text:
    A94A1323.
    FRANCIS v. REYNOLDS.
    (450 SE2d 876)
   Pope, Chief Judge.

This is a medical (dental) malpractice action filed by plaintiff Dorothy Francis against Terry J. Reynolds, D.D.S. The jury returned a verdict for defendant, and plaintiff appeals.

In her sole enumeration of error, plaintiff contends the trial court erred in denying her motions to stay and continue the trial of this case pending the outcome of hearings conducted by the Georgia Board of Dentistry (Board) concerning defendant’s treatment of plaintiff and two other patients so that the Board’s findings could have been admitted into evidence during the trial of plaintiff’s medical malpractice case.

The standard of review for denial of the stay is whether the trial court abused its discretion. “ ‘ “ ‘(T)he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.’ (Cits.)” [Cits.]’ ” Roberts v. Collins, 199 Ga. App. 614 (3) (405 SE2d 508) (1991). Additionally, “[i]t is well established that all continuances for which express provision has not been made are granted or denied in the discretion of the trial court, and this court will not reverse such decisions absent a clear abuse of discretion.” Payton v. Green, 179 Ga. App. 438, 439 (346 SE2d 884) (1986). OCGA § 9-10-167.

At the heart of this case is the question of the admissibility of the findings of the Board. Clearly, there can be no abuse of discretion in denying plaintiff’s requests for a stay if the findings of the Board would not have been admissible even if they had been available at the time of trial. Although this issue appears to be one of first impression in this state, a close look at plaintiff’s arguments in support of admissibility leads us to conclude that these arguments must fail.

Plaintiff contends, in essence, that the Board, which is composed primarily of dentists, is more qualified than a jury to determine whether defendant’s treatment of her fell below an “acceptable” standard of care. This may be true; however, in a civil trial, it is the jury who must determine whether plaintiff has shown by a preponderance of the evidence that defendant’s treatment of her fell below the applicable standard of care. Treating the Board’s findings as outcome determinative on this issue would be tantamount to relieving plaintiff of this burden of proof at trial and would impermissibly invade the province of the jury as the sole arbitrator of disputed or contested facts. See Flournoy v. Abridge, 198 Ga. App. 86 (400 SE2d 649) (1990) (wherein we held that the findings by administrative tribunals should not be conclusive in subsequent civil litigation).

Decided December 2, 1994.

Moffett & Henderson, John W. Henderson, Jr., D. Kevin Wheeler, Belcher, Pakchar & Sams, Henry B. Sams, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Douglas W. Smith, Paul R. Vancil, James T. Brieske, for appellee.

Moreover, we do not think this harm could be cured even if the jury was instructed that it was free to reject the findings of the Board on the standard of care issue. At a minimum the jury would give the Board’s findings the same weight as it would that of testimony offered by expert witnesses. This would clearly be prejudicial to defendant, who would have no opportunity to cross-examine the members of the Board as it would other experts testifying at trial.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       There are additional reasons for holding that the Dental Board’s findings should be inadmissible in this civil trial. Other courts have held that license revocation proceedings in Georgia are in the nature of criminal proceedings, Wall v. American Optometric Assn., 379 FSupp. 175, 184, aff'd Wall v. Hardwick, 419 U. S. 888 (95 SC 166, 42 LE2d 134) (1974), and our state appellate courts have held that “ ‘a judgment of conviction or acquittal rendered in a criminal prosecution cannot be given in evidence in a purely civil action, to establish the truth of the facts on which it was rendered.’ [Cits.]” Pierce v. Pierce, 241 Ga. 96, 100 (3) (243 SE2d 46) (1978).


source: Caselaw Access Project

author:
Ruffin, Judge. Beasley, Presiding Judge,
      Blackburn, Judge,

license: Public Domain

text:
    A94A1725.
    PARKER v. THE STATE.
    (450 SE2d 870)
   Ruffin, Judge.

Kenneth Parker was indicted for possession of LSD with the intent to distribute. Following the denial of his motion to suppress, he entered a guilty plea and attempted to reserve the right to appeal the denial of his motion to suppress pursuant to Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991). Parker appealed from the entry of the judgment of conviction and sentence to this court. See Parker v. State, 211 Ga. App. 187 (438 SE2d 664) (1993). On appeal, a majority of this court held that it could not determine, based on ambiguities in the record, whether the trial court made and expressly set forth the critical determination that it approved the reservation of the right to appeal the denial of the motion to suppress and accepted the guilty plea with that condition in accordance with Mims. See id. at 191. Therefore, we vacated the trial court’s judgment and “remanded to the trial court for a plea hearing at which the trial court may clearly exercise its discretion in accordance with Mims . . . , supra. Should the trial court permit defendant Parker to enter a guilty plea ‘with a reservation of an appellate issue,’ defendant may bring an appeal submitting those issues.” Id. (Emphasis in original.)

On remand, a second plea hearing was held, and Parker again attempted to enter a guilty plea, expressly reserving the right to appeal the denial of his motion to suppress. The colloquy between the trial court, the assistant district attorney, and defense counsel indicates that the parties were cognizant of our previous decision. Both defense counsel and the assistant district attorney stated that the purpose of the hearing was to allow Parker to enter a conditional plea so that he could appeal the denial of his motion to suppress. The trial court did not indicate it would not accept the guilty plea with a reservation. While it appears the court was attempting to act pursuant to our direction, after being informed that Parker intended to enter such a plea, the trial court again, inexplicably, failed to enter the guilty plea “with a reservation of an appellate issue” as we directed. The direction given by this court could not have been clearer; however, neither the transcript of the hearing nor the judgment recite that the court accepted the guilty plea and entered the judgment with a reservation. Parker now appeals from that judgment.

We cannot consider the merits of an appeal from the denial of Parker’s motion to suppress without an express reservation approved by the trial court. See Mims, supra at 279. Therefore, we have no choice but to once again vacate the trial court’s judgment and Parker’s guilty plea and remand to the trial court for yet another plea hearing. If the court decides to accept Parker’s guilty plea with a reservation in accordance with Mims, that decision shall be clearly set forth on the record and in the judgment of the court. After the entry of the court’s judgment, Parker may appeal the denial of his motion to suppress.

We are mindful that in Hooten v. State, 212 Ga. App. 770, 775 (1) (442 SE2d 836) (1994), we disapproved the conditional plea procedures established in Mims henceforth; however, since the entry of a proper conditional plea would otherwise have preceded the effective date of Hooten, but for the trial court’s failure to follow our previous decision, Parker will not be barred by Hooten from entering such plea on remand.

Judgment vacated and case remanded.

McMurray, P. J., Birdsong, P. J., Andrews and Smith, JJ., concur. Pope, C. J., Beasley, P. J., Johnson and Blackburn, JJ., dissent.

Beasley, Presiding Judge,

dissenting.

As in the previous appearance of this case before this court, I agree with my brother’s dissent. In addition, I adopt Division 2 of my previous dissent.

Blackburn, Judge,

dissenting.

As I dissented from the majority opinion in Parker’s first appeal wherein this issue was before us, I am even more compelled to dissent herein. Again, the majority remands this case on the grounds that the trial court did not expressly accept Parker’s guilty plea and approve his reservation of the right to appeal the denial of his motion to suppress.

1. The record makes it very clear that the court understood the purpose of the hearing was to enter Parker’s guilty plea and reserve his right to appeal the trial court’s denial of his motion to suppress, pursuant to Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991). Counsel for the defendant and the prosecution both set forth affirmatively that Parker’s guilty plea was conditioned on his reservation of the right to appeal the denial of his motion to suppress, which the court then accepted. Furthermore, neither have objected on appeal. To require the pronouncement of “magic” words such as “I approve the reservation of the issue and accept the guilty plea with that condition,” in these circumstances puts form over substance. In view of our holding in Hooten v. State, 212 Ga. App. 770, 775 (1) (442 SE2d 836) (1994), in which the within conditional plea procedure, with reservation of the right to appeal, has been disapproved for future cases, there seems no need to require strict compliance with the plea entry procedure in the subject case.

“The trial judge is presumed to know the law and presumed to faithfully and lawfully perform the duties devolving upon it by law.” (Citations and punctuation omitted.) In the Interest of A. L. L., 211 Ga. App. 767, 770 (440 SE2d 517) (1994). The trial judge proceeded with resentencing after being fully informed by both parties of the defendant’s intent to appeal the denial of his motion to suppress. By his actions, the trial judge expressly approved Parker’s plea and implicitly approved the reservation of defendant’s right to appeal.

2. With regard to the merits of this case, the trial court erred in denying Parker’s motion to suppress. At the hearing on Parker’s motion to suppress, the arresting officer testified that around 2:30 p.m. on September 10, 1992, a reliable confidential informant gave him a tip that a red Honda containing LSD would arrive in Doerun between 4:30 to 5:00 p.m. that afternoon and would stop at the only Zippy Mart in that town. The Honda would be occupied by one individual named Wendy Weldon, another individual named Tracy, and possibly one other person. The officers did not believe they had time to apply for a search warrant, and instead proceeded to set up a stakeout of the location. Two police officers waited inside the Zippy Mart, and two officers remained in an unmarked car and followed the red Honda to the Zippy Mart when it arrived as the informant had predicted.

The officers in the unmarked car pulled into the Zippy Mart parking lot and blocked the exit of the red Honda. Tracy Adair was the driver, and Wendy Weldon and Parker were passengers in the Honda. All three occupants were ordered to get out of the car, and Adair consented to the search of the vehicle. Parker placed his hands on the roof of the car as instructed by the officers, and one of the officers searched him, first by removing his wallet and looking in it and then by reaching into Parker’s front pocket of his trousers, where over 130 “hits” of LSD were discovered. It is undisputed that Parker did not consent to this search. On appeal, Parker contends that his mere presence in the red Honda did not justify this warrantless search of his person, and I agree.

A person’s mere proximity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Ybarra v. Illinois, 444 U. S. 85 (100 SC 338, 62 LE2d 238) (1979). More specifically, by one’s mere presence in a suspected automobile, a person does not forfeit his immunities from searches of his person that he otherwise enjoys. United States v. Di Re, 332 U. S. 581 (68 SC 222, 92 LE2d 210) (1948).

