested approximately one month later. On September 14, 2000, Lane was arrested on a DUI charge and was placed in the Gordon County jail. Lane testified that he saw Dixon in a holding cell across from his, and that Dixon pointed at him and said that Lane was the one “that busted him.” Lane was not working for the police as an informant at that time.

At trial, Pyle, Marquez, and Lane positively identified Dixon as the person from whom Lane purchased the crack cocaine. Marquez testified that he had three opportunities to observe Dixon: while he was sitting in the car during Lane’s first contact with Dixon; again when he and Lane saw Dixon walking down the street; and in the rearview mirror when Dixon sold Lane the crack cocaine. Marquez described Dixon’s appearance in detail. Pyle testified that he recognized Dixon as the man who sold Lane the drugs, and that he knew Dixon prior to the events in question. Pyle further testified that the transaction took place within 1,000 feet of a public housing project, and he identified photographs of the area. The jury convicted Dixon of selling cocaine and of distributing cocaine within 1,000 feet of a public housing project.

1. First, Dixon argues that the evidence was insufficient to support his conviction. We disagree.

OCGA § 16-13-30 (b) provides that “it is unlawful for any person to . . . deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.” OCGA § 16-13-32.5 (b) prohibits the distribution of a controlled substance “within 1,000 feet of any real property of any publicly owned or publicly operated housing project.” Cocaine is a controlled substance. OCGA § 16-13-26 (1) (D). We conclude that the evidence summarized above was sufficient for a rational trier of fact to find Dixon guilty of both offenses beyond a reasonable doubt. Williams, supra.

Dixon’s arguments to the contrary are without merit. He argues that the verdict was contrary to the evidence, because he presented two witnesses who testified that he did not own clothing that matched the description of what the state’s witnesses said he was wearing. Dixon also argues that the police officers’ testimony was not credible, and that Pyle should have taken photographs of the transaction between Lane and Dixon. Finally, Dixon reiterates the allegation he made at trial that the officers confused him with another person.

It is well settled that “[w]itness credibility is to be determined by the jury.” (Citations and punctuation omitted.) Holmes v. State, 273 Ga. 644, 645 (1) (543 SE2d 688) (2001). “Conflicts in the testimony of the witnesses . . . are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld.” Ringo v. State, 236 Ga. App. 38, 39 (510 SE2d 893) (1999). Accordingly, because there was ample evidence to support the jury’s verdict, we affirm Dixon’s conviction.

2. Next, Dixon contends that the court erred by refusing to give the following requested jury charge: “I charge you that mere knowledge of a crime is not sufficient to show that a defendant is a party to the crime.” Our review of the transcript reveals that the trial court gave that precise charge. Accordingly, there was no error.

3. Dixon assigns error to the court’s admission of his statement in jail that Lane was the one “that busted him.” Dixon acknowledges that the prosecutor did not know about the statement until he interviewed Lane for the first time after the trial had begun; however, Dixon argues that the state’s failure to disclose the statement before calling Lane as a witness renders it inadmissible. We disagree.

The trial transcript shows that the prosecutor learned of the statement “fifteen or twenty minutes” before bringing it to the court’s and defense counsel’s attention. The trial court ruled that Dixon’s statement was admissible, because it was not the product of police interrogation and because it was previously unknown to the state.

We conclude that the trial court did not abuse its discretion in admitting Dixon’s statement. OCGA § 17-16-4 (a) (1) requires the state to disclose any “relevant . . . oral statement made by the defendant while in custody, whether or not in response to interrogation,” no later than ten days prior to trial. OCGA § 17-16-6 provides:

If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may . . . upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed ... or may enter such other order as it deems just under the circumstances.

In this case, Dixon failed to demonstrate that the state acted in bad faith in failing to comply with OCGA § 17-16-4 (a) (1). Therefore, the court did not err in refusing to exclude the newly discovered evidence. Bell v. State, 224 Ga. App. 191, 192 (480 SE2d 241) (1997) (court did not have authority to exclude defendant’s incriminating statement to police officer because the defendant failed to show bad faith or prejudice). Furthermore, in Broomall v. State, 260 Ga. 220, 222 (2) (391 SE2d 918) (1990), the Supreme Court held that a trial court did not err in admitting an incriminating statement made to an insurance agent while the defendant was in custody, because the evidence was “newly discovered and was revealed as soon as practicable after its discovery.”

The case sub judice is distinguishable from our decision in Marshall v. State, 230 Ga. App. 116 (495 SE2d 585) (1998). In Marshall, we held that a trial court erred in allowing the admission of an incriminating in-custody statement the defendant made to the detention technician who fingerprinted him. Despite the fact that the technician informed the prosecutor of the statement only ten minutes before the state sought to introduce it, we concluded that it was not newly discovered because evidence garnered by any law enforcement agency is deemed to be in the prosecution’s possession from the time it is communicated. Id. at 118 (2). In the case sub judice, however, Dixon’s statement was not made to a law enforcement officer; rather, it was made in the presence of another inmate who coincidentally happened to be the confidential informant involved in the investigation of Dixon. Furthermore, in Marshall the incriminating statement “provided the only direct evidence of [the defendant’s] guilt.” Id. at 119 (2). Here, there was substantial evidence of Dixon’s guilt in the absence of his statement that Lane “busted him.” Accordingly, the trial court did not err in admitting evidence of Dixon’s statement.

4. Finally, Dixon argues that his indictment was defective because it failed to allege the county in which the offense was committed. This argument is without merit.

The indictment states the county of the offense, Gordon County, at the top of the document. In Thomas v. State of Ga., 71 Ga. 44 (1883), the Supreme Court held that when an indictment began “State of Georgia, Campbell county,” and no other county was mentioned, a subsequent allegation in the indictment that the crime was committed in “the county aforesaid” sufficiently stated the venue. Similarly, the indictment in this case states that the offenses were committed in “the County aforesaid,” clearly referring to Gordon County. Thus the indictment was not defective.

Decided November 9, 2001.

Rodney L. Mathis, for appellant.

T. Joseph Campbell, District Attorney, Donald S. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       The police attempted to record the transaction between the informant and the defendant; however, the sound quality of the recording was poor due to interference from overhead power lines. Thus, the recording was unusable and was not introduced at trial.