author: Andrews, Presiding Judge.

text:
    A00A0084.
    R. D. STALLION CARPETS, INC. v. DORSETT INDUSTRIES, L.P.
    (536 SE2d 523)
   Andrews, Presiding Judge.

R. D. Stallion Carpets, Inc. (Stallion) obtained a judgment against Dorsett Automotive Carpet, L.P. f/k/a DWB Holding Carpet, L.P. When Stallion attempted to collect that judgment from Dorsett Industries, L.P., the limited partnership that purchased the assets of Dorsett Automotive Carpet, the trial court granted summary judgment. In this appeal, Stallion contends that material issues of disputed fact precluded that judgment. We agree and reverse.

In reviewing the grant of summary judgment as here, we apply a de novo standard of review and consider the evidence with all reasonable inferences and conclusions in favor of the party opposing summary judgment. Gaskins v. Hand, 219 Ga. App. 823, 824 (466 SE2d 688) (1996). So viewed, the evidence established that the evolution of Dorsett Industries was convoluted. In 1992, Robert S. Goodroe was the controlling stockholder and chief executive officer of Dorsett Carpet Mills, Inc. Sometime in 1992, DWB Carpet Holdings, L.P. acquired Dorsett Carpet Mills from Goodroe and also acquired Whitecrest Carpet Mills, Inc. and Buck Creek Industries, Inc. Although DWB Carpet Holdings combined these three corporations, within a relatively short time period, this company spun off portions of itself and changed its name as set out below.

In April 1994, Stallion and DWB Carpet Holdings (DWB) agreed that DWB would manufacture certain carpets for Stallion. James Collins, the treasurer and chief financial officer of DWB at the time of the deal, testified that “[t]o allow Stallion to recoup its sampling costs, DWB agreed to manufacture the styles for a period of twelve months, after which the styles could be terminated with no liability to Stallion.”

Dissatisfied with DWB’s failure to keep the manufacturing agreement, in January 1995, Stallion submitted a chargeback to DWB. Less than a week later, DWB sold its commercial broadloom business to Whitecrest Dorsett Commercial, Inc. (Whitecrest Dorsett). Robert M. Painter, the controller of Dorsett Industries and formerly the controller of Dorsett Automotive Carpet, testified that “because of the Stallion claim, I notified James Collins and David Turner of the potential for further claims and chargebacks from Stallion, and the Closing Agreement with Whitecrest Dorsett was changed to insulate DWB from further claims from Stallion.” On January 13, 1995, DWB finalized the sale of Whitecrest Carpet Mills to Whitecrest Dorsett. After the acquisition, Collins became chief financial officer of Whitecrest Dorsett. Notwithstanding an alleged agreement between DWB and Whitecrest Dorsett to continue running the three carpet lines for Stallion, Whitecrest Dorsett terminated the production of two of the three styles.

After Stallion attempted to make a chargeback in an amount exceeding $14,000 against Whitecrest Dorsett for discontinuing the carpet, Ron Summey, the administrator of credit and claims for Sunrise Carpet Industries, Inc. and its affiliates, including Whitecrest Dorsett, responded. Summey testified he told Stallion’s president

he had a choice and that Stallion could either reverse the chargeback . . . and pay Whitecrest Dorsett $14,115.78, or alternatively, Sunrise, Victory [Carpet Corporation] and Whitecrest Dorsett Commercial would refuse to process any further orders for Stallion.

Summey “further informed [the president of Stallion] that pending his company’s decision, all shipments to Stallion from Sunrise and its affiliates would be put on hold.”

More than a month after the sale of DWB’s commercial broadloom division, on February 20, 1995, the credit manager of DWB notified Stallion, as a “Dorsett Customer,” that: ‘We are in the process of de-factoring our accounts; more simply put Dorsett will be handling your account credit on a direct in-house basis starting immediately.” This letter to Stallion was signed on behalf of “Dorsett Carpet Mills, Inc., Div. of DWB Carpet Holdings, L.P.”; used the letterhead of “DWB Carpet Holdings”; and listed at the bottom of the page the names and addresses of: “Dorsett Automotive [illegible] Division,” “Dorsett Commercial Carpet,” and “Whitecrest Commercial Carpet.” Dennis Cudd, the president of Stallion, testified that this letter meant that “all future payments by R. D. Stallion to Dorsett were to be made to DWB Carpet Holdings, LP rather than the factor of DWB.”

Sometime in 1995, after the sale of Whitecrest Dorsett, DWTB changed its name to Dorsett Automotive Carpet, L.P., a limited partnership which Goodroe organized. Painter, the controller of Dorsett Industries who had been controller of Dorsett Automotive Carpet until December 22, 1995, testified that:

After the sale of the commercial broadloom division, I continued as the Controller of DWB, although its only operating division was the automotive division. However, I also continued to monitor the claims submitted against pre-sale receivables of the commercial broadloom division, and in that capacity I again dealt with Stallion, after NationsBanc Commercial Corporation charged back $39,920.85 of Stallion accounts receivable ... on March 9, 1995. After receiving that chargeback, I notified Stallion that the chargeback was wrongfully directed at DWB, since Whitecrest Dorsett had agreed to continue the [two discontinued lines] for at least twelve (12) months from their introduction, as set forth in Exhibit E. Stallion never made any written response to my letter with enclosure of April 20, 1995, although NationsBanc Commercial Corporation refused to reverse the chargeback, and the account receivable from Stallion to DWHB in the amount of $39,920.85 was written off as uncollectible on November 28, 1995. . . .

Most of the chargeback related to expenses incurred by Stallion as a consequence of the discontinuation of the carpet lines, “Sisal Weve” and “Au Sisal.” Stallion further advised on the invoice that “[fluture claims on Au Sisal and Sisal Weve will be debited as they occur.”

Seeking damages for the discontinuation of the manufacture of the two carpet types, Stallion filed suit on October 3, 1995, against Dorsett Automotive Carpet, L.P. fik/a DWB Holding Carpet, L.P. Dorsett Automotive Carpet answered and counterclaimed. In Paragraph 2 of its counterclaim, Dorsett Automotive Carpet stated, “The defendant manufactured and sold to the plaintiff [Stallion] certain carpet.” Dorsett Automotive Carpet made a demand for defense against Whitecrest Dorsett and Sunrise Carpet Industries, an affiliate of Whitecrest Dorsett.

While Stallion’s lawsuit was pending against it, Dorsett Automotive Carpet entered into an asset purchase agreement with Dorsett Industries as the buyer. Goodroe testified that he was the organizer of the new limited partnership. When Dorsett Automotive Carpet sold its assets to Dorsett Industries, Goodroe signed the closing documents and was the general partner and president of the newly created Dorsett Industries, L.P.

Paragraph 2.2 of the Asset Purchase Agreement provides in part, “Buyer [Dorsett Industries] agrees to assume all the Assumed Liabilities on the Closing Date. Buyer shall not be liable or obligated for any liabilities, other than the Assumed Liabilities.” Paragraph 1.2 defined “Assumed Liabilities” to mean:

(a) all of Seller’s known or should be known debts, liabilities or obligations of any nature whatsoever, incurred in connection with Seller’s automotive carpet division, including without limitation all debts, liabilities and obligations of such division for . . . pending or threatened lawsuits, contracts, leases and commitments, . . . and (d) all obligations of Seller to Sunrise Carpet Industries, Inc., Whitecrest-Dorsett Commercial, Inc. and their affiliates.

On November 26, 1996, Stallion obtained a judgment against Dorsett Automotive Carpet f/k/a DWB Holding Carpet in the amount of $162,340.37 plus post-judgment interest and costs. In an effort to collect that judgment, Stallion filed suit against Dorsett Industries. Dorsett Industries denied any responsibility, claiming it had no liability for a judgment entered against Dorsett Automotive Carpet.

In answering Stallion’s complaint, Dorsett Industries admitted that:

On the date of Dorsett’s assumption of liabilities of Dorsett Automotive, there was pending in the Superior Court of Whitfield County, Georgia a claim against Dorsett Automotive by Plaintiff in a case styled R. D. Stallion Carpets, Inc. v. Dorsett Automotive Carpet, L.P., f/k/a D.W.B. Holding Carpet-D.W.B., L.P., Civil Action File No. 62, 778-J.

The record does not show that Dorsett Automotive pursued its demand for a defense by Whitecrest Dorsett or filed a third-party action against Whitecrest Dorsett.

In moving for summary judgment, Dorsett Industries contended that the $162,000 judgment was not an assumed liability under the terms of the asset purchase agreement and Stallion was not an intended third-party beneficiary of its contract with Dorsett Automotive Carpet.

In arguing that it bore no responsibility for the judgment, Dorsett Industries pointed out that DWB had different operating divisions. Dorsett Industries claimed, “[a]t all times, DWB’s commercial broadloom division did business with Stallion under the tradestyle “Whitecrest Carpet Mills.’ At no time did Stallion ever conduct business with DWB’s other operating division, Dorsett Automotive.” Dorsett Industries argued that DWB’s agreement with Stallion was strictly between Stallion and DWB’s commercial broadloom division and did not involve the automotive operating division. Goodroe testified,

The Original Litigation was not a “‘pending or threatened lawsuit” against the automotive division as defined in Sub-paragraph 1.2 (a), since the claim arose out of the commercial broadloom division which had been sold to Whitecrest Dorsett, and was not assumed by Dorsett Industries, L.P.

The trial court determined that Stallion was not an intended third-party beneficiary of the asset purchase agreement between Dorsett Automotive Carpet and Dorsett Industries. The court observed, “it was Whitecrest who had committed the alleged breach.” Finding no evidence that Stallion had ever done business with the automotive division, the trial court granted summary judgment to Dorsett Industries.

Stallion contends that disputed issues of material fact precluded summary judgment. Stallion claims that Dorsett Automotive Carpet’s statement in its counterclaim that it “manufactured and sold to the Plaintiff [Stallion] certain carpet,” constituted an admission in judicio. Relying on that statement, Stallion asserts that a jury must decide whether Dorsett Automotive Carpet manufactured and sold goods to Stallion. See Wilson v. Ortiz, 232 Ga. App. 191, 197 (501 SE2d 247) (1998). We agree.