OCGA § 17-5-28 authorizes an officer, during the execution of a search warrant, to detain or search any person in the place at the time in order to protect himself from attack, or to prevent the disposal or concealment of the subject matter of the warrant. That Code section pertains only to searches conducted pursuant to a warrant, and thus has no application in the instant case. State v. Stephens, 167 Ga. App. 707 (307 SE2d 518) (1983). Nevertheless, even under that statute, a search of an individual not named in the warrant may not be upheld where there is no nexus between that individual and the suspected criminal activity, other than mere presence, unless independent probable cause existed for a warrantless search of the individual. See State v. Anderson, 195 Ga. App. 793 (395 SE2d 50) (1990); but compare Travis v. State, 192 Ga. App. 695 (385 SE2d 779) (1989). The same principle must apply where no warrant is obtained.

In the instant case, although the tip received by the arresting officers revealed the identity of two occupants traveling in the car, it did not identify Parker. The only connection shown between Parker and the two occupants identified by the informant was his mere presence in the vehicle. When Parker exited the vehicle as instructed by the officers, he was cooperative and made no gesture or movement that would indicate a threat or concealment of evidence. Cf. Travis v. State, supra. Although the arresting officers articulated no concern that Parker may have been armed, under these circumstances the officers may have been authorized to perform a pat-down of Parker’s outer clothing for weapons, but the officers exceeded that permissible intrusion and conducted a complete search of Parker, which was unjustified by Parker’s mere presence in the vehicle or by any independent probable cause. State v. Stephens, supra; State v. Anderson, supra. For that reason, the trial court should have granted Parker’s motion to suppress the evidence seized during that search.

Decided December 2, 1994.

J. Michael Mullís, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

I am authorized to state that Chief Judge Pope, Presiding Judge Beasley and Judge Johnson join in this dissent.


author: Ruffin, Judge.

text:
    A94A1778.
    BENNETT v. WILLIAMS ELECTRICAL CONSTRUCTION COMPANY.
    (450 SE2d 873)
   Ruffin, Judge.

Appellant, Denise Bennett, was injured on the job and pursuant to OCGA § 34-9-11 sued appellee, Williams Electrical Construction Company (“Williams”), alleging the company negligently placed electrical wires on the floor of the bank where she worked. Bennett waited over a year from the injury to file the suit. Williams moved to dismiss the action because it was not filed within one year from injury as required by the statute, and Bennett appeals from the trial court’s grant of that motion.

1. Bennett contends the trial court erred in granting the motion to dismiss on grounds Bennett was no longer the real party in interest under OCGA § 34-9-11.1 (c). However, Williams’s motion to dismiss was not based on a real party in interest argument. Rather, the motion argued that the complaint should be dismissed because it was barred by the statute of limitation set forth in OCGA § 34-9-11.1. Bennett did not raise the real party in interest argument in response to the motion, nor did she urge the trial court to treat it as a motion to substitute the real party under OCGA § 9-11-17.

Instead, her response addressed the statute of limitation and the validity of a prospective assignment of the cause of action. Accordingly, the issue is not presented to us for review. It is well settled that “where an entirely different [reason] is argued on appeal which was not presented at trial, we will not consider this as error, for we are limited on appeal to those grounds presented to and ruled upon by the trial court and then enumerated as error.” (Citations and punctuation omitted.) Dietz v. Becker, 209 Ga. App. 678, 679 (3) (434 SE2d 103) (1993).

2. Bennett also contends the trial court erred in allowing Williams to raise OCGA § 34-9-11.1 as a defense, because Williams lacked standing to do so. As with the real party in interest argument, the record demonstrates that Bennett never raised Williams’s alleged lack of standing below. Thus, we find nothing for review. “As a court of review, this court does not decide questions which were not raised and ruled on and preserved in the record below. [Cit.] ” Atlanta Gas Light Co. v. Ga. Public Svc. Comm., 212 Ga. App. 575, 577 (1) (442 SE2d 860) (1994).

3. Bennett contends the trial court erred in granting Williams’s motion to dismiss in light of a document Bennett received from her employer which attempted to assign to her “all rights, title and interest” in the lawsuit against Williams. The assignment was apparently designed to preserve Bennett’s right to pursue her cause of action against Williams after that right was assigned by statute to her employer by virtue of Bennett’s failure to timely file her claim. See OCGA § 34-9-11.1 (c). The assignment provided that any proceeds first be distributed to the employer for compensation it previously paid Bennett for her injuries. We do not agree.

OCGA § 34-9-11.1 addresses the rights of employees and employers in situations where the injury or death for which workers’ compensation is payable is caused by a third party whom the employee sues. If the employee recovers from the third party, subsection (b) of the statute provides “the employer or such employer’s insurer shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery. The employer or insurer may intervene in any action to protect and enforce such lien.” OCGA § 34-9-11.1 (b). Subsection (c) of the statute provides that “[s]uch action against [the third party] by the injured employee . . . must be instituted in all cases within one year from the date of injury. Failure on the part of the injured employee ... to bring such action within the one-year period shall operate as an assignment to the employer or such employer’s insurer of any cause of action in tort which the injured employee . . . may have against [the third party]. . . . The employer . . . shall have one year after such assignment within which to commence the action. ...” (Emphasis supplied.) OCGA § 34-9-11.1 (c).

We are not at liberty to “disregard the plain wording of the statute. . . .” Hall v. Canal Ins. Co., 195 Ga. App. 16, 17 (392 SE2d 340) (1990). Given the General Assembly’s delineation of the limitation period and assignment provision in subsection (c) of the statute, we cannot say it intended a right of reassignment, but failed to expressly authorize such. Indeed, it would make little sense to mandate a limitation period for the employee with an ensuing assignment of the action to the employer, only to allow, by reassignment, the parties to revert to their original positions prior to the assignment.

Decided December 2, 1994.

Clinton A. Wheeler, for appellant.

Martin, Snow, Grant & Napier, John C. Daniel III, for appellee.

Samuel W. Oates, Jr., Franklin, Taulbee, Rushing & Bunce, Elizabeth F. Bunce, Reynolds & McArthur, Charles M. Cork III, Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, David T. Whitworth, amici curiae.

In addition, we have held that the cardinal rule governing the construction of statutes is to effectuate the legislative purpose and intent. See Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). In this respect we are persuaded by G. Mark Cole’s article, Review of Selected 1992 Georgia Legislation, 9 Ga. St. U.L. Rev. 285 (1992). In writing the article which reviews and analyzes OCGA § 34-9-11.1, Cole interviewed Georgia House leaders who served on the Georgia Task Force for Workers’ Compensation Reform and cosponsored House Bill 1679 (now OCGA § 34-9-11.1). Id. at 285-286. The bill “was believed to provide for some amount of cost containment by recompensing the employer, while still ensuring that the employee received compensation for all injuries.” Id. at 293, n. 60. “HB 1679 had a similar proposal when it was originally introduced, which allowed either the employer or the employee to initiate an action against a third party, with the other able to intervene. HB 1679, as introduced, § 2, 1992 Ga. Gen. Assem. . . . The Senate limited the employer to a secondary role, and set the one-year period statute of limitations. HB 1679 (SCS) § 2, 1992 Ga. Gen. Assem.; HB 1679 (SCSFA), § 2 1992 Ga. Gen. Assem. The [National Committee of Compensation Insurers] predicted this provision would have significant impact costs, perhaps saving one percent or more.” Id. (Emphasis supplied.) Thus, the bill was drafted with a specific intent and particular concerns in mind.

Based on the clear language of the statute, the extensive analysis of particular issues which was undertaken prior to drafting the legislation (see id.), and the intent of the Senate when it added the specific provisions of subsection (c), we cannot say the General Assembly intended to allow reassignment of an employee’s action against a third party from the employer back to the employee. Accordingly, the trial court did not err in failing to recognize the purported assignment from Bennett’s employer and dismissing the action.

Judgment affirmed.

Birdsong, P. J., concurs. Blackburn, J., concurs in judgment only.


author: Smith, Judge.

text:
    A94A1085.
    ANDERSON v. THE STATE.
    (451 SE2d 103)
   Smith, Judge.

Marcus Anderson was convicted of possessing cocaine with intent to distribute, fleeing to elude a police officer, and reckless driving. His motion for new trial was denied. His appeal is addressed only to the conviction for violating the Georgia Controlled Substances Act.

Construed to support the jury’s verdict, the evidence presented at trial showed that on June 21, 1991, Dalton Police Department Narcotics Unit Supervisor John Anthony Gibson received a telephone call from a “concerned citizen” regarding Anderson. Gibson and Anderson knew each other, and at approximately 8:30 p.m., while driving an unmarked vehicle, Gibson observed Anderson driving a car on the streets of Dalton. After observing Anderson make several “unusual” moves within the vehicle and several abrupt turns, Gibson called for assistance in stopping Anderson.

Sergeant Jason Parker responded to the call and then followed Anderson. Parker turned on his blue lights and siren, but instead of pulling over, Anderson increased his speed. The high-speed chase proceeded until Anderson finally slowed, stopped, jumped out of his car, and fled on foot with Parker in pursuit. Parker testified he observed that as Anderson was running he periodically placed his hand in his pocket and looked back. When they finally began slowing down, Parker saw Anderson put his hand in his pocket, pull it out, and drop something on the ground. Based on his experience as a police officer, Parker believed it was cocaine. He also saw Anderson drop a pager.

Anderson then turned around and began jogging backward. When Parker informed Anderson he had seen him “throw the dope down,” however, he turned and began running again. Parker radioed for Gibson. Gibson told Parker to stay with the contraband and began looking for Anderson in his vehicle. He located Anderson, who was tired from running and gave up.

Parker testified he never lost sight of the dropped items. Parker testified it had been raining earlier, and the street was wet, but the contraband was dry. When Parker pointed out the items dropped, Gibson placed the loose white rocks into a plastic bag, sealed the bag, and turned it in to the Dalton Police Department evidence custodian. A chemist from the State Crime Lab testified he received the evidence from the same evidence custodian. He weighed the contraband, which he identified as cocaine, and including the plastic bag in which it was enclosed, it weighed 3.9 grams. He stated he believed the bag weighed approximately 1.5 to 1.8 grams.

Evidence of a similar transaction was introduced, over objection, showing that on a date subsequent to this incident, Anderson was arrested after a similar chase in Atlanta, and 288 grams of cocaine were dropped by him and recovered.

Anderson denied having the cocaine in his possession or throwing it down. He testified he had recorded a conversation with a police informant, in which the informant told him he had been offered money by Gibson to plant drugs in Anderson’s car. Those tapes had been turned over to the GBI and the FBI. Anderson testified he was nervous about turning over the tapes, and he fled when Gibson began following him because he thought that Gibson was out to get him as a result of the tapes.

1. Anderson contends the trial court erred in denying his motion for a directed verdict, because the evidence was insufficient to authorize his conviction for possessing cocaine with intent to distribute. We agree.

A directed verdict of acquittal is authorized when there is no conflict in the evidence and the evidence introduced, with all reasonable deductions and inferences therefrom, demands a verdict of acquittal as to the entire offense or to some particular count. OCGA § 17-9-1 (a). The intent to distribute may be proved by circumstantial evidence. Horton v. State, 194 Ga. App. 797, 798 (1) (a) (392 SE2d 259) (1990). Mere possession of contraband, without more, however, is an insufficient basis for a conviction for possessing contraband for purposes of sale. Wright v. State, 154 Ga. App. 400, 401-402 (1) (268 SE2d 378) (1980).

No bright line rule exists regarding the quantum or type of evidence sufficient to support a conviction for possession of controlled substances with intent to distribute. See generally James v. State, 214 Ga. App. 763 (449 SE2d 126) (1994). Our review of relevant decisions reveals that this court has affirmed convictions for possession with intent to distribute when evidence was presented that drug measuring or weighing paraphernalia were also found (Wright, supra); that the packaging of the contraband supported an inference of intention to distribute (Womble v. State, 203 Ga. App. 107 (416 SE2d 148) (1992); Williams v. State, 199 Ga. App. 544 (405 SE2d 539) (1991)); that the amounts or denominations of currency found in the suspect’s or a companion’s possession suggested they had been engaged in distribution (Womble, supra; Sams v. State, 197 Ga. App. 201 (397 SE2d 751) (1990)); that in the opinion of experts, the amount of cocaine found was greater than that usually carried for personal use and therefore indicative of intent to distribute (Palmer v. State, 210 Ga. App. 717, 718 (437 SE2d 490) (1993); Bean v. State, 204 Ga. App. 242, 243 (2) (418 SE2d 798) (1992); Davis v. State, 200 Ga. App. 44, 45-46 (2) (406 SE2d 555) (1991)); or that the accused was engaging in suspicious activity in close proximity to a “crack house” (Horton, supra).

Decided November 22, 1994

Reconsideration denied December 5, 1994

Mitchell, Coppedge, Wester, Bisson & Miller, E. Neil Wester III, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, As sistant District Attorney, for appellee.

Here, none of these factors was present. Although the jury was clearly authorized to believe the officers’ testimony that Anderson dropped the cocaine, that evidence was sufficient to support a verdict of guilty only of possessing that cocaine. No currency was found; the contraband was not packaged in smaller baggies; no drug paraphernalia were found; no nearby “crack house” was identified; and no testimony was offered regarding whether the amount with which Anderson was charged with possessing was indicative of intent to distribute. The only evidence even suggesting an intent to distribute was the similar transaction evidence.

The details of the chase and capture of Anderson in Atlanta did resemble those in the Dalton incident, although the amount involved in the Atlanta “similar transaction” was over 200 times greater than that in the Dalton incident. Even assuming, however, that proof of the Atlanta offense “tends to establish” the Dalton offense, Williams v. State, 261 Ga. 640, 641 (409 SE2d 649) (1991), we cannot say that this circumstantial evidence was sufficient to authorize Anderson’s conviction of possession with intent to distribute on this occasion. See Griffin v. State, 212 Ga. App. 411, 412 (441 SE2d 897) (1994).

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. The jury clearly was not authorized to infer from the similar transaction evidence alone that the only reasonable inference permissible from Anderson’s possession of approximately two grams of cocaine was that he intended to distribute that contraband. There being no other evidence in the record to support his conviction, it must be vacated. James, supra. Since the evidence was sufficient, however, to support Anderson’s conviction for possession of cocaine, the case is remanded with direction that a conviction and sentence be entered for that offense. Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532) (1989).

2. Our holding in Division 1 renders moot Anderson’s other enumerations of error.

Judgment vacated and case remanded with direction.

Pope, C. J., concurs. McMurray, P. J., concurs in the judgment only.

       The substance of the “tip” was never disclosed, because the trial court ruled that Gibson could testify only that the call was made and that it prompted his surveillance.


author: Blackburn, Judge.

text:
    A94A1162.
    HEWETT et al. v. CARTER.
    (450 SE2d 843)
   Blackburn, Judge.

Plaintiffs Thomas and Brenda Hewett brought the instant action against defendant John Mitchell Carter for damages arising from an automobile collision. A jury verdict was returned in favor of Thomas Hewett for $300,000. The jury found against Brenda Hewett and no appeal was taken therefrom.

On February 16, 1993, three days after the jury’s verdict, the trial court entered a judgment on the jury’s verdict in favor of Hewett for $295,000, offsetting the verdict by $5,000 in no-fault benefits received by Hewett and added $27,500 in pre-judgment interest pursuant to OCGA § 51-12-14, the Unliquidated Damages Interest Act.

On May 11,1990, an agent for Allstate Insurance Company (“Allstate”), defendant’s liability carrier, had written to plaintiff’s attorney and instructed him to forward all future correspondence to the agent’s attention. Pursuant to Allstate’s instructions, the unliquidated damages interest letter was sent to Allstate on October 15, 1990.

Notwithstanding Allstate’s instructions to plaintiff regarding correspondence, on December 2, 1993, Carter moved the court to set aside its judgment pursuant to OCGA § 9-11-60 (d) because the demand letter was sent to Allstate and not to defendant Carter. Thereafter, the Hewetts filed a motion for the substitution of Allstate as the real party in interest based upon Allstate’s satisfaction of the total judgment against Carter following Carter’s filing of an action against Allstate for bad faith damages for its failure to settle the claim. The trial court did not rule on the Hewetts’ motion to substitute, and granted Allstate’s motion to set aside that portion of the judgment awarding pre-judgment interest to Thomas Hewett. This appeal followed.

1. Initially, the Hewetts maintain that the trial court erred in setting aside the portion of the judgment awarding pre-judgment interest and erred in relying upon this court’s decision in Resnik v. Pittman, 203 Ga. App. 835 (418 SE2d 116) (1992). We agree.

The plaintiff in Resnik, in attempting to satisfy the pre-judgment interest requirements of OCGA § 51-12-14, sent a certified letter to a claims representative with St. Paul Fire & Marine Insurance Company, the defendant tortfeasor’s liability insurance carrier, offering to settle the plaintiff’s claims. The plaintiff had not been requested by the insurance carrier to forward such correspondence to it, and plaintiff did not forward a copy of the demand letter to defendant. We held that OCGA § 51-12-14, in effect at the time, provided that a claimant is entitled to interest under that Code section if the claimant “has given written notice by registered or certified mail to a person against whom claim is made for unliquidated damages,” and the plaintiff therein did not comply with the mandates of the statute, and therefore, an award of pre-judgment interest was not authorized under the circumstances of that case. Resnik, supra at 835.

The facts of the case at bar are clearly distinguishable from Resnik, because of the conduct of defendant’s insurance carrier, which was controlling the litigation, in instructing plaintiff’s attorney to “direct all future correspondences to [his] attention.” By virtue of this conduct, Carter is estopped from asserting that the Hewetts failed to strictly comply with OCGA § 51-12-14 since any such failure resulted from the conduct of those acting on defendant’s behalf. The principle of “ ‘equitable estoppel is based on the “ground of promoting the equity and justice of the individual case by preventing a party from asserting his rights under a general technical rule of law, when he has so conducted himself that it would be contrary to equity and good conscience for him to allege and prove the truth.” (Cits.)’ [Cit.]” Virginia Highland Assoc. v. Allen, 174 Ga. App. 706, 709 (330 SE2d 892) (1985). In such instances, a party is estopped, on grounds of public policy and good faith, from repudiating his own representations. Id.

In the case sub judice, the Hewetts acted in accordance with the instructions of the Allstate claims representative, who was controlling the defendant’s defense, and accordingly, defendant is estopped from asserting that the compliance with such instructions did not meet the statutory notice requirements of OCGA § 51-12-14. Consequently, the trial court erred in setting aside the award of pre-judgment interest.

2. Next, the Hewetts assert that the trial court erred in failing to rule on their motion to substitute Allstate as the real party in interest. We disagree. The trial court’s failure to rule on the subject motion amounts to a denial thereof. Allstate did not become subject to judgment against it for damages proximately caused by Carter’s negligent operation of the insured vehicle on the basis of its contractual obligations under the insurance policy. See Smith v. Phillips, 172 Ga. App. 459, 462 (323 SE2d 669) (1984). Carter is the real party in inter est and this enumeration is without merit.

Decided November 22, 1994

Reconsideration denied December 5, 1994

Elwyn G. Beddingfield, for appellants.

Thompson & Smith, Larry I. Smith, Allgood & Daniel, Robert L. Allgood, for appellee.

3. The Hewetts further challenge the timeliness of the motion to set aside judgment. The motion was based upon an alleged erroneous conclusion of law which appeared on the face of the record and was timely filed under OCGA § 9-11-60 (d) (3).

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.

       In satisfying the judgment, Allstate paid the amount of pre-judgment interest into the court’s registry pending the final decision on the motion to set aside.