OCGA § 24-3-30 provides “[w]ithout offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other.” Further,

[a]dmissions contained in a stricken plea may be introduced in evidence by the opposite party. Such admissions when thus made are to be taken as true, because they are asserted by the party himself; and while the party may withdraw them formally from the pleadings, he can not by a mere withdrawal avoid the effect of the admissions, since they may still be used as evidence against him. (Cit.)

(Punctuation omitted.) Wilson, supra, 232 Ga. App. at 197.

Although a party may withdraw or strike from the pleadings an admission in judicio by amendment and tender evidence to contravene such admission, the opposite party can tender in evidence the original admission in judicio against such party as an admission against interest. [Cits.]

Wahnschaff v. Erdman, 232 Ga. App. 77, 78-79 (1) (502 SE2d 246) (1998). Even after its withdrawal, an opposing party “undeniably [has] a right to use it as evidence.” Stallings v. Britt, 204 Ga. 250, 254 (2) (49 SE2d 517) (1948).

Thus, even assuming that “DWB withdrew its answer to the Original Litigation on November 25, 1996,” as Goodroe testified, Stallion was entitled to use that evidence as an admission against interest since it was an admission of fact and not a legal conclusion or an opinion. Compare Wahnschaff, 232 Ga. App. at 79-80 (2). When admissions in judicio are expressly withdrawn, such pleadings may still be treated as admissions, but “the party making such admissions is now allowed to tender conflicting evidence.” Aycock v. Calk, 228 Ga. App. 172, 173 (491 SE2d 383) (1997). Although Dorsett Industries offered testimony that at the time of the asset purchase agreement, it had no intention of assuming liability for Stallion’s claims, we cannot say that such testimony would necessarily end the matter. See Bullington v. Union Tool Corp., 254 Ga. 283, 284 (328 SE2d 726) (1985) (purchasing corporation does not generally assume the liabilities of the seller unless: (1) there is an agreement to assume liabilities; (2) the transaction is, in fact, a merger; (3) the transaction is a fraudulent attempt to avoid liabilities; or (4) the purchaser is a mere continuation of the predecessor corporation). “In Georgia, the common law continuation theory has been applied where there was some identity of ownership.” Id. See Ney-Copeland & Assoc. v. Tag Poly Bags, 154 Ga. App. 256 (267 SE2d 862) (1980); Johnson-Battle Lumber Co. v. Emanuel Lumber Co., 33 Ga. App. 517 (126 SE 861) (1925); see Pet Care Professional Center v. BellSouth Advertising &c. Corp., 219 Ga. App. 117, 119 (1) (464 SE2d 249) (1995).

Dorsett Industries argues that Stallion should have presented invoices and other documentation to prove it purchased carpet from DWB’s automotive division. But the gravamen of Stallion’s complaint is that this carpet was not manufactured at all, despite DWB’s agreement to continue production of the three styles for a year. Moreover, the documentation shows that after Stallion directed a chargeback for $39,920.85 against DWB, NationsBanc Credit refused to reverse the chargeback and DWB wrote the amount off as uncollectible. Why NationsBanc Credit refused to reverse the chargeback and why DWB elected to consider the amount uncollectible cannot be reconciled with the position that the automotive division of DWB was entirely separate and distinct from the broadloom division.

The crucial rule of summary judgment procedure is that a trial court cannot resolve facts or reconcile issues but can only ascertain if a material factual issue remains in dispute. Bagley v. Firestone Tire &c. Co., 104 Ga. App. 736, 739 (123 SE2d 179) (1961). In light of the conflicting evidence created by the admission against interest, the evidence that the manufacturing agreement was already being breached at the time DWB sold its commercial broadloom business to Whitecrest Dorsett, evidence that DWB was collecting payments on behalf of Whitecrest Carpet after it had sold the broadloom division, and evidence of the apparent overlapping ownership and operation among DWB, Dorsett Automotive Carpet, Whitecrest Dorsett, and Dorsett Industries, it was error to grant summary judgment to Dorsett Industries. Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601, 603 (385 SE2d 677) (1989); see Johnson-Battle Lumber Co., supra, 33 Ga. App. at 517.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

Decided June 13, 2000

Reconsideration denied June 30, 2000

Minor, Bell & Neal, James H. Bisson III, Robert G. McCurry, for appellant.

Kinney, Kemp, Sponcler, Joiner & Tharpe, L. Hugh Kemp, Hine & Niedrach, Edward Hine, Jr., Erin M. Richardson, for appellee.

       Stallion filed suit against Dorsett Automotive Carpet, L.P. f/k/a DWB Holding Carpet, L.P., but Dorsett Industries refers to the company as DWB Carpet Holdings, L.P.

       DWB sold ’Whitecrest Carpet Mills to Whitecrest Dorsett Commercial, Inc. on January 13, 1995.

         In its summary judgment order, the trial court stated, “Obviously, Stallion had to sue Dorsett Automotive Carpet L.P. f/k/a DWB Holding Carpet, L.P. in order to sue the proper party in interest.” But, if Dorsett Automotive Carpet was the proper defendant it would seem incongruous to find as a matter of law as the trial court did here that Stallion could not recover because “there is no evidence that Stallion ever did any business with the automotive division of DWB or Dorsett Industries.”


source: Caselaw Access Project

license: Public Domain

text:
    A00A0267.
    BIRNBREY, MINSK & MINSK, LLC v. YIRGA et al.
    (535 SE2d 792)
   Andrews, Presiding Judge.

Noah Yirga, the guardian of Elleni Tombassa, sued Birnbrey, Minsk & Minsk, LLC (Birnbrey), Garland W. Campbell, and The Mansion Restaurant, Inc. (Mansion) in an effort to recover damages allegedly relating to an automobile collision. After Birnbrey’s motion for summary judgment was denied, this Court granted Birnbrey’s application for interlocutory appeal. Birnbrey claims it had no liability for the incident. We agree and reverse.

In reviewing the grant or denial of summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996). When so viewed, the evidence showed that Birnbrey held its annual holiday luncheon for employees and guests of the firm on December 15, 1995, at the Mansion. Although Birnbrey closed early for the luncheon, attendance was optional. Campbell, a CPA with the firm, arrived at the Mansion at about 12:45 p.m. and left at about 2:30 p.m., driving his own vehicle. During the luncheon, Campbell consumed two to four glasses of wine. Afterwards, Campbell drove to a friend’s apartment where he remained for about three hours. Campbell and his friend, Tom McAnnally, talked and walked in nearby Piedmont Park. At approximately 5:45 p.m., Campbell left McAnnally’s home intending to visit another friend, who lived across town. While en route, at 6:13 p.m., the collision at issue occurred.

The other driver, Tombassa, sustained a traumatic brain injury. Some evidence suggested that Tombassa may have experienced a seizure immediately before the collision. According to Campbell, “[fit looked like she was sliding or something,” as her vehicle went across several lanes of traffic. Campbell testified, “[m]y recollection is of her car coming at me from the left and me stomping on the brakes trying to avoid hitting her.” According to Campbell, he did “everything humanly possible to avoid hitting her,” including “almost killing myself.” He felt that he did not cause the accident and testified that he was “[n]ot in the least bit” impaired at the time of the collision. Campbell sustained a head injury when his head smashed the windshield. He testified that he did not consume any alcoholic beverages after leaving the Mansion. Campbell was cited for DUI and leaving the scene of an accident. Campbell declined field testing and subsequently on advice of counsel entered a guilty plea to DUI.

The complaint alleged that Campbell was operating his vehicle under the influence of alcoholic beverages that had been furnished to him by Birnbrey within the scope of his employment. The complaint further alleged that the Mansion continued to serve alcoholic beverages to Campbell when its agents knew or should have known he posed a danger to others.

Birnbrey sought summary judgment, arguing that it could be held liable only if there was evidence showing that the firm served alcohol to Campbell while he was noticeably intoxicated. See OCGA § 51-1-40 (b). The motion was denied, but the matter was certified for immediate review.

1. Birnbrey asserts that the trial court erred by failing to grant its motion for summary judgment because the social host liability statute (OCGA § 51-1-40) foreclosed a finding of liability on its part.

As a general rule,

[a] person who sells, furnishes, or serves alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury, death, or damage caused by or resulting from the intoxication of such person, including injury or death to other persons.

OCGA § 51-1-40 (b). But the social host liability statute carves out two exceptions, one pertaining to minors and the other when:

A person . . . who knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such . . . person when the sale, furnishing, or serving is the proximate cause of such injury or damage.

See Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga. App. 890, 891 (1) (473 SE2d 213) (1996).

Thus, Birnbrey as a social host had no liability to a third party unless (1) when Campbell was in a state of noticeable intoxication, Birnbrey knowingly furnished alcoholic beverages to him; (2) it did so knowing that Campbell would soon be operating a motor vehicle; and (3) the act of supplying the alcoholic beverages was the proximate cause of the injuries sustained. Pretermitting whether Birnbrey knew that Campbell would soon be driving or any consideration of proximate causation, the determinative issue is whether the evidence demonstrated that Birnbrey furnished alcohol to a noticeably intoxicated Campbell. McElroy v. Cody, 210 Ga. App. 201, 202 (435 SE2d 618) (1993). We find that it did not.

Where direct and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.

(Citations and punctuation omitted.) Michelin Tire Corp. v. Irving, 185 Ga. App. 783, 784 (1) (366 SE2d 156) (1988).

Birnbrey offered direct evidence attesting that Campbell was not in a state of noticeable intoxication while at the Mansion and did not appear noticeably intoxicated when he left the luncheon. Firm member Allen Landis testified, “[h]e certainly seemed to be normal acting, normally as he acts around the office.” Wendy Minsk stated that she was sure that she talked with Campbell at the luncheon and did not recall anything out of the ordinary that Campbell did at the luncheon. Malcolm Minsk testified that he “didn’t notice anybody acting out of line in any manner.” Several other employees remembered seeing Campbell at the luncheon, but no one testified that they recalled seeing anything unusual that day. “In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” (Citation and punctuation omitted.) Withrow Timber Co. v. Blackburn, 244 Ga. 549, 553 (261 SE2d 361) (1979).

To attempt to create an inference that Campbell was in a state of noticeable intoxication, Tombassa offered circumstantial evidence. Officer John E. Fox, an off-duty officer, was working security at a nearby shopping center at the time of the incident but did not see it. After an unnamed person suggested that Fox proceed to investigate a man who was bleeding, Fox intercepted Campbell as he was exiting a drug store. Fox testified that “[h]e did sway back and forth just a little bit because — he did have a little — a head injury.” Although Fox only spent a few moments with Campbell before turning him over to another officer, Fox testified, “I had a very strong impression with my background and training, especially with all the arrests I do make on the STAR team, that this individual was well over a .10.” But Fox also testified that Campbell did not seem confused and admitted he did not conduct any field testing of him. Nor was any blood alcohol testing ever performed. Based on his brief encounter with Campbell, Fox deduced that he had a blood alcohol level well over 0.10. But these observations about Campbell’s condition occurred several hours after Campbell left the luncheon. While this testimony constituted circumstantial evidence that Campbell may have been intoxicated earlier in the day, it did not demand such a finding. McElroy, supra.

Tombassa also offered the affidavit of J. Phillip Hancock as an expert witness. Hancock, a former employee of the State Crime Lab, stated that between 1972-1983 he had studied the metabolism, effect, and absorption of alcohol. This expert surmised that at the time Campbell left the luncheon, he would have had a level of intoxication of 0.15 or greater, assuming that Campbell did, in fact, have a blood alcohol level of 0.10 or greater 3.75 hours later. Hancock opined that “[i]f Defendant Campbell was showing manifestations of having a blood alcohol level of .15, the people with him should have noticed a level of substantial intoxication.”

Again, such circumstantial evidence would not defeat positive, direct testimony to the contrary. Tombassa’s effort to impute constructive knowledge to the persons with Campbell is unpersuasive. Drawing an inference premised on a nonexistent fact, “[i]f Defendant Campbell was showing manifestations,” cannot surmount positive direct testimony that Campbell appeared and acted “normal” to the attendees of the luncheon. Rather, the uncontroverted evidence of record demonstrates that while at the luncheon, Campbell did not appear to be in a “state of noticeable intoxication.”

Decided June 12, 2000

Reconsideration denied June 30, 2000

Greer, Klosik & Daugherty, Hollis C. Cobh, for appellant.

Joe A. Weeks, for appellees.

Welch, Spell, Reemsnyder, Pless & Davis, Ronald D. Reemsnyder, Lisa K. Whitfield, amici curiae.

Nor can OCGA § 3-3-22 save Tombassa’s case. OCGA § 3-3-22 provides that “[n]o alcoholic beverage shall be sold, bartered, exchanged, given, provided, or furnished to any person who is in a state of noticeable intoxication.” But in the absence of evidence that Campbell appeared noticeably intoxicated, this claim lacks a required element. Compare Whelchel v. Laing Properties, 190 Ga. App. 182, 183 (1) (378 SE2d 478) (1989). In these circumstances, we find that Birnbrey was entitled to judgment as a matter of law. Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 779, n. 1 (257 SE2d 186) (1979); Brewer v. Southeastern Fidelity Ins. Co., 147 Ga. App. 562, 564 (249 SE2d 668) (1978).

2. In light of this holding, we need not reach Birnbrey’s remaining enumerations of error.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

       While not a party to this appeal, the Mansion submitted an amicus curiae brief in support of Birnbrey.

       The police report noted, “Vehicle #1 [Tombassa’s] was south on Buford Hwy. and for reasons unknown at the time crossed the northbound lanes and was struck by Vehicle #2 [Campbell’s] which was north on Buford Hwy. It was determined at the hospital that the driver of Vehicle #1 had a massive brain hemorrhage prior to the accident.” When transferring Tombassa to another hospital, the discharging physician noted, “It was felt that the patient had a seizure prior to the accident.” '

       Donald S. Brown, who witnessed the impact and who rushed over to provide immediate aid to Campbell while he was still inside his wrecked vehicle, stated he did not smell any alcohol on Campbell.


author: ANDREWS, Presiding Judge.

text:
    A00A0649.
    GODDARD v. THE STATE.
    (536 SE2d 160)
   ANDREWS, Presiding Judge.

Ross M. Goddard appeals from the judgment entered on the jury’s verdict of guilty of driving under the influence of alcohol to the extent that it was less safe for him to drive (OCGA § 40-6-391 (a) (1)) and driving with an unlawful alcohol concentration (OCGA § 40-6-391 (a) (5)).

Although Goddard enumerates six errors, they are not argued separately or in sequence in violation of Court of Appeals Rule 27 (c) (1). Nonetheless, exercising our duty under Felix v. State, 271 Ga. 534 (523 SE2d 1) (1999), we address the arguments made regarding the enumerations as best we discern them.

1. Goddard’s first enumeration is that the trial court erred in not granting his motion to suppress the results of his Intoxilyzer 5000 breath test, while the second is that the court erred in admitting the Intoxilyzer results. They are considered together.

The motion to suppress filed below was premised solely on Goddard’s contention that he was not guilty of the offense of striking a fixed object which the officer was initially investigating and, therefore, the Intoxilyzer results should have been suppressed. This is not an appropriate ground for a motion to suppress. OCGA § 17-5-30 (a); State v. Johnston, 249 Ga. 413, 414 (3) (291 SE2d 543) (1982). Any challenge to the procedures used in reading Goddard his statutory implied consent warning, OCGA § 40-5-67.1 (b) (2), and the proper working of the Intoxilyzer 5000 machine would have been appropriately raised by a motion in limine, which was not done here. See, e.g., Pierce v. State, 173 Ga. App. 551, 552 (2) (327 SE2d 531) (1985).

The transcript of the hearing on the motion to suppress is contained in the record here only as an exhibit to Goddard’s motion for reconsideration of the denial of his motion to suppress. Since, however, Goddard requested that nothing be omitted from the record on appeal, we consider this exhibit, along with the trial transcript, in addressing the issue of the pretrial motion.

The hearing transcript indicates that the court, despite Goddard’s failure to include the issue in the written motion as required, considered the issue of the legality of the initial contact with Goddard and his arrest. Asked at the hearing by the court if anything other than probable cause were the issue, Goddard’s counsel responded negatively.

Thereafter, however, in his motion for reconsideration, Goddard argued that his arrest was illegal because it was made without a warrant while he was in his home, based on Carranza v. State, 266 Ga. 263 (467 SE2d 315) (1996). Attached to that motion was the affidavit of Goddard in which he stated that more than one officer barged into his house without permission when he responded to a knock at the door. This motion was also denied by the court.

When reviewing a trial court’s ruling on a motion to suppress, evidence is construed by this Court most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Morgan v. State, 195 Ga. App. 732, 734-735 (3) (394 SE2d 639) [(1990)].

Smith v. State, 237 Ga. App. 616, 618 (2) (516 SE2d 319) (1999).

So viewed, the evidence was that, on Saturday, June 27, 1998, at 8:45 p.m., Corporal Stephens was dispatched pursuant to a 911 call to investigate a reported collision between a car and fixed object. The collision was reported to have occurred within two blocks of the City of Decatur police station, and Corporal Stephens arrived at the address on West Ponce de Leon Avenue at the corner of Adair Drive within one minute of being dispatched. The driveway for this address exited on Adair Street. The dispatch indicated that a white Chrysler LeBaron, driven by a white male, had struck a post. Upon arriving, Stephens observed a concrete post, approximately three feet tall, which had been knocked over approximately twenty-five feet from the driveway. The post, which marked buried cables for BellSouth, was located in the grass strip between the sidewalk and the street. There were fresh tire marks in the grass around the post.

Stephens saw a white Chrysler LeBaron sitting in the driveway and examined it. There was damage to the right rear bumper of the car, and the front passenger side mirror was hanging off. Stephens touched the hood of the car and found it still warm. At that point, Stephens knocked on the door of the house, and Goddard responded. Stephens did not enter the house but explained that she was investigating an accident and asked if the damage to the car was recent or old. Goddard told her that he had gotten in the car and backed it out of the driveway so his daughter-in-law could leave and then driven the car back into the driveway.

Asked for his license and registration, Goddard told Stephens they were in the car and that the damage to the car had not been there before. Stephens could smell the odor of an alcoholic beverage on Goddard’s breath, and his eyes were glassy and bloodshot. Goddard was having trouble walking without stumbling as he walked to the car. Also, he would quit talking in the middle of a sentence and appeared dazed. At one point, Stephens reached out and took Goddard’s arm, fearing that, he was going to fall. Goddard told her that he had drunk some bourbon and ginger ales while watching a ball game.

Observing that the damage to the car’s bumper was consistent with having struck the downed pole, Stephens advised Goddard that he was under arrest for driving under the influence and read him the Georgia Driver’s Implied Consent Rights. The first Intoxilyzer test was attempted at 9:00 p.m., although no results were obtained due to insufficient blowing by Goddard. A test was successfully conducted 25 minutes later, and Goddard registered 0.159. On the second completed test, Goddard registered 0.161. We conclude, as apparently did the trial court, that based on the information in the dispatch and her observations at the scene, Corporal Stephens at least had reason to make an inquiry under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). See Mullis v. State, 201 Ga. App. 75, 76 (1) (410 SE2d 182) (1991); Hall v. State, 200 Ga. App. 585 (1) (409 SE2d 221) (1991). Knocking on the outer door of the residence for the purpose of investigating a reported crime is not violative of the Fourth Amendment. Gilreath v. State, 247 Ga. 814, 819 (1) (279 SE2d 650) (1981); Pickens v. State, 225 Ga. App. 792, 793 (1) (484 SE2d 731) (1997). Once Goddard stated that he had driven the car and she observed numerous signs indicating intoxication, Stephens had probable cause to arrest Goddard for DUI. Since Stephens did not enter his home and Goddard had exited it before he was placed under arrest, Carranza, supra, is not implicated. Compare State v. Sims, 240 Ga. App. 391, 394 (523 SE2d 619) (1999) and Threatt v. State, 240 Ga. App. 592, 595 (1) (524 SE2d 276) (1999) with Mullis, supra, and Hall, supra.