       The statute was subsequently amended effective July 1, 1991, to substitute “against whom a claim is made of a demand for an amount of unliquidated damages” for “against whom claim is made for unliquidated damages.”


text:
    A94A1238.
    BYNUM et al. v. GREGORY et al.
    (450 SE2d 840)
   Blackburn, Judge.

This is an appeal by plaintiffs/appellants, Robert and Debra Bynum, individually, and as parents and next friend of their minor daughter, Shannon, from the grant of summary judgment to defendants/appellees, Dr. James R. Gregory, and Associates in Obstetrics & Gynecology, P. C. (Associates), in this medical malpractice action.

The record, construed most favorably for the Bynums, the nonmovants, shows that medical services in connection with Mrs. Bynum’s pregnancy and delivery were provided to her by Associates (operating at that time under its original name, Drs. Gregory, Wages and Eidson, P.C.), and that one of its employees and shareholders, Dr. Gregory, was the attending obstetrician at the delivery at 9:31 p.m. on February 20, 1975.

An external fetal heart monitor was employed at 5:30 p.m., February 20, 1975. Dr. Gregory was aware of the fact that for several hours prior to delivery Shannon was in distress having an irregular heartbeat, skipping one in four beats. Shannon also had fetal tachycardia (elevated heart rate of 200-300 bpm) which passed through the normal range of 120-160 bpm to a depressed heart rate level of 90 bpm at 8:45 p.m. until her birth at 9:31 p.m., February 20, 1975. Dr. Gregory acknowledged being aware that Shannon was in distress at 8:00 p.m., February 20, 1975. Shannon was meconium-stained at birth. Dr. Gregory acknowledges that the presence of meconium is consistent with Shannon’s being in distress. Dr. Gregory indicated that the nuchal cord, hypoxia, and neonatal asphyxia were possible causes of Shannon’s depressed condition.

Following delivery of Shannon, who had an initial Apgar score of one, by Dr. Gregory, Dr. William R. Tipton, a pediatrician and shareholder in Pediatrics of Dalton (a professional organization), examined Shannon and took over her care.

Dr. Tipton found Shannon was flaccid, not breathing, stained with meconium, in distress, and that her mother had a fever and foul smelling amniotic fluid. Dr. Tipton’s initial impression of Shannon’s condition was that she suffered from neonatal asphyxia (lack of oxygen) and he recorded this in her medical records on February 20, 1975, following her birth.

Dr. Tipton ordered cultures of Shannon’s ear, umbilicus and stool, started antibiotics and performed two spinal taps because he suspected that Shannon had an infection. Within 36 hours of birth, tests ruled out spinal meningitis as a cause of Shannon’s condition. Dr. Farrow, a pediatrician who was also a shareholder in Pediatrics of Dalton, confirmed Dr. Tipton’s initial diagnosis and recorded Shannon’s final diagnosis on March 13, 1975, which was: full-term female infant, brain injury due to anoxia (lack of oxygen) with convulsive seizures due to brain injury. Dr. Farrow testified that there was nothing in the pediatric entries on Shannon’s medical records which would indicate a diagnosis of meningitis.

Notwithstanding the pediatric diagnosis on February 20, 1975, which did not change through Shannon’s discharge on March 13, 1975, and was contained in the medical records, Dr. Eidson, a shareholder and employee of Associates, entered the following on the medical records on February 23, 1975, as the reason why Shannon was not going home with her mother, “septic meningitis and amnionitis of unknown causes leading to septic meningitis of infant.”

At her six-week checkup, Mrs. Bynum inquired of Dr. Eidson as to the cause of Shannon’s condition. Dr. Eidson affirmatively informed Mrs. Bynum that they (after a two-month study) had concluded Shannon had spinal meningitis and that it was something that happened to one in a million women and there was not anything that they could have done. Dr. Eidson did not refer Mrs. Bynum to the pediatricians or indicate any lack of knowledge of the subject, but rather, he affirmatively provided her with an erroneous response to her direct inquiry concerning Shannon’s condition, which he knew or should have known was false. Dr. Eidson admits that he may have had a conversation with Mrs. Bynum at her six-week checkup concerning Shannon and meningitis.

Mrs. Bynum testified that she saw Dr. Gregory one time after the birth of Shannon, when he came into her room and she awoke. At that time he offered no explanation for Shannon’s condition, and did not report Dr. Tipton’s initial diagnosis. He advised Mrs. Bynum that Shannon had a nuchal umbilical cord which he removed from around her throat, but that it was not tight enough to hurt her. However, after this suit was filed he deposed that it was one of the possible causes of Shannon’s condition. Dr. Gregory does not deny this discussion with Mrs. Bynum, but does not recall it. Drs. Gregory and Eidson do not deny that they were aware of Shannon’s condition and diagnosis at the time of their conversations with Mrs. Bynum.

Although Shannon was susceptible to colds and her growth and actions were abnormal, Mrs. Bynum did not inquire of the subsequent treating physicians as to the cause of her condition, as Dr. Eidson had already told her the origin of Shannon’s problems and that she should expect abnormalities as Shannon grew. It was not until February 20, 1991, when Shannon needed emergency treatment, that Mrs. Bynum was informed by Dr. Pedersen that Shannon had never had spinal meningitis. Dr. Pedersen told Mrs. Bynum that whatever happened to her happened in the last few minutes before her birth. This was the first time Mrs. Bynum had been told by a medical doctor that Shannon’s injuries did not result from spinal meningitis and that it resulted from events shortly before birth. Dr. Pedersen could not find the medical records at the hospital, and a brain scan was done.

On February 4, 1993, within two years of the discovery of the cause of Shannon’s condition, this action was filed and the defendants were subsequently granted summary judgment. Plaintiffs enumerate as error, the ruling that their claims are barred, as a matter of law, by the statute of limitation, OCGA § 9-3-73 (b), and by the statute of repose, OCGA § 9-3-73 (c).

Defendants moved for summary judgment on the ground that the statute was not tolled and, even if a jury issue was raised in regard to the tolling of the statute of limitation, the complaint would nevertheless be barred by the five-year statute of ultimate repose for medical malpractice actions.

1. The threshold issue is whether the two-year statute of limitation for medical malpractice claims was tolled as a matter of law under the facts of this case. We find that a question of fact remains as to whether the failure of Associate’s shareholder/employees to inform the plaintiffs of the etiology of Shannon’s condition, or the alleged intentional misrepresentation to Mrs. Bynum that Shannon had septic meningitis, which was the cause of her problems and nothing could have been done about it, were sufficient to toll the statute of limitation.

Where the party upon whom the burden of proof at trial does not lie, makes a motion for summary judgment, all of the evidence adduced on said motion, including the testimony of the party opposing the motion, is construed most strongly against the movant. Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971), overruled on other grounds. This is so, even as to issues upon which the opposing party would have the burden at trial. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813 (168 SE2d 827) (1969).

Decided November 21, 1994

Reconsideration denied December 5, 1994

Drs. Gregory and Eidson were fellow shareholders and employees of Associates, Mrs. Bynum’s health care provider, and she was entitled to rely upon the affirmative representations of such individuals as to the prenatal condition and etiology of Shannon’s injury, and had no duty to investigate or confirm the truth or accuracy of such representations. Nothing in the record indicates that Mrs. Bynum otherwise became aware that Shannon did not have spinal meningitis until February 20, 1991. Mrs. Bynum claims that she failed to seek further diagnosis of Shannon’s condition because her doctor told her the diagnosis and its etiology. Hill v. Fordham, 186 Ga. App. 354 (367 SE2d 128) (1988); Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770, 773-774 (278 SE2d 653) (1981).

2. Having determined that the statute of limitation, OCGA § 9-3-73 (b), was not, as a matter of law, tolled in this case, we next consider whether plaintiffs’ action was barred by operation of the statute of ultimate repose for medical malpractice claims, OCGA § 9-3-73 (c). “[A] statute of ultimate repose cannot be ‘tolled’ to permit actions to be brought for injuries which did not occur until after the statutory period had expired. However, the statute of ultimate repose should not be applied to relieve a defendant of liability for injuries which occurred during the period of liability, but which were concealed from the [plaintiffs] by the [defendants’] own fraud. The statute of ultimate repose should not provide an incentive for a doctor or other medical professional to conceal [their] negligence with the assurance that after five years such fraudulent conduct will insulate [them] from liability. The sun never sets on fraud.” Hill, supra at 357-358. “[W]e hold in this case that an issue of fraud remains for jury determination which, if found, would estop the defendant from raising the defense of the statute of ultimate repose.” Id.

The alleged conduct of defendants and the shareholder/employee thereof, when viewed in a light most favorable to the non-movants, goes far beyond simple nondisclosure, as a jury would be authorized to conclude that they engaged in intentional, deliberate misrepresentation, or fraud, as opposed to only failing to reveal Shannon’s condition. The trial court erred in granting summary judgment to defendants.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.

Bird, Ballard & Still, William L. Ballard, for appellants.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Lance D. Lourie, J. Calhoun Harris, Jr., for appellees.


author: Johnson, Judge.

text:
    A94A1417.
    BELLSOUTH TELECOMMUNICATIONS, INC. v. HELTON.
    (451 SE2d 76)
   Johnson, Judge.

B. L. Helton filed this action against BellSouth Telecommunications, Inc. (“BellSouth”), when a rock masonry retention wall located at the rear of Helton’s property collapsed 14 months after the installation of a utility pole and underground cable near the wall. Following a bench trial, the court entered judgment for Helton. BellSouth appeals.

1. BellSouth contends the trial court erred in finding the company which it hired to install the equipment was not an independent contractor. “An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.” OCGA § 51-2-4; see Slater v. Canal Wood Corp. of Augusta, 178 Ga. App. 877, 878 (1) (345 SE2d 71) (1986). “The issue in determining whether one was an employee or an independent contractor is whether the employer retained the right to exercise control over the time, place or manner of the work performed.” (Citations and punctuation omitted.) Kimble v. BHM Constr. Co., 193 Ga. App. 441, 442 (388 SE2d 40) (1989); see also OCGA § 51-2-5 (5). “Where the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control.” (Citations and punctuation omitted.) Ledbetter v. Delight Wholesale Co., 191 Ga. App. 64, 66 (1) (380 SE2d 736) (1989); McGuire v. Ford Motor Credit Co., 162 Ga. App. 312, 313 (290 SE2d 487) (1982).

The record in this case shows that the contract between Ansco and BellSouth specifically denominated Ansco as an independent contractor. However, the same contract allowed BellSouth a significant amount of control over the time, method and manner of executing the work. For example, BellSouth retained the right to direct the order in which the work was to be done and the times at which the work was to be done. Further, BellSouth reserved the right to request the removal of any Ansco employees and to have a representative continuously at the work site. Ansco also expressly agreed to be guided by the reasonable recommendations of the representative. BellSouth devised the plans and supplied some of the materials and hardware for the installation. Although there were also contractual provisions which would support a contrary conclusion, we cannot hold that the trial court, acting as the trier of fact, erred in finding for Helton on this issue. Under the “any evidence” rule, we must affirm the trial court’s judgment. Williamscraft Dev. v. Vulcan Materials Co., 196 Ga. App. 703, 704-705 (2) (397 SE2d 122) (1990).

2. BellSouth contends the trial court erred in denying its motion for involuntary dismissal because Helton failed to prove it was negligent. While there is evidence which would support a contrary ruling, there is also evidence to support the trial court’s denial of BellSouth’s motion. For example, as discussed in Division 1 above, there was evidence that BellSouth planned and retained control over Ansco’s installation of BellSouth’s equipment. In addition, the evidence included a chemical engineer’s testimony that the wall’s failure did not appear to be caused by old age but by trenching and rain. A structural engineer testified that digging and backfilling so close to a wall is risky and that extreme caution must be exercised so as not to damage the wall. He offered his opinion that the digging probably resulted in the soil becoming less compact and more susceptible to water saturation, which saturation produced lateral forces against the wall and caused it to fail. The witness testified the wall might have lasted another 46 years in the absence of this trauma. Another witness testified to seeing the wall shake as the backhoe was being operated during the construction project. An adjoining landowner testified the wall became curved two to three months after the trenching occurred. “[I]n cases of this nature, the trial judge sits as trier of fact, and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Haehn v. Alheit, 212 Ga. App. 252, 253 (1) (441 SE2d 529) (1994). As there was evidence to support the trial court’s finding of negligence, we find no error in its denial of BellSouth’s motion. For the same reason, BellSouth’s third and fourth enumerations, alleging there was no evidence of negligence or causation, are without merit.

3. BellSouth also argues the trial court erred in applying the doctrine of res ipsa loquitur in this case. For the doctrine of res ipsa loquitur to apply, the plaintiff must show that the defendant had exclusive control of the thing doing the damage, the accident was of a kind which does not ordinarily happen without negligence and the damage was not due to the plaintiff’s actions. U. S. Fidelity &c. v. J. I. Case Co., 209 Ga. App. 61, 64 (3) (432 SE2d 654) (1993). We note that, as discussed in Division 2 above, there was evidence from which the trial court could have found negligence without applying the doctrine of res ipsa loquitur. Nonetheless, we believe the elements of the doctrine have been satisfied. There was evidence the wall would not have failed in the manner in which it did in the absence of negligence and that the trauma to the soil and wall was caused by instruments which were within the exclusive control of BellSouth, through Ansco. There was no evidence that Helton’s actions caused the damage. Because there is evidence to sustain the trial court’s findings, we will not disturb them. See Venture Design v. Original Appalachian Artworks, 197 Ga. App. 432, 434 (1) (398 SE2d 781) (1990).

4. BellSouth contends the trial court erred in allowing Helton to testify on redirect that an unidentified BellSouth employee admitted to him the cable was installed by BellSouth. At trial, in response to BellSouth’s objection, counsel for Helton argued the testimony was not offered for the truth of the matter asserted, but to explain Helton’s conduct in not taking any action when the cable was initially installed. The trial court allowed this testimony as explaining Helton’s conduct. See Avery v. Colonial Pipeline Co., 213 Ga. App. 388, 391 (2) (444 SE2d 363) (1994). While at first glance Helton’s conduct may not seem relevant, it could indeed be relevant to the issue of whether his actions contributed to the damage, a relevant inquiry in a case based on res ipsa loquitur. See U. S. Fidelity &c., supra. Therefore, we cannot say that the trial court erred in allowing the testimony. Furthermore, the trial court already had before it Bell-South’s admission in its answer and the pre-trial order that it caused the cable to be installed. Moreover, as discussed in Division 1 above, there was other evidence from which the trial court could conclude BellSouth, in the absence of an independent contractor relationship, was responsible for the installation of the cable. Thus if any error occurred, it was harmless. See Wilson v. Southern R. Co., 208 Ga. App. 598, 605 (4) (431 SE2d 383) (1993).

5. BellSouth contends the trial court erred in basing its measure of damages upon the diminution in value of the real property rather than upon the cost of repairing or replacing the wall. We agree.

While the correct measure of damages for injury to realty itself is the difference in value of the property before and after the injury, the appropriate measure of damages if the injury is solely to the structure or building is the cost of repairs. Oglethorpe Realty Co. v. Hazzard, 172 Ga. App. 98, 100 (4) (321 SE2d 820) (1984). In Hall v. Chastain, 246 Ga. 782 (273 SE2d 12) (1980), where a brick wall surrounding property was damaged when struck by a car, the Supreme Court held that the proper measure of damages was the cost of restoring the wall. Id. at 784 (3). The case relied upon but misapplied by the trial court on this issue, NEDA Constr. Co. v. Jenkins, 137 Ga. App. 344 (223 SE2d 732) (1976), held the jury’s award of damages based on the cost of repairing a damaged house was proper. In NEDA Constr. Co., this court stated “[t]he value of the property destroyed, or the cost of restoring or replacing such property, is the proper measure of damages for the destruction of buildings, fences, and other improvements, which may at once be replaced, where the exact cost of restoring the property destroyed is capable of definite ascertainment, and where there is no damage to the realty itself.” (Citations and punctuation omitted.) Id. at 349-350 (6). There was no damage to the realty in this case, only to the wall. Helton testified the wall was being reconstructed at the time of trial at a cost of approximately $56,000. Moreover, Helton stated in his proposed pre-trial order (which was adopted by the court) that the proper measure of damages was the cost of rebuilding the wall. Nonetheless, the court provided in its judgment that the proper measure of damages was the diminution in value of the real property which, according to Helton’s testimony, amounted to $80,000. In so doing, the trial court erred. The case is therefore remanded for the trial court to reconsider the evidence on the issue of damages and to enter judgment based upon the proof of the cost of reconstruction of the wall.

Decided November 15, 1994

Reconsideration denied December 5, 1994

Shivers, Johnson & Wilson, Wayne C. Wilson, Kimberly A. Johnston, Dan J. Colley, for appellant.

Dock H. Davis, for appellee.

Judgment affirmed in part, reversed in part and case remanded with direction.

Beasley, P. J., concurs. Andrews, J., concurs in judgment only.


author: Johnson, Judge. Beasley, Presiding Judge,

text:
    A94A1439.
    PACE CONSTRUCTION CORPORATION et al. v. NORTHPARK ASSOCIATES, L.P. H. J. RUSSELL CONSTRUCTION COMPANY, INC. v. NORTHPARK ASSOCIATES, L.P.
    A94A1440.
    (450 SE2d 828)
   Johnson, Judge.

Northpark Associates, L.P. brought a breach of contract action against Pace Construction Corporation, H. J. Russell Construction Company, Inc. (as successor to Interstate Construction Company), Henry C. Beck Company, Transamerica Insurance Company and Seaboard Surety Company. In its complaint Northpark requested the court to, among other things, compel arbitration pursuant to the terms of the parties’ contract. Northpark filed a motion to stay judicial proceedings pending arbitration. Pace, Beck, Transamerica and Seaboard filed a motion to stay arbitration, Russell and Interstate filed a motion to dismiss the action, and Pace filed a motion to dismiss or, in the alternative, for summary judgment. The trial court granted Northpark’s motion to stay judicial proceedings pending arbitration and denied the defendants’ motions to stay arbitration, to dismiss and for summary judgment. The court ordered Pace, Interstate and Russell to proceed to arbitration. In Case No. A94A1439, Pace and Beck appeal from the trial court’s denial of their motions to dismiss and for summary judgment, and the grant of Northpark’s motion to compel arbitration. In Case No. A94A1440, Russell appeals from the trial court’s grant of Northpark’s motion to compel arbitration.

Northpark contends these appeals must be dismissed because the order appealed from is not a final judgment and the appellants failed to follow the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b). We agree.

The grant of an application to compel arbitration is not directly appealable pursuant to OCGA § 5-6-34 (a) (4), but is instead an interlocutory matter reviewable pursuant to OCGA § 5-6-34 (b). McAllaster v. Merrill Lynch &c., 212 Ga. App. 697 (443 SE2d 9) (1994); see Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488, 490 (299 SE2d 538) (1983). A party seeking appellate review from an interlocutory order must follow the interlocutory application procedure set forth in OCGA § 5-6-34 (b), which includes obtaining a certificate of immediate review from the trial court. Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 589 (1) (408 SE2d 103) (1991). We note the case relied upon by Pace, Beck and Russell, Bartlett v. Dimension Designs, 195 Ga. App. 845 (395 SE2d 64) (1990), which stated an order directing arbitration is directly appealable pursuant to OCGA § 5-6-34 (a) (4), is inconsistent with the Supreme Court’s holding in Phillips Constr., supra, and was not followed by this court in McAllaster. We overrule Bartlett to the extent it authorizes the direct appeal of an order compelling arbitration. In addition, because our order granting supersedeas pending these appeals was based upon Bartlett, it must be vacated.