Therefore, there was no error in denying Goddard’s motion.

2. The third and fourth enumerations are that the trial court erred in denying Goddard’s motion for directed verdict on Counts 1 and 2, while the fifth enumeration challenges the legal sufficiency of the evidence.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Citation and punctuation omitted.) Wright v. State, 228 Ga. App. 779 (1) (492 SE2d 680) (1997).

Simmons v. State, 236 Ga. App. 83, 84 (510 SE2d 925) (1999).

The evidence presented, as set out above, was sufficient for the jury to conclude, based on the circumstances, that within three hours of being approached by the officer, Goddard had driven the car with a blood alcohol concentration of 0.159 or had driven the car while it was less safe for him to drive. Copeland v. State, 235 Ga. App. 682, 684 (1) (510 SE2d 124) (1998); Mullis, supra; Hall, supra.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Decided June 13, 2000

Reconsideration denied June 30, 2000.

William V. Hall, Jr., for appellant.

Gwendolyn R. Keyes, Solicitor, Maura F. Krause, Matthew J. Buzzelli, Thomas E. Csider, Assistant Solicitors, for appellee.

       The two counts were merged for purposes of sentencing.

       Goddard was acquitted by the jury of failure to comply with duty upon striking a fixed object. OCGA § 40-6-272.

       Resolution of the factual discrepancies in Goddard’s affidavit and the officer’s testimony was for the trial court and will not be disturbed by this Court absent clear error, not present here. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).


author: Barnes, Judge.

text:
    A00A0021.
    PAYNE v. THE STATE.
    (536 SE2d 791)
   Barnes, Judge.

After Andre Payne was convicted of trafficking in cocaine, he was sentenced to a $200,000 fine and 25 years to serve, 15 years in the penitentiary and the remainder on probation. Contending that the trial court erred by denying his motion to suppress the cocaine that he alleges was seized in an illegal search, Payne appeals.

Payne contends the trial court erred by finding that he had consented to the search of his car because his consent was not voluntary, but was coerced. Payne maintains that he refused to consent to the search on three or four occasions and further contends that the deputy lacked articulable suspicion sufficient to warrant Payne’s detention or arrest. For the reasons stated below, we must reverse Payne’s conviction.

1. In Tate v. State, 264 Ga. 53 (440 SE2d 646) (1994), our Supreme Court reiterated an appellate court’s responsibilities when reviewing a motion to suppress.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge “hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.” State v. Swift, 232 Ga. 535, 536 (207 SE2d 459) (1974). Second, the trial court’s decision with regard to the “questions of fact and credibility . . . must be accepted unless clearly erroneous.” Woodruff v. State, 233 Ga. 840, 844 (213 SE2d 689) (1975). (Emphasis supplied.) Third the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Anderson v. State, 133 Ga. App. 45, 47 (209 SE2d 665) (1974).

Id. at 54 (1). In reviewing a trial court’s decision on a motion to suppress, an appellate court’s responsibility is to ensure that there was a substantial basis for the decision. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). As the evidence at the suppression hearing was undisputed and no question existed about the witness’ credibility, we will conduct a de novo review of the trial court’s application of the law to the uncontested facts. Hughes v. State, 269 Ga. 258, 259 (1) (497 SE2d 790) (1998).

2. The Fourth Amendment applies to all seizures of the person, including those that involve only a brief detention of the person short of a traditional arrest. Terry v. Ohio, 392 U. S. 1, 16-19 (88 SC 1868, 20 LE2d 889) (1968). Fourth Amendment rights, however, may be waived by voluntarily consenting to search, and a valid consent to search eliminates the need for both probable cause and a search warrant. Walton v. State, 194 Ga. App. 490, 492 (2) (390 SE2d 896) (1990). When the State relies upon consent, it has the burden of showing that the consent was voluntary, and not the result of express or implied duress or coercion. Lombardo v. State, 187 Ga. App. 440, 441 (1) (370 SE2d 503) (1988).

3. The officer had probable cause to stop and detain Payne initially because he saw Payne following the vehicle ahead of him too closely. See Verhoeff v. State, 184 Ga. App. 501, 503 (2) (362 SE2d 85) (1987). At least three kinds of police-citizen encounters are authorized: “verbal encounters involving no coercion or detention; brief ‘stops’ or ‘seizures’ which must be accompanied by a reasonable suspicion; and ‘arrests’ which must be supported by probable cause.” Id. This determination, however, does not end our inquiry because the contraband was not discovered through this stop of the vehicle. Instead, the State contends that the contraband was discovered through a legitimate consent search.

4. Viewed most favorably to uphold the trial court’s ruling on the motion, the evidence, and in particular a videotape of the incident, shows that Payne was traveling on a highway in Mitchell County about 1:30 in the afternoon when he was stopped by a deputy sheriff for following too closely. Although initially and promptly deciding to give Payne a warning ticket, the deputy then asked Payne whether weapons, contraband, marijuana, and cocaine were in his car. Payne apparently denied having any of these things.

After the deputy asked, “Do you have any objection for me searching your car real quick for any marijuana or cocaine,” the following discussion occurred, which we quote at length for context:

PAYNE: Yes. I’m kind of in a hurry.
DEPUTY: I understand that.
PAYNE: Yes, I mean I have objection to you searching the car.
DEPUTY: Is there any marijuana or cocaine in your car?
PAYNE: No. (Inaudible.) I just got my license back.
DEPUTY: Sir? What did you get your license back for?
PAYNE: I had a ticket.
DEPUTY: Step back for me, okay? There is no luggage in the front of your car? Okay, you understand that I have the option of retaining you until I get a canine here, right? Rather than go through all of those things, if you are staying straight with me, when I say search the car, I basically just want to open and look. I don’t want to go through and take all of your compartments open and look. I won’t delay you but five minutes.
PAYNE: (Inaudible response.)
DEPUTY: I understand what you’re saying.
PAYNE: I’m really in a hurry that’s why I wasn’t speeding or anything and I didn’t know I was trailing people.
DEPUTY: Well, okay. Stand right there in front of the car for me. Lift up your shirt for me. You told me several different conflicting stories, conflicting stories, right here, okay?
PAYNE: (Inaudible.)
DEPUTY: Well, I’m telling you what I think and what you told me and I am saying that based on what you told me. At this point, now, you are no longer free to go. And do an about face. You can put the wallet and stuff back in your pocket.
PAYNE: What?
DEPUTY: You can put your wallet and stuff back in your pocket. The dog is on the way out here. You don’t have any weapons in your pocket, do you? Spread your legs for me. I ain’t going to put no handcuffs on you but jump in the back seat of the car. Jump in the back seat. Shut that door. Is it worth this wait?
PAYNE: I mean, really, I am in a hurry. I was supposed to be there. (Inaudible.)
DEPUTY: It won’t take me a couple of minutes, man, to cut you loose.
PAYNE: (Inaudible response.)
DEPUTY: Well, do you want me to call the dog or are you going to allow me consent? [Apparently a radio call.] Cut me case card and show at this time subject is being detained. You have a beeper number CI-6? How about contacting him and having him en route. At this time show this person is being detained. Do you have a beeper number for a Canine, CI-6? Ask him to be en route to my location. Now, you said something?
PAYNE: How long is this going to take to search my car?
DEPUTY: Well, case law, it has been proven that its held up in court — there have been cases where it’s taken a dog up to 45 minutes to get on the scene and held up in court, that’s the reasonable amount of time. (Inaudible.) It wouldn’t take me more than five minutes. Well, basically, I done told you it wouldn’t take me more than five minutes.
PAYNE: (Inaudible response.)
DEPUTY: I just called the dog, but you really got me tripping, now.
PAYNE: I’m sorry. I didn’t know that. (Inaudible.)
DEPUTY: I understand that, too, but there are certain things that we need to look for as indicators and that’s what I have done and I have observed a number of indicators on you. And those indicators usually lead, in most cases, probably a person of some type of concealment.
PAYNE: (Inaudible response.)
DEPUTY: I don’t want you to feel like you are being threatened in any way or anything but this is just procedure. Now, if you want to go on out there and we do a quick search of your car, either way it’s fine with me but either way, I have enough probable cause to search your car; that’s either with your consent or either without your consent, your car is going to be searched. Okay? Now, you got in trouble when?
PAYNE: I got in trouble in the early ‘90’s —
DEPUTY: For what?
PAYNE: Weed.
DEPUTY: How much? How much? Is there any weed in that car, now?
PAYNE: No.
DEPUTY: As long as we get confirmation from CI-6? As soon as you get confirmation with the canine unit, please advise me. (Deputy radios dispatch.) I want you to get straight with me, man.
PAYNE: (Inaudible response.)
DEPUTY: Any large sums of money in the car?
PAYNE: (Inaudible response.)
DEPUTY: If I understand, now, you give me your consent to search the car? (Deputy talks with dispatch.)
THE COURT: If that’s what he said, I didn’t hear it. Run that back. I didn’t catch it. I could not understand that. Were you picking that up?
COURT REPORTER: I’m going to say, on the record, that I can’t certify what the witness is saying because I can’t hear it all. But I’d be glad to transcribe the portions that I can hear. But I could not understand because when he is not in the microphone, I can’t hear it.
DEPUTY: I understand now you give me consent to search' the car, is that the case here? •
PAYNE: (Inaudible response.) I’m against it.
DEPUTY: I have reason to believe there is some type of contraband in your vehicle, okay ? Now, it could happen and I asked for permission to search your car, okay? It can go one or two ways. You can tell me yes or no. You can tell me yes and then we go ahead and do it that way or you can tell me no and I probably have enough probable cause to go before a judge, in this case I feel like I do, I can retain you and call the dog out here and that’s what I have done. But, now, at any time you can give consent if that’s what you decide to do. Do you want to continue to wait?
PAYNE: No, let’s give it a quick search.
DEPUTY: Now, at this point now, I’m going to put some handcuffs on you in the front and you can stand in front of your car while I do a quick search of your vehicle.
PAYNE: You’ll handcuff me in the front?
DEPUTY: I’ll handcuff you in the front.
PAYNE: (Inaudible response.)
DEPUTY: You need to stand there outside your car. You need to stand there with me. You don’t want me going through your car by myself, do you?
PAYNE: I don’t want to stand on the side — (Inaudible.)
DEPUTY: I mean, you can just stand there and wave. People won’t know you have handcuffs on. It’s totally up to you. Put your hands out right there. Walk up to the front of your car. Just step up there for me. You can just kind of hang loose right there or whatever, okay? Where your car keys go to? I’m going to advise you on the canine, I’m going to go ahead with the search, consent search. Stand right there in front of the car for me, okay. What is your name again? Does this key go in your pocket? Let’s go. Let’s go. Right on back there, right back. [Apparently, a radio call] Have Chris to route my location and tell him to get that jail car.

(Emphasis supplied.)

At the motion to suppress hearing, the videotape was augmented with the deputy’s live testimony. He testified that he stopped Payne for following too closely. He also testified that Payne was not free to go before the search because,

There were several indications of articulable suspicions. First suspicion being that immediately after I made a traffic stop on Mr. Payne. While sitting in my patrol car, I could observe that there was only one occupant in that car and observed in that vehicle as I could see the driver laying in across the front passenger — laying out across the front — seeing that the vehicle extending over to the passenger side of the vehicle. Upon Mr. Payne exiting the vehicle, during the traffic stop, another articulable suspicion was that he immediately handed me the rental agreement to the vehicle as to show me that the vehicle does not belong to him. A third suspicion was the nervousness of the driver. Upon trying to retrieve his driver’s license, his hands were shaking. He was dropping items from his wallet. The driver appeared to stay away from me as to not get close. As I took steps toward Mr. Payne, he would immediately take steps away or sidestep or things of that nature. Also, the eye contact. When I asked Mr. Payne questions as to his name or things of that nature, he would look me in the eye and give me a good answer. But when I asked Mr. Payne questions about his whereabouts or things of that nature, Mr. Payne had to look to the ground or look away before answering those questions. The sixth suspicion was that the body language of Mr. Payne, he was constantly shuffling around, not standing in one place, what we call the handcuffed position. He was always placing his hands together either above his head or behind his back or to his front or in a position as to being handcuffed.

According to the deputy, the police believe this subconscious movement is the person placing themselves under arrest; according to the deputy, they refer to it as “the handcuffed position.” The deputy continued,

Also, another articulable suspicion was that when I advised Mr. Payne of the violation for the traffic stop, Mr. Payne told me that he knew he wasn’t speeding so he wanted me to explain that he was following too close to him so he would make sure he wouldn’t get stopped for it again in detail.

The deputy also testified that Payne gave him three different stories, three different times. The deputy said that Payne first told him he was going to pick up his girlfriend on a family emergency and then changed to saying he was going to pick her up for a football game, and then changed it back to a family emergency. Additionally, the deputy was not satisfied with Payne’s story about the football game because Payne could not tell him whom his team was playing. The deputy’s tenth articulable suspicion was that Payne could not produce a student ID when he told the deputy that he was a full-time student. The deputy was also suspicious because Payne first said he was a full-time student and then said he was not.

The deputy’s “twelfth and final articulable suspicion” was that,

Mr. Payne himself hadn’t rented the car out of Miami, Florida, and it kind of seemed strange for him to be en route to Sylvester, Georgia, and not have any luggage in the car. You know, not a change of clothes or anything. And based on those suspicions, I felt like I had enough suspicion to detain Mr. Payne and get a canine out on the scene for a canine search of the vehicle.

At the conclusion of the hearing on the motion to suppress, the trial court ruled that the deputy had probable cause to stop Pasme because he was following the vehicle ahead of him too closely. The court also found that Pasme, “in fact, voluntarily gave his consent to the officer to search his vehicle.” The court further noted,

In any event, while the search was being conducted the defendant’s conduct also showed to me in that what the Court considers to be his consent by not objecting. At that time also there was a discussion of where the handcuffs would be, where he could be, and, you know, there was — it — everything he did indicated consent. And for this reason, I’m going to — for these reasons, I’m going to deny the motion to suppress.

Later, at Payne’s request, the trial court filed written findings of fact and conclusions of law that in substance, but not entirely, followed these comments. In some respects the order, prepared by the prosecutor, embellished the trial court’s comments.

During Payne’s trial, additional evidence was presented on this issue.

DEFENSE COUNSEL: You have walked up to his car. He was under arrest. You’re no longer free to go. You looked in his car. You didn’t see any drugs in plain view, did you, sir?
DEPUTY: No, sir, I did not.
DEFENSE COUNSEL: Well, what suspicion of contraband were you able to place him under arrest for at that point?
DEPUTY: At that point there were none.
DEFENSE COUNSEL: You just told us that he was under arrest for suspicion of contraband. How can he be under arrest for suspicion of contraband, sir, if there was nothing?
DEPUTY: Based on the, based on the numerous articulable suspicions that I had, I had developed enough probable cause to detain Mr. Payne. There’s, there’s no warrant for suspicion.
DEFENSE COUNSEL: I’m sorry. [Deputy], we’re beyond that point. We’re at the point where you have told him, you are no longer free to go.
DEPUTY: That’s correct.
DEFENSE COUNSEL: You testified that at the time that you had him lift up his shirt he was no longer free to go; is that right?
DEPUTY: That’s correct.
DEFENSE COUNSEL: And you testified that at that point he was under arrest for something and what I’m asking you simply, sir, is: What was he under arrest for at that point?
DEPUTY: At that point he was under arrest for, for the numerous articulable suspicions that had been developed.
DEFENSE COUNSEL: Where in the Georgia code does it say that you can arrest somebody for articulable suspicions of any type?
DEPUTY: I can’t just tell you.
DEFENSE COUNSEL: Did you see a crime being committed, sir?
DEPUTY: I had enough probable cause to believe that there was one being committed, sir.
DEFENSE COUNSEL: Did you see a crime being committed, sir?
DEPUTY: No, sir, I did not.
DEFENSE COUNSEL: [A]t the time that you placed Mr. Payne under arrest, told him that he was no longer free to go and told him to lift his shirt, he was not under arrest for following too closely, was he?
DEPUTY: No, he was not.
DEFENSE COUNSEL: And you hadn’t seen any drugs yet so he wasn’t under arrest for drugs, right?
DEPUTY: No, he was not.
DEFENSE COUNSEL: Well, what crime was it that he was under arrest for?
DEPUTY: Based on the articulable suspicions Mr. Payne was under arrest for a farther investigation.

(Emphasis supplied.)

Upon further examination by the prosecutor, the deputy testified that it did not make any difference to him whether Payne consented or not because he was waiting for the canine unit to arrive to do an “air search” of the car. During the trial, Payne testified that he was coerced into giving his consent to search.

5. We cannot sustain this search. The videotape speaks for itself. Payne’s consent to the search of his vehicle was extracted only after he had many times refused to give it. This so-called consent, at best, was merely an acquiescence to authority. The deputy told him that his car would be searched regardless; in effect, Payne was merely allowed to choose his poison. Further, if an officer represents that a search warrant will be secured should consent be refused, and does not have probable cause for a search warrant, the accused’s consent is invalid. Solomon v. State, 236 Ga. App. 778, 780 (2) (513 SE2d 520) (1999); Darby v. State, 216 Ga. App. 781, 783 (2) (455 SE2d 850) (1995).

As the videotape and the deputy’s testimony show, probable cause to search Payne’s vehicle did not exist.

Probable cause to search an automobile exists when the facts and circumstances before the officer are such as would lead a reasonably discreet and prudent man to believe that the contents of the vehicle offend the law. The test of probable cause requires merely a probability — less than a certainty but more than a mere suspicion or possibility. A suspicion or strong reason to suspect is an insufficient foundation for a finding of probable cause.

(Citation and punctuation omitted.) Brown v. State, 269 Ga. 830, 831-832 (1) (504 SE2d 443) (1998).

Moreover, this search cannot be justified as part of a valid Terry detention. See State v. Hanson, 243 Ga. App. 532 (532 SE2d 715) (2000) (physical precedent). An investigatory detention is constitutional when the police officer can point to specific, articulable facts that the person stopped is, or is about to be, involved in criminal activity. Terry v. Ohio, supra, 392 U. S. at 21; United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981). The deputy must have had a particularized and objective basis for suspecting Payne of criminal activity. Id. at 418. “This demand for specificity in the information upon which police action is predicated is the central teaching of Fourth Amendment jurisprudence.” (Citation and punctuation omitted.) McSwain v. State, 240 Ga. App. 60, 61 (522 SE2d 553) (1999). It is obvious from the videotape and the deputy’s testimony that the deputy had no particularized, objective basis for detaining Payne. His “articulable suspicions” either individually or collectively do not point to a particularized and objective basis for suspecting that Payne was, or was about to be, engaged in criminal activity. Peters v. State, 242 Ga. App. 816 (531 SE2d 386) (2000).

Decided June 30, 2000.

Rodney M. Keys, for appellant.