We are also without jurisdiction to entertain the defendants’ appeals from the denials of their motions to dismiss and for summary judgment. Interlocutory appeal procedures must be followed to appeal from the denial of a motion to dismiss where, as here, the case is still pending below. See OCGA § 5-6-34 (a) (1); compare Spivey v. Safeway Ins. Co., 210 Ga. App. 775, 776 (1) (437 SE2d 641) (1993). Similarly, the denial of a motion for summary judgment must be appealed in accordance with the interlocutory appeal provisions of OCGA § 5-6-34 (b). Lumbermen’s Underwriting Alliance v. Atlantic Wood Indus., 207 Ga. App. 392 (427 SE2d 861) (1993). Because the interlocutory application procedures were not followed, these appeals must be dismissed for lack of jurisdiction.

Appeals dismissed and order of supersedeas vacated.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Andrews and Blackburn, JJ., concur. Beasley, P. J., Smith and Ruffin, JJ., dissent in part.

Beasley, Presiding Judge,

dissenting in part.

I respectfully dissent to the dismissal of the appeals from the grant of plaintiff Northpark’s motion to compel arbitration.

In Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488, 491 (299 SE2d 538) (1983), the Supreme Court remanded the case so that the trial court could vacate the original order and reenter it in order to entertain a certificate for immediate review. We should do the same in this case for the following reasons.

As recognized in Phillips, supra at 489, a trial court’s decision to compel arbitration has “significant consequences” which, if it is in error, results in the expensive and time-consuming waste described by the Supreme Court. That is especially true in this multi-party construction case. We can easily give the opportunity to avoid this by such a remand, which could conserve judicial resources in the end. The Supreme Court in Phillips favored review of this question of compelled arbitration.

Our own recent case of Bishop Contracting Co. v. Center Bros., 213 Ga. App. 804 (445 SE2d 780) (1994), points this out and demonstrates how a worthless and unproductive exercise can occur when the question is not settled before one course or the other is followed. In Bishop, the trial court refused to compel arbitration, the case was tried, and appeal was taken; we reversed the judgment because there should have been arbitration first. It well may be that the law requires arbitration first in this case also, but we should at least decide that, if the trial judge certifies the question.

I am not suggesting that we do this in every case in which the complaining party attempts a direct appeal from a ruling on arbitration. This case differs because of the existence of Bartlett v. Dimension Designs, 195 Ga. App. 845 (395 SE2d 64) (1990). We are only now overruling it, to the extent that it leads litigants astray as to the proper procedure for appealing this issue. We ourselves followed it in granting supersedeas in this case and so should be tolerant of the confusion which was evident and understandable.

The notices of appeal in these cases were filed on January 25 and February 3, 1994, before publication of McAllaster v. Merrill Lynch &c., 212 Ga. App. 697 (443 SE2d 9) ((March 31,) 1994), and Bishop, supra, ((June 14,) 1994). Consequently, the appellants did not have the benefit or the warning of those decisions when they filed their notices of appeal. Now that we have lifted the fog which drifted into procedural law with Bartlett, and the pathway is once again clear, we should permit the appellants to follow it.

Decided October 21, 1994

Reconsiderations denied December 5, 1994

Varner, Stephens, Wingfield & Humphries, J. D. Humphries III, Eric L. Nelson, for Pace Construction Corp.

Gleaton, Scofield, Egan & Jones, M. Michael Egan, Jr., Marla M. Eastwood, for H. J. Russell Construction Co.

Smith, Currie & Hancock, Glower W. Jones, for Northpark Associates.

I am authorized to state that Judge Smith and Judge Ruffin join in this dissent.


text:
    A94A1490.
    TADLOCK et al. v. DUNCAN.
    (451 SE2d 80)
   Smith, Judge.

Appellants Bill R. and Sara C. Tadlock leased certain commercial property to appellee J. C. Duncan for a five-year term from February 1, 1991 to January 31, 1996. In May 1991, appellant Bill Tadlock brought an action in the Civil Court of Richmond County seeking to terminate the lease due to an alleged breach by Duncan. That action ended in a judgment for Duncan.

The Tadlocks filed the present action on March 23, 1992 in the same court, alleging new grounds for terminating the lease. Duncan answered and filed a counterclaim for alleged interference by the Tadlocks with the conduct of business on the premises. Due to the magnitude of his counterclaim, Duncan , also moved successfully to have the case transferred to Richmond County State Court.

During the pendency of this action, the Tadlocks filed a separate disposessory action in the Civil Court of Richmond County based on Duncan’s failure to pay an increased rental as provided in the lease. “Tack and mail” service was used, Duncan failed to respond, a writ of possession was executed, and Duncan’s possessions were removed from the building. The Tadlocks concede that much of the property removed was ruined.

This prompted an amended counterclaim in the present action which added a second count alleging abusive litigation and intentional infliction of emotional distress. The Tadlocks then amended their complaint. The case ultimately went to trial.

The Tadlocks represent in their brief that they moved for a directed verdict as to Count 2 of Duncan’s counterclaim at the close of evidence. Their brief on appeal informs us that the motion was based on the theory that the proper forum to litigate the claims for malicious prosecution was in the court that ordered Duncan’s eviction rather than the state court, and also that the matter was res judicata. We are informed that the court denied the motion.

The jury awarded $12,500 on the second count of Duncan’s counterclaim, but awarded no other damages to either party. After judgment was entered on the verdict, the Tadlocks filed a motion for judgment n.o.v., OCGA § 9-11-50 (b), “for the reason that this honorable court erred when it denied the plaintiff’s motion for a directed verdict.” Duncan filed a motion for attorney fees under OCGA § 9-15-14. Duncan’s motion was granted, and the Tadlocks’ motion was denied. This appeal followed.

1. The Tadlocks enumerate the denial of their motion for directed verdict at the close of evidence. However, any such motion was made orally at trial, and any ruling on such a motion was likewise not reduced to writing. The Tadlocks specifically provided in their notice of appeal that “no transcript of the trial need be included with the record.” Consequently, there is no record before us of the motion the Tadlocks assert they made, of its specific grounds, or of the ruling complained of in their enumeration of error.

We may assume without deciding that the issues the Tadlocks claim to have raised in their motion for directed verdict do not require consideration of the evidence presented at trial and were not otherwise waived. However, such circumstances alone are not sufficient to determine whether this court may need to refer to the transcript of the proceedings below.

The Tadlocks claim that during the proceedings, a motion for directed verdict was made and erroneously denied. In this regard, OCGA § 5-6-41 (d) provides that “[w]here a trial in any civil or criminal case is reported by a court reporter, all motions,. . . rulings, . . . and all other proceedings which may be called in question on appeal or other posttrial procedure shall be reported; and, where the report is transcribed, all such matters shall be included in the written transcript, it being the intention of this article that all these matters appear in the record.” (Emphasis supplied.) Moreover, OCGA § 5-6-41 (c) provides, in pertinent part, that “where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at [his] expense.”

Duncan, the appellee here, does not dispute that a motion for directed verdict was made and denied, but this alone cannot suffice. OCGA § 5-6-41 (i) outlines the proper means for the parties to stipulate what transpired in the proceedings below. That Code section provides that “[i]n lieu of sending up a transcript of record, the parties may by agreement file a stipulation of the case showing how the questions arose and were decided in the trial court, together with a sufficient statement of facts to enable the appellate court to pass upon the questions presented therein. Before being transmitted to the appellate court, the stipulation shall be approved by the trial judge or the presiding judge of the court where the case is pending.” (Emphasis supplied.)

Decided November 15, 1994

Reconsideration denied December 5, 1994.

The various provisions of OCGA § 5-6-41 make abundantly clear that for a civil litigant to present for appellate review a claim of error made during the course of the proceedings at trial, the litigant must include, at the barest minimum, a transcript of that portion of the proceedings in which the alleged error occurred; or, in the alternative, a sufficiently detailed stipulation approved by an appropriate judge of the court in which the proceedings were conducted. “Appellants have the duty of showing error affirmatively by the record and this duty is not discharged merely by unsupported recitations in their brief. [Cits.]” Dover Realty v. Butts County Bd. of Tax Assessors, 202 Ga. App. 787, 788 (2) (415 SE2d 666) (1992). Since we have no transcript or proper stipulation demonstrating that the motion for directed verdict and ruling thereon were each made in the manner the Tadlocks claim, this enumeration presents nothing for review.

2. The Tadlocks next enumerate the denial of their motion for judgment n.o.v. Both the motion and the ruling thereon were reduced to writing. Nevertheless, consideration of this enumeration is precluded by the same limitations that precluded our review of the original motion for directed verdict and ruling thereon purportedly made at.trial. “[A] motion for j.n.o.v. is simply a reasserted motion for directed verdict, with a second opportunity for the trial court to rule on it before time and expenses are incurred and appellate judicial resources are expended.” Famiglietti v. Brevard Med. Investors, 197 Ga. App. 164, 167 (2) (397 SE2d 720) (1990). Such a motion may be properly asserted only by “a party who has moved for a directed verdict,” OCGA § 9-11-50 (b), and only on such grounds as were originally asserted by such a motion. Famiglietti, supra. Where the record does not disclose the making of a motion for directed verdict, we can find no error in the denial of a motion for judgment n.o.v. DeKalb County v. Brewer, 111 Ga. App. 269 (1) (141 SE2d 234) (1965).

3. The Tadlocks enumerate the court’s grant of Duncan’s motion for attorney fees. We have fully considered the arguments offered in support of this enumeration and find them to be without merit.

Judgment affirmed.

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

Richard 0. Ward, for appellants.

James B. Duncan III, for appellee.


text:
    A94A1637.
    VALDEZ v. POWER INDUSTRY CONSULTANTS, INC. et al.
    (451 SE2d 87)
   Smith, Judge.

Freddy Valdez filed this action seeking damages from Power Industry Consultants, Inc. (“PIC”) and its president, James Flandreau, for tortious interference with business relations. A jury returned a verdict in favor of PIC, and Valdez appeals, contending the trial court erred in giving two erroneous jury charges and in failing to give two jury charges requested by Valdez. We agree that the jury instructions were erroneous and remand for a new trial.

In reviewing a jury instruction, we must determine if any evidence was presented at trial to support it. Feathers v. Wilson, 157 Ga. App. 753 (1) (278 SE2d 434) (1981). There was evidence presented at trial that Valdez is a technical consultant working primarily in the electrical power generating industry. PIC is a placement firm supplying consultants to the industry on a project-by-project basis. It charges its customers on an hourly basis for the consultants’ services, and keeps a percentage of that hourly rate for its profit.

In 1988, Valdez contacted Flandreau seeking international employment, which enhances a consultant’s marketability. Valdez signed an agreement with PIC for a specific job in Santo Domingo for General Electric (“GE”). The agreement was styled “International Defined Term Employment Agreement” and provided that Valdez would not seek work with PIC’s client for one year after termination of the agreement. It also stated that the employment was for a particular service and terminated after completion of the agreement. The Santo Domingo job was cancelled at the last moment. Valdez never went to Santo Domingo, never performed any services, and never received any compensation under the agreement. However, Flandreau contended at trial that despite its language, the Santo Domingo contract was intended as a “master” agreement that remains in effect and is applicable to any subsequent placements by PIC whether domestic or foreign.

PIC also had a “master contract” with GE providing: “GE and Contractor [PIC] agree that neither will solicit any of the employees of the other for employment or hire, so long as this Contract is in effect and for one (1) year following termination, unless prior written consent to do so is obtained.” Valdez was not a party to this agreement.

After several other attempts to place Valdez on several short-term jobs which were domestic rather than international, Valdez testified he obtained a full-time job in the United States without the assistance of PIC. He continued to seek international work independently of PIC, and approached GE with regard to one of several positions in China. In early 1990, he successfully negotiated with GE for a technical position on one of its projects in China; they reached a verbal agreement with the understanding that a written contract would be delivered by overnight express to Valdez’s home in New Mexico.

Flandreau acknowledged Valdez was not an employee of PIC at the time he sought the China job, and that Valdez approached GE rather than GE soliciting Valdez. However, when Flandreau heard that Valdez was being hired by GE, he intervened in the contract negotations between GE and Valdez. He telephoned the GE employee involved in the hiring process and told him that GE was violating its master contract with PIC and engaging in illegal, wrongful, and unethical conduct. He also told the employee that GE was paying Valdez at too high a rate. Flandreau also faxed a copy of the Santo Domingo agreement to the same employee, adding a handwritten note that Valdez was bound by the agreement because Valdez had worked within the year for several weeks with GE in Oklahoma. As a result of this conversation and fax, GE broke off its negotiations with Valdez, and he did not obtain the China position.

1. Valdez contends the trial court erred in charging the jury on the “competition privilege” established in Orkin Exterminating Co. v. Martin Co., 240 Ga. 662 (242 SE2d 135) (1978). This privilege constitutes a defense to a claim of interference with contractual relations where (a) the relation concerns a matter involved in the competition between the actor and the competitor; (b) the actor does not employ improper means; (c) the actor does not intend thereby to create or continue an illegal restraint of competition; and (d) the actor’s purpose is at least in part to advance its interests in its competition with the other. 240 Ga. at 666. The Orkin court, however, applied this privilege as between two pest control companies engaged in the same business, performing the same activities for their customers, and competing for the same customers or employees. Cases relying upon Orkin have limited the scope of the privilege in the same fashion. See American Bldgs. Co. v. Pascoe Bldg. Systems, 260 Ga. 346, 348-349 (2) (392 SE2d 860) (1990) (two prefabricated building manufacturers competing for same employees); Contractors’ Bldg. Supply v. Gwinnett Sash & Door, 199 Ga. App. 38, 40 (2) (403 SE2d 844) (1991) (two competing building supply companies); Nationwide Advertising Svc. v. Thompson Recruitment Advertising, 183 Ga. App. 678, 680-681 (1) (359 SE2d 737) (1987) (two competing advertising agencies). PIC urges the application of Local 472 &c. v. Ga. Power Co., 684 F2d 721 (11th Cir. 1982), which cites Orkin. Because that case is factually and legally distinguishable, we decline to consider it. It involved a dispute between a labor union and an employer, applying federal common law and the Labor Management Relations Act, 29 USC §§ 185, 186 (a), and has no application here.

The trial court’s charge of the competition privilege was inapplicable to the facts of this case. Valdez is not a “competitor” of PIC. He is not in the job placement or personnel business. He is seeking personal employment in his field of expertise. The irrelevance of the competition privilege here is supported by the language of Orkin itself, which notes the strong public interest in “the free movement of employees in the marketplace as opportunity, experience and competition permits.” Orkin at 667. Interpretation of the privilege as PIC suggests would run directly counter to the stated public interest and reverse the intended effect, turning the shield of the competition privilege into a sword for driving former employees from their chosen field. An employee cannot be prevented from employing the skills and knowledge obtained in the course of employment; a properly drafted and limited non-competition or non-disclosure agreement, not the Orkin privilege, is the appropriate method for protecting the business interests of PIC. American Bldgs. Co., supra, 260 Ga. at 350 (3).

A charge unauthorized by the evidence, which injects into the case issues not made by the pleadings or evidence, is presumed to be harmful to the losing party, and such a charge is grounds for new trial unless it is apparent that the jury could not have been misled by it. Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 862 (2) (389 SE2d 355) (1989). In the present case, the charge could have confused and misled the jury by giving PIC and Flandreau a defense to which they were not entitled. Avant Trucking Co. v. Stallion, 159 Ga. App. 198, 201 (2) (283 SE2d 7) (1981). The trial court therefore erred in denying Valdez’s motion for new trial.

2. Valdez next contends the trial court erred in giving PIC’s requested charge on good faith as an absolute defense to a claim of tortious interference. PIC relies upon two federal district court decisions to support the proposition embodied in the requested charge on good faith. Sweeney v. Athens Regional Med. Ctr., 709 FSupp. 1563 (M.D. Ga. 1989); Carolina Furniture Co. v. Rhodes, Inc., 603 FSupp. 69 (S.D. Ga. 1984). Assuming without deciding that these cases contain a correct summary of Georgia law, neither of them involves the propriety of jury instructions. Sweeney declined to rule on the issue of malice in the context of summary judgment and reserved it for jury consideration. 709 FSupp. at 1578. The statement in Carolina Furniture is part of the trial court’s findings of fact and conclusions of law at a bench trial. 603 FSupp. at 77. “ ‘(L)anguage which would be proper in a headnote or in the opinion by a reviewing court may be improper when embodied in a charge to a jury. . . .”’ Blount v. Moore, 159 Ga. App. 80, 82 (1) (282 SE2d 720) (1981). This is equally true of language used by a federal trial court on summary judgment or at a bench trial.

“To support a verdict for tortious interference with business relations the evidence must show the defendant (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.” (Citations and punctuation omitted.) Arford v. Blalock, 199 Ga. App. 434, 440 (13) (405 SE2d 698) (1991), aff’d sub nom. Wilensky v. Blalock, 262 Ga. 95 (414 SE2d 1) (1992). Subjective good faith, standing alone, is not an absolute defense to a claim of tortious interference with business relations, just as “malice” within the meaning of such a claim need not be prompted by bad faith or personal dislike. “ ‘The term “malicious” or “maliciously” means any unauthorized interference, or any interference without legal justification or excuse. Personal ill will or animosity is not essential.’ [Cit.]” Arford at 441; Forehand v. Perils Realty Co., 198 Ga. App. 165, 166 (400 SE2d 644) (1990).

A party may have a personal, subjective justification or excuse which does not amount to that legal justification or excuse required under the law. For example, a party might contend that he acted in subjective “good faith” in misunderstanding or misinterpreting the plain language of a contract drafted by him or on his behalf. Ignorance of the law, however, excuses no one, Jabaley v. Jabaley, 208 Ga. App. 179, 180 (1) (430 SE2d 119) (1993), and cannot amount to “legal” justification or excuse. The charge incorrectly characterized as a complete defense that which is only a defense under particular circumstances, and it may have misled the jury on this point. It therefore was error to give it. See generally Roswell Properties v. Salle, 208 Ga. App. 202, 208 (10) (430 SE2d 404) (1993).

3. In Valdez’s remaining enumerations of error, he contends the trial court erred in failing to give his requested charges on improper purpose and justification. “If any portion of a requested charge is inapt, incorrect, misleading, confusing, argumentative, not precisely adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.” (Citations and punctuation omitted.) Stinson v. Allstate Ins. Co., 212 Ga. App. 179, 182 (2) (a) (441 SE2d 453) (1994). The language of the requested charges was argumentative, constituted an impermissible comment on the evidence, and arguably invaded the province of the jury in directing a finding of fact. Moreover, the trial court gave the substance of both requested charges. Mattox v. MARTA, 200 Ga. App. 697, 699 (2) (409 SE2d 267) (1991). The trial court did not err in refusing to give Valdez’s requested charges numbered 22 and 23.

Decided November 17, 1994

Reconsideration denied December 5, 1994

Charles M. Goetz, Jr., Philippa V. Tibbs, for appellant.

Freeman & Hawkins, Warner S. Fox, for appellees.

Judgment reversed and remanded.

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

       Indeed, the trial court omitted the word “legal” from its general charge on tortious interference with business relations: “In Georgia the term malice with respect to a cause of action for tortious interference with business relations is defined as an unauthorized interference or an interference without justification or excuse.”


text:
    A94A1804.
    THE STATE v. WOODY.
    (449 SE2d 615)
   Ruffin, Judge.

The State of Georgia appeals the trial court’s order suppressing results of a blood alcohol test administered to defendant Jeremy Jay Woody following his arrest for driving under the influence.

Woody was arrested after Officer Williams responded to a one-vehicle accident call. Officer Williams arrived at the scene finding Woody injured with an odor of alcohol about him. After trying to communicate with Woody, Officer Williams learned he was deaf. Officer Williams then contacted Officer Grubbs, whom he knew had a deaf child and could communicate with Woody, and requested he come to the scene. He also requested his dispatcher to contact the hospital to have someone who knew sign language meet him at the hospital. Prior to Officer Grubbs’ arrival, Officer Williams communicated with Woody by writing questions on a notepad. In response to one such question, Woody wrote his mother’s telephone number, as someone who could communicate with him. After the ambulance arrived, Officer Grubbs communicated briefly with Woody regarding the accident, then left the scene.

Officer Williams arrested Woody for driving under the influence after meeting him and his mother in the emergency room. After the arrest, Officer Williams told Woody’s mother he would need a blood test, read her the implied consent warning in Woody’s presence and requested that she communicate the warning to Woody. Although Officer Williams testified he observed Woody reading the warning, Woody’s mother testified he could not have read it since he did not have his glasses on at the time. Woody’s mother also testified her son was totally deaf, her knowledge of sign language was marginal, and she was not always able to fully communicate with her son. Moreover, she testified she did not tell Woody about his rights to independent tests. Following this exchange, a blood test was administered to Woody.

In his motion to suppress, Woody contended he was not advised of his implied consent rights under OCGA § 40-6-392 because Officer Williams did not comply with OCGA §§ 24-1-5 and 24-9-101 et seq.

OCGA § 40-6-392 (a) (4) provides “[t]he arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.” In cases involving the hearing impaired, OCGA § 24-1-5 provides “[i]n the event a hearing impaired person is arrested for any alleged violation of a criminal law of this state, the arresting officer shall comply with the provisions of Article 5 of Chapter 9 of this title.” (Emphasis supplied.) OCGA § 24-9-103 (a) provides “[t]he arresting law enforcement agency shall provide a qualified interpreter to any hearing impaired person whenever the hearing impaired person is taken into custody for allegedly violating any criminal law or ordinance of this state or any political subdivision thereof.” (Emphasis supplied.)

Under OCGA § 24-9-103 (b) (1), the law enforcement agency is required to immediately request a qualified interpreter from the Department of Human Resources, which is required to provide the interpreter. A qualified interpreter is “any person certified as an interpreter by the National Registry of Interpreters for the Deaf or approved as an interpreter by the Georgia Registry of Interpreters for the Deaf.” OCGA § 24-9-101 (6). Furthermore, “[n]o interrogation, warning, informing of rights, taking of statements, or other investigatory procedures shall be undertaken until a qualified interpreter has been provided; and no . . . evidence acquired from the hearing impaired person shall be admissible in any criminal or quasi-criminal proceeding unless such was knowingly and voluntarily given through and in the presence of a qualified interpreter.” (Emphasis supplied.) OCGA § 24-9-103 (b) (1).

In the instant case, while the arresting officer did ask his dispatcher to request the hospital to provide an interpreter, there is no evidence the officer or his department ever requested a qualified interpreter from the Department of Human Resources once Woody was taken into custody, as required by OCGA § 24-9-103. No such request having been made, and no qualified interpreter being present, Woody was not given the implied consent warning; thus, the blood test results are not admissible in any criminal proceeding against Woody. It does not matter that the arresting officer had Woody’s mother present to assist in communicating with him. Not only was she not a qualified interpreter, but the undisputed evidence shows her knowledge of sign language was only marginal. Moreover, she testified she did not communicate to Woody his right to an independent blood test. See OCGA § 40-6-392 (a) (3) and (4).

If these procedures had been followed, and a qualified interpreter was not available within one hour after Woody was taken into custody, the arresting officer could have proceeded with his investigation and the blood test under OCGA § 24-9-103 (2). In such a case, all communication, including any questions Woody had and his acknowledgment that he understood his rights, should have been in writing so the trial court could have a record of the exchange. There is ample evidence to suggest Woody was capable of communicating in this manner; however, no such record exists.

In support of its assertion the blood test results should be admissible, the State relies solely on this court’s recent decision in State v. Webb, 212 Ga. App. 872 (443 SE2d 630) (1994). Webb also involved a deaf person arrested for driving under the influence. In Webb, the trial court’s order suppressing blood alcohol test results based on the absence of an interpreter to communicate the implied consent rights to the defendant was reversed by this court.

Although the court in Webb acknowledged the requirements of OCGA § 24-9-103, as well as the duty of the arresting officer to advise the defendant of the right to an independent test, it concluded “[t]hat the officer conveys to the driver his right to an additional test is the most the law now requires before depriving the State of its right to introduce the test evidence at trial.” Id. at 874.

OCGA § 24-9-103 is clear in its application to any hearing impaired person taken into custody for allegedly violating any criminal law. Furthermore, the requirements of the statute are mandatory, and if not met, the evidence acquired is not admissible under the statute. While this court in Webb found the presence of a qualified interpreter is not absolute, the statute requires the law enforcement agency to at least request one. If one is not available, the statute provides a mandatory procedure under which the arresting officer can proceed with the investigation. Accordingly, we are unable to follow the decision in Webb to the extent it rules the blood test results are admissible even when the arresting officer failed to comply with the mandatory procedures in OCGA § 24-9-103.

In this case we find the arresting officer failed to comply with the procedure in OCGA § 24-9-103, which failure rendered the blood test results inadmissible. Accordingly, we find no error.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided November 23, 1994

Reconsideration denied December 5, 1994

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellant.

Tomlinson, Dennison & Hasty, John E. Tomlinson, Paul M. Stark, for appellee.


author: Andrews, Judge.

text:
    A94A1916.
    GAUDET et al. v. STARR et al.
    (451 SE2d 476)
   Andrews, Judge.

James and Jami Gaudet entered into a real estate sales contract to purchase a residence owned by Starr. After a deed to the property was executed to close the sale, the Gaudets allege that they found numerous defects in the property. The Gaudets sued Starr for the cost of repairing the defects and for punitive damages alleging that he breached the sales contract and defrauded them by falsely representing that the property contained no defects. They also sued Dominick, whom the Gaudets hired to inspect the property prior to the closing, alleging that Dominick negligently failed to discover and report the defects in the property. The Gaudets appeal from the trial court’s grant of summary judgment in favor of Starr.

The sales contract contained several provisions relevant to the issues raised in this appeal. It provided that “[purchaser has examined said property and covenants that no additions, alterations, or repairs are to be made by Seller unless herein specified. Purchaser, its agents or representatives, at Purchaser’s expense and at reasonable times during normal business hours, shall have the right to enter upon the property for the purpose of inspecting, examining, testing, and surveying the property. Purchaser assumes all responsibility for the acts of itself, its agents or representatives in exercising its rights under this paragraph and agrees to hold seller harmless for any damages resulting therefrom.” An addendum to the sales contract specifically provided that the purchasers intended to have the property inspected by a professional home inspector “within 14 days of the contract” and that the Seller would be responsible for repairing any defects discovered by the inspection. The sales contract provided that, at the time of closing, the Seller would provide an official wood infestation report certifying that the property was free from termites and other wood destroying organisms and free from structural damage caused thereby. The sales contract also contained an “entire agreement” or “merger” clause providing that “[t]he entire agreement is contained herein and no representations, warranties or promises unless herein contained shall be binding upon the parties hereto. All covenants and warranties contained herein shall be extinguished on closing and shall be merged into any deed or other instrument consummating this contract, except that the possession date shall survive the closing in the event the hereinstated possession date is subsequent to the closing date.”

1. A wood infestation report was produced by Starr at the closing showing there was no active termite infestation, but stating that since a previously treated termite infestation was found, “it should be assumed that some degree of damage is present. ...” Starr does not dispute that, as a result of this report, he agreed in writing at the closing that, subsequent to the sale of the property, he would repair any damage to the property caused by the previous termite infestation as shown on the wood infestation report.

Starr contends that he has made all the repairs he agreed to make pursuant to this written agreement. The affidavit of James Gaudet in opposition to summary judgment states that Starr has failed to make certain unspecified repairs to the property that he agreed to make. Gaudet’s affidavit does not clearly state whether the repairs referred to are for damage to the property caused by the previous termite infestation, or for other defects in the property unrelated to the previous termite infestation. Nevertheless, the affidavit was sufficient to create a factual question as to whether Starr made all the repairs he agreed to make for any damages to the property caused by the previous termite infestation. Since it is clear that the parties intended for this agreement to survive the execution and delivery of the deed, this agreement did not merge into the deed. Sullivan v. Cheshire, 190 Ga. App. 763, 764 (380 SE2d 294) (1989). Accordingly, Starr was not entitled to summary judgment with respect to his agreement to make repairs for damage to the property caused by the previous termite infestation shown on the wood infestation report produced at the closing.

2. As to the remaining claims made by the Gaudets against Starr, we find the trial court properly granted summary judgment in favor of Starr.

There is no evidence supporting the allegation in the Gaudets’ unverified complaint that Starr “intentionally misled and deceived the plaintiffs into believing that the property being purchased contained no defects.” Gaudet’s affidavit in opposition to summary judgment states that Starr represented that the property was in good condition. The affidavit states that, after the closing, the purchasers discovered certain defects in the property, but it does not allege that Starr knew about or concealed any such defects.

The gravamen of the Gaudets’ claim is the allegation that Starr orally stated the property was in good condition and, in addition to his written agreement to repair any damage caused by the previous termite infestation, Starr orally promised to repair any defects in the property discovered after the property was deeded to the Gaudets at the closing. No such promises were included in the sales contract. Since the Gaudets are not seeking to rescind the sales contract, but to affirm it and sue for damages, they are bound by its terms and are subject to any defenses which may be asserted based on the terms of the sales contract. Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 75 (441 SE2d 421) (1994). The “merger” or “entire agreement” clause in the sales contract precludes the Gaudets’ reliance on any such verbal promises allegedly made by Starr. Great American Builders v. Howard, 207 Ga. App. 236, 240 (427 SE2d 588) (1993).

Decided November 16, 1994

Reconsideration denied December 5, 1994.

Phillips & Messer, Arthur L. Phillips, for appellants.

Martin, Snow, Grant & Napier, Cubbedge Snow III, Alan M. Maxwell, for appellees.

Judgment affirmed in part and reversed in part.

Beasley, P. J., and Johnson, J., concur.