J. Brown Moseley, District Attorney, Victoria Spear-Darrisaw, Assistant District Attorney, for appellee.

Because Payne was detained without a legal basis, his detention was an unlawful arrest. Williams v. State, 251 Ga. 749, 792 (8) (ii) (312 SE2d 40) (1983). Accordingly, as the search of Payne’s car was not authorized, the trial court’s decision on his motion to suppress the evidence seized in the unlawful search must be reversed. Brown v. State, supra, 269 Ga. at 834.

Judgment reversed.

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


author: Ruffin, Judge.

text:
    A00A0255.
    KILBURN v. YOUNG.
    (536 SE2d 769)
   Ruffin, Judge.

Galen Kilburn, the majority stockholder of Kilbum-Young Asset Management Corporation (KYAMC), filed a derivative action on behalf of the corporation against Robert Young, alleging among other things that Young misappropriated corporate funds for his own benefit while serving as president and chief executive officer. Young moved to dismiss the complaint on the grounds that Kilbum failed to join the corporation as an indispensable party. The trial court granted this motion, as well as Young’s request for attorney fees. For reasons discussed below, we reverse.

1. Young concedes that “Kilbum possesses the authority to act derivatively on KYAMC’s behalf by filing a proper shareholder derivative action,” but contends that Kilbum must name KYAMC as a defendant in such an action and serve it with process. Young argues that failure to name KYAMC as a defendant is a jurisdictional matter and thus requires dismissal. Kilburn, by contrast, argues that KYAMC is already properly before the court as a party plaintiff by virtue of the fact that he filed the complaint derivatively on its behalf. Kilburn also argues that, even if the corporation is not properly before the court either as a plaintiff or a defendant, the remedy for failure to join an indispensable party is not dismissal, but joinder. We agree with Kilbum’s second contention, but not the first.

The concept of a shareholder derivative suit has its origins in equity. In a derivative suit,

the shareholder sues on behalf of the corporation for harm done to it. Ordinarily, therefore, any damages recovered in the suit are paid to the corporation. Historically, the derivative suit was conceived of as a double suit, or two suits in one: The plaintiff (1) brought a suit in equity against the corporation seeking an order compelling it (2) to bring a suit for damages or other relief against some third person who had caused legal injury to the corporation.

It has long been recognized, both in Georgia and in other jurisdictions, that “[t]he corporation is a proper and indispensable party to a suit brought by one or more stockholders for its benefit.” In Greenwood v. Greenblatt, our Supreme Court stated that “[t]he right of action against officers and directors to redress, or to recover damages for, wrongs inflicted by them upon the corporation is in the corporation and not in the stockholders.” If the corporation refuses to take action, and the stockholders sue to compel officers or directors to account for waste or misapplication of corporate funds, “the corporation should be before the court and should be made either a party complainant or defendant,” and the suit must be brought “for the benefit of the corporation.”

Because the right of action for corporate wrongs is in the corporation, the plaintiff shareholder in a derivative suit is at best a nominal plaintiff, and the corporation is the real party in interest. The Eleventh Circuit has noted that,

as a practical matter, the corporation is initially named as a defendant. In this way the stockholder insures the presence of the corporation as an indispensable party. Once joined and present before the court, the corporation is then realigned, if necessary, according to its real interests.

The U. S. Supreme Court has stated that, “[a]lthough named a defendant, [the corporation] is the real party in interest, the stockholder being at best the nominal plaintiff.” Regardless of the proper procedure for joining the corporation, it seems clear that the mere fact that a shareholder has filed a derivative action for the benefit of the corporation does not mean that the corporation itself has properly been made a party to the action, either as a plaintiff or a defendant.

Young asserts that, because Kilburn failed to include the corporation as an indispensable party, the trial court properly dismissed the action. Young relies on Smyly v. Smith, in which our Supreme Court stated that “the corporation is not merely a proper party, but is an essential, indispensable party, and a failure to make the corporation a party is not a mere defect of parties, but leaves the stockholder without a cause of action and the court without jurisdiction.”

At the time Smyly was decided, Georgia courts drew a distinction between “the mere nonjoinder of a proper party . . . and the failure to name an indispensable party, whose presence before the court is essential to an adjudication of the right of recovery prayed.” In upholding the dismissal of the shareholder’s complaint, Smyly relied on Sowell v. Sowell for the proposition that “the omission to name an essential, indispensable party results in the failure of the petition to set forth a cause of action and subjects it to general demurrer.” Sowell, in turn, stated that

[t]he rule in Georgia is that the failure to name a proper party is a matter for special demurrer. The failure to name a necessary or indispensable party, such as the grantor in a deed which is sought to be canceled, is not a mere defect, but leaves the petitioner without a cause of action and the court without jurisdiction.

Thus, dismissal of a shareholder derivative suit for failure to name the corporation was based not on considerations peculiar to such a suit, but on the general principle that failure to name an indispensable party subjected a suit to general demurrer.

After the decisions in Smyly and Sowell, however, the legislature passed the Civil Practice Act, OCGA § 9-11-1 et seq. OCGA § 9-11-19 (a) (1) provides that a person “shall be joined as a party” if “[i]n his absence complete relief cannot be afforded among those who are already parties.” If such a party “has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant or, in a proper case, an involuntary plaintiff.” This section had been construed to mean that “[t]he proper remedy for failure to join indispensable parties is not dismissal, but joinder. . . . Before granting a motion to dismiss for failure to join indispensable parties, a court must allow a reasonable time for the absent parties to be joined.” The Supreme Court has stated that “[o]rdinarily, it is error to dismiss a petition or complaint for failure to join an indispensable party. Such a party should be joined in the action so the case can be considered on its merits.” And we have held that “while the failure to name one as a party might be the basis for corrective action as prescribed in [OCGA § 9-11-19], it is not cause for dismissal of the complaint under the ground of failure to state a claim upon which relief can be granted.”

Although the parties have cited no cases applying this principle in the context of a shareholder derivative action, we see no reason why it should not be so applied. As discussed above, the rule requiring dismissal of a derivative suit for failure to name the corporation was based upon the general principle that failure to join an indispensable party subjected a complaint to dismissal. Since that principle no longer applies following adoption of the Civil Practice Act, the trial court erred in dismissing Kilburn’s complaint for failing to join an indispensable party, without allowing a reasonable time for joinder.

Decided June 30, 2000.

Fellows, Johnson & La Briola, Henry D. Fellows, Jr., Brad S. Kalter, Eric A. Kane, for appellant.

Long, Aldridge & Norman, Deborah Ebel, John L. Watkins, for appellee.

2. Because it is apparent that the trial court’s order granting attorney fees was premised solely upon its dismissal of Kilbum’s complaint, the award of attorney fees must also be reversed.

Judgment reversed.

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

       See Ross v. Bernhard, 396 U. S. 531, 534 (90 SC 733, 24 LE2d 729) (1970).

       (Punctuation omitted.) Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 586 (397 SE2d 699) (1990).

        Wagner v. Biscoe, 190 Ga. 474, 477 (9 SE2d 650) (1940), quoting 14 CJ, § 1461, p. 941. See also City of Davenport v. Dows, 85 U. S. 626, 627 (21 LE 938) (1874).

       173 Ga. 551, 556 (3) (161 SE 135) (1931).

       Id. at 557-558 (3).

       See Ross, supra at 538; Koster v. Lumbermens Mut. Cas. Co., 330 U. S. 518, 522-523 (67 SC 828, 91 LE 1067) (1947). Although in certain limited circumstances a shareholder may bring a direct action in his own right, see Thomas v. Dickson, 250 Ga. 772 (301 SE2d 49) (1983); Grace Bros. v. Farley Indus., 264 Ga. 817 (450 SE2d 814) (1994), Kilburn did not purport to do so, nor does he contend on appeal that his complaint should be considered a direct action. Accordingly, we do not consider whether the complaint would be viable as a direct action.

        Liddy v. Urbanek, 707 F2d 1222, 1224 (11th Cir. 1983).

        Ross, supra at 538.

       216 Ga. 529 (118 SE2d 188) (1961).

       Id. at 529 (2). Accord Wagner, supra at 477.

       212 Ga. 351 (92 SE2d 524) (1956).

        Smyly, supra at 529-530 (2).

        Sowell, supra at 353.

       OCGA § 9-11-19 (a).

        Altama Delta Corp. v. Howell, 225 Ga. App. 78, 81 (3) (483 SE2d 127) (1997).

       (Citation omitted.) Dismuke v. Stynchcombe, 237 Ga. 420, 421 (4) (228 SE2d 817) (1976).

       (Punctuation omitted.) Empire Banking Co. v. Martin, 133 Ga. App. 115, 119 (210 SE2d 237) (1974).

       The Supreme Court has applied this principle to another situation mentioned in Sowell. In Smith v. Merchants & Farmers Bank &c., 226 Ga. 715, 718-719 (3) (177 SE2d 249) (1970), the Court stated that “[p]rior to the enactment of the Civil Practice Act. . . the failure of the plaintiff to name the grantor or grantee in the deed sought to be canceled would have required the dismissal of the action,” but that afterwards it was an “amendable defect.”

       We also note that the trial court’s order was defective in that it failed to specify the particular conduct supporting an award of attorney fees. See La Petite Academy v. Prescott, 234 Ga. App. 32, 34-35 (2) (506 SE2d 183) (1998).


author: Smith, Presiding Judge.

text:
    A00A0344.
    VILDIBILL v. PALMER JOHNSON OF SAVANNAH, INC.
    (536 SE2d 779)
   Smith, Presiding Judge.

We are called upon in this appeal to determine whether the trial court correctly concluded that the parties had entered into an enforceable settlement agreement. We find that no enforceable agreement existed, and we reverse the trial court’s judgment.

Dr. Harry D. Vildibill, a Florida resident, and his family visited the waters in and around Savannah during the summer of 1996 on his boat, the “Over Forty.” The vessel sustained damage, and Vildibill contracted with Palmer Johnson of Savannah, Inc. to make the necessary repairs. When the boat was returned to Vildibill in November 1996, he noticed that it appeared to be leaking, but he did not realize the severity of the problem until an inspection of past repairs was performed at a boat works in St. Petersburg, Florida, in mid-1998. That inspection revealed improper repair done with poor workmanship that had damaged the boat extensively. Vildibill then retained an attorney, who wrote a demand letter to Palmer Johnson on August 21, 1998. Palmer Johnson responded by letter from its attorney on August 24, 1998, in which it proposed to have the boat inspected. After performing the inspection, on September 16, 1998, Palmer Johnson, through its attorney, sent Vildibill’s attorney the inspector’s report and offered to settle the claim for $5,950.96. On October 2, 1998, Vildibill rejected this offer and made a counteroffer of $10,679.66. The counteroffer was rejected by letter dated October 7, 1998, in which counsel stated that Palmer Johnson would not pay more than its initial offer.

On October 13, 1998, Vildibill’s attorney faxed a letter accepting the original offer and requesting that Palmer Johnson’s attorney “forward whatever release you deem appropriate along with the settlement proceeds.” Palmer Johnson’s attorney responded by fax the next day, stating only that he was presently on vacation, would return on November 2, and would “handle this matter upon my return.”

Between October 14, 1998 and November 2, 1998, Palmer Johnson forwarded its check in the amount of $5,950.96 to its attorney. Meanwhile, however, Vildibill had the boat inspected by another marine surveyor, who found considerable hitherto undetected damage. The settlement check was never sent to Vildibill’s attorney, because on November 2, 1998, Vildibill’s attorney telephoned Palmer Johnson’s attorney and informed him that his client could not settle at that time and “needed more time to explore the situation further.” According to Vildibill’s attorney, during that telephone conversation, Palmer Johnson’s attorney advised him “that the offer would remain open while Dr. Vildibill made a final decision.”

The new inspection revealed that estimated repairs of damage caused by Palmer Johnson’s previous work on the boat would exceed $35,000. When Vildibill learned this, he refused to settle for $5,950.96 and filed suit against Palmer Johnson. Palmer Johnson answered, claiming that Vildibill’s suit should be dismissed because the parties had entered into an enforceable settlement, and moved to enforce the settlement agreement. Vildibill filed a response opposing the motion, and the trial court granted the motion.

1. Vildibill first contends the trial court erred in enforcing the settlement agreement because the parties never entered into an enforceable agreement, but only agreed to agree. According to Vildibill, the agreement was unenforceable because it was not “definite, certain, and unambiguous.” (Citation and punctuation omitted.) Barnett Bank v. Thurman, 213 Ga. App. 820, 821 (3) (446 SE2d 529) (1994). In support of this contention, he points out that the parties had not yet agreed upon any terms for a release and, in fact, none of the particulars of the settlement were brought up except the amount.

In this state, a settlement agreement must meet the same requirements of formation and enforceability as other contracts. Only when a meeting of the minds exists will an agreement be formed. But the law also favors compromise, and when parties have entered into a definite, certain, and unambiguous agreement to settle, it should be enforced. Southern Med. Corp. v. Liberty Mut. Ins. Co., 216 Ga. App. 289, 291 (2) (454 SE2d 180) (1995). If a settlement agreement is disputed, it must be in writing to be enforceable. Ideally, a writing satisfying this requirement consists of a formal written agreement signed by both parties. But letters prepared by the parties’ attorneys may suffice if they memorialize the terms of the agreement. Herring v. Dunning, 213 Ga. App. 695, 697 (446 SE2d 199) (1994).

Here, Vildibill’s attorney’s detailed letter of October 13, 1998, accepting Palmer Johnson’s offer to settle for $5,950.96 in return for “any release you deem appropriate,” constituted an unconditional acceptance, regardless of the eventual terms of any release. And it was binding upon Vildibill, because it was communicated to the opposing party. Superglass Windshield Repair v. Mitchell, 233 Ga. App. 200, 202 (1) (504 SE2d 38) (1998). An enforceable contract was thereby formed.

2. This settlement agreement, however, was limited to the problems itemized in the inspector’s report, which was a part of Palmer Johnson’s offer. It did not purport to cover damage caused by other negligent repair that was unknown at the time the parties formed the agreement. Even had the parties executed a general release, unless it specifically, clearly, and expressly so stated, it would not have discharged liability for conduct that had caused damage that was already done but as yet unknown to the parties. U. S. Anchor Mfg. v. Rule Indus., 264 Ga. 295, 298 (2) (443 SE2d 833) (1994). Even if the trial court correctly enforced the settlement agreement, therefore, it would not preclude Vildibill from seeking additional compensation for damage already done but unknown to either party at the time the settlement was entered into.

3. In this case, however, we agree with Vildibill that even if such an enforceable agreement was formed, it was mutually rescinded. We cannot agree with Palmer Johnson that Vildibill made a “unilateral attempt to rescind the settlement contract based on his alleged discovery of more extensive damage.” On the contrary, the evidence presented by Palmer Johnson makes no mention of the attempted rescission; the only evidence addressing this issue was presented by Vildibill. And that evidence, an affidavit from Vildibill’s attorney, shows that not only did Vildibill try to rescind, or at least postpone, any settlement, but that Palmer Johnson’s attorney agreed to hold open the offer until Vildibill made a final decision. “The parties to a contract may rescind it by mutual agreement, and rescission of a written contract need not be in writing. One party to a contract may consent to rescission by the other party either impliedly or by conduct.” (Citations and punctuation omitted.) Nationwide Mut. Ins. Co. v. McCollum, 179 Ga. App. 500, 502 (1) (347 SE2d 231) (1986). At the least, the evidence here raises a question of fact regarding whether Palmer agreed to rescind the agreement, at least temporarily. Judgment in favor of Palmer Johnson therefore was not appropriate and must be reversed.

Decided June 30, 2000

Duffy & Feemster, John R. Strother III, Matthew M. Bush, for appellant.

Oliver, Maner & Gray, Timothy D. Roberts, for appellee.

4. In view of our holding in Division 3, we need not consider Vildibill’s remaining enumeration of error.

Judgment reversed.

Pope, P. J., and Miller, J., concur.


author: Johnson, Chief Judge.

text:
    A00A0503.
    DEPARTMENT OF TRANSPORTATION v. GEORGIA TELEVISION COMPANY.
    (536 SE2d 773)
   Johnson, Chief Judge.

Although the only issue involved in this appeal is whether the trial court properly awarded attorney fees to Georgia Television Company, this condemnation case has a long procedural history and has been before our appellate courts in numerous forms since 1985. In deciding the fee issue, it is helpful to discuss the case’s history.

The case began in 1984 when the Department of Transportation (“DOT”) filed a petition to acquire by condemnation title to land owned by Georgia Television Company d/b/a WSB-TV (“WSB”). The DOT intended to use the land as part of a four-lane highway known as the Presidential Parkway. The DOT wanted to run a segment of the highway between the base of WSB’s transmission tower and one of the tower’s support wire anchors, beneath a set of tower support wires. After the DOT’s petition was granted, WSB moved to set aside the taking, citing, inter alia, potential safety risks to people traveling underneath the support wires. WSB claimed that ice might accumulate on the support wires suspended over the roadway and could fall upon travelers below and that the DOT’s plan to locate the highway beneath the wires was an “ill-advised experiment which ignores the facts, the experience of the broadcasting industry, the best interests of the public, and the legitimate business concerns of [WSB].”

The trial court found that no grounds for setting aside the declaration of taking had been shown. This Court affirmed the decision of the trial court. The Supreme Court reversed, holding that the taking would create a grave risk to the safety of the public and that the transfer of WSB’s property to the DOT “must be set aside unless or until the Department has become bound to implement a plan of construction that will provide adequate protection against falling ice.” On remand, the trial court failed to hold a requested hearing regarding how it would receive the construction plan. WSB then filed a renewed petition seeking to set aside the taking, to enjoin the DOT from entering and taking possession of the property, and to be awarded attorney fees. The DOT filed a plan of construction with the trial court. After a hearing, the trial court denied the renewed petition and ordered the DOT to present “a complete, implementable plan of construction” that would protect the public from falling ice. WSB filed a notice of appeal from that order, and the DOT filed a construction plan purporting to comply with the trial court’s order. The Supreme Court remanded the case to the trial court for a hearing on the adequacy of the plan. After the DOT’s plan was found to comply with the Supreme Court’s order requiring that certain risks to the traveling public be eliminated, the road was built.

In October 1996, while the just and adequate compensation portion of the case was still pending, WSB moved for an award of attorney fees for the nonvalue portion of the case. In the motion, WSB stated that the DOT had filed a defective declaration of taking “which resulted in years of litigation before DOT’s right to take Condemnee’s property was judicially established.” On July 10, 1997, the court entered an order awarding WSB attorney fees for the nonvalue portion of the case. The DOT appeals from the order awarding fees to WSB.

1. The DOT contends that the trial court erred in awarding fees under OCGA § 13-6-11 where WSB did not plead for such fees in its petition. We agree.

OCGA § 13-6-11 provides that litigation expenses generally are not allowed as a part of damages; but where the plaintiff has specially pleaded and made prayer for expenses and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, they may be allowed.

Awards under OCGA § 13-6-11 must be specifically pleaded and prayed for in the complaint. A general prayer for “such further relief as the Court deems just and proper” is not sufficient to state a claim for attorney fees.

When WSB filed its petition to set aside the taking in 1985, it did not request attorney fees, either generally or under the statute. WSB first requested fees pursuant to OCGA § 13-6-11 in October 1996, in its motion for a fee award. This was nine years after it had filed its petition and about five years after it had lost its challenge to the taking. WSB thus did not comply with the special pleading requirement of the statute.

We are not persuaded by WSB’s argument that it met the pleading requirement by including a general request for attorney fees in its answer to DOT’s initial petition or in its renewed complaint. A general request for attorney fees, without reference to OCGA § 13-6-11 or the criteria set forth therein, is not the specific pleading contemplated by the statute. The statute requires that the party specifically plead and pray for fees thereunder. Moreover, the request for fees is not in WSB’s complaint or an amendment thereto.

Similarly, the fact that the pretrial order entered in January 1997 states that a motion for fees under OCGA § 13-6-11 is pending does not require a different result. The purpose of a pretrial order is to define the issues for trial. While a pretrial order may supersede the pleadings, that fact does not help WSB in this case. The parties here agreed in the order that the sole issue in the upcoming trial was that of just and adequate compensation. But the attorney fee request was for the nonvalue segment of the case. The 1997 pretrial order states that the fee issue would not be tried by the jury and that the court would resolve the fee issue after the jury trial. Inasmuch as the pretrial order does not include the claim for OCGA § 13-6-11 fees as one of the issues to be resolved at trial, that order cannot serve as a substitute for raising the issue in the petition.

The requirement that a request for fees under OCGA § 13-6-11 be made in the complaint is consistent with OCGA § 32-3-11 (c). That statute provides, in pertinent part, that if the condemnee desires to raise questions such as those outlined in subsection (b) (i.e., questions of bad faith, improper use of condemnation powers, abuse or misuse of condemnation powers, or such other questions as may properly be raised), it must do so by proper pleadings, in the form of a petition, within 30 days of being served with the declaration of taking. The question of entitlement to fees under OCGA § 13-6-11 should have been raised in the petition filed within 30 days after service of the declaration, or in an amendment thereto, not in a motion for fees filed some nine years later.

Our holding here is consistent with the general rule that, in our legal system, parties are responsible for their own attorney fees and that an award of fees is an exception to this rule. WSB’s recovery of attorney fees under OCGA § 13-6-11 is precluded by its failure to specifically plead and pray for them in the petition.

Decided June 30, 2000

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Weiner, Yancey, Dempsey & Diggs, Beryl H. Weiner, Thomas C. Dempsey, Robert W. Diggs, Swift, Currie, McGhee & Fliers, Jennifer A. Riddick, for appellant.

Troutman Sanders, Donald W. Janney, James K. Quillian, for appellee.

2. Even assuming the request was properly pleaded, we agree with the DOT that no fees should have been awarded for another reason. A party cannot receive attorney fees under OCGA § 13-6-11 unless it prevails on its basic cause of action.

Here, WSB’s petition was filed to set aside, vacate or annul the declaration of taking and to annul any title acquired by the declaration. After years of litigation, the declaration of taking was not set aside, vacated or annulled, nor was the title annulled. Rather, the case was resolved in favor of the DOT’s taking. Indeed, WSB acknowledged in its motion for fees that the “DOT’s right to take Condemnee’s property was judicially established” after years of litigation. That the actual taking was delayed while the case was pending does not make WSB the prevailing party. WSB did not obtain the relief sought, and so it is not entitled to attorney fees.

Judgment reversed.

Phipps and Mikell, JJ, concur.

       See OCGA § 32-3-11.

        Cox Communications v. Dept. of Transp., 178 Ga. App. 499 (343 SE2d 765) (1986).

        Cox Communications v. Dept. of Transp., 256 Ga. 455, 456-457 (3), (4) (349 SE2d 450) (1986).

        Cox Broadcasting Corp. v. Dept. of Transp., 258 Ga. 812, 813 (376 SE2d 687) (1989).

        Williams v. Binion, 227 Ga. App. 893, 894 (1) (490 SE2d 217) (1997).

        Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 275 (7) (329 SE2d 900) (1985).

       Compare Stone v. King, 196 Ga. App. 251, 252 (3) (396 SE2d 45) (1990).

        State v. Croom, 168 Ga. App. 145, 146 (1) (308 SE2d 427) (1983).

        Jacobsen v. Muller, 181 Ga. App. 382, 384 (3) (352 SE2d 604) (1986).

       See Williams, supra at 893 (1).

       See Jamison v. West, 191 Ga. App. 431, 433 (4) (382 SE2d 170) (1989); Carroll v. Johnson, 144 Ga. App. 750, 753 (4) (242 SE2d 296) (1978).

        Ellis v. Gallof, 220 Ga. App. 518, 519 (1) (469 SE2d 288) (1996); Barnett v. Morrow, 196 Ga. App. 201, 203 (396 SE2d 11) (1990).

       See id.


text:
    A00A0568.
    JANET RICKER BUILDER, INC. v. GARDNER et al.
    (536 SE2d 777)
   Johnson, Chief Judge.

Janet Ricker Builder, Inc. (hereinafter “Builder”) built several houses in a subdivision and sold one of them to the Trust Under the Will of Clyde L. Crawford, of which Pauline Gardner was Trustee. After purchasing the home, Gardner concluded that the construction was, in many respects, unsatisfactory. Gardner telephoned Builder and left a message requesting that certain repairs be made immediately and stating that she could “mess up” the sale of the homes not yet sold in the subdivision. Gardner placed signs on the property indicating her dissatisfaction with the home’s construction. A sign in one front window read “This lemon is for sale. Built by Janet Ricker Builder, Inc.”

In response, Builder filed an action for defamation and tortious interference with business relations against Gardner and the trust (collectively “Gardner”). Builder alleged that Gardner acted improperly by misrepresenting the facts as to its performance and thereby interfered with Builder’s ability to sell other houses in the subdivision. Builder later amended the complaint to allege Gardner breached their contract by not submitting the dispute to arbitration. Builder and Gardner moved for summary judgment, and Builder also moved for default judgment and to strike Gardner’s answer. The trial court granted Gardner’s motion for summary judgment and denied Builder’s motions. Builder appeals.

At the outset, we note that Builder has failed to comply with an order and several rules of this Court. For example, soon after filing the appeal, Builder requested an extension of time in which to file its brief. We granted an extension, but then Builder missed the extended deadline by eight days. When Builder finally filed its brief, it failed to include in its statement of facts citations to the record, neglected to support all but two of its seven arguments with citations to legal authority, and failed to include the applicable standards of review. In failing to include these items in the brief, Builder has violated Court of Appeals Rule 27 (a) (3). Because Builder has not complied with the Court’s rules of practice, we are authorized to disregard or treat as abandoned those enumerations which are deficient. In this case, we will exercise our discretion to consider the main arguments presented.

1. Builder contends the trial court erred in denying its motion to strike Gardner’s answer because Builder filed a verified complaint, but Gardner filed an answer which was not verified. This enumeration presents no grounds for reversal.

OCGA § 9-10-111 provides that where a plaintiff files a pleading and attaches thereto an affidavit providing that the facts stated in the pleading are true to the best of his knowledge and belief, the defendant must in like manner verify his answer. Builder filed a verified complaint. Although the answer Gardner initially filed was not verified, the amended answer was verified. It is well settled that the failure to verify a pleading is an amendable defect. The trial court did not err in denying Builder’s motion to strike the answer.

2. Similarly, because the amended answer related back to the date of the original answer, Builder’s enumeration that the second answer should not have been accepted because Gardner was in default is without merit.

3. Builder claims the trial court erred in failing to find that Gardner breached the sales contract by not arbitrating any dispute she had with Builder. The contract provides that “in the event a dispute arises after execution of this Agreement, there are alternatives to litigation through alternate dispute resolution methods, such as mediation and binding arbitration,” and that “[a]ny controversy or claim arising out of or relating to this contract. . . shall be settled as expeditiously as possible by arbitration.”

We point out, however, that Builder, not Gardner, initiated the litigation without first moving to compel arbitration. Accordingly, we fail to see how Builder can complain of Gardner’s not submitting the dispute to arbitration, Moreover, the contract refers to arbitration as an alternative to litigation. Gardner did not initiate litigation but expressed an opinion regarding the quality of the work done by Builder and apparently sought to settle the dispute without resorting to the courts. Builder has not shown a breach by Gardner. Under these circumstances, there was no error.

4. Builder contends that the trial court erred in failing to find that Gardner displayed conduct which amounted to tortious interference with Builder’s business relationships. We disagree.

To recover under a theory of tortious interference with business relations, Builder must show that Gardner (1) acted improperly and without privilege; (2) acted 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 Builder; and (4) caused Builder financial injury.

Builder does not point to any evidence that Gardner acted improperly. Builder’s president and sole shareholder, Janet Ricker, stated in her deposition that the reason she thought the sign was inaccurate was that “in my belief, . . . the house is not a lemon.” Gardner, on the other hand, swore in an affidavit that the house has-numerous problems, such as roof leaks and incomplete and inferior painting. An exhibit attached to the affidavit lists more than a dozen other construction problems. In our opinion, Gardner’s statement that the house is a “lemon” is a constitutionally protected expression of opinion. The trial court did not err in granting summary judgment to Gardner on the tortious interference claim.

Decided June 30, 2000.

Alexander J. Repasky, for appellant.

Ford & Harrison, F. Carter Tate, John L. Monroe, Jr., Jeffrey D. Mokotoff, for appellees.

Judgment affirmed.

Phipps and Mikell, JJ., concur.

       See Collins v. Newman, 237 Ga. App. 861 (1) (517 SE2d 100) (1999).

        Thomas Financial Group v. Standard Chartered Bank, 225 Ga. App. 879-880 (1) (485 SE2d 237) (1997).

        Wall v. Mills, 126 Ga. App. 149, 150 (1) (190 SE2d 146) (1972); see Horizon Credit Corp. v. Lanier &c. Co., 220 Ga. App. 362, 364 (1) (469 SE2d 452) (1996).

       See Peachtree Plastics v. Verhine, 242 Ga. App. 21, 22 (528 SE2d 837) (2000).

       See generally Tillman Group v. Keith, 201 Ga. App. 680, 681 (2) (411 SE2d 794) (1991) (agreement to arbitrate is waived by any action of party which is inconsistent with the right of arbitration).

       See Integrated Micro Systems v. NEC Home Electronics, 174 Ga. App. 197, 200 (3) (329 SE2d 554) (1985).

       See S & W Seafoods Co. v. Jacor Broadcasting &c., 194 Ga. App. 233, 237 (5) (390 SE2d 228) (1990